THE HISTORICAL DEVELOPMENT OF LAW - PowerPoint Presentation

Slide1

THE HISTORICAL DEVELOPMENT OF LAW

UNIT 4Slide2

Answer the following questions:

1. The origins of law are closely related to the beginnings of organized human society. Can you mention some early laws?

2. What was the law based on in early pre-literate societies?

3. Which legal system provides the basis for the continental European legal systems?

 Slide3

Preview

Major Stages in the History of

Law

:

1.

Customary law and the first codifications

2.

Roman

law

3.

Ius

comune

of

Europe

4. National

codifications

5.

Common

lawSlide4

Answer

the

following

Which

early

codifications

do

you

know

?

Which

historical

periods

do

they

belong

to?Slide5

Customary

law and the first codifications

Before the advent of writing, laws existed only in the form of

customs.

The

absence of written law makes it difficult for the rules to provide lasting or extensive application.Slide6

The

Code

of

hammurabi

(

1760 BC

)

Among the first written

codes

-

that of Hammurabi,

king

of the Babylonian

Empire

O

ne

of the earliest examples of a ruler proclaiming laws to his people so that they can know their rights and duties.

Engraved

on a black stone slab (

t

oday

in the Louvre

,

Paris

),

it

contains

cc.

300

sections with rules relating

e.g

.

punishment

that should be

inflicted

on a

false witness

(death)

,

the

one meted out to a builder whose house collapses killing the owner (death).

The

code

-

almost entirely devoid of

defences

,

a very early example of

strict liability

.Slide7

Solon’s

laws

(

6th century BC

)

An outstanding example of early

law-making

-

the

laws of the Athenian statesman Solon

(

6th

century

BC

)

Regarded

by the ancient Greeks as one of the Seven Wise Men, he was granted the authority to

legislate

in order to assist Athens in overcoming its social and economic crisis. Slide8

Roman

law

The Law of the Twelve Tables

E

arly

classical Roman law

-

customary

.

One

of the earliest known codes of laws, the

Law of the Twelve Tables (Lex

Duodecim

Tabularum

,

c. 450 BC) consisted mainly of Roman custom with certain borrowings from Greek law.

A

collection of basic rules, rather than a comprehensive piece of

legislation

, yet it came to be regarded as the starting point of Roman legal history. Slide9

Classical jurists

During the period of the so-called classical

jurists

(Gaius, Ulpian, and others), between the 1st century BC and the middle of the 3rd century AD, Roman law achieved considerable sophistication

.

W

ritings

of jurists had a very significant impact on the development of Roman law.Slide10

The Fall of the Western Roman Empire

After the collapse of the Western Roman Empire in 476 AD, the development of Roman law was disrupted in Western Europe.

Law

and the political order were fragmented, although the Church preserved a great deal of Roman culture in its laws.

 Slide11

The

Byzantine Empire: Corpus Juris

Civilis

Between 529 and 534 AD, the Byzantine

emperor Justinian ordered a systematic and comprehensive codification of laws.

The

four resulting books, known as the

Corpus Juris

Civilis

(comprising the

Digest, Codex, Institutes

, and

Novellae

), were to be treated as definitive.Slide12

The first European universities

Six hundred years after the collapse of the Western Roman Empire, the scholarly study of Roman law revived, starting in Bologna, the first university in Western Europe (c.1088 AD).

The

universities taught law students Justinian's

civil law

, which together with

canon law

provided the basis for

ius

commune

,

the common law

of continental Europe.Slide13

The Reception of Roman law in Europe

Between 1100 and 1500 universities spread all over Europe.

The

law

syllabus:

Justinian's civil law.

At

the same time lawyers began to collect and study church laws, or

canons

.

Canon law

was

studied in the universities alongside civil law. Slide14

The Reception of Roman law in Europe

Since the church had

jurisdiction

over marriage, will

s

, and lawsuits

between clerics, canon law was a separate system.

Civil and canon law

were

based

on Roman

law

,

so

they

had

much in common and influenced each other.

