Historical development of law

1. THE HISTORICAL
DEVELOPMENT OF LAW
UNIT 4

2. ANSWER THE FOLLOWING QUESTIONS:
• 1. The origins of law are closely related to the beginnings of
organized human society. Can you mention some early laws?
• 2. What was the law based on in early pre-literate societies?
• 3. Which legal system provides the basis for the continental
European legal systems?
•

3. PREVIEW
• Major Stages in the History of Law:
• 1. Customary law and the first codifications
• 2. Roman law
• 3. Ius comune of Europe
• 4. National codifications
• 5. Common law

4. ANSWER THE FOLLOWING
• Which early codifications do you know?
• Which historical periods do they belong to?

5. CUSTOMARY LAW AND THE FIRST
CODIFICATIONS
• Before the advent of writing, laws existed only in the form
of customs.
• The absence of written law makes it difficult for the rules to
provide lasting or extensive application.

6. THE CODE OF HAMMURABI (1760 BC)
• Among the first written codes - that of Hammurabi, king of the Babylonian Empire
• One of the earliest examples of a ruler proclaiming laws to his people so that they
can know their rights and duties.
• Engraved on a black stone slab (today in the Louvre , Paris), it contains cc. 300
sections with rules relating e.g. punishment that should be inflicted on a false
witness (death) , the one meted out to a builder whose house collapses killing the
owner (death).
• The code - almost entirely devoid of defences, a very early example of strict liability.

7. SOLON’S LAWS (6TH CENTURY BC)
• An outstanding example of early law-making - the laws of
the Athenian statesman Solon (6th century BC)
• Regarded by the ancient Greeks as one of the Seven Wise
Men, he was granted the authority to legislate in order to
assist Athens in overcoming its social and economic crisis.

8. ROMAN LAW
THE LAW OF THE TWELVE TABLES
• Early classical Roman law - customary.
• One of the earliest known codes of laws, the Law of the Twelve Tables
(Lex Duodecim Tabularum, c. 450 BC) consisted mainly of Roman
custom with certain borrowings from Greek law.
• A collection of basic rules, rather than a comprehensive piece of
legislation, yet it came to be regarded as the starting point of Roman
legal history.

9. CLASSICAL JURISTS
• During the period of the so-called classical jurists (Gaius,
Ulpian, and others), between the 1st century BC and the
middle of the 3rd century AD, Roman law achieved
considerable sophistication.
• Writings of jurists had a very significant impact on the
development of Roman law.

10. THE FALL OF THE WESTERN ROMAN EMPIRE
• After the collapse of the Western Roman Empire in 476 AD,
the development of Roman law was disrupted in Western
Europe.
• Law and the political order were fragmented, although the
Church preserved a great deal of Roman culture in its laws.
•

11. THE BYZANTINE EMPIRE: CORPUS JURIS
CIVILIS
• Between 529 and 534 AD, the Byzantine emperor Justinian
ordered a systematic and comprehensive codification of
laws.
• The four resulting books, known as the Corpus Juris Civilis
(comprising the Digest, Codex, Institutes, and Novellae),
were to be treated as definitive.

12. THE FIRST EUROPEAN UNIVERSITIES
• Six hundred years after the collapse of the Western Roman
Empire, the scholarly study of Roman law revived, starting
in Bologna, the first university in Western Europe (c.1088
AD).
• The universities taught law students Justinian's civil law,
which together with canon law provided the basis for ius
commune, the common law of continental Europe.

13. THE RECEPTION OF ROMAN LAW IN EUROPE
• Between 1100 and 1500 universities spread all over Europe.
• The law syllabus: Justinian's civil law.
• At the same time lawyers began to collect and study church
laws, or canons.
• Canon law was studied in the universities alongside civil
law.

14. THE RECEPTION OF ROMAN LAW IN EUROPE
• Since the church had jurisdiction over marriage, wills, and lawsuits
between clerics, canon law was a separate system.
• Civil and canon law were based on Roman law, so they had much in
common and influenced each other.
• The scholars known as the glossators, followed by the commentators
(or post-glossators), looked for the correct way to study and interpret
the Corpus Juris Civilis

15. THE RECEPTION OF ROMAN LAW IN
EUROPE
• Eventually, Roman law, as interpreted by the glossators and
commentators, became the basis of a common body of law which is
referred to as the common law of Europe, or the jus commune.
• The process by which Roman law became the subsidiary law of most of
Europe is called the reception of Roman law.
• England was an exception. There, Roman law had some influence but
was never accepted.

