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Eight century before Christ by the civil war and then by conquests of invaders from Assyria, Persia and Greece. The Roman Caezars struck the final blow to Egypts political independence.
Key Features of the Egyptian Legal System (cont ...) legislation done? How was
The monarch made the law sole legislator. The earliest human lawgiver in Egyptian tradition was Menes (3200 BC)
I planted the whole land with trees and green things, and made the people to dwell in their shade. I made the land safe, so that a lone woman could go on her way freely, and none would molest her. I rescued then humble from their oppressors. I made every man safe in his home. I preserved the lives of those who sought my court justice. The people were well content under my rule.
The sun-god Shamash was the god of Law, whose children were Justice and Right.
Key Features of the Mesopotamian Legal System (cont King .) Hammurabi (about 2100 BC)
deputized the administration of justice to the royal priest class in the temples to a body of royal secular judges, sitting commonly at the great gate and market place of the city.
Code of Hammurabi refers back to King Hammurabi. This is the earliest known national code in the world; it is the most complete, authentic and most advanced of ancient codes. The Code of Hammurabi covers the whole scope of law: crime, family, property, commerce. It reflects agricultural and trading economy.
Key Features of the Mesopotamian Legal System (cont .) Different Codes and their Insights on Divorce:
Code of Hammurabi Code of Assur Deuteronomy (Please, see p. 33. Introduction to Law by Rufus Rodriguez)
It was during the time of King Hammurabi where we find the earliest promissory note (PN) it the oldest negotiable instrument in the world. This manifest that at this time, we can already find advanced ideas in commercial law.
It was during the time of Belshazzar, the last native ruler of Babylonia, when the Mesopotamian legal system was supplanted.
Belshazzar lost his empire to Cyrus, king of the new Persian nation. Later, new invading races followed and by a century before Christ, the Greek conquerors supplanted the Mesopotamian legal system. Hammurabis pillar-code was buried under the rubbles of ages, until 2000 years later when French explorer De Morgan found it.
Note: After the Egyptian and Mesopotamian legal systems, the next oldest legal system is the Chinese legal system. However, we are going to discuss the Hebrew Legal System because of its proximate affinity with the Mesopotamian Legal System.
The early Hebrew civilization was originally NOMADIC and PASTORAL, then AGRICULTURAL and only later COMMERCIAL.
FIVE well-defined STAGES of the Hebrew Legal System during DANIELs time:
1) MOSAIC PERIOD 2) CLASSIC PERIOD 3) TALMUDIC PERIOD 4) MEDIEVAL PERIOD 5) NATIONALIST PERIOD
MOSAIC PERIOD
CLASSIC PERIOD
Formed by the legal practice developing between 300 BC and AD 200. In theory, the government was still a THEOCRACY. Where was the FUNCTION of JUSTICE vested?
Ceased to be a ROYAL ONE. The Jewish people at this time had come under the suzerainty of the Persian, Greek and Roman rulers. However, in the Jewish internal government, supreme authority (religious, social, political, legislative, and judiciary) was vested in a Senate (Great Synhedrion Greek for Assembly and Bet din hagadol in Hebrew or high council). It consisted of 71 members.
Under the Roman sovereignty, the Jewish people for two centuries preserved the administration of their own law.
Their ruler, Herod, was still called king. However, the convulsive political rebellions of the Jews, after the time of Jesus, led the Roman Emperor Vespasian to take rigorous revenge. Jerusalem fell in AD 70 under the assault of Titus, Vespasians son.
With the fall of Jerusalem, the Roman soldiers brought to Rome the Ark of the Law, containing the Scroll of the Law and the Seven Branched Candlestick. Hebrew self-government ended, and their legal system ceased to prevail.
TALMUDIC PERIOD
AD 200 to AD 500 Formed by the Talmud, i.e. reports of all recorded cases and commentators since about 300 BC, digested in two authoritative collections:
The Mishnah or the codified text (AD 200 in New Hebrew script) Gemara or commentary (about AD 300500, compiled in Aramaic script.