The

scholars known as the

glossators

, followed by the

commentators

(

or post-glossators),

looked for the correct way to study and interpret the

Corpus Juris

CivilisSlide15

The Reception of Roman law in Europe

Eventually, Roman law, as interpreted by the glossators and commentators, became the basis of a common body of law which is referred to as the common law of Europe, or the

jus commune.

The

process by which Roman law became the subsidiary law of most of Europe is called the

reception of Roman law

.

England was an exception. There, Roman law had some influence but was never accepted.Slide16

National Codifications

By the end of the 18th century, the emergent nation states started creating their own national codes.

Justinian's

codification was replaced by several codes that sought brevity, accessibility, and comprehensiveness.

While

Justinian's law books were addressed to an elite, modern codes, with the spread of literacy, were partly meant to tell citizens what they must do to comply with the law.  Slide17

National codifications

The Napoleonic Code of 1804 came close to fulfilling these aspirations.  

It

presented the law in clear, concise and readily understandable language, addressed to the average citizen of France.

It

exerted an enormous influence in large parts of Western and Southern Europe as well as in Latin America.Slide18

National codifications

Unlike the French Civil Code, the German Code

Bürgerliches

Gesetzbuch

(BGB), enacted in 1900, is not written for the layperson.

It

is addressed to the legal profession, giving precedence to precise solutions and predictability of outcome.

 Its legal language

is

rather abstract and complex.

BGB does not have any ‘foreign’ non-German terms, since it replaced Latin terms by German translations.

The

BGB

-

a model for civil codes in many countries,

e.g

.

Switzerland, the Baltic states, Turkey, China, Japan, Taiwan etc.Slide19

Common law

Common law originally meant the common law of England as opposed to local customary laws. England acquired a common law at an early date because it had a strong centralized monarchy before most other parts of Europe.

In

the 12th century, under Henry II (1154-1189 AD) the royal courts extended their jurisdiction at the expense of local and feudal courts.

By

the time that Roman law was received in other countries (from about 1400 onwards), the common law, based on

precedents

and created by

courts

, was too well established to be displaced. Slide20

Common

law

The common law of English-speaking countries developed for many centuries without codes and without university-trained lawyers.

Even

today common law systems rely much less on codes and on theory than do civil law systems.

Examples

of common law

jurisdictions

:

England

, the United States, Australia, New Zealand, Singapore, Malaysia, large parts of Africa, India, Pakistan, and South East Asia.Slide21

Read the text carefully and answer the following questions:

1. What was the earliest source of law before the advent of writing?

2. Which was one of the earliest written codes?

3. What was an outstanding example of early law-making in ancient Greece?

4. What was the earliest codification of Roman law?

5. Which codification had the greatest impact on European legal systems?

6. When was it compiled?

7. What did it consist of?Slide22

Read the text carefully and answer the following questions

8. Where and when was Roman law rediscovered in Europe?

9. What is the reception of Roman law?

10. What was the emergence of national codifications related to?

11. What is the difference between Justinian's code and national codifications? Who were they addressed to?

12. Where did the Napoleonic code exert great influence?Slide23

Read the text carefully and answer the following questions

13. Where has the German code been used as a model?

14. How would you explain the emergence of English common law?

15. What is the common law based on, as opposed to civil law systems?

16. What are the main differences between the common law and civil law traditions?

 Slide24

The Rule of Law: Examples of Historical English Legal Documents

I Answer the following

questions

How would you translate “the rule of law” into Croatian?

How would you explain the meaning of the rule of law?Slide25

II Read a petition from the House of Commons to James I (1610), one of the first texts where the expression “the rule of law” was used:

“Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain

rule of the law

which giveth both to the head and members that which of

right

belongeth

to them, and not by any uncertain or

arbitrary

form of

government

.”Slide26

III Answer the following questions:

What can you learn about the rule of law from this extract?

What does rule of law stand in opposition to?

