History Of Law Essay, Research Paper
Over the many years of man’s existence, he has constantly evolved to better fit and survive in his surroundings. There are many aspects to his evolution that can be seen through his actions, his thoughts and his beliefs, to name a few. The Merriam-Webster dictionary defines anthropology as the science of human beings. The focus on this paper will be the anthropological aspect dealing with the nature of human beings. The nature of human beings can be seen in many aspects of his being. One of these aspects is his laws and courts. The legal system directly reflects the way that man thinks, as the guilty are viewed as being wrong, while the innocent are viewed as being right. There are blatant representations of society’s evolution in the law courts, and at the same time there are subtle indications as well. All this and more show how the legal system indicates the direction that man has traveled in his evolution.
Every society has a set of rules and regulations, or laws that govern a society and control the behavior of its members . A society without laws dealing with crimes there is anarchy and war. The law courts avoid this state of society by resolving arising disputes in a civilized manner. Governments are kept in check by laws that limit the amount of power that any governing body has, and therefore instills freedom in the society’s citizens. Laws can improve the quality of life of the people by increasing the effort put into the health, education and welfare of the people.
Laws hold different levels of importance and therefore have different implications according to each society. A law that is found in China will have a different role than one that is found in Western nations1. In China the use of a law is the last resort, as all other means of resolution are employed before the courts. As society evolves, so does law. In earlier times, if someone was to commit murder, then the victim’s family would be permitted to avenge the death, usually this vengeance was carried out against the murderer family. Presently, in most places, a murder will result in actions against the murderer, but actions through the legal system. As society continues to evolve, capital punishment, that is a death sentence against the murderer, is being phased out , as society leans more towards reformation over retribution.
There are many different types of law, all of which were dominant at different times with different societies. Canon, Roman and Maya were some of the earliest forms of law, and as society evolved, Common and Civil are more dominant in modern times. Islamic and Martial law is also present at various parts of the world, in different societies. The laws that any society adopts can be used as an indicator about the nature of the society that uses them. Clearly, rules and regulations are important to every existing society and the extent and directions that the laws take can be used as an indicator of the evolution of man throughout time.
One of the earliest forms of law was Roman law, and the influence of it can still be felt at present day in many societies. Roman law took over rule from the magistrates that acted in the will of the Gods, but were discriminating against the lower classes. This shows that the Roman society in about the 8th century BC was concerned with equity to all in the society. Prior, it was the nobles that had most of the power and used it against the lower class, but Roman law made it so that the lower, or plebeian, class was treated with more fairness. Roman laws set forth regulations on matters such as property, payment of debts, and appropriate compensation or other remedial measures for damage to persons. The key factor in this is equity to the plebeian class that was previously victimized against. Though Roman law lost some of its power, by the 12th century when European commerce recommenced, Roman law was once again incorporated in many European countries . Once again, society, in this case many European countries were concerned with equity of all parties involved. By incorporating Roman law, the European community illustrated its holistic nature.
Another early form of law was Canon law, which is a body of legislation dealing with various matters of constitution, or discipline that was found in various Christian societies. It was the authority of the pope to make universal law . Canon law consists of seven books with a total of 1752 canons, or rules. The societies that used this type of law were religious above all things. This degree of religiousness is seen in the empowerment of the pope to create the rules that, under Canon law, had to be abided by. In earlier times, Canon law dealt with a wide array of matters, but in recent times, it has begun to deal with only marriage nullity cases. Perhaps this goes to say that society is becoming less religious, and that there are more things to consider when making rules and regulations that must be followed other than the word of God. Perhaps society is also saying that marriage is one of the only holy things remaining in existence, and therefore one of the few things that should be overseen by the eye of God.
Roman and Canon laws were introduced exclusively by the Europeans, but they were not the only society that used laws to govern themselves. The Maya civilization was one of the most advanced cultures in the Western Hemisphere before the Europeans arrived . They built great pyramids and accomplished complex achievements in fields from mathematics to astronomy. In earlier times, chiefs who got their positions hereditarily led the Maya. As society evolved, the rulers began separating themselves from the commoners. The trends that were seen in the societies that used Roman law were also seen here in the Maya civilization. That is, the whole reason for the Roman law was due to the discrimination against the lower class, and trends of that were apparent with the Maya. Convicted criminals and poor commoners sold themselves as slaves and were often sacrificed when their owners died in order for the slaves to serve in the afterlife. Perhaps a law like Roman law would have been founded to rectify the situation that was present in the Maya civilization, but the Spanish conquered the entire region in 1697, pushing the Maya to work as peasants on farms.
As the Maya civilization was taken over by the Spanish, it is likely that Spaniards used martial law to govern the society. Martial law is used when necessary and is used to suppress insurrection, riot or disorder . It can be argued that martial law does not in fact do all the things that it claims to do. The citizens of the society do not necessarily have to agree with the situation that presents itself when martial law is implemented, but rather they just have to live with whatever occurs. Many current legal systems, like the United States for instance, are legislated and regulated by elected government officials who, because they are elected, most be responsive to the views and thoughts of the people. Martial law on the other hand, is not accountable to anyone else. Since the military is behind the leader, it is unlikely that a force strong enough would present itself as opposition to topple the regulatory body. Therefore, the martial law is in place until either the military overthrows the leader, or the leader changes his view. A society that implements this form of law is one that is likely hostile and untrusting in that they need to be governed by force.
