Roman Law. Justinian Code. The Dark Ages 9/9/2012

Transcription

1 Roman Law This was the legal system that began in early Rome (451 B.C.E.), and was the basis of Law for Western Europe, except England. As the Roman Empire grew, laws became more complex and the profession of lawyers was created to study legal matters. Justinian Code Roman Law was codified by the Byzantine Emperor Justinian ( C.E.) and this became the Justinian Code (this is where the word Justice comes from). Justinian also included his own laws, and together the code emphasized the principle of equity (the ideal, quality, or fact of being fair, just, and impartial, and that all people are equal under the law, not just the rich and powerful). The Dark Ages Followed the fall of Rome Thinking was dominated by superstition Introduction of the wergild (fine or monetary compensation) Trial by Ordeal (if you survived some nasty punishment, you were innocent, because God or the Gods were on your side) Trial by Combat Use of Oath-helpers (character witnesses) 1

2 Trial by Combat also called "wager of battle" chiefly used in disputes between parties (which would now be known as "civil litigation ) the litigants would represent themselves (is this good?) but women, children (minors), the elderly, and the infirm could have a champion represent them replaced by lawyers and juries Napoleon Bonaparte After the French Revolution (1804) Revised French law and created the Napoleonic Code Also known as the French Civil Code Based on Roman Law and the Justinian Code Code became the law of much of Europe as a result of wars French Civil Code was brought to Quebec by immigrants to Canada and remains the basis of the law in that province today Civil Law? When we refer to Civil Law in Canada, we might be referring to the law in the Province of Quebec (as opposed to common law described later) or to private law in general, as opposed to public law 2

3 Origins of Common Law English law was not codified or written down until quite late in England s history much has still not been written down Feudal system formed the basis of our modern property laws (feudalism = a political, social, and economic system prevalent in Europe and England between the 9 th and 15 th centuries; based on the relationship between lord and servant) Feudal system caused many injustices because individual lords made the decisions in legal matters in their own areas, and they could be easily bribed. Origins of Common Law Pre-1066 in England Shire (county) Hundreds (groups of 100 families) Tithings (groups of 10 families) dealt with everyday issues Serious cases were heard by groups of landlords or noblemen Ecclesiastical courts deal with spiritual matters Norman Conquest William the Conqueror, 1066 (quick, this is the date of the Battle of?) Initiated replacement of local tribunals with itinerant royal administrators (travelling justices) Citizens would report about offences under oath Decisions were based on past practice (stare decisis) 3

4 Henry II ( ) Used circuit judges who heard cases previously decided locally Used juries (groups of landholders who decided facts, gave evidence, investigated crimes) Gradually added Royal (Crown) prosecutors Few rules, few rights for the accused inequities of judgments in feudal system resulted in the appointment of travelling judges who gave uniformity to decisions people began to know what the outcome of different legal disputes (civil and criminal) would be this became common to the whole of England also called Judge-made law because it is made by judges Applied throughout the land Circuit judges shared decisions with each other (oral tradition) Later, written cases were added These became a fixed body of rules and principles Common law = judge-made law = case law = precedent = stare decisis 4

5 Introduced to Canada by English colonists Based on the principle of precedent (something that has been done that later serves as an example or rule for how other things should be done) Precedent brings certainty to the law Precedent became case law as decisions were recorded and published today this happens for almost all court levels (and tribunals) and is often recorded either by court or by legal topic A citation is the title given to each recorded case The most significant meaning is that it is based on judges trial decisions, precedent, and reported case law Distinct from statute law made by governments Serves as a major part of Canadian law today 5