Legal history
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2008-06-28T21:00:30Z
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[[Image:Milkau Oberer Teil der Stele mit dem Text von Hammurapis Gesetzescode 369-2.jpg|thumb|right|King [[Hammurabi]] is revealed the [[Code of Hammurabi|code of laws]] by Shamash, god of justice]]
'''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 history|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.
==Ancient World==
{{main|Ma'at|Babylonian law|Ancient Greek law|Leviticus}}
{{seealso|Urukagina|Hittite laws|Ostracism}}
[[Ancient Egypt]]ian law, dating as far back as 3000 BCE, 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.<ref>{{cite encyclopedia|last=Théodoridés|title = law | encyclopedia = Encyclopedia of the Archaeology of Ancient Egypt}}<br/>* VerSteeg, ''Law in ancient Egypt''</ref> By the [[22nd century BCE]], [[Ur-Nammu]], an ancient [[Sumerian]] ruler, formulated the first [[Code of Ur-Nammu|law code]], consisting of casuistic statements ("if... then..."). Around 1760 BCE, [[Hammurabi|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 [[Code of Hammurabi|Codex Hammurabi]]. The most intact copy of these stelae was discovered in the [[19th century|19th century]] by British Assyriologists, and has since been fully [[transliterated]] and translated into various languages, including [[English language|English]], [[German language|German]], and [[French language|French]]. The [[Torah]] from the [[Old Testament]] is probably the oldest body of law still relevant for modern legal systems, dating back to 1280 BCE. 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 [[Ancient Greece|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.<ref>Kelly, ''A Short History of Western Legal Theory'', 5-6</ref> Yet [[Ancient Greek law]] contained major [[Constitution of the Athenians|constitutional]] innovations in the development of [[democracy]].<ref>Ober, ''The Nature of Athenian Democracy'', 121</ref>
==Southern Asia==
{{main|Manu Smriti|Arthashastra}}
[[Image:Constitution of India.jpg|150px|right|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 BCE, and the ''[[Manusmriti]]'' from 100 CE were influential treatises in India, texts that were considered authoritative legal guidance.<ref>Glenn, ''Legal Traditions of the World'', 255</ref> Manu's central philosophy was tolerance and pluralism, and was cited across South East Asia.<ref>Glenn, ''Legal Traditions of the World'', 276</ref> But this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the [[British Empire]].<ref>Glenn, ''Legal Traditions of the World'', 273</ref> Malaysia, Brunei, [[Law of Singapore|Singapore]] and [[Law of Hong Kong|Hong Kong]] also adopted the common law.
==Eastern Asia==
{{main|Traditional Chinese law|Tang Code|Great Qing Legal Code}}
The eastern Asia legal tradition reflects a unique blend of secular and religious influences.<ref>Glenn, ''Legal Traditions of the World'', 287</ref> Japan was the first country to begin modernizing its legal system along western lines, by importing bits of the [[Code Civil|French]], but mostly the [[BGB|German]] Civil Code.<ref>Glenn, ''Legal Traditions of the World'', 304</ref> This partly reflected Germany's status as a rising power in the late nineteenth century. Similarly, [[traditional Chinese law]] gave way to westernization towards the final years of the [[Qing Dynasty|Ch'ing dynasty]] in the form of six private law codes based mainly on the Japanese model of German law.<ref>Glenn, ''Legal Traditions of the World'', 305</ref> 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.<ref>Glenn, ''Legal Traditions of the World'', 307</ref> 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.<ref>Glenn, ''Legal Traditions of the World'', 309</ref> Furthermore, after negotiations lasting fifteen years, in 2001 China joined the [[World Trade Organization]].<ref>Farah, ''Five Years of China WTO Membership'', 263-304</ref>
==Islamic law==
{{main|Sharia}}
{{see also|Fiqh|Islamic ethics|Early reforms under Islam|Islamic Jurisprudence: An International Perspective}}
