The Sources of our laws
Functions of Law
There are some people that think our world would be better off if there were no laws. These people are called anarchists, a person who believes that government and laws are not necessary. But just how would our world be without laws? Would you be able to feel safe? Free? Laws are a necessary part of every society.
Laws are sets of rules that allow people to live peacefully in society. They are binding on everyone living in a community, state, or nation. By providing an understanding on what actions are permitted and which ones are not, laws make it possible for all parties-people, organizations, or governments-to deal with one another.
While one might think that laws are about violence and catching a person doing something wrong, they are actually about keeping the peace. They prevent violent acts and minor problems. Of course, there are punishments established by laws. The reason for punishment is to discourage someone from doing crimes or other wrongs. For this to happen, someone must be responsible for carrying out the enforcement of these laws. That is the reason for law enforcement agencies, or police, judges, and courts.
A law may also set the rules for resolving civil disagreements over money, property, contracts, and other noncriminal matters. There are laws that protect employees from being wronged by their employers, such as dealing with hazardous materials or getting less pay because of your race or gender.
To work well, laws have to be fair and treat all people the same. People in similar circumstances should be treated equally under the law. Good laws are reasonable, setting out punishments appropriate for the crime. Ordinary people should be able to understand the laws and government must be able to enforce them. When most people understand the laws and believe them to be right, then the laws will be obeyed, and enforcement capable of happening. But if there is a great deal of confusion about the law, it is hard for it to be enforced. When the writers of the Constitution created our government, they based our laws on ideas, traditions, customs, and laws passed down from generation to generation. When those customs or ideas change, often times the laws will as well. That may be positive for a society or it could be negative.
How far back can you find laws in the history of mankind? Legal scholars believe that even the earliest human societies had some kind of law. These scholars go all the way back to prehistoric people, who used unwritten rules of behavior to help members avoid or cope with social conflict. They were probably passed from one generation to the next by word of mouth. People would teach the laws to their children and their children would do likewise. After people began using written languages they began to write down their laws.
Code of Hammurabi
Most consider the first known system of written law as being the Code of Hammurabi. Hammurabi was a Babylonian king around 1760 B.C. Babylon was located in the Persian Gulf region with its capital in the modern nation of Iraq. There were 282 laws in the Code of Hammurabi and they regulate everyday behavior. The punishments for breaking many of these laws would not be acceptable today, as they would be viewed as quite harsh. For example, if someone stole property they had to pay back 10 times the value of what was stolen. If they couldn’t pay it, they were put to death.
Another group of early laws can be found in the Biblical Old Testament with the Ten Commandments. Hebrews living in ancient Palestine followed these laws. There were moral rules in the Commandments about how people should behave toward each other. Some of these rules, such as “do not murder” and “do not steal” have been included into our laws today.
In historical Roman culture, they made a science of the law, calling it jurisprudence. That word is used today to mean the study of law. The first code of Roman law was published in 450 B.C. These laws were like Hammurabi’s in the strict penalties given out for breaking laws. One of the Roman laws says “If any person has sung or composed against another person a song such as was causing slander or insult to another he shall be clubbed to death.” Could you imagine such punishment today?
Over many centuries the Roman senate adopted a great many laws, and Roman judges wrote commentaries (information and instructions) on them, which often became part of the law. Later Roman emperors created law by issuing edicts, or commands that were equivalent to laws. As the empire grew, these laws spread into Europe, Africa, and Asia. In 533 A.D. Emperor Justinian I, ruler of the Byzantine or Eastern Roman Empire boiled down the confusing mass of Roman law into an orderly set of rules called the Code of Justinian. This became the basis of law for the Byzantine Empire. Roman law also became part of the laws of the Roman Catholic Church, known as canon law.
Move ahead twelve hundred years and meet the French emperor Napoleon Bonaparte. Napoleon updated the Justinian Code and called it the Napoleonic Code (hmm, original name). Napoleon went on to conquer most of Europe in the early nineteenth century, bringing his code along with him. European colonists carried the Napoleonic Code with them to Asia and Africa later in the century. Because of this, much of the world now lives under some form of Roman law as interpreted by the Napoleonic Code. If you lived in the state of Louisiana, which was originally a French-held territory, you would live by a system of laws based on the Napoleonic Code.
With the entrance of English settlers creating the Atlantic coastal colonies in North America, much of what is now the United States would be influenced heavily by English law. Perhaps the most important contribution is the English system of common law, or law based on court decisions rather than a legal code. After the Normal conquest of England in 1066, English kings sent judges into the countryside to administer justice. These judges would begin to compare the facts and rulings from earlier cases to new cases. When the judge decided a new case, he would look in the books for similar cases and follow the earlier ruling in making his decision. This would be known as a precedent, legal opinions that would become part of the common law.
English judges knew the Roman law and the canon law, and they blended these into the body of common law. The law came to include basic principles of citizens’ rights such as trial by jury and the concept that people are considered innocent until proven guilty. Common law became the basis for the legal systems of many English colonies, including the lands that later became Canada, Australia, New Zealand, and the United States.
By the 1600s, as the English legislature, or Parliament, became stronger in relation to the monarchy, acts of Parliament-written statutes-came to dominate the English legal system. Still, common law continued to have a strong influence in legal matters. When English settlers came to the North American colonies in the 1600s and 1700s, they brought with them their traditions of common law and citizens’ rights. Today these ideas are an important part of our legal system. The common law tradition of following precedents still survives in the interpretation of statues by courts.