Keith Mack
The creation of laws is a complex and evolving process that has been studied by legal historians and scholars for centuries. Law, in its simplest form, is a set of rules created and enforced by social or governmental institutions to regulate behaviour. The history of law is closely connected to the development of civilisations, with different cultures and societies developing their own unique legal systems. While it is impossible to pinpoint the exact origin of law, the earliest records of written legal systems date back to ancient times, with the Code of Hammurabi from Mesopotamia around 1772 BCE and the legal system of the ancient city of Ur from around 2100 BCE being notable examples. Over time, various legal traditions emerged, such as the Western legal tradition, which spread from Europe to the Americas and became the dominant legal framework globally, and non-Western traditions like Hinduism and Islam, which often intertwine religious beliefs with legal codes. The evolution of law continues to shape politics, economics, history, and society, with legal systems adapting to new challenges and advancements.
| Characteristics | Values |
|---|---|
| Earliest record of a written legal system | 2100 BCE in the ancient city of Ur |
| Earliest surviving written legal code | Code of Hammurabi, c. 1772 BCE from Mesopotamia |
| First extant law code | Formulated by Ur-Nammu, an ancient Sumerian ruler, c. 2200 BCE |
| Basis of civil law | Ancient Roman law |
| Basis of common law | English monarchy |
| Longest continuous legal history | China |
| Basis of US law | US Constitution, written in 1787 |
| Basis of French civil law | Napoleonic Code, adopted in 1804 |
| Basis of British Empire law | Common law |
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What You'll Learn
The role of the judiciary
The concept of law has evolved over thousands of years, from Ancient Egyptian law, dating as far back as 3000 BC, to the modern civil law systems of today. Law is a set of rules that are created and enforced by social or governmental institutions to regulate behaviour. The creation of laws can be influenced by a variety of factors, including a constitution, and the rights encoded within it.
The judiciary plays a crucial role in the interpretation, defence, and application of the law to specific cases. While the judiciary generally does not create statutory law (which is the responsibility of the legislature) or enforce the law (which falls under the executive branch), it holds the power to interpret and implement the law, thereby creating a body of constitutional law. This is particularly important in common law jurisdictions, where judges' decisions form precedents that guide future cases.
In the context of the U.S. federal government, the judiciary's relationship with the legislative and executive branches is critical. The judiciary must provide Congress with timely and accurate information regarding the administration of justice and maintain robust financial oversight and reporting practices. Strategies to enhance the judiciary's relationship with Congress include improving the early identification of legislative issues and fostering communication between judges and members of Congress.
Additionally, the judiciary's relationship with the executive branch is essential, especially in areas where the executive branch has primary responsibility, such as judicial security and facilities management. The executive branch also provides critical services to the judiciary, including space, security, and personnel, and develops policies that impact the administration of justice.
Overall, the judiciary acts as a mechanism for resolving disputes and ensuring the fair interpretation and application of the law. By maintaining its independence and discretion, the judiciary contributes to the evolution of the legal system and the protection of rights.
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Law in ancient civilisations
The legal systems in place throughout the world today have origins in ancient civilisations. For instance, civil law is founded in ancient Roman law, which was based on complying with enacted laws. Common law, on the other hand, originated with England's monarchy and is based on precedent.
One of the earliest written legal codes was the Code of Hammurabi, which was established in Mesopotamia. This code established laws regulating social interactions and emphasised the principle of retaliation. For example, violent crimes often had penalties that matched the crime; if you cut off someone's hand, your hand would also be cut off. Hammurabi was known for his fair laws and ruling style, and he wanted his people to obey his laws out of respect rather than fear.
Ancient Rome also contributed significantly to the legal systems still in place today. The foundation of Roman law was the Twelve Tablets, which contained an established set of laws. Some of the laws included in the Twelve Tablets were the requirement to appear in court if called upon, the punishment of death for lying in court, and a prohibition against holding business or political meetings at night. Roman law spread throughout Europe, and after the fall of the Roman Empire, Constantinople continued to develop these concepts. Roman law has influenced the development of law in most of Western civilisation, as well as in parts of the East.
Ancient Greece introduced the concept of democracy through city-states (poleis), where citizens participated in governance, although social hierarchies remained, with women and slaves excluded from political rights. The judicial system in place in America has roots in the ancient Greek legal system, where there were no lawyers, and people argued their own cases.
China has the longest continuous legal history of any country, influenced by ancient Confucian codes of conduct, which focus on people's individual responsibility to be virtuous without having the law dictate their actions.
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How laws are made
The process of law-making has evolved over time, with legal history being closely connected to the development of civilisations. The earliest known examples of law-making can be traced back to ancient civilisations such as Egypt, Sumer, and Babylon. For instance, the concept of Ma'at formed the basis of Ancient Egyptian law around 3000 BC, characterised by tradition, rhetorical speech, social equality, and impartiality.
In the 22nd century BC, Ur-Nammu, an ancient Sumerian ruler, formulated the first extant law code, consisting of casuistic statements. This was further developed around 1760 BC when King Hammurabi of Babylon codified and inscribed the laws in stone, known as the Codex Hammurabi. Ancient Greece, India, and China also had distinct traditions of law, with independent schools of legal theory and practice.
Moving into the medieval period, law in Europe became highly decentralised, with legal cultures varying from county to county, and even shire to shire in the case of England. However, the concept of "common law" emerged during the reign of Henry II in the 12th century, when judges were appointed to create a unified system of law across the country. This was further solidified by the Magna Carta of 1215, which limited the king's authority to pass laws.
