Legal history
Encyclopedia
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 historian
s 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 code
s can achieve.
ian law, dating as far back as 3000 BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetoric
al speech, social equality and impartiality. By the 22nd century BC
, Ur-Nammu
, an ancient Sumer
ian ruler, formulated the first law code
, consisting of casuistic statements ("if... then..."). Around 1760 BC, King Hammurabi
further developed Babylonian law
, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi
. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, German and French. The Torah
from the Old Testament
is probably the oldest body of law still relevant for modern legal systems, dating back to 1280 BC. 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, retaining instead the distinction between divine law (thémis), human decree (nomos) and custom (díkē). Yet Ancient Greek law
contained major constitutional
innovations in the development of democracy
.
Ancient India and China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The Arthashastra
, dating from the 400 BC, and the Manusmriti from 100 AD were influential treatises in India, texts that were considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism, and was cited across South East Asia. But this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire
. Malaysia, Brunei, Singapore
and Hong Kong also adopted the common law.
gave way to westernization 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. 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. Today, however, because of rapid industrialization 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. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization
.
and jurisprudence
. A number of important legal institution
s were developed by Islamic jurists
during the classical period of Islamic law
and jurisprudence
, One such institution was the Hawala
, an early informal value transfer system
, which is mentioned in texts of Islamic jurisprudence
as early as the 8th century. Hawala itself later influenced the development of the Aval
in French civil law and the Avallo in Italian law.
was heavily influenced by Greek teachings. It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire
. Roman law, in the days of the Roman republic
and Empire
, was heavily procedural and there was no professional legal class. Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised. 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. 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."
During the Byzantine Empire
the Justinian Code was expanded and remained in force until the Empire fell, though it was never officially introduced to the West. Instead, following the fall of the Western Empire and in former Roman countries, the ruling classes relied on the Theodosian Code to govern natives and Germanic customary
law for the Germanic incomers - a system known as folk-right - until the two laws blended together. Since the Roman court system had broken down, legal disputes were adjudicated according to Germanic custom by assemblies of learned lawspeaker
s in rigid ceremonies and in oral proceedings that relied heavily on testimony
. After much of the West was consolidated under Charlemagne
, law became centralised so as to strengthen the royal court system, and consequently case law
, and abolished folk-right. However, once Charlemagne's kingdom difinitively splintered, Europe became feudalistic, and law was generally not governed above the county, municipal or lordship level, thereby creating a highly decentralised legal culture that favored the development of customary law founded on localized case law. However, in the 11th century, Crusaders, having pillaged the Byzantine Empire, returned with Byzantine legal texts including the Justinian Code, and scholars at the University of Bologna
were the first to use them to interpret their own customary laws. Mediæval European legal scholars began researching the Roman law
and using its concepts and prepared the way for the partial resurrection of Roman law as the modern civil law
in a large part of the world. There was, however, a great deal of resistance so that civil law rivaled customary law for much of the latter mediæval period. After the Norman conquest of England
, which introduced Norman
legal concepts into mediæval England, the English King's powerful judges developed a body of precedent
that became the common law
. In particular, Henry II instituted legal reforms and developed a system of royal courts administered by a small number of judges who lived in Westminster
and traveled throughout the kingdom. Henry II also instituted the Assize of Clarendon
in 1166, which allowed for jury trials and reduced the number of trials by combat
. Louis IX
of France also undertook major legal reforms and, inspired by ecclesiastical court
procedure, extended Canon-law evidence and inquisitorial-trial
systems to the royal courts. Also, judges no longer moved on circuits becoming fixed to their jurisdictions, and jurors were nominated by parties to the legal dispute rather than by the sheriff. In addition, by the 10th century, the Law Merchant
, first founded on Scandinavian trade customs, then solidified by the Hanseatic League
, took shape so that merchants could trade using familiar standards, rather than the many splintered types of local law. A precursor to modern commercial law, the Law Merchant emphasised the freedom of contract and alienability of property.
As nationalism
grew in the 18th and 19th centuries, lex mercatoria was incorporated into countries' local law under new civil codes. Of these, the French Napoleonic Code
and the German Bürgerliches Gesetzbuch
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
sat down by the European Court of Justice
.
developed primarily out of the English common law system (with the exception of the state of Louisiana
, which continued to follow the French civilian system
after being admitted to statehood). Some concepts from Spanish law
, such as the prior appropriation doctrine and community property
, still persist in some U.S. states, particularly those that were part of the Mexican Cession
in 1848.
