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T. W. Proctor, J.D.
June 29, 2003 Speaker
The Scales of Justice
Traditional symbol of Law

The History of Law

by Terrell William "Terry" Proctor, J.D.
2003 All rights reserved


FORWARD NOTE: (Because of time limitations in my presentation for the "Vital Speakers Program" of Holy Trinity United Methodist Church, this booklet, a condensed version of a longer book I am writing, contains only a limited amount of material on the various laws, Codes, Constitutions and other laws and the civilizations where such laws arose. Quoted in this booklet are articles which I have written and submitted to appear regularly on the front page of Tuesday editions of Houston's The Daily Court Review, the leading legal publication in Houston, Harris County, Texas. Where those articles are referred to, they are copied verbatim in this booklet, although sometimes additional information on that subject is then added. When you see # # # # 30 # # # that means that is the end of the article as submitted. Additional material on that subject, if any, will then appear after the # # # 30 # # #).


When did humankind first determine to make up rules for members of society to follow?

The answer is simple. We really do not know.

Even before there were any written languages, there were laws. Many of the earliest laws had to do with retribution, i.e. penalties, punishment, reparation, requital and/or satisfaction for wrongs and/or infractions by another person or family or peoples.

Our concern in this presentation, by necessity is with the history of humankind's written laws.

History has been recorded in some form for many centuries. Disputes remain as to where and when writing first started, although apparently the contenders are few. From the earliest writings we do know that rules of law were among the earliest writings.

Possibly the earliest form of writing was "Cuneiform" which actually was used in a number of civilizations. "Cuneiform" means "wedge" and it applied to any form of writing in which something was wedged into a soft clay to create a form.

Probably the Sumerians in West Asia and/or the Egyptians in Africa had the first written language. These were followed by the Indus in South Asia, The Linear A languages of Europe; the Proto-Canaanite of West Asia; the Phaistos Disc of Europe and the Chinese of East Asia. Later came the Phoenicians, the Aramaic, the Hebrew, Greek, Etruscan, Latin. Along about these latter times, in the new World, in South America, developed independently Zapotec, Mayan, Epi-Olmec and much later Aztec, Mixtec and finally Cherokee.

Which society had the first written law. It seems it was the CODE OF HAMMURABI created during the reign of Hammurabi, whose reign was from about 1792-1750 B.C. Here is my article on the Code of Hammurabi:

WHAT IS THE CODE OF HAMMURABI?

You may have heard of the "Code of Hammurabi" (called "Code" herein). This legal document is one of the oldest compilations of legal principles, laws and punishments for violations.

Hammurabi was a Babylonian king who came to power in about 1792 B.C. (date is uncertain because of three systems). About 1760 B.C. he defeated strong enemies and united a kingdom extending from the Persian Gulf to the Habur River. The history of Babylonia (now part of Iraq) is considered to have begin with Hammurabi. Hammurabi was an unusually active administrator giving personal attention to details (such as correcting the calendar and establishing irrigation canal cleaning). Hammurabi was a religious leader who helped elevate the Babylonian city god Marduk as leader of other gods.

Hammurabi was an outstanding law giver, and the author of the "Code". The "Code" contains 282 laws which were carved into a huge rock column. The term "an eye for an eye" came to symbolize the principle of the "Code". The Code was fair, but very strict. By modern terms much of it would be considered "cruel and unusual punishments". The "Code" dealt with many matter of today and some matters which no longer affect most people in the modern world. Death was a common punishment.

Law #1 of The Code of Hammurabi states "If anyone ensnare another, putting a ban upon him, but he can not prove it, then he that ensnared him shall be put to death". This law indicates two things: #1 the burden is on the Plaintiff, i.e. the one making the allegation; and #2 the measure of punishment was extremely severe.

The Code's 282 laws dealt intricately with many areas of life, such as: punishment for crimes (cutting off a man's finger for theft); marriage and extra-marital relationships (if a man kissed a married woman, his lower lip would be cut off); debts; slavery (#252 If he kill a man's slave, he shall pay one-third of a mina); property (#247 If any one hire an ox, and put out its eye, he shall pay the owner one-half of its value).

While physicians today may complain about malpractice cases, consider Law #218 "If a physician shall make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off".

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What else do we know about Hammurabi and the Code of Hammurabi (called Code herein)?

Hammurabi was the greatest ruler in the first Babylonian dynasty. He extended his empire from the Persian Gulf North through the Euphrates and Tigris river valleys and on West to the Mediterranean Sea. Much of this is present day Iraq. There is a lot of history in Iraq and a great number of artifacts located in this Iraq.