 Slide27

The Bill

of

Rights (1689)

One

of

the

basic

instruments

of

the

British

Constitution

lays down limits on the powers of

the

monarch

and

sets out the rights of

Parliament

,

i

ncluding

the requirement for regular parliaments, free elections,

and

freedom

of

speech

in

Parliament.

It

sets out certain rights of individuals including the prohibition

of

cruel

and

unusual

punishment

and

allowed

Protestants

to

have

arms

for

their

defenceSlide28

The Bill

of

Rights (1689)

These ideas reflected those of the political

thinker

John Locke

and

they quickly became popular in

England.

It

also sets

out

certain

constitutional requirements

of

the

Crown

to

seek the consent of the people, as represented in Parliament

.Slide29

The Bill

of

Rights

In

the

UK

,

the Bill of Rights is further accompanied

by

Magna

Carta

(1215),

the

Petition

of

Right

(1628),

the

Habeas

Corpus

Act

1679

and the

Parliament

Acts

1911

and

1948

as

some of the basic documents of the

uncodified

British

constitution

one of the inspirations for the

US Bill

of

RightsSlide30

IV Read the following extract from the Bill of Rights (1689). Complete the following table listing the rights and prohibitions declared in the Bill of Rights

.

RIGHTS

PROHIBITIONS

 Slide31

the Bill of Rights (1689)

And thereupon the said

Lords Spiritual and Temporal

and

Commons

, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient

rights and liberties

declare:Slide32

the Bill of Rights (1689)

That the pretended power of

suspending the laws

or the

execution of laws

by regal authority without

consent

of Parliament is illegal;

That

the pretended power of

dispensing with

laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal; Slide33

the Bill of Rights (1689)

That

levying money

for or to the use of the Crown by pretence of

prerogative

, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

That

it is the

right

of the subjects to

petition the king

, and all commitments and prosecutions for such petitioning are illegal;Slide34

the Bill of Rights (1689)

That the

raising or keeping a standing army

within the kingdom in time of peace, unless it be with

consent

of Parliament, is against law;

That

the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

 Slide35

the Bill of Rights (1689)

That

election

of members of Parliament ought to be free;

That

the

freedom of speech

and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;Slide36

the Bill of Rights (1689)

That excessive

bail

ought not to be required, nor excessive

fines imposed

,

nor cruel and unusual punishments inflicted;

That

jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for

high treason

ought to be freeholders;

 Slide37

the Bill of Rights (1689)

That all grants and promises of

fines

and

forfeitures

of particular persons before

conviction

are illegal and

void

;

And

that for

redress of all grievances

, and for the

amending

, strengthening and preserving of the laws, Parliaments ought to be held frequently.Slide38

Answer

the following questions

:

What can you learn about the structure of Parliament from this text?

In what ways are the powers of the monarch limited?

How are the relations between King and Parliament regulated?

What rights are granted to citizens?

How does the Bill of Rights legitimate the asserted rights and liberties?Slide39

Analyze the language of the Bill of Rights

.

Find all the collocations containing the words “law” and explain their meaning.

Find all the legal doublets in the text.

Which modal auxiliaries are used? What is their legal meaning? (Remember what you have learned about modal auxiliaries in legal texts in Unit 1)

Find all the references to the Monarch and Parliament.

Which expressions are used to denote the abuse of power by the Monarch?

 Slide40

VII Match the words with their definitions or equivalents:

1.aforesaid

Relating to or concerning

2.bail

A special right

3.commitment

The act of taking away a property or right as a punishment

4.consent

An order for sending someone to prison

5.dispense with

To stop something happening for a period of time

6.execute

To charge a person with treason before Parliament

7.forfeiture

Agreement or permission

8.freeholder

Payment made to a court to release an arrested person

9. grant (v.)

To demand payment of a tax or an extra payment and to collect it

10.grievance

Someone who has the absolute right to hold land or property for an unlimited time without paying rent

11.impanel

Not to  use something

12.impeach (hist.)

To choose and swear in jurors

13.levy

To agree or allow

14.prerogative

A complaint

15.pursuant to

Said earlier

16.suspend

To carry out