The Historical Development of Law, Rule of Precedence and Legal

Reforms

Mr. Menla

CLN4U

Historical Roots of LawLaws are commonly found in numerous

civilizations throughout the worldThey eventually were enforced through word

of mouth, but because of increased contact and advancement in technology – laws become more complex and so they needed to be codified (written)

Many of the ancient laws that were once practiced helped shape Canada’s present legal systemGreat Laws of Manu Code of Li K’vei

• These were laws that were established in India and were passed orally from one generation to the next

• These were established in China

• They were written and dealt with issues relating with theft, robbery, prison and arrest

Restitution Retribution

• Restitution: Punishment which requires offender to pay the victim or society back for harm or loss caused by crime (Def.)• E.g.

Community Service

• Retribution: Punishing an offender for revenge or to satisfy public that offender has paid for crime (Def.)• E.g.: Capital

Punishment or life imprisonment

Restitution vs. Retribution

 

Impact on Canadian SystemPerjury is outlawed

Perjury: The offense of willfully telling an untruth in a court after having taken an oath or affirmation (Def.)

Babylon/Code of Hamm

 

When King William came to Power in England in 1066, he declared himself as, “The Law” and had absolute power using the concept of Divine Right Divine Right: Monarchs and their successors derived their power to rule

from God and were accountable only to God. Hence, they were above the law (Def.)

William instituted a system of land ownership, known as Feudal System1. This divided England into districts of lands, which had different

districts being controlled by different Noblemen2. Everything within that district (land, citizens, animals, peasants)

belonged to the respected Nobleman3. Each Noblemen judged and sentenced only those under his district

authority4. Some Noblemen were fair and reasonable - while others were harsh and

unjust Penalties for similar offences naturally differed from village to village

5. There were: 1) No rules of evidence and 2) No thought of the rights of accused

By 12th century, peasants rose up against these irregular treatments and so King Henry II reduced power of Monarchy, which lead to establishment of current laws

The Feudal System

As time went on during and following the Feudal Age, Judges began to notice similarities with regards to legal problems they encountered

They agreed that similar cases should face similar consequences

This led for Case Law to be establishedCase Law: A method of deciding cases, based on

recorded decisions of similar cases (Def.)E.g.: All convicted murders should face the death penalty and

all thieves should face imprisonmentCase Laws were then eventually passed and were

accepted as Common LawCommon Law: It developed in English courts. It relies

on case laws and is common to all people (Def.)Public found law established to be genuine and fair

Common Law

Common law allowed for Rule of Precedent and Stare Decisis (To Stand by Decision) to be established and practiced amongst all Judges in EnglandRule of Precedent: Applying a previous

decision to a case that has similar circumstances (E.g. Any Murderer should face automatic death sentence) (Def.)

Stare Decisis: It required all Judges to stand, support and apply any decision that has been made by a previous Judge regarding a similar situation (Def.)

Rule of Precedent and Stare Decisis

Since Judges began to take a leading role in establishing laws for all sorts of cases, the citizens began to question the monarchy’s “Divine Rights”The Barons of England brought a document to John, which

forced him to accept it In 1215, King John signed Magna Carta, which limited the

power of the Monarchy. This helped establish:1. Individual basic right2. It recognized Rule of Law3. Habeas Corpus (You Must Have the Body)

Rule of Law: It gave everyone (including monarchs) equity before the law (Def.)

Habeaus Corpus: It is a court order that is designed to prevent unlawful arrest by ensuring that anyone detained is charged before a court within a reasonable time (Def.) It is a basic component of the Magna Carta Its purpose is to secure the release of people who are unlawfully

imprisonedThis historic right is so fundamental, that it is found in Canada’s

current Charter of RightsThe Magna Carta was also called, “The Great Charter”

Legal Reforms

The 13th century saw the rise of English ‘parliament’ (“talking together”)

Not formalized - rubber stamp for king, but opportunity for barons

CONSULTATION - roots of rule by the people1689, parliament passes Bill of Rights

Institution for the peopleInforms Canadian Charter

Impact of English Laws on Canada

Those governed in 400 BCE in the Roman Empire and parts of North Africa

Their main features consist of:1. Formed the Catholic Church2. Just War theory:

A. War is morally justifiable based on set criteria B. differentiated between initiation & conduct in-

warC. Defensive purposes, restore peace

Significance of Laws:1. Religious emphasis

From the 11th century onward, it had an enormous impact on the height of Medieval Europe

2. All people sin, need relationship with God

St. Augustine Laws

Impact on Canadian System:The mixing of church and state

This argued that education was means to an end. This being God

Up to the 18th century, schools were all religiously affiliated in CanadaUsually Catholicism was practiced in

schools QuebecUnusually Protestantism was practiced in

schools in Ontario and the rest of Canada

St. Augustine Laws (Cont’d)

Homework

➔Magna Carta (Video)➔Pg. 30. – Q.2-4