We need to distinguish between Natural Justice and Man made Law. Though laws are essential to any civilised society, they can be flawed. Aristotle maintains “Law is mind without reason”.
Anything that is unjust, cannot be considered lawful.
Primitive perceptions of Justice was that it was all at the mercy of the gods and man needed to propitiate the gods with sacrifice and abstemious behaviour. Even as late as the fifteenth C., the Aztecs, Mayans and Incas sacrificed young people simply to get the sun to come back each season so the crops would grow. The welfare of the tribe was more important than the individual. Druids and Incas calculated the beams of the sun at Spring solstice, developing elaborate ceremonies to ensure the sun would return so they could harvest good crops. Hebraic Christian religions also hold a belief that God is watching and will ultimately dispense pure Justice.
Justice has not always been dispensed by judges or Religious leaders, operating under a written or common law equally applicable to all. In early societies, justice was not a matter of applying a written standard to any situation or dispute. There were no explicitly written sentencing guides or judicial precedents on which to call. Initially Kings would adjudicate, while later they delegated it to nobles or priests. At times, the victims themselves were responsible for exacting retribution or compensation for any crime. If the victim was dead, the family was left to take revenge or seek compensation. These blood feuds could last for generations as families sought to avenge a loss, rarely admitting fault and always seeking absolution.
There are three kinds of Law:
- Divine Law – Canon, Zeus, Hebraic, Christian, Catholic, Sharia
- Code Law - Laws set down by authority; either Ruler, legislative, constitutional or vested power. The Codes of Ur Nammu, 2100 – 2015 BC - Sumerian Hammurabi’s Code 1711 BC – Babylonian The Draconian constitution, or Draco’s code, (Greek) was a written law code created by Draco near the end of the 7 th century BC in response to the unjust interpretation and modification of oral law by Athenian aristocrats. Solonic 640 – 560 - Greek - Athens - wrested power from aristocrats introducing equality before the law. Roman - Perhaps the most comprehensive and systematic code with checks and balances. Napoleonic Code - introduced inquisitorial process to discover all the facts or truth.
- Common Law - Judge’s prerogatives or discretionary power. Other cases were decided by precedence. A complete reversion to vengeful justice.
From the 13th Century we got the Accusatorial Systems . Legal systems in England and Europe in the Dark and early Middle Ages believed in the Judgment of God, i.e. that the facts were gathered and the verdict delivered by an inscrutable deity. The procedure was accusatorial: one person accused another; the trial took various forms, including trial by ordeal and the judicial duel, or trial by single combat (trial by battle), in which an armed champion could stand in for accuser and accused. - ‘Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals)’ by Evan Whitton (Book Pal, 2009)
##Witchcraft Trials## Perhaps the most reliable trial of all. Hands and feet tied together and then thrown into water. If they survived, they were obviously a witch and burned at the stake. If they drowned, they were innocent and went straight to heaven. How good is that?
The Magna Carta,* 1215 was the first attempt to curb the untrammelled power of the King by the nobility. As soon as he was freed, King John appealed to the Pope to annul the document ensuring power to the people was not granted until 1648 with the beheading of Charles I. Cromwell turned out to be just as despotic and when he died in 1661, the monarchy was restored with some limits. The English constitutional settlement of 1689, Bill of Rights, confirmed the deposition of James II and the accession of William and Mary, guaranteeing the Protestant succession, and laying down the principles of parliamentary supremacy.
Only after the reign of Queen Anne, (1714) did Parliament actually become the Supreme Authority. It comprised mainly the aristocracy so commoners had little representation. It was the American and French Revolutions followed by the Peterloo uprising in 1819, that sent a shiver up the spine of the governing bodies to extend the franchise and pass the Poor Laws of 1832. Queen Victoria and Prince Albert had genuine empathy for the poor and gradually introduced many reforms to working conditions and social justice.
