Historical And Constitutional Foundation Of Civil And Criminal Law - Term Paper Example

Historical And Constitutional Foundation Of Civil And Criminal Law Table of Contents Abstract I Introduction II History of Legal Systems A. Ancient Legal Systems B. Athenian Legal System C. Roman Civil Law D. The Common Law of the English III Conclusion Abstract The history of the world’s legal systems began in the ancient civilizations, when courts were constituted of neighboring village people and public opinion almost always sealed the fate of the accused. The Incas, the Aztecs, the Mesopotamian regions had their own distinctive systems of law. Gradually, however, legal systems evolved for the better, with court hierarchies set up, more equitable system of penalties and the refinement of the jury system. It was during the period of ancient Rome when the civil law system began to take shape although various legal codes had earlier emerged in the course of legal history such as the Code of Hammurabi. Likewise, the distinction between public and private laws were attempted and civil and criminal jurisdictions separated, although imperfectly. The English common law from the 12th to 15th centuries also made advances in the legal system with better differentiation of felonies from minor offences and later with misdemeanors. Nevertheless, these systems were still regarded as primitive legal systems. It was not until a clear distinction of the criminal from the civil, the public from the private jurisdictions that legal systems finally matured and departed forever from its primitive state. I Introduction Legal systems are characterised as primitive, transitional or modern and are said to correspond to the three stages of societal development. The transitional stage is characteristic of a system that has gone past the totally primitive, but has still not achieved modernity. According to Hart, the primary difference between a primitive legal system and a modern legal system is the presence of well developed secondary rules that support the primary rules, a feature of modern legal systems and absent in primitive legal systems. Primary rules are the basic laws that define the crime or the offense and prescribe the corresponding punishment. Thus, the law that defines what murder is, its elements and its punishment constitute primary law. On the other hand, secondary rules supplement primary rules by providing mechanisms for allowing their identification, their violation and their modification. According to Hart, secondary rules are rules of recognition, rules of adjudication and rules of amendment (Hage & Pfordten 2009 118). Moreover, other authors see modern legal systems as strictly characteristic of advanced industrial economies, where there is differentiation and stratification of institutions. These elements of stratification and differentiation are reflected in the legal systems as well. In these systems, lawmaking is more extensive and laws are more voluminous, with clear divisions (Sutherland, Cressey & Luckenbill 27). Aside from the presence of secondary rules, modern legal systems can be differentiated from primitive legal systems by the existence of an apparent distinction between the civil and criminal jurisdictions, and public from private laws. III History of Legal Systems A. Ancient Legal Systems In early civilizations, there was no clear distinction between criminal and civil cases. Thus, all cases were heard by the same courts, although there was usually a hierarchy of courts and appeals were allowed to the next higher court. The highest courts are usually at the state level staffed by the king’s men and the lowest at the neighborhood or village level. In China, elders played important roles in settling disputes. However, the early legal systems lacked the services of professional judges and were often reliant on public opinion to settle disputes. In the Yoruba society, disputes that could not be settled by neighborhood courts were referred to the ruler’s court, where decisions further required the king’s approval. In Mesopotamia, the judges of different courts were all king appointed and cases not resolved in the lower level courts can be brought to higher level courts. In the Aztec society, both criminal and civil cases were appealable to the ruler established court (Trigger 2003 pp. 225-230). The first legal codes appeared in the Ur III (short for the Third Dynasty of Ur), which was a Sumerian Dynasty between the 21st to 20th century BC, in Mesopotamia, one of which is the Code of Hammurabi - considered as the first completely preserved legal code. The Code is largely based on the eye-for-an-eye doctrine, but there were also provisions that prescribed certain punishments for certain crimes. It is a collection of 282 laws and is an admixture of criminal and civil law, alongside trade and commerce, marriage and divorce, and a large portion centered on marriage and family (Trigger 2003 pp. 231-232; Spielvogel 2008 pp.11-12). B. Athenian Legal System The Athenian legal system is considered the best ancient Greek legal system, spurred by the reforms initiated by the Athenian lawmaker and statesman Solon. Nonetheless, the treatment of cases did not clearly distinguish between criminal from civil or public and private, although there was a feeble attempt at differentiation and stratification. Most of the secondary rules were, however, absent. As Athens was a direct democracy, people proposed and made laws, which then required a simple majority for their passage. There were different courts that handled different types of cases: the Middle Court tackled misdemeanors, and; Areopagus and Palladeon dealt with homicides. Juries were employed in the hundreds, if not thousands, to decide a single case, making bribery attempts and corruption almost difficult to accomplish. The downside however, was that their large number made decision discussion impossible. Moreover, citizens initiated and maintained their own complaints because of the absence of prosecutors and lawyers, and the