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Historical Background of LawTopic 1 Q. Discuss the historical background of law and role of law in society. Q. Discuss the evolution of law in details.
Introduction • The law is rarely out of the news. It frequently stimulates controversy. While lawyers and politicians celebrate the virtues of the rule of law, reformers lament its shortcomings, and cynics question its professed equivalence with justice. Yet all recognize the law as a vehicle for social change. And few doubt the central role of law in our social, political, moral, and economic life. (Raymond Wacks PHILOSOPHY OF LAW A Very Short Introduction)
CONTINUE But what is this thing called law? Does it consist of a set of universal moral principles in accordance with nature Or is it simply a collection of largely man-made, valid rules, commands, or norms Does the law have a specific purpose, such as the protection of individual rights the attainment of justice or economic, political, and sexual equality Can the law be divorced from its social context. These are merely some of the questions that lie in wait for anyone attempting to uncover the meaning of the concept and the function of law. And they permeate the landscape of the philosophy of law with its generous frontiers.
Law • Meaning: • a set of conduct rules established by an authority, custom or agreement • a rule, usually made by a government, that is used to order the way in which a societybehaves
Black’s law Dictionary: • “ the regime that orders human activities and relations through systematic application of the force of politically organized society or through social pressure”
Definition: Austin: • “A law is command which obliges a person or persons to a course of conduct”. Salmond: • “the law may be defined as the body of principles recognized and applied by the state in the administration of Justice”.
LAW • COMMAND OF SOVEREIGN ENFORCEABLE WITH SANCTIONS. • Command when issued by Sovereign who is divine in nature is called Divine law • This concept is given by Naturalistic School of thoughts. • Natural law is a combination of laws and morals. • Command when issued by Human being is called Human laws. • The concept is set forth by positivist school of thoughts.
Ancient world • Ma'at, Babylonian law, Ancient Greek law, and Leviticus, Hittite laws. Explanation: • Maat or Maʽat refers to the ancient Egyptian concepts of truth, balance, order, harmony, law, morality, and justice. Maat was also the goddess who personified these concepts, and regulated the stars, seasons, and the actions of mortals and the deities who had brought order from chaos at the moment of creation. Her ideological opposite was Isfet (Egyptian jzft), meaning injustice, chaos, violence or to do evil.
Explanation 2. Babylonian law is a subset of cuneiform law that has received particular study due to the large amount of archaeological material that has been found for it. So-called "contracts" exist in the thousands, including a great variety of deeds, conveyances, bonds, receipts, accounts, and most important of all, actual legal decisions given by the judges in the law courts.
Code of Hammurabi by the 22nd century BC, ur-nammu an ancient Sumerian ruler, formulated the first law code consisting of casuistic statements (if…then…”) Around 1960 BC king Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. • Hammurabi placed several copies of his law code throughout the kingdom of Babylon as Stelae, for the entire public to see this became known as the codex Hammurabi.
The Middle Ages • One of the major legal systems developed during the Middle Ages was Islamic law and jurisprudence. During the classical period of Islamic law and jurisprudence “Hawala” and institution of law was an early informal transfer system which is mentioned in text of Islamic Jurisprudence as early as the 8th century. Hawala itself later influenced the development of the “Aval” in French civil law and Avallo in Italian law. Roman law was heavily influenced by Greek teachings.
Greek History: The earliest Greek law to survive is the Dreros inscription, a seventh century BC law concerning the role of kosmos (Osborne, Robin (2009). Greece in the Making: 1200-479 BC (2 ed.). London: Routledge). • This and other early laws (such as those which survive in only fragmentary form from Tiryns) are primarily concerned not with regulating people's behaviour, but in regulating the power of officials within the community. These laws were probably set up by the élites in order to control the distribution of power among themselves. Early Greek Law was composed of four chapters: • Early Laws, • Written Laws, • Justice, and • the emergence of written law. • Homer and Hesiod were the most recent written codes of law in the major cities of ancient Greece. The evidence used for the written laws are composed of literary evidence and inscriptal evidence.( Gagarin, Michael (1986). Early Greek Law.)
Roman History: Roman law, the law of ancient Rome from the time of the founding of the city in 753 BCE until the fall of the Western Empire in the 5th century CE. It remained in use in the Eastern, or Byzantine, Empire until 1453. As a legal system, Roman law has affected the development of law in most of Western civilization as well as in parts of the East. It forms the basis for the law codes of most countries of continental Europe (seecivil law) and derivative systems elsewhere.
