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INTRODUCTION TO LAW by RUFUS B? RODRIGUEZ AB, M.A., LL.B., LLY Former Commissioner, Bureau of Immigration; Former Dean, San Sebastian Colleze of Law; LL.M, (Harlan Fiske Stone Scholar), Columbia Law School, New York, (1995); Certificate (with Honors), Parker School of International & Foreign Law, Columbia University, New York, (1995} Fellow, 1993 Academy on American and In:ernational Law, Dallas, Texas, (1993); MA. Economies (with High Distinction), Xavier University, (1984), 17th Place (86%), 1981 Bar Examinations; LLB. (Purple Feather Honor Society), University of the Philippines, (1980); AB. Economies (Summa Cum Laude), De La Salle University, (19% High School (Valedictorian), Xavier University (1971) Grade School (Valedictorian), Xavier University (1967) shed & Distributed by Book Store 256 Nieanor Reyes, Sr. St Tel Hos, 73608-67 »735-13-68 1977 CM, Recto Avenue Nos. 735-55:27 = 735-55-34 Philippines V. Larlar, Rector and Fr. Manuel Lipardo, Procurator, which hosted my several stays in finalizing the manuscript of this book and the Recoletos Formation Center in Quezon City through its Rector, Fr. Dionisio Q Selma and Fr. Joel Naranjo Lalso thank Fr. Samson Silloriquez, OAR, parish priest of San Sebastian Parish, who lent me his notes on the process of the for- mation of Canon Law and Fr. Demetrio Penascoza who gave me a history of the canon law, My gratitude goes also to Atty. Antonio Santos, my classmate, present librarian at the UP Law Library and Ms. Marina Satin, San Sebastian Law Librarian, who lent me most of the materials T needed for this book. My thanks also to Ms. Luz Pangilinan and Ms. Janice dela Cruz for typing the manuscript of this book. RUFUS B. RODRIGUEZ April 01, 2001 Manila TABLE OF CONTENTS Preface. Part I. Law In General A. Law, its role in society B. Law, defined 1) _ In its comprehensive sense 2) In its specific sense Law and Morals Law and Customs Law, its general classifications 1. Natural Law b. Moral Law ¢. Divine Law 2. Positive Law F, Law, its nature. 1. The Historical View 2. The Teleological or Philosophical View 3. The Analytical or Positivist View 4. The Functional or Sociological View. 5. The Legal Realist or Pragmatic View 6, The Policy Science View 7. The Marxist-Leninist school PART I. The World’s Legal Systems A. The Legal Systems of the World. 1. The Egyptian Legal System 2. Mesopotamian Legal System 21 24 a7 28 31 Hebrew Legal System... Chinese Legal System.. Hindu Legal System Greck Legal System... Roman Legal System (Roman Law) a. Archaie period... b. Republican period... ¢. Classical period 8. Celtic Legal System 9. Slavie Legal System 10. Germanic Legal System. 11. Japanese Legal System... 12. Anglo-American Legal System ... a, Common Law in England b. Common Law in the United States 18. Catholic (Papal) Legal System and the Canon Law ... 14, Mohammedan Legal System oh ‘The Main Legal Traditions of the World ‘The Civil Law Tradition Common Law Tradition ‘The Socialist Tradition Distinctions between Civil Law and ‘Common Law .. PART IIL The Philippine Legal System History and Sources of Philippine Law ... 1. Pre-Spanish Period... a, The Maragtas... b. The Code of Kalantiaw . ©. The Muslim Codes 2. Spanish Period a. Spanish laws... 1. ‘The Brevarium of Alarie 2. Fuero Juzgo 3. 4, Fuero Real... Las Siete Partidas 34 38 42 46 51 65 70 % 79 82 82 97 98 108 108 109 12 14 116 7 17 9 120 123 125 125 127 128, 129 131 9 10. Leyes de Toro .. Nueva Recopilacion Novisima Recopilacion ‘Modern Spanish Codes... b. Colonial laws... ‘The First Philippine Republic (Malolos) ... The American Period a. Organic Laws w... b, Pres. McKinley's Instructions of 1900 .... c. The Spooner Amendment of March 2, 1901 ... ‘The Philippine Bill of 1902. e. The Philippine-Autonomy Act of 1916 The Philippine Commonwealth Period... a. The Tydings-McDutffie Law of 1934 b. The 1935 Philippine Constitution €. The 1935 Philippine Constitution with Amendments). 4. The Government in Exile..... The Second Philippine Republic (Japanese Period) The Third Philippine Republic. a. Civilian Authority Under President Osmefia restored b. The 1947 Amendment (Parity Right. ¢, The 1973 Constitution Martial Law Period. a. The Amendments to the 1973 Constitution srr Provisional Government Fourth Philippine Republic a, The 1987 Constitution ... The Philippine Legal Tradition... L 2, ‘The In Re Shoop Case ‘The Philippine Legal System is a Mixed One but primarily Civil Law... even 133 134 135 136 138 140 144 145 46 148 150 152 156 156 157 161 161 163 168 168 169 169 170 115 7 179 179 184 184 191 PART | — LAW IN GENERAL A. Law, its role in society. Law is a dynamic force for maintaining social order and pre- venting chaos in society. It is difficult to imagine the existence of a community without law. Lawmakers, courts, and other officials of the law help to preserve a harmonious society. A basic understand- ing of the law and the legal process of one’s community promotes better understanding of society. Law is not a body of static rules to be obeyed by all citizens subject to its sanctions. Rather, it is a dynamic process by which rules are constantly being adopted and changed to fit the current problems of our evolving society. Law embodies the story of a nation’s development through the centuries. From primitive customs, codes, and practices, the law of the nation evolves becoming a sophisticated system administered by highly trained jurists. Our present-day law should not be taken for granted. It represents years of struggle and thought. To fully appreciate a nation’s legal process, we need 1 understand its past.? B. Law, defined. Lok comprehensive sense. The term “law” in its most comprehensive sense means any rule of action or norm of conduct applicable to all objects of crea- tion. It includes all those which necessarily determine the activity of men, all those which necessarily determine the motions or stincts of brute creatures, and all those which God, before all things, has imprinted on the whole of nature. ‘Grillo. and Schubert, Introduction to Law & The Legal System, Boston, Houghton Mifflin Company, 1989, p. 1 td 2 INTRODUCTION TO LAW ‘The word “law” in the English language is used to refer to both the sum of all legal rules (ius, droit, diritto, derecho, Recht) and the express rule laid down by legislative authority (lex, loi, legge, ley, Gesetz). 2. In its specific sense. Law, in its specific sense is a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit? ‘The characteristics of law therefore are: 1) it is a rule of con Guct, 2) promulgated by competent authority, 3) obligatory, and 4) of general observance.* ‘An example is the New Civil Code of the Philippines. It pre: scribes rules of conduct governing the private relations between ‘one person and another on family matters, property, succession and contracts, among others. It was enacted into law in 1950 by the Philippine Congress, the competent authority to promulgate such laws, All Filipino citizens are obliged to follow the rules and norms prescribed by the Code. Finally, the Code is applicable to all Filipinos alike without distinction and therefore of general observ- C. Law and Morals. Morals is the aggregate of all the rules of human conduct growing out of the collective sense of right and wrong in the com- munity? In every community or group of people, certain rules are im- posed on the members because in every people united in society there are wants and demands which are different from one an- other. In the interactions between these rules there arises a set of standards of what is good or bad, and therefore either enjoined or prohibited. These rules then are applied to the members in the 91 Sancher Roman 23. ‘folentino, Commentaries and Jurisprudence on the Civil Code, Vol. 1, Quezon City, Central Lawbook Publishing, 1985, p. 2 "Gamboa, An Introduction to Philippine Laue, 7th Ba,, Quezon City, Central Lawbook Publishing, 1964, p. 3 PART 1— LAW IN GENERAL 8 community, imposing upon them certain definite patterns of good conduct in regard to their external relationships. Every member, in other words, is commanded or forbidden to do or not to do certain things in conformity with the totality of the moral laws of the community. Although laws and morals have a common ethical basis — the social conscience, and a common purpose — the happiness of man, the field of morals is more extensive than that of law. Law covers only social activities, or the relations of man to his fellowman; but the field of morals includes, not only the duties of man to his fellow-being, but also those to himself and to his God. Even among our duties to our fellowmen, many are still dictated by morals, such as those which have a psychological basis, including the du- ties of assistance and eelf-sacrifice.® In view of the distinetion between law and morals, an act may be entirely in conformity with law but contrary to morals; and vice~ versa, conduct may be justifiable from the point of view of morals but contrary to law. Law and morals, according to Colin and Capitant are like two concentric circles; it is, however, perhaps more accu- rate to say that they are like two intersecting circles, with many principles of one of variance with those of the other It is plain that there is much law that has nothing to do with morals. That a driver shall keep to the right or left side of the road, or the traffic laws, have no connection with morals, So, too, is the question of whether there shall be one, two or three witnesses to a wil or deed, Conversely, what is moral may not be legally demanded. A witness to a crime may be morally bound to report said crime but there is no law punishing said witness if he fails to do so. ‘The inter-relationship between law and morals is implanted in our New Civil Code. Article 21 provides: “Any person who wil fully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the lat ter for the damage.” When Chairman Jorge C. Bocobo of the Code Commission was asked whether this proposed article would obliter- ate the boundary line between morality and law, he replied: “The Potentino, op cit, pp. 2-8. Id, p. 4 INTRODUCTION TO LAW answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man.” Dr. Bocobo found inspiration to bolster his cast of mind and attitude towards morality from a similar provision in Article 826 of the German Civil Code, The appeal of this Code is that: “It: does not try to teach men in a broad sense, but it emphasizes ethical im- peratives. Good faith and fair dealing are to be observed in all affairs, Breaches of good morals, abuse of rights, and underhanded legal transactions are defeated. The code was meant to fit the soci- ety of the turn of the century, but through general clauses that eave the making of specific norms to the judges, it could be adapted to new economic, cultural, and socio-political postulates."* Dr: Bocobo found it necessary to stick to old precepts of law as enshrined in the Institutes of Justinian, which says: “Juris praecepta sunt haec: honeste vivere, alferum non laedere, suum euique tribuere,” rendered into English: “The precepts of the law are: ‘fo live hon- estly, to hurt no one, to give every one his due.” He explained “When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes.” Thus, as a basic rule of human conduct, Chairman Bocobo provided in Article 19: “Every person must, in the exercise of his rights and in the performanee of his duties, give everyone his due, and to observe honesty and good faith.”® D. Law and Customs. Custom is another method of regulating human conduct which presents much the same problem in relation to law as does morals. But there is at least one important difference between moral and customary rules. Customs are far less imperative in their force for they do not normally imply ethical evaluations. To fail to distin- guish law and custom is to confuse the normative with the existen- ‘Rivera, The Father of the First Brown Race Civil Code, Quezon City, UP 1 1978, pp xii Law Ci % PART 1 — LAW IN GENERAL 6 tial. A custom is merely that which is habitually done in the com- munity. It is distinguished by the element of convention, although naturally what is usual is likely to be thought right. Thus, in China, it is customary to use chopsticks in eating while in the West, knife and fork are preferred, but one method is not regarded as ethically superior to the other. Nevertheless, the neglect of even such a customary social rule as that, for instance, which forbids eating peas with a knife may have dreadful consequences. It is, however not so much custom as “customary law” that has troubled jurists. Customs may exist with reference to other matters than social convention, They may govern relations which the modern world are commonly treated as juridical. In rela- tively advanced communities, the manner of selling a chattel, or holding land, or collecting a debt may be governed ky customs, and we shall see that in the most primitive communities, which have no forms of political organization, the whole sphere of social rela- tions is almost entirely regulated by custom. Primitive “law” is customary law par excellence. Its only sanction lies in habit. With advanees in political organization, however, customary law begins to break down rapidly, or rather its recognition begins to depend upon the sanetions of the political government. The “customs” are thus rapidly translated into “law” and thus enter upon a new exist- ence. The origin of many rules of law in custom is long remen bered. Land is still held in England by “the Custom of Kent,” al- though the enforcement of this custom now depends upon enforce- ment by the courts. As long as the administration of justice has not yet been taken over by a professional class, it is easy to maintain the illusion that the law is still nothing but custom. ‘The judges seem only to be declaring the popular custom rather than making law. But Tong after law has become professionalized, it is common to continue to speak of customary law; then, however, the term has become hardly more than a synonym for “unwritten” law."? Mankind has been governed by custom longer than it has lived under the reign of law. It is little wonder, then, that many jurists not only have tended to see in custom the most fertile source of law but have also regarded law itself as the spontaneous expres- "William Seagle, The History of Law, Now York, Tudor Publishing Co., 1946, p10 Md. pa. 6 INTRODUCTION TO LAW sion of the genus of a people, which develops naturally very much like language.!? E. Law, its general classifications. Law in its broadest sense can be classified into natural law and positive law. 1) Natural Law Natural law is not a legal system but consists of certain fun- damental precepts of life which are discoverable through divine inspiration and the use of reason. It is a system of rules prescribed by divine inspiration to all men, not by any formal promulgation, but by inward impression upon the human heart and those rules attained by the light of natural reason and understanding, Natural law originated in ancient Greece. The Grecks per ceived the order and regularity pervading the whole of nature with- out which there would have been chaos. Heraclitos (540-475 B.C.) defined natural law as the natural harmony and order of divergent things and events, In Antigone, a drama written by Sophocles (496-406 B.C.), King Creon of Treves prohibited Antigone, the sister of Polyneikes, from burving the latter. King Creon had killed Polyneikes, a rebel, and ordered his body to rot outside the city walls. Antigone invok- ing the “unmutable unwritten law” or natural law, appealed to Creon who refused. Antigone nevertheless buried Polyneikes and she was in turn buried alive upon orders of Creon. Plato and Aristotle later on strengthened the natural law theory by providing it with a philosophical foundation. As Cicero who brought the Greek idea of natural law into the Roman legal system, puts it: “There is indeed a true law (lex), right reason, agreeing with nature, diffused among all men, unchanging, everlasting. . . It is not allowable to alter this law nor to derogate from it, nor it be replaced.”"