LEGAL HISTORY

'Legal history' or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history. Among certain jurists and historians of legal process it has been seen as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts, some consider it a branch of intellectual history. Twentieth century historians have viewed legal history in a more contextualized manner more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyze case histories from the parameters of social science inquiry, using statistical methods, analyzing class distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transaction costs, number of settled cases they have begun an analysis of legal institutions, practices, procedures and briefs that give us a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.

Contents

Law of the Ancients

Southern Asia

Eastern Asia

European history

Roman Empire

Middle ages

Modern European law

Footnotes

References

External links

Law of the Ancients

Main articles: Ma'at, Babylonian law, Ancient Greek law, Leviticus

Ancient Egyptian law, dating as far back as 3000BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality and impartiality.^[1] Around 1760 BC under King Hammurabi, ancient Babylonian law was codified and put in stone for the public to see in the marketplace. This became known as the Codex Hammurabi. But like Egyptian law, which is pieced together by historians from records of litigation, few sources remain and much has been lost through time. The influence of these earlier laws on later civilizations was small.^[2] The Torah from the Old Testament is probably the oldest body of law still relevant for modern legal systems, dating back to 1280BC. It takes the form of moral imperatives, like the Ten Commandments and the Noahide Laws, as recommendations for a good society. Ancient Athens, the small Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women and the slave class. Athens had no legal science, and Ancient Greek has no word for "law" as an abstract concept.^[3] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.^[4]

Southern Asia

Main articles: Manu Smriti, Arthashastra


Ancient India and China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The ''Arthashastra'', dating from the 400BC, and the ''Manusmriti'' from 100AD were influential treatises in India, texts that were considered authoritative legal guidance.^[5] Manu's central philosophy was tolerance and pluralism, and was cited across South East Asia.^[6] But this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.^[7] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law.

Eastern Asia

Main articles: Traditional Chinese law, Tang Code, Great Qing Legal Code

The eastern Asia legal tradition reflects a unique blend of secular and religious influences.^[8] Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French, but mostly the German Civil Code.^[9] This partly reflected Germany's status as a rising power in the late nineteenth century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law.^[10] Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek's nationalists, who fled there, and Mao Zedong's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by soviet Socialist law, which essentially inflates administrative law at the expense of private law rights.^[11] Today, however, because of rapid industrialisation China has been reforming, at least in terms of economic (if not social and political) rights. A new contract code in 1999 represented a turn away from administrative domination.^[12] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.^[13]

European history

Roman Empire

Main articles: Roman law

Roman law was heavily influenced by Greek teachings.^[14] It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire.^[15] Roman law, in the days of the Roman republic and Empire, was heavily procedural and there was no professional legal class.^[16] Instead a lay person, ''iudex'', was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.^[17] Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire, the Emperor Justinian codified and consolidated the laws that had existed in Rome so that what remained was one twentieth of the mass of legal texts from before.^[18] This became known as the ''Corpus Juris Civilis''. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before."^[19]

Middle ages

Main articles: Lex mercatoria

Roman law was lost through the Dark Ages, but in the eleventh century AD scholars in the University of Bologna rediscovered the texts and were the first to use them to interpret their own laws.^[20] Mediæval legal scholars began researching the Roman codes and using their concepts. In mediæval England, the King's powerful judges began to develop a body of precedent, which became the common law. But also, a Europe wide ''lex mercatoria'' was formed, so that merchants could trade using familiar standards, rather than the many splintered types of local law. A precursor to modern commercial law, the ''lex mercatoria'' emphasised the freedom of contract and alienability of property.^[21]

Modern European law

Main articles: Napoleonic code, Bürgerliches Gesetzbuch, English law

The two main traditions of modern European law are the codified legal systems of most of continental Europe, and the English tradition based on case law.
As nationalism grew in the 18th and 19th centuries, ''lex mercatoria'' was incorporated into countries' local law under new civil codes. The French Napoleonic Code and the German became the most influential. As opposed to English common law, which consists of massive tomes of case law, codes in small books are easy to export and for judges to apply. However, today there are signs that civil and common law are converging. European Union law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.

Footnotes

1.

★ VerSteeg, ''Law in ancient Egypt''
2. Glenn, ''Legal Traditions of the World'', 86
3. Kelly, ''A Short History of Western Legal Theory'', 5-6
4. Ober, ''The Nature of Athenian Democracy'', 121
5. Glenn, ''Legal Traditions of the World'', 255
6. Glenn, ''Legal Traditions of the World'', 276
7. Glenn, ''Legal Traditions of the World'', 273
8. Glenn, ''Legal Traditions of the World'', 287
9. Glenn, ''Legal Traditions of the World'', 304
10. Glenn, ''Legal Traditions of the World'', 305
11. Glenn, ''Legal Traditions of the World'', 307
12. Glenn, ''Legal Traditions of the World'', 309
13. Farah, ''Five Years of China WTO Membership'', 263-304
14. Kelly, ''A Short History of Western Legal Theory, 39
15. As a legal system, Roman law has affected the development of law in most of Western civilization as well as in parts of the Eastern world. It also forms the basis for the law codes of most countries of continental Europe ( ).
16. Gordley-von Mehren, ''Comparative Study of Private Law'', 18
17. Gordley-von Mehren, ''Comparative Study of Private Law'', 21
18. Stein, ''Roman Law in European History'', 32
19. Stein, ''Roman Law in European History'', 35
20. Stein, ''Roman Law in European History'', 43
21. Sealey-Hooley, ''Commercial Law'', 14

References

★ Five Years of China WTO Membership. EU and US Perspectives about China's Compliance with Transparency Commitments and the Transitional Review Mechanism, , Paolo, Farah, Legal Issues of Economic Integration, 2006

★ Legal Traditions of the World, , H. Patrick, Glenn, Oxford University Press, 2000,

★ Sadakat Kadri, ''The Trial: A History from Socrates to O.J. Simpson'', HarperCollins 2005. ISBN 0-00-711121-5

★ A Short History of Western Legal Theory, , J.M., Kelly, Oxford University Press, 1992,

★ An Introduction to the Comparative Study of Private Law, , James R., Gordley, , 2006,

★ Commercial Law, , L.S., Sealy, LexisNexis Butterworths, 2003,

★ Roman Law in European History, , Peter, Stein, Cambridge University Press, 1999,

External links

★ The Legal History Project (Resources and interviews)

★ Some legal history materials

★ The Schoyen Collection

★ The Roman Law Library by Yves Lassard and Alexandr Koptev.

★ Law & Justice in Australia - online collection from the State Library of NSW

★ Legal History: Evolution of Law

★ Centre for Legal History - Edinburgh Law School

★ Collection of Historical Statutory Material - Cornell Law Library