Anaya Nolan
The creation of laws is a complex process influenced by various factors, including legislation, customs, court rulings, international treaties, and social and political changes. Law, as a set of enforceable rules, has a long history, with ancient civilisations like Egypt (c. 3000 BC) and Sumer (by the 22nd century BC) developing their own legal codes. Over time, legal systems evolved, with the ancient Greeks and Romans making significant contributions to the field. The Roman distinction between public and private law, for instance, still holds relevance today. In the modern era, law-making is primarily associated with governments and legislatures, but the process varies across jurisdictions. For instance, common law, which originated in England, is now prevalent in many former British colonies, shaping their legal traditions. The evolution of law is ongoing, and it continues to be influenced by cultural, social, and political shifts, as well as the increasing influence of international organisations.
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What You'll Learn
Law creation by governments and international organisations
The history of law, or legal history, is the study of how law has evolved and why it has changed. It is closely connected to the development of civilisations and is studied in the wider context of social history. Legal historians analyse case histories using statistical methods and by examining class distinctions among litigants, petitioners and other players in various legal processes.
The evolution of law can be traced back to ancient civilisations, with Ancient Egyptian law, dating back to 3000 BC, being one of the earliest examples. This was followed by the development of Babylonian law by King Hammurabi around 1760 BC. In the ancient world, the Greeks and Romans made significant contributions to the legal systems that would later be adopted by many modern countries. The Roman law, in particular, was based on the Twelve Tablets, which established a set of laws that remained in place for over 1500 years. The Code of Justinian, created by Emperor Justinian, compiled Roman laws and formed the foundation of civil law in many modern countries.
Over time, legal systems evolved and spread globally, with countries adopting and adapting laws from other nations. For example, Japan modernised its legal system based on the French and German Civil Codes, while traditional Chinese law was influenced by Westernisation during the Qing dynasty.
In the context of international relations, international law governs the conduct of sovereign states and their treatment of individuals within state boundaries. International law is enshrined in conventions, treaties, and standards, with the United Nations (UN) playing a significant role in its development and enforcement. The UN's International Law Commission, established in 1947, promotes the progressive development and codification of international law. The UN has facilitated the creation of multilateral treaties covering a broad range of subjects, including human rights, disarmament, and protection of the environment.
International organisations, such as the UN, are also recognised as relevant parties to international law and have the capacity to enter into treaties. Treaties are defined as international agreements between states or organisations, governed by international law and creating legal obligations through the principle of pacta sunt servanda. The International Criminal Court (ICC), while independent from the UN, also plays a crucial role in prosecuting individuals who commit genocide, war crimes, and crimes against humanity.
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Decentralised law and the role of communities
Decentralisation is the process by which the activities of an organisation, especially those related to planning and decision-making, are distributed or delegated away from a central, authoritative location or group and given to smaller factions within it. Decentralised law is the idea that law-making and law-enforcement can be delegated to smaller factions within a society, such as communities.
The concept of decentralised law is not new. In fact, it has been a feature of many ancient legal systems. For example, Ancient Egyptian law, dating back to 3000 BC, was based on the concept of Ma'at and was characterised by tradition, rhetorical speech, social equality and impartiality. Similarly, in ancient Greece, there were no lawyers, and individuals would argue their cases before a large jury. In both of these examples, the law was not centralised in the hands of a small group of legal experts but was instead decentralised and accessible to the wider community.
Decentralised law can also be found in the concept of private law, which governs relationships between individuals that are of no direct concern to the state. Private law already streamlines the interactions of large groups of individuals around the world and forms the ideal building block for Decentralised Law. Arbitration agreements, for example, create a unique body of private law that is consented to by all parties involved. These agreements can choose their governing laws and, thanks to the New York Convention (1958), arbitration awards are enforceable in almost any country in the world.
In the modern era, the rise of decentralised technologies, such as Bitcoin, has also led to a renewed interest in decentralised law. Bitcoin is a fully decentralised system with no central authority figure. Instead, adjustments to the protocol are proposed, scrutinised and either accepted or rejected by the community. This process has been effective in creating a robust and resilient system, and it has been suggested that a similar process could be applied to law creation. For example, the use of public Wikis could be used to codify and publish decentralised law, making it more accessible and user-friendly than the current system.
At a regional level, decentralisation can also contribute to promoting rule-of-law structures and economic growth. For example, in the Democratic Republic of Congo, Rwanda and Burundi, regional communities are playing an increasingly important role in governance. Establishing decentralised government structures at the local, municipal and provincial levels can encourage acceptance of these structures if they have the support of the population and if people have a say in how they are run. This can also provide economic impulses, as communities can organise their own infrastructure and intensify and expand agricultural production and trade.
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The evolution of law and its connection to civilisational development
The evolution of law is closely connected to the development of civilisations. Legal history is the study of how law has evolved and why it has changed. Law is a set of rules that are created and enforced by social or governmental institutions to regulate behaviour. The creation of laws may be influenced by a constitution, and the rights contained therein.
Ancient civilisations like Egypt, dating as far back as 3000 BC, had a legal system based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality, and impartiality. By the 22nd century BC, Ur-Nammu, an ancient Sumerian ruler, formulated the first extant law code, consisting of casuistic "if-then" statements. Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone.
In ancient Greece, there were no lawyers, and people argued their cases themselves, sometimes hiring speechwriters to help craft their arguments. Large juries of up to 500 people decided the verdicts, and cases were completed within a day. Ancient India and China also represent distinct traditions of law, with independent schools of legal theory and practice. The Arthashastra (400 BC) and the Manusmriti (100 BCE) were influential Indian treatises, with Manu's central philosophy being tolerance and pluralism.