Under the doctrine of federalism, each state has its own separate court system, and the ability to legislate within areas not reserved to the federal government
.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
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
Social history
Social history, often called the new social history, is a branch of History that includes history of ordinary people and their strategies of coping with life. In its "golden age" it was a major growth field in the 1960s and 1970s among scholars, and still is well represented in history departments...
. 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
Intellectual history
Note: this article concerns the discipline of intellectual history, and not its object, the whole span of human thought since the invention of writing. For clarifications about the latter topic, please consult the writings of the intellectual historians listed here and entries on individual...
. Twentieth century historian
Historian
A historian is a person who studies and writes about the past and is regarded as an authority on it. Historians are concerned with the continuous, methodical narrative and research of past events as relating to the human race; as well as the study of all history in time. If the individual is...
s have viewed legal history in a more contextualized manner more in line with the thinking of social historians
Social history
Social history, often called the new social history, is a branch of History that includes history of ordinary people and their strategies of coping with life. In its "golden age" it was a major growth field in the 1960s and 1970s among scholars, and still is well represented in history departments...
. 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
Civil society
Civil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
. 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
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
than the study of jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
and civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
s can achieve.
Ancient world
Ancient EgyptAncient Egypt
Ancient Egypt was an ancient civilization of Northeastern Africa, concentrated along the lower reaches of the Nile River in what is now the modern country of Egypt. Egyptian civilization coalesced around 3150 BC with the political unification of Upper and Lower Egypt under the first pharaoh...
ian law, dating as far back as 3000 BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetoric
Rhetoric
Rhetoric is the art of discourse, an art that aims to improve the facility of speakers or writers who attempt to inform, persuade, or motivate particular audiences in specific situations. As a subject of formal study and a productive civic practice, rhetoric has played a central role in the Western...
al speech, social equality and impartiality. By the 22nd century BC
22nd century BC
The 22nd century BC is a century which lasted from the year 2200 BC to 2101 BC.-Events:right|thumb|170px|The [[deluge |Deluge]] tablet of the [[Gilgamesh epic]] in [[Akkadian language|Akkadian]]...
, Ur-Nammu
Ur-Nammu
Ur-Nammu founded the Sumerian 3rd dynasty of Ur, in southern Mesopotamia, following several centuries of Akkadian and Gutian rule...
, an ancient Sumer
Sumer
Sumer was a civilization and historical region in southern Mesopotamia, modern Iraq during the Chalcolithic and Early Bronze Age....
ian ruler, formulated the first law code
Code of Ur-Nammu
The Code of Ur-Nammu is the oldest known tablet containing a law code surviving today. It was written in the Sumerian language circa 2100 BC-2050 BC...
, consisting of casuistic statements ("if... then..."). Around 1760 BC, King Hammurabi
Hammurabi
Hammurabi Hammurabi Hammurabi (Akkadian from Amorite ʻAmmurāpi, "the kinsman is a healer", from ʻAmmu, "paternal kinsman", and Rāpi, "healer"; (died c...
further developed Babylonian law
Babylonian law
Archaeological material for the study of Babylonian law is singularly extensive. So-called "contracts" exist in the thousands, including a great variety of deeds, conveyances, bonds, receipts, accounts, and most important of all, actual legal decisions given by the judges in the law courts...
, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi
Code of Hammurabi
The Code of Hammurabi is a well-preserved Babylonian law code, dating to ca. 1780 BC . It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a human-sized stone stele and various clay...
. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, German and French. The Torah
Torah
Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five books of the bible—Genesis , Exodus , Leviticus , Numbers and Deuteronomy Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five...
from the Old Testament
Old Testament
The Old Testament, of which Christians hold different views, is a Christian term for the religious writings of ancient Israel held sacred and inspired by Christians which overlaps with the 24-book canon of the Masoretic Text of Judaism...
is probably the oldest body of law still relevant for modern legal systems, dating back to 1280 BC. It takes the form of moral imperatives, like the Ten Commandments
Ten Commandments
The Ten Commandments, also known as the Decalogue , are a set of biblical principles relating to ethics and worship, which play a fundamental role in Judaism and most forms of Christianity. They include instructions to worship only God and to keep the Sabbath, and prohibitions against idolatry,...
and the Noahide Laws
Noahide Laws
The Seven Laws of Noah form the major part of the Noachide Laws, or Noahide Code. This code is a set of moral imperatives that, according to the Talmud, were given by God as a binding set of laws for the "children of Noah" – that is, all of humankind...
, as recommendations for a good society. Ancient Athens, the small Greek
Ancient Greece
Ancient Greece is a civilization belonging to a period of Greek history that lasted from the Archaic period of the 8th to 6th centuries BC to the end of antiquity. Immediately following this period was the beginning of the Early Middle Ages and the Byzantine era. Included in Ancient Greece is the...
