The Law #

Anything that is unjust, cannot be considered lawful.

Primal, instinctive reactions, desire mere revenge, but a civilised response tends to avenge - to right wrongs.

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.

Egyptian #

Egyptian law, the law that originated with the unification of Upper and Lower Egypt under King Menes (c. 2925 BC) and grew and developed until the Roman occupation of Egypt (30 BC). The history of Egyptian law is longer than that of any other civilization. Even after the Roman occupation, elements of Egyptian law were retained outside the major urban areas.

The law stood above all humans and was personified by the goddess Ma’at, with the concept of ma’at representing truth, justice, righteousness, the correct order and balance of the universe. Egyptian law was essentially based on the concept of maat, which was about morality, ethics and the entire order of society.

Decline of the System

The problem of false witnesses was not so prevalent in the early centuries of the civilization but became more frequent with the decline of the Egyptian Empire and a loss of faith in the concepts which had regulated Egyptian society and culture for thousands of years.

During the latter part of the reign of Ramesses III (1186-1155 BCE), belief in the primacy of ma’at began to break down when the pharaoh seemed less concerned with the welfare of his people than with his life at court.

No formal Egyptian code of law has been preserved, although several pharaohs, such as Bocchoris (c. 722–c. 715 BC), were known as lawgivers. After the 7th century BC, however, when the Demotic language (the popular form of the written language) came into use, many legal transactions required written deeds or contracts instead of the traditional oral agreement; and these extant documents have been studied for what they reveal of the law of ancient Egypt.

The ultimate authority in the settlement of disputes was the pharaoh, whose decrees were supreme. Pharaohs were consciously aware that the gods expected them to rule fairly with equity to maintain perfect harmony.

Sumerian Law #

Sumer located in Mesopotamia, is the first known complex civilization, developing the first city-states in the 4th millennium BCE. It was in these cities that the earliest known form of writing, cuneiform script, appeared around 3000 BCE.

Civilization is defined as “As any complex society characterized by urban development, social stratification imposed by a cultural elite, symbolic systems of communication (for example, writing systems), and a perceived separation from and domination over the natural environment”

So the threshold for becoming a civilization is quite high, and since humans had just evolved in Africa with a higher brain capacity, but with no previous technology to build upon, we should not expect them to immediately build a civilization. The folks who came out of Africa were therefore not a civilization, but they should also not be called uncivilized.

Ishtar’s pursuit of revenge in ancient myths is an extension of her close connection to the dispensation of justice, and the maintenance of universal order. Love and war are both forces with the potential to create chaos and confusion, and the deity associated with them needed to be able to restore order as well as to disrupt it.

Ishtar is sometimes represented as a warrior who graces the battlefield demonstrating love, loyalty and a fierce commitment to justice. Love is said to conquer all, and in the ancient world, Ishtar did just that.

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.

The Sumerian civilization’s lasting legacy was the invention of writing, the cuneiform script, and their legal codes, such as the famous Code of Ur-Nammu and the Code of Hammurabi, which laid the groundwork for future legal systems. The former was proscriptive and relatitory, while the latter more understanding and restorative.

Around 1771, BCE, Hammurabi, one of the most successful kings 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 and debt-bondage.

Hammurabi’s Code was carved onto a massive, finger-shaped black stone stele (pillar) that was looted by invaders and finally rediscovered in 1901.

Ancient Legal Thought by Larry May.

Far from being barter-based societies, most notable ancient civilizations, including Babylon and Egypt, saw extensive use of debt among the people. In fact, that debt was so pervasive that it often involved debt-bondage and could accumulate to levels “so crushing as to need periodic forgiveness – a ‘clean slate’ act.” Hammurabi likely enacted debt relief measures four times in his 40-year reign: “This is about debt relief and forgiveness [in] ancient legal thought. …

“In Hammurabi’s Code of Laws, there are many examples of merciful treatment of his people, but there are also sometimes very harsh penalties as well – somewhat in keeping with the idea of lex talionis. Ammisaduqa, the great-great-grandson of Hammurabi, was a later king of Babylonia who issued an edict on debt forgiveness that is the most complete document of its kind to have come down to us.

