[ mr.

faisal awais advocate ] Philosophy of Law

HISTORY OF LAW
1. DEFINITION OF LAW:

Law refers to the formal set of rules (prescriptions for proper behavior) that are
created, enforced, adjudicated and penalized by the state (government legislatures,
police forces, judges and juries, correctional systems).

2. LAWS V. RULES:

Laws are enforced by the justice system (police and courts), whereas rules (in sports,
homes and schools) are not.

Laws apply to all members of society, whereas rules only apply to members of
particular organizations or institutions.

Everyone must obey the law, but anyone can opt out of the rules by simply choosing
not to participate.

Simply put, all laws are rules, but not all rules are laws.

3. LAW AND DEMOCRACY:

The law reveals much about a nation’s character.

Canada is a representative democracy. The citizenry elect officials to carry out the
wishes of the majority by way of enacting legislation (making laws).

But laws are constantly changing. Laws can be amended (modified) or repealed
(eliminated) with relative ease by legislatures. If you personally disagree with the law,
you may even lobby parliament to change the law.

4. LAW IN OUR LIVES:

We live in a world governed by laws - at work, on the road, in our relationships, and in
our daily lives.

Laws reflect the values of the era in which they are enacted, e.g., divorce legislation,
prison reform, same-sex unions, drinking and driving penalties, etc.

5. WHAT IS LAW:

“Law” comes from the Latin word ligare, meaning “to bind.”

Laws regulate many social, political and economic activities within society.

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Laws establish norms within society and punish those who choose to disobey those
norms.

Laws differ from jurisdiction to jurisdiction.

Laws change over time within the same jurisdiction.

6. THE PURPOSE OF LAW:

Laws create a clear and predictable understanding of socially acceptable (and

unacceptable) behaviour. These rules of conduct are enforced via the use of penalties
meted out against those who choose to violate societal norms. In that sense, laws
control and limit certain behaviours. The Canadian Criminal Code, for example,
clearly spells out unacceptable behaviours within our society and attaches a penalty
to each such transgression.

Laws are a social necessity used to ensure order and stability. Laws enable people to
live together in relative peace and harmony because when conflicts and disputes
inevitably occur, the law allows for the peaceful resolution of such disputes (e.g.,
private litigation of civil matters or public prosecution of crimes). Without laws to
govern relations between individuals, chaos and vigilantism would likely ensue.

Laws protect individual rights and freedoms by ensuring that all laws created by
government comply with constitutional safeguards. For example, any law that violates
the terms of the Canadian Charter of Rights and Freedoms may be struck down as
unconstitutional. In this way, laws ensure private citizens are free from government
oppression.

Laws protect individuals from personal injury and property damage inflicted by their
fellow citizens. The law compels police officers and prosecutors to investigate private
harms and bring perpetrators of those harms to justice. Similarly, the law allows
private citizens to personally seek redress in court for any harm done to them by
others.

7. LAW AND MORALITY:

Some laws serve a mostly practical purpose, e.g., traffic laws.

Other laws, however, reflect the moral values and beliefs of the majority. Legislation on
the topic of pornography, alcohol and drug use, euthanasia (mercy killing), capital
punishment (death penalty), corporal (physical) punishment, sexual activity, abortion
and age limits tend to involve issues of both legality and morality.

Sometimes contemporary legislation shapes public opinion, while at other times, it is

public opinion that influences law makers.

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In general, laws reflect our contemporary community standards.

Laws based on morality enunciate the values and beliefs that Canadians hold in
common. Others within society are free to disagree and attempt to change those laws.

8. EQUITY V. EQUALITY:

For many, the ultimate goal of law is to ensure equity (fairness/justice) for all. Today,
equity is often associated with equality. But should the law treat all citizens equally in
all circumstances? Is equality always synonymous with fairness or justice?

In general, justice demands that similar circumstances be met with similar legal
consequences. Furthermore, justice demands that laws be based on relevant
characteristics and concerns only. Justice also demands that laws be applied
impartially and without concern for an individual’s status. Finally, justice demands
that laws conform to society’s values and beliefs in order to be enacted in the first
place.

9. HISTORICAL ROOTS OF LAW:

Laws have existed from the time individuals started forming communities.

Early laws were primarily related to hunting, family relationships, and property
ownership. These laws were passed down from generation to generation by word of
mouth.

As populations grew in size and trading between nations increased, laws became more
complex and eventually community leaders decided to codify, or systematically
arrange and record, the laws of a particular jurisdiction. (Codification is simply the
process whereby laws are written down so that future generations may more easily
access and understand them.)

In India between 1280 and 880 BCE, lawmakers recorded the Great Laws of Manu.

The Chinese Code of Li k’vei was recorded around 350 BCE, dealing mainly with
criminal offences.

But these were not the earliest-known sets of written laws.

10. CODE OF HAMMURABI:

This set of approximately 300 written laws was recorded around 1750 BCE by
Hammurabi, the king of Babylon (or modern-day Iraq). The king claimed that these
laws were granted to Babylonians by the gods.