After he consolidated his empire with a central government in Babylon, Hammurabi moved to protect his empire's border and to creating prosperity within his empire. Hammurabi personally supervised and assisted in navigation; supervised and assisted in the building of irrigation systems and the spread and increase in agriculture. He had a tax collection system and erected many buildings, including many temples to various gods, but he mandated one

The Code was translated in 1910 by a L. W. King and apparently some sections were not or could not be translated. Hence the Code of Laws goes from #1 through #65, then skips #66 through #99, starting again with #100 and skips #111, concluding with #282.

The Code is engraved on a black basalt block of stone which is about 7 feet in height. During the winter of 1901-1902, this black basalt stone was unearthed by a team of French archaeologists at Susa, Iraq (formerly the ancient city of Elam). On the stone Hammurabi is shown as receiving the Code from the sun god, Shamash. Shamash, as a god, is usually associated with justice. The Code is set down in Cuneiform in 16 columns of text on the obverse side of the Stone and 28 columns on the reverse side.

The Code starts with a Prologue wherein Hammurabi sets out how he came to have received the Code and the various gods of that time, whom apparently he had led Marduk to be the primary god of Babylon. Hammurabi ends the Code with an epilogue, wherein he says, in part "Hammurabi, the protecting king as I". The Code is composed of 28 paragraphs which appear to be amendments to the common law of Babylonia, rather than being in itself a strict legal code.

The Code covers many things such as: unjust accusations; false testimony; injustice done by judges; property rights; loans; deposits; debts; domestic property; family rights; personal injury (including those by physicians in which a malpractice could get your hands cut off); damages for various problems arising out of trade and other commerce; and many laws involving spouses; slaves; animals; boats and on and on.

The Code contains no laws having to do with religion. Perhaps there was recognized even then a separation of church and state.

The portions having to do with criminal law are designed toward retaliation in like kind, i.e. "an eye for an eye and a tooth for a tooth" (see #196, #200 and #197--if a man break a bone, then his bone shall be broken). #195 "If a son strike his father, his hands shall be hewn (cut) off". Sometimes the punishment seemed unjust to an innocent third party, even though perhaps effective against the wrong-doer, #210 "If the woman die (referring to #209 regarding striking a pregnant free-born woman), his (the wrong-doer) daughter shall be put to death". This last one tells you something of the value of woman in ancient society where woman were often considered along with cattle, sheep and goats, i.e. a man's chattel.

In a number of instances, in the Code, the laws sets out in several parts of the Code, state what would have to be paid for injury or death, depending upon who caused the injury or death and who the victim was. So much for democracy. Who you were did make a big difference. There appear to be "free-born" men; "freed" men; and slaves. There are also references to "equals" and "to one higher in rank". For instance see (#202 If any one strike the body of a man higher in rank that he, he shall received sixty blows with an ox-whip in public; #203 If a free-born man strike the body of another free-born man or equal rank, he shall pay one gold mina; #204 If a freed man strike the body of another freed man, shall pay ten shekels in money; and #205 If the slave of a free man strike the body of a freed man, his ear shall be cut off). The Code does not set out every instance and punishment or retribution, but it certainly goes into a great deal of detail as just set out.

A mina was an ancient monetary measurement of the Mediterranean area which is defined in Webster's New Collegiate Dictionary-1979 as being 1/60th of a talent and in Webster's Revised Unabridged Dictionary-1913 as "An ancient weight or denomination of money, of varying value. The Attic mina was valued at a hundred drachmas. So now if you know the value of a "talent" or "drachma", then you can have some idea of the value of a mina. My 1978 Ryrie Study Bible says that a drachma is 16 cents and a talent is 960 dollars. Undoubtedly those figures will now be much greater in 2003 currency values.

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Another very ancient set of written laws are those found in the 39 books of th OLD TESTAMENT BIBLE (OTB herein). There are also other writings which are also ancient, such as the "Dead Sea Scrolls" and other later-found documents which support, supplement or perhaps alter some of the things set out in the OTB. The laws written in the OTB is so extensive and so intertwined with historical renditions and happenings, that they are not neatly set down, as is the Code of Hammurabi. Here is my article on the Old Testament Bible Laws:


OLD TESTAMENT BIBLE LAW

Three of the World's great religions share in the wisdom, teachings and law of the Old Testament Bible.

