Study Notes for Introductory Unit
Difference Between Rules and Laws
 Rules resemble laws but are not enforced by courts
 Possible to opt out of rules. Not possible to opt out of laws (you cannot choose not to follow a law.
 If you break a law, you will be punished.
 Rules are not laws but all laws are rules.
What is Law?
 Laws regulate social, political and economic activities from birth to death.
 One definition: “a civilized people’s attempt to regulate life in society by the principles of reason and
fairness as opposed to brute force.”
 Laws change with time and social circumstance.
The Need for Law
 Help people to live together peacefully by offering some predictability and structure.
Rule of Law – 3 part principle
1. Law is necessary to regulate society
2. Law applies equally to everyone including people in power.
3. No one has the authority to use unrestricted power against another except in accordance with
law.
Historical Roots of Law





Original laws in simple societies governed matters of day to day life.
More complex societies resulted in more complex laws.
Earliest know recorded law was the Great Law of Manu (India 1280-880 B.C.E.)
Next the Chinese Code of Li k’vei in 350 B.C.E. covered laws for theft, robbery, prison and arrest.
Other written laws existed all over the ancient world covering property rights, slavery and the
treatment of women and children.
Code of Hammurabi
 1792-150 B.C.E. in Babylon.
 Named after king of Babylon.
 Codified = recorded. Language is a form of code, so committing law to written form is to codify it.
 King Hammurabi told people that the laws came from the Gods resulting in fear and greater
compliance (especially if Gods are the punishers!)
 Laws reflect patriarchal social order in which wealthy given more protection than others (consider
our rule of law today in which this is not the case.
 Slavery was legal, women and children were property.
 There was a hierarchy or power.
 Gods the kingmale noblestheir wives and childrenthe poorslaves
 Based on retribution – eye for an eye justice.
 No distinction between accident and deliberate action.

Based on restitution – making payment to the victim for the crime.
Mosaic Law
 10 Commandments written 500 years after Hammurabi, basic principles are similar.
 Biblical / Hebrew Law
 Moses given these laws by god.
 Differences between Hammurabic and Mosaic law
o More concerned with punishing deliberate acts than accidents.
o More likely to punish guilty party than allowing that person to shift blame to lower status
person.
o Care for the poor part of Mosaic law
o Similar in emphasis for showing respect for parents, but much different in how gender specific
the rules were.
Greek Law
 Birth of democracy giving rights only to a small number considered citizens (no women, children,
foreigners and slaves).
 Citizens expected to participate in major decisions affecting running of country.
 Voting and jury duty major responsibilities.
 Jury system traced to Athens around 400 BCE.
 Juries enormous (largest recorded = 6000 members). Later limited to 101, 501, 1001 citizens.
 Women on trial not allowed to speak for themselves. A citizen had to do it for them. (beginning of
representation in courts)
 Sentences for crimes decided democratically.
 Know the trial of Socrates (p.21).
Roman Law
 Two basic principles
1. law must be recorded
2. judges cannot be the only ones interpreting law
 Since laws were organized in writing they could be revised as new laws were needed.
 Twelve tablets earliest Roman Law (450 BCE) used during the occupation of England and
considered the foundation of modern law.
 Tablets
1. promoted public prosecution of crimes
2. victim compensation
3. protected lower class from upper class abuse
 Still patriarchal
 Legal advisers (early lawyers) first used by Romans.
 By 100 CE roman empire huge with more complex society so the law became more complex.
 Greater need for legal advisers who were forerunners to modern lawyers.
Justinian’s Code



When Roman Empire was split and lost former strength in 395 CE Byzantine Emperor Justinian
hired 10 men to study and make clear 1600 books of Roman law. This new law known as
Justinian’s Code
Word justice comes from emperor’s name.
This code became basis for laws governing personal relationships (civil law)
Napoleonic Code
 1200 years after Justinian in France
 Napoleonic Code or French Civil Code were a mix of Germanic Law and Justinian Code
 Written in non-technical way that made it easier to understand for ordinary people.
 Regulated civil matters including property, wills, contracts and family law.
Influences on Canadian Law
 All mentioned so far have influence on Canadian Law.
 Most influence, however, comes from British Law.
 Traditions like clothing of lawyers and judges come from this.
Early British Law
 Romans conquer Britain in 43CE and impose Roman law.
 When they leave, they give way to local customs and traditions
 Trial by Ordeal: When lord unable to reach a verdict on a case accused was tortured and guilt or
innocence was determined by outcome since God was doing the judging.
o Included trial by hot iron—accused forced to hold hot iron, burn bound for days, if wound
healed when bandages removed they are innocent.
o Other trials included trial by hot water, and trial by cold water. If person survived they were
innocent.
 Trial by Oath Helping
o For less serious crimes
o People who know accused swear an oath on innocence.
 Trial by Combat
o Have a duel. The loser is guilty because God is on the side of the winner.
o Some people hired someone stronger than them to fight the duel
o Founding idea for the adversarial system where you get someone else to fight your case for
you.
 Feudal System
o 1066 CE Williams the Conqueror invades England, wins and becomes King William.
o His sons Henry I and Henry II make changes to law by creating a unified system and taking
control over all law.
o William declared himself the law with the divine right to rule and administer it.
o William’s Feudal system divided Britain into pieces of land controlled by a Nobleman.
Everything, including the peasants belonged to him.
o In beginning each nobleman judged and sentenced those under their authority resulting in
inconsistent application of law and punishment.
o No rules of evidence and no though of rights of accused.
o People objected to this so by Henry II time things change.

Common Law
o Henry II wanted consistency so he set up traveling judges (circuit judges) to set up traveling
courts (assizes).
o Judges started noticing similarities between cases over time and decided that similar cases
should be decided in similar ways.
o Also began to record cases and decisions. These documents formed basis of case
law/common law. (info common to all)
o When new cases with no similar cases arose, they formed the Precedent for subsequent
cases.
o Stare Decisis: to stand by the decision; abide by decisions already made. Today this is
called the rule of precedent

Legal Reforms
o Henry set up jury system.
o First juries only for land disputes with juries of 12 elderly men who did not decide on a verdict.
Still left to judge.
o Meanwhile, traveling judge system had evolved into complex maze of courts that heard
disputes on anything.
o Because laws were evolving by precedents of judges decisions, law was seen by the people
to no longer be the divine tool of the king. That meant the king was not above the law.

Rule of Law
o When Henry’s son John signed Magna Carta power of monarchy becomes limited and rule of
law comes into force.

Habeus Corpus : requires that the police present an arrested person before a judge or court to
determine the validity of the arrest. Reason is to have people released who are unlawfully
imprisoned. This right is in the Canadian Charter of Rights and Freedoms.

Aboriginal Law: Great Binding Law of the Iroquois
o Outlines rights, duties and responsibilities