Living in the United States it is easy to imagine our current system of law has not only been in use indefinitely, but also that it is a universally accepted system. Often we forget that our law system has a unique history, as do the law systems of many other countries. Historically, law systems have dictated not only what constitutes a crime and the punishment for that crime, but also legal proceedings, dress codes and other accoutrements of law. The historical legal systems of Common law, Hindu Law and Roman Law all have various similarities and differences, as well as a direct effect on modern law.
History of Law
Common Law
Common Law began its use in the Middle Ages in England; it later traveled to the English colonies ("The Common Law and Civil Law Traditions", 2016). Common Law came into use as a result of the Norman Conquest of 1066. The conquest caused the medieval kings to consolidate their power and begin creating a system of royal orders known as writs. These writs became too cumbersome to enforce and follow, so the court of equity was created to relieve the King from having to rule on so many issues ("The Common Law and Civil Law Traditions", 2016). The king’s chancellor held court and was authorized to use principles of equity as dictated from Roman Law, natural law and more sources.
Common Law is known for following precedent versus having a series of code which to follow. As different courts reach decisions, and thereby set a precedent, these decisions are recorded so future courts can refer to them to aid in decision making. It is an adversarial system, meaning that a judge moderates the issues between two different parties ("The Common Law and Civil Law Traditions", 2016). The choice to use what is now known as common law set England apart from the rest of Europe, whose law system is more heavily codified and referred to as Civil Law.
Roman Law
Romans have lived by traditional laws since before the Roman empire even existed. The law was handed down through the generations and therefore was felt to be just an inherited portion of their normal society ("Roman Legal Tradition", 2016). Due to the fact that this law was steeped in societal traditions, it only applied to Roman citizens so was civil law ("Roman Legal Tradition", 2016). The patricians, who were the elite of Roman society, had the privilege of creating a group among them called the Pontiff’s ("Roman Legal Tradition", 2016). The Pontiff’s were allowed to make the decisions and rulings of the customary law. The issue with this set-up is that the plebeians, or lower class, were unfairly treated by the Pontiff’s. In order to have the law become more fair, the plebeians pushed for the law to be written down; this would make outcomes become more than a matter of arbitrary rulings.
Islamic Law
Islamic Law, also known as Sharia Law, came about through the Koran and the teachings and edicts of Mohammed, Islam’s great prophet (Costly, 2016). While the Arabian Peninsula once housed a Myriad a differing tribes who worshiped different idols and warred with each other, Mohammed’s introduction of the Islam religion changed everything. The Koran dictated moral codes, and Mohammed began laying out law as he acted as judge and interpreter of the Koran (Costly, 2016). Upon Mohammed’s death, some of his companions took over his job. As Islam spread outside Arabia elements of other law systems, such as Greek and Roman, began to influence Islamic Law (Costly, 2016).
After many civil wars a new regimes debate began about what exactly should be included in Sharia Law. One group felt the Sharia should remain pure and only contain laws directly from the Koran or Mohammed himself. Others felt that legal scholars should be able to interpret the law. Shafii, a legal scholar, sought to reconcile both groups. He came up with a system that began with consulting the Koran. If there were no clear answer within the Koran then the judge should look at the teachings and sayings of Mohammed. Failing to find an answer there, the judge should then look at the “consensus of Muslim legal scholars on the matter” (Costly, 2016). The final place to find the solution, if all others failed, was for the judge to “form his own answer by analogy from the precedent nearest in resemblance and most appropriate to the case at hand” (Costly, 2016). While Shafii’s ideas were considered controversial, there were eventually adopted.
The Laws Effects on Trade Agreements and Organizations
Common Law
In the mid-fifteenth century the mercantile class had amassed a great deal of wealth; even the crown itself found itself indebted to the mercantile class ("Description and History of Common Law", 2016). In an effort to maintain their newfound wealth and control, the mercantile class had laws passed that fulfilled specific purposes. First, they made laws that defined acts which interrupted market predictability as crimes against the state versus a civil contract violation between individuals ("Description and History of Common Law", 2016). Secondly, they began to insure they had cheap labor by using criminal law as a tool of threat and force. Finally, they punished working class people who in desperation turned to theft or violence ("Description and History of Common Law", 2016). This both created more cheap prison labor, and forced the poor to stay within their class. These laws also allowed the emerging capitalists to profit from brutal conditions and have no legal retribution against them. These are the laws which also carried over to the colonies.
Roman Law
The Roman Law took a much more laid back approach to commerce. For instance, they viewed just prices as whatever price two people came to agree upon. This approach led to a lot of free trade without any hassle from the government ("Roman Law: From Laissez-Faire to Statism", 2011). It also meant real estate could easily be bought and sold between individuals.
Islamic Law
The spread of Islam and Islamic Law was done directly through trade. As the Arabic nations increased in size, so did the territories they sought to trade their spices and other goods with. While there to trade they would seek to proselytize and convert the areas they were in to Islam, and therefore to Islamic Law ("Trade and the Spread of Islam", 2016).
Links with the Current Legal Systems Worldwide
Common Law
The common law system can still be seen in the law systems of England and the United States. The use of precedent, judges, various writs and much more are directly from the historical common law system.
Roman Law
Roman Law has perhaps had the most prolific effect on modern society. Italy, France and Spain all are based upon Roman Law (Crittenden, 1919). So is Latin America. The Justinian codification influences Holland, Germany, Switzerland and even portions of Unites States territories such as the Philippines and the state of Louisiana. That is just a small portion of its influence on modern law.
Islamic Law
Islamic Law is unique in that it is still in practice and pretty much untouched from it historical roots. Muslim people and countries are still practicing Islamic Law.
Conclusion
Each law type is unique and yet intertwined. While Roman Law set the precedent in many ways, and even had influence on Common Law and Islamic Law, it is not used in the larger countries of the world anymore. It is interesting to note that while Roman Law has very broad ideals when it came to trade, the countries which practice modern day Roman Law style are not the strongest in trade. Rather, it could be argued, the United States, England and the Arabic nations are stronger on trade relations. It is also interesting to note that both the United States and England still have law systems which favor large corporations over the working class people and that the same issues with crime and poverty are still in existence today. There is little doubt, for good or bad, that each of these law systems has left more than just a historical mark upon the world; they have influenced generations and will continue to do so.
References
Costly, A. (2016). The Origins of Islamic Law. Crf-usa.org. Retrieved 16 May 2016, from http://www.crf-usa.org/america-responds-to-terrorism/the-origins-of- islamic-law.html
Crittenden, A. (1919). Roman Law in Modern Life and Eudcation. The Classical Journal, 15(3), 148-154. Retrieved from http://www.jstor.org/stable/3287837
Description and History of Common Law. (2016). Radford.edu. Retrieved 16 May 2016, from http://www.radford.edu/~junnever/law/commonlaw.htm
Roman Law: From Laissez-Faire to Statism. (2011). Mises Institute. Retrieved 16 May 2016, from https://mises.org/library/roman-law-laissez-faire-statism
Roman Legal Tradition. (2016). Law.berkeley.edu. Retrieved 15 May 2016, from https://www.law.berkeley.edu/library/robbins/RomanLegalTradition.html
The Common Law and Civil Law Traditions. (2016). Law.berkeley.edu. Retrieved 15 May 2016, from https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.h tml
Trade and the Spread of Islam. (2016). The Met’s Heilbrunn Timeline of Art History. Retrieved 16 May 2016, from http://www.metmuseum.org/toah/hd/tsis/hd_tsis.htm