MEDIEVAL PERIOD
Began at the dispersion of the Jewish nation, culminating about AD 500 and extended over the next thousand years. Here, learned rabbi wrote treatises (in Hebrew or Arabic), compiled codes, and thus perpetuated the traditions of the law.
Maimonides is one of these rabbis; he lived in North Africa in 1400s. By this means, the common customs of religious and family life and commercial practice were kept alive, though the race was scattered in many countries.
NATIONALIST PERIOD
From AD 1600 Nationalism in Europe amalgamated all races who lived within given territories and emphasized national languages. During this period, the Talmud was critically studied and translated into the various national language.
CONFUCIUS Chinas chief justice and one of the worlds wisest men.
About 500 BC His philosophy, which is not a religion, covers the whole range of personal morality and practical politics. And for 2400 years, it pervades now Chinese life. His philosophy rests on a passionate yet rational respect for those conventions which experience of the past has verified. He teaches filial piety, which is the skillful carrying out of the wishes of our forefathers.
GEORGE PADEOUXs theory of government and justice underlying the Chinese legal system:
Since the dawn of its history, China has believed in the existence of a natural order of things, or law of Nature, including all parts of the universe and adjusting them harmoniously with one another. This order of Nature was not made; it exists and is its own reason for existence. Humanity is a part of it, and must conform to it. And as the elements in this order of nature are interdependent, whatever affects one element reacts on the other also
1) This natural law does not yield precedence to positive law. Positive law ought to confine itself to translating the natural law into written formulas. If this translation is correct, the written law is good and binding; but if not correct, then the written law is not binding. 2) A marked contrast of the Confucian political philosophy with Occidental systems is that its fundamental maxim is emphatically a government of men, not law.
The Chinese philosophy of government is that a good ruler makes a happy people. Chinese political science relies on the wisdom and discretion of the ruler rather than on the text of laws.
3) Another notable consequence of the Confucian philosophy is that conciliation and mutual adjustment are looked upon as ideal elements of justice. 4) The subordinate part played by the letter of the law, and the legislation as such. The ruler should frame the laws to voice the vast sentiments and wants of the people not to impose his personal will upon an unwilling people.
LIST OF CODES:
Chow Li or Regulations of Chow (1100 BC) earliest code whose text is now extant. Later, it was said to have been burnt during the Burning of the Books. Tang Dynastys code of 500 articles (AD 640) Tartar emperor Timur (grandson of Kublai Khan, about AD 1320) promulgated a code of 2500 articles.
NOTE: None of these altered traditional laws and customs of the Chinese.
Introductory:
During the last 3000 years, India had been entered and dominated by alien races:
Indo Aryans, Persians, Greeks, Turks, Mongols, English After WWII, India was granted her independence by England
Persians and Greeks took booty and left no traces Turks and Mongols brought Mohammedan law English brought unity, liberty, and honest administration, but English law in India is mainly public law, preserving in private law the various native customs Indo-Aryans or Hindus (the first to come to India) are the only race that developed a native system of law.
(A) BUDDHISM
Simply means Enlightenment Founded by Gautama Buddha, born in Nepal between 600 and 500 BC. Buddhas basic teaching is the compet of Nirvana, which means roughly the peace of mind and soul that comes to man after he has overcome three cravings: those for riches, sensual enjoyment and immortality. In India, between AD 400 and 700, a complete social and religious reaction took place. Buddhism was eradicated by Brahmanistic persecution (this is questionable).
(B) BRAHMANISM
Began in the days of the first Aryan invaders as a kind of nature worship; it developed into what is certainly the most complicated theology known to mankind. It holds that one supreme being, Brahma, exists in several or manifestations and is the universal spirit which pervades everything. The typical law-book of the BrahmanHindi system is the famous Laws of Manu. The most marked peculiarity of this system was the Brahman-Hindu rules off caste.
CASTE is the institution which makes India unique, the device breaking up Indians into fixed categories that has no approximation elsewhere in the world.
Every Hindu is born into a caste and his caste determines his religious, social, economic, and domestic life from the cradle to the grave. No man may ever leave his caste, except to be expelled. It is impossible to progress from caste to caste. Marriage between castes is foorbidden.