* Examples of the precepts of the natural law are righteous- ness, justice, equity and fairness, "ra Gamboa, op. cit, p. 8, citing De Republica, bk ii, XXUL PART I — LAW IN GENERAL 7 Natural Law can be further subdivided into physical law, moral law and divine law. a) Physical law In the operation or course of nature, there is uniformity of action or order of sequence. These uniformities and order are so constant that they are completely depended upon with confidence and belief. These are known as physical laws or laws of physical ‘To this class belong the so-called laws of gravitation and the law of chemical combination. For example, two atoms of hydrogen and one atom of oxygen if combined will always produce a molecule of water. They are really but expressions of a certain order in nature according to which certain results always follow certain b) Moral Law Moral law is the totality of social norms regulating human activity growing out of the collective consciousness or public sense of right and wrong of the people. It arises from our conscience and applies to our higher faculties. An example is the rule to do good and avoid evil.!® ‘These norms set tho pattern of good and exemplary conduct or the aggregate ethics of the community. Another example is the norm that spouses must be faithful to each other. ©) Divine Law ‘The system of rules which God laid down to govern the opera: tions of the universe is called divine law. These rules are according to the will and command of God. Divine law is the law of religious faith and concerns itself with the concept of sin and salvation, of death and life, of the temporal and the eternal. It is the law of God.16 Under the Old Testament, divine law is embodied in the Ten Commandments. Under the New Testament, divine law is found MGambos, op. cit, p. 4 '$Paras, Civil Code of the Philippines Annotated, 12th Ed, Vol, p. 2 Paseual, op. eit, p. 2 8 INTRODUCTION TO LAW not only in the Ten Commandments but also found summarized in the Golden Rule which ordains men to love their Creator and neighbor in the manner prescribed by Jesus Christ." Divine Law is the revelation to mankind of eternal law. In the words of Professor Paul J. Glenn: “The Eternal Law is God's eter- nal plan and providence for the universe. God, decreeing from eter- to create the world for an end (which is Himself) eternally s and directs all things toward that end. ‘Thus, there is from nity a “plan of Divine Wisdom as director of all acts and move- ments” — and this is The Eternal Law. St. Augustine defines the Eternal Law as the divine reason and will commanding that the natural order of things be preserved and forbidding that it be dis turbed. The Eternal Law extends to all acts and movements in the universe. Thus, bodies obey the tendencies of their nature and follow the laws of cohesion, gravity, inertia, ete.; plants grow; ani. mals follow the guidance of instinct; the earth turns upon its axis; the heavenly spheres swing through their mighty orbits; all in accordance with the Eternal Law, powerless to reject its influence cor to disobey.!® A subdivision of divine law is canon law, the law of the medi- eval Roman Catholic Church, which, as revised, is still enforced by the Catholic Church today. 2) Positive Law Positive law consists of rules of conduct, promulgated by com petent authority that regulate human relations. In its particular strict term, positive law means a statute created by the legislature of a State. Example is the New Civil Code of the Philippines of 1950. Positive or human law is in turn divided into two main classes in accordance with the scope or content of the law: general or public law, and individual or private law. General or public laws govern the relations of the individual with the state or community as a whole. Individual or private laws regulate the relations of the members of a community with one another. "ra, \sftamirez & Sison, Introduction to Philippine Law, Manila, Philaw Publish ing, 9.5 PART I — LAW IN GENERAL ° Examples of general or public law are: Constitutional Law, or that which governs the relations between human beings as citizens of a state and the governing power; and Criminal Law, or that which guarantees the coercive power of the law so that it will be obeyed Examples of individual or private law are Civil law, or that which regulates the relations of individuals with other individuals for purely private ends; and Mercantile law, or that which regu- lates the special relations produced by commercial transactions.” Positive Law can also be subdivided based on whether it ere- ates a right — substantive law, or merely provides the procedure to enforce private rights — procedural law. Constitutional law and civil law are examples of substantive law while remedial law, the study of the rules of court, is an example of procedural lav. Positive law ean likewise be classified as either mandatory o permissive, Mandatory laws are those which have to be compli with, beeause they are expressive of puble policy and disobedonce i nih iter by dec penal or by concring an a ot contract oid. Perminsive laws ae those which may be devia from, if the individual so desires.”” ° deviated F. Law, its nature. According to former Court of Ap) justice Crisolito Pascual, the foremost authority on the nature and philosophy of the iaw in the Philippines, the origin, development and function of law may be separated into various schools as follows: (a) The historical school of jurisprudence which appraise the law in the context of the common consciousness of group of people. The question this juristic school seeks to answer is, "Where did the law come from and how did it evolve?” -(b)- The teleological school of jurisprudence which considers the nature of law in terms of the moral and rational nature of human beings. The question emphasized by this school is, “What is the éelos or end of the law?” "Tolentino, op. cit, pp. 3-4 "Paras, op. cit, p. 4 10 INTRODUCTION 70 LAW (©) The positive school of jurisprudence which considers the law as a conscious rule or norm of the State backed by its authority and force. For this juristie school the problem is, “What is the distinctive structure and content of the law?” (@)_ The functional school of jurisprudence which considers the law in terms of the satisfaction of the conflicting or overlapping claims, demands, and expectations of the people with the minimum of friction and waste. The question which this juristie school raises is, “How does the law work in weighing the competing individual ‘and public interests in light of the jural postulates, social interests and national policies? What is the function of the law?” (e) The realist school which takes the law on the basis of the on-going experiences of the people. This juristic school asks the question, “Is the law verifiable in the practical life of the people?” (The policy science school which considers the law in rela- tion to the degree of suecess of a community in achieving certain socio-legal values. ‘The question this juristic school raises is, “What. is the basis and the limits of an effective global. regional and na- tional legal orders in relation to the social values Another school of thought on the nature of the law is the ‘Marxist-Leninist school which considers law as the socio-class regu- lator expressing the state will raised to the level of law, of the economically dominant class. It performs a protective function against counter-revolutionaries, hooligans and other disruptive ele- ments, The Marxist-Leninist view was further developed by Evgeny B, Pashukanis, who believes that the economic organization of capi- talist society is determined by commodity exchange and that law constitute a kind of “superstructure” reflecting the economic or- ganization of society, This school maintains that in the finally achieved state of communism, law and the state will wither away.”* What does law protect? 1. The Historical View The historical school or jurisprudence examines the manner "Pascual, Introduction to Legal Philosophy, Manila, Premium Printing Press 1994, pp. 5:6 weeny B. Pashukanis, Low and Marxism, Great Britain, Pluto Pross, 1989, pp. 12:19. PART 1— LAW IN GENERAL u of growth of a legal system. Historical jurists have tended to regard custom as the foundation upon which the law was originally based. This juristic school was founded by Friedrich Karl Von Savigny (1779-1861), a German jurisprudent and legal historian, who in 1814 published his great work entitled, The Vocation of Our Times for Legislation and Jurisprudence. For the historical jurists, the problem of the nature of the law cannot be understood properly without reference to, or appreciation of, these historico-social conditions in which it has grown. For them, the law could not have thrived except in this environment. ‘Von Savigny called custom the real producer of sound law. Law, according to him, is a spontaneous emanation from the life and spirit of a people. ‘The historical school introduced the philosophy of the Folk- Soul to the concept of the nature of law. The law thus constitutes the soul or spirit of the people which permeates the members of the community in common. This folk soul or folk spirit is called the volksgeist. To put the same thing in another way, the historical school regards law in direct relationship with the life or national development of the people. In the words of Sir Henry Sumner Maine, the acknowledged leader of the historical jurisprudence in England, the law is the product “of the huge mass of opinions, beliefs, superstitions, and prejudices of a people produced by institutions of human nature reacting one upon another."2* Having achieved a language, the people began to articulate itself by means of opinions, beliefs, longings, usages, traditions, idiosyncrasies, arts, customs, and even superstitions. This mass of oblutiacs constitutes the traditional sources of the jural substance or materials of the people. In the course of time, these oblutiacs were expressed in laws, rules and regulations" As Justice Cardozo "William Seal Carpenter, Foundations of Modern Jurisprudence, New York, Appleton-Contury-Crofts, Inc, 1968, p. 21 Pascual, op. cit, pp. 71-73. "fd, op. cit, p. 71 Sid. p74 1d, p. 76, 2 INTRODUCTION TO LAW of the Supreme Court of the United States said, “history built up the system and the law that went with it. In the study of the nature of the law, historical jurisprudence has applied the concept of the foul-soul or diwa of a people. The volksgeist or diwa of a people provides a means to fathom the legal history or evolution of the law of the people. Historical evolution erves very well as a guide to legal thought. ‘The historical doctrine of the nature of the law is also valuable and significant to policy planners and government functionaries. They may draw on the volksgeist or diwa of the people for legal precepts and legal stand- ards as well as positive rules of conduct.2" 2. The Teleological or Philosophical View ‘The thrust of this school is basically teleological for it views the law in terms of its basis and fulfillment of its purposes or ends. The influence of natural law philosophy can never be escaped, at least, insofar as the teleologists are concerned. The teleological view of the nature of law therefore is properly the broad natural law idea. It is based on the emphasis of justice and ethics and closely related to the problem of the ideal end of the law. ‘The philosophers of ancient Greece, who first worked on the problem of the nature of law, felt the need for an unassailable starting point in the development of their concept of the law. They believed they had found it in the moral nature or good faith of man. ‘Thus, to the ancient Greeks, the inquiry was for the relationship of law to justice and ethics which, by them; cannot be ignored. Socrates, Plata and Aristotle were af the helief that man has basic understanding of right and wrong and that this virtue is related to the standard or measure-of the good. Socrates, in particular, postulated the ethical tenet. that no ‘man is voluntarily bad or evil, notwithstanding that quite often man is ruled by his base appetites resulting in failure to do the right or avoid the wrong. According to Socrates, one who knows that @ thing is right or that a thing is good will generally do or choose to do that thing. It is, however, in the process. of realizing what. is right that one often stumbles and. falls because of the "1d, p91 id, pp. 94-95 PART I — LAW IN GENERAL 18 corruptive tendencies of the physical senses, Thus, unless a person is guided by the criterion of the absolute good, his moral scruples would not be tenable and it is very likely that he would end up acting wrongly. Therefore, for Socrates, the master virtue is knowl- edge of the absolute good,® Plato utilized @ great deal of his master's thesis, But Plato argued for a rational principle of rectitude and just dealing of men with one another. Since man is an intelligent and sensible being, reason provides him with the means or opportunity of discerning what is right and what is wrong.®! In The Republic, which ap: peared in the most critical period of the Athenean republic, Plato identified justice as the universal virtue, the single greatest good, and injustice as the universal vico, the single greatest evil. He considered the law as an instrument of social control with the paramount aim of discovering, maintaining or administering jus tice and morality Plato's doctrine is that justice is a part of human virtue and is therefore synonymous with morality. Justice is at once a part of human virtue and the bond which joins men together in society. It is an identical quality which makes man good and which makes him social. On the other hand, Aristotle felt that Plato's rational principle of rectitude as the solution to the corroding hostility between appe- tite and spirit is as extreme as Socrates’ knowledge of the absolute ‘good as the governing rule in human conduct. Thus, while Aristotle adopted Plato's rational knowledge, he advanced the idea of fair equality as the standard of morality and good faith. This is to say that Aristotle settled for what is fair and equal as the criterion for the validity of human conduct. In his Ethica Nicomachea, Aristotle expounded a narrower concept of justice as the core of his legal philosophy. What he did was to bring Plato's concept of ethical justice to the level of human na:ure or disposition. The core of Aristotle's idea is that justice must be understood in the sense of what is fair and equal. Thus, fd, pp. 102-108. 2d, pp. 104-106, 1d, p. 105, Carpenter, op. ct, pp. 29-90, °Pascutl, op cit, pp. LN-107 “ INTRODUCTION T0 LAW le, an act is justified if and when it is done with “fair and thus capable of being done also by others." Law itself had its end and to Aristotle, it was clear that its task was to make men good. ‘This was deduced from his premise that the state does not exist for the sake of life only, but for the sake of the good life. But what is goodness? Everyone agrees, Aris- totle says, that the highest good is happiness and well-being. And he defines happiness as an exercise of the powers of life in aceord- ance with virtue throughout a whole lifetime. As regards the Roman influence on the philosophical school, it can be said that much of Roman culture was borrowed from the Greeks. Marcus Tullius Cicero, a Roman lawyer, magistrate, states- man, and a jurisprudent of great eminence, learned his law from Quintus Mucius Seaevola Il, a sincere adherent of the Stoie school of philosophy. Cicero absorbed the Greek idea of the universality of the natural law and brought it into contact with the Roman legal system.” In his De Republica, Cicoro postulated the activist idea of law. While accepting the Greek concept that the law is the product of reason which is in agreement with the postulates of natural law, Cicero believed that the law exacts duty and compliance by means of commands, not by its reasonableness alone, and prevents wrong- doing by means of prohibitions. Thus, for Cicero, compulsion is an essential element, of the law.®® But Cicero did not ignore the role of ethics in the legal order. In his De Legibus, Cicero posited the view that man is born for the supreme virtue of justice, for “if they have received the gift of law, they have received justice also.” An individual cannot violate his own sense of justice.*? ‘True law, he said, “is right reason in agreement with nature; it is of universal application; unchanging and everlasting; it sum- ‘mons to duty by its commands, and averts from wrongdoing by its prohibitions. Inanimate things are bound to obey this law by natu- Std. p. Huntington Cairns, Lega! Philosophy from Plato to Hegel, Baltimore, The John Hopkins Press, 1949, p. 96, Pascual, op. et, pp. 108-110. 