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The code reflected a patriarchal (male-dominated) society in which privilege was

rewarded with increased protection from the law. Slavery was legitimized and women
and children were classified as mere chattels (personal property). A hierarchy was
created with gods and kings on top, followed by noblemen (wealthy and influential
persons) and their families, while slaves and the poor rested at the bottom.

Many of Hammurabi’s admittedly harsh punishments were predicated upon the notion
of retribution, or revenge, which were often directed not at the offender himself but
rather at his servants or female relatives.

Under the code, it did not matter whether the offender intended to commit his
transgressions or not - he would be punished equally in either case.

Somewhat surprisingly then, Hammurabi’s code is also credited with instituting the
considerably more moderate concept of restitution, in which property offenders were
ordered to compensate the victims of their crimes, financially or otherwise, in order to
make them whole again.

The rich were also expected to care for the poor under this code.

Finally, perjury (lying under oath) was recognized as a criminal offence under the code
for the first time.

11. MOSAIC LAW:

Biblical law, also known as Hebrew law or Mosaic law, is described in the Book of
Exodus, one of the five books of the Old Testament. Today these laws are often
referred to as the Ten Commandments or Decalogue, after Moses climbed Mount Sinai
to deliver these basic legal tenets to the Hebrew people around 1350 BCE.

Although written roughly 400 years after the death of Hammurabi, Mosaic law follows
a similar set of principles, prohibiting murder, adultery, theft and the worship of false
gods. However, unlike the Hammurabi code which failed to distinguish between
intentional and unintentional acts, Mosaic law was more concerned with punishing
deliberate acts only.

Persons of higher status were also more likely to be punished under Mosaic law.

Care for the poor and respect for one’s parents were central tenets of Mosaic law.

You may refer to page 20 for a comparative analysis of Mosaic law and the Code of
Hammurabi.

12. GREEK LAW:

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Representative democracy (wherein voters elect leaders to govern on their behalf) was
first born in Greece around 400 BCE, although women, children, foreigners and
slaves were specifically excluded from political participation.

In Greek society, male Athenian “citizens’ were fully expected to vote in local elections
and perform jury duty alongside hundreds of their peers. Juries were even granted the
authority to decide upon appropriate sentences following a criminal trial.

13. ROMAN LAW:

Roman law dictated that societal rules had to be recorded in an orderly manner that
could be revised as new laws became necessary. The Twelve Tablets, written circa 450
BCE, summarized the law of England during the Roman occupation of that land and
now forms much of modern-day Western law. The Tablets promoted public
prosecution of crimes, compensation for victims, and protected the lower classes
(plebeians) from the upper classes (patricians).

Furthermore, by 100 BCE, Roman law encouraged the use of expert advisers (lawyers)
to assist those engaged in complex legal matters before the courts.

14. JUSTINIAN CODE:

In the sixth century AD, following the dissolution of the Western Roman Empire,
Byzantine Emperor Justinian I attempted to clarify and organize the 1600 books of
Roman law that had been codified up to that time. This revised body of law came to be
known as the Justinian Code and served as a basis for contemporary civil law which
regulated disputes involving private citizens and organizations within the Eastern
Roman Empire until its fall to the Ottoman Turks in 1453. The code also placed
significant emphasis on the concept of equity (or fairness) in the resolution of legal
disputes.

15. ABORIGINAL LAW:

Around 1720, six Aboriginal nations formed the Iroquois Confederacy, more commonly
known as the Six Nations. The codified constitution of this confederacy, the Great
Binding Law, outlined the fundamental rights and responsibilities of the citizenry,
many of which can be found in modern civil rights documents.

16. NAPOLEONIC CODE:

Once the French revolution ended in 1799, Napoleon Bonaparte, the Emperor of
France, commissioned a new code of written laws known as the French Civil Code to
govern both his nation and those that he would ultimately conquer. The Napoleonic
Code, as it is also known, became quite popular because its non-technical language
made it easy for laymen to understand. The code regulated civil matters such as
property, wills, contracts and family disputes.

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17. BRITISH LAW:

While Hammurabian, Mosaic, Greek, Roman, Justinian, Aboriginal and French law
have certainly had some impact, it is British tradition that has had the greatest
influence on modern-day Canadian laws and legal procedures.

Historical British legal customs included the following:

 Trial by Ordeal

When a lord (landowning nobleman) acting as an adjudicator was unable to reach a

verdict in a capital case (one involving the death penalty) based on existing facts and
witnesses, he would employ a method known as trial by ordeal in which the accused
criminal was subject to torture so as to determine his/her guilt or innocence. (It was
assumed that the innocent would survive these ordeals unscathed while the guilty
would suffer harm or even death.) This method included trial by hot iron and trial by
cold water drowning (which was especially common in allegations of witchcraft.)

 Trial by Oath

For less serious charges, friends of the accused (witnesses) were often asked to swear
under oath (i.e., on the Bible) that he/she was innocent. In such cases, the accused
was usually released without penalty.