“At the end of the prologue to his laws 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 (Babylonian-misarum) as the declaration of the land. I enhanced the well being of the people.

“The term ‘misarum’ is what many scholars translate as righteousness or as that form of justice called equity*. …

“There are several provisions in Hammurabi’s Code 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.

Hammurabi’s legal protections are motivated by equity. Hammurabi, recognized, as was also true of his successors, that debt, especially debt enslavement, could be so crushing as to need periodic forgiveness – a ‘clean slate’ act. There is good evidence that at least four times during his 40-year reign such temporary debt relief measures were proclaimed, and issued at least eight more times by Hammurabi’s immediate successors.

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 LegalThought Larry May

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.

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.

Greek #

The Greek’s saw life as a challenge to free themselves from the tyranny of the gods; their interference in their daily lives, the vanity of demands to be supplicated and venerated. Heroic men, considering themselves near equals, challenged the gods, who shared our conflicted human frailties and successes. The gods could be cruel and kind, capricious and fair, creative and destructive, tender and brutal, compassionate but vengeful, beautiful and ugly, mad and rational. It all boiled down fate - Fortuna.

Women and vengeance proved a popular combination in the myths of ancient Greece and Rome, where powerful women such as Electra, Clytemnestra and Medea brought terrible consequences on those who they perceived as having wronged them.

• 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. The laws were harsh, punitive and retributive with little latitude for mitigating circumstances.

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.

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.

Solon

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.

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.

Juvenal, who generally denigrated the Greeks, tribute to Solon is limited to four words:

“Eloquent Solon, the Just”.

Homer maintained Justice derived from Zeus, while Hesiod and Solon began to realise that the polis (citizens) were responsible for creating a Just society.

Hesiod, demonstrates the laws of nature:

Natural justice can be the justice of nature where the food chain is king. Larger species eat the smaller one

This is what the hawk said to the nightingale, the one with the patterned voice, grasping her in his talons, carrying her far off into the clouds. She in the meantime, pierced by the curved talons, was lamenting. But he spoke to her from his position of superior power:

“What daimōn makes you cry out this way? One who is far more powerful holds you fast.”

You will go wherever I take you, singer [poet] that you are. I can do what I wish with you: either make a meal out of you or let you go. Foolish is the one who is ready to stand up to those who are more powerful.

• Solonic laws, 640 – 560 - Greek - Athens - wrested power from aristocrats introducing the concept of equality before the law. The philosophy of the laws based on poetry and music inculcate the soundest principles of the genuine values of restorative justice.

Hesiod and Solon demonstrated that societies are made by people, for people.

Solon traveled widely, with evidence that he was influenced by laws descended from Moses, Phoenicia and Egypt.

Socrates and Plato, both praised Solon and articulated their theories of how to create and maintain a just society in The Republic.

Plato defines his concept of goodness and Justice as the key virtue. It is deeper and larger than just rewards and punishments, rather rightness - but fundamental moral order.

Force is not as powerful as an example or appeal to goodness. Fear makes people do what they are told, but inspiration motivates total commitment.

Goodness does not need the force of arms to destroy evil; evil destroys itself - Julius Caesar, Napoleon, Hitler, and many others give proof to that.

Justice in the end is always more profitable than injustice. Socrates, Jesus, Ghandi, Martin Luther King, and many others give proof to that.

Aristotle maintained

“Law is mind without reason”.

Roman #

• Roman - Perhaps created the most comprehensive and systematic code with checks and balances.

Gibbon claims Pythagoras who founded the systematic and mystical study of numbers and the theorem of the right-angled triangle, also applied his philosopy to the use of government and with the aid of poetry and music created an harmonious society. Both Livy and Dyonysius wrote that the deputies of Rome visited Athens under Pericles and the laws of Solon influenced the twelve Tablets.

The early Republic recognised the need for codified laws which were inscribed on twelve tablets for all to see.

The twelve tablets of law, etched on brass, were directly influenced by the laws of Solon whose laws descended from Moses, Phoenicia and Egypt and according to Cicero:

inculcated the soundest principles of governance and morals. How admirable is the wisdom of our ancestors.