24fd,, pp. 10-111 7d, pA, PART I — LAW IN GENERAL, 15 ral necessity, but man discovers the law of nature through his reason. For those creatures who have received the gift of reason from nature, Cicero remarks, have also received right reason, and therefore they have also received the gift of law, which is right reason applied to command and prohibition. And if they have re- ceived law, they have received justice also. Now, all men have re- ceived reason, therefore, all men have received justice.*? Justice is defined by Cicero as that sentiment which assigns to each his own and maintains with generosity and equity human solidarity and alliance. It has its source in nature and as a matter of fact, we are born for justice,,The most foolish notion of all is the belief that everything is just which is found in the laws of nations. A law to the effect that a dictator might put to death with impunity any citizen he wished, even without a trial, is obviously not a just law. Justice is one; it binds all human society, and is based on one law, which is right reason applied to command and prohibition. Whoever does not know this law, whether it has been recorded in writing anywhere or not, is without justice.*" ‘The Roman lawyers who followed Cicero in the second and third centuries of the Christian era did not dwell at length on the meaning of justice. Ulpian, it is true, defined justice as “the fixed and perpetual will to give to everyone his due.” This definition was repeated constantly throughout the Middle Ages and was set forth in the Corpus Juris. Justice regarded at all times as a quality of will or purpose. But it was not until the rise of the Church Fathers that justice became identified with the will of God. In his Institutiones, on which much of Justinian’s Institutes of Roman Law was based, Gaius, like Cicero, advanced the view that some rules are perennial since they are based on the natural law while others are not since they are in derogation or perversion of its postulates. For Gaius, only the former comprise the law. In identifying this aberration in the legal order of a politically organ- ized society, Gaius advocated for a continuous effort of removing harmful and useless rules of law. In another way of putting it, laws must be re-examined by lawmaking bodies every once in a while. This procedure would then provide the means whereby any abnor- “Carpenter, op eit, p31. Cairns, op. eit, p. 144 Carpenter, ep. elt, p. 32 16 INTRODUCTION T0 LAW mality in the legal order could be adjusted to comply with the end and purpose of the law.** St. Augustine, whose active life eame at the close of the fourth century and the beginning of the fifth century, was the most impor- tant of the Church Fathers. His life was spent largely in the town of Hippo in North Africa, where he became a bishop and struggled to advance the Christian religion. It was here that he wrote his City of God, in which he restates from the Christian point of view the ancient idea that man is a citizen of two cities, the city of his birth and the city of God. Man's nature is two-fold; he is spirit and body, and therefore at once a citizen of this world and of the heav- enly city. Justice in the thought of St. Augustine is incomplete if it is not based upon Christian law as well as the law of nature. What St. Augustine undoubtedly meant was that justice, while essential to bind a people together in a state, cannot be wholly achieved where the people do not worship the true God. The importance of St, Augustine’s definition of justice lies in the conception of a single universal order which transcends the state. Both Plato and St. Augustine regarded justice as conformity to order; a society which did not maintain order though rules of law was inconceivable to the Greek as well as to the Christian. But Plato conceived man to belong to no society wider than the state, and subject to no law beyond that of the state. To him, the individual achieves justice when he takes his proper place in society. A just man will fulfill his appointed purpose when he conforms to the rules of the state of which he is a member. St. Augustine, on the other hand, saw man as a member of a universal and eternal society and subject to its universal and eternal law.'® The rise of Christianity during the twelfth century provided the theological foundation or basis, as supplement to the teleologi- cal or philosophical view, for the concept of the nature of law. ‘The echolastic thinkers, notably St. Thomas Aquinas thought of the law as an institution ordained by God. Here, the Greco. Roman notion of (impersonal) nature as the ultimate source of laws was substituted by the power of God who governs all things by the “Pascual, op. cit, p. 4 PART I — LAW IN GENERAL "7 rational arrangement and distribution of His Divine Providence. Under this concept, the loyalty of the people to the legal order is, held to be in accordance with the will or command of God, of which the Church was considered as the authoritative interpreter and final arbiter.“ St. Thomas Aquinas learned from the Greeks the importance of the precepts of the natural law doctrine in the formulation of positive or enacted laws. In his Summa Theologica, St. Thomas Aquinas introduced a combination of right reason, on the one hand, and justice and equity, on the’other, infusing it with the profound observation that the first prineiple of any concept is its governing rule of human conduet. Therefore, when he considered the law as the product of right reason he was moving towards a very high estimate of the law. On this idealistic evaluation, St. Thomas Aquinas believed that the law is an ordinance of right reason for the common good and happiness, laid down by him who has the care and welfare of the whole community, and made publie by those in authority to those who are subject to it” In formulating his legal philosophy, St. Thomas Aquinas ad- vanced the proposition that the public welfare or the common hap- pines is the first concern of the people since anything concerns a person to whom the end or purpose belongs. To this end, therefore, the law is ordained for the sake of lawness or the common good and happiness. To put it in another way, the happiness and good of the people should be the first and foremost ecncern of the law.'® 8. The Analytical or Positivist View John Austin, the nineteenth-century English moral and legal philosopher who gave the theory of legal positivism its first system- atic statement, argued that legal philosophy (jurisprudence) has two important but quite different tasks and that a failure to keep these two tasks separately produces both intellectual and moral confusion. He distinguished between analytical jurisprudence and normative jurisprudence. Analytical jurisprudence is concerned with the analysis of the concepts and structures of “law’as it is.” Norma- tive jurisprudence involves the evaluative criticism of law and thus cual, op. eit, p. 115-117 pp. 117-119, 6 INTRODUCTION 10 LAW represents claims about, “law as it ought to be.” That Austin draws this distinction clearly shows that his whole conception of legal philosophy involves a repudiation of natural law theory. Austin’s contributions to normative jurisprudence mainly involve some in- teresting attempts to apply the moral theory of utilitarianism to legal issues. The contributions for which he is most famous, how: ever, are in the area of analytical jurisprudence particularly his theory of the nature of law itself, his analysis of the concept of law. (“Law as it is” is called positive law because it is set or posited or given its position by human authority, hence the name “Legal Posi tivism.”)" The perception of this particular school of jurisprudence about the nature of the law is that it is objective, that is to say, con- sciously made or uttered within the bounds of the different branches of the government, and therefore, legally authoritative and com- manding.® Austin advocated the separation of law and morals. The tel ecologists’ concept that the norms of moral and natural laws are inherent in the concept of law is disputed by the positivist school.® ‘The school regards law as the totality of jural rules or prinei ples consciously set by men in the state as political superiors, to men as political subjects and enforced by material sanctions, ‘The law is something positive, existing as fact or reality, inde- pendent of the idea of justice and ethics. It is, in other words, the intimation or expression of the wish of the State to the political subjects regarding their conduct or volition, It is a wish expressed through the different organs of the State. The law is thus the will of the conscious power of the political State with intent to establish a rule of conduct, and emanates solely from it. The law in this view possesses three essential attributes, namely: conscious creation, generality, and authoritative enforcement. ®? Austin’s particular theory is often called “the command theory of law” because he makes the concept of command central in his ‘Jere G. Murphy and Jules L. Coleman, Philosophy of Lau Boulder, San Franelaco and London, Westview Presa, 1990, p. 19, ‘Pascual, op. cit. p. 168 rd, p. 169, 14. pp. 189-191 19 account of law and maintains that all laws are commands, even when they do not take a form that appears imperative in nature, What is a command? Austin defines a command in terms of two concepts: (1) signification of desire, and (2) ability to inflict evil or harm for the non-satisfaction of a desire. To command people to do X is simply this: to express to them my desire that they do X and to make it clear to them that it is within my power to inflict some evil or harm on them if they fail to do X. Austin calls this threatened and possible evil a sanction. A person so commanded is, according to Austin, bound, obliged, or under a duty to do what is commanded. 4, The Funetional or Sociological View Although Charles Louis de Montesquieu (1689-1755) is better known to students of law as the author of the principle of separa- tion of powers among the co-equal branches of government, he also discoursed on the development of law in the social environment in which it grows, including the morality, manners, polities, and cus- toms of the people. In stressing the relation of law to changing social conditions, Montesquieu can be said to have laid down the foundation of functional jurisprudence. ‘The sociologist Ludwig Gumplowicz. (1838-1909) was among the first to advocate the use of the interests of society in the solu tion ofthe problems of human relations. Montesquieu had expounded the view that the law is a living thing and that its development is interrelated with the social environment in, which it grows includ- ing the morality, manners, polities, religion, and customs of the people, He stressed the relation which law must have to these changing societal conditions. ‘The functional school takes for its authoritative starting point all the social phenomena or facts in relation to their actual effects in the community. For functional jurisprudence, the binding foree of law is based on the social interests. In the ordering of group interests, the emphasis is placed on what the law actually does in the community or gocial life, and having found that, how it can do it better. In the legal ordering, the S8Murphy and Coleman, op et, pp. 19-20. Pascual, op et, pp. 197-198, 20 INTRODUCTION TO LAW preponderating factor or value therefore is the welfare of the very society ordered. The social welfare should therefore dominate the promotion of group functions. It is the factor that sets the course, direction and extent of the process of attaining social solidarity or cohesion. On the basis of the functional approach and the continuous conflict of group interests in the community, the law is more-than just a self-contained set of abstract-norms; it is, in fact, the con- ‘tinnous process of balancing or compromising conflicting or collid- ing individual, religious, political, and community interests, whereby the social welfare or the good of the collective body is achieved with the minimum of social friction. Dean Roscoe Pound calls the process of balancing or compro- mising of conflicting interests “social engineering.” The object or end of social engineering is the social welfare." In 1906, in an address to the American Bar Association on “Causes of Popular Dissatisfaction with the Administration of Jus- tice,” he startled the entire bar with an original, highly critical, ‘and constructive analysis of the American legal system. His ad: dress shattered the complacency of many leaders of the bar, jurists land professors of law, and started a movement in the United States toward what is called “sociological jurisprudence,” which, under the constant leadership of Pound himself, has made enormous head- way and has radically affected, sometimes directly and sometim indirectly, the thinking of Ameriean jurists, judges, and lawyers"? An important part of his own thesis is the “theory” of inter ests,” first stated in 1921, that the law must determine between conflicting sets of interests, Whether that produces justice in any abstract sense is unimportant, for the law must find a way to enable people to live together. Some of these interests, Pound points, out, are protected by the State and thus “rights” arise, but inter- ests do not always result in rights, Constant reconciliation and adjustment are necessary between the interests of individuals. And there are other interests also to be taken into consideration: the social interests, or interests “involved in social life in civilized soci Syd, pp. 202-208. 881d, pp. 204-206. Wormer, The L PART 1 — LAW IN GENERAL a which might be called “ethical interests”; and “public inter- ests,” resulting from life in a political or organized society." Functional jurisprudence views law as ‘a highly specialized (coereive) form of social control, carried on in accordance with a body of authoritative precepts applied in a judicial and an adminis: trative process.” As such, law is a social mechanism for the engi- neering and adjustment of conflicting or overlapping interests. The Jaw is continuously engaged in the process of reconciling, regulat- ing or settling conflicting or overlapping wants, claims and de- mands with an eye to secure the maximum number of the social jnterests with the minimum of friction and waste, And thi ‘complished by the application’ of “social engineering.” 5. The Legal Realist or Pragmatic View ‘The term “legal-realism” is used to describe the experiential or empirical outlook of this juristic school on the traditional as- sumptions on law and the legal order. There are those, however, who prefer the name “pragmatic jurisprudence.” This is due to the Influence of the pragmatism of the scientist Charles Pierce, who first introduced it in 1878, the psychologist William James, who brought it forward again in 1898, and the educator John Dewey. ‘The use of this term is farther strengthened by the fact that it was the philosopher William James who greatly influenced the legal philosophy of Oliver Wendell Holmes, Jr, one of the forebears of this juristie movement, which led him to finally break with histori- cal jurisprudence. ‘The realistic school, as the term itself well implies, takes for its starting point all of reality or actual experience. In considering the realist concept of the nature of law, the concern is not so much with legal rules, theories, or categories nor with particular or sub- stantial justice because they aro fixed factors previously set or determined. ‘According to the positivists, the central concept in terms of which law is to be understood is that of a rule. H.L.A. Hart (along with many earlier positivists such as Kelsen) adopts what Ronald Dworkin has called “the mode of rules” — the view that law is best 91d, p- 488, S*Paseval, op. ld, p26 ., pp, 207-208. 