 |
 |
|
| T. W. Proctor, J.D. June 29, 2003 Speaker |
The Scales of Justice Traditional symbol of Law |
|
|
|
| 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".
# # # 30 # # #
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 7½ 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.
*****************************************************************************************************************************
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.
# # # 30 # # #
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.
*****************************************************************************************************************************
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.
*****************************************************************************************************************************
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).
*****************************************************************************************************************************
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.
# # # 30 # # #
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.
*****************************************************************************************************************************
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.
*****************************************************************************************************************************
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).
*****************************************************************************************************************************
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.
# # # 30 # # #
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.
*****************************************************************************************************************************
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.
# # # 30 # # #
*****************************************************************************************************************************
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.
*****************************************************************************************************************************
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