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Oog Sem 1 Notes

Law Notes > Origins of Government Notes

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English Origins of Government
Significance of Law

"Lawyers are central to the operation of a free & democratic society"
● The law is a central organising bong among individuals in a free and democratic society
● We all live "​under the rule of law"​, we are all "​equal under the law" ​(in an ideal world)
○ "Law of man"​ = dictatorship
● Sir Oliver Wendell Holmes Jr: it is "​revolting to have no better reason for a law that so it was laid down in the time of King Henry​ ​IV​" i.e. all laws must have a purpose in society
"Lawyers without history are like doctors without science"
● We are lucky to live in New Zealand with our legal system...but how did we get here?
Law and morality​ are interconnected but not the same in every society
Why do we study English Legal History?
● Our Parliament was created as a colonial government
○ Maori had law before colonisation
○ British imposed their system of government
○ NZ "daughter" of the Westminster Parliament
○ Common Law = English Law
■ 1 in 3 people on Earth live in a "common law" jurisdiction (which includes 49/50 US states)
Key ideas:

1. Everyone lives under the same law, but everyone has different morals.
Law is objective, morals are subjective.
Law and morality should not overlap because personal opinion/emotion can blur the facts of the case - but ethical practices should always be carried out.

2. At the end of the day, the outcome of the case is what holds so by thinking like this you can tailor your argument to a predicted outcome.
By taking morals out of the equation, you can get the best possible outcome for your client regardless of their guilt or innocence.

3. What may be a great law when it was created may be entirely outdated now. Law should progress as society progresses.
"Law adapts to a zeitgeist" *the defining mood of a period of history

4. We should learn from history but not let it define practices in a modern context

5. The law is the judicial decision

6. Once you understand all aspects of the law + the history + how law affects all parts of society = you understand law as a whole and can practice it well

7. Great Britain does not include Northern Ireland: England, Wales Scotland
UK = England, Wales, Scotland, Northern Ireland 8. We study the English legal system because it is what our English legal system is based upon.
Plus it still affects our own law system today in the form of the Queen as the head of
State and the Privy Council

Where did law and government begin?

Is the question FLAWED? - ​accepted today
The question is flawed because it is logical that as long as 2+ people are living together, there will be rules governing their relationship & lifestyle together.
→ Argues that law and government were not "invented", they are part of what it means to be human
→ no laws or government = no society

ANCIENT LAW

Two most famous examples:

1. The Code of Hammurabi
> for years this was the oldest example of law
> Although fragments of older laws have been discovered, but it is still special because it is a complete set of laws

2. The 10 Commandments - The "Decalogue" (~1250 BCE)
> Started as oral law
> Passed down through religion

Elements present in today's law
The Code of
Hammurabi

Decalogue

Elements not present in today's law

> Retributive punishment - "an eye for an eye"; many people believe in this concept, it isn't exactly in NZ law, but e.g.​ a fine is compensation for a broken arm
> Rules about responsibility "issues of negligence"
> Reasonably liberal rules

X Laws affect people that are not involved
X Treats women and children as property

> "Sabbath Day

X thought crimes -

X Law "set in stone"
X Law comes from
God prohibition" until recently part of NZ
law - the "Lord's Day
Act"
> Early ideas of perjury

hard to regulate/prove (were only valid because of
God)

ROMAN LAW
The boundary between Ancient Law and Modern Law





Roman law was an early system of law introduced into (what is today) England
England was conquered by the Romans in 43 CE, and they ruled until withdrawal in 426
Roman law is very different from English law
In Roman law, the focus is on collections of written law, or "codes"
The beginning of Roman law is the ​Twelve Tables​; the apex is the ​Corpus Juris Civilis
(both were codes)
○ Wanted to gather 1000 years of Roman law into a code
○ It was handy for people to use
○ Shortly after the fall of the Roman Empire, new political entities took their place
○ These new entities adopted the Corpus Juris Civilis
In modern times, systems of law that are patterned after Roman law are known as ​"civil law"​ systems
○ The Common Law system is the minority - more flexible in interpretation

Why did Roman/Civil Law fail to become the law of England?

