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The history of law is essentially the history of civilization. Even primitive socities have law, although they are not written down. They may be largely traditions. As more sphisticated socities developed with the advent of agriculture, an actual legal code was required to resolve complicated legal questions concerning business and property. The Babylonian king Hamarabi finally made the first step toward a written code. This was a huge step as law based on a written code was less arbitrary and more fair to all concerned. One of the great gifts of Rome was that of law. Roman law played a major role in the eventual emergence of the West. The classical tradition was lost for centuries after the fall of Rome. The Islamic legal system or shria based on the Koran was in the 7th century a progressuve development. The problem with Islamic Law is that Muslims see the Koran as God's final relevation to man and beyond question. Thus with a medieval foundation that can not be questioned are amended, there is an inflexibility in Islamic law making adjustment to the modern world difficult if not impossible. . Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary comcomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law. Louis XIV famously said, "I am the state". Napoleon is one of the great military geniueses of all time and committed to autocracy, but his great achievement was the Code Napoleon which for the first time presented France with a modern legal system. The importance of law is often forgotten in our modern world, but there is a strong correlation between economic prosperity and the ruke of law.
As more sophisticated socities developed with the advent of agriculture, an actual legal code was required to resolve complicated questions concerning business and property. Writing had the same impetus. Records had to be kept, both by the state to assess taxes and by individual doiung business. All of this was not necessarey for hunter-gatterer peoples, but agricultural peoples developing civilization were another matter.
The Babylonian king Hammurabi was the greatest of the Babylonian kings. Babylon was the world's first great metropolis and it is no accidebnt that it was here that the world's first written law code emerged.
Of all Hammurabi's remarkable achievements, none is more important than is code of law. The actual provisions may seem extrtemely harsh to the modern reader, but te fact that they were written down and posted was a critical stepin the development of civilization. All the more so in that large numbers of peope even in the 20th and 21st centuries do not live in societies in which a written law code governs natinal life. Hammurabi's code is the earliest-known example of a ruler proclaiming an entire body of law to his people in written form. The 282 laws were written by scribes arranged in orderly groups on 12 tablets. This allowed the public to read and study the laws. They thus could understand what the state expected of them. Hammurabi had his Code carved upon a black stone pillar 8 feet high and placed in a public place. It begins and ends with pleas to the gods.
The first written law coide was a huge step in the advancement of ciilization. Law based on a written code was was a system the public could undrstand and was less arbitrary and more fair to all concerned than law depensed at the whim of individuals.
One of the great gifts of Rome was that of law. Roman law played a major role in the eventual emergence of the West. Of all the great inheritances of Roman civilization, none were more important to Western Civilization that the heritage of Roman law. And today the imprint of law is one of the primary forces that mark the Western world. Roman law developed for about a milenia. The earliest Roman law was secretly administered as the law of the privileged classes. Over time it became the destinctive basis of civilized life throughout te Empire. Roman jurisprudence evolved into a legal system based on natural-law theory as the fundamental test of the reasonableness of positive law. The first major step toward a sophisticated legal system was the law of the Twelve Tables (449 BC). The cilmination of Roman lrgal development was Emperor Justinian I's Corpus Juris Civilis of (about 530 AD). Roman law, as preserved in Justinian's codes continued to be practiced in the Eastern Roman or Byzantine Empire until its fall (1453). The classical tradition was lost for centuries after the fall of Rome to the Germanic invaders and Huns. The Eastern Empire did not fall to the Barbarians. Thus it was largely through the Eastern or Byzantine Empire that Roman legal practice was passed to continental Europe during the medieval era.
One often ignored legal development is the importance of the Catholic Curch in conveyed Rome's greatest legacy--the rule of law. Canon Law is the legal system, the body of laws, beginning in the final years of the Roman Empire anf continuing through the medieval era to givern the Church. Cannon law was the vessel through which Rome's precicious legal heritage was conveyed to medieval Europe. At a time when Europe was a cauldron of waring Barbarian nobles, mostly illiterate, the Church developed cannon law which was the template for legal systems that slowly developed in Western Europe.