Other than the Ten Commandments, Old Testament Law was often not in well organized form, although details were often very specific. The Ten Commandments are found in the 20th Chapter of Exodus, the second book of the Old Testament. In very brief form they were: 1. have no other gods before GOD; 2. make no idols; 3. not take the name of God in vain; 4. keep the Sabbath holy; 5. honor your parents; 6. not commit murder; 7. not commit adultery; 8. not steal; 9. not bear false witness; and 10. not covet what belongs to others.

Other laws from the Old Testament were specific on details, such as setting out the measurements of ark and of temples. In Genesis 6: 13-15 God tells Noah to make the ark 300 cubits long, by 50 cubits wide, by 30 cubits high [a cubit was 7 handbreadths or 20.5 inches] thus the Ark would have been 512.5 feet by 85.41 feet by 51.25 feet.

Some of the titles of the Books of the Old Testament demonstrate the importance of: law (Judges); rules (1st & 2nd Chronicles; and people to enforce the rules (1st & 2nd Kings). Many of the books of the Old Testament describe rules, infractions of those rules (often by leaders), and the detriment which befell those who do failed to follow the rules.

Perhaps one of the best examples in the Old Testament, of the harsh penalty for failing to carry out the laws of God was God's denial of Moses to himself go into the promised land with the Israelites, whom he had led for so long. Moses had shown some arrogance and what appeared to be minor infractions, but that was sufficient for God to deny Moses admission to the Promised Land.

Much of the types of punishment laws of the Old Testament are similar to the Laws of Hammurabi. There is dispute over when the Old Testament was written, but it appears that some parts pre-dated Hammurabi's 282 law Code. Much of the Bible and Moses appear to have come after Hammurabi. The relationship of the laws of these two men are interesting, but not directly related. The laws of both are harsh.

You may want to read Chapters 21-23 of Exodus, which set out specific laws concerning: slaves; personal injury; theft; dishonesty; immorality; civil and religious obligations; the Sabbath and feasts; and conquest.

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It would be impossible to start to list all the laws set out in the Old Testament Bible and therefore, I won't attempt to do so.

Upon reading the Old Testament Bible, it is easy to see just as in the Code of Hammurabi, much of the OTB laws have to do with retribution, punishments, restitution, and things similar to the Code of Hammurabi. It is my understanding that there is no contention that the Code of Hammurabi was the basis of the OTB or vice-versa. Undoubtedly customs and beliefs arose in that part of the world (i.e, Eastern Asia and Northern Africa), in the centuries in which the Code and the OTB were written (1,800 to 1,400 B.C.), which had been shared for centuries orally.

There is controversy over just when the OTB was actually written. The Ryrie Study Bible-1978 attributes the Book of Genesis (purportedly the first book written in the OTB) was the work of Moses and written between 1410 and 1450 B.C.

Since this is an article on the history of law and no on religion, I will not dwell too long on religious or historical aspects, but on the legal aspects.

One thing which is different between the Code and the OTB is that the OTB has a very great deal to do with God and only ONE GOD. There are many apparent laws or rules governing how one is to relate to God.

My apologies for the shortage of additional Old Testament Bible law. Time constraints at this time simply did not allow me to go through the entire Old Testament again, to try to come up with a considerable amount of more Old Testament law.

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BETWEEN THE OLD TESTAMENT BIBLE AND THE NEW TESTAMENT BIBLE

There was a period of approximately 400 years between the Old Testament revelations and the birth of Christ, from which the New Testament Bible was written to tell of His life, teachings, prophecies and events after His death. During this time, the following things happened (borrowing heavily from The Ryrie Study Bible-1978, which affected the History of Law.

The Greeks under Alexander the Great and his successors ruled the World for a time and initiated some modifications to the law under Greek laws and philosophies about life, including law.

The Maccabees (a Jewish sect) revolted against the Greeks and attempted to break away from Greek rule.

The armies of Rome overtook the Greeks and Roman law took over the World at the time Christ was born.

The Jewish synagogue, the Sanhedrin, and Jewish sects such as the Pharisees and Sadducees developed, bringing with each very specific rules, laws and sacred duties and beliefs.

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ROMAN LAW

Roman law arose purportedly from the founding of Rome in 753 B.C. and existed until the fall of the Byzantine Empire in 1453 A.D.

Justinian I (483 to 565) ruled as the Byzantine emperor from 527 until 565 A.D. His nephew and successor was Justin I, who was responsible for much imperial policy during his uncle, Justinian I.'s rule.