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, retaining instead the distinction between divine law (thémis), human decree (nomos) and custom (díkē). Yet Ancient Greek law
Ancient Greek law
Ancient Greek law is a branch of comparative jurisprudence relating to the laws and legal institutions of Ancient Greece.Greek law has been partially compared with Roman law, and has been incidentally illustrated with the aid of the primitive institutions of the Germanic nations...
contained major constitutional
Constitution of the Athenians
The Constitution of the Athenians is the name of either of two texts from Classical antiquity, one probably by Aristotle or a student of his, the other attributed to Xenophon, but not by him....
innovations in the development of democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
.
Southern Asia
Arthashastra
The Arthashastra is an ancient Indian treatise on statecraft, economic policy and military strategy which identifies its author by the names Kautilya and , who are traditionally identified with The Arthashastra (IAST: Arthaśāstra) is an ancient Indian treatise on statecraft, economic policy and...
, dating from the 400 BC, and the Manusmriti from 100 AD were influential treatises in India, texts that were considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism, and was cited across South East Asia. But this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
. Malaysia, Brunei, Singapore
Law of Singapore
The legal system of Singapore is based on the English common law system. Major areas of law – particularly administrative law, contract law, equity and trust law, property law and tort law – are largely judge-made, though certain aspects have now been modified to some extent by statutes...
and Hong Kong also adopted the common law.
Eastern Asia
The eastern Asia legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernizing its legal system along western lines, by importing bits of the French, but mostly the German Civil Code. This partly reflected Germany's status as a rising power in the late nineteenth century. Similarly, traditional Chinese lawTraditional Chinese law
Traditional Chinese law refers to the laws, regulations and rules used in China up to 1911, when the last imperial dynasty fell. It has undergone continuous development since at least the 11th century BC...
gave way to westernization towards the final years of the Ch'ing dynasty
Qing Dynasty
The Qing Dynasty was the last dynasty of China, ruling from 1644 to 1912 with a brief, abortive restoration in 1917. It was preceded by the Ming Dynasty and followed by the Republic of China....
in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek
Chiang Kai-shek
Chiang Kai-shek was a political and military leader of 20th century China. He is known as Jiǎng Jièshí or Jiǎng Zhōngzhèng in Mandarin....
's nationalists, who fled there, and Mao Zedong
Mao Zedong
Mao Zedong, also transliterated as Mao Tse-tung , and commonly referred to as Chairman Mao , was a Chinese Communist revolutionary, guerrilla warfare strategist, Marxist political philosopher, and leader of the Chinese Revolution...
's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
was heavily influenced by soviet Socialist law
Socialist law
Socialist law denotes a general type of legal system which has been used in communist and formerly communist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology. There is controversy as to whether socialist law ever constituted a...
, which essentially inflates administrative law at the expense of private law rights. Today, however, because of rapid industrialization 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. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
.
- YassaYassaYassa was a secret written code of law created by Genghis Khan. It was the principal law under the Mongol Empire even though no copies were made available...
of the Mongol EmpireMongol EmpireThe Mongol Empire , initially named as Greater Mongol State was a great empire during the 13th and 14th centuries...
Islamic law
One of the major legal systems developed during the Middle Ages was Islamic lawSharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
and jurisprudence
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....
. A number of important legal institution
Institution
An institution is any structure or mechanism of social order and cooperation governing the behavior of a set of individuals within a given human community...
s were developed by Islamic jurists
Ulema
Ulama , also spelt ulema, refers to the educated class of Muslim legal scholars engaged in the several fields of Islamic studies. They are best known as the arbiters of shari‘a law...
during the classical period of Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
and jurisprudence
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....
, One such institution was the Hawala
Hawala
Hawala is an informal value transfer system based on the performance and honor of a huge network of money brokers, which are primarily located in the Middle East, North Africa, the Horn of Africa, and South Asia...
, an early informal value transfer system
Informal value transfer system
An informal value transfer system refers to any system, mechanism, or network of people that receives money for the purpose of making the funds or an equivalent value payable to a third party in another geographic location, whether or not in the same form...
, which is mentioned in texts of Islamic jurisprudence
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....
as early as the 8th century. Hawala itself later influenced the development of the Aval
Aval
Aval , in Spain, is a joint commitment to payment of an obligation in favor of the creditor or beneficiary. It is granted by a third party, in case the principal debtor does not fulfil the obligation of payment of a credit title....
in French civil law and the Avallo in Italian law.
Roman Empire
Roman lawRoman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
was heavily influenced by Greek teachings. It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire
Roman Empire
The Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....