1. Geography
> ​The English Channel separates England from the European continent 2. Relatively limited exposure
> The Romans only ruled England for ~400 years (43-426)
> Other parts of Europe were ruled by the Romans for more than 1300 years (almost twice as long as NZ's legal system has been around) - the Romans left a century before the CJC was written

3. William the Conqueror's decision (1066, see ch4)
> King William I gained legitimacy in England by choosing to uphold the laws of the previous Kings of England (rather than importing his own laws from continental Europe,
which were based on Roman law)
> Future monarchs of England gained legitimacy by upholding William's legacy
Why is Roman Law a transition point?
One concept that did make it into English law comes from the early stages of Roman law "whatever the people ordain last shall be legally valid"
● Whereas ancient law came from God, this says that law comes from the people (even though they still believed in Gods)
● Says that the law can change, it is not "set in stone" and that the most recent law takes precedence
○ Same in NZ today
→ these ideas were revolutionary
● The Romans knew and accepted that because law came from the people it could therefore change, because the human race is imperfect
Key Ideas:

1. No exceptions to any of the rules, direct pronouns and diction "you shall not…" etc.
The Ten Commandments don't state a punishment whereas the Code of H does, and it is more descriptive.
Ten Commandments "word of God", Code of H "word of man" - rule of law (God's Law)
vs rule of man → why we swear in the name of God because God is beyond humans (?),
God is forgiving yet man is not 2.

3. Because it was literally set in stone, couldn't be changed, in public sight, "you know law is working when it is invisible", law code regarded as subject for prayer

4. Patricians = Authoritative class
Plebeians = Lower class with little rights or influence

5. Decemviri = 10 chief magistrates
They wrote the code and asked for public input
Technically first democracy - plebeians asking to see the law and were able to be elected but none of them were voted in.

6. The Plebeians wanted the Twelve Tables to be produced because they didn't know what the laws were so they did not know what they weren't allowed to do. In best interest to maintain social control.

7. Aspects of 12 tablets in Western Law: basic court proceedings, public law, no one can be convicted (or put to death) without a trial

8. Roman society was very straightforward, in terms of punishment for actions, and was rather sexist.

9. Justinian's Code was a collection of Imperial Enactments drawn from previous Codes and later constitutions.
When the Digest - an extensive collection of juristic writings - was being written a select committee had complete say in what went into the book, the Institutes - a legal textbook were started after the Digest but were given the power of statutes. Both the Digest and
Institutes came into effect on 30 December 533, and these three components along with
Novels - later legislative material - make up the Corpus Juris Civilis. 10. We don't think English law was as influenced by Roman law as other countries because once Rome fell and England was no longer under their rule they wanted to abolish
Roman law.
Eastern Rome was not in power when the Corpus Juris Civilis was written.
England closely linked to the Bible as a governing document, Monarch = ruler = religious leader

11. On one hand, the Corpus Juris Civilis is significant because it is a complete codification of law, but on the other hand the style of the Twelve Tables is more in the style that laws are written today. Overall, I think that the Twelve Tables are more significant because of their exposure to the public and the grouping of types of law.
ANGLO-SAXON LAW
The Romans left
England once they decided it was no longer a priority, which led to a power vacuum
→ Angles, Saxons &
Jutes migrated and invaded
→ Messy development into Anglo-Saxon people (assimilation +
genocide)
= Anglo-Saxons 1) Race/genetic heritage 2) Historical category before the Norman
Conquest


State of Anglo-Saxon Law
No recognition that law was made by the people, presumed to already exist, created at some point by God
No "law-makers", only "law-finders" (~500-1066)

1. ​King​ - occasionally published books of "dooms": judgement/law, earliest examples of
English law AND literature, King wasn't trying to create law, saying what has been passed down

2. ​Witan​ - King's advisors, partly made up of legal experts

3. ​Doomsmen​ → ​most involved 1) Hundred Moot Doomsmen
Composed of many villages
Important village men = appointed as doomsmen 2) Shire Moot Doomsmen
Modern county
Multiple hundreds
Superior
Unclear what the relationship was between the two moots
Shire moot occasionally acted as a Court of Appeal
The vast majority of laws at this point were unwritten, customs, oral, precedent-based;
day-to-day law was run by moots
→ ​Problem​: Unlikely that law didn't change, law has to change as society changes & develops slow change - but people did not recognise the change
→ Foundation of common law system: It develops when applied to new situations, leading to new law
Legal procedures in Anglo-Saxon England

Tort vs. Crime
Tort​: Legal wrong against another person
Crime​: legal wrong committed against society
● In Anglo-Saxon England, at first all wrongs were like modern torts
● When a person committed a wrong against another, he disturbed the other person's mund (peace)
● Gradually, certain wrongs came to be seen as a disruption of the injured party's mund and​ a disruption of the King's mund/peace
● eventually , certain behaviour came to be seen as a disruption of the King's Peace, even if no other person's mund had been disrupted

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