19th Century India India was a congerie of hundreds of principalities; in each one ruled independently a maharajah.
The justice of the king was in theory personal. It was partly done by sending judicial officials to go on circuit, but special classes of cases were reserved for the kings personal hearing and decisions in the Audience Hall.
Thus, essentially JURY SYSTEM Another practice of Athenian law was to allow defendant when condemned to propose a lighter punishment than that fixed by the accuser; and the judges were required to choose one of the two sentences (like what happened with Socrates). However, it seems that the Greek had a system of justice but hardly a system of law, because: no codes, no reasoned decisions, no doctrinal treaties, no professional judges or jurist.
Broad Sense: Roman law refers to the entire legal order of the Roman state, from the time of the Republic to the Roman Empire.
It embraces public law, sacred law, private law and customary law.
Restricted Sense: Roman law means the private law governing private rights, interests, and transactions, excluding the public law of Rome. It is in this sense that Roman law is also known as Civil
To be continued...
Discussions on the Roman Legal System onwards will be next meeting after the midterms. Midterms August 8, 2011
Coverage: All reading materials up to the Roman Legal System Multiple Choice Questions (MCQs) and Essays
GOOD LUCK!
Celts or Kelts descendants of the prehistoric glacial people, who about 600 BC invaded Gaul (now France and Belgium) and the islands of Great Britain Scotland, England and Wales, and Ireland. Three Periods in the Celtic Legal System
Political Independence before Julius Caezars conquest of Gaul and Britain Surviving Branches of the Celtic Legal System the Welsh and the Irish Final Dissolution of the Welsh and the Irish
The Three Periods in the Celtic Legal System (cont .) Independence Political
Druidism acknowledged a god that delighted in bloodshed; it taught of the immortality of the soul, and inculcated the contempt of danger and death.
The Druids possessed considerable administrative power, for they kept the people in constant terror of them. They are the dispenser of justice and decide almost all disputes, both public and private.
Note how punishment may help in the administration of a community. Their power lay, not in physical or political force, but in their influence as priests of religion and magic. Since the Druids influenced the minds of the people, the Romans found no other way of securing their conquests over any of the Celtic nations than by exterminating the Druids.
The Three Periods in the Celtic Legal System (cont .) Branches of the Celtic Legal System Surviving
IRELAND
1st Period: Heroic Age and Pagan Druidism
The law is transmitted only by memory of the Brehon judges.
2nd Period: Christianity and formulation of the written rules of law, though the efforts of St. Pathric. 3rd Period: Danish and the Norman invasions gradually paralyzed all political progress, but the Brehon jurists continue to practice their law. 4th Perioid: The political ruin of Ireland is followed by the disappearance of the Brehon law.
WELSH
Welsh Code written down about AD 900 this code has traces of Roman law, specifically Justinians famous line:
Three things the law enjoys upon all: to live honestly; to cause no vexation or harm to another; and to render to every one his due.
The Three Periods in the Celtic Legal System (cont Final .) Dissolution of the Welsh
Irish
and the
The end came by force of conquest, first of Welsh. Llewellyn the Great tried to unite the Celtic tribal factions of the people and attempted to save the ancient laws of Wales through the Magna Carta. However, its final extinction was the work of the Tudor Dynasty. Henry VIII united Wales completely to England and decreed that only English laws would apply even with Wales. As to the Irish faction, in 1613, James I called an Irish parliament, and this body went through the form of declaring the Brehon law abolished.
Tolstoys description of the first three stages of the legal history of Russia: Rules established by men, who have control of organized power and which are enforced against the recalcitrant by the lash, prison, and even murder.
A real legal system arrived for Russia fifty years later under the wise and conscientious Emperor Nicholas I, who authorized Michael Speransky to assemble a commission of jurists and collected and printed the materials called Svod Zakonof or collection of laws. March revolution of 1917 witnessed the transition of govt from the Russian Tsar to the Kerensky provisional govt. of the intelligentsia to the rise of the Bolsheviks, who established the communist government.