16. NATIONAL CODIFICATIONS
• By the end of the 18th century, the emergent nation states
started creating their own national codes.
• Justinian's codification was replaced by several codes that
sought brevity, accessibility, and comprehensiveness.
• While Justinian's law books were addressed to an elite,
modern codes, with the spread of literacy, were partly
meant to tell citizens what they must do to comply with the
law.

17. NATIONAL CODIFICATIONS
• The Napoleonic Code of 1804 came close to fulfilling these
aspirations.
• It presented the law in clear, concise and readily understandable
language, addressed to the average citizen of France.
• It exerted an enormous influence in large parts of Western and
Southern Europe as well as in Latin America.

18. NATIONAL CODIFICATIONS
• Unlike the French Civil Code, the German Code Bürgerliches Gesetzbuch (BGB),
enacted in 1900, is not written for the layperson.
• It is addressed to the legal profession, giving precedence to precise solutions and
predictability of outcome.
• Its legal language is rather abstract and complex.
• BGB does not have any ‘foreign’ non-German terms, since it replaced Latin terms
by German translations.
• The BGB - a model for civil codes in many countries, e.g. Switzerland, the Baltic
states, Turkey, China, Japan, Taiwan etc.

19. COMMON LAW
• Common law originally meant the common law of England as opposed to local
customary laws. England acquired a common law at an early date because it had a
strong centralized monarchy before most other parts of Europe.
• In the 12th century, under Henry II (1154-1189 AD) the royal courts extended their
jurisdiction at the expense of local and feudal courts.
• By the time that Roman law was received in other countries (from about 1400
onwards), the common law, based on precedents and created by courts, was too well
established to be displaced.
•

20. COMMON LAW
• The common law of English-speaking countries developed for many
centuries without codes and without university-trained lawyers.
• Even today common law systems rely much less on codes and on
theory than do civil law systems.
• Examples of common law jurisdictions: England, the United States,
Australia, New Zealand, Singapore, Malaysia, large parts of Africa,
India, Pakistan, and South East Asia.

21. READ THE TEXT CAREFULLY AND ANSWER THE
FOLLOWING QUESTIONS:
• 1. What was the earliest source of law before the advent of writing?
• 2. Which was one of the earliest written codes?
• 3. What was an outstanding example of early law-making in ancient Greece?
• 4. What was the earliest codification of Roman law?
• 5. Which codification had the greatest impact on European legal systems?
• 6. When was it compiled?
• 7. What did it consist of?

22. READ THE TEXT CAREFULLY AND ANSWER
THE FOLLOWING QUESTIONS
• 8. Where and when was Roman law rediscovered in Europe?
• 9. What is the reception of Roman law?
• 10. What was the emergence of national codifications related to?
• 11. What is the difference between Justinian's code and national
codifications? Who were they addressed to?
• 12. Where did the Napoleonic code exert great influence?

23. READ THE TEXT CAREFULLY AND ANSWER
THE FOLLOWING QUESTIONS
• 13. Where has the German code been used as a model?
• 14. How would you explain the emergence of English common law?
• 15. What is the common law based on, as opposed to civil law systems?
• 16. What are the main differences between the common law and civil
law traditions?
•

24. THE RULE OF LAW: EXAMPLES OF HISTORICAL
ENGLISH LEGAL DOCUMENTS
• I Answer the following questions
• How would you translate “the rule of law” into Croatian?
• How would you explain the meaning of the rule of law?

25. II READ A PETITION FROM THE HOUSE OF COMMONS TO
JAMES I (1610), ONE OF THE FIRST TEXTS WHERE THE
EXPRESSION “THE RULE OF LAW” WAS USED:
• “Amongst many other points of happiness and freedom which your
majesty's subjects of this kingdom have enjoyed under your royal
progenitors, kings and queens of this realm, there is none which they
have accounted more dear and precious than this, to be guided and
governed by the certain rule of the law which giveth both to the head
and members that which of right belongeth to them, and not by any
uncertain or arbitrary form of government.”

26. III ANSWER THE FOLLOWING QUESTIONS:
• What can you learn about the rule of law from
this extract?
• What does rule of law stand in opposition to?
•

27. THE BILL OF RIGHTS (1689)
• One of the basic instruments of the British Constitution
• lays down limits on the powers of the monarch and sets out the rights of
Parliament, including the requirement for regular parliaments, free elections, and
freedom of speech in Parliament.
• It sets out certain rights of individuals including the prohibition of cruel and
unusual punishment and allowed Protestants to have arms for their defence

28. THE BILL OF RIGHTS (1689)
• These ideas reflected those of the political thinker John Locke and they quickly
became popular in England.
• It also sets out certain constitutional requirements of the Crown to seek the consent
of the people, as represented in Parliament.