In the medieval period, Europe was highly decentralised in legal terms, with law generally not governed above the county, municipal, or lordship level. This favoured the development of customary law based on local case law. However, in the 11th century, crusaders brought back Byzantine legal texts, including the Justinian Code, which was used by scholars at the University of Bologna to interpret their own customary laws. Medieval European legal scholars also began to research Roman law, paving the way for its partial resurrection as modern civil law in many parts of the world.
In the modern era, Japan was the first country to begin modernising its legal system along Western lines, importing elements of the French and German Civil Codes. Traditional Chinese law also gave way to Westernisation in the final years of the Qing dynasty, influenced by Japanese law, which itself was based on German law.
Common law, which originated in England, has been inherited by many countries that were once part of the British Empire. It developed during the reign of Henry II in the 12th century, when he appointed judges with the authority to create a unified system of law for the country. The Magna Carta of 1215 was another significant development, limiting the King's authority to pass laws and requiring that courts be held in a certain place.
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Common law, statutes, and the role of judges
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law is based on the idea that courts and judges should follow previous rulings and decisions when dealing with similar cases in the future. This principle promotes stability and consistency in the legal system, as it ensures that similar cases are treated in a similar manner.
Common law originated in England and has been inherited by many countries that were once part of the British Empire. It developed during the reign of Henry II in the 12th century, when Henry appointed judges to create a unified system of law for the country. These judges developed a body of precedent that became the common law.
Statutes, on the other hand, are written laws created by a legislature or other central body. They are a key feature of civil law systems, which differ from common law systems in several ways. In civil law systems, court decisions are not binding in other cases, even if the facts are similar. Civil law systems also tend to have clear rules outlining how judges should rule in specific disputes.
Judges play a crucial role in both common law and civil law systems. In common law systems, judges determine which precedents to apply in each case and can establish new precedents when no previous precedent exists. They also have the power to change laws through judicial review, where laws may be annulled if found incompatible with higher norms such as the constitution or international law. In civil law systems, judges interpret the text of the code, but their decisions are generally not binding in later cases.
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Historical influences: Ancient Greece, Rome, Egypt, and China
Ancient Egyptian law was based on the central cultural value of ma'at (harmony), which was believed to have been instituted by the gods at the beginning of time. The king or pharaoh was seen as the representative of the gods and their divine justice, and just below him was his vizier, who was responsible for the practical administration of justice. The legal system was formed regionally at first, in individual districts called nomes, and was presided over by the governor and his steward. The earliest laws in Egypt date back to the Predynastic Period (c. 6000–c. 3150 BCE) and would continue to develop until Egypt was annexed by Rome in 30 BCE.
Ancient Greek law was characterised by a multiplicity of city-states (poleis), each of which possessed and administered its own set of laws. In many of these poleis, laws were laid down in written statutes, some of them elaborate and more or less complete codes setting forth procedural methods and substantive rules for the administration of justice. This movement for legal codification began in the 7th century BCE, and Solon of Athens (594 BCE) is considered the best-known lawgiver of this period. Greek law was also influenced by the absence of a body of jurisprudence comparable to that of the Romans, and the focus of Attic orators on presenting arguments to persuade mass juries rather than analysing the legal system.
Ancient Roman law, including the legal developments spanning over a thousand years of jurisprudence, is known for its influence on legal practice throughout Western continental Europe and beyond. The Law of the Twelve Tables, created in 450 BCE and approved by the people's assembly, is an important example of Roman law. Roman law also included the ius civile, a formal law introduced by magistrates, and the more flexible ius honorarium, which supported, supplemented, or corrected existing laws. Famous jurists of the republican period include Quintus Mucius Scaevola and Servius Sulpicius Rufus.
Traditional Chinese law can be divided into "official" law, which emanates from the authority of the emperor, and "unofficial" law, which refers to the customary law of the people. Official law can be further divided into penal law, which prescribes punishments for certain behaviours, and administrative law, which defines the duties of officials. The earliest document on Chinese law that is considered authentic is the Kang Gao, a set of instructions issued by King Wu of Zhou to a younger prince for the government of a fief. The first surviving complete code of penal law was the Kaihuang Code, developed during the Sui dynasty and adopted by later dynasties including the Tang in 653.
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Frequently asked questions
Most people would answer that the government creates laws, and this is true. However, there are many other factors that influence the creation of laws, such as customs, court rulings, international treaties, and constitutions. In some countries, the judiciary also makes common law.
The history of law is closely connected to the development of civilizations and the evolution of societies. Ancient Egyptian law, dating back to 3000 BC, was based on the concept of Ma'at and was characterized by tradition, rhetorical speech, social equality, and impartiality. Ancient Greek law did not include lawyers, and cases were argued by the people involved. Ancient Roman law, which was in place for over 1500 years, was based on the Twelve Tablets, which established a set of laws.
Laws start in Congress, with someone in the House of Representatives or the Senate writing a bill, which is a draft of a proposed law. The bill is then voted on by both houses of Congress, and if it passes, it is sent to the President, who can choose to sign it into law or veto it. If the President vetoes the bill, it is sent back to Congress, which can override the veto with a two-thirds vote in both the House and the Senate.
Positive law is made by people and only applies to those who are subjects or citizens of the government that created it. Natural law, on the other hand, comes from universal sources, such as God, and applies to everyone.