A Locrian who proposed a new law stood forth in front of the assembly of the people with a cord around his neck and if the law was rejected, the innovator was instantly strangled. (Is this the origin of the neck tie?)

Mary Beard claims The Twelve Tables of ancient Rome are in many respects the foundation of the civil laws we have today – a written collection of basic procedural rights of one against another. They include such things as the procedures for the abandonment or killing of deformed babies, a practice common throughout antiquity.

They imply is a commitment to agreed, shared and publicly acknowledged procedures for resolving disputes and some thought on dealing with practical and theoretical obstacles to that. Children might be beaten rather than hanging – a distinction that heralds our ideas of the age of criminal responsibility.

“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 (though this is only a guess) captured in raiding or war.

The penalty for assault on a slave is set at half as much as for assault on a free man, whereas a slave could be punished with his life for an offence for which free citizens got off with not much more than a beating. But some slaves were eventually freed, as is clear from a reference to an ex-slave, or libertus.

“There were hierarchies within the free citizen population too. 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. …

In the Twelve Tables, the rule simply states: ‘If a patron has done harm to his client, he is to be cursed’ – whatever that meant.

“For the most part, the 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. Particular clauses prohibit women from tearing their cheeks in mourning, funeral pyres being built too close to someone’s house and the burial of gold – except dental gold – with the body. Criminal and accidental damage was another obvious concern. This was a world in which people wor­ried about how to cope with their neighbour’s tree overhanging their property (solution: it had to be cut back to a specified height) or with their neighbour’s animals running amok (solution: the damage had to be made good or the animal surrendered). They worried about thieves breaking in at night, which was to be punished more harshly than daylight theft, about vandals destroying their crops or about stray weapons accidentally hitting the innocent. But, just in case this all sounds a bit too familiar, it was also a world in which people wor­ried about magic. What should you do if some enemy bewitched your crops or cast a spell on you? Sadly, the remedy for this is lost.

“To judge from the Twelve Tables, Rome in the mid fifth century BCE was an agricultural town, complex enough to recognise basic divisions between slave and free and between different ranks of citizen and sophisticated enough to have devised some formal civic procedures to deal consistently with disputes, to regulate social and family relations and to impose some basic rules on such human activities as the disposal of the dead. But there is no evidence that it was more than that. … What is more, there is hardly any mention of the world outside Rome – beyond a couple of references to how particular rules applied to a hostis (a ‘foreigner’ or an ’enemy’; the same Latin word, significantly, can mean both) and one possible reference to sale into slavery ‘in foreign country across the Tiber’, as a punishment of last resort for debt. Maybe this collection had an intentionally internal rather than external focus. All the same, there is no hint in the Twelve Tables that this was a community putting a high priority on relations, whether of dominance, exploitation or friendship, beyond its locality. SPQR: A History of Ancient Rome Mary Beard Liveright Publishing Pgs 41-45

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.

In later years the Roman legal principle rested on “the laws were in the mouth of the emperor…or alternatively in his breast.”

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.

Justinian, in the sixth century AD, re-organised, re-coded and updated the laws into the Justinian Code, which influenced laws in the western world, especially the Napoleonic Code.

Gibbons wrote that the Romans had aspired to be equal; they were levelled by the level of their servitude when the dictates of Augustus were patently ratified by the formal consents of the tribes and centuries. Once he received strenuous opposition to a law which enforced the obligation and strengthened the bond of marriage. This was clamourously rejected by Prosertius, in the arms of Delia, who applauded the victory of licentious love. This project of reform awaited a more tractable generation. Ten years later, Ovid was banished to Tomis as a result.

Tacitus warned:

When the state is most corrupt, then the laws are most multiplied.

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 revenge a loss, rarely admitting fault and always seeking absolution.

Judaic and Christian #

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, likely influenced by Egyptian laws, appear relentlessly negative with all their “Thou shalt nots”.

Many quotes from the Old Testament are tuned into truth and justice:

“All his commandments are faithful: confirmed for ever and ever, made in truth and equity. .” Psalm 110.