22 INTRODUCTION TO LAW understood as a system of rules. Though this view has a certain undeniable appeal to those whose perspective on the law is aca- demic (eg., philosophy and law professors), it has often seemed misguided to many lawyers, judges, and social scientists doing em- pirical research on legal behavior — all persons whose contact with the actual workings of legal systems is on a day-to-day basis. Ear ier in this century, a group of Americans (loosely led and inspired by Justice Oliver Wendell Holmes, Jerome Frank, and Karl Llewellyn) developed something of a movement or school in juris- prudence called “Legal Realism,”®! Declaring that “the life of the law has not been logic, it has been experience,” Holmes ridiculed the idea that legal cases are best understood as the application of rules. If this were so, then why do so many cases get litigated (.e., why-don't people just apply the rules the way they do in chess?) and why is it that, in most cases that do get litigated, the outcome could really go either way, something one would not expect for genuinely rule-governo behavior? Perhaps, suggested Holmes, this is because the law is not a system of rules waiting there in a strongbox to be taken out by judges and mechanically applied to cases as they arise. The role of the judge is actually much more diseretionary and creative than this, Since the “rules” allow the judge considerable free play, he or she ean in fact decide the case in a variety of ways, and the way that is in fact adopted will be more of a function of such factors as the judge's psychological temperament, social class, and values than of anything written down and called “rules.” It is time, in short, for ‘more realism about the law, here “realism” is understood to mean a scientific examination of why decisions are in fact reached rather than some academic exercise about how decisions could be con- structed as logical consequences of rules. ‘Think of the law, said Holmes, as “predietion of what courts will decide,” and base your prodictions of what the courts will decide, said Frank, on a good psychoanalytic understanding of judicial temperament and not on some notion of “the rules.” Jerome Frank, a leader among the realists, in a brilliant book entitled ‘Law and the Modern Mind” contrasts appearance and reality in law. Borrowing from the techniques of psychoanalysis and applying these to the law, Judge Frank seeks to banish the Murphy and Coleman, op. cit, p. 92 ara PART I~ LAW IN GENERAL 2 myth that law can be entirely predictable. The law, for Judge Frank, consists of judicial decisions in which there can be no certainty, because a judge's decisions are the outcome of his entire life his- tory. Prejudices of which the judge may likely be unaware enter into the making of every opinion. The judge is expected to dispose of litigation, not to formulate rules and principles. The law is there- fore the individual decision and not system of general rules and principles. A science of jurisprudence, if it is to exist at all, must be constructed of other materials than the precedents and principles of the jurists which Judge Frank has consigned to the dustbin. 6. The Policy Science View ‘The policy oriented approach in jurisprudence was launched at Yale University by Professor Harold D. Lasswell and Professor Myres 8. McDougal. They enunciated the general idea of this juris- tic approach in their work, Legal Education and Public Policy: Pro: fessional ‘Training in the Public Interest. Unlike the theories of law heretofore considered, the jurispru- denee of policy science is aimed at the global, regional and national levels of legal orders. The scholars belonging to the policy science school of jurisprudence advanced the view that the direct and alter- native solutions to the problem of easing global, regional and na- tione) tensions which affects human relationships must move away from the value-free approach of legal positivism. It is the view of this juristic school that the application of social values in.the glo- bal, regional and national levels of public orders cannot be ignored. By “policy” is meant a settled guideline, strategy or program adopted by the legal order. And the term “policy science” means the disc pline concerned with the formation, clarification and realization of social values. The jurisprudence of policy science emphasizes the rights to life, liberty, equality, property, education, security, and the free exercise of the mind. This emphasis highlights the fact that in many places, the efforts in behalf of human rights and freedoms have been stifled, The policy science perspective views the law as an instrument for the echievement of the social values which is the professed end of a democratic policy. As stated previously, the jurisprudence of policy "Carpenter, op cit p. 221 “Pascua, op. cit, pp. 403.40. 2 INTRODUCTION TO LAW seience emphasizes the view that the law would be imperfect to the extent that it ignores the social values. The policy oriented ap: proach is thus an advocacy of social values." ‘The policy science school of jurisprudence posits the view that the law can truly be an instrument of global, regional and national control when “it is committed to the complete achievement to the social'values that constitute the professed ends of democratie socie- ties. This means that the law is an advocacy of consistent, compat ible and principled policies, legislation and decisions on the basis of the social values. From the perspective then of this juristic school, the law is a vital instrument for ordering conduct through the formation, clarification and realization of the social values where “the patterns of authority are conjoined with the patterns of con- trol.”"* 7, The Marxist-Leninist School From the positions of Marxist-Leninist theory, law is the socio- class regulator expressing the state will, raised to the level of law, of the economically.dominant class. This will is conditioned by the material conditions of the life of this class and consists of a system of generally binding, formally definite norms. In accordance with the existing system of norms, a complex of legal means and mecha nisms for regulation takes shape that is called on to express and ensure the implementation of the interests of the dominant class, the deep-running requirements of the given social system, its ide als and values.” This strict juridical concept of law is framed from the Marx's and Engel's concept of law as a class phenomenon and from Lenin's idea of law as a regulator. Moreover, the main thing that expresses and characterizes the features and specifics of law is its class-state nature. Lenin connected the very existence of law under socialism of regulator (deter. ‘and the allotment of with tho fact that “it porsists in the capaci mining factor) in the distribution of product: labor among the members of society” a, pp, 404-410 1a. pp. 461-462 ‘Serge Alexeyey, Socialism and Law, Moscow, Progress Publishers, 1990, p. PART I — LAW IN GENERAL 25 Lenin also saw the social significance of law and legality in the fact that they perform a protective function, In the Soviet Gov- ernment’s address “To the Population,” which he wrote in 1917, Lenin speaks not about the struggle against drunkards, hooligans and counter-revolutionaries in general, but about the need to sup- press the attempts at anarchy made by these people, about the need for the strictest revolutionary law and order. Tho struggle against counter-revolutionaries, bribe-takers, embezzlers, hooligans and disruptive elements was seen by Lenin as being the struggle for the strictest. socialist legality, so this is why he attached so much significance to organizing the Soviet judicial system. Itis quite indicative that Lenin considered the protective fune- tion of law in socialist society in unity with the need for compre- hensive protection of the democratic rights and freedom of the work- ing people. ‘The socio-class essence of law also determines its qualities. Since, owing to its class essence, law is called on to be a powerful socio-class force, it is characterised by such qualities as: its gener- ally mandatory normative nature; rigorous formal definitiveness, high degree of state support, including, if necessary, by state coer- cion. Hence, also, come the important regulatory qualities of law, in particular its universal character, ability to introduce uniformity into social relations, to be a stabilizing social factor and, at the same time to achieve, by legal means, the tasks outlined by the lawmaker and secured in the juridical norms of programes of behavior. ‘The Marxist-Leninist thought was further developed by So- viet writer, Eugene Pashukanis. Pashukanis' theory became known as the Commodity Exchange ‘Theory of Law, though it might better have been called the Com modity Exchange Theory of Legal and Moral Duty. The theory was built on two pillars of Marxist thought: first, in the organization of society the economic factor is paramount; legal and moral prin ples and institutions therefore constitute a kind of “superstructure reflecting the economic organization of society; second, in the fi- nally achieved state of communism, law and the state will wither 1a., pp. W-A2. 26 INTRODUCTION TO LAW In its main outlines Pashukanis’ argument was quite simple, ‘The economic organization of capitalist society is determined by exchange. It follows therefore that the legal and political institu- tions of such a society will be permeated with notions derived from exchange. So in bourgeois criminal law, we find a table of crimes with a schedule of appropriate punishments or expiations — a kind of price list for misbehavior. In private law, the dominant figure is that of the legal subject who owes duties, possess rights, and is granted the legal power to settle his disputes with others by agree- ment, The legal subject is thus the legal counterpart of the eco- nomic traders. With communism, economic exchange will be abol- ished, as will all the legal and political conceptions that derive from it. In particular, communism will know nothing of legal rights and duties ‘The same analysis was extended to the field of morals. With achieved communism, morality as it is usually understood (that is, as the morality of duty) will cease to perform any function, How far Pashukanis carried his theory may be seen in his attitude toward Kant. Kant's view that we should treat our fellow man as an end, and not merely as a means, is usually regarded as one of the noblest expressions of his philosophy. For Pashukanis, it was merely the reflection of a market economy, for it is only by entering rela- tionships of exchange that we are able to make others serve our ends at the same time we serve theirs. Indeed, any kind of reci procity, however, circuitously it may operate through social forms, casts men in a dual role, as ends in themselves and as means to the ends of others. Since there is no clear stop or breaking point between implicit reciprocity and explicit exchange, Pashukanis ends with the conclusion that. when communism is finally achieved all moral duties will disappear. ‘These views proved too strong (or at least too inconvenient) for Pashukanis’ contemporaries in Stalinist Russia, and he was liquidated in 1937. In justice to his memory, it should be said that his theories have atrong roots in the teachings of the communist forefathers. They obviously derived support from the twin doctrines of the superstructure and of the future withering away of state and law: "Lon L, Fuller, The Morality of Law, London, Yale University Press, 1964, pp. 24.26, PART Il — THE WORLD’S LEGAL SYSTEMS A. The Legal Systems of the World Throughout all times and places in the world’s history, there emerged only few peoples who have developed a well-defined, or- ganized and continuous body of legal ideas and methods, reaching the dignity and solidarity of a legal system. ‘These well-developed legal systems are classified into two: fits, thoseybased OH Cértaif"ethnic, cultural groups of people, and ‘second, those based on religion. Among those in the first catagory in its chronological order are the E@yptian, MéSapotamian, He- brow, Chinese, Hindu, Greek, Roman, Celti, Slavic, Germanic, Japa- nese, and Anglo-American. The second category is composed prima rily of the Catholic (Papal) legal system (or Canon lav), and the Mohammedan legal system. Of those in the first category, soRBYEFS"™Gone; some main. Toe Ateaaenn ne thelRomanitday cover'the greater part “othetworld’s populations The Egyptian and the Mésopotaraian, the older ones, have long disappeared. The Hindu survives by toler- ance under another dominant political system, Of the oldest, the Chinese alone survives in independence. In the second category, the Catholietor'Canion lawisystemistill ‘Seiste'as the law:for the members of the universal Roman’ Catholic EB, The Mohammedan system not only governs the spiritual life of its members but has been incorporated by many Islami states into their official legal system. hn Henry Wigmore, A Panorama of the World's Legal Systems, Vo. 1, St Paul, Wost Publishing Co, 1928, pp. & 28 INTRODUCTION TO LAW 1) Egyptian legal system ‘The Egyptian legal system is traced back to beyond 4000 B.C. Its location at the Valley of the Nile brought it into contact with all the great primitive race-stocks — as well of Africa as of Asia and Europe; and to all of them were transmitted some of its legal ideas."* According to the Greek historian-traveler Diodorus, Solon, the fa: mous Greek lawgiver, visited Egypt for the purpose of studying its laws.” From the emergence of the BEyptiaiiT@Haleystamtillits dis- appearance dtfing thelFéigitft@leopatra, Egypt had been, igh out, @ kingdom, in which the monarch was constitutionally the sole supreme ruler. He ruled sCGOFaliigt law; but he was its autocratic spokesman. In theory of law, every yard of land belonged to him, every man belonged to him, aliveiordeat, for none could even be buried without the king's assent. All law and all justice proceeded from him. In the modern way of describing the situation, the pr rogative for exercising the judicial, administrative and legislative funetions was vested in the monarch.”* In carly Egypt, we find the central royal court in which the Icing and his supreme judges administered justice as the focus of government. The roval’eourt'was'composed if thirty’supromiéljudges, and was presided over by the King's chief justice who held daily sitting in the palace as the Pharaoh's deputy. Originally, the office of prime minister and of chief parate, but soon after, and till the end of the kingdom, they were found merged, and th title “chief judge” signified always the king’s chief minister. There were provincial courts, presided over by administrative official and were under the Central Court ‘The following extracts from the speech of instructions pur porting to have been pronounced by King Thutmose III as long ago as 1500 B.C. in appointing Bekhmire to the post of chief judge over the kingdom could well serve as canons of judicial ethics even in modern times: Tt is an abomination of god to show partiality. This is the teaching: thou shalt act alike to all, shalt regard him who Md. pp. 11-12 "Diodorus History (Booth Trans; 1814), Vol. 1, p. 72 "Wigmore, op. cit, p. 13, PART Il — THE WORLD'S LEGAL SYSTEMS 29 is known to thee like him who is unknown to thee, and him who is near to... ike him who is far... An official who does this then shall flourish greatly in the place.” how forth the fear of thee; let one be afraid of thee, for a prince is a prince of whom is afraid. Lo, the true dread of a prince is to do justice.” Another king, already mentioned, Harmbab, instructed the judges appointed by him, thus: “You shall not take money from one party and decide without hearing the other; for how could you sit fas judges upon other men’s deeds when one among you is himself committing an offense against justice? The penalty for such an offense shall be death. And I, the king, have deereed this, that the laws of Egypt may be bettered and that suitors may not be op- pressed, For I, the king, have in memory the acts of oppression which have been done in the land.” ‘The oldest court record in the world is found in an Egyptian papyrus, preserved in the hieretic script, dating back from 2500 B.C. The record says: “The party Sebekotep alleges that one Usser, now de. ceased, father of the other party Thau, made the said Sebekotep to be guardian of his, the said Usser’s wife and children, and to that end delivered all his property to the said Sebekotep, to be applied to the use of the said Usser's family whether or not the property increased or decreased. But the party Thau de- nies that his father ever made any such c¢ nveyance” “If the said Sebekotep produces credible witnesses who will make oath that the said Usser did in their presence de liver the property on the terms set forth in the said Sebekotep’s written pleading then the property is to remain in his posses sion, But if he does not produce such witnesses, then none of the said Usser's property shall remain in Sebekotep’s posses- sion, but shall be delivered to the said ‘Thau, son of Usser.””* ‘The Egyptian king’s philosophy of the scope of his attribute of justice may be gleaned from a passage put in the mouth of Ramses IL, in his great survey or record of the kingdom's wealth. At one ‘Wigmore, op. cit, pp. 82-84. 