So You Want to Know Where Our Laws Come From

Brien Roche

Where Our Laws Come From

This blog is written by an injury lawyer. Injury law deals with a number of legal issues. Because of that it may be worthwhile to take a look at the question of where our laws come from. Also we will look at how they have evolved.  For more info about this see my book Law 101.

The question of where our laws come from is not an easy question to answer.

Most people would say they come from the law of England.  That is a correct statement.  However, the basis of our legal system and of the English legal system can be traced back further.

Where Our Laws Come From: Hammurabi

The Code of Hammurabi is reported to have been published in 1750 B.C.  I use the term B.C. meaning before Christ because that is the common method for dating things.  However scholars may use the term BCE or CE. B.C. suggests that everything revolves around Christ.  If you happen not to believe in Christ, then you may find that term difficult.  Scholars tend to use the BCE/CE designation. BCE means before the common era. CE means the common era.  The dating is the same as with the term B.C.

In any event, for purposes of this blog posting, I will use the term B.C. and A.D. (anno domini).

Getting back to the Code of Hammurabi, that is a body of laws enacted by the ruler known as Hammurabi. He made himself subject to the rule of law. Also he imposed criminal sanctions for crimes. He set forth what the job was of judges.

In addition certain standards were set for business deals and contracts. Also he defined the roles and rights of women.  It made the ruler subject to the rule of law. In addition those who broke the law were subject to being punished for their crime. Also they may be subject to what today would be referred to as civil sanctions. His Code turned many things upside down.  Call, or contact us for a free consult.

Athens

Many of our democratic principles go back to the time of Athens during the period of 300 to 400 B.C.  Athens is generally thought of as being the first democracy.  Under the Athenian democracy the majority ruled. The goal was that of doing “the greatest good for the greatest number”.

Athenian citizens had a right to a jury trial.  The Athenian assembly was the legislative body for the City. It was composed of all males of military age.  However the problem with the Athenian democracy was twofold. It evolved into a rule by mob. Some call this a tyranny of the majority. The second problem was they had no constitution. That meant there was no protection of minimal rights for all of the people. The majority could take away all rights.
In Athens legislative action was voted upon by the entire Athenian democracy. That became an unworkable system. There was no way to effectively communicate the merits or lack of merit of any legislative action to the entire population. As a result the voting for new laws became a popularity contest. The group with the best marketing technique got their laws passed. To some extent that goes on today in the U.S. However most of our laws are based on merit.

Alexander

In approximately 335 B.C. Alexander the Great began his conquest. His home was in Macedonia This is in northern Greece.  Alexander had been educated by Aristotle. He is considered by many historians to be the most important figure in world history.  He and his Stoic philosophers believed that all men are created free and equal.  That was a revolutionary concept at that time. It is one that has been passed down to our democracy.

Rome

The Roman Empire in the years before Christ had a democratic form of government. It was actually a republican form of government.  The Romans were great admirers of the Greeks. In many respects they modeled their democracy after the Greek government.  The Roman government was a combination of a monarchy, an aristocracy and a democracy.

It was a monarchy in that it had a strong executive. This consisted of two consuls who controlled the military during times of war.  It consisted of an aristocracy in that the Roman Senate was composed of experienced magistrates. They approved all financial appropriations. However they did not have the authority to make law.  It was the third body composed of the democratic assembly that elected the Senate and enacted the laws.

The democratic assembly was composed of all Roman male citizens. So much like the Greek assembly it was not a representative democracy. Our Congress is a representative body in that we have 535 Senators and Representatives who speak for all of the people. In Athens and Rome there were no such elected representatives to enact laws. Therefore the people voted directly thereby creating the “rule by mob” phenomenon.

Checks and Balances

Within the Roman system there was a system of checks and balances between the branches of government.  There were 10 tribunes who served for one year. They were elected by the people to protect the people’s rights.  A single  tribune could bring the entire government to a halt if necessary to protect the rights of one citizen.  In addition Roman citizens had the freedom to vote. They had freedom of speech, freedom from arbitrary arrest. They had the right to a jury trial.  However one freedom that they did not enjoy was the freedom of religion.  They were expected to be loyal to the primary Roman Gods. Call, or contact us for a free consult.

Where Our Laws Come From:English Common Law

The Magna Carta was entered into between King John and the English noblemen in 1215 A.D. This happened at a field in England known as Runnymede.  The thrust of the Magna Carta is that the government is subject to the laws that are enacted.  This is somewhat similar to  the Code of Hammurabi.  Also the Magna Carta established that all taxes were to come from Parliament.  This meant that Parliament controlled the money. It further said that English citizens had the freedom to trade, to travel and to a fair and speedy jury trial. They had the right to equal justice. They had the right to compensation for the governmental taking of property.The Magna Carta is a document of the same great historical significance as our Constitution.

Natural Law

Over time the English common law developed.  The English common law is simply the case law as published by English courts.  That English case law began to set forth what some people call natural law.  The natural law has generally been interpreted to mean that all men are created equal with the right to life, liberty and the ownership of property.  That latter term dealing with the “ownership of property” was converted by Thomas Jefferson to the “pursuit of happiness”.

Declaration of Independence

Our Declaration of Independence was principally written by Jefferson. It was reviewed and edited by the Continental Congress. Jefferson borrowed many of its concepts from the Magna Carta and from the common law.  What the Declaration of Independence affirmed was that government was to be under God. It also stated that all men were equal with the right to life, liberty and the pursuit of happiness.

Much of this lingo and philosophical underpinning came from John Locke.  Locke was a British philosopher. Jefferson, Washington, Franklin and Madison were the primary draftsmen of our current form of government. They were all diligent students of Greek and Roman and English democratic principles.  Many of those principles they borrowed from the English system. They modified them slightly. Also they incorporated some of the language and philosophical approach of John Locke. They then claimed  them to be uniquely American. That involved a touch of American braggadocio.

So when asked where do our constitutional rights come from, it is certainly fair to say that they have a long history.  They did not just spring from the brains of our founding fathers.  They sprung from concepts that were being developed, analyzed and tested over the centuries.

Our democracy in the United States was not the first democracy.  However it is the first democracy that had been clearly founded on the basic principle that all men are equal and have the right to life, liberty and the pursuit of happiness.  These natural law principles had been previously espoused by philosophers and politicians. Our democracy was the first one to fully and unequivocally incorporate them.

Case Law Can Be Confusing

Any lawyer will tell you that in researching  case law you can find a case that supports any position you may want to assert.  The fact that a judge or panel of judges has decided a case similar to yours one way does not mean that case law is controlling in your case.

In deciding legal issues judges look for precedent. That is other cases from the courts within that same state to guide the judge in terms of what ruling to make.  In the absence of any decisions from state courts on that issue then the judge may look to federal court decisions. The goal is to find cases either from higher courts or equal courts, that will control the outcome. In the alternative the goal is to find cases wherein the legal reasoning may offer guidance.

Likewise within the context of reviewing case law there may be decisions that appear to be inconsistent.  In looking at these cases you need to compare what the facts are of each case.  Legal decisions are based upon facts.  If the facts are slightly different, as they almost invariably are, then the legal conclusion that may be reached could well be different.

Call, or contact us for a free consult. Also for more information on English Common Law see the pages on Wikipedia.