A number of important legal [[institution]]s were developed by [[Ulema|Islamic jurists]] during the classical period of [[Sharia|Islamic law]] and [[Fiqh|jurisprudence]], known as the [[Islamic Golden Age]], dated from the 7th to 13th centuries. One such institution was the ''[[Hawala]]'', an early [[informal value transfer system]], which is mentioned in texts of [[Fiqh|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 [[Italy|Italian]] law.<ref name=Badr>{{citation|title=Islamic Law: Its Relation to Other Legal Systems|first=Gamal Moursi|last=Badr|journal=The American Journal of Comparative Law|volume=26|issue=2 [Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24-25, 1977]|date=Spring, 1978|pages=187–198 [196–8]|doi=10.2307/839667}}</ref> The "European ''commenda''" [[limited partnership]]s (Islamic ''[[Qirad]]'') used in [[Civil law (legal system)|civil law]] as well as the civil law conception of ''[[res judicata]]'' may also have origins in Islamic law.<ref name=Makdisi>{{Citation|last=Makdisi|first=John A.|title=The Islamic Origins of the Common Law|journal=[[North Carolina Law Review]]|year=1999|date=June 1999|volume=77|issue=5|pages=1635–1739}}</ref>
Several fundamental [[common law]] instutitions may have been adapted from similar legal instututions in [[Sharia|Islamic law]] and [[Fiqh|jurisprudence]], and introduced to England after the [[Norman conquest of England]] by the [[Normans]], who conquered and inherited the Islamic legal administration of the [[Emirate of Sicily]], and also by Crusaders during the [[Crusades]]. In particular, the "royal English [[contract]] protected by the action of [[debt]] is identified with the Islamic ''Aqd'', the English [[assize of novel disseisin]] is identified with the Islamic ''Istihqaq'', and the English [[jury]] is identified with the Islamic ''Lafif''."<ref name=Makdisi>{{Harv|Makdisi|1999}}</ref> The English [[Trust law|trust]] and [[Agency (law)|agency]] institutions in common law were also most likely adapted from the Islamic ''[[Waqf]]'' and ''[[Hawala]]'' institutions respectively during the Crusades.<ref>{{Harvard reference |last=Gaudiosi |first=Monica M. |title=The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College |year=1988 |journal=[[University of Pennsylvania Law Review]] |volume=136 |issue=4 |date=April 1988 |pages=1231-1261}}</ref><ref name=Badr/>
Other English legal institutions such as "the [[scholastic method]], the [[license]] to [[Education|teach]]," the "[[law school]]s known as [[Inns of Court]] in England and ''[[Madrasah|Madrasas]]'' in Islam" and the "European [[Limited partnership|commenda]]" (Islamic ''[[Qirad]]'') may have also originated from Islamic law.<ref name=Makdisi/> The methodology of legal [[precedent]] and reasoning by [[analogy]] (''[[Qiyas]]'') are also similar in both the Islamic and common law systems.<ref>{{citation|title=Islamic Finance: Law, Economics, and Practice|first=Mahmoud A.|last=El-Gamal|year=2006|publisher=[[Cambridge University Press]]|isbn=0521864143|page=16}}</ref> These similarities and influences have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".<ref name=Makdisi/>
==European laws==
===Roman Empire===
{{main|Roman law}}
[[Roman law]] was heavily influenced by Greek teachings.<ref>Kelly, ''A Short History of Western Legal Theory, 39 </ref> It forms the bridge to the modern legal world, over the centuries between the rise and decline of the [[Roman Empire]].<ref name="BrRL">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 ({{cite encyclopedia|title=Roman law|encyclopedia=Encyclopaedia Britannica}}).</ref> Roman law, in the days of the [[Roman republic]] and [[Roman empire|Empire]], was heavily procedural and there was no professional legal class.<ref>Gordley-von Mehren, ''Comparative Study of Private Law'', 18</ref> Instead a lay person, ''iudex'', was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.<ref>Gordley-von Mehren, ''Comparative Study of Private Law'', 21</ref> 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.<ref>Stein, ''Roman Law in European History'', 32</ref> 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."<ref>Stein, ''Roman Law in European History'', 35</ref>
===Middle Ages===
[[Image:Joao sem terra assina carta Magna.jpg|150px|right|King John of England signs the Magna Carta]]
{{main|Early Germanic law|Anglo-Saxon law|Lex mercatoria}}
{{seealso|Germanic tribal laws|Visigothic Code|Dōm|Blutgericht|Magna Carta|Schwabenspiegel}}
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.<ref>Stein, ''Roman Law in European History'', 43</ref> Mediæval European legal scholars began researching the [[Roman law|Roman]] and [[Sharia|Islamic laws]] and they began using their concepts. After the [[Norman conquest of England]] which introduced [[Norman law|Norman]] and Islamic legal concepts into mediæval [[England]], the English King's powerful judges developed a body of [[precedent]] which became the [[common law]].<ref name=Makdisi/> 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.<ref>Sealey-Hooley, ''Commercial Law'', 14</ref>
===Modern European law===
{{main|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. 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]] laid down by the [[European Court of Justice]].