Roman law had pluses and minuses. To be a Roman citizen carried with it many of the attributes of being an American citizen I suppose. Anywhere in the World one traveled, being a Roman citizen rendered a certain aura to a person which a non-citizen did not and could not have. However, the harshness with which the Roman Legions meted out their justice and conquest are well-documented. Probably in all of history no civilization actually rendered more long lasting results than did the Greeks and Romans in their philosophical and legal thinking. The Romans built roads and aqueducts which exist to this day. They established legal procedures, many of which were not democratic, just as the Code and OTB laws were not democratic. The Roman law could be unusually cruel in spite of the advances in law under the Roman Senate and laws carried out in the many provinces under Governors.

The Corpus Juris Civilis was the most comprehensive code of Roman Law and was compiled by order of the Byzantine Emperor Justinian I. The first three parts appeared between 529 and 535, arising from the work of 17 jurists acting as a commission, over which Tribonian, an eminent jurist presided. This was an attempt to bring together 1,000 years of developing law and to systematize such laws. The Roman Law was written system of set laws as opposed to the Common Law, such as was and is found in England and the United States, in part. The Judge was bound by the written law and required to render a decision thereon and to state the applicable provision of law (see my section on Civil Law, Common Law and Equity later in this booklet).

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What changed under the New Testament Bible. Probably, as far as legal laws are concerned, one could say not a great deal. However, the teachings and philosophy of Jesus Christ, regarding the worth of every person and common sense approaches to things, which Christ taught, not directly, but indirectly, led to later laws, which have flowed out slowly over centuries, gradually replacing the unduly harsh laws of the Code, the OTB laws, the Greek and Roman laws, and other harsh laws in the World. Christ taught that love, not hatred and injury to others, was the way to justice, fairness and the pursuit of happiness in the World. Here is my article on the New Testament Bible Law:


NEW TESTAMENT BIBLE LAW

Christians, Jews and Moslems all consider the Old Testament Bible, at least part of their religious beliefs foundation. Christians consider the New Testament Bible (NTB) even more a basic part of their beliefs.

Regarding Old Testament law, Christ said in Matthew 5:17-18 "Do not think that I cam to abolish the Law or the Prophets; I did not come to abolish, but to fulfill. For truly I say to you, until heaven and the earth shall pass away, not the smallest letter or stroke shall pass away from the Law, until all is accomplished".

Christ attempted to make understandable, the importance of harsh laws, by making them more personal. He said that the ancients had said not to commit murder, but Christ said that everyone who is angry with his brother shall be guilty enough to got into the fiery furnace. On the subject of adultery, Christ reminded that the law said not to commit adultery, but Christ said that anyone who looked on a woman with lust had committed adultery with her already in his heart.

Christ talked about the law of divorce, the law of oaths, the law of non-resistance and the law of love, also in Matthew Chapter 5. Christ also modified the harshness of Old Testament Laws on several occasions. Some examples are: 1. when a prostitute was to be stoned, Christ asked that the first stone be cast by a person without sin and all left; 2. when Christ got a donkey out of the ditch and his disciples were stripping grain to eat, both on the Sabbath, Christ stated that the Sabbath was made for man, not man for the Sabbath; 3. the question of loyalty to Rome when handed a Roman coin, Christ counseled to give to Rome and to God what was due each.

While preaching to uphold the law, but yet showing reasonableness in the enforcement of law, Christ ran afoul of the leaders of his religious background, the Sadducees and Pharisees. These were the people who enforced Judaic laws. In the end, Christ demonstrated his belief in following authority. One time when he chastised Peter for cutting off the ear of a guard, who was taking Christ as a prisoner. Again, when Christ accepted his fate to die on the Cross, to show the love of God, for humans, by having given his own Son to obey him, even to death.

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Unfortunately, schisms in Christianity along with power and lust for power, have possibly brought on more injustice and perversion of the teachings of Christ, than any other laws prior to Christ's teachings. The ability to render harm and death on other humans has accelerated over the centuries. With that ability, those who seek power and often acting in the name of Christianity, have brought about more harm, pain, death and destruction than any one person can mentally perceive.

If we consider Christ's teachings, and the legal aspects which some of these have, we can conclude the following, which could be called legal principals. (picking only a few from so many)

From the Beatitudes, we could conclude some legal principals or be possibly puzzled how they fit today's society and needs: (Matthew 5:3-11)

Gentle people shall inherit the Earth. (what about our law enforcement, prosecutors and judges?)

Those who hunger and thirst for righteousness shall be satisfied. (Guess that leaves out the scandal mongering tabloids, political spinners on T.V. and those who purport to give us news, when they are giving us their viewpoints which they want us to follow).