prohibition against representatives, with the exception of women who were not allowed in courts and hence, had to be represented by a male relative. Cases therefore, stand and fall on the persuasive gifts of litigants. Penalties were often harsh even for simple offences, such as death imposed on a person convicted of mutilating religious statues. Even Socrates was sentenced to death for espousing philosophies that were against the status quo and influencing young minds (Williams 2009 18-19). C. The Roman Civil Law The Roman legal system is the model of many civil law system countries and this system was advanced than previous systems although civil and criminal jurisdictions were not clearly established. The Roman legal system was built around the Twelve Tables, the Romans own legal code published in 450 BCE. The system depended upon civil laws to solve many legal disputes. This relatively advanced system was underpinned by the existence of a law making body – the Roman Senate, and the magistrates, which exclusively interpreted the laws upon their assumption of office. Magistrates or praetors were not, however, compelled to honor the interpretation of previous magistrates before them. Actions were initiated only by interested individuals like in the Athenian legal system but the accused can request his patron to act as his attorney. Family members also played a role in pleading the cause of an accused and family members weeping to persuade the juries were familiar sights in courts. If the latter were not available or insufficient, the accused could hire professionals (Hunt 2008 70). Under the ancient Roman legal system, a distinction between public and private cases was made, but it was a flawed distinction. Public cases involved the state and included treason, embezzlement of public property, murder by poison and adultery. All other actions were private ones, including theft and robbery (Monsourakis 2003 127). Punishments depended on the class of the convicted, with the noble class imposed easier punishments than the working class, which could be sentenced with capital punishment through beheading, burning alive, crucifixion, exposure to wile animals, or drowning in a sack. The jury, which could number as much as 75, determined the guilt of the accused and judges handed down sentences (Hunt 2008 71). D. The Common Law of England The English common law in the 15th century was deemed the most sophisticated legal system in Europe at that time but even then, there was no clear differentiation between civil and criminal jurisdiction of between private and public laws. Initially crimes were not the concern of the crown but were private offences. Thus, robbery or theft was the sole concern of the victim, but starting the Anglo-Saxon period, in the 5th century AD, the King began to widen his interests and declared the inclusion of homicide as an offence against the Crown. Thus, by the time of King Edward I’s reign, in the late 13th to early 14th century, there was a established distinction between felonies and minor offences and later in the 16th century the addition of misdemeanors. Felonies were handled by the King’s justices. Trials were brought either by ‘appeal’ (private accusation by the injured party) for a trial by battle, a form that was gradually phased out, or public accusation, where a jury of neighbors under oath were made to answer questions regarding felonies happening in their neighborhood. Criminals were often brought to justice by people who had caught them in flagrante and rarely on mere suspicion. Trial by ordeal was employed in the 1200 but subsequently prohibited by 1215 as trial by petty jury became institutionalized. The introduction of evidence and witnesses were not allowed and the accused solely relied on his public reputation to acquit him (Brown 1989 100-102). IV Conclusions Modern law and modern legal system are distinguishable from the earlier primitive legal systems by the presence of certain structural elements. For Hart, this implies the presence of not only primary rules, or substantive and procedural laws, but secondary rules as well. For other authors, this means the establishment of a clear distinction between criminal and civil jurisdictions and between public and private laws. Certainly, such distinctions are but just the tip of the iceberg, but the beginnings of the criminal-civil and public-private dichotomies was the watershed that started off legal systems from previous primitive state to one of a mature and modern system. In the early civilizations, legal systems were simple and constituted merely of primary rules that enumerated what were considered violations, most of which revolved around property and family, and their prescribed punishments. Individuals brought their own cases and they were either judged by tribesmen or by the public. Eventually, rulers established court hierarchies, with the highest court staffed by the king’s men serving as the highest appellate bodies. There was gradual stratification of roles and functions and eventually, a clear distinction between criminal and civil jurisdictions, between private and public laws were established. This was the beginning of the modern legal system. Works Cited Brown, Alfred. The Governance of Late Medieval England, 1272-1461. California: Stanford University Press, 1989. Hage, Jaap & Pfordten, Dietmar. Concepts in Law. New York: Springer, 2009. Hunt, Norman Bancroft. Living in Ancient Rome. New York: Infobase Publishing, 2008. Mousourakis, George. The Historical And Institutional Context Of Roman Law Burlington: Ashgate Publishing, Ltd., 2003 Spielvogel, Jackson. Western Civilization: To 1715, 7th Edition. CA, Cengage Learning, 2008. Sutherland, Edwin & Cressey, Donald. Principles of Criminology, 11th Edn. England: Rowman & Littlefield, 1992. Trigger, Bruce. Understanding Early Civilizations: A Comparative Study. United Kingdom: Cambridge University Press, 2003. Williams, James. An Introduction to Classical Rhetoric: Essential Readings. UK: John Wiley and Sons, 2009. Read More