CA 1 Prelim Week 2 PDF

HISTORICAL PERSPECTIVE Ordeal It is a system of trial wherein innocence or guilt is determined through the ability of the accused of being unscathed through dangerous and painful test. Retaliatory It is a system of punishment through Kin Policing (the family of the offended ind...

HISTORICAL PERSPECTIVE Ordeal It is a system of trial wherein innocence or guilt is determined through the ability of the accused of being unscathed through dangerous and painful test. Retaliatory It is a system of punishment through Kin Policing (the family of the offended individual was expected to assume responsibility for justice.) Punishment was carried out by the victim personally, along with the help provided by one’s family. The offender will seek refuge to his family and friends’ as a result of this system, blood feuds developed. Lex Taliones- “An eye for an eye and a tooth for a tooth.” Fines and Punishment customs have exerted effort and great force among primitive societies. The acceptance of vengeance in the form of payment (cattle, food, personal services, etc) became accepted as dictated by tribal traditions. 13th Century- Securing sanctuary During this period, a criminal could avoid punishment by claiming refugee in a church for period of 40 days. In England at about 1468, torture as a form of punishment became prevalent. 16th Century- Transportation Transportation- of Criminals in England was authorized. AT the end of the century, Russia and other European Countries followed this system, It partially relieved overcrowding of prisons. Transportation of Criminals was abandoned in 1835. Death Penalty (17-18th) Death Penalty became prevalent as a form of punishment. Gaols (17th-18th) (Jails) were common. These are pre-trial detention facilities operated in England. Galleys (17th-18th) were also used. These are long, narrow, single decked ships propelled by sails, usually rowed by criminals, a type of ship used for transportation of criminals in the 16th century. Hulks (17th-18th) were commonly used-former warships used to house prisoners. Abandoned warships were converted into prisons as a means to relieve congestion of prisons. They were also called “floating hells”. THE EARLY LEGAL SYSTEM Roman Laws Mohammedan or Arabic Laws Anglo-American Laws ROMAN LAW Roman law is the legal system of ancient Rome, Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. In a civil law system, a judge merely establishes the facts of a case and applies remedies found in the codified law. As a result, lawmakers, scholars, and legal experts hold much more influence over how the legal system is administered than judges. Anglo-American Law Common law, also called Anglo-American law, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. common law systems have laws that are created by legislators, it is up to judges to rely on precedents set by previous courts to interpret those laws and apply them to individual cases.  Sharia Islamic law, or redundantly Sharia law, is a religious law forming part of the Islamic tradition. It is derived from the religious precepts of Islam, particularly the Quran and the hadith. THE EARLY LEGAL CODES The Babylonian and Sumerian Codes: Code of Ur-Nammu ( 2050 BC)-Through archaeological diggings, scientist have acknowledge that the first law system in the world belonged to the Mesopotamians, specifically the “Summerans”. One of the most ancient legislators, Ur-Nammu, who was the ruler of the city of UR had a code detailing the punishments for witchcraft, the escapades of slaves and assault. THE EARLY LEGAL CODES The Babylonian and Sumerian Codes: Code of Eshhunna (1930 BC)- A Sumerian code which forbids accepting money or objects “ from the hands of slave” or making loans (that is, any transactions with a slave). Moneylenders are likewise forbidden from taking hostages, whether free men or slaves. THE EARLY LEGAL CODES The Babylonian and Sumerian Codes: Code of Lipit-Isthar ( 1860 BC)- A more popular version the Sumerian Law which chronicles the rights of citizen’s, marriages, successions, property rights and penalties. THE EARLY LEGAL CODES The Babylonian and Sumerian Codes: Code of Hammurabi (1780 BC)- the Babylonian code that prescribes harsh punishment. Punishments were calculated according to Lex Taliones- law of retaliation. Death penalties could also be imposed on crimes such as murder, and several kinds of execution, depending on the nature of the crime. Greek and Roman Codes Greek Code of Draco (621 BC)-In Greece, around 621 BC, the code of Draco was enforced, a harsh code that provides the same punishment for both citizens and the slaves as it incorporates