Another not so widely used form of law is Islamic law. Once again, like Canon law, a society that employs this type of law is one that is religious, since their view is that God’s law is supreme. One of the countries that uses this law is Iran. In a recent case before the Iranian court, a German man was sentenced to death because he committed adultery with an Islamic woman . Other acts that would have constitute a means for death in Iran would have been rape and spying. The societal views that are in place in Iran and illustrated by this incident are ones that greatly contrast from those that are evident in a society like the one that is found in Canada. In Canada, even an act of murder does not mean that the criminal will be killed. An act of adultery usually means that the marriages will be broken, but not by the courts, but more by the parties involved. These differing views show the contrasting nature of the people found in the two differing societies. The society that is found in Canada is one that is multicultural, and therefore religious problems are dealt with more on an individual basis within the confides of one’s own home. On the other hand, the society that is found in Iran is a predominantly Muslim society, and religious problems are part of their legal system. (As stated earlier, this shows that the society is religious). When engaging in an act of adultery, one is tainting the holy act of marriage, and therefore, under Islamic law, should face death. The case of Helmut Hofer is a questionable case since it is unknown as to whether or not Hofer was Islamic, and if he was not, does that mean he has to follow Islamic values. This would be a prime example of why Islamic law, or any law that is mainly consistent of the values of a certain religion would not work in a society like the one that is found in Canada. The many different cultures and religions that are found in Canada would cause major conflict, like a case of a German man committing adultery with a Islamic woman, whose law would prevail? That is the reason that societies have tended to use either the common law system or the civil law system in recent times.
Common law was founded in England after the Norman Conquest of 1066. Civil law’s origin can be traced to Roman law, as various civil codes were developed from it, a famous code was the French Code Napol?on of 1804 . European countries, notably England and France, colonized various countries and embedded either the common or civil laws to the colonized country. There are various differences in the two systems of law. The major difference is that civil law is based on codes that are not changed with the times while common law is adjusted as the society evolves . As the times call for changes in the legal system, common law is the most flexible in bringing about these changes because the judges in common law are not bound by the codes that are the foundations of civil law. There are benefits and disadvantages of each type of law, as there are with every decision that a society makes. The concern is how is the nature of the society that uses each type of law illustrated by the fact that they use either system?
For the common law system, the society that uses it is more dynamic than the society that uses the civil system that is they are more accommodating to change . Societies that employ the common law system are societies that understand the importance of experience and presence. Experience in that the past is a key learning tool in understanding the present. The common law courts use decisions that have been made in the past as a guiding factor to what decision should be made in the present, but at the same time they are not bound by the decisions that were made in the past. The importance of presence is apparent since the circumstances of each case would be different from the next and any straightforward rule or regulation may not be fitting to the situation. The common law system puts it at the discretion of the judge as to what should happen with regards to the case at hand. By recognizing these two needs, experience and presence, the society shows that it has more of an understanding nature.
In the civil law system, there are few cross-examinations of the witnesses at trials, as statements tend to be taken in private in a series of meetings, hearings and letters. This portrays that a civil law society is more trusting than the next, though this can be argued otherwise. One may say that since there are no cross-examinations, the witness’ word is taken as the truth, and there is no need for the witness to answer to anyone else, and that shows a level of trust in the witness. But the more likely argument is that the common law system, is more thorough than the civil law system. At the same time, being thorough could mean hurting people that should not be hurt. Canada has experienced a great rise in class action suits, that is, law suits against big businesses for substantially large amounts of money . Perhaps cases like these would be dismissed if they were outrageous by a civil law judge who decided that the case was illegitimate. But then the society would face the risk of cases that were substantial being dismissed.
Comparatively, societies in the present are more thorough than the ones in the past, as well as more equitable. In the past times, there was no jury to hear the case and render a judgement, there was only a judge, or in even earlier times a leader that made the decision. This shows that man has evolved into being more compassionate to his peers in society. It is fairer for the witnesses to tell their stories to a judge, and then give both the defendant and the plaintiff (through their lawyer) the right to respond to the claims. It is fairer to have to prove that a member of society is guilty to twelve people rather than one. Of course, like with anything in society, there are pitfalls. Perhaps some people in the twelve make a bad decision, and a criminal is set free. But that is not the question that is being explored here.
Legal systems can in fact tell the tale of man’s evolution. Roman law saw society evolve from being something that needed some direction and governing, to one that wanted equity for the people. Canon law illustrated that man was religious, but then realized that many aspects of the environment were not under the scope of religion. One of the things that were was marriage, and therefore it is ruled by Canon law. The Maya civilization showed that society worldwide can be seen in different stages of evolution, as they were following the same concepts as the Roman civilization when they were introducing the Roman law. Martial law shows that some societies will be led by leaders that are hungry for power, and will lead by force if they have to. Islamic law shows that society is religious. The question concerning the societies that use Islamic law is whether or not these societies will realize that there are more religions in the world, and that some things should not be regulated under religious precepts. Common law and civil law are used widely in present times, and these systems contrast dynamic, flexible societies from those that are not so much dynamic and flexible. The law that a society chooses as a means of governing themselves is reflective of the nature of that the particular society. Man has evolved to fit the surroundings and the environment that is constantly changing with time, and the indicators of this are everyone in existence.