One of the most important cultural legacies of the Franks is the Salic law (Lex Salica). It is the first body of traditional Germanic law to be codified. It was codified for use in governing the Salian Franks by King Clovis I during the early Medevil period (about 510). Although codified at that time, it is a body of traditional German law that dates back to ancient times. The single best known tenant is the exckusion of females from the inheriting a throne or fief--agnatic succession. (salic Law is sometimes used as a synonym for agnatic succession. Salic law is, however, much more imprtant. Salic Law along with Roman Law (passed through canon or ecleasiastical law) is the foundation aling with the Naploeonic Code are the foundation for the modern legal system in much of modern Europe.
The term Sharia simply means Islamic law. Sharia is derived from the Koran and other Islamic holy works and precendents. Some Muslims view Sharia as the body of Islamic law established in the past, especially before the 19th century. How a time time can be set on law has no basic in the Koran and seems difficult to justify intelectually. As a result, other Islamic scholars view Sharia as a changing body without any set chronological limits. The essential difference between Sharia and Western secular law is that the separation of church and state in the West. Sharia developed in the Medieval caliphate where as it was a theocracy there was no destinction between religion and state, the Caliphate was an Islamic state. Sharia regulates both public and private relations and merges government, law and religion. Goverments in the West have stopped attempting to dictate religion to its citizens and thus have developed secular law. This is not the case in the Islamic world where other religions to various degrees are supressed. With the rise of Fundamentalism in the Islamic world there has come increasing pressure for the implementation of Sharia. This presents problems for non-Muslim people. And because sime Muslims believe that Sharia is now a fixed body of law based on Islamic works before the 19th century, the penalties are in some cases draconian if not barbaric. Quran 5:38 for example percribes a punishment of cutting off a thief's hand.
The basic law of Britain (except Scotland) is English common law, an unwritten law based on custom and usage, Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary comcomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law as a result of royal absolutism. Modern England is an amalgum of many different peoples and Englisg common law shows an imprint of many of these peole. The exception was the Celts and Romans. The Romans supressed Celtic culture and the Anglo-Saxon s supressed Roman culture, including Roman law. Thus English common law is less influenced by Roman law than is the case of continental Europe. Thus English common law has a Germanic rather than a Roman foundation. Its origins are the legal concepts of the Anglo-Saxon invasions (5th century AD).
King Alfred the Great (849-99 AD) reportedly translated thelimited legal texts of the day into English. To this Anglo-Saxon based was grafted Danish (Viking) legal traditions, most importantly the principle of trial by jury, William the Conqueror's victory at Hastings (1066) ended Anglo-SAxon rule. It did not, however, end Anglo-Saxon law. William combined Anglo-Saxon law with Norman law. William had ulterior motives. If he had completely supressed Anglo-Saxon institutions, his rule would have been dependent on the Norman barons. By wining over Anglo-Saxon England, the English crown could draw on a much wider base of support. The coimbination of Anglo-Saxn and Norman law eerged as English commn law. It developed as custom and precedent rather than by written code. This cimmon law came to be a real force (14th century). Courts and lawyers began to defer to recedents in legal decisions and commentaries. Another strain of English law is the law of equity (chancery). These were law issued by the monrchy to order or prohibit specific acts. The first major compendium of English common law was Sir William Blackstone's Commentaries on the Laws of England (1769).
English common law was the basis for law in the American colonies. Each of the colonies had colonial charters. And following the English example were governed by governors appointed by the Crown and colomial legislatures basefd on the Britisjh Parliament. Just before the Revolution, Sir William Blackstone, published The Commentaries on the Laws of England ( Clarendon Press, Oxford, 1765-69). This was a basic compendium of English Common Law. It was divided into four volumes: 1)rights of persons, 2) the rights of things, 3) private wrongs, and 4) public wrongs. Blackstone's Commentaries became widely used in America both before and after the Revolution (1776-83). And much of the statutes enacted into law by the American states is based on English common law expressed by Blackstone. The sole exception is Louisiana which was influenced by the Napoleonic Code.
