The Origin of Law.

[DKD]

I don’t expect a specific or definate answer to this question as there is little scope for conclusive evidence and few academic papers on the matter (interesting in itself).However, I would be interested and grateful for any ideas or links which could direct me towards any articles or books on the subject.

Where does law come from?

At what point in our ancient history did it become acceptable for the will of one to be asserted over the will of another? How was this justified? When and how did mere customs become binding on pain of punishment on all?

You get the idea.

I’ve a suspision that the origin of law was a brutal affair in every culture but cannot find anything to validate this belief.

As a law student I am aware of Natural Law theories and the (essentially) nonsense spouted by the likes of Rousseau and Rawls.

Help me out. My educational salvation depends upon it.

[bughunter]

The oldest code of law was the Code of Hammurabi. Someone else can surely describe this better than I, since my ancient history isn’t good enough to go into any more detail.

Well, other than to generalize and say “might makes right” and “he who has the gold makes the rules.” This was even the case in the Classical Greek democracies, because even then you had to be a wealthy landowner to be able to vote. During most of the rest of western history, the rulers claimed their authority to rule came from God, and this gave them the authority to impose their will on everyone else. Their word was God’s word, indirectly. And people bought it.

If you’re more curious as to the methods of law, rather than the motive, well I can try and dredge up those of my college history learnings that haven’t been displaced by radio call sign histories and the origin of words like ‘jeep.’

Before I launch into the rest of this, let me point you to the latest edition of the textbook (Norman Cantor’s History of the Middle Ages) I used in college (years ago), just to prove I’m not making it up.

Western core principles of law descend from the Germanic Tribes, and their tenets of justice. If you killed a man or stole property, or destroyed property, you owed the victims or their family for the loss - in the case of murder of a male, he was a provider, or a potential provider. His family could seek to take it out of your hide any way they wanted, even as far as demanding your own death. This settlement was typically arbitrated by the tribal elders or chieftan, depending on the political structure of the tribe, and using whatver principles of fairness the leaders held to. (Of course, this often wasn’t enough, and things frequently descended to outright blood feuds, especially when the victim and the offender were from different tribes.)

As the tribes settled Europe, got religion, and learned to write their laws down, and began to carve out kingdoms and empires and feudal hierarchies, they established more and more formality and balance to the proceedings, and became part of the authority of the throne. The influence of the Roman Empire greatly colored the procedures and the bureacracy, and there were often long stretches of despotism, but the fundamental principles survived essentialy intact to today.

My memory of history fails me more when it comes to the Roman Empire’s legal system, but iirc, guilt and innocence weren’t the exact concern of Roman Law as much as maintanence of the power and supremacy of the Caesar. They eventually developed rather convoluted bureaucracies of jurists and bodies of law. If you were important enough, and could tithe a sufficient amount to the court, you could literally get away with murder. If you could get a senator or someone of high status to speak on your behalf, that was generally enough to get you released unless your crime was especially heinous. Otherwise, you were guilty and nobody much cared if you had any proof of innocence. This is a really gross generalization - there was an entire body of literature surrounding the law, a lot of it describing how accusations could be made, which punishments suited which crimes and how punishment could be reduced by testimony and tithing. Most upper class males were expected to study law, but despite the bureacracy, it pretty much boiled down to guilty unless you could bribe the courts.

But we do borrow a lot of language and formality from the Romans, and the expectation that our leaders be competent in the law, and the general concept of law as a profession altogether. Latin is still the mother tongue of western law, and the formality and stilted behaviour we owe to the Romans as well.

I urge you to read Cantor’s book, cuz I probably misremembered one or two things, and forgot one or two others. The issue of law is only a small part of the book, but it is an interesting read all around. A little online research starting with the encyclopedias wouldn’t hurt, either.

[Wendell_Wagner]

Another good book is Imagining the Law: Common Law and the Foundations of the American Legal System, which is also by Cantor.

[Northern_Piper]

May it please the Court:

I would respectfully disagree with several of bughunter’s assertions.

Western core principles of law descend from the Germanic Tribes, and their tenets of justice.

This statement may be accurate for the origins of some of the basic concepts of the English common law, but it is not so for the civil law which evolved in the rest of Europe. The civil law system is much older than the common law, by about a thousand years, and is based primarily on Roman law, as it evolved through the Republic, the Roman (Western) Empire, and then the Byzantine (Eastern) Empire.

Most upper class males were expected to study law, but despite the bureacracy, it pretty much boiled down to guilty unless you could bribe the courts.

This strikes me as a gross generalisation, considering the stretch of time that the Roman Republic and Empire lasted. The commitment of the Romans to the rule of law varied tremendously over Rome’s ~800 years. I don’t think it’s possible to sum it up that way.

The influence of the Roman Empire greatly colored the procedures and the bureacracy

While this may have been true for the legal systems on the continent, I wouldn’t agree with respect to common law procedure in England. The English common law evolved its own procedure, with aspects unheard of in the civil law.

One of the hallmarks of the English common law procedure, for example, is the jury (grand, petty and civil), which had no counterpart in the classic civil system.

Another difference was the emphasis that the common law placed on viva voce testimony of witnesses, with a great deal of suspicion of documentary evidence unless vouched for by a witness, a suspicion that was not shared by the civil law.

This is not to deny that Roman civil law has influenced procedure in the common law, but not by a direct descent. Most of the civil law procedural influences came via the system of equity. The system of equity itself was another English invention, unheard of in the civil law, which did not have two separate systems of law co-existing. However, equity was influenced heavily by civil law, at one remove, via the canon law of the church. Many of equity’s procedures and remedies were superior to that of the common law, notably pre-trial discovery/depositions and the remedy of the injunction, and were eventually incorporated in the fusion of law and equity. Even so, it was not a direct influence from the civil law.

Another area of great differences between the English common law and the civil law is the matter of land law. The theory of English land law is heavily based, even today, on feudal concepts which evolved a millenium after the heyday of the Roman Empire, while modern European civil law governing land is based primarily on the classic approach of Roman law of property: usus, fructus and *abusus.*There are differences in both substance and procedure. For example, at common law, upon death, the deceased’s land automatically passed to the heir-at-law, without probate being necessary, while probate was normally necessary for chattel property. (This position has been subsequently modified by statute in most common law jurisdictions.) Civilians would find that bifurcation bizarre.

the general concept of law as a profession altogether.

I would argue that our concept of the lawyer as a profession owes more to the Inns of Court in England than to the Roman system. Cicero, for example, was a lawyer, one of the most famous of the Republic, but that didn’t mean that he was a professional who earned his living from the law. He was a gentleman and a citizen who was skilled in the law.

Latin is still the mother tongue of western law, and the formality and stilted behaviour we owe to the Romans as well.

The common law evolved in a mixture of three languages: English, French and Latin, as a perusal of the volumes of the Selden Society show. There is no doubt that Latin was important, but I would say that French was more of the “mother tongue” of the common law. The requirement that pleadings be in French wasn’t abandoned in England until the Civil War of the mid-17th century, and not formally abolished until a statute of King George II’s time: *Act that all Proceedings in Courts of Justice within that Part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language,*4 Geo. II, chap. 26 (U.K.). “Voir dire,” “jury,” “judge,” “law” - all entered English through the Norman French (although of course the French in turn had picked up many of these terms from the Latin).

*stilted?? formality??*you must be thinking of some other profession.

All of which is respectfully submitted.