. Roman law, in the days of the Roman republic
Roman Republic
The Roman Republic was the period of the ancient Roman civilization where the government operated as a republic. It began with the overthrow of the Roman monarchy, traditionally dated around 508 BC, and its replacement by a government headed by two consuls, elected annually by the citizens and...
and Empire
Roman Empire
The Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....
, was heavily procedural and there was no professional legal class. Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised. 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. This became known as the Corpus Juris Civilis
Corpus Juris Civilis
The Corpus Juris Civilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor...
. 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."
Middle Ages
Byzantine Empire
The Byzantine Empire was the Eastern Roman Empire during the periods of Late Antiquity and the Middle Ages, centred on the capital of Constantinople. Known simply as the Roman Empire or Romania to its inhabitants and neighbours, the Empire was the direct continuation of the Ancient Roman State...
the Justinian Code was expanded and remained in force until the Empire fell, though it was never officially introduced to the West. Instead, following the fall of the Western Empire and in former Roman countries, the ruling classes relied on the Theodosian Code to govern natives and Germanic customary
Custom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
law for the Germanic incomers - a system known as folk-right - until the two laws blended together. Since the Roman court system had broken down, legal disputes were adjudicated according to Germanic custom by assemblies of learned lawspeaker
Lawspeaker
A lawspeaker is a unique Scandinavian legal office. It has its basis in a common Germanic oral tradition, where wise men were asked to recite the law, but it was only in Scandinavia that the function evolved into an office...
s in rigid ceremonies and in oral proceedings that relied heavily on testimony
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
. After much of the West was consolidated under Charlemagne
Charlemagne
Charlemagne was King of the Franks from 768 and Emperor of the Romans from 800 to his death in 814. He expanded the Frankish kingdom into an empire that incorporated much of Western and Central Europe. During his reign, he conquered Italy and was crowned by Pope Leo III on 25 December 800...
, law became centralised so as to strengthen the royal court system, and consequently case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, and abolished folk-right. However, once Charlemagne's kingdom difinitively splintered, Europe became feudalistic, and law was generally not governed above the county, municipal or lordship level, thereby creating a highly decentralised legal culture that favored the development of customary law founded on localized case law. However, in the 11th century, Crusaders, having pillaged the Byzantine Empire, returned with Byzantine legal texts including the Justinian Code, and scholars at the University of Bologna
University of Bologna
The Alma Mater Studiorum - University of Bologna is the oldest continually operating university in the world, the word 'universitas' being first used by this institution at its foundation. The true date of its founding is uncertain, but believed by most accounts to have been 1088...
were the first to use them to interpret their own customary laws. Mediæval European legal scholars began researching the Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
and using its concepts and prepared the way for the partial resurrection of Roman law as the modern civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
in a large part of the world. There was, however, a great deal of resistance so that civil law rivaled customary law for much of the latter mediæval period. After the Norman conquest of England
Norman conquest of England
The Norman conquest of England began on 28 September 1066 with the invasion of England by William, Duke of Normandy. William became known as William the Conqueror after his victory at the Battle of Hastings on 14 October 1066, defeating King Harold II of England...
, which introduced Norman
Norman law
Norman law refers to the customary law of Normandy which developed between the 10th and 13th centuries following the establishment of the Vikings there and which survives today still through the legal systems of Jersey and Guernsey in the Channel Islands....
legal concepts into mediæval England, the English King's powerful judges developed a body of precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
that became the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. In particular, Henry II instituted legal reforms and developed a system of royal courts administered by a small number of judges who lived in Westminster
Westminster
Westminster is an area of central London, within the City of Westminster, England. It lies on the north bank of the River Thames, southwest of the City of London and southwest of Charing Cross...
and traveled throughout the kingdom. Henry II also instituted the Assize of Clarendon
Assize of Clarendon
The Assize of Clarendon was an 1166 act of Henry II of England that began the transformation of English law from such systems for deciding the prevailing party in a case as trial by ordeal or trial by battle to an evidentiary model, in which evidence and inspection was made by laymen...
in 1166, which allowed for jury trials and reduced the number of trials by combat
Trial by combat
Trial by combat was a method of Germanic law to settle accusations in the absence of witnesses or a confession, in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it is a judicially sanctioned duel...
