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7 - The Legal Systems of the World

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  INTRODUCTION TO LAW | THE LEGAL SYSTEMS OF THE WORLD | AUF  –  SOL 2014 Page 1 | Bantay THE WORLD’S LEGAL SYSTEMS  A. THE LEGAL SYSTEMS OF THE WORLD : classified into two:   BASED ON CERTAIN ETHNIC, CULTURAL GROUPS OF PEOPLE THOS BASED ON RELIGION Chronological order: Egyptian, Mesopotamian, Hebrew, Chinese, Hindu, Greek, Roman, Celtic, Slavic, Germanic, Japanese, and  Anglo-American. Composed primarily of the Catholic (Papal) legal system (or Canon law), and the Mohammedan legal system. GONE: Egyptian and Mesopotamian. REMAIN: Anglo-American, Roman, Hindu (by tolerance under another dominant political system), Chinese (of the oldest). Catholic or Canon law system still exists as the law for the members of the universal Roman Catholic Church. Mohammedan system not only governs the spiritual life of its members but has been incorporated by many Islamic states into their official legal system. (1) EGYPTIAN LEGAL SYSTEM : from the emergence of this legal system till its disappearance during the reign of Cleopatra, Egypt had been, throughout, a kingdom, in which the MONARCH was constitutionally the sole supreme ruler. o  He ruled according to law; but he was its autocratic spokesman. o  In theory of law, every yard of land belonged to him, every man belonged to him, alive or dead, for none could even be buried without the king’s assent. o  All law and all justice proceeded from him. o  MODERN WAY OF DESCRIBING: the prerogative for exercising the judicial, administrative and legislative functions was vested in the monarch. o  CENTRAL ROYAL COURT: the king and his supreme judges administered justice as the focus of government.   COMPOSITION: 30 supreme judges, presided over by the King’s chief justice.      Merged: “chief justice” signified the king’s chief minister. o  PROVINCIAL COURTS: presided over by administrative officials, under the Central Court. o  KING: in theory, the sole legislator.   Earliest human lawgiver in Egyptian tradition: Menes (Mna) → 3200 BC.    Greatest: Harmhab → 1100 BC. o  TREATY: one of the earliest recorded treaty was entered into between the Egyptian King Ramses II with the Hittite King Hattushilish III → 1272 BC.   It provided for mutual assistance not only in case of external attack but also in the case of internal revolutions, and even went so far as to provide for the extradition of political offenders.   Its provisions about extradition reveal the arrival of the Egyptians at the practical use of some of the standard concepts of modern  jurisprudence. o  The Egyptian legal system began to be indermined in the 18 th  century before Christ by civil war then b conquests of invaders from Assyria, Persia, and Greece.   Finally, the Roman Caezars arrived to strike the final blow to Egypt’s political independence.   Roman law and government supplanted its native institutions. (2) MESOPOTAMIAN LEGAL SYSTEM (Euphrates and Tigris): emerged in history by perhaps 4000 years before Christ. o  Lost its radical independence under the Persians about 500 years before Christ, and disappeared under the Greeks, about 100 years before Christ. o  Its civilization was centered about BABYLON in the southern portion known as Chaldea and in Assyria in the north. o  KING: foundation of justice, receiving the law from DIVINE guidance. o  KING HAMMURABI: his deputized administration of  justice passed from the hands of the royal priest-class, in the temples, to a body of ROYAL SECUAR JUDGES, sitting commonly at the great gate and market place of the city. o  MESOPOTAMIAN SYSTEM: the king was the lawgiver, who was believed to have received all the laws of his people from a deity.   SHAMASH (sun-god): god of Law; whose children were Justice and Right.   SUMERIAN URUKAGINA OF LAGASH: the first historically known Mesopotamian lawgiver who reigned in the first quarter of the third millennium.   GUDEA THE JUST: another lawgiver who lived some three centuries later. o  SUMERIANS: non-Semitic people; one of the earliest peoples occupying Babylonia.   1 ½ feet square clay tablet: the oldest code-text in the world yet discovered. CODE OF HAMMURABI : contains some three hundred sections. - The earliest known national code in the world.  INTRODUCTION TO LAW | THE LEGAL SYSTEMS OF THE WORLD | AUF  –  SOL 2014 Page 2 | Bantay - Textually, it is the most complete and authentic, as well as the most advanced of ancient codes, reflecting a long legislative history. - Range of its provisions: crime, family, property, commerce. o  The code reflects not only an agricultural but also a trading economy, legislates on the subjects of carriers, merchants, and agents, and fixes the charges of physicians, veterinarians, builders, boatmen, field laborers, artisans, ox-drivers, and shepherds and in other field deals with the kissing of married woman, 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. CODE OF ASSUR (Egypt): a thousand years after Hammurabi; since the full legal records of the Hebrew, another Semitic people, though more primitive, date some 500 years still later. CODE OF HAMMURABI CODE OF ASSUR HEBREW LAW The husband on divorce is bound to restore to the wife her dowry. He may give her only as much as he pleases. Says nothing of any payment by the husband. - The most advanced ideas in commercial law had already been reached in Mesopotamian transactions. o    As early as King Hammurabi’s period, a promissory note payable to bearer, dated about 2100 BC → oldest negotiable instrument in the world. o  The glories of the Babylonian kingdom made it long pre-eminent among neighboring peoples. o  The famous Hanging Gardens of Babylon. o  BELSHAZZAR: 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. (3) HEBREW LEGAL SYSTEM : naturally follows the Mesopotamian. o  Both in Egypt and in Babylon, the Hebrew tribes sojourned for long periods as a subject people.   