Origins of Common Law (2)

Influences and Development of Common Law

Code of Hammurabi

In the fourteenth chapter of Genesis is a story involving Amraphel, King of Shinar. This ancient King of Babylon is the author of four thousand year old Code of Hammurabi. Throughout the code are several variations and similarities to central concepts contained within the philosophy of common law. Within the Code are instances of primitive ethical concept of the human urge for vengeance for a wrong. This was held customary (and is throughout several other religions, cultures, and bodies of law) when applying the Code in Babylon. Justice was equating; giving back to someone who has been robbed of something in effort to make them whole again, even if only in principle. This is the basic idea behind any formal punishment in Common Law England and the United States today. The Code goes much further than may be expected in establishing compensations for damages with well thought our methods of estimating the amount. There are stringent provisions directed against judicial misconduct and against subornation of perjury. There are references to witnesses, to the giving of evidence under oath, and to depositions. In dealing with civil wrongs and crimes, the usual method of proof was trial by water. The accused was tossed into the river to establish guilt or innocence. Survival was proof of innocence. This may be compared with the ordeal of water in early English law, where survival was proof of guilt (Read, 1955, p. 15).

Customs

Common law is a result of a natural order which first solidified into custom and then into law. Primitive man knew nothing of laws, all he knew were customs which eventually evolved into rules of living. While no one can point to the origins of our traditional moral rules, their function in human society should be evident. These moral rules, or traditions, are necessary to preserve the existing state of affairs; such that culture was allowed to evolve, and in turn, with culture, civilizations arose (Landry, 1997, p. 4). The Royal Courts of the thirteenth century were confronted with cases for decisions. There was no uniform body of statutes to rely upon. The only available source was local custom. It did not take many generations of Royal Judges, dealing with actual disputes, to establish the local and divergent customary laws into a single jurisprudence which was the Common Law of England (Read, 1955, p. 42).

