Friday, September 25, 2015


A Brief History of (Western) 

Laws and Rules for Governance


What do these look like to you?









Code of Hamurabi 1772 BCE





Magna Carta 1215 CE (more or less -- it's complicated)



Charles I (and the English Revolution) 1649 RIP




Articles of Confederation 1777 / 1781 



Constitution of the United States of America 1787 / 1788 / 1789 CE




Bill of Rights (Ammendments 1-10) 1791



Safeguards of liberty (Amendments 1, 2, 3)



Safeguards of justice (Amendments 4, 5, 6, 7, 8)



Unenumerated rights and reserved powers (Amendments 9, 10)

Code of Hammurabi – Ancient Babylon, contemporary Iraqi (Kuwait, parts of Syria, some Iran, and a bit of Turkey)

About 1772 BCE
282 laws

The laws survive on stone Stele as well as on clay tablets of cuneiform

The Code of Hammurabi is a well-preserved Babylonian law code of ancient Mesopotamia, dating back to about 1772 BCE. 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 tablets. The Code consists of 282 laws, with scaled punishments, adjusting "an eye for an eye, a tooth for a tooth" (lex talionis)[1] as graded depending on social status, of slave versus free man.[2] Nearly one-half of the Code deals with matters of contract, establishing, for example, the wages to be paid to an ox driver or a surgeon. Other provisions set the terms of a transaction, establishing the liability of a builder for a house that collapses, for example, or property that is damaged while left in the care of another. A third of the code addresses issues concerning household and family relationships such as inheritance, divorce, paternity and sexual behavior. Only one provision appears to impose obligations on an official; this provision establishes that a judge who reaches an incorrect decision is to be fined and removed from the bench permanently.[3] A handful of provisions address issues related to military service.

The code has been seen as an early example of a fundamental law regulating a government — i.e., a primitive constitution. The code is also one of the earliest examples of the idea of presumption of innocence, and it also suggests that both the accused and accuser have the opportunity to provide evidence.

The laws covered such subjects as:
Slander
Ex. Law #127: "If any one "point the finger" at a sister of a god or the wife of any one, and can not prove it, this man shall be taken before the judges and his brow shall be marked. (by cutting the skin, or perhaps hair.)"
Trade
Ex. Law #265: "If a herdsman, to whose care cattle or sheep have been entrusted, be guilty of fraud and make false returns of the natural increase, or sell them for money, then shall he be convicted and pay the owner ten times the loss."
Slavery
Ex. Law #15: "If any one take a male or female slave of the court, or a male or female slave of a freed man, outside the city gates, he shall be put to death."
The duties of workers
Ex. Law #42: "If any one take over a field to till it, and obtain no harvest therefrom, it must be proved that he did no work on the field, and he must deliver grain, just as his neighbor raised, to the owner of the field." Theft
Ex. Law #22: "If any one is committing a robbery and is caught, then he shall be put to death." Food
Ex. Law #104: "If a merchant give an agent corn, wool, oil, or any other goods to transport, the agent shall give a receipt for the amount, and compensate the merchant therefor. Then he shall obtain a receipt from the merchant for the money that he gives the merchant."
One of the most well known of Hammurabi's laws was
Ex. Law #196. "If a man destroy the eye of another man, they shall destroy his eye. If one break a man's bone, they shall break his bone. If one destroy the eye of a freeman or break the bone of a freeman he shall pay one mana of silver. If one destroy the eye of a man's slave or break a bone of a man's slave he shall pay one-half his price."
Hammurabi had many other punishments as well. If a boy struck his father they would cut off the boy's hand or fingers (translations vary).


