LAWS101 @ Carrington
Tutorial 2
Legislation and
Legal History
Key Readings:
Nigel Jamieson:
 Sir Henry Maine, ‘Ancient Codes’ (Chapter 1), Ancient Law, pp.1-18
 Sir Henry Maine, ‘Legal Fictions’ (Chapter 2), Ancient Law, pp.26-36
Study Questions
1. Briefly describe the 3 key legal concepts that are introduced in Maine’s
chapters: legal fictions, equity and legislation.
Stephen Smith: Chapter 2 – Ancient Law
 The Code of Hammurabi
o Charles F. Horne, Introduction to the Code of Hammurabi, The
Sacred Books and Early Literature of the East: Volume 1,
Babylonia and Assyria (Parke, Austin and Lypscomb, 1917) 107
o Leonard W. King (trans), Code of Hammurabi, in Horne, supra,
114.
 The Ten Commandments (“The Decalogue”)
o Everett Fox
o King James, Exodus 20: 1-17 (1611)
o S.E Smith, Comment, 2007
 Alan Watson, The Law of the Ancient Romans (Southern Methodist
University Press, 1970)
 Duodecim Tabularim (“The Twelve Tables”) in Clyde Pharr (ed). Ancient
Roman Statutes: Translation, with Introduction, Commentary, Glossary
and Index (Univ of Texas Press, 1961).
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LAWS101 @ Carrington
Study Questions
1.
What are some of the similarities between the Code of Hammurabi and
the Ten Commandments? How are they different? Think in terms of form –
what does this mean for the law they convey?
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2.
Recall Holmes’ distinction between laws and morals. Assuming that
“law” is current NZ law, and “morals” are your own personal concept of
morality, can you find rules from the Code of Hammurabi and the
Decalogue to place in each of the circles of the Venn diagram?
3.
What is the significance of the Code of Hammurabi and the Ten
Commandments being written on stone?
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4.
In ancient Rome, what were patricians and plebeians?
5.
What role did the decemviri play in the formation of Roman law?
6.
Why did the plebeians want the Twelve Tables to be produced? Why
was it in the patricians best interests to delay their production?
7.
Are there any principles of law contained in the Twelve Tables that are
still enshrined in the law of Western states? (or derived from them?)
8.
How well do you think the laws of the Twelve Tables overlapped with
the morality of the Roman state?
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9.
What were the differences between Justinian’s Code, Digest and
Instititutes?
10.
Why do you think Roman law had less of an effect in shaping English
law than it had on the law of the Continental European countries?
11.
In your opinion, which was the creation of more significance – the
Twelve Tables or the Corpus Juris Civilis? Why?
LAWS101 @ Carrington
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