 Trial by Combat

Under this method, the two parties to the dispute engaged in a duel (gun battle) with
the winner being declared the innocent party. In such contests, physically weaker
participants were permitted to hire skilled combatants to duel on their behalf.

(Such representation extends into modern legal arenas in the form of the adversarial
system, where parties to a dispute may hire advocates, or lawyers, to “fight” on their
behalf. Under the modern adversarial system like the one seen in this country,
evidence is presented by opposing parties to an impartial adjudicator charged with
rendering a verdict.)

In each of the three above “trials,” it was presumed that G_d would always take the
side of the innocent party.

18. ENGLISH FEUDAL SYSTEM:

Following the end of the Roman occupation of Britain in 410 AD, the distinctive
customs and traditions of individual villages created a patchwork system of justice
throughout the land.

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When William the Conqueror, Duke of Normandy, claimed victory in the Norman
(French) Invasion of England in 1066 AD, one of his first initiatives was to establish a
unified system of law across Britain.

William’s absolute power stemmed from the concept of divine right, the belief that
monarchs and their successors derived their power to rule from G_d and therefore
were accountable only to G_d, thereby placing themselves above the law.

William subsequently instituted the feudal system in which parcels of land throughout
England were turned over to wealthy noblemen who were granted absolute power to
govern their lands, including the meting out of justice, as they saw fit.

Inconsistencies once again ensued from village to village until the citizens of England
eventually rose up and demanded reforms.

19. ENGLISH COMMON LAW AND THE RULE OF PRECEDENT:

In the 12th century AD, King Henry II of England, William’s grandson, sought to
minimize inconsistencies in the law by authorizing legal experts (circuit judges) to
travel from village to village in order to settle disputes inside makeshift courtrooms
known as assizes. But without any codified (written) laws upon which to adjudicate
these disputes, circuit judges were forced to rely upon their common sense in order to
reach their verdicts.

Over time, circuit judges began to employ similar reasoning in cases involving similar
circumstances. When local villagers began to record the details of these disputes and
the judicial decisions that followed, a set of codified legal opinion was created. These
recorded judicial opinions (fact summaries, verdicts and reasons for judgment) became
known as case law or common law.

Each time a decision was rendered and a case was recorded, a precedent was
established which could be adhered to in future, similar cases. This practice led to the
principle of “stare decisis”, a Latin phrase meaning “to stand by an earlier decision.” In
short, under this principle of law, a judge of one court is required to abide by the
findings of law of a judge in a higher court within the same jurisdiction as long as the
facts of the two cases are similar in nature. Today this legal custom is properly known
as the rule of precedent.

And so, in modern jurisprudence, lower courts are theoretically bound by both the
verdicts and the legal/statutory interpretations of higher court judges within the same
jurisdiction where the circumstances warrant such comparisons.

20. ENGLISH LEGAL REFORM:

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King Henry II next instituted an early form of jury system in conflicts involving land
matters. Twelve elderly villagers familiar with the land in dispute would hear the case
and advise the sitting judge as to an equitable resolution. Yet by establishing a series
of independent courts, King Henry II had inadvertently undermined the authority of
the monarchy in England.

It was Henry’s son, King John, who signed into law the Magna Carta in 1215. This
milestone document, also known as the Great Charter, had the effect of limiting
government powers and establishing individual political and civil rights among the
people of England for the very first time. Accordingly, the Magna Carta is widely
considered the forerunner of the modern-day Canadian Constitution and Charter of
Rights and Freedoms.

In addition, the Magna Carta made specific reference to the writ (or court order) of
habeas corpus, which compels the state to present an arrested or detained person
before a judge within a reasonable time period in order to determine the validity of that
detention.

But most importantly, the Magna Carta is credited with enshrining the Rule of Law
(see below), thus ensuring equality for all under the law.

21. RULE OF LAW:

As previously discussed, King John of England signed the Magna Carta in 1215,
essentially the first Constitution and Charter of Rights, thus enshrining the principle
of the Rule of Law. In Canada, respect for the Rule of Law is paramount.

The Rule of Law states that

(1) no one is above the law (i.e., even the powerful are subject to the law)

(2) no one can restrict the rights of another arbitrarily or without proper cause (i.e., all
laws must adhere to constitutional safeguards) and

(3) the public’s rights cannot be altered without their consent (i.e., laws are only
created and amended by democratically-elected governments)

22. SUMMARY OF OUR HISTORICAL ROOTS:

The modern Canadian concept of an accused being tried before an impartial jury of
his/her peers is a direct descendant of the Greek jury system.

Meanwhile, it was the Romans who established the role of the legal advocate, while the
French Civil Code is the forerunner to the Quebec Civil Code in use today.

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Aboriginal judicial traditions that emphasize community involvement and

rehabilitation of offenders, e.g. sentencing circles, are an increasingly popular
alternative to traditional sentencing measures among Canadian legislators.

Finally, the British custom honoring the rule of law and the rule of precedent form the
cornerstone of modern Canadian jurisprudence.

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