In modern times, the process of law-making varies depending on the country and type of law being considered. For example, in the United States, laws are typically proposed as bills by members of the House of Representatives or the Senate, which are then assigned to committees for research, discussion, and potential amendments. Once a bill passes one body of Congress, it goes through a similar process in the other body before the two versions are reconciled. The finalised bill is then sent to the President for approval, who can choose to sign it into law or veto it. If vetoed, Congress can override the veto with a two-thirds vote in both the House and the Senate, and the bill becomes a law.
In Canada, a bill must be approved in identical form by both houses of Parliament – the Senate and the House of Commons – before being granted Royal Assent by the Governor General and becoming law. The process involves debate, review, and voting, with opportunities for amendments and input from government officials and experts.
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The influence of religion
Religion has had a profound and complex influence on the creation and development of laws throughout history, particularly within the Abrahamic traditions. Two fundamental religious approaches to law can be identified. The first approach asserts that divine revelation provides prescriptions that should be integrated into human legal and political systems. This view holds that laws are ultimately derived from a divine source and that human comprehension and implementation of these laws are essential.
The second approach seeks to separate the divine from earthly legal paradigms, infusing them with a relativizing spirituality. This perspective questions the role of divine will in shaping legal frameworks and suggests that the remoteness of divine will may exempt the religious sphere from human laws. These contrasting viewpoints have significant implications for the relationship between religion and law, as well as the very concept of law itself.
Religious traditions, such as Talmudic law, affirm the possibility of divine commands for human conduct, resulting in a form of religious law. This affirmation introduces a secular momentum within religion, as it requires human acceptance of divine revelation. The binding force of God's commands allows for flexibility in legal practice, considering the imperfect human understanding of divine will and allowing for derogations in specific cases to better align with judicial reasoning.
In the United States, the law-making process is influenced by the country's bicameral legislative system. While the idea for a bill can come from a member of the Senate or the House of Representatives, it must go through a rigorous process involving committees, research, discussion, and voting in both chambers of Congress. This process allows for open and full discussion, often leading to amendments and improvements to the bill before it becomes a law.
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Law in the US
Laws in the United States are created at both the federal and state levels. Congress is the lawmaking branch of the federal government, and it comprises the Senate and the House of Representatives. Law creation in the US can be broadly understood in terms of the following steps:
Proposal of a Bill
A bill is a proposal for a new law or a change to an existing law. The idea for a bill can come from a sitting member of the U.S. Senate or House of Representatives, be proposed during their election campaign, or be petitioned by citizens or citizen groups. Once a bill is proposed, it is introduced in Congress.
Committee Review
The introduced bill is then assigned to a committee, a small group of lawmakers responsible for a specific public policy or area of government. The committee researches, discusses, and may make changes to the bill. Committees may hold hearings to seek more information about the proposal. If the committee decides to take no action, the bill is said to have been "tabled" or to have "died in committee."
Voting on the Bill
If the committee approves the bill, it is then put before the chamber to be voted on by both houses of Congress. If the bill is approved by both the House and the Senate, it is sent to the President of the United States.
Presidential Approval
The President has several options at this stage. They can choose to sign the bill, in which case it becomes a law. If the President does nothing and Congress is in session, the bill will also become a law. However, if Congress is not in session, the bill will not pass. The President can also veto the bill, returning it to the Senate and the House.
Veto Override
If the President vetoes the bill, Congress can attempt to override the veto by voting on the bill again. If two-thirds of both the Senate and the House approve the bill, they can turn it into a law even without the President's signature.
It is important to note that the process described above is a simplified overview, and there may be additional nuances and variations in the law-making process in the United States. Additionally, US law is influenced by historical precedents, with early American courts citing contemporary English cases due to the lack of reported appellate decisions in the US. The US legal system also distinguishes between procedural law, which governs the enforcement of legal rights and duties, and substantive law, which encompasses the content of legal rights and duties.
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Frequently asked questions
In the US, a bill is a proposal for a new law or a change to an existing law. The idea for a bill can come from a sitting member of the U.S. Senate or House of Representatives or be proposed during their election campaign. Bills can also be petitioned by people or citizen groups who recommend a new or amended law to a member of Congress that represents them. Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. The bill is then put before that chamber to be voted on. If the bill passes one body of Congress, it goes to the other body to go through a similar process of research, discussion, changes, and voting. Once both bodies vote to accept a bill, they must work out any differences between the two versions. The president then considers the bill. The president can approve the bill and sign it into law or refuse to approve it, which is called a veto.
The history of law is a long and complex story that continues to evolve today. Legal history is closely connected to the development of civilizations and operates in the wider context of social history. The earliest record of a written legal system dates from approximately 2100 BCE in the ancient city of Ur. Over the millennia, different types of legal systems have evolved. Civil law systems rely on specific rules of conduct and punishment, while common law systems allow interpretation of laws as they apply in specific cases.
Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec). Common law relies heavily on judicial precedence, or how a law has been interpreted in the past. In medieval England during the Norman Conquest, the law varied shire-to-shire based on disparate tribal customs. The concept of a "common law" developed during the reign of Henry II in the late 12th century, when Henry appointed judges who had the authority to create a unified system of law.
The Western legal tradition is largely secular. Non-Western legal traditions, such as Hinduism and Islam, frequently link religious beliefs with legal codes. Ancient India and China represent distinct traditions of law, with influential treatises in India such as the Arthashastra and the Manusmriti considered authoritative legal guidance. During the Muslim conquests in the Indian subcontinent, Sharia was established by the Muslim sultanates and empires. In the Middle Ages, the Catholic Church created canon law to cover issues related to religion.