The merciful shall receive mercy. (Judges are constantly being called "too lenient", which sometimes they are actually following what the law requires and other times, heinous cases may lack enough evidence to prove a strong case for prosecution and hence a more lenient plea is made and accepted). So does that make Judges merciful or just following procedure. Possibly both or neither.

The pure in heart shall see God. From a legal standpoint, there are few if any who are "pure" in heart in this World today. Even the most worshipful Christians may speed over the speed limit; may take more deductions on tax returns than they are supposed to; may only claim their salary when figuring their tithe to the church, and not the money they make on the lottery (another whoopsi probably) or from selling something in the GreenSheet or on Ebay.

See also what may be Luke's version of the Sermon on the Mount or perhaps just similar teachings (Luke 6:17-26).

You will be blessed when you are insulted and/or persecuted for following the teachings of Christ. This is something I do, in spite of myself, and against what is probably smart. When I see a wrong, I don't look the other direction (which I know is hypocritical because I do many wrong things myself). If find that when someone goes down the street throwing out trash, I will either ask them to pick it up in a nice way or report it to the authorities. That doesn't make you popular, but it is important if we are to have the kind of community we want to live in. Five times in five years I arrested someone within a couple of hundred feet of my law office. A couple of times it resulted in me having a gun pulled on me and one time having to get the drop on another person with a gun. Another time, I saw a lady abducted years ago in Houston and blocked the other vehicle, although they managed to get out of my block and flee. I then reported the matter and understand that the vehicle was stopped. I speak up when someone smokes on an elevator or in another place where smoking is not allowed. I worked to help make Baytown Little Theater smoke-free and received lots of criticism and retribution. In each case, I was happy that I selected what I thought was right, not what would make me popular. Christ said "You are the light of the world. A city set on a hill cannot be hidden. Nor do men light a lamp and put it under the peck-measure, but on the lampstand; and it gives light to all who are in the house. Let your light shine before men in such a way that they may see your good works, and glorify your Father who is in heaven". (Matthew 5:14-16) It seems that what Christ was teaching us legally was not to be afraid to stand up for what is right. To me as an attorney this would interpret into these legal principals and duties:

Be a witness when needed and tell the truth when you testify.

Be forthright in your own dealings with the law (don't follow the example of our former President who wanted to debate the meaning of the word "is" to avoid telling the truth).

Tell the truth, the whole truth and nothing but the truth, whether in your own behalf or as a witness.

Do not fear being a "whistle blower" when you see something wrong and fear no man (or woman) who might reek retribution upon you for being fearless.

"You have heard that it was said 'An eye for an eye, and a tooth for a tooth', but I say to you, do not resist him who is evil; but whoever slaps you on your right cheek, turn to him the other also. And if anyone wants to sue you, and take your shirt, let him have your coat also. And whoever shall force you to go one mile, go with him two {Roman soldiers by law could require a citizen to carry their shields for one mile}. Give to him who asks you, and do not turn away from him who wants to borrow from you". (Matthew 6:38-42) Wow, that's pretty dramatic changes in the law, huh?

What about oaths (which today are administered in every courtroom). Christ said "Again, you have heard that the ancients were told, You shall not make false vows, but shall fulfill your vows to the Lord. But I say to you, make no oath at all, either by heaven, for it is the throne of God, or by the earth, for it is the footstool of Hist feet, or by Jerusalem, for it is THE CITY OF THE GREAT KING; Nor shall you make an oath by your head, for you cannot make one hair white or black. But let your statements be 'Yes, yes' or 'No, no'; and anything beyond these is of evil". (Matthew 5:33-37) So much for "Do you swear to tell the truth, the whole truth and nothing but the truth, so help you GOD" as is used in many courts today.

What about strict enforcement of laws. Christ recognized that there are many laws and they can be enforced stringently, but reason and necessity should figure into the enforcement. We know of cases today where someone has stolen food for children, and the Court and/or prosecutor see that the law should not be strictly enforced, because of the circumstances. Christ gave us several examples of this during his time on Earth. Restating what was in my article somewhat, one example was when Christ and the Disciples were passing through a grain field and the Disciples were picking heads of grain. In the first instance, some Pharisees were near and chastised Christ saying it was the Sabbath and Christ was violating the law. Christ said to him "And He was saying to them, 'The Sabbath was made for man, not man for the Sabbath'" (Mark 2:23-27). A similar thing happened and there was another Sabbath violation necessity of the ox or donkey in the ditch, which was rescued on the Sabbath and again Christ was challenged with violation of the law. Christ's teachings tending to show moderation in enforcement of the law, when necessity overtook the strict letter of the law.

