AND THE DEVELOPMENTOF CANADA’S LEGAL SYSTEM

The History of Law

The History and Evolution of Law

Law, in the form of community-enforced rules, have existed from the time people started to interact.

Ex. hunting, property, family relationships, responsibilities, etc.

Based on common sense and practicality. Passed on by word of mouth.

As populations grew and as societies and laws became more complex, it became necessary to put these laws in writing.

Many of the early laws and codes of law have influenced Canada’s present legal system.

The Code of Hammurabi

One of the most important earliest records of written law. King Hammurabi of Babylon (now Iraq) had nearly 300 laws

recorded in a way that his citizens could understand them. Recorded the rules and penalties for every aspects of Babylonian life. Reflected a patriarchal society, with a hierarchy of power.

Main Features: Codification Retribution (in the form of “eye for an eye,” accident or on purpose) Patriarchal The wealthy was protected more than the poor

Impact on Canada’s Legal System: Our laws are codified (written) Retribution (but, not in the form of “eye for an eye”)

Some examples...

If anyone brings an accusation of any crime before the elders and does not prove what he has charged, he shall, if it be a capital offence charged, be put to death.

If a judge shall try a case, reach a decision, and present his judgement in writing, and if later, error shall appear in his decision and it be through his own fault, than he shall be publically removed from the judge’s bench, and never again shall he sit there to render judgement.

If anyone steals the property of a temple or court, he shall be put to death, and also the one who receives that stolen thing from him shall be put to death.

If a man strikes a woman and she dies, the man’s daughter shall be put to death.

The Code of Hammurabi

Mosaic Law (or Hebrew Law)

One of the greatest influences on our law is biblical law. Includes the Ten Commandments and other laws found in the Book of

Exodus (the Bible). Punish deliberate actions, not accidental acts of harm. Punishment of the guilty party, not a related person of lesser status.

Main Features: Codified Retribution(of deliberate actions; still very severe) Restitution (to compensate the victim) Punishment of guilty party, and despite status

Impact on Canada’s Legal System: Retribution (distinction between accidental and deliberate actions) Restitution Punishment despite status

Some examples...

From the Ten Commandments:

Thou shalt not kill. Thou shalt not steal.

Other Mosaic Laws: If a man steals an ox or a sheep

and kills it or sells it, he shall restore five oxen for an ox and four sheep for a sheep.

Thou shalt not raise a false report, or put thine hand with the wicked to be an unrighteous witness.

Mosaic Law

Roman Law

Based on two principles: laws must be recorded justice cannot be left in the hands of judges alone

Promoted public prosecution of crimes. Was the basis of Justinian’s Code (clarified and organized Roman

Law), which emphasized equity (laws should be fair; justice).

Main Features: Codified Jury system (justice cannot be left to judges only) Advisors who specialize in the law; people could seek legal advice

Impact on Canada’s Legal System: Lawyers

Some examples...

Sons shall be under the jurisdiction (legal authority) of the father.

A dreadfully deformed child shall be quickly killed.

Should a tree on a neighbour’s farm be bend crooked by the wind and lean over your farm, you may take legal action for removal of that tree.

A person who had been found guilty of giving false witness shall be hurled down from the Tarpeian Rock.

A man may not marry the daughter of a brother/sister, nor the granddaughter; this children of two brothers/sisters may marry together (Justinian’s Code).

Roman Law

A BIT OF HISTORY

Canada’s Legal System

Canada’s Legal System

Canadian law is based upon the laws of France and England, with England providing the biggest influence.

France: laws were codified early on. England: laws were codified much later, and may are still

not recorded (based on tradition).

The Feudal System

A system where the King of England owned all of the land and divided it among his lords and nobles.

Varying applications of justice resulted in the creation of judges who travelled around and held hearings and trials.

To eliminate inconsistencies. Judged similar cases in the same way and recorded them (case law). People who were dissatisfied could appeal to the monarch.

Main Features: Common Law (common to all of England) Precedent Appeal (to the monarch)

Impact on Canada’s Legal System: Common Law (common to all of Canada) Precedent Appeal (to a higher court)

Common Law

Relies on case law (written decisions) and is common for all. Based on the principle of the rule of precedent.

Something that has been done before. Example: a ruling in one case can later determine how future

cases are handled.

Main Features: Precedent

Impact on Canada’s Legal System: Canada’s legal system relies heavily on precedent.

• Earlier cases/decisions are used as examples.• Introduces some certainty into the law.• Must be used with caution.

The Magna Carta

Developed out of the abuses of power seen in King John (1199-1215). He thought he was above the law, and abused his power of position.

Main Features: Rule of Law (all rulers must also obey the law) Habeas Corpus (entitled to appear before court

in reasonable time) No restrictions of freedom without reason Legal rights could not be changed without

consent of the people.

Impact on Canada’s Legal System: Rule of Law (the law applied equally to all) Habeas Corpus

Statute Law

Although King John and his successors had to obey the law, they still struggled for power with the nobility.

1265: nobles revolted against King Henry III, and make him reform the legal process and reduce his power.

Created the first Parliament, which helped make laws.

Main Features: Statute Law (laws passed by Parliament)

Impact on Canada’s Legal System: Statute Law