Magna Carta

Basically 1215 in

John, the youngest of five sons of King Henry II of England and Eleanor of Aquitaine, was at first not expected to inherit significant lands. Following the failed rebellion of his elder brothers between 1173 and 1174, however, John became Henry's favourite child. He was appointed the Lord of Ireland in 1177 and given lands in England and on the continent. John's elder brothers William, Henry and Geoffrey died young; by the time Richard I became king in 1189, John was a potential heir to the throne. John unsuccessfully attempted a rebellion against Richard's royal administrators whilst his brother was participating in the Third Crusade. Despite this, after Richard died in 1199, John was proclaimed King of England

collapse of his empire in northern France in 1204. John spent much of the next decade attempting to regain these lands, raising huge revenues, reforming his armed forces and rebuilding continental alliances. John's judicial reforms had a lasting impact on the English common law system, as well as providing an additional source of revenue. An argument with Pope Innocent III led to John's excommunication in 1209,

contemporary historical opinion of John's positive qualities, observing that John is today usually considered a "hard-working administrator, an able man, an able general".[2] Nonetheless, modern historians agree that he also had many faults as king, including what historian Ralph Turner describes as "distasteful, even dangerous personality traits", such as pettiness, spitefulness and cruelty.[3] These negative qualities provided extensive material for fiction writers in the Victorian era, and John remains a recurring character within Western popular culture, primarily as a villain in films and stories depicting the Robin Hood legends.

By medieval and Tudor times:
The judgement of 1387 confirmed the supremacy of the Royal Prerogative within the constitution.[60] By the mid 15th century Magna Carta ceased to occupy a central role in English political life.[51] In part this was also due to the rise of an early version of Parliament and to further statutes, some based on the principle of Magna Carta. The Charter, however remained a text for scholars of law.

Edward Coke (1552-1634) who served as Chief Justice of the Kings Bench "reinterpreted or misinterpreted" Magna Carta "misconstruing its clauses anachronistically and uncritically".[68] He would interpret liberties to be much the same as individual liberty.

The belief in the Chain of Being meant that monarchy was ordained by God and inherent in the very structure of the universe. Rebellion was a sin not only against the state, but against heaven itself, for the king was God's appointed deputy on earth, with semi-divine powers. King James I himself wrote, "The state of monarchy is the supremest thing upon earth: for kings are not only God's Lieutenants upon earth, and sit upon God's throne, but even by God himself they are called Gods." Such an ideology necessitates a social conservatism so extreme that it is difficult to imagine today.

 Conversely, the King has a moral responsibility to God and his people. In return for his absolute power, he is expected to rule his subjects with love, wisdom, and justice. To do otherwise is to abandon those natural qualities that make a noble fit to rule in the first place. Misusing regal authority is a perversion of divine order.


Charles I
After his succession, Charles quarrelled with the Parliament of England, which sought to curb his royal prerogative. Charles believed in the divine right of kings and thought he could govern according to his own conscience. Many of his subjects opposed his policies, in particular the levying of taxes without parliamentary consent, and perceived his actions as those of a tyrannical absolute monarch. His religious policies, coupled with his marriage to a Roman Catholic, generated the antipathy and mistrust of reformed groups such as the Puritans and Calvinists, who thought his views too Catholic. He supported high church ecclesiastics, such as Richard Montagu and William Laud, and failed to successfully aid Protestant forces during the Thirty Years' War. His attempts to force the Church of Scotland to adopt high Anglican practices led to the Bishops' Wars, strengthened the position of the English and Scottish parliaments and helped precipitate his own downfall.
From 1642, Charles fought the armies of the English and Scottish parliaments in the English Civil War. After his defeat in 1645, he surrendered to a Scottish force that eventually handed him over to the English Parliament. Charles refused to accept his captors' demands for a constitutional monarchy, and temporarily escaped captivity in November 1647. Re-imprisoned on the Isle of Wight, Charles forged an alliance with Scotland, but by the end of 1648 Oliver Cromwell's New Model Army had consolidated its control over England. Charles was tried, convicted, and executed for high treason in January 1649. The monarchy was abolished and a republic called the Commonwealth of England was declared. In 1660, the English Interregnum ended when the monarchy was restored to Charles's son, Charles II.