“The meaning of the Rule of Law is very simple and well known to us all: the law must stand supreme as the source and fabric of all social organization. It is the law which provides the framework for relations among individuals as well as between the individual and the state: the law delineates the scope of each person’s liberties and responsibilities and defines the powers and duties of government. All obligations imposed on the individual and all restrictions upon his or her liberty must be justified by law. This is the most fundamental guarantee of equality and freedom we have achieved as a society. The Rule of Law protects individuals from arbitrary and capricious treatment at the hands of government and fosters confidence in each of us that the power of government to interfere with our lives is finite and accountable. It allows us to live together in freedom and harmony and provides the common ground for social progress and prosperity." The Right Honourable Brian Dickson P.C.* (from a speech to the Canadian Bar Association)
He further asserted: “the court is an institution organized by the people through their representatives for the purpose of giving to those who apply to it their rights according to law, the law not being made by the Court but laid down for it by authority”;
Who writes the laws is determined by Ozymandian Power. “Look on my works, ye mighty and despair”!
The law of the jungle decides Might is right - considered by Hesiod and rejected for civilised societies.
“No man’s life, liberty or property is safe when the legislature is in session”. Mark Twain* 1866.
Bismarck’s lament: “To retain respect for sausages and laws, one must not watch them in the making."
He also infamously proclaimed “the great decisions of the day are not determined by speeches and legislation, but by blood and iron”.
Humpty Dumpty informs Alice: “The meaning of a word is decided by who is to be master, that is all”
#Original Code or Statutory Law#*
The Codes of Ur Nammu, 2100 – 2015 BC Written on a Sumerian clay tablet are the world’s oldest laws known to exist. The codes were composed by the Sumerian King Ur-Nammu. The laws covered both civil and criminal matters. Among criminal provisions it specifies which should be capital offences: murder, robbery, deflowering another man’s virgin wife, and adultery when committed by a woman.
The first copy of the code, in two fragments found at Nippur was translated by Samuel Kramer in 1952; owing to its partial preservation, only the prologue and 5 of the laws were discernible. Further tablets were found in Ur and translated in 1965, allowing some 40 of the 57 laws to be reconstructed.
Hammurabi’s Code of laws
In approximately 1771, BCE, Hammurabi, king of the Babylonian Empire, decreed a set of laws to every city-state in order to better govern his bourgeoning empire. Known today as the Code of Hammurabi, the 282 laws are one of the earliest and more complete written legal codes from ancient times mainly to regulate trade.
Hammurabi’s Code was carved onto a massive, finger-shaped black stone stele (pillar) that was looted by invaders and finally rediscovered in 1901.
Hammurabi says this about what motivates him:
When the god Marduk commanded me to provide just ways for the people of the land (in order to attain) appropriate behavior, I established truth and justice as the declaration of the land. I enhanced the well being of the people.
Michael Kirby agreed, always unambiguously standing for the proposition that justice is about more than technical interpretation and slavish following of precedent – and is in fact about ensuring humanity is enhanced.
Most ancient civilizations, saw extensive use of debt among the people, so pervasive that it often involved debt-bondage and could accumulate to levels “so crushing as to need periodic forgiveness – a ‘clean slate’ act.”
There are several provisions that aim at debt relief, but are primarily addressed to illegal acts of unscrupulous lenders. Here are three examples that are in Hammurabi’s Code:
LH# 117. If an obligation is outstanding against a man and he sells his wife, his son, or his daughter, they shall perform service in the house of their buyer of the one who holds them in debt service for three years; their release shall be secured in the fourth year.
This example is of a permanent release of people from debt slavery after the fourth year, but says nothing about debt enslavement for less than four years:
LH #w. If a merchant … should take … interest and … then does not deduct the payments of either grain [or silver] as much as [he received, or] does not write a new tablet, or adds the interest payments to the capital sum, that merchant shall return two-fold as much as he received.
Here is a law that penalizes what is effectively fraud on the part of merchants, where the penalty seems intended to deter such activity without interfering with legitimate creditors.
LH #124 If a man gives silver or gold, or anything else before witnesses to another man for safekeeping and he denies it, they shall charge and convict that man, and he shall give twofold that which he denied.
Here again there is a kind of fraud that is the subject of the law. In each case, Hammurabi, who calls himself a shepherd, seeks to protect the weakest of his flock from oppression at the hands of those who are powerful. And the laws that are propounded seek to curtail fraud as well as sharp dealing – and to do so permanently. Ancient Legal Thought Larry May
Australian Geoffrey Watson writes: It is often said that no-one is above the law, but it is just as important to understand that under the rule of law, no-one is below the law. The most important component of the rule of law is that it operates to protect the most vulnerable and underprivileged in our community.
