Origins of Law

1. HAMMURABI (POSITIVE LAW AS MADE BY A PERSON)

• Codification
• Retribution (eye for an eye)
• Patriarchal
• All Babylonians Subject to the law
• King is above the law
• Very harsh and cruel
• Son gets hand cut off if strikes father, not mother
• Doctor gets hand cut off if surgery goes wrong
• Death for those who lie is court

1. MOSAIC LAW

(NATURAL LAW COMING FROM GOD)

• Many laws similar to code of Hammurabi (killing, adultery and perjury are still forbidden)
• Basis of Jewish and Christian faiths
• Restitution to victim (civil court today)
• Ten Commandments given to Moses on Mt. Sinai
• Those who steal must repay the victim for goods stolen.

1. GREEKS

• Democratic ideals in political and legal system
• Limited democracy – citizenship limited to native-born men over age of 18; women, slaves and foreigners were excluded
• Trials by jury of fellow citizens; could include 100s of people
• Jury acted as judge
• Charter; s.3 – right to vote
• S. 11 guarantees right to trial by jury

1. ROMAN LAW

• Created a legal profession and trained scholars
• Justinian Code – emperor Justinian had all the laws of the time collected and organized into one manageable code
• Presumption of innocence and no one is above the law

• Basis of modern day lawyers
• Codes adopted

1. BRITISH – Feudalism

• It is a system of government where the king divides the land among his lord and nobles who will provide him with military service
• The lords and nobles have vassals who do the work on the land, give produce to them and can provide military service
• The king appointed judges who travel throughout England and listen to cases.
• Judges met regularly in London to discuss cases and share experiences
• The decisions that traveling judges made became the basis of English common law
• It was a very fair system as it replaced the arbitrary judgments that lords had made over their vassals in the past.

1. Precedent

• a legal case establishing a principle or rule that a court utilizes when deciding subsequent cases with similar issues or facts.
• A Precedent was created every time the decision about a case became common knowledge in the English legal community
• Stare Decisis – stand by the decision; requires than a precedent be considered when ruling on a case with similar facts.
• Initially precedents were unwritten
• This system was considered to be an improvement over the right of a lord to judge cases however he chose
• Appeals to decisions were allowed
• Precedent introduces a degree of certainty in the law as lawyers can examine similar cases and expect a somewhat similar result.

1. Case law

• As the number of judges and cases increased, recording decisions became necessary
• Cases began to be recorded and published in paper and electronic form
• Now recorded cases are given a title called a citation to make it easy to find in a law library

1. The Rule of Law

• Many kings felt they were above the law but the Magna Carta in 1215 established that everyone was equal under the law and had to obey the law
• Equality became important for the first time
• People had legal rights
• No person cold be imprisoned without a court appearance within a reasonable time (Habeas Corpus)
• In Canada every dispute must be settled by peaceful means, either by discussion and negotiation or by due process in the courts
• The Rule of Law brings order to people’s lives by preventing the use of violence and the abuse of human rights

1. Statute Law

• Parliament was created to help make laws and reduce the amount of power the king had
• When common law and case law cannot provide answers, parliament makes laws to fill in the gaps
• Members of the public could now read the laws and know what they said

• Parliament is seen as the institution that represents the wishes of the people
• This was an important step in the development of democracy
• Canada’s substantive law represents common law decisions and statute laws passed by government

• French civil code – rooted in Roman law
• Quebec employs civil law system – civil code of Quebec
• Judges base decisions on the code and interpretations of the code by scholars rather than precedent