What about legal and moral conflicts of interest and treason? Christ said "And if a kingdom is divided against itself, that kingdom cannot stand. And if a house is divided against itself, that house will not be able to stand" (Mark 3:24-25).

What about humility and humbleness, something which most of us do recognize and appreciate in our leaders? Christ said "If anyone wants to be first, he shall be last of all, and servant of all" (Mark 9:35). Also

What about the pervert, child-molester and/or pedophile in our society, who abuse children. Christ said "And taking a child, He set him before them, and taking him in His arms, He said to them 'Whoever receives one child like this in My name receives Me; and whoever receives Me does not receive Me, but Him who sent Me.'" (Mark 9:37) and continuing "And whoever causes one of these little ones who believe to stumble, it would be better for him if, with a heavy millstone hung around his neck, he had been cast into the sea" (Mark 9:42).

What about marriage and divorce, Christ made plain that marriage was for a man and a woman and tested Christ on the question of the legality of divorce (And some Pharisees came upon to Him, testing Him, and began to question Him whether it was lawful for a make to divorce a wife. And He answered and said to them 'What did Moses command you?' And they said 'Moses permitted a man to write a Certificate of Divorce and send her away'. But Jesus said to them, 'Because of your hardness of heart he wrote you this commandment'. 'But from the beginning of creation, God made them male and female'. 'For this cause a man shall leave his father and mother, and the two shall become one flesh; consequently they are no longer two, but one flesh'. 'What therefore God has joined together, let no man separate". And He said to them 'Whoever divorces his wife and marries another woman commits adultery against her; and if she herself divorces her husband and marries another man, she is committing adultery". (Mark 10:2-12)

What about paying taxes? Here is the well known story of the Pharisees and the Herodians who were attempting to trick Jesus by asking Jesus if it was lawful to pay a poll-tax to Caesar or not? Christ gave one of the best responses of His time on this Earth. (Be it, knowing their hypocrisy, said to them 'Why are you testing Me? Bring Me a denarius to look at'. And they brought one, And He said to them 'Whose likeness and inscription is this?' And they said to Him, 'Caesar's'. And Jesus said to them 'Render to Caesar the things that are Caesar's and to God the things which are God's" (Mark 12:14-17).

Christ met an attorney in one instance: (And behold, a certain lawyer stood up and put Him to the test, saying, 'Teacher, what shall I do to inherit eternal life?' And He said to him, 'What is written in the law? How does it read to you?' And he answered and said 'You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind; and your neighbor as yourself' And He said to him, 'You have answered correctly, do this and you will live" (Luke 10:25-28) and the lawyer then asked who his neighbors were to which Christ told the parable of the good Samaritan. In short, Christ said the law should be equality of all persons.

When Christ healed a man on the Sabbath and was again criticized for doing so. Christ responded by reminding the multitude that it was lawful to do a circumcision on the Sabbath and then said "If a man receives circumcision on the Sabbath that the Law of Moses may not be broken, are you angry with Me because I made an entire man well on the Sabbath?' 'Do not judge according to appearance, but judge with righteous judgment" (John 7:22-24).

Clearly the trial and crucifixion of Christ were an aberration of any rules of law. Without citing the entire sequence which should be well-known to all Christians at least, it was a sham. There was nothing which Christ did that violated the law. It was a political rather than a legal procedure to silence what the persons in authority feared might challenge their power. (various gospels).

One could go on at length, possibly with better examples of how the Roman law and the Jewish law was changed by Christ's teachings and action, both then and over the centuries. However, time constraints dictate that I move on to another area in the History of Law.

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ISLAMIC LAW

Hundreds of years after Christ, a prophet, Mohammad, preached part of the same monotheistic message as had been taught by Moses and other of the prophets, which monotheistic beliefs were shared by the Jews and the Christians.

Shari'a is the sacred law of Islam. It is extremely important in Muslim society. The history of Islamic law parallels the history of Islamic civilization. Law is more important in the religion of Islam than is theology (Cambridge Encyclopaedia of Islam, Vol. II, pt. VIII, Chapter 4, pg 539).