29. THE BILL OF RIGHTS
• In the UK, the Bill of Rights is further accompanied by Magna Carta (1215), the
Petition of Right (1628), the Habeas Corpus Act 1679 and the Parliament Acts 1911
and 1948 as some of the basic documents of the uncodified British constitution
• one of the inspirations for the US Bill of Rights

30. IV READ THE FOLLOWING EXTRACT FROM THE BILL OF RIGHTS (1689).
COMPLETE THE FOLLOWING TABLE LISTING THE RIGHTS AND
PROHIBITIONS DECLARED IN THE BILL OF RIGHTS.
RIGHTS PROHIBITIONS

31. THE BILL OF RIGHTS (1689)
• And thereupon the said Lords Spiritual and Temporal and Commons,
pursuant to their respective letters and elections, being now
assembled in a full and free representative of this nation, taking into
their most serious consideration the best means for attaining the ends
aforesaid, do in the first place (as their ancestors in like case have
usually done) for the vindicating and asserting their ancient rights
and liberties declare:

32. THE BILL OF RIGHTS (1689)
• That the pretended power of suspending the laws or the
execution of laws by regal authority without consent of
Parliament is illegal;
• That the pretended power of dispensing with laws or the
execution of laws by regal authority, as it hath been
assumed and exercised of late, is illegal;

33. THE BILL OF RIGHTS (1689)
• That levying money for or to the use of the Crown by
pretence of prerogative, without grant of Parliament, for
longer time, or in other manner than the same is or shall be
granted, is illegal;
• That it is the right of the subjects to petition the king, and
all commitments and prosecutions for such petitioning are
illegal;

34. THE BILL OF RIGHTS (1689)
• That the raising or keeping a standing army within the
kingdom in time of peace, unless it be with consent of
Parliament, is against law;
• That the subjects which are Protestants may have arms for
their defence suitable to their conditions and as allowed by
law;
•

35. THE BILL OF RIGHTS (1689)
• That election of members of Parliament ought to be free;
• That the freedom of speech and debates or proceedings in
Parliament ought not to be impeached or questioned in any
court or place out of Parliament;

36. THE BILL OF RIGHTS (1689)
• That excessive bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted;
• That jurors ought to be duly impanelled and returned, and
jurors which pass upon men in trials for high treason ought
to be freeholders;
•

37. THE BILL OF RIGHTS (1689)
• That all grants and promises of fines and forfeitures of
particular persons before conviction are illegal and void;
• And that for redress of all grievances, and for the
amending, strengthening and preserving of the laws,
Parliaments ought to be held frequently.

38. ANSWER THE FOLLOWING QUESTIONS:
• What can you learn about the structure of Parliament from this text?
• In what ways are the powers of the monarch limited?
• How are the relations between King and Parliament regulated?
• What rights are granted to citizens?
• How does the Bill of Rights legitimate the asserted rights and liberties?

39. ANALYZE THE LANGUAGE OF THE BILL OF
RIGHTS.
• Find all the collocations containing the words “law” and explain their meaning.
• Find all the legal doublets in the text.
• Which modal auxiliaries are used? What is their legal meaning? (Remember what
you have learned about modal auxiliaries in legal texts in Unit 1)
• Find all the references to the Monarch and Parliament.
• Which expressions are used to denote the abuse of power by the Monarch?
•

40. VII MATCH THE WORDS WITH THEIR
DEFINITIONS OR EQUIVALENTS:
1.aforesaid a. Relating to or concerning
2.bail a. A special right
3.commitment a. The act of taking away a property or right as a punishment
4.consent a. An order for sending someone to prison
5.dispense with a. To stop something happening for a period of time
6.execute a. To charge a person with treason before Parliament
7.forfeiture a. Agreement or permission
8.freeholder a. Payment made to a court to release an arrested person
9. grant (v.) a. To demand payment of a tax or an extra payment and to collect
it
10.grievance a. Someone who has the absolute right to hold land or property for
an unlimited time without paying rent
11.impanel a. Not to use something
12.impeach (hist.) a. To choose and swear in jurors
13.levy a. To agree or allow
14.prerogative a. A complaint
15.pursuant to a. Said earlier
16.suspend a. To carry out