Historical Perspectives on Law

1. Historical Perspectives on Law By: Patrick & Moritz

2. Agenda • Early Legal Codes • Aboriginal Influences • The French Influence: Civil Law • The British Influence: Common Law • Adversarial Versus Inquisitorial Trial Systems • Methods of Adjudication • Trial by Ordeal • Trial by Combat (Judicial Duel) • Early Court Systems • The origins of the Jury

3. Early Legal Codes • One of the Earliest legal codes was written by Hammurabi (concept) • -> code of laws that were in craved in stone • -> the codes were insights into belief of social structure / severe punishments • Punishment was based on status in the community. • Ex slave and free man

4. Cont of early legal law • “laws were in craved in stones and put in the middle of the town so every person con consult them” • 400 BCE jury was created and principals (man or women) • Unwritten laws were considered arbitrary – difference in peoples sentence • Corpus JurisCivilis -> treated all the same

5. Aboriginal Influences • British and European settlers • Established legal systems religious and social structures • HOW??

6. 1714 • Mohawk Onondaga Seneca Oneida and Cayuga join together to form a league of nations know as the Iroquois ( Haudenosaunee) • 6 nations • Great binding law—justice fairness more civil rights • Restorative justice- offender must repair and restore

7. The French influences: Civil Law • Adversarial trial system regular • Inquisitorial trial system – judge = more active law • 1759 English settlers agreed to this • 1774 Quebec was enrolled • Only for that provice – criminal non constitutional matters

8. British Influences Origins of Law Patrick Wallace and Moritz Steinbauer

9. Agenda • British Influences • Adversarial Versus Inquisitorial Trial Systems • Methods of Adjudication • Trial by Ordeal • Trial by Combat (Judicial Duel) • Early Court Systems • The Origins of the Jury

10. British Influences • British law influence the Canadian law most significantly • William of Normandy conquered England in 1066 • He modernized and changed the already existing legal system since the existing one was decentralized and various different customs and rules existed.

11. Slowly a system of common law developed that helped standardize law and justice • The current legal system was implemented by Henry II from 1154- 1189 • He established a group of judges that traveled around and would hear cases in all the villages and towns across England.

12. They would hold meetings to discuss their different cases and come up with new laws for each situation • Those discussions by individual judges were written down and after that used by other judges • This was the birth of “common law” which is the foundation of the English and Canadian legal system

13. Adversarial Versus Inquisitorial Trial Systems • Difference between Civil and Common Law • They both use a different trial system

14. Adversarial Trial Systems • In 1995 Bernardo trialed under the adversarial trial system of common law because he killed, kidnapped and sexually abused two underage girls. • He pleaded not guilty and didn’t have answer any questions neither did he have to enter the witness box • He also did not need take part in a cross examination by the crown

15. This all was due to our adversarial system of justice. • Also it was entirely up to the crown to prove that he is guilty without reasonable doubt • The defense ensures that the crown does not make a mistake

16. Power of the Judge in our System • And the judge makes sure that both sides “play by the rules” • Judge cannot call witnesses but can ask questions for clarification • He determines the admissibility of evidence • Instructs he jury • If there is no jury he is the one that makes the decision and the verdict

17. Inquisitorial Trial Systems • Many European Countries and the province of Quebec use the principles of Roman law. (civil law only) • They support the Inquisitorial System • Here the accused has to answer questions from the prosecutor, his/her lawyer and also the judge • In this system judges take the lead in making questions • They can insist and make the accused telling everything that might be related to the case • The emotions , thoughts, and actions of the accused are all subject to questioning…

18. Adversarial Trial Systems Advantages – Disadvantages • Opponents equally motivated to win present strong arguments, the truth will emerge. • More antagonistic approach in which one wins and one loses • Both sides have to be equally represented • They only show evidence to their advantage and hide the one to their disadvantage = less truth

19. Inquisitorial Trial Systems Advantages – Disadvantages • Impartial judges seek out the truth by asking questions • The defendant has few rights and is not necessarily presumed innocent • Trial is behind closed doors so the judge might be biased against one of the parties

20. No system is perfect, and, in fact, both adversarial and inquisitorial systems have borrowed from each other • Each country has its own modified version of one of the both

21. Methods of Adjudication • This is also from British law and it determines the guilt or innocence.

22. Trial by Ordeal • One way to determine guilt or innocence was the ordeal • So they injured somebody bandaged the wound and after some time they opened the bandage when the wound was gone god proves the person innocent, when the wound was infected god proves the person guilty • It was possible to dispute quilt by having a number of people swear an oath as to the innocence of the accused

23. Trial by Combat (Judicial Duel) • Another way was that the accused challenge the accuser to a duel • God would be on the side of the righteous party and there fore the victor would be innocent • Today in the adversarial trial system we have mental instead of physical duels

24. As religious devoutness decreased those methods disappeared.

25. Early Court Systems • Soon the state realized that an offence is not only against an individual but against society. Therefore 3 new roots emerged • Communal Court = located in a small community and lead local inhabitants • Manorial Tribunals • Royal Court System = was set up to administer the collection of taxes through the Curt of Exchequer

26. Other courts… • Court of Common Pleas = handle civil matters • Court of King’s Bench = dealt with serious criminal cases and was made up of various nobles appointed by the king (in Canada this is the Court of Queens Bench)

27. The Origins of the Jury • This also has its roots in the British system • Initially the jury where landlords listening to disputes over land • By 1912 they started to hear criminal cases first they were just witnesses and sated their opinion about the case • Over time the jury became and independent check on the government • A jury was free to reach a verdict based on the evidence rather than on fear of punishment or obtaining favour from those in authority

28. Thank you for your attention! Yours Patrick and Moritz