Abraham, Moses with his brother Aaron, Judge Daniel. o   DANIEL’s time: Hebrew legal history was still in its first stage for the Hebrew legal system developed in five well-defined stages: i. MOSAIC PERIOD (300 BC): including the kinds and prophets, and the judges.   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 multiplied and political life became more complex, the transition took place the personal  justice of the tribal leader to an ORGANIZED HIERARCHY OF COURTS.   SOLOMON, son of David: made his name for all time a synonym for  judicial wisdom (two mothers).   Books of the Pentateuch: Torah or  Ancient Law. ii. CLASSIC PERIOD: when the rabbi developed the law;   The government was in theory still a theocracy, i.e. , divine command inspiring the rulers.   By this period, the function of justice had ceased to be a royal one.   In their internal government the supreme authority (religious, social, political; legislative and judiciary) was vested in a SENATE, known finally under the name GREAT SYNHEDRION → 71 members.     Under the Roman sovereignty, the Jewish people for two centuries preserved the administration of their own law in the main.   The ruler Herod was still termed king.   When Jerusalem fell under the assaults of Titus, son of Vespasian: Hebrew self-government ended; and their legal system ceased to prevail. iii. TALMUD PERIOD: when the records were consolidated. iv. MEDIEVAL PERIOD: dispersion of the Jewish nation.   Learned rabbi wrote treaties, compiled codes, and perpetuated the traditions of the law.   MAIMONIDES: most famous.   By this means, the common customs of religious and family life and commercial practice were kept alive, though the race was scattered in many countries. v. MODERN PERIOD: nationalism in Europe began to amalgamate all races who lived  INTRODUCTION TO LAW | THE LEGAL SYSTEMS OF THE WORLD | AUF  –  SOL 2014 Page 3 | Bantay within given territories → Hebrew language became only a secondary one for the Jews.   The Talmud was critically studied and translated into the various national languages. o  Strictly, as a system of law, it ended with the SECOND STAGE, AD 100, at the replacement of Jewish law in Palestine by Roman rule.   After that it became mainly local custom, chiefly in ceremonial and moral rules o  The Hebrews attributed all their laws to some first DIVINE LAWGIVER. SCROLL OF THE LAW / TORAH / PRECEPTS OF MOSES : the Ark of the Law is the most important treasure in the Sanctuary because it contains the Jew ’s most precious possession: the Torah. (4) CHINESE LEGAL SYSTEM : unique distinction → it is the only old one that has survived continuously to date (more than 4000 years). o   The Chinese are the world’s greatest pacifists: they have never gone out to seek by conquest a single acre outside of their native territory. o  PATRIOTICALLY EXCLUSIVE, and have never willingly admitted strangers into their native land.   They were entirely contented with themselves, their ancestors, with their history, and with their place in the world. o  The sturdy survival of the Chinese as a people is due to their STRONG CLAN and FAMILY STRUCTURE and their consequent conservatism. CONFUCIUS : his philosophy covers the whole range of personal morality and practical politics. - His philosophy rests on a passionate yet rational respect for those conventions which the experience of the part has verified. - FILIAL PIETY is the root of all good conduct. o  The skillful carrying out of the wishes of our forefathers. GEORGE PADEOUX’s explanati on: china has believed in the existence 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. - This natural law does not yield precedence to positive law, i.e. , laws representing human experience and wisdom. o  Positive law ought to confine itself to translating the natural law into written formula. a. If translation is correct: the written law is good and binding. b. If translation is incorrect, 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 free to disregard it if he finds it in disaccord with the natural law. - CONFUCIAN POLITICAL PHILOSOPHY: “a government of men, not law.”   o  The Chinese philosophy of government is that a good ruler makes a happy people. o  It relies on the wisdom and discretion of the ruler rather than on the text of laws. LEGISTS (400-200 BC): repudiated entirely the doctrine of a government of men, in favor of the doctrine of a government of laws. - Effectively practiced by able statement during the China and the Hand dynasties. - The Confucian principle, congenial as it is to the racial Chinese nature, was soon once more enthroned in Chinese government, and firmly maintained that place during the next two thousand years. o  Another notable consequence of the Confucian philosophy (or Chinese character) is that CONCILIATION and MUTUAL ADJUSTMENT are looked upon as ideal elements of justice. o   Related to this is another marked feature of Chine’s legal system  –  the subordinate part played by the letter of the law, and the legislation as such.   