primitive concepts. The penalty for many offenses was death; so severe, that the word “draconian” comes from his name and has come to mean, in the English language, as “unreasonably harsh law”. The Draco laws were the first written laws of Greece. These laws introduced the state’s exclusive role in punishing persons accused of crime, instead of relying on private justice. Thus, the Greek were the first society to allow citizen to prosecute the offender in the name of the injured party. Greek and Roman Codes Solon’s Law (530 BC)- This law repealed Draco’s Laws and allowed capital punishment only for a limited number of serious offenses, such as murder or military or political offenses against the state. It also gave the right of representation, of every person to claim redress on behalf of another to whom wrong was being done. Greek and Roman Codes The Twelve Tables (450 BC)- Represented earliest codification of Roman Law which was later on incorporated into the Justinian Code. It is the foundation of all public and private law of the Romans until the time of Justinian. It is also a collection of legal principles engraved on metal tablets and set up on the forum. Greek and Roman Codes Justininan Code (6th AD)-Emperor Justinian of Rome wrote his code of law. This was an effort to match a desirable amount of punishment to all possible crimes. However, the law did not survive due to the fall of the Roman Empire but left a foundation of Western Legal Codes. French Code: Burgundian Code (500 Ad)- Also known as Lex Burgundionum, published in about 475 in Burgundy, now Southeastern France. The codification married German to Roman Law as well as advancing other unique and novel aspects of written private laws which influenced the course of the law of Europe. Secular Laws: Secular Laws (4th AD)- were advocated by Christian Philosphers who recognizes the need for justice. Some of the proponents of these laws were St. Augustine and St. Thomas Aquinas. During this period, three laws were distinguished; ▫ External Law ( Lex External) ▫ Natural Law ( Lex Naturalist) ▫ Human Law ( Lex Humana) All of these laws are intended for the common good, but the human law only becomes valid if it does not conflict with the other two laws.  Eternal Law is the Divine Wisdom of God which oversees the common good and governs everything. Natural Law- Every man is bound to live by his rational nature, guided by reason. The natural law expresses the dignity of the person and determines the basis for his fundamental rights and duties. The first principle of the natural law is “good is to be done and pursued, and evil avoided”. Human Law- Rulers of the State should take the general moral precepts of nature and specify them into State laws, e.g., the repugnance of murder is legislated into punishments Chinese Codes Qin Code- During the Chin or Qin Dynasty of 221-206 BC, the King of Qin (aka Chin) manage to defeat most of the other Kings and was able to consolidate power over much of the modern-day territory of China. The emperor of Chin heeded Han Fei’s (Han Fei Tze was a Chinese Jurist) advice and consolidated his rule with a harsh penal code for all-the Qin Code (also called the Chin Code). The Qin code eroded the Confucian base from which most Chinese Law had benefitted to date. Chinese Codes Han Code-In 206 BC, the Han Dynasty began and the Confucius legal policy was reinvented with a vengeance and thereafter remaind as the “dominant force” behind Chinese law right up 1949. The legal reform was led by the benevolent spirit of Liu Pang (aka Liu Bang), emperor of China from 206-195 BC. He stated publicly that there were far too many laws. So he whittled it down to three; prohibitions against murder, injury and theft. Chinese Codes The Tang Code (Tanlu SHuyi)- developed during the dynasty of the ame name, and as substantially revised in a second edition which issued in 637. The code revised earlier existing Chinese Codes and standardized procedures. For examples, there were only 2 ways to perform capital punishment on a convicted criminal- beheading or hanging. Chinese Codes The Ming Code-were a succession of consolidations of the criminal law in China developed during the Ming dynasty of 1868- 1644. Chinese Codes The Qing Code- In 1644, Chinese law was again altered by the publication of the Qing Code, the last of the great law codes of the Chinese dynasties. Some Confucian features of the Qing Code included deference to the family hierarchy where even the accidental death of an elder meant death. Conversely, if a child curses an elder and the child was then beaten to death, the punishment to the offender was relatively mild.