1.2 - Early Legal History

In the beginning...

Laws evolve.  As society changes, laws change to reflect what’s important to citizens.  While studying law, it is important to have some understanding of the history of law, and how current laws have been shaped by what has happened in history.  However, how can one determine which historical influences have shaped Canada’s legal system?  The answer to this question is twofold.  First, one can look at which societies had direct or indirect influences on Canada’s development.  Second, one can also look at specific elements of Canada’s legal system and trace back their origins.  The following discussion combines both approaches.

Middle East - Early Legal Codes

Ancient civilizations in the Middle East were among the first to develop and codify legal systems for their societies.  To codify laws means to record and arrange them into some type of structure.  Two important examples of early codified legal systems are found in the Code of Hammurabi and in Mosaic law.

The Code of Hammurabi

The first major item to be discussed in the development of law is the Code of Hammurabi.  The Code of Hammurabi is one of the earliest sets of recorded laws. It was written by Hammurabi, King of Babylon, around 1750 BCE (that’s over 3800 years ago!) in the area of modern day Iraq.  The Code of Hammurabi contains about 300 easy to understand laws relating to numerous areas of Babylonian society, including:  family, criminal, labor, property, trade, and business.

The laws contained in the Code reflected the patriarchal (male-dominated) society at the time.  For example, the Code outlined a hierarchy of power in this order:  gods were first, then the King, then male nobles, then wives and children of nobles, then the poor, and finally slaves.  The Code also included more legal protection for the wealthy than the poor, slavery was legal, and women and children were considered to be property of men.

Many of the laws within the Code of Hammurabi are considered to be quite harsh.  Here are a few examples:

• if one is committing a robbery and is caught, then he shall be put to death

• if a son strikes his father, his hands shall be hewn off

• if a man put out the eye of another man, his eye shall be put out

The harsh tone of the Code can also be seen in the suggested penalties.  That is, most of the laws in the Code emphasized retribution instead of restitution.  Retribution is a criminal sentence focused on punishing the guilty person for committing the act.  Restitution, on the other hand, is a criminal sentence focused on restoring or paying back the victim of the crime or society itself.

Mosaic Law

The second major item in early law is Mosaic Law.  Mosaic law is the law given to the Hebrew people during the 1500s BCE, and is found in the first five books of the Old Testament part of the Bible.  Mosaic law is also called The Torah, and its contents can be summarized in the Ten Commandments listed below:

1. You shall have no other gods before me

2. You shall not make idols

3. You shall not take the name of the LORD your God in vain

4. Remember the Sabbath day to keep it holy

5. Honour your father and your mother

6. You shall not murder

7. You shall not commit adultery

8. You shall not steal

9. You shall not bear false witness against your neighbour

10. You shall not covet

Although Mosaic law and the Code of Hammurabi had many similar laws, there are also a few key differences between them.  One such difference is that punishments in Mosaic law tended to lean more towards restitution, instead of retribution.  Another difference is that Mosaic law is more concerned with punishing deliberate acts, instead of accidents.  Finally, a person’s status didn’t matter as much in Mosaic law, and there was more concern given to poor people.

Europe/Mediterranean - Greek Law

The third major development in early legal history came from Greece.  Early Greek civilization influenced modern society in a variety of ways.  However, with respect to the law, early Greeks made one major contribution:  the jury.  A jury is a group of people that hears a legal case, determines guilt/innocence, and sometimes even pronounces a sentence.  It was the Greeks who first included a working democracy into their society, allowing “citizens” to vote.  This voting carried over into legal proceedings, where they were the first to use juries to decide cases and sentences.  Juries in ancient Greece were huge, having anywhere from 201 to 1001 members.  Juries are still a vital component of our legal system, although modern juries are significantly smaller.

Europe/Mediterranean - Roman Law

The fourth major development in early law is derived from ancient Roman civilization.  Early Roman law was divided into different types based on the class of citizen that it represented.

The first legal code found in Roman law that applied to lower class citizens (called plebeians) is called the Twelve Tables.  Codified around 450 BCE, this formed the basis of law in the Roman empire for hundreds of years.  The laws found here promoted the concept of public prosecution (still the case today).  This praetor system allowed a plaintiff (person who alleges harm done to them by defendant) to argue their case against a defendant (person alleged to have caused harm to plaintiff) in front of a praetor (Roman magistrate - judge).  Although Roman law could be seen to be evolving in the direction of more fairness and equity, it was still founded on principles of a patriarchal society.

As Roman society grew and became more complex, so did its body of recorded laws.  More and more laws were added and interpreted.  Eventually, it started to become increasingly difficult for the average Roman citizen to understand and engage in any legal proceedings.  This led to citizens being permitted to have experts help them.  One type of expert were skilled public speakers who could speak in court on behalf of a plaintiff or defendant.  Another type of expert were experts in the law, and are considered to be the first ‘lawyers’.

The final major legal contribution from ancient Rome came about near the end of the Roman Empire.  This contribution originated from Emperor Justinian I.  He ordered that all Roman laws, legal decisions, and legal opinions be edited and compiled into one reference set.  He thought that this was necessary because legal decisions in different parts of the empire were not consistent.  Justinian’s Code was completed around 529 CE, and formed the basis of civil and criminal law for much of Europe for several centuries.  Further, because of how Justinian’s Code emphasized equity (laws should be fair and just - all people should be treated equally under the law), the word justice is derived from Emperor Justinian I’s name.

Summary of Early Legal History

Historical events far away from Canada and occurring thousands of years ago have some influence on the development of Canada’s legal system.  These influences include those from the ancient Middle East, ancient Greece, and the Roman Empire.