HISTORICAL ROOTS OF LAW
Code of Hammurabi
laws reflected a patriarchal society – male dominated
wealthy given more protection than the poor
laws based both on retribution and restitution, but
mostly on retribution – eye for an eye
expressed the importance of respect for the parents
Mosaic Law
the Ten Commandments
more concerned with punishing an intentional criminal
action than an accidental act of harm
care for the poor was expressed
expressed the importance of respect for the parents
Greek Law
a small number of Athenian people known as citizens
had political rights - citizens excluded women, children,
aliens and slaves
responsibilities of the citizen included voting, jury duty
and the running of the country
our jury system can be traced to Athens
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Roman Law
Roman law is based on two basic principles:
(1) the law must be recorded
(2) justice cannot be left in the hands of judges alone to
interpret
laws reflected a patriarchal society - women had no
status as persons
because the Roman Empire had spread into a large
sophisticated and complex society laws increased – as
laws increased so did the need to have people who were
experts in the field of law to advise those who were
not = LAWYERS
Early British Law
British law has had the most influence on Canada
i.e. Queen, Courtroom Traditions (Bar, Robes)
When the Romans conquered Great Britain in 43 CE,
they imposed their laws. When the Romans left in 410
CE., Roman laws soon gave way to practices that
followed local customs and traditions in Britain
Trial by Ordeal
deeply religious people of the Middle Ages believed
that guilt or innocence could be determined by God and
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that God would judge the guilt or innocence of the
accused
Torture to determine guilt and innocence
Trial by hot iron – hold hot iron & if wound heals…
innocent
Also trial by hot water, cold water, swimming a witch
Trial by Oath Helping
Requiring friends of the accused to swear on the Bible
that he or she was innocent
Trial by Combat
Using a duel was used to determine guilt or innocence
Adversarial System
In present-day justice system, both sides battle in
court to determine guilt or innocence
The Feudel System
Divine Right of Kings – accountable only to God
William divided into parcels of land for noblemen –
everything in parcel (land, animals, peasants) belonged
to nobleman
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English law was inconsistent because some noblemen
were fair & reasonable & others were harsh
Penalties varied, no rules of evidence and no rights of
accused
Case Law/Common Law
King Henry II set up a system of traveling circuit
judges who heard cases in their jurisdiction
judges gather, discuss and record their decisions
body of laws become “common law” (laws common to all
citizens in a country)
Stare Decisis – Setting a Precedent
Recorded decisions became known as “precedent”
leading to the practice of “stare decisis” (to stand by
the decision – or abide by decisions already made)
Stare decisis evolved into the rule of precedent which
means applying a previous decision to a case that has
similar circumstances
Legal Reforms
Jury system (12 men) first only in land disputes & the
judge decided verdict
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Travelling judges evolved into a complex maze of courts
for all issues criminal & civil
Perception of Divine Right eroded because courts not
King were deciding so he wasn’t the maker of the law &
perhaps not above the law
Magna Carta – Rule of Law – Habeus Corpus
Magna Carta signed by King John in 1215 under
pressure from Nobles – first step in establishing the
Rule of Law
Magna Carta also gave Habeas Corpus – “you must have
the body” – requiring an arresting authority to present
an arrested person before the court within a
reasonable time
Aboriginal Law
earliest aboriginal societies based their laws on oral
tradition
introduced the concept of “restorative justice”
offender must “restore” justice by recognizing their
crime and take responsibility for their actions
restore respect between the perpetrator and the
victim – (right the wrong that you did)
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