The Three Essential Facts about the Kind of Government the 1936 Constitution provided:
1st It is designed to guarantee the socialist economy. The socialization is applied only to what are called the basic means of production. (Please, see p. 74 on ownership) 2nd The Bolsheviks do not believe in what they call division of powers in their govt. Power rests into the Soviet President of the Supreme Council. 3rd The Civil Code of Soviet Russia was adopted in 1922. The very existence of a civil code in Soviet Russia is something of an anomaly, and is explained only by the fact that the abolition of private property is not yet complete.
The settlement of disputes between clans, was done at the assembly of the people, the Al-ting, where all the free men, armed, meet periodically, by a lunar calendar. Then the courts meet on the Hill of Laws where the parties to a dispute pleaded their causes before the assembly. Then one or more of the Law-speakers, venerable or clever men, propounded a decision; then the assembly, by their shouts, or with clash of sword on shield, approved or disapproved the proposals of the law speakers for the most steemed sort of applause was the clash of weapons.
Were designed for the good of Gave great attention to securing the state as a whole. justice for the individual.
Code or Edict of the Lombards where the modern idea of a trust could be traced to. AD 650 the laws of the Goths and Romans were compiled and called Forum Judicum or Fuero Juzgo. Charlemagnes first parliamentary degrees called capitularies was established and sent his personal envoys on circuit to inspect the course of justice. This personal envoys were called adjustitias faciendas, and this method served later to develop the Anglican institution of trial by jury. Emperor Maximillian in AD 1495 established the Imperial Chamber of Justice, as a central court of appeal, and provided that one-half of its sixteen judges should always be learned doctors of the new Roman law, the sun was setting on the power of the old Germanic schoeffen, or lay-judges in Germany, their last stronghold and the doom of the pure Germanic legal system was sealed.
1st Period (AD 600-1200) Jushichi Kempo or Seventeen Maxims of the royal prince-regent Umayado or Shotoku Taishi.
The Seventeen Maxims of Shotoku are essentially not rules of law, but a short code of political and social morality.
Politically, they foreshadowed the consolidation of the new territories under a single royal power. Socially, they represented the adoption of Confucianism.
The emperor has, however, been allowed to remain, as the symbolic head of the nation.
Legal
System of Equity began during the reign of Edward I when petitions to the king were referred to the Chancellor. Because of the limited jurisdiction of the common law courts, the king had to refer some cases to the Chancellor.
Some Famous Maxims of Equity.
1) He who comes to Equity must come with clean hands. 2) Equity will not suffer a wrong to be without remedy. 3) Delay defeats Equity. 4) Equity looks to the intent rather than to the form.
The Chief Legal Events from 17th to 19th Century or the Flowering of the Common Law System:
a) constitution developments such as the inauguration of the sovereignty of Parliaments and its transformation into a democratic body, the establishment of the doctrines of the supremacy of the law, independence of the judiciary and inviolability of civil liberties and the development of the famous writ of habeas corpus. b) the incorporation of the Law of Merchants into Common Law. c) the establishment of stare decisis as a definite rule. d) the appearance of law reports. e) the reorganization of the judicial system. f) procedural developments.
Kings, dukes, and counts neglected their temporal duties and shut themselves up in cloister, and spent their lives in prayers and penance. Ecclesiastics were employed in all the departments of secular govt, and they alone conducted all public measures and state negotiations, which of course, they directed to the great objects of advancing the interests of the church, and establishing the paramount authority of the Holy See.
CATHOLIC (PAPAL) Legal System and the CANON LAW (cont .) Otho the Great received the Imperial crown from In AD 961,
the Pope. Thus, from that time on, the Emperors were considered as the temporal head, while the Popes as spiritual head, of all Christendom.
All Christian countries seemed to have been included in one grand republic.
The Contest between the Church and the Empire began with Henry IV, emperor of Germany and Pope Gregory VII.
The Pope here sought to raise the spiritual above the temporal authority in all the states of Europe.
Innocent III at the beginning of the 13th century established the powers of the Popedom on a settled basis, a positive acknowledgment of the papal supremacy, or the right principalitier et finaliter to confer the imperial crown.
Without the Popes approval, no emperor may be recognized as legitimate. Its clergy were immune from the criminal justice of the state. Legislation covered the cradle to the grave.