The term Roman law today often refers to more than the laws of Roman society. The legal institutions evolved by the Romans had influence on the laws of other peoples in times long after the disappearance of the Roman Empire and in countries that were never subject to Roman rule. • Example: To take the most striking example, in a large part ofGermany, until the adoption of a common code for the whole empire in 1900, the Roman law was in force as “subsidiary law”; that is, it was applied unless excluded by contrary local provisions. This law, however, which was in force in parts of Europe long after the fall of the Roman Empire, was not the Roman law in its original form. Although its basis was indeed the Corpus JurisCivilis—the codifying legislation of the emperor Justinian I—this legislation had been interpreted, developed, and adapted to later conditions by generations of jurists from the 11th century onward and had received additions from non-Roman sources.
English Law History • Common Law of England • The English common law originated in the early Middle Ages in the King’s Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. Like many other early legal systems, it did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators.
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great (871), had developed a body of rules resembling those being used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim.
Major Documents in the History of law: • Magna Carta • Twelve Tables • Code of Hammurabi
Historical perspective as per various Jurists: • “Law is founded and not made”, the famous quote is the basis of the historical school of law. The historical school of law was founded by Friedrich Karl and Von Savigny. According to this school, the law is the creation of interactions between the local situations and conditions of people, the law is not founded by any political superior but found and given by people. Proponents of Historical schools place the customs of the people as the major source of law which should not be overlooked
Law and SocietyViews by various Scholars • Émile Durkheim • Max Weber • Karl Marx • JürgenHabermas • Michel Foucault
Émile Durkheim • Among the central preoccupations of Durkheim (1859–1917) is the question of what holds societies together. Why do they not drift apart? His answer points to the crucial role of law in promoting and maintaining this social cohesion. He shows how, as society advances from religion to secularism, and from collectivism to individualism, law becomes concerned less with punishment than compensation. But punishment performs a significant role in expressing the collective moral attitudes by which social solidarity is preserved.
Crime, according to Durkheim, is a perfectly normal aspect of social life. Moreover, he provocatively suggests, it is an integral part of all healthy societies. This is because crime is closely connected to the social values expressed in the ‘collective conscience’: an act becomes criminal when it offends deeply held aspects of this collective conscience. An action does not shock the common conscience because it is criminal, rather it is criminal because it shocks the common conscience.
Punishment is an essential element of his conception of crime: the state reinforces the collective conscience by punishing those who offend against the state itself. He defines punishment as ‘a passionate reaction of graduated intensity that society exercises through the medium of a body acting upon those of its members who have violated certain rules of conduct’. • He shows also how punishment as a form of social control is more intense in less developed societies. As societies progress, the form of punishment becomes less violent and less harsh. But because punishment results from crime, he identifies an important correlation between the evolution of crime and the forms of social solidarity.
Max Weber • The German sociologist Max Weber (1864–1920) trained as lawyer, and he assigns to the law a central role in his general sociological theory. Weber’s classification of the types of law is founded on the different kinds of legal thought, and ‘rationality’ is the key.
Karl Marx • While Karl Marx (1818–83) and Friedrich Engels (1820–95) do not provide a comprehensive or systematic account of law, their social theory bristles with observations about the relationship between law and economics (or material conditions). But the law is accorded an inferior position to economic factors: it is merely part of the superstructure – along with various cultural and political phenomena – determined by the material conditions of each society.
Role of law in society Without law our society would be chaotic, uncivilized mess and anarchy would reign supreme. • Role: • Establishing Standards • Maintaining Order • Resolving Disputes • Protecting Liberties and Rights
Cases From Across History Which Still Shape the Law Today • The Case of Proclamations, 1610 Over 400 years ago, the chief justice, Sir Edward Coke, ruled that King James I could not prohibit new building in London without the support of parliament. King James believed that he had a divine right to make any laws that he wished. But the court opposed his view, and decided that the monarchy could not wield its power in this arbitrary way.
R v Dudley and Stephens, 1884 • R v Dudley and Stephens, 1884 In this case, the survivors of a shipwreck who killed and ate the youngest and weakest crew member were prosecuted for murder. Their defence was based on “necessity” – that they needed to eat the boy, as they were unlikely to survive and the boy probably would have died anyway. It may have been a “custom of the sea” that cannibalism was allowed under such circumstances, but the defendants were found guilty on the basis that all life is equal – the law expected them to die, rather than kill another.
Conclusion • The role that law has in society is that it creates a norm of conducts in the society we live in laws are made to protect its citizen from harm. It set in way that all citizens are given equal opportunity, protection from harm no matter your race, Gender, religion and social standing. Under the law all its citizens are guarantee equal protections.
THANKYOU • ADVOCATE TAYYABA
