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