Islamic law had its roots in pre-Islamic Arab society. The pre-Islamic Arab society had both magical and profane characteristics. The Islamic Law has lost much of the magical or mystical but in criminal law particularly has maintained the profane aspects of pre-Islamic society law. It preserved the essential feature of the law of status within the family and the laws regarding inheritance as they previously existed. Much of this law was that from the Arabian Bedouins, the ancient migratory families of the desert. The system was a patriarchal structure of the family. Under this system, an individual had no legal rights outside his tribe. Criminal justice, as a concept, was missing and crimes were seen as torts (i.e. civil wrongs). The tribes were responsible for the actions of the members of the tribe.

This led to blood feuds, but blood feuds were not part of the pre-Islamic law, but were extra-legal measures and the law only came into play with the payment of blood-money as mitigation for the wrongs by one tribe or individual. Pre-Islamic society had no political organization or authority, other than the tribe.

If disputes arose, they were not decided by self-help (that is taking action oneself, in the absence of law) but by negotiation and if that failed then by use of an arbitrator. (Good heavens, sounds like modern litigation procedure to Mediators and Arbitrators recently come into common usage in Texas litigation).

The Islamic law is simply too large to try to get into in this brief presentation. However, suffice it to say that the Qur'an sets out much of the pre-Islamic law. Much of pre-Islamic law was pitched toward favoring underprivileged persons.

The religious heads in Islamic society tend to exercise far more political and governmental authority than in Western society.

While I have studied some of the history of Mohammad and Islam, I must pass at this time on trying to go further into Islamic law, other than to say that much of the harshness of the Code and the OTB laws prevail to this day. Such things as the cutting off of fingers and hands for theft and death for things which in our society would be probably jailable offenses, but certainly not death penalty cases. Also punishment is carried out promptly, with little or no ability to appeal the trial judgments. In my longer book, I certainly intend to go extensively into the law in the Islamic countries. There are basically two schisms in the Islamic faith, being the Shiite and the Sunni factions. As expected their legal systems do not completely overlay each other, although both tend to be the "eye for an eye and tooth for a tooth" retribution belief.

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SOME NOTES ON FORMS OF LAW, WHICH APPLY OVER A PERIOD OF TIME

England, the U.S. and Canada are examples of countries which follow the "Common Law" with the exception of Louisiana in the U.S. and Quebec in Canada, which follow the Civil Law.

It should be noted somewhere, and I will do so here what we mean by "Civil Law", "Equitable Law" and "Common Law" (there are also some other areas, such as Maritime Law and possibly International Law, which won't fit my discussion here).

For help in understanding, in the U.S., unless something is a statute in criminal law, you can't be guilty of that crime.

"Civil Law" means about the same thing in "Civil Law" countries (which is much of Europe, other than England). There are written statutes of civil law which govern everything or it is not part of the civil law. This is a completely statutory or legislative form of law.

"Common Law" arose in England and the countries which England colonized has for the most part adopted the English common law. The name "common law" arose in medieval times as the theory that the law which was administered by the King's (or Queen's) courts represented the common customs of the realm. These decisions were opposed to the local jurisdictions which applied the law of the local or manorial courts. There were three primary courts from which common law arose, which were:

1. King's Bench;

2. Exchequer; and

3. Court of Common Pleas.

These three courts competed successfully against the other courts for jurisdiction over matters and parties and in the process developed a body of doctrine which was distinctive and reasonably consistent.

"Equity Law" is an area of law which is newer than "Common Law" and was developed by the English chancellor (i.e. the King's chaplain, the chancery is the office which such person headed). Initially the chancellor had broad discretion, but over time this became more limited. However, the chancellor was the "king's conscience" and as such, cases were appealed directly to the chancellor because of this status.

The early chancellors purportedly dispensed in what was to have been the original purpose of fair dealing and to bypass the technicalities of common law in order to arrive at a fair resolution. Some of the basis for equitable law came from Roman Law and from canon Law (i.e. church law).

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WHAT IS THE MAGNA CARTA?

If one is a student of History and/or the Law at all, you have to have heard of the Magna Carta. However, the general perception of the Magna Carta is probably not accurate. It is perceived as the basis of our Constitution. The Magna Carta did play some portion of the background for our democracy, but it was not a "Bill of Rights" for all citizens as my be the perception of some.

King John of England used considerable resources to defend English territory in France, but lost his ancestral lands there in Normandy and Anjou to the French king Philip II. King John to attempt to regain these lands imposed high taxes without his baron's consent which was a violation of feudal law and custom.

King John alienated the Catholic Church by quarreling with Pope Innocent III over the appointment of the archbishop of Canterbury. He made amends with the Catholic Church, but in 1214, King John lost the Battle of Bouvines (in what is now Belgium). He had ruled harshly and when he returned to collect even more money, many of the English barons revolted and captured London. However, they could not defeat King John's forces, so a stalemate developed and they negotiated.