30 INTRODUCTION T0 LAW paragraph in this record, the king recites his achievements as a Just ruler: “I planted the whole land with trees and green things, and made the people to dwell in their shade. I made the land safe, so that a lone woman could go on her way freely, and none would molest her. I rescued the humble from their op- pressors. I made every man safe in his home. I preserved the lives of those who sought my court of justice. The people were well content under my rule.” ‘The king was also, in theory, the sole legislator. The earliest human lawgiver in Egyptian tradition was named Menes (or, Mna); his date in history was as early as 3200 B.C. Some of the royal legislators’ names are preserved in fame, for the codes which they promulgated. The greatest was Harmhab, who lived about 1100 BC One of the earliest though not the very first, recorded treaty, was that entered into between the Egyptian King Ramses II with the Hittite King Hattushilish IM about 1272 B.C. Remarkably enough, it provided for mutual assistance not only in case of exter- nal attack but also in case of internal revolutions, and even went so far as to provide for the extradition of political offenders. Its provi- sions about extradition reveal the arrival of the Egyptians at the practical use of some of the standard concepts of modern jurispru- dence.” The native Egyptian legal system passed through many phases and survived under several foreign dynasties. But it began to be undermined in the eighth century before Christ by civil war then by conquests of invaders from Assyria, Persia and Greece. Finally, the Roman Caezars arrived to strike the final blow to Egypt's po- litical independence. Cleopatra was to be the last queen of Bygpt. By the defeat of Anthony and Cleopatra at the battle of Actium, their dominion was shattered. Roman law and government sup- planted its native institutions. fd, pp. 19-15. 361d pe IT. "1d. pp. 20-2, PART II — THE WORLD'S LEGAL SYSTEMS a1 2) Mesopotamian legal system ‘The legal system of Mesopotamia, the land of the two Rivers — the Euphrates and the Tigris — emerged in history by perhaps 4000 years before Christ. It endured amidst successive waves of conquest from east, north, and west, absorbing one after another. It lost its racial independence under the Persians about 500 years before Christ, and disappeared under the Greoks, about 100 years before Christ. The civilization of Mesopotamia was centered about ‘Babylon in the southern portion known as Chaldea and in Assyria in the north.”5 ‘The king was the foundatidn of justice, receiving the law from divine guidance. But under King Hammurabi (about 2100 B.C.), his deputized administration of justice passed from the hands of the royal priest-class, in the temples, to a body of royal secular judges, sitting commonly at the great gate and market place of the city.” “In the Mesopotamian system, as in the Egyptian and Hebrew, the king was the lawgiver, who was believed to have received all the laws of his people from a deity. The sun-god Shamash was the god of Law, whose children were Justice and Right. The first his- torically known Mesopotamian lawgiver was the Sumerian Urukagina of Lagash, who reigned in the first quarter of the third millennium, and another was Gudea the Just, who lived soma three centuries later” “The legislation of Babylonia has already been found in large art, One of the earliest peoples occupying Babylonia was the ins, a non-Semitic people; and a few years ago, an Ameri- can scholar discovered and deciphered a fragment of one of their primitive enactments. It is inscribed on a clay tablet 1 1/2 feet square, and dates from possibly 2400 years B.C. The characters of this inscription have therefore the solemn impressiveness of being the oldest code-text in the world yet discovered. But the greatest treasure of Babylonian law is the C5dB%ot "Hammucabi. In 1902, a Fronch archeclogical expedition excavating 1, py. 6868, the fins ‘Wiliam Seagle, The History of Law, New York, Tudor Publishing Co,, 1946, pti. ‘Wigmore, op. cit, pp. 84-86, a2 INTRODUCTION TO LAW the great mound of Susa unearthed the great pillar — Code of Hammurabi, King of Babylon, who reigned in the Land of the Two Rivers about 2100 B.C. Inscribed upon a pillar of black diorite almost eight feet high, it contains some three hundred sections. It dates back about 2100 B.C. ‘The Code of Hammurabi is the earliest known national code inthe world. It is also textually the mostscomplete and-authentic, as well as the most-advanced of ancientcodes, reflecting a long legislative history, The degree of legal'maturity represented by the Code of Hammurabi is far greater than that of the far later Hebrew Covenant Code or of the still later Roman Twelve Tables. Its provi- sions range over nearly the whole scope of - crime, famil property, commeree. The code reflects not only an agrigultural but also a trading economy, legislates on the subjects of carriers, mer chants, and agents, and fixes the charges of physicians, veterinarians, builders, boatmen, field laborers, artisans, ox-driv- ers, and shepherds and in other fields deals with the kissing of married women, over-reaching by female tavern-keepers, theft at fires, fraud by wet-nurses, and the breaking of the horns or the cutting off of the tail of hired oxen. For tracing the evolution of law, the value of this Babylonian Code is incalculable because about. 1920, the discovery of another partial code (the Code of Assur) dating from the later times of ‘Assyrian domination in Mesopotamia, about a thousand years after Hammurabi, enables us now for the first time to compare on a large scale different epochs of Semitic law. And since the full legal records of the Hebrew, another Semitic people, though more primi- tive, date some 500 years still later, the parallel comparison of institutions in these three adjacent peoples is bound to illuminate the problems of legal evolution. For example, in Egypt, the wife might by contract reserve the sole right of divorce; but in these three Semitic codes, only the husband could divorce; moreover, by the Code of Hammurabi, in the passage here shown, the-husband on-divoree is bound to restore to the wife her dowry; yet, by the Code of Assur, he may give her only as much as he pleases; while the Hebrew law says nothing of any payment by the husband "1d "Sid.,pp. 86-88; Seale, op. ct, pp. 104, 109 and 111 PART II — THE WORL 'S LEGAL S¥ 33 Code of Hammurabi, See. 138. — “If a man would put away his wife who has not borne him children, he shall give her money to the amount of her marriage settlement, and he:shall make good to her the dowry which she brought from her father’s house, and then he may put her away. Code of Assur, Col. 1, Sec. 38. — “If a man puts away his wife, he shall give her something if he wishes to; if he does not wish to, he shall not give her anything; she shall go empty out of his house.” Deuteronomy, Ch. XXIV, Verse 1. — “When a man hath taken a wife and married her, and it comes to pass that she finds no favor in his eyes, because he hath found some uftcleanness in her, then let him write her a bill of divorcement and give it in her hand, and send her out of his house.” ‘The most advanced ideas in commercial law had already been reached in Mesopotamian transactions. We find, as early as King Hammurabi’s period, a promissory note payable to bearer, dated 3 about 2100 B.C. it is the oldest negotiable instrument in the world, now known to us: “B shekels of silver, at the usual rate of interest, loaned by the ‘Temple of Shamash and by I, Company, to Idin and his wife, are payable with interest on sight of the payors at the market place to the bearer of this instrument.”* ‘The glories of the Babylonian kingdom made it long pre-emi- nent among neighboring peoples; the famous Hanging Gardens of Babylon were the theme of amazed contemporary visitors. Some 1500 years after Hammurabi’s day, about 550 B.C. when the He- brew people were now captive in Babylon (the great judge Daniel among them), that the Babylonian King, Nabunahid (as the Babylonian records call him), or Belshazzar (as the book of Daniel names him), gave a feast, and the mysterious hand came and wrote upon the wall. Belshazzar trembled and asked his wise men but they could not interpret the writing; and then Daniel was brought in to read it. The fourth word of the handwriting on the wall, interpreted by Daniel at Belshazzar’s Feast, was this: “Peres: Thy kingdom is divided, and given to the Medes and Persians.” And “in anata tng quek dound /00 B.C. ld, pp. 90-91 1d, p69, 4 INTRODUCTION TO LAW that night,” says the chronicle, “was Belshazzar the king of the Chaldeans slain.”** Belshazzar was the last native ruler of Babylonia, He lost his ‘empire to Cyrus, king of the new Persian nation, Aryans by race, ‘coming from the east. Other new invading races followed; and by a ‘century before Christ, under the Greek conquerors, the Babylonian legal system was supplanted. Hammurabi’s pillar-code, and the vast storehouses of legal records, were gradually buried under the rubble of ages; until, some 2000 years still later, another Aryan this time coming from the west, a French explorer, De Morgan, chanced upon the pillar-code and bore it away in triumph to the Louvre Museum — the greatest prize of the century for the revela. tion of legal history.” 8) Hebrew legal system Although the next oldest legal systems.are the Chines the Hindu, the Hebrew system is considered in this chapter, ahead of the two, because it naturally follows the Mesopotamian, The early Hebrew civilization was originally nomadic and pastoral, then agricultural, and only later commercial Both in Egypt and in Babylon, the Hebrew tribes sojourned for long periods as a subject people. About 2100 B.C., the patriarch ‘Abraham saw King Hammurabi as an enemy in battle. Nearly a thousand years later, the leader Moses with his brother Aaron, appeared in the court of Pharaoh (perhaps the great king Rameses I, 1300 B.C.) and Aaron, it is recorded, cast down his rod before the Pharaoh and it became a serpent; this was the first miracle by ‘which Moses hoped to soften Pharaoh's heart, and free the Hebrew from their bondage, And it was some six hundred years still later that the great Hebrew judge Daniel, when a captive in Babylonia, must often have looked upon the code-pillar of Hammurabi, which at that time still stood on the acropolis of Susa.%* In Daniel’s time, Hebrew legal-history was still in its first stage for the Hebrew legal system developed in five well-defined stages: ‘ra, pp. 91-99, "ra ra, PART Il THE WORLD'S LEGAL SYSTEMS a6 coy woo a ox ist came the Mosaic period, to 300 B.C., including the'kings, the prophets, and the judges; then, the class when the rabbi developed the law; then the iod, when the records were consolidated; then the medieyaljandithe modern Strictly as a system of law, it ended with thé second stage, A.D. 100, at the replacement of Jewish:law im Palestine by Roman rule; after that it became mainly local custom, chiefly in ceremonial and moral rules. During this first, or Mosaic period, the Hebrew government was what may be termed a theocracy, wherein the authority: and the:power: were ascribed to God, Justice was at first personally dispensed: by the tribal leader, but as the tribal population multi- plied and political life became more complex, the transition took place the personal justice of the tribal leader to an organized hier- archy of courts. In the book of Exodus, Moses delegated justice to professional judges.*? Solomon, the son of David, in all his glory became famous in his days as a royal builder; this date about 900 B.C. But Solomon the royal Judge, as a sage skilled in human nature, made his name for all time a synonym for judicial wisdom. And there were two women who lived together and had each a babe, and one babe died, and its mother exchanged it secretly for the living one, and they disputed for the living one before Solomon, and he said, “Take a sword, divide the living child in two, half for each.” And the false mother said, “So be it.” But the true mother said, “Nay, nay, do not slay the child, but give it to her!” And Solomon’s wisdom thus discovered the true mother and the people saw “that the wisdom of God was in him, to do judgment.”® 15 and the Mesopotamians before them, the heir law, whatever the period of its origin or its character as written or unwritten, to some first divine law- giver. To the summit of Mount Sinai, in Arabia, the lofty Pinnacle five thousand feet high from the plains below, Moses is said to have gone up to receive from Jehovah the Two Tables of the Law! the socalled Ten Commandments, x gy Aepaid ogo hae 14, pp. 109-110, ra. pp. 111-112. one 368 INTRODUCTION TO LAW In the Mosaic»period comes the Pentateuch, or Five Books, made up of narratives and Codes — Genesis, Exodus, Leviticus, Numbers and.D ks of the Pentateuch were The secontt ar is formed by the legal prac- tice developing and A.D. 200, The government was in theory still: cy, ie, diyine command inspiring the rulers. By this period, the function of justice had ceased to be a royal one. The Jewish people came now successively under the suze- rainty of Persian, Greek; and Roman.rulers; but in:their internal government the supreme authority.— religious, social, and politi. cal; legislative and jugiciary — wasivested in a Senate, known finally under the namé Great Synhedrion (this was a Greek term, meaning ‘assembly? hebraicized as “sanhedrin’; the native He- brew term was “Bet din hagadol,” or, “high council,’ “high court’) Tt consisted of seventy-one members, and its most frequent activity was that of a Supreme Court. Under the Roman sovereignty, the Jewish people for two cen- turies preserved the administration of their own law in the main. ‘The ruler Herod was still termed king; and at the inner Court of the Temple at Jerusalem a stone known as Herod’s Pillar, inseribed in Greek and Latin, was the symbol of this independence; it warned intruders of the death penalty for any Gentile who entered the holy spot.** But the convulsive political rebellions of the Jews, after the time of Jesus, led the Roman Emperor Vespasian to take rigorous revenge. Jerusalem fell, under the assaults of Titus, son of Vespasian in A.D. 70. And the soldiers carried away to Rome the sacred Ark of the Law; containing the Scroll of the Law, and the Seven-Branched Candlestick, as part of the spoils in Titus’ triumphal procession, ‘The Hebrew general was cast. headlong from the Tarpeian Rock, pursuant to ancient Roman custom with a vanquished people. He- brew self-government ended; and their legal system, as such, ceased to prevaih®® Sontedirin - 1d, pp. 107-108. 