The Constitution is the first important written plan crafted to establish a new republic. Madison came to the Convention armed with a carefully developed plan which came to be called the Virginia Plan. Madison's role at the Convention has resulted in him being seen as the "father" of the Constitution. It was conceived to limit the powers of the Federal government by creating three independent braches of government, in part a reflection of American experience with what the founders considered to be King George III's unfettered executive power. Guaranteeing power to the states further limited the power of the Federal Government. There were many inperfections in the Constitution, including a failure to address slavery. There were also limits on democratic government. The fact that even in 2002, President Bush was relected with fewer votes than Vice President Gore is a reflection of these limits. The new Constitution was hotly debated throughout America after the Convention approved it. Dpite the imperfections, it was as Franklin observed, as close to perfect as could be achieved. Madison and Hamilton argued for its ratification in a brilliant series of political essays now called the Federalist Papers. The principal concern threatening ratification was fear--fear of the political unknown and dangers of both democratic rule and the political unknown. One noted scholar writes, "The Constitution was written not by hard-nosed, conservative political bosses determined to reverse the meliorist enthusiasm of the early years, but by idelaists ... who had come to recognize, reluctantly, the need to create the dangerous instruments of centralized power." [Bailyn]
Louis XIV famously said, "I am the state". Napoleon is one of the great military geniueses of all time and committed to autocracy, but his great achievement was the Code Napoleon which for the first time presented France with a modern legal system. While history focuses on his military campaigns, The Code Napoleon was surely the most important and enduring aspect of Napoleon's regiome. The legal system he inherited varied in each French province. He saw the need to replace this patch-work and inconsistent legal system with a national, standardized code for the French nation. Before addressing the legal confusion, he addressed the French fiscal system which was even more decrepit. He reformed the French taxation system and indoing so increased the imperial income by almost 700 million francs annually. The taxes included an income tax and a series of levies on goods (wine, tobacco and salt). He then capped his fiscal reforms by creating the Bank of France. Napoleon did not personally play a role formulating the new laws. Instead he appointed a commission (1801). There were 2,281 laws suggested. Napoleon did not personally revuew many before the Council of State debated them. It is an this point that Napoleon aplied his considerable administraytive skills. He proceeded to implemented a wide range of national laws which became known collectively known as the Civil Code or the Code Napoleon. The laws comprised the Codes of Civil Procedure, Commercial Law (1807), Criminal Procedure (1808), and the Penal Code (1810). The central tenet Code Napoleon was that every French citizen was equal before the law. Thus Napoleon institutionalized the central tenat of the Revolution.
A reader writes, "I remember being shocked in 7th grade in our Civics class. The discussion was about democracy. One boy got up and said the only 'true' democracy was the Soviet Union. There were gasps around the class. The civics teacher said 'Ah yes, every one has the vote, every one has to vote; one man, one vote for one man. Think about it.' There was thoughtful silence." The whole evolution of Western law was to protect the individual, both his property and his rights. Soviet or socialist law is the body of law with developed in the Soviet Union after the Bolshevik Revolution (November 1917). It was imposed upon the Soviet people by the Communist Party, based on Markist-Lenninst principles as interpreted by Sobiet leaders, namely Josef Stalin by the late-1920s. It was essentially the reversal of the evolution of Western law. While the Soviet state presented itself as the complete reversal pf the Tsarist state, it was in reality similar in many ways to the Tsarist Russia. Just as the Tsar was an absolute ruler, Lennin and even more so Stalin became absolute rulers in their own rights without legal constraints. Rather than protecting an individuals rights and property, Soviet law was used by the state to impose its will on Soviet citizens. While the Soviet Union crafted a Constitution with seemingly liberal principles, it actially was a virtually meabingless document. There were no real limits on state power and the operations of the Secret police--the Chekka/NKVD. There was no independent judicuary. NKVD arrests always resulted in convictions. Often there were no even trils, but execultions or long commitment to the Gulag. The issue of private property became moot. Essentially individuals no longer had property. Collectivization settled the land issue by eliminating millions of peasant land owners. Andwithout property, Soviet citizens essentially became serfs of the Soviet state.
The importance of law is often forgotten in our modern world, but there is a strong correlation between economic prosperity and the rule of law. It is no accident that capitalism developed in the Betherlands and England and the Indurtial Revolution first occurred in England where individual and property rights were protected by the rule of law.
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