. Louis IX
Louis IX
Louis IX may refer to:* Louis IX of France .* Louis IX, Duke of Bavaria "the Rich" * Louis IX, Landgrave of Hesse-Darmstadt ....
of France also undertook major legal reforms and, inspired by ecclesiastical court
Ecclesiastical court
An ecclesiastical court is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages in many areas of Europe these courts had much wider powers than before the development of nation states...
procedure, extended Canon-law evidence and inquisitorial-trial
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...
systems to the royal courts. Also, judges no longer moved on circuits becoming fixed to their jurisdictions, and jurors were nominated by parties to the legal dispute rather than by the sheriff. In addition, by the 10th century, the Law Merchant
Lex mercatoria
Lex mercatoria is the body of commercial law used by merchants throughout Europe during the medieval period. It evolved similar to English common law as a system of custom and best practice, which was enforced through a system of merchant courts along the main trade routes. It functioned as the...
, first founded on Scandinavian trade customs, then solidified by the Hanseatic League
Hanseatic League
The Hanseatic League was an economic alliance of trading cities and their merchant guilds that dominated trade along the coast of Northern Europe...
, took shape so that merchants could trade using familiar standards, rather than the many splintered types of local law. A precursor to modern commercial law, the Law Merchant emphasised the freedom of contract and alienability of property.
Modern European 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
Nationalism
Nationalism is a political ideology that involves a strong identification of a group of individuals with a political entity defined in national terms, i.e. a nation. In the 'modernist' image of the nation, it is nationalism that creates national identity. There are various definitions for what...
grew in the 18th and 19th centuries, lex mercatoria was incorporated into countries' local law under new civil codes. Of these, the French Napoleonic Code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
and the German Bürgerliches Gesetzbuch
Bürgerliches Gesetzbuch
The Bürgerliches Gesetzbuch is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project....
became the most influential. As opposed to English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, 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
European Union law
European Union law is a body of treaties and legislation, such as Regulations and Directives, which have direct effect or indirect effect on the laws of European Union member states. The three sources of European Union law are primary law, secondary law and supplementary law...
is codified in treaties, but develops through the precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
sat down by the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
.
United States
The United States legal systemLaw of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
developed primarily out of the English common law system (with the exception of the state of Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, which continued to follow the French civilian system
Louisiana law
Law in the State of Louisiana is based in part on civil law. Louisiana is unique among the 50 U.S. states in having a legal system partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law...
after being admitted to statehood). Some concepts from Spanish law
Law of Spain
The Law of Spain is the term used to describe the legislation which is in force in the Kingdom of Spain, which is understood to mean Spanish territory, Spanish waters, consulates and embassies, and ships flying the Spanish flag in international waters. It is also applicable to the Spanish armed...
, such as the prior appropriation doctrine and community property
Community property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions...
, still persist in some U.S. states, particularly those that were part of the Mexican Cession
Mexican Cession
The Mexican Cession of 1848 is a historical name in the United States for the region of the present day southwestern United States that Mexico ceded to the U.S...
in 1848.
Under the doctrine of federalism, each state has its own separate court system, and the ability to legislate within areas not reserved to the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
.
See also
- Association of Young Legal Historians (AYLH)Association of Young Legal Historians (AYLH)The Association of Young Legal Historians was founded by 56 young legal historians from over 20 nations in Seville on 8 September 2007. Its main purposes are the organisation of the annual conference "European Forum of Young Legal Historians", the publication of the "Yearbook of Young Legal...
- Constitution of the Roman RepublicConstitution of the Roman RepublicThe Constitution of the Roman Republic was a set of guidelines and principles passed down mainly through precedent. The constitution was largely unwritten, uncodified, and constantly evolving...
Further reading
- The Oxford international encyclopedia of legal history, Oxford University Press, 2009
- Potz, Richard: Islam and Islamic Law in European Legal History, European History OnlineEuropean History OnlineEuropean History Online is an academic website that publishes articles on the history of Europe between the period of 1450 and 1950 according to the principle of open access. EGO is issued by the Institute of European History in Mainz in cooperation with the Center for Digital Humanities in Trier ...
, Mainz: Institute of European History, 2011, retrieved: November 28, 2011.
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
- CHD Centre for Legal History - Faculty of Law, University of Rennes 1
- Centre for Legal History - Edinburgh Law School
- The European Society for History of Law
- Collection of Historical Statutory Material - Cornell Law Library
- Historical Laws of Hong Kong Online - University of Hong Kong Libraries, Digital Initiatives
- Basic Law Drafting History Online -University of Hong Kong Libraries, Digital Initiatives
- Alan Watson Foundation- A Group of Scholars Dedicated to the Promotion of Legal History and Comparative Law
- Senn, Marcel / Fenner, Timo / Räber, Boris /Brüngger, Thomas / Frick, Georges / Johnson, Chris Chronicle of the European history of law" http://www.rwi.uzh.ch/lehreforschung/alphabetisch/senn/lehre-1/Zeittafel.html, Zurich 2009 (German)exlusivly available