CATHOLIC (PAPAL) Legal System and the CANON LAW (cont .) of Isidore of AD 800s, papal supreme jurisdiction Decretals
was re-enforced here. Decretum of Gratian where Canon law originated. Composed of the legislation and decisions of Popes, after accumulating for seven centuries in thousands of separate decrees, rescripts, bulls, and council-resolutions. Compiled by a monk named Gratian at the University of Bologna in AD 1140.
This created Canon (or papal) law as an independent system. This has become a strong legal support in the Popes rivalry with the Emperors. Canon law began to be taught and became the legal buttress of the papal theocracy and remained the ruling code till the Reformation. Under the Roman state, the religious laws the jus sacrum, jus pontificium were not a distinct body of legislation. The Church encroached more and more upon the jurisdiction of the civil courts.
CATHOLIC (PAPAL) Legal System and the CANON LAW (cont Three.) Parts of the Decretum ofr Gratian:
1st Distinctiones: treats of the sources of canon law, councils and the mode of their convention, the authority of decretals, the election of the Roman pontiff, the election and consecration of bishops, the papal prerogative, papal legates, the ordination of the clergy, clerical celibacy, and kindred topics. 2nd Causae: discusses different questions of procedures, such as the ordination and trial of bishops and the lower clergy, excommunication, simony, clerical and church property, marriage, heresy, magic and penance. 3rd is devoted to the sacraments of the eucharist and baptism and the consecration of churches.
CATHOLIC (PAPAL) Legal System and the CANON LAW (cont .) Juris Canonici a series Corpus
of collections, which constitutes the official body of canon law, composed of the following: Gratians Decretum, Gregory IXs Decretales, the Sext, the Clementines, and the Extravagantes of John XXII.
The canon law attempted the task of legislating in detail all phases of human life clerical, ecclesiastical, social, domestic. The Church has not only its own code and its specifically religious penalties, but also its own prisons. The canon law justified wars against the enemies of religion and the persecution of heretics.
CATHOLIC (PAPAL) Legal System and the CANON LAW (cont .) Rise of Patriotic Nationality and
Legislative Independence throughout the West of Europe:
The reign of Edward I (AD 1300) was marked by the rise of nationalism and unified legislation. Subsequently, the Reformers like Luther and Calvin raised their voices in protest against the legalistic tyranny of the Pope. At Wittenberg in 1520, Luther threw a copy of the canon law, the one representing the infallibility of the pope.
CATHOLIC (PAPAL) Legal System and the CANON LAW (cont .) of Trent attended by over Council
300 bishops, ambassadors, cardinals, and other delegates. It covered 18 years. Its legislation ranged over the whole system of Canon Law. But by the time this Council ended, the Protestant seceders had broken the churchs universal power. The national secular law in each country of Europe was thenceforth to become supreme and exclusive. The temporal jurisdiction of the papal courts was in time abolished by the various national legislatures.
Notable here was the break of England under King Henry VIII from the Roman Catholic Church. The King is the only supreme in earth of the church of England.
CATHOLIC (PAPAL) Legal System and the CANON LAW (cont .)Juris Canonici was promulgated by Codex
Pope Benedict XV in May 27, 1917. This work, unlike the old Corpus Juris Canonici, is not a compilation, but a genuine codification one of the modern worlds greatest masterpieces of composition. Second Vatican Council was opened by Pope John XXIII on January 25, 1959 and opened the Church to the world. The same Council revisited the old Code and in 1977, Pope Paul VI started the formulation of the new Code. And on January 25, 1983, Pope John Paul II promulgated the present Code of Canon Law, which has the force of laws for the whole Latin Church.
Is based on Islam, founded by Mohammed (or Mahomet) on AD 600. Not Mohammedanism but Islam meaning submission to one God.
Islam aspired to be a comprehensive system of human life and social order religion, morality, politics, and law. Islams basis: Revelation, respects Hebrew traditions of reverence for Moses and Abraham, mission of Jesus of Nazareth. Central Thought in the Teaching of Mahomet: There is no God but the true God and Mahomet is his prophet.
The end