==United States==
The [[Law of the United States|United States legal system]] developed primarily out of the English common law system (with the exception of the state of [[Louisiana]], which continued to [[Louisiana law|follow the French civilian system]] after being admitted to statehood. Some concepts which originate in [[Law of Spain|Spanish law]], such as the [[prior appropriation doctrine]] and [[community property]], still persist in some U.S. states, particularly those which were part of the [[Mexican Cession]] in 1848.
Under the doctrine of [[Federalism in the United States|federalism]], each state has its own [[State court|separate court system]], and the ability to legislate within areas not reserved to the [[Federal government of the United States|federal government]].
==Footnotes==
{{reflist|2}}
==References==
*{{cite journal |quotes= |last=Farah |first=Paolo |year=2006 |month=August |title=Five Years of China WTO Membership. EU and US Perspectives about China's Compliance with Transparency Commitments and the Transitional Review Mechanism |journal=Legal Issues of Economic Integration |volume=33 |issue=3 |pages=263–304 |id= |url=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=916768 |accessdate=}}
*{{cite book|title=Dicionário de Filosofia do Direito|first=Vicente|last=Barretto|year=2006|isbn=85-7431-266-5|publisher=Unisinos Editora}}
*{{cite book|title=Legal Traditions of the World|first=H. Patrick|last=Glenn|year=2000|isbn=0198765754|publisher=Oxford University Press}}
*Sadakat Kadri, ''The Trial: A History from Socrates to O.J. Simpson'', HarperCollins 2005. ISBN 0-00-711121-5
*{{cite book|title=A Short History of Western Legal Theory|last=Kelly|first=J.M.| year=1992|publisher=Oxford University Press| isbn=0198762445}}
*{{cite book|last=Gordley |first=James R. |coauthors=von Mehren, Arthur Taylor |title=An Introduction to the Comparative Study of Private Law |year=2006|isbn=9-780-52168-185-8}}
*{{cite book|title=Commercial Law|first=L.S.|last=Sealy|coauthor=Hooley, R.J.A.|year=2003|publisher=LexisNexis Butterworths}}
*{{cite book|first=Peter|last=Stein|title=Roman Law in European History|year=1999|pages=32|publisher=Cambridge University Press|isbn=0-521-64372-4}}
==See also==
*[[Constitution of the Roman Republic]]
==External links==
* [http://www.legalhistory.com The Legal History Project (Resources and interviews)]
* [http://vi.uh.edu/pages/bob/elhone/elhmat.html Some legal history materials]
* [http://www.schoyencollection.com/law.htm The Schoyen Collection]
* [http://web.upmf-grenoble.fr/Haiti/Cours/Ak The Roman Law Library] by Yves Lassard and Alexandr Koptev.
*[http://www.atmitchell.com/journeys/law/justice/justice.cfm Law & Justice in Australia - online collection from the State Library of NSW]
*[http://legalmessenger.com/legal-history.htm Legal History: Evolution of Law]
* [http://www.law.ed.ac.uk/centreforlegalhistory/ Centre for Legal History] - Edinburgh Law School
* [http://library.lawschool.cornell.edu/WhatWeHave/SpecialCollections/Bennett.cfm Collection of Historical Statutory Material] - Cornell Law Library
* [http://xml.lib.hku.hk/gsdl/db/oelawhk/search.shtml/ Historical Laws of Hong Kong Online] - University of Hong Kong Libraries, Digital Initiatives
*[http://sunzi1.lib.hku.hk/bldho/ Basic Law Drafting History Online] -University of Hong Kong Libraries, Digital Initiatives
*[http://www.alanwatson.org Alan Watson Foundation]- A Group of Scholars Dedicated to the Promotion of Legal History and Comparative Law
{{Law}}
[[Category:Legal history|*]]
[[da:Retshistorie]]
[[de:Rechtsgeschichte]]
[[es:Historia del Derecho]]
[[fr:Histoire du droit]]
[[ja:法制史]]
[[nl:Rechtsgeschiedenis]]
[[pt:História do direito]]
[[fi:Oikeushistoria]]
[[th:ประวัติศาสตร์กฎหมาย]]
[[ru:История права]]
[[zh:法制史]]