1d, pr 112, Md, p. 113, 1d. pp. 115-117, sta a x ‘The third period, the Tglmu: 1D. 500, is tro yd Peg singg about 300 B.C., digested in two authoritative col leetions — the“Mishneh, or codified text, compiled about A.D. 200, in New Hebrew script, and the Gemara, or commentary, about A.D. 300-500, song! in Aramaic script? ‘The fourth, or’tedieval, period of Hebrew law begins at the dispersion of tha dowish nation which culminated best AD 660 and extended over the next thousand years. In this a Sara SaLEIGeSESERSRGSEG Go Hotrew or atic. SERRE Cees epeceniteMO A aa conaipnitelsicone of te eet tamnas way Maimonides whe lived in Nog Afsicn tte 14004 and wrote Tairict aupls or tnd figleeeaeaaiaaascmaamnon and family life and commercial practice were kept alive; though the race was scattered in many countries}® - im ‘And this brings usg the fifth and last period in the history of the Jewish legal syste 00, nationalism in Europe begaurtrumatgamate all races who lived within given territories, and to emphasize national languages; so the Hebrewlanguage be- camevonly.a:secondary-one-for Jews. During this period, the) Tal- mud was critically studied and translated into the variousinational “languages.” But even today, theSerollvof the’ Law, Kildwnas Torah, oF precepts of Moses, fixed on two staves and unrolled from right to left in ancient fashion, is preserved in every synagogue; and the Ark of the Law, standing at the altar of the Synagogue, is thus'the ‘most important treasure in the Sanctuary, because it contains this the Jew's most precious possession, the Torah. As it is recorded that the good King Josiah, when the lost book of the Law was found, went up into the temple with all the people of Jerusalem, both small and great, and read in their ears all the words of the book of the covenent — so, still today, on the Sabbath, the Torah is solemnly read loud in every part of the land." Milealy pry towers pate Aacttite Klig Hecth slulish I] ra 128 Pt, pose (242 Be Aifuse m rondees| 28 INTRODUCTION TO LAW « 4 ,QRREER erases ‘The third earliest legal. system of the world in origin is the Chinese, beginning in history 300 B.C. Its ‘unique distine- tion is that it is the only old one that has survived continuously to date — a period of more than'4000 years; in comparison, the other living systems of today are but children.1°" ‘The Chinese are a unique race. They are the world’s greatest pacifists; they have never gone out to seek by conquest a single acre outside of their native territory. Conversely, they have been patriotically exclusive, and have never willingly admitted stran- gers into their native land and have absorbed several waves of ‘eonquest by the Turanian Mongols, Tartars and Manchus. And the reason, in both cases, is that they were entirely contented — con- tented with themselves, with their ancestors, with their history, and with their place in the world. The sturdy survival of the Chi- nese as a people is due to their strong clan and family structure and their consequent conservatism.!02 ‘About 500 B.C., China had as chief justice one of the world’s wisest men — Confucius. His philosophy, which is nota religion wers the whole range of personal morality and practical poli- ties, has now pervaded Chinese life (in spite of the inroads of rival systems) for 2400 years. He was born in Kufu, in the province of Shantung; but spent his life in many provinces as statesman, a philosopher; and a judge! + Confucius’ philosophy rests on a passionate yet rational re- spect for those conventions which the experience of the past has verified. “I.” he said, “ am a transmitter and not a maker for I trust and admire the men of former times.” “Filial piety is the root of all good conduct. What is filial piety? It is the skillful carrying out of the wishes of our forefathers." ‘A modern legal scholar, George Padeoux, explains the Chinese theory of government and justice which underlies its system of law thus: Clan ~ story Fawile altace 2 Toga, p14 Fucias- i se Confacias- chied fuatia v.42 soe pi PART I — THE WORLD'S LEGAL SYSTEMS 39 “Since the dawn of its history, China has believed in the exist- ence of a natural order of things, or law of Nature, including all parts of the universe and adjusting them harmoniously with one ‘another. This order of Nature was not made; it exists and is its‘own reason for existence. Humanity is a part of it, and must conform to it. And as the elements in this order of nature are interdependent, whatever affects one element reacts on the others also “The consequences of this theory in the field of government and-of justice may be readily perceived; here are the most impor tant. “This afatural law does not yield precedence to positive law, i.e,, laws representing human experience and wisdom. Positive law ought to confine itself to translating the natural law into written formulas. If this translation is correct, the written law is good and binding; if the translation is incorrect, i.e., if the prince or the governor in formulating his decrees has misinterpreted the law of nature, the written law is not binding. A Chinese will regard as binding a rule promulgated to “the edicts from on High” and he will deem himself freeito disregard it if he finds it in disaccord with the natural law. The notion will not occur to him that the same act can be permissible or forbidden, good or bad, just or unjust, independ- ently of its intrinsic moral quality and solely because the holder of political power has so labelled it. Thus, the almost religious respect for positive law, marking our Occidental civilizations of Greco-Ro- man origin, does not exist in China.”!% A marked contrast of the Confucian political philosophy with Occidental systems is that its fundamental maxim is emphatically overnment of m cv imi for the Chinese philosophy offfivernment is that a 5 a happy peopléi The Master said “Let there be Men, and nt will flourish but without the right men, government decays, There- fore the success of government lies in getting propor men. If you lead the people correctly, who will dare not to be correct? Hence, the institutions of a ruler are rooted in his own character and conduct.” Thus, tical he wisdom and ‘than on the text of laws.1% “Preface to Leang Ki‘Tehao, Peking, China Booksellers, Ltd, 1926. Wigmore, op. eit, pp. 145-146, 40 INTRODUCTION TO LAW It is indeed true that in the centuries just after Confucius (400-200 B.C,), a school of philosophers arose — known as the Legists — who repudiated entirely the doctrine of a government of menyinsfavor of the doctrine of « government of laws. Under the Chin and the Han dynasties (about 200 B.C.), for a century or 50, this philosophy obtained the upper hand, and was effectively prac- tised by able statesmen of that era. But its dominance was brief. It was but a passing episode, The Confucius principle, congenial as it is to the racial Chinese nature, was soon. once moreenthroned in Chinese government, and firmly maintained that place during the next two thousand years.!07 Another notable consequence of the Confucian philosophy (or Chinese character) is that-eonciliation and mutual adjustment. are looked upon as ideal elements of justice.’ =~ Related to this is another marked feature of China's legal aystom — the subordinate part played by the letior ofthe law, and the legislation as such. ‘Thefraler Should frame: the laws:to voice ‘he-wast-eenlimontaand-wanta-oG4haspooplc}— not to impore his Pomenal wil con aa unwilling pope; qasdimmmmmanstentcoc- tentment ‘The dates of the earliest Chinese codes or laws are doubtful. ‘The legendary history of China goes back to 2500 B.C. or earlier; but the oldest textually transmitted historical records date from about 1200 B.C. Some beginnings of codes, now lost, are attributed to the prior interval. But the earliest code whose text is now extant is that of Chow, about 1100 B.C, said to have been composed by ‘Tan, Duke of Chow, brother of the founder of the Chow dynasty. ‘Thisieode is/knowai as\Chow Li, or Regulations of Chow." ‘The Chow Li was sought to belextirpatied by the great “Burn- ing of the Books” in 212 B.C. This was a holocaust, decreed by an erratic ruler, who forbade all invocation of the constituted customs. of the past and thus aimed to free his own notions of government. from all conservative criticism. However, the Chow Li was secretly preserved.110 2d, pp. 145-146. PART Il — THE WORLD'S LEGAL SYSTEMS a After the Burning of the Books, many vicissitudes of codifica- tion ensued, The Tang dynasty, for example, about A.D. 640 issued accode of some 500 articles. The Tartar emperor Timur (grandson of Kublai Khan) about A.D. 1320, promulgated a code of 2500 articles. But none of the conquerors from the north attempted to alter es- sentially the traditional laws and customs of the Chinese. The great Tartar’ruler, Kublai/Khan who conquered China about A.D. 1260, founded the Yuen dynasty, and established Peking as his capital city, proclaimed that/“the doctrine of Confucius:was a law destined to govern all generations, . . . and-all should conform strictly to its divinelbehests; .. . for the state's laws are,constant and invariable, afd must be obeyed as the rule of conduct for all.” The most radical innovation attempted by the all powerful and broad-minded Kublai Khan was the introduction (A.D. 1269) of an alphabet, especially constructed on his order by a Tibetan scholar, to supolant the mul- tifarious Chinese ideographs; and) the very decree above, confirm- ing’the traditional laws, was:promulgated in this alphabet. But solid Chinese habit and thought: was proof against even this change; and after his death its use gradually lapsed." In the ensuing (native) Ming dynasty, about AD. 1400, the minister Young Lo framed a neve general code; and on this code was founded that of the next (gonquering) Manchu dynasty, the Tsing, some two centuries later*This Ta Tsing Lu Li or Code:ofilsing, eeame law about AD: 1650, and endured until thewevolution of AD 19121 cimiune “To taLany ~ 290% COpManTARY ‘This work consists, first of a Gdeproper, calléd Luthe text of which never changes; and secondly, of the/annual edictsyandijudi- cial decisions, called Li, which interpreted the Lu, made them flex ible, and adapted them to progress — much like the funetion of equity alongside the Common Law. There were abou: four hundred and fifty Lu sections, and (in the edition of 1907) about two thou- sand Li sections. The page (reading downwards, right to left) shows the Lu, or fixed constitution, printed in the lower space; the judi- cial rulings are seen above; and the Li, or annual molifications, are printed in the middle, Every five or ten years a new edition was promulgated with these interpretations inserted cumulatively at the code sections, thus bringing the system up-to-date.!!® -h Gok Ault prabes & Msp lt “og urd, pp 159-160, "fd, pp, 160-162 sn 2 INTRODUCTION TO LAW 5) Hindu legal system During the Jast 3000 years, India had been entered and domi- nated at least six successive times by immigrant alien races — Indo-Aryans, Persians, Greeks, Turks, Mongols, English. Aer World War Ii, India was granted her independence by England." Of the above-mentioned immigrant alien races, the Persia and tho Greeks only took booty/and left-no traces. The fourth an the fifth races, Soe in ESD! rought Mohammedan Jew, lived in jeweled magnificence, and developed in India the arts, of architecture, sculpture, and painting — the products of luxury and taste. The justice of these Mohammedan emperors was'done in the Hall of Audience in their superb palaces; and Diwan-i-Am, or Audience Room, at Delhi is known as the “Westminster Hall” of Delhi. The palaces of Delhi, Agra, and Fathpur, have been termed “dreams in marble, designed by Titans, and finished by jewelers.” ‘And the Mogul justice, of its kind, though corrupt:in some periods and places, was efficiently dispensed under many of their rulers. The Emperor Selim had a chain and bell attached to his own room in the palace, go that all who would appeal could reach him run- ning the gauntlet of the palace officials." ‘The English race, the last to-enter India, brought unit, lib erty, and honesVadministration; but Bnglish law in India is mainly public law, preserving‘in private law the various native customs.!"° And 50, of those six races of immigrants, the first, the Indo- Aryans; or Hindus, some 3000 years ago in origin, are the only race “that developed a native system of law.!"7 The Hinda soten danatovtnencttacits — Aisin Brahmanism (also called Hinduism) — each of which is both religion and law, Buddhism (which simply means “Enlightenment”), though of a later origin, developed earlier than Brahmanism and spread beyond the borders of India; but it has disappeared centu- ries ago from the Indian peninsula. An exile from its home, it proceeded then to conquer China, The Brahman branch, for its part, finally came to dominate.1!* sf, pp. 201-218, 81d, pp. 219-215. wera a isi PART Il — THE WORLD'S LEGAL SYSTEMS 8 Buddhism was founded by one man, one of the greatest: who ever lived — Gautama Buddha — born in Nepal sometime between {600 and 500 B.C. Buddha's basic teaching is the competvof Nir- vana, which means roughly the peaee of mind ag ol tat comes to man after he has qyercome three cravings hose: for rich @ sensual enjoyment and demortaity® ‘The active spread of the Buddhist branch dated about-250 BC. propagated by the edicts of King/Asoka — often termed the Constantine of Magadha, He. promulgated thirty. or forty. edicts, engraved.on stone, These edicts were composed in the Magadha script, a script older thansSanskrit; they represent the earliost extant law record of India, Most.of these edicts are short tracts, expounding and propagating his system of moral law, or“dhamma,” founded on the preaching of some two centuries earlier. This term “dhamma” (like “maat” in Egyptian, “fas” in Latin, and “themis” in Greek) had a broad inclusive import; it meant “righteousness,” “good form,’ “duty.” and as Buddhism developed — the religion embody- ing Asoka’s philosophy of life — the:term-*dhamma”-came:to in- clude the meaning “Law” ‘The new Buddhist system, carried in the Magadha script used by King Asoka, penetrated even beyond. India, into Burma, Siam, ‘Tibet, China, and the East Indian Islands. A Magadha script, in- deed, was found as late as/A.D,-1650:in’ the’ Philippine Islands, used for the Tagalog language." In India, between A.D. 400 and 700, a complete social and religious reaction took place. Buddhism was eradicated — as some say, by Brahmanistic persecution; but the true cause is not yet agreed pon by scholars. At any rate, though Buddhism has spread over the entire east coast of Asia, it has virtually disappeared from India, its original home. After A.D. 800 in India, Brahmanism pre- vailed for all Hindus. * Brahmanism, or Hinduism, apparently began in the days of the first Aryan invaders as a kind of nature worship; it developed into what is certainly the most complicated theology known to man- kind. It holds that one supreme being, Brahma, exisis in several Lityd,, Gunther, Inside Asia, pp. 890-891 tunWigmore, op. eit, pp. 224-226. aud, p. 297. smd, p. 242. “4 INTRODUCTION TO LAW forms or manifestations and is the universal spirit which pervades everything. ‘The rights of the Hindu population are still determined mainly according to the texts and eustoms.of the Hindu legal system, which traces its origin back for 3000 years, to-the'ancient Aryan invaders — the contemporaries of Moses, of Confucius, and of Rameses.22 °F The typical-law-book of the Brahman-Hindu system is the famous Manu, ascribed by tradition to Manu, the primitive author of this system, a pre-historic deity. This system was copi- ously cultivated, for twenty centuries, by the continuous specula- tions of several hundred priestly jurists, who produced thousand of volumes on law. This Hindu Code was a Brahman compilation which was, in point of relative progress of Hindu jurisprudence, a recent production. Its date of origin cannot be fixed with certainty, but the best opinion is that it was about the beginning of the Christian eral? Perhaps the most marked peculiarity of this sytem was the 4Brahman-Hindu-rules-of caste. Even today are found more than eighteen hundred castes and sub-castes; there are fifty million peo- ple who are untouchable by other individuals. The law-book of Manu is founded on the principles of caste.'?* & Caste is\asjoldas:IndiaolIt ie the inner citadel of Hinduism, It is the institution which makes India unique, the device breaking up Indians into fixed categories that has no approximation else- where in the world, “Every Hindu is born into a caste and his caste determines his:religious, social, economic, and domestic life from the cradle to the grave.” Noman may ever leave his caste, except to be expelled. Tt is impossible to progress from caste to caste."2” Below the“Tourth caste — outside of caste — are the [Untouchables Possibly, the* Untouchables. were originally the ‘Dravidians m the Aryans wanted to subdue.!2° The great, the overwhelming characteristic of the caste sys- tem is that marriage between castes is forbidden. This rule is of unther, op. eit, p 391. won "*8Seagle, op. cit, p. 123. ‘oeWigmore, op. eit, p. 244 1 tan PART I — THE WORLD'S LEGAL SYSTEMS 45 course what enables caste to survive unshaken, Nowadays, the rule has been somewhat relaxed, but marriages between a Brah- man, say, and agSudra, are extremely rare. Marriage between a Brahman and af Untouchable would be unthinkable.” Up to the nineteenth century, India was a congerie of hun: dreds of principalities, in each one ruled independently a:mahara- So Grains EGRET arporty “one by sending judicial officials to go on circuit; but special classes of eases were reserved for the king's personal hearing and decision in the Audience Hall. The second hour, or period of the day, was set apart for his judicial business; and if the modern Hindu passion for litigation is a race-inheritance; the hour of royal justice must have been a crowded one. As inculeated in the Laws of Manu, the king, when he entered the assembly-hall, and: took the seat of justice to determine lawsuits, should be accompanied by three Brahmans learned in the Veda; he: was thenvassured: that» his’ justice was diyine; and-divine Justice, or Dharma, says the book of Manu, is like a mighty bull, who, if obstructed or deceived, will avenge him- self on kings, judges, witnesses or parties alike.4% ‘The Magadha script of King Asoka, in a more developed form Known as Pali, had become the repository of the Buddhist laws of Burma, Ceylon, and Siam; and the laws of those countries came to represent a modified Brahman Buddhist system."