The History of Law Flashcards
How did ancient tribal societies use “law”
had STANDARDS of behaviour that let them live in peace, very FEW RULES, not written, passed by WORD OF MOUTH (you knew everyone)
What punishment was used in ancient tribal societies?
one common punishment for all crimes: SHAME for lesser crimes (including branding to identify criminals) and BANISHMENT for serious crimes (can mean certain death). there was a FEAR of being OSTRACIZED from the community that KEPT PEOPLE IN LINE.
prisons were NOT SUSTAINABLE
What is the Ma’at in ancient Egypt?
LEGAL SYSTEM of Egypt. Was based on the common sense of doing RIGHT and WRONG, written in codes. they stand for TRUTH, JUSTICE, and BALANCE
How did the legal system work in ancient Egypt?
All citizens were EQUAL, while the KING was the supreme JUDGE and LAWMAKER. Pharaoh was head of CHURCH AND STATE, a living GOD (punishment was severe, against your mortal soul). arguments were presented in COURT with a JUDGE, used EVIDENCE and TESTIMONY.
What punishment was used in ancient Egypt?
you suffered not only mans law but GOD’S LAW (from Pharaoh). CORPORAL punishment of WHIPPING or bleeding CUTS used as BRANDS (for severe cases). thieves must return goods and were FINED TWICE the value.
What did Hammurabi give us?
WRITTEN LAWS
Explain Babylon’s first laws.
Called the CODE of HAMMURABI. created when Babylon became a trading center. laws CARVED in STONE in center of the city, written in CUNEIFORM and as PICTURES for those who could not read. Written laws were used as PERMANENT REFERENCE (essential for laws to work)
What was the punishment for breaking the Code of Hammurabi?
NO DISTINCTION between ACCIDENTAL and DELIBERATE acts (actus reus and mens rea). punishment was SEVERE (an eye for an eye). People were punished once tried and found guilty.
What did Religion (Hebrew/ Mosaic Law) give us?
basic LAWS of FUNDAMENTAL IMPORTANCE (thou shall not…)
Explain Hebrew/ Mosaic Law?
Based on the 10 COMMANDMENTS. were the Laws of God. EYE for an EYE, but distinguished between ACCIDENTAL and DELIBERATE acts (punishment for the guilty). EVOLUTIONARY step towards justice.
What did ancient Greece give us?
DEMOCRACY and a JURY [system]
What did Draco do in Greece?
created the FIRST WRITTEN LAWS of ancient Greece. Laws were HARSH, good in theory but in practice were harsh.
What did Solon do in Greece?
ALTERED Draco’s laws and “DEMOCRATIZED” the justice system. made the COURTS more ACCESSIBLE to citizens (made the system better).
How did the first democracy (in Greece) work?
All citizens EQUAL before the law. First JURY SYSTEM (up to 1000 people). people judged by FELLOW CITIZENS through a VOTE. used DISCS (solid=innocent, hole=guilty, “hole in story”)
What are the pros and cons of the first Greek democracy?
pros: people HEAR and DECIDE cases
cons: NO DISCUSSION to reach a verdict, can be BIASED (friend or family on the jury, bribery “vote for me”)
What were the requirements to be a part of democracy in ancient Greece?
you must be a MAN, must OWN LAND (only rich people), and must be GREEK
What punishment was used in ancient Greece?
punishment was HARSH, even GODS MUST OBEY the laws (stories of Gods being punished are cautionary tales, Atlas holds the world on his back)
What did Rome give us?
LAWYERS and a CRIMINAL CODE
Who were advocates and what did they do (in Rome)?
essentially LAWYERS, taught and trained to INTERPRET the law. fulfilled their role for free, part of their CIVIC DUTY. usually the 4th or 5th son (first gets business, second is military, third is church)
What is the Justinian Code?
a way to SIMPLIFY, ORGANIZE, and CODIFY laws (similar to the criminal code). was more clear and organized than the Code of Hammurabi. broken down into SUBSECTIONS, people SPECIALIZED in different sections.