Old Testament Justice, like Hammurabi’s Code of laws or the proscriptions of Leviticus is all about retribution “an eye for an eye”. They merely list a series of implacable injunctions against certain acts considered taboo, leaving no room for mitigation.
The Ten Commandments appear needlessly negative with all their “Thou shalt nots”.
The New Testament is more about redemption and restorative Justice.
##Greeks and Laws## The Draconian constitution, or Draco’s code, was a written law code created by Draco in response to unjust interpretations and modifications of oral law by Athenian aristocrats.
Draconian refers to Draco, the Athenian lawgiver who according to ancient tradition had the laws of Athens written down and introduced new laws, perhaps in 621/620 b.c.e. Draco’s criminal laws were severe; most crimes were punished by death. Asked why the punishments were so extreme, Draco answered that small crimes deserved the death penalty and that he could think of no harsher penalty for major crimes. The Athenian statesman Solon repealed all of Draco’s laws except those on homicide, possibly in 594/3 b.c.e. The word entered English in the 18th century.
During the infancy of the Athenian legal system Draco composed the city’s first written law code with the aim of reducing arbitrary decisions of punishment and blood feuds between parties. Ultimately, though, the laws aided and legitimized the political power of the aristocracy and allowed them to consolidate their control of the land and poor. Famously harsh, the laws were ultimately replaced by Solon in 594 BCE.
Solonic reforms were known as the Seisachtheia. Solon is justly considered the father of Justice and Democracy.
Solon’s constitution reduced the power of the old aristocracy by making wealth rather than birth a criterion for holding political positions, a system called timokratia (timocracy). … The only parts of Draco’s code that Solon kept were the laws regarding homicide.
##Roman Codes## – mostly lost.
A commitment to agreed, shared and publicly acknowledged procedures for resolving disputes.
The themes of the regulations point to a world of multiple inequalities. There were slaves of various types, from defaulters on their loans who had fallen into some form of debt bondage to those fully enslaved, presumably captured in raiding or war.
One clause draws a distinction between patricians and plebeians, another between assidui (men of property) and proletarii (those without property – whose contribution to the city was the production of offspring, proles). Another refers to ‘patrons’ and ‘clients’ and to a relationship of dependency and mutual obligation between richer and poorer citizens that remained important throughout Roman history.
Twelve Tables confront domestic problems, with a heavy focus on family life, troublesome neighbours, private property and death. They lay down procedures for the abandonment or killing of deformed babies (a practice common throughout antiquity, euphemistically known to modern scholars as ‘exposure’), for inheritance and for the proper conduct of funerals.
Emperor Justinian in 527 set out to reform the Roman legal system known as Corpus Juris Civilis, which translates to “Body of Civil Law” and would also be known as the Justinian Code. The Justinian Code was used as the foundation for many European countries legal systems and its influence can still be seen today.
The Napoleonic Code, was a legal framework that strengthened the authority of men over their families, deprived women of any individual rights and reduced the rights of illegitimate children, of which he had many. The laws were applied to all territories under Napoleon’s control and were influential in several other European countries and in South America.
The part of English law that is derived from custom and judicial precedent rather than statutes; The body of judge-made law we inherited from England.
Examples: common-law wife – partner – significant other
Finders keepers - loser weepers.
Murder is against the common law.
Specific court cases where Common Law has been used.
The most recent example: the British Government was forced to publish private letters between Prince Charles and Cabinet Ministers in the public interest.
In the UK, common law refers to the commonly accepted law of the land. before those laws were written down or made into Statutory Law.
In the US it refers to court precedent or case law; previous decisions which have been established in courts built upon laws which have already been written and codified. Whatever we can get away with.
England’s Enclosure Laws in the mid 18th C. upended centuries of feudal traditions of land strips and common lands owned by landlords and farmed by peasants reorganized to provide larger more efficient holdings to provide wool for factories. Thousands were driven off the land drifting to cities where necessity drove them to crime. Because there were no official laws, there was no recourse.
Tort Law To rectify a wrongful act or an infringement of a right Politicians are renown for being motivated by popular perceptions and will often pander to current fads of “law and order” or stoked fears of crime waves and make punitive laws to curry favour with voters - a politician was overheard to say,” Never mind about Justice; Law and Order is all that matters”.
Statesmen (in short supply) have longer term visions and can draw up constitutions which can protect citizens from short sighted politicians.