“Righteousness exalteth a nation”. Proverbs: 14:34

“And judgment is turned away backward, and justice standeth afar off: for truth is fallen in the street, and equity cannot enter.” *Isaiah 59:14

This is King David’s advice to Solomon on the duties of an ideal king:

‘May he defend the cause of the poor of the people, give deliverance to the needy and crush the oppressor’. Psalm 72.

The New Testament is more about redemption and restorative Justice. Christ’s Sermon on the Mount instigated a radical change.

17 “Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them.

Retaliation

38 “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ 39 But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also. 40 And if anyone would sue you and take your tunic,[h] let him have your cloak as well. 41 And if anyone forces you to go one mile, go with him two miles. 42 Give to the one who begs from you, and do not refuse the one who would borrow from you.

Love Your Enemies

43 “You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ 44 But I say to you, Love your enemies and pray for those who persecute you,

Kinds of Law #

We need to distinguish between Natural Justice and Man made Law. Though laws are essential to any civilised society, they can be flawed.

Anacharsis laughed at Solon for drafting laws, imagining that the dishonesty and greed of the Athenians could be restrained by written laws.

Such laws, are like spiderwebs: they catch the weak and poor, but the rich can rip right through them.

Plato in The Republic: believed, The obedience of the impulsive parts of the soul to the rational parts is taken as a model for justice in the political arena”. Legislation may not change the heart, but it can restrain the heartless.

Mark Twain was realistic; “No man’s life, liberty or property is safe when the legislature is in session”.

Bismark, the pragmatist also realised that:

“the great issues of the day are decided not through speeches and majority decisions—but by iron and blood (Eisen und Blut).”

• However, he realised: “Power, to be useful, must be understood in its components, including its limits”.

“To retain respect for sausages and laws, one must not watch them in the making.”

There are three kinds of Law:

1. Divine Law – Canon, Zeus, Hebraic, Christian, Catholic, Sharia

2. 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 Justinian Code 6th C - basically a reorganisation and update of Roman statutes.

• Napoleonic Code 1800’s - introduced inquisitorial process to discover all the facts or truth.

3. Common Law - Judge’s prerogatives or discretionary power. Other cases were decided by precedence. A complete reversion to vengeful justice.

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.

Humpty Dumpty informs Alice: “The meaning of a word is decided by who is to be master, that is all”

Ghengis Khan #

Ghenghis Khan created an international law and recognized the ultimate supreme law of the Eternal Blue Sky over all people. At a time when most rulers considered themselves to be above the law, Genghis Khan insisted on laws holding rulers as equally accountable as the lowest herder. He granted religious freedom within his realms, though he demanded total loyalty from conquered subjects of all religions. He insisted on the rule of law and abolished torture, but he mounted major campaigns to seek out and kill raiding bandits and terrorist assassins. He refused to hold hostages and, instead, instituted the novel practice of granting diplomatic immunity for all ambassadors and envoys, including those from hostile nations with whom he was at war.

Medieval Europe #

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”;

The Napoleonic Code #

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 Napoleonic Code, is still the legal framework underpinning Europe.

Common Law #

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. Transportation was the most efficient form of punishment.

Writers like William Blake, Charles Dickens, Lewis Carroll and Arthur Conan Doyle, shamed governments and British judges into providing rational equitable judgments.

Michel Foucault (French - 1926 - 84) introduced terms like “public discourse”, “power-knowledge”, “biopower”, and “governmentality” how to “control the narrative”, call out a “social construct” or navigate “power dynamics”?

This set of principles best articulated by Canada’s late Chief Justice, Brian Dickson:

“The Supreme Court is not a self-created body with original powers; it is not a benevolent autocrat with full powers to act as it should think fit; 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; the court has no right to give a decision in accord with its own views of equity and good conscience, as distinct from the rules laid down for it. The Court has no right to take power unto itself which is not conferred by the people.” Scott v. Scott-Ontario Court of Appeal 1DLR53, 64OLR422

Dean Rostow’s conception of the judge’s role. The law,

“is the central institution of a changing society”; “the proponent and protector of values which are premises, goals, needs, and ambitions of our culture, as they have been expressed in our living constitution.”

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”.

Faced with uprisings, they will appeal to stability to maintain the status quo.

Statesmen (in short supply) have longer term visions and can draw up constitutions which can protect citizens from short sighted politicians.