! ‘The basis of the Malayan civilization for several centuries was also the Buddhist-Brahman religion. For in southeastern Sumatra had/arisen, about A.D. 700, the: Buddhist:colonial kingdom of Sri- ‘Vishaya, whose domains finally extended to the Philippine Islands (where the tribal name “Visaya” still bears witness to its rem- nants). Later, about A.D. 1300, the kingdom of Madjapahit, origi- nating from a Brahman colony in Java, overthrew the Sri-Vishaya power, took control of the Philippines, and lasted for about two centuries. The Mohammedan invasion did not begin until this pe riod. At the time of the Spanish discovery of the Philippine Islands, not only were the more advanced tribes using the Hindu syllabaries for writing but also their mythology, folklore, polities, customary law, and general literature had a distinct Indian cast. Tera JoiGuntheg op, et p. 594 lnWigmiére, op, ct p- 228. fd, pp. 27-228, 46 INTRODUCTION 70 LAW 6) Greek legal system + ‘The earliest written record of Greece is the Iliad, the first and greatest epic poem of the world, composed by Homer, a poet of supreme genius, probably about 900 B.C. The Iliad recounts the peoples and civilization of ancient Greece during the 1300-1200 B.C., now referred to as the Homeric period, andvit is from this period down to the absorption of Greece into the Roman system, about A.D, 300 that the Greck legal system extended, Of the five earliest legal systems already considered, the Chi- noseMvas the only one not founded on religion; in the Egyptian, the ‘Mesopotamian, the Hebrew, and the Hindu legal systems, the law is conceived as revealed and imparted, through the ruler, directly from God, and therefore is a-part-of the dictates of religion. The later Mohammedan system was also of this type. With the Greeks, in their maturity, is first met a legal system that is secular; ie, it is not conceived as a part of religion emanating from a divine source. With the Greeks then, and after them the Romans, we come to secular systems of Jaw. ‘There was never (until Alexander's time) a single unified Greek nation, an empire, under an autocratic ruler. The Greek race emerges into history as a hundred or more local tribes, or clans, or cit states, each independent, and each based more or less on democ- racy. The Homeric poems show us the king at the head. He was at once the chief priest, the chief judge and the supreme warlord of the tribe. But he did not govern wholly of his own will; he was guided by a Council of the chief men of the community whom he consulted; and the decisions of the Council and King deliberating together are brought before the Assembly of the whole people. More important than either King or Council for the future growth of Greece was the Assembly of the people, or Agora, out of which democracy was to spring. r ‘The spirit of Greek justice, in classical times, was not theo- cratic, as in the earlier Oriental system already described, but was secular; and civic officials, not priests, administered it.)* ‘The earliest specific mention of Greek democratic justice is found in Homer's description of one of the scenes depicted on the ohn ~ amid ath im wm % gout ‘Wigmore pet, p 280 L. patches PART Il — THE WORLD'S LEGAL SYSTEMS « splendid shield which Hephaestos made for Achilles in the Trojan war wherein the parties plead their cause before the assembly of freemen; the chief presides as umpire; then the wise elders, skilled in the law, propose. various judgments; then-the: freemen. acclaim the best one and thus decide the case. 4° Athens came to be the most highly developed of the city states. ‘The organization of justice, and the jurisdiction of the various courts, at Athens, changed from time to time, with the political fluctua~ tion between demostacy and-oligerchy; but its sprit ater the reforms af Solon, and especially at the typical periods of Pericles (450 B.C.) and of Demosthenes (350 B.C. essentia eS B.C.), was essentially demo- ‘The places at which trials were held varied for different classes of cases and different periods. At Athens, the Agora, or market place, the Areopagus Hill, and the Payx Hill were the chief places of interest for law and politics. Usually, the Assembly meet on the hill called Pnyx; it was there that Pericles and other famous statemen, moved the assemblies with their eloquetice} and it was Giere in the open afr, under the warm blue Greek sky, before the massed multitude every citizen being a legislator, that the great art of political oratory was first developed in the world’s history3!"” Another hill, the Areopagus, was sacred to the logend of Gerlain ‘rials for homicide. In the legend, Orestes had deliverately Killed his adulterous mother, and was brought to trial; the Furies or Avengers were the prosecutors; the goddess Athena presided; she had frankly declared herself ready to cast the deciding vote in his favor, However, the jurors acquitted him; and Orestes, in gratitude, then erected a memorial altar to justice; and here met the onee supreme tribunal of the Areopagus, or Senate of One Hundred, as ordained in the goddess Athena's words:This eourt, majestic, in- corruptible, the sleepless watcher of my land I set)" It was on the Areopagus that Paul the Apostle made his memo- rable address to the people of Athens, “O men of Athens, God hath made of one blood all nations that dwell upon the earth.” And it “6, p, 288. 1p. 318. afd pp, 519-920 sy. \ ~ 48 INTRODUCTION 70 LAW is said to have been brought, related in the anecdote of the contin- gent fee of Pfotagoras, the teacher of oratory. He made a contract insisted that he was it. So the teacher sued. While waiting for ju ent is for me, he must pay; but if it is for him, he has won his: ‘ment is for have not yet won my first suit.” The judges, it i puzzled by this logical dilemma, but they adjourned the case for hundred years." ‘The trial method was only an advanced form of the early one y, depicted by Homer on the shield. AvAthens, six thousand or more names was made up. a panel of two hundred and one names (at each year For ordinary-cave another period, five hundred and one names), drawn by lot, might sulfice; but for special cases the pane] might be as many as one thousand or fifteen hundred or even twenty-five hundred jurymen. Under the systom intitated by Salon, as it ultimately devel s entirely in the hands of non-profes- oped, an Athenian trial was entirely in t sionals. The presiding magistrate was selected by lot, the. jurors. wore drafted from the whole citizen body, any:citizen-could be pros- ecutor, and the defendant-condueted his own case! ‘There werd magistrates) who supervised the preliminary pro: ceedings; but trial, the magistrate was no more than a chair man ofa public assembly, There was no presiding judge, to declare the law authoritatively. There was no,appeal, in the modern sense. ‘The citizens -werethe-whole court — judges of law and of fac without control. There was no jury-deliberation. After the evident and speeches, all filed out, casting their ballots in the verdicturn as they departed. fd, pp. 810-828, 01d pp. 291-292. sed etd, PART II —THE WORLD'S LEGAL SYSTEMS “9 Athenian law and justice had come to turn essentially on the _iury system, and it was elaborately organized, in the city’s constitu. ~ tion. An account of the procedure is given in detail in the text of Aristotle's monograph on the “Government of Athens,” in a papyrus discovered in Egypt and completely reconstructed only in 1903, and published in translation only in. 1920.%** About 399 B.C,, Socrates was accused. of impiety’and the cor- ruption of youth. The accusation ran: “Socrates is guilty of crime because he does not believe in the gods recognized by the city, but introduces strange supernatural beings; he is also guilty because he corrupts the youth.” The trial was heard in court of 501 judges, the king-archon presiding, and the old philosopher was found guilty by a majority of sixty. According to the practice of Athenian law, it was open to a defendant when he was condemned to propose a lighter punishment than that fixed by the accuser, and the judges were required to choose one of the two sentences, Socrates might have saved his life if he had proposed an adequate penalty, but he offered only a small fine, and was consequently condemned by a much larger majority to death. He drank the cup of doom a month later, discoursing with his disciples as eagerly as ever till his last hour. ites was the expounder (though not the inventor) of the ‘great art of'cross-examination as'a'mode of extracting truth; an art which the philosophers, in modern times, have misguidely aban doned to the lawyers. And even during those thirty days of impris- onment that elapsed before the fatal cup of hemlock was handed to him, afid while he sat in chains, conversing with his disciples in those masterpieces of dialogue transmitted to us by Plato, we find him still shrewd and genially wielding that wonderful weapon of cross-examination, in discussing the immortality of the human soul. The earliest of the Greek communities, known to us in defi nite records, was the large island of Crete, lying in the Mediterra- nean on the way from Egypt; and here, tradition places the home of ‘Minos, the first Greek law-giver. Minos’ date is perhaps 1600 years before Christ; and the throne on which he sat in the royal palace at 2814, pp, 299-206, SeBury, op it, P.S65, MeWtigmore, op. ci, pp. 292-298, 50 INTRODUCTION TO LAW Knossos, 3500 years ago, can now be seen by the traveler replaced in its original spot. Minos; in’ Greek mythology, received his laws from Zeus, and later plays the part of one of the three judges of souls in Hades. Among the lawgivers of the 7th century, the most well known were Dracon and Solon the wise, In Athens 621 B.C., D¥aé0n!was appointed an extraordinary legislator (Thesmothetes), and empowered to codify and rectify. the existing law. We know only the provisions of that part of his crimi- nal law which dealt with the shedding of blood for these provisions were not altered by subsequent legislation. In later times, it was thought that Dracon revealed to the Athenians how harsh their laws were, and his name became proverbial for a severe lawgiver. An Athenian orator won eredit for his epigram that Dracon’s laws ‘were written not in ink but in blood. This idea arose from the fact that certain small offenses, such as stealing cabbage, were pun- ished by death. A broader view, however, of Dracon’s code will modify this view. He drew careful distinctions between murder and vari- ous kinds of accidental or justifiable manslaughter.'” ‘The name of Solon, the legislator (who lived about 600 B.C.) is forever associated with the laws of Athens. Solcin typifies the thor- ‘ough democratization of Athenian law and justice. About 594 B.C., Solon was solicited to undertake the work of reform. He definitely undertook the task and was elected archon (regent) with extraordi- nary legislative powers. One of Solon’s first acts was to repeal all the legislation of Dracon, except the laws relating to manslaughter. His own laws were inscribed on wooden tables set in revolving frames called axones, which were numbered, and the laws were quoted by the number of the azon, These tablets were kept in the Public Hall. But copies were made on stone pillars, called in the old Attic tongue Kyrbeis, and kept in the Portico of the King. Every citizen was required to take on oath that he would obey these laws: and it was ordered that the laws.were to remain in force for a hundred years. Looking back over the Greek records, and comparing them with those of the people that preceded and followed, the truth Plats - aloe "4 By py 12 Rapwrlie - a bole "pero 282 Hat) ste “Bhi mann fe Aurktte PART Il — THE WORLD'S LEGAL SYSTEMS 51 seems to be that though the Greeks had/a'system of justice, it can hardly be said that they had a system oflaw — in the Roman and the modeyn sense of the term. They Gonstrysted-no-codes. They reported “no reasoned decisions. They wrote“no. doctrinal treaties. ‘They developed architects, philosophers, sculptors, and painters but no professional judges or jurists. Their one juridical contribu tion, the popular jury-court, took a form most susceptible to ca price, and essentially incompatible with any: science of law. They lavished their wealth on temples (witness the temples of Olympia); but not, as the Romans did, on courthouses. Alexander's vast empire left surviving it no permanent monu- ment of Greek law. Even the ruins of the Parthenon are stil zeal- ously studjéd and measured by modern architects. Every scene of Greck tragedy, and every school of Greek philosophy, must be fa miliar tj modern masters in those fields. But the resurrected texts of Roman law are still perused by thousands of students in every country as the ultimate source of a large part of the world’s law today. And Greek law more interests only the historian and the Philatogiat. Plactetan.= come pdd Cyatie 7) Roman Legal System (Roman Law) In its broad sense, Roman law refers to the entire legal order of the Roman state, from the time of the Republic to the Roman Empire, covering a period of almost a thousand years. In this sense, Roman law embraces public law, sacred law, private law and cus- tomary law. Frequently, Roman law is taken in a more restricted sense as the mature or developed system, as described in the Corpus Juris cit In this sense, Roman law means the private law gov- erning private rights, ‘interests, and transactions, excluding the -publicilaw’ of Rome. It is in this sense that Romanj/awiis\also road, general principles of the Roman Law enabled the successive Chancellors to find therein remedies’ to’ meet in’ marly matters the needs of those who had no remedy-at Common Law. Having once begun to remedy the wrongs brought about by the rigidity and technicality of the Common Law system,,Equity soon found itself establishing a jurisdictionoversmatters where the Common. Law had failed, and continued torfailsto recognize legal rights and duties. The law relating to trusts, for example, was entirely based on decisions of the Court of Chancery. Nonetheless, Equity was always a “gloss” on the Common Law; itvalways pre- sumed the existence of the Common! Law/and’simply supplemented it where necessary. That it continued to exist for some five centu- ries is an indication of the unchangitg’nature of English legal institutions, as/well as of the important contribution which equity made to the development of English law. YA, @ Bxamples of new rights. The whole of the lawief trusts, ” sS Which was to become an important aspect of property Jaw owed its J existence entirely to the willingness of Equity to recognize and forge the obligation of a trustee toa beneficiary. \Eablty accepted the use of the martgae as'a method of bor- rowing money against the\security of real property, when the Com- mon Law took a literal view of the obligation undertaken. bythe borrower. It introduced the “equity of redemption” to enable a bor- ower to retain the property Which-wee-thé security for the loan, Pomeroy, Equity Ju 75.80, epradence, Sra Ba., s9e.2, p. 34; Burdick, op. eitypp. *SBAdy, op cit, pp. 174-175, ’ INTRODUCTION TO LAW even where there was default under the strict terms of the mort- sane ded \ ()_ Bxamples of meumamedliesAt~Common Law, the only y “remedy for breach of contract was .g, a money payment as ‘¥ compensation for the Toss suffered, Bqutty realized that in come cases, damages was not an adequate remedy and therefoee, pro ceeded to introduce the equitable m andspe- cific performance. AREIRFORETOR used to prowent 4 party fram actin breach of his lal obligations; « deeroearapetepd- . is used to order a party to carry out his side of a emtract “These-femedies mean that a party to contract eannot just decide tobrealeitiand pay damages. p.nchsn Alvlea 270 7? Other equitable remedies are the dBClaFAtoruORdenvontjtlg. f€htythe right to have @ deed! corrected by the process known as rectification; and thesiGBBZe¥escind (withdraw from) a contract. The willingness of Equitystorintervene where rawdgwasypraved, and its preparedness to deal with detailed accounts in the law of trusts and the damiPisiratiomORestates also gained its wide juris- diction. The appeisitmientoPa receiver is another solution to the problem