Legal history

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Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilisations [1] and operates in the wider context of social history. Certain jurists and historians of legal process have seen legal history 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 legal history a branch of intellectual history. Twentieth-century historians viewed legal history in a more contextualised manner - more in line with the thinking of social historians. [2] 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 analyse case histories from the parameters of social-science inquiry, using statistical methods, analysing class distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transaction costs, and numbers of settled cases, they have begun an analysis of legal institutions, practices, procedures and briefs that gives a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve. [3]


Ancient world

Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept of Ma'at, and was characterised by tradition, rhetorical speech, social equality and impartiality. [4] By the 22nd century BC, Ur-Nammu, an ancient Sumerian ruler, formulated the first extant 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. Ancient Greek has no single word for "law" as an abstract concept, [5] retaining instead the distinction between divine law (thémis), human decree (nomos) and custom (díkē). [6] Yet Ancient Greek law contained major constitutional innovations in the development of democracy. [7]

Southern Asia

The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words Constitution of India.jpg
The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words

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 BCE [8] were influential treatises in India, texts that were considered authoritative legal guidance. [9] Manu's central philosophy was tolerance and pluralism, and was cited across South East Asia. [10] During the Muslim conquests in the Indian subcontinent, sharia was established by the Muslim sultanates and empires, most notably Mughal Empire's Fatawa-e-Alamgiri, compiled by emperor Aurangzeb and various scholars of Islam. [11] [12] After British colonialism, Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. [13] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law.

Eastern Asia

The eastern Asia legal tradition reflects a unique blend of secular and religious influences. [14] 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. [15] 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 Qing dynasty in the form of six private law codes based mainly on the Japanese model of German law. [16] 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. [17] 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. [18] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization. [19]

Canon law

The legal history of the Catholic Church is the history of Catholic canon law, the oldest continuously functioning legal system in the West. [20] [21] Canon law originates much later than Roman law but predates the evolution of modern European civil law traditions. The cultural exchange between the secular (Roman/Barbarian) and ecclesiastical (canon) law produced the jus commune and greatly influenced both civil and common law.

The history of Latin canon law can be divided into four periods: the jus antiquum, the jus novum, the jus novissimum and the Code of Canon Law. [22] In relation to the Code, history can be divided into the jus vetus (all law before the Code) and the jus novum (the law of the Code, or jus codicis). [22] Eastern canon law developed separately.

In the twentieth century, canon law was comprehensively codified. On 27 May 1917, Pope Benedict XV codified the 1917 Code of Canon Law.

John XXIII, together with his intention to call the Second Vatican Council, announced his intention to reform canon law, which culminated in the 1983 Code of Canon Law, promulgated by John Paul II on 25 January 1983. John Paul II also brought to a close the long process of codifying the Eastern Catholic canon law common to all 23 sui juris Eastern Catholic Churches on 18 October 1990 by promulgating the Code of Canons of the Eastern Churches.

Islamic law

One of the major legal systems developed during the Middle Ages was Islamic law and jurisprudence. A number of important legal institutions 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. [23]

European laws

Roman Empire

Roman law was heavily influenced by Greek teachings. [24] It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire. [25] Roman law, in the days of the Roman republic and Empire, was heavily procedural and there was no professional legal class. [26] Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised. [27] 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. [28] 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." [29]

Middle Ages

King John of England signs the Magna Carta Joao sem terra assina carta Magna.jpg
King John of England signs the Magna Carta

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 lawspeakers in rigid ceremonies and in oral proceedings that relied heavily on testimony.

After much of the West was consolidated under Charlemagne, law became centralized so as to strengthen the royal court system, and consequently case law, and abolished folk-right. However, once Charlemagne's kingdom definitively splintered, Europe became feudalistic, and law was generally not governed above the county, municipal or lordship level, thereby creating a highly decentralized 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. [30] Medieval European legal scholars began researching the Roman law and using its concepts [31] and prepared the way for the partial resurrection of Roman law as the modern civil law in a large part of the world. [32] There was, however, a great deal of resistance so that civil law rivaled customary law for much of the late Middle Ages.

After the Norman conquest of England, which introduced Norman legal concepts into medieval England, the English King's powerful judges developed a body of precedent that became the common law. [33] 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. [34] 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. [34] 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. [35]

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. [36]

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 set down by the European Court of Justice.

African law

The African law system is based on common law and civilian law. [37] It was based on tribal customs and traditions before colonization took over their original system. [38] The people listened to their elders and used their elders as the people to go to when disputes happened. They didn't keep written records, as their laws were often passed orally. During colonization, authorities in Africa developed an official legal system called the Native Courts. [39] After colonialism, the major faiths that stayed were Buddhism, Hinduism, and Judaism.