The ruler should frame the laws to voice the vast sentiments and wants of the people  –  not to impose his personal will upon an unwilling people; else there can be NO CONTENTMENT. CHOW LI / REGULATIONS OF CHOW : the earliest code whose text is not extant (1100 BC). - Said to have been composed by Tan, Duke of Chow, brother of the founder of the Chow dynasty. - This was secretly preserved even though it was sought to be extirpated by the great “Burning of the Books” in 212 BC. o  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. o  After the Burning of the Books, many vicissitudes of codification ensued:  INTRODUCTION TO LAW | THE LEGAL SYSTEMS OF THE WORLD | AUF  –  SOL 2014 Page 4 | Bantay a. TANG DYNASTY: issued a code of some 500 articles. b. The Tartar emperor TIMUR (grandson of Kublai Khan): promulgated a code of 2500 articles. o  The great Tartar leader, KUBLAI KHAN, proclaimed that “the doctrine of Confucius was a law destined to govern all generations … and all should conform strictly to its divine be hests… for the state’s laws are constant and invariable, and must be obeyed as the rule of conduct for all.”     Most radical innovation: introduction of an  ALPHABET, especially constructed on his order by a Tibetan scholar, to supplant the multifarious Chinese ideographs. MING DYNASTY (1400 AD): the minister Young Lo framed a new general code, and on this code was founded that of the next Manchu dynasty, the Tsing, some two centuries later. - This TA TSING LU LI or CODE OF TSING became law about 1650 AD, and endured until the revolution of AD 1912. - This work consists of: 1) A code proper, called LU: the text of which never changes. o  450 Lu sections. o  Fixed constitution. 2) The annual edicts and judicial decisions, called LI: interpreted the Lu, made them flexible, and adapted them to progress  –  much like the function of equity alongside the Common Law. o  2000 Li sections. o  Annual modifications. (5) HINDU LEGAL SYSTEM : the Turks and the Mongols 1 , brought Mohammedan law, lived in jeweled magnificence, and developed in India the arts of architecture, sculpture and plaining  –  the products of luxury and taste. o  The justice of these Mohammedan emperors was done in the HALL OF AUDIENCE in their superb palaces of the Audience Room known as the WESTMINSTER HALL of Delhi. o  The MOGUL JUSTICE, though corrupt in some periods and places, was efficiently dispensed under many of their rulers.   The Emperor Salim had a chain and bell attached to his own room in the palace, so that all who would appeal could reach him running the gauntlet of the palace officials. o  The ENGLISH race, last to enter India, brought unity, liberty, and honest administration.   But the English law in India is mainly PUBLIC LAW, preserving in private law the various NATIVE CUSTOMS. 1   Indo-Aryans, Persians, Greeks, Turks, Mongols, English. o  Of those six races of immigrants, the first, the Indo-Aryans, or Hindus, some 3000 years ago in srcin, are the only race that developed a native system of law. HINDU SYSTEM : gave rise to two braches → BUDDHISM and BRAHMANISM (also called Hinduism), each of which is both religion and law. - BUDDHISM : simply means ENLIGHTENMENT. o  Founded by GAUTAMA BUDDHA. o   Buddha’s basic teaching is the compet of NIRVANA: means roughly the peace of mind and soul that comes to man after he has overcome three cravings: those for RICHES, SENSUAL ENJOYMENT and IMMORTALITY. o  Edicts of KING ASOKA / Constantine of Magadha: 30  –  40 edicts promulgated engraved on stone.   Short tracts, expounding and propagating his system of moral law, or DHAMMA, founded on the preaching of some two centuries earlier.   DHAMMA: meant RIGHTEOUSNESS, GOOD FORM, DUTY and it came to include the meaning LAW. o  It was eradicated and has virtually disappeared from India, its ori ginal home → has spread over the entire east coast of Asia. - BRAHMANISM or HINDUISM : it developed into what is certainly the most complicated theology known to mankind. o  It holds that one supreme being, BRAHMA, exists in several forms or manifestations and is the universal spirit which pervades everything. o  LAWS OF MANU: the typical law-book of the Brahman-Hindu system.   It was a Brahman compilation which was, in point of relative progress of Hindu  jurisprudence, a recent production.   Founded on the principle of caste. o   BRAHMAN-HINDU RULE OF CASTE : caste is the inner citadel of Hinduism.   The device breaking up Indians into fixed categories.    “Every Hindu is born into a caste and his caste determines his religious, social, economic, and domestic life from the cradle to the grave.”     No man may ever leave his caste, except to be expelled.   It is impossible to progress from caste to caste.    UNTOUCHABLES : below the fourth caste / outside of caste.   CHARACTERISTIC: marriage between caste is forbidden. This rule is of course what enables caste to survive unshaken. o  Up to the 19 th  century, India was a congeries of hundreds of principalities, in each one ruled independently a MAHARAJAH.
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