of the management of certain financial matters, and was introduced by Equity. (©) Examples o0{S2,55588UB8S. In contrast to the Common Law attitudes, Equity: favoped-a flexibility of approach. Consequently it was prepared by a pp” to order witnesses to attend, to 2S aS anenedansis comaeemenes documents to be produced, known as DiseoveryuofeDocumients, to insist on Fl6vanYGqEStions being answered, by the use oftTater- ‘PORSHSHES; and to have the cdS@hearduimBnglish, where the Com- mon Law for centuries use Latin, In the event of a failure to comply with an ordef, es aoe js for this Another classification ‘sometimes employed is to define’ the jurisdiction of Equity as exélusive, @oheurrent andyauxiliary. In the iBGliction sense, Equity ¥eeogAized aetions, as in trusts and mortgages, where the Common Law would provide no remedy; in the eoeurrentgurisdiction sense, Equity would add to therem- edies.provided by the Common Law, as by the introduction of the -injunetign and the decree of specific performance; in the @tséliary snse, Equity employed a more flexible procedure than the Common Law. It will be seen that these three terms simply PART Il — THE WORLD'S LEGAL SYSTEMS 9 emphasize the ways in which Equity ean be seen to he related to, but to be different from Common Law.2#® ® As a result oflits| Supplemental role, it became possible over the years for an observer to point to certain characteristies of Eq- uity. These became so well known as to be called the maxinis/of Equity. Among the most famous are: (Wan He who comes to Baily mast come with clean hands; GD n aot ar a hone ta bo wiawi ty 3. Delay defeats Equity; and 4, Equity looks to the intent rather than to the £6 ‘The maxims emphasize that Equity, being based in iteoFigins on‘fairness and natural justice, attempted to maintain this ap- proach throughout its later history Certainly, the judges retained theirspersonal discretion/so,thatvequitable remedies were not, and are:not, obtainable of right.247 Not/without opposition, however, did the Court of Chancery maintain its jurisdiction. The Common Law courts were very jeal- ous of the growing influence and popularity of their great rival, and a struggle often bitter was carried on between them for over two hundred years. Each at times refused to recognize the authority of the other. The lawyers trained in the Inns of Courts had little respect for the Chancery practitioners who were educated in the Civil Law taught in the universities of Oxford and Cambridge. ‘The Court of Chancery finally ttitimphed, however, in the reign of James'T (1603-1625) when the king upheld the power of Chancery’ to*prevent by:injunction. the enforcement of a judgment obtained’ inva" Common Law-court. In the years that have since ensuod, the principles of equity as they have become more widely understood have been adopted in many courts of law since they have been found more just and practical than the rules of Common. Law, Equitable theories and principles have also been incorporated in many modern statutes.” 6d, pp. 115-196. dp. 116, Pomeroy, op ha cit, pp. 78-80. 90 INTRODUCTION TO LAW @ ‘Yhe Supreme Court of Judicature Acts (1873-1875) reorgan- ized the existing court structures completely, and in the process, formally brought together the Common Law courts and the Courts of Chancery, In the ‘Supreme Court of Judiéatiare set up by the ‘Aets, the three original royal courts beeame thF6*Divisions of the new High Court of Justice, the Gur of CHangery which adminis tered Equity became the fourth Division, ie., the Chancery Divi- tion of the High Court, and a Sf€blDivision, dealing ‘with those matters not within Common Law or Kquity, namely Probate, Di voree, and Admiralty, completed the new arrangement. By Order in Council in 1880, the three royal courts were merged to form the Queen's Bench Division, thus leaving the three Divisions of the Hi gh Court — Queew!Bénch, Ghanéliery and PRbate, Divaree:and ity — which were then to remain unchanged for 90 years.?”° The dudieature Acts (1873-1875) placed on a statutory basis the old rule that where Common Law and Equity conflict, Equity shall prevail. At the same time, itigawe power to all'thercourtsito ‘administer the principles of Common Law and Equity and to grant the remedivs of both, as circumstances in a case demanded. Conse- ‘quently, the old conflict no longer arises, although Common Law and Bquity principles still exist, 4 7, must tect By bringing the two systems together administratively, and allowing the High Court judge to exercise the principles, proce dures and remedies of Common Law and Equity in a single case in the one court, it seemed to many people that the two systems had merged. That this was somewhat superficial is borne out by the ‘exclusive jurisdictions left to the Queen’s Bench and Chaneery Di: visions, In practice, the work formerly:done by the Court of Chan- cory is exactly that dealt with in the Chancery Division; equally it hhas its own judges selected from those barristers practising at the Chancery bar. A Chancery case remains something quite unlike a Common Law case, and the same can be said of the procedure.*! ‘The whole of the legislation has now been consolidated in the Supreme Court Act 1981 In 1907 the Criminal Appeal Act established the Court of Criminal Appeal to provide for the first time a general right of ‘woRAy, op ets p. AT 21d, pp. ITT. PART Il — THE WORLD'S LEGAL SYSTEMS a appeal for persons convicted and sentenced in indictable criminal cases. A further appeal in matters of general public importance lay to the House of Lords. The Court of Criminal Appeal became the Court of Appeal (Criminal Division) by the Criminal Appeal Act of 196. ‘The role of the Queen's Bench Divisional, Court im ruling on points of law arising by way of case stated in summary criminal cases was amended by the Administration of Justice Act of 1960. ‘This Act enabled an appeal in a case of general public importance to be taken to the House of Lords if the divisional court grants a certificate to that effect and Jeave is obtained from the divisional court or the appeal committee of the House of Lords. ‘The court structure for trying indictable criminal cases was substantially changed by the Courts of Quarter Sessions and As- sizes and replaced them with a court called the Crown Court. The Crown Court was to be organized on a six circuit basis so as to achieve a much needed flexibility to lead-to the prompt trial of indietable criminal eases (and High Court civil actions too). ‘The Administration of Justice Act of 1970 created a Family Division of the High Court and amended the jurisdiction of the Queen's Bench and Chancery Divisions redistributing the functions of the former Probate Divorce and Admiralty Division. One novel change in appeal provisions was'the introduction by the Adminis- tration of Justice Act of 1969 of a possible “leap-frog” appeal from the High Court to the House of Lords, bypassing the Court of Appeal. However, the procedure was made subject to stringent con- ditions which in practice limit its use.” It will be remembered that in the 18¢h"entury, the barons forced from the hands of King John the Charter of 1215, which contained the provision: “No freeman shall be taken and impris ned or disseized or exiled or in any way destroyed, nor shall we go uupon him nor send upon him except by the lawful judgment of his peers and by the law of the land." ‘This provision was seized upon in the 1600's during a struggle against the crown, chiefly by that legal giant Sir Edward Coke, as result of which the Charter to which the term “Magna Carta” is 2d, pp. 178-179, ‘2Seagle, History of Law, pp. 210-211, a 92 INTRODUCTION TO LAW now applied, has since existed in a sublimated form as a symbol of civil liberties, “Magna Carta, as it has lived in the popular imaginatior, owes f great deal to the transforming historical talent of Sir Paward “Coke; the overshadowing legal figure of his time (1552-1633). He was Attorney-General of England from 1594 to 1606, Chief Justice ofthe Common Pleas from 1606 to 1613, andiLord Chief Justice of the)King’s\Bench from 1613 to 1616. The authority of Coke's writ- ings was so great that for many purposes, his statements are a point of departure for the Common Law from the seventeenth cen- tury on. He created for later generations not only the “myth of Magna Carta” but the myth of the Common Law as a complete system “locked in the breasts of the judges,” who by a mystical but not specified process declare the law without making it.2°° While the twelfth century had Glinvil's“Dractatus,” and the thirteenth century, Bracton’s “De Legibus Angliae,” the fifteenth century for its part had Littleton’s famous treatise “On Tenures,” and the seventeenth century, Coke's great work known as “The s " both of which are considered as the third and fourth, landmarks, respectively, of English legal history.25 In his book, Littleton classified and examined all forms of landholding, put logic and order into their complication and with particular zest noted the subleties and the difference in the rela: tions involved. It is'@ technical book, unintelligible to persons not members of a highly trained profession, and one may add that the members of that profession were extremely proud cf the _Unintelligibility of their language." Coke wrote his great work “ the Roman Law writers although Coke was bitterly opposed to the Civil!Law’and to the Court of Chancery, in four books, The “First Institute” is a commentary upon Littleton’s Tenures, otherwise ianown as “Cake on Littleton” The “Second Institute” deals with various ancient English statutes; the “Third (published in 1644 after Coke's death) with Crimes; and the “Fourth” with the juris- diction of courts. Despite his evident contempt for Roman Law, he stitutes," a term taken from "Radin, op. cit, pp. 285-286 Burdick, op cit, pp. 82-85, Radin, op. cit, pp. 289-284 PART II —THE WORLD'S LEGAL SYSTEMS 93 nevertheless refers from time to time to its principles, and fre- quently cites Bracton as an authority, unconscious, doubtless, that he was thereby citing Roman Law, Coke's own knowledged of the Civil Law being very slight. 25° ‘There were, however, other great names in the legal literature of this same period. They are Francis Bacon. (1561-1626), John ‘Selden (1684-1654), and Matthew Hale (1609-1676), One of the most illustrious of England's great namesyBacon became: Lord Chancellonine1618:He was great both as a jurist and as a philosopher. He was a profound studentofRomanLaw, and he urged Queen Elizabeth:to eodify:English law, holding up to her the illustrious example of Justinian who codified Roman laws “from infinite volumes and much repugnaney into one competent and uniform corps of laws.”2 Celebrated both as a lawyer and a statesman, John: Selden was one of the greatest legal scholars that England or any other country ever produced. He was a voluminous writer on many sub- jects. In 1635, he published his Mare. Clausum. Among his other important legal works are Dissertatio and Fletam (1647), or “A Commentary on English law,” and his work on “The Law of Nature anu of Nations” (1640). RGDiSREToanpaa gg teae not only of Roman Law but also of Int 0 Justly remembered in history as one of theigreatest and wis- est judges that ever sat upon the English bench, Matthew Hale was educated at Oxford and at Lincoln's Inn, In 1653, he was appointed:byiOliver*Cromifell judge of the common bench. Upon the restoration of Charles TI, he was appointed baron ofthe excheq- ‘uer(1660), and Lord:ChieP Justice in 1671. He was the author of two celebrated works, “The History of the Common Law”. . . Hale, while contending that “neither:the, GanonsLawenorithe:CivileLaw havesany,obligatis ithimthe kingdom” save to the extent that they have “been received and admitted by us,” yetyacknowl- cedges:thesinfluetce-of the: CiviPLaw-in:variousicourtsof-England other than the courts of Common Law. *thurdiek, op. eit, pp. 83 Lard Campbell, L rs, Vol. 2, Chaps 5 6. di Cont Leg, History Serie, Baston, 1914, Vl. 2 p a INTRODUCTION 70 LAW In the meantime, there had been taking place an event of decisive importance to the destiny of the Common Law — the ri- valry between it and the Romanvor,Giyil Law, which set in during the fourteenth century. The great flood of the Civil Law had been gradually overwhelming Germanic law elsewhere in Western Eu- rope after A.D. 1200, and in England, the Tudors attempted to establish the Roman Law officially." Nevertheless, the\Common Laygdidenotysuccumb; it asserted its supremacy in the realm of England. Why? The answer to this is found mainly in two ideas — ‘Shational patriotism, and,a,strong,legal profession practising, a,uni- fied. commonslavi2*° LLegal-patriotism is typified in Fortescue and Coke. These men patriotically championed the native legal system. The spread of the Roman law on the Continent in the 1440's to 1500's was associated with the imperial plans of Charles V and the Papacy’s claims of universal jurisdiction; and so the samespoliticalspatriotismswhich supported Henry. VIIl's breakowith the Papal'system wasimatched byya\legal-patriotism which inspired @-devotion to:the Englishilegal system.2* In the other Germanic regions, on the Continent, there was as yet, nolegal:profession, nodawoschools, andno unified common: law. In.England, this:same,period:found:English law-already-longuni- fied, and technicallysstudied and taughtsby-avstrong, professional fraternity. The Innsiof\Gourt were the fortress from which an army of prefessional devotees fought stubbornly in defense of English law. ‘The period from the seventeenth to the nineteenth»century witnessed the full fowering of theGommon Law and the beginning of its career as one of the great world systems of law. The*chief legalveventssof-this»periodsare: (a) such epoch-making constitu tional developments as the inauguration.ofithessovereignty of Par- liament, and its transformation into a democratiesbody, thereatab- ORAM EBReince of the siipremacy*of the"law, independ. ence-ofthe®judiciary and ihviolability-of-civileliberties and the development of the famous writ ofthiabeasicorpus; (b) the incorpore- Radin, op. eit, pp. 116 2Wigmore, op. cit, pp. 1090-1091 4d, pp. 1077-1078, 81d, pp, 1080-1084, 1090, PART Il — THE WORLD'S LEGAL SYSTEMS 95 tion Of the Law Merchant into the Common Law; (c) the establish- ment of starsldébisis as a definite rule; (d) the appearance of law reports; (e) the reorganization of the judicial system; (f) procedural developments; (g) the organization of the law practitioners into a dual system; (h) the appearance of other great legal figures who exercised a great influence in the development of the Common Law; (i) the cosmopolitanization and expansion of this system; and (P the beginning of the codification movement.2°° ‘This period saw the establishment of the sovereignty of Par- Jiament vis-a-vis the crown, with the HOWs6 of Commons émerging ‘as the dominant:institutionvofithemation. The sovereignty of Par liament had as its necessary corollary the subordination of the king and the removal of his interference with the ordinary law of the land as administered by the common-law courts. Only parliament “might now alter existing law by-its'process’ofamendment. This is indeed the whole sum and substance of the doctrine of “thé! su premacyof law,” or “therruletof law” Technically expressed, it is the doctrine that judges in ordinary legal proceedings may pass on the legal validity of the acts of the king’s ministers and servants, who might not plead as a defense a royal command.2"” The one institution of English law which has on the whole worked most satisfactorily in favor of an accusediis the famous writ ofthidbeasicorpus. The writ was used under Edward I to get a defendant before the court. In the fifteenth century, it was used to bring a litigant from an inferior court to a royal court and later as one of the instruments in the rivalry between the Common Law courts and Chancery ¢ Finally, toward the end of Elizabeth's reign, Aabeaveorpis began to be used as we now know it, to determine the validity of an arrest by persons claiming to act by public authority, and it thus became, as it has ever since been, the chief means of protecting personal liberty, the Shighes(lremedy in lav,” as Selden said, “for any-man'that is imprisoned.”*° Out of the habit offeitinigiprecedénts which the king’s judges had been following since the formative period of the Common Law Radin, pp. 17-21, 62-63. *'Seagle, op ct, pp. 217-218, Radin, op its p. 233, oes

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