United States

The United States legal system 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 US 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.

See also


  1. "International law - Historical development". Encyclopedia Britannica. Retrieved 2021-03-16.
  2. "International law - Historical development". Encyclopedia Britannica. Retrieved 2021-03-16.
  3. "International law - Historical development". Encyclopedia Britannica. Retrieved 2021-03-16.
  4. Théodoridés. "law". Encyclopedia of the Archaeology of Ancient Egypt.
    * VerSteeg, Law in ancient Egypt
  5. Kelly, A Short History of Western Legal Theory, 5-6
  6. J.P. Mallory, "Law", in Encyclopedia of Indo-European Culture, 346
  7. Ober, The Nature of Athenian Democracy, 121
  8. "Study reveals origin of India's caste system".
  9. Glenn, Legal Traditions of the World, 255
  10. Glenn, Legal Traditions of the World, 276
  11. Chapra, Muhammad Umer (2014). Morality and Justice in Islamic Economics and Finance. Edward Elgar Publishing. pp. 62–63. ISBN   9781783475728.
  12. Jackson, Roy (2010). Mawlana Mawdudi and Political Islam: Authority and the Islamic State. Routledge. ISBN   9781136950360.
  13. Glenn, Legal Traditions of the World, 273
  14. Glenn, Legal Traditions of the World, 287
  15. Glenn, Legal Traditions of the World, 304
  16. Glenn, Legal Traditions of the World, 305
  17. Glenn, Legal Traditions of the World, 307
  18. Glenn, Legal Traditions of the World, 309
  19. Farah, Five Years of China WTO Membership, 263-304
  20. Dr. Edward N. Peters,, accessed Jul-1-2013
  21. Raymond Wacks, Law: A Very Short Introduction, 2nd Ed. (Oxford University Press, 2015) pg. 15.
  22. 1 2 Della Rocca, Manual of Canon Law, pg. 13, #8
  23. Badr, Gamal Moursi (Spring 1978). "Islamic Law: Its Relation to Other Legal Systems". The American Journal of Comparative Law. American Society of Comparative Law. 26 (2 [Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24–25, 1977]): 187–198 [196–8]. doi:10.2307/839667. JSTOR   839667.
  24. Kelly, A Short History of Western Legal Theory, 39
  25. 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 ("Roman law". Encyclopædia Britannica.).
  26. Gordley-von Mehren, Comparative Study of Private Law, 18
  27. Gordley-von Mehren, Comparative Study of Private Law, 21
  28. Stein, Roman Law in European History, 32
  29. Stein, Roman Law in European History, 35
  30. Stein, Roman Law in European History, 43
  31. Roman and Secular Law in the Middle Ages Archived 2011-09-27 at the Wayback Machine
  32. Roman law
  33. Makdisi, John A. (June 1999). "The Islamic Origins of the Common Law". North Carolina Law Review . 77 (5): 1635–1739. suggests that there may have been some importation of Islamic concepts as well, but others have shown that occasional similarities are more likely coincidence than causal.
  34. 1 2 Klerman D, Mahoney PG (2007). "Legal Origins" (PDF). Journal of Comparative Economics. 35 (2): 278–293. doi:10.1016/j.jce.2007.03.007. Archived from the original (PDF) on 2009-08-26. Retrieved 2009-09-04.
  35. Sealey-Hooley, Commercial Law, 14
  36. Dainow, Joseph (1966). "The Civil Law and the Common Law: Some Points of Comparison". The American Journal of Comparative Law. 15 (3): 419. doi:10.2307/838275. ISSN   0002-919X.
  37. Joireman, Sandra Fullerton (December 2001). "Inherited legal systems and effective rule of law: Africa and the colonial legacy". The Journal of Modern African Studies. 39 (4): 571–596. doi:10.1017/S0022278X01003755. ISSN   0022-278X.
  38. Ndulo (2011). "African Customary Law, Customs, and Women's Rights". Indiana Journal of Global Legal Studies. 18 (1): 87. doi:10.2979/indjglolegstu.18.1.87.
  39. Read, James S. (1962). "The Future of Law in Africa. Record of Proceedings of the London Conference 28 December 1959–8 January 1960. Edited on behalf of the Conference by A. N. Allott. London: Butterworth & Co. (Publishers) Ltd. 1960. vi and 58 pp. 7s. 6d. net". Journal of African Law. 6 (1): 65–65. doi:10.1017/s0021855300004265. ISSN   0021-8553.