The Magna Carta was the result and was imposed upon King John by the barons in 1215 at Runnymede, a meadow near Windsor. The Magna Carta contained 63 clauses of which apparently only two remain part of English law today as the others became outdated or were repealed. The two which are important to our heritage are #39 and #40.

Shortly after the Magna Carta was signed, King John applied to the Catholic Church to invalidate it contending it was extracted under duress, which the Church granted. It was later reinstated and adopted by subsequent kings.

Clause 39 established that the King would follow legal procedure before he punished someone. Clause 40 established the principle of equal access to the courts for all citizens without large fees.

There has been much debate as to whom the rights established in the Magna Carta were for. Originally, it is believed that they were not intended for all people, but for the barons. As time went on, the concepts of these rights were broadened to apply to all "free" men. No included, even then, were slaves, indentured persons, and women.

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The Magna Carta is considered as one of the most important documents to lay the ground work for our present American concepts of freedom and rights. It didn't really pertain to the ordinary folk nor lay out much of what we later adopted. However, it did put a crack in the dam of the Monarchy which eventually expanded and did play a part in our Constitution and Bill of Rights.

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Before there was a Bill of Rights in the United States, there was the English Bill of Rights of 1689. Here is my article on that Bill of rights:

ENGLISH BILL OF RIGHTS OF 1689

Most Americans believe that our "Bill of Rights" was something entirely original. That is only partially true. Our Bill of Rights recognized some God-given rights not previously recognized, but it was not entirely new.

Protestant Prince William of Orange and his wife Mary, were crowned as King and Queen of England in Westminster Abbey on April 11, 1689. The English "elite" had succeeded in throwing out Catholic King James for his offenses to the Protestant Church, as he zealously promoted Roman Catholicism in England.

As part of their oaths, William & Mary were required to swear that they would obey the laws of Parliament. The English Bill of Rights of 1689 was read to them, to which King William responded "We thankfully accept what you have offered us" and that he and Mary would be subject to the law and have guidance from Parliament. After their coronation, the Bill of Rights was passed by Parliament and given Royal Assent by the King and Queen. This ended the concept of "divine rights of kings".

The Bill of Rights first listed the wrongs of King James, then listed the Rights asserted under this Bill of Rights, some of which became part of American Bill of Rights. Some things included were: suspension of laws by the King & Queen were illegal; raising money without act of Parliament is illegal; free election of members of Parliament; freedom of speech; excessive bail should not be required; petitioning the King should not be punished.

Some things which are interesting in this Bill of Rights: Protestants may have arms for their defense (apparently Catholics could not); all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void; and that raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against the law.

This 1689 English Bill of Rights undoubtedly was read, studied and portion adopted or at least figured into the drafting of our own "Bill of Rights" which became a part of our Constitution, when they were ratified on December 15, 1791.

We often think of form of government, as being old. In 1976 we celebrated our Bi-Centennial in 1976, being 200 years old. It is interesting that it was over 100 years from the adoption of the 1689 English Bill of Rights to the adoption of our own Bill of Rights.


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AMERICAN BILL OF RIGHTS

Although there is a lot of law before and after our own U.S. Bill of Rights, I will conclude for now with the recitation of the Bill of Rights ratified on December 15, 1791.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speed and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive finds imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The State of Texas had a Constitution and a Bill of Rights when it was a separate nation. Texas has a Constitution and a Bill of Rights today. Much of it is a restatement of the U.S. Bill of Rights, refashioned, Texas-wise, with different wording and some different organization of the sections.

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I hope you enjoyed reading this booklet as much as I did writing it for you. Some day soon, I have hopes of expanding it and covering more material. There is much more material to be covered and many other laws to be discussed, but time constraints compel stopping here. Thank you.


CONTACT INFORMATION

Terrell William "Terry" Proctor, J.D.
Attorney, Mediator and former Judge
T. W. Proctor & Associates
630 Uvalde Road
Houston, Texas 77015-3766
(713) 453-8338 or 1-800 472-5721
FAX (713) 453-3232 eMail auraman@swbell.net
Websites: https://terrylaw.us
https://terryco.us and http://www.proctormuseum.us



Presented in connection with the "Vital Speakers Programs"
sponsored by FLAME, an organization of
HOLY TRINITY UNITED METHODIST CHURCH
for the 6:30 P.M.. JUNE 29, 2003 Program