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The Origins of the Canadian Legal System. 1792 bce to 2007. Introduction.
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The Origins of the Canadian Legal System 1792 bce to 2007
Introduction • The roots of our legal system go back 3800 years. Laws and even our guiding principles have been passed on from one generation to the next. There has been an evolution of western law with each society keeping what worked best.
Hammurabi’s Law • 1792 bce King of Babylon (Modern day Iraq) • Brought all the laws together and had them codified (The Stella) • People would know the laws and punishments and consitency would be brought to law and justice • Organized under family, criminal, labor, property, trade and business • The laws were not equal and the punishment was based on retribution (Revenge)
ExamplesDon’t Copy This • 195 – If a son has struck his father, his hand shall be cut off • 196 – If a man has knocked out the eye of a noble, his eye shall be knocked out. (An eye for an eye) • 141 – If a man’s wife, living in her husband’s house, has persisted in going out, has acted the fool, has wasted her house, has belittled her husband, he shall prosecute her. If her husband has said, “I divorce her,” she shall go her way; he shall give her nothing as her price of divorce. If her husband has said, “I will not divorce her,” he may take another woman to wife; the wife shall live as a slave in her husband’s house.
Mosaic Law • The ten commandments • 1200 bce • Punish the deliberate action and not the accident (Intent/ Mens Rea) • Mosaic law treated everyone equally. One of higher status could not shift blame to another person • Care for the poor or less fortunate
Roman Law • 449 bce • The twelve tables • Basis of all law in Western Europe • Justinian 550 ce created “Corpis Juris Civilis” – a collection of all Roman case law organized into volumes to make it easier to work with • Include wills, property rights, court cases, and laws on public behavior • 1st to use Juries • 1st to use lawyers
English Common Law • Influenced by Roman, German, and Anglo-Saxon traditions • English law was based on past decisions from other judges (Stare Decisis – stand by the decision • King Alfred attempted to codify English law • 1066 – William of Normandy (France) won the battle of Hastings and introduced Feudalism and French culture
The Trial By OrdealAn old English tradition • Three types • Trial by Hot Iron – person was to carry the hot iron a certain distance. The wound would be checked in three days and if it hadn’t healed they would be guilty • Trial by Water – swimming the witch. If you floated you were guilty • Trial by combat – basically jousting or a duel
Common Law continued • The Catholic church introduced Canon Law • Henry I simplifed the system of courts that would bring a consistent system to all of England. Local courts would have appointed judges that would travel to them to hear the cases. • Henry’s three courts a. Court of Kings Bench b. Court of Common Pleas c. Court of the Exchequer
The Magna Carta • 1215 John I • Basically a constitution that established basic individual rights of English citizens. • Parliament had the authority to pass all legislation and the king could not raise taxes without their approval • Every citizen was entitled to a fair trial and Habeas Corpus (they could not be imprisoned without just cause
The Napoleonic Code(French Civil Code) • Still used in Quebec as the basis of their civil law • 1804 Napoleon wanted to unify all French law and make the country one • Granted the right to divorce • Non-technical style made it accessible to the common public • It gave us the Rule of Law • Judges were allowed to interpret the law