Related Research Articles

Canon law is a set of ordinances and regulations made by ecclesiastical authority, for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these four bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.

Comparative law Study of relationship between legal systems

Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves the study of the different legal "systems" in existence in the world, including the common law, the civil law, socialist law, Canon law, Jewish Law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalization, and democratization.

Law is the set of rules and principles (laws) by which a society is governed, through enforcement by governmental authorities. Law is also the field that concerns the creation and administration of laws, and includes any and all legal systems.

Roman law Legal system of Ancient Rome (c. 449 BC – AD 529)

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

<i>Corpus Juris Civilis</i> Collection of fundamental works in jurisprudence as codified by Justinian

The Corpus JurisCivilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor. It is also sometimes referred to metonymically after one of its parts, the Code of Justinian.

Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas others are nomistic or "legalistic" in nature. In particular, religions such as Judaism, Islam and the Baháʼí Faith teach the need for revealed positive law for both state and society, whereas other religions such as Christianity generally reject the idea that this is necessary or desirable and instead emphasise the eternal moral precepts of divine law over the civil, ceremonial or judicial aspects, which may have been annulled as in theologies of grace over law.

Civil code Private law relating to property, family, and obligations

A civil code is a codification of private law relating to property, family, and obligations.

In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.

Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in English law. While the ius commune was a secure point of reference in continental European legal systems, in England it was not a point of reference at all. The phrase "the common law of the civil law systems" means those underlying laws that create a distinct legal system and are common to all its elements.

Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as the primary source of law. The civil law system is often contrasted with the common law system, which originated in medieval England, whose intellectual framework historically came from uncodified judge-made case law, and gives precedential authority to prior court decisions.

Code of law Legislation that purports to cover a complete system of laws

A code of law, also called a law code or legal code, is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. Though the process and motivations for codification are similar in different common law and civil law systems, their usage is different.

Byzantine law

Byzantine law was essentially a continuation of Roman law with increased Christian influence. Most sources define Byzantine law as the Roman legal traditions starting after the reign of Justinian I in the 6th century and ending with the Fall of Constantinople in the 15th century.

The history of international law examines the evolution and development of public international law in both state practice and conceptual understanding. Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organisation at that time. The development of European notions of sovereignty and nation states would necessitate the development of methods for interstate relations and standards of behaviour, and these would lay the foundations of what would become international law. However, while the origins of the modern system of international law can be traced back 400 years, the development of the concepts and practises that would underpin that system can be traced back to ancient historical politics and relationships thousands of years old. Important concepts are derived from the practice between Greek city-states and the Roman law concept of ius gentium. These principles were not universal however. In East Asia, political theory was based not on the equality of states, but rather the cosmological supremacy of the Emperor of China.

The canon law of the Catholic Church is "how the Church organizes and governs herself". It is the system of laws and ecclesiastical legal principles made and enforced by the hierarchical authorities of the Catholic Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church. It was the first modern Western legal system and is the oldest continuously functioning legal system in the West, while the unique traditions of Eastern Catholic canon law govern the 23 Eastern Catholic particular churches sui iuris.

Western law comprises the legal traditions of Western culture, with roots in Roman law and canon law. As Western culture shares a Graeco-Roman Classical and Renaissance cultural influence, so do its legal systems.

Roman-Dutch law is an uncodified, scholarship-driven, and judge-made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, it is a variety of the European continental civil law or ius commune. While Roman-Dutch law was superseded by Napoleonic codal law in the Netherlands proper as early as the beginning of the 19th century, the legal practices and principles of the Roman-Dutch system are still applied actively and passively by the courts in countries that were part of the Dutch colonial empire, or countries which are influenced by former Dutch colonies: Guyana, South Africa, Sri Lanka, Indonesia, Suriname, and the formerly Indonesian-occupied East Timor. It also heavily influenced Scots law. It also had some minor impact on the laws of the American state of New York, especially in introducing the office of Prosecutor (schout-fiscaal).

The law of Europe refers to the legal systems of Europe. Europe saw the birth of both the Roman Empire and the British Empire, which form the basis of the two dominant forms of legal system of private law, civil and common law.

Africa's fifty-six sovereign states range widely in their history and structure, and their laws are variously defined by customary law, religious law, common law, Western civil law, other legal traditions, and combinations thereof.

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules created and enforced through social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and the art of justice. State-enforced laws can be made by a group legislature or by a single legislator, resulting in statutes; by the executive through decrees and regulations; or established by judges through precedent, usually in common law jurisdictions. Private individuals may create legally binding contracts, including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation. The creation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.


Further reading