The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was a document signed amongst the 13 founding states that established the United States of America as a confederation of sovereign states and served as its first constitution.[1] Its drafting by a commitee appointed by the Second Continental Congress began on July 12, 1776, and an approved version was sent to the states for ratification in late 1777. The formal ratification by all 13 states was completed in early 1781. Even when not yet ratified, the Articles provided domestic and international legitimacy for the Continental Congress to direct the American Revolutionary War, conduct diplomacy with Europe and deal with territorial issues and Native American relations. Nevertheless, the weakness of the government created by the Articles became a matter of concern for key nationalists. On March 4, 1789, general government under the Articles was replaced with the federal government under the U.S. Constitution.[2][3] The new Constitution provided for a much stronger federal government with a chief executive (the president), courts, and taxing powers.

United States[edit]
When Englishmen left their homeland for the new world, they brought with them charters establishing the colonies. The Massachusetts Bay Company charter for example stated the colonists would "have and enjoy all liberties and immunities of free and natural subjects." The Virginia Charter of 1606 (which was largely drafted by Sir Edward Coke) stated the colonists would have all "liberties, franchises and immunities" as if they had been born in England. The Massachusetts Body of Liberties contained similarities to clause 29 of Magna Carta, and the Massachusetts General Court in drawing it up viewed Magna Carta as the chief embodiment of English common law.[86] The other colonies would follow their example. In 1638 Maryland sought to recognise Magna Carta as part of the law of the province but it was not granted by the King.

In 1687 William Penn published The Excellent Privilege of Liberty and Property: being the birth-right of the Free-Born Subjects of England, which contained the first copy of Magna Carta printed on American soil. Penn's comments reflected Coke's, indicating a belief that Magna Carta was a fundamental law.[88] The colonists drew on English lawbooks leading them to an anachronistic interpretation of Magna Carta, believing it guaranteed trial by jury and habeas corpus.[89]
The development of Parliamentary sovereignty in the British Isles did not constitutionally affect the Thirteen Colonies, which retained an adherence to English common law, but it would come to directly affect the relationship between Britain and the colonies.[90] When American colonists raised arms against Britain, they were fighting not so much for new freedom, but to preserve liberties and rights, as believed to be enshrined in Magna Carta and as later included in the Bill of Rights.
The American Constitution is the supreme law of the land, recalling the manner in which Magna Carta had come to be regarded as fundamental law. In comparing Magna Carta with the Bill of Rights: the Fifth Amendment guarantees: "No person shall be deprived of life, liberty or property without due process of law." In addition, the United States Constitution included a similar writ in the Suspension Clause, article 1, section 9: "The privilege of the writ habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." Each of these proclaim no person may be imprisoned or detained without proof that he or she did wrong. The Ninth Amendment to the United States Constitution states that, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The framers of the United States Constitution wished to ensure that rights they already held, such as those provided by Magna Carta, were not lost unless explicitly curtailed in the new United States Constitution.[91][92]
The United States Supreme Court has explicitly referenced Lord Coke's analysis of Magna Carta as an antecedent of the Sixth Amendment's right to a speedy trial.[93]


Colonial Period: Articles of Confederation … then….
Articles of Confederation 1777 / 1781 


The Constitution of the United States is the supreme law of the United States of America.[1] The Constitution, originally comprising seven articles, delineates the national frame of government. Its first three articles entrench the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameral Congress; the executive, consisting of the President; and the judicial, consisting of the Supreme Court and other federal courts. Articles Four, Five and Six entrench concepts of federalism, describing the rights and responsibilities of state governments and of the states in relationship to the federal government. Article Seven establishes the procedure subsequently used by the thirteen States to ratify it.

Bill of Rights (Ammendments 1-10) 1791

Safeguards of liberty (Amendments 1, 2, 3)

Safeguards of justice (Amendments 4, 5, 6, 7, 8)

Unenumerated rights and reserved powers (Amendments 9, 10)


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