What happened during the dark ages?
ROME FALLS (so big they couldn’t keep up, empire is DIVIDED in half, WEAK and taken over, NO KNOWLEDGE PRESERVED), all is LOST, LAWLESSNESS
What is the hierarchy early English Law created?
Kings
lords
clergy, military, vassals-all same level
What is trial by ordeal?
England believed GOD would SAVE THE INNOCENT. “TESTS” were used to prove this
What are the four trials by ordeal?
trial by COMBAT, trial by WATER, trial by HOT IRONS, trial by BREAD AND CHEESE
What is trial by combat?
FIGHT to prove innocence (that God is on your side). RICH men fought to the first CUT, POOR men fought to the DEATH.
What is trial by water?
used for WOMEN (‘witches’). if you FLOAT you are GULITY (and executed), if you SINK, you are INNOCENT.
What is trial by hot irons?
BURNED on your arm (natural instinct is to put water on it). if burns become INFECTED, you are GUILTY, if you survive with NO INFECTION, you are INNOCENT (God is on your side).
What is trial by bread and cheese?
reserved for the UPPER CLASS. you ATE bread and cheese (with no water), then spoke verses from the bible. if you SPEAK CLEARLY you are INNOCENT, if you MUMBLE you are GUILTY.
What did England give us?
COMMON LAW, EQUALITY, and EQUITY
What is Magna Carta?
1215 DOCUMENT making all men EQUAL under the law, KINGS were NO LONGER ABOVE the law. LAW TRUMPED GOD.
what is the Divine Right of Kings?
MENTALITY that any monarch could DO AS THEY PLEASE because GOD gave them the POWER (like Pharaoh)
what is the Rule of Law?
(still exists in Canada) all people are TREATED EQUALLY under the law, NO ONE IS ABOVE the law (Magna Carta)
what is the Common Law system?
LEGAL SYSTEM takes on a greater POSITION OF AUTHORITY. LAWS and JUDGES have greater INFLUENCE (not just Kings and Queens). created the idea of PRECEDENTS
what is a Precedent?
a LEGAL DECISION or CASE serving as a GUIDE or justification in FUTURE CASES
what did common law and precedents establish?
UNIFORMITY:
SIMILAR cases have SIMILAR DECISIONS
PREDICTABILITY:
lawyers can ADIVSE clients as to the PROBABLE RESULT of a a case
IMPARTIALITY:
judge will NOT be BIASED about a case as the decision will be based on past cases
What did France give us?
CIVIL LAW and the INQUISITORIAL TRIAL SYSTEM
What is Civil Law?
type of law in which all laws are CODIFIED in STATUTES. Written down. Enacted by Napoleon, it was an INQUISITORIAL TRIAL SYSTEM (rather than ADVERSARIAL). MODERNIZED the legal system. wanted lawyers to ASK QUESTIONS (rather than point fingers or intimidate). religion has LESS POWER in justice
what is Inquisitorial and Adversarial trial systems?
inquisitorial: uses INVESTIGATION and EXAMINATION of EVIDENCE, the court investigates the case
adversarial: uses COMPETITION between the PROSECUTION and DEFENCE, court is there as a ‘referee’
what did Native Canadians give us?
ALTERNATIVE DISPUTE RESOLUTIONS and SENTENCING CIRCLES
how did Native Canadian legal systems work?
laws based on ORAL TRADITION (passed down by word of mouth). believed that HIERARCHY BREEDS CONFLICT. legal system was SIMILAR in terms of basic principles. they had new forms of ALTERNATIVE DISPUTE RESOLUTIONS
how did Native Canadian sentencing work?
SENTENCING CIRCLES: ALL PARTIES involved in an incident have A SAY in the outcome/ punishment of the guilty party. gives INJURED PARTIES POWER (rather than just feeling like a victim). take a LOT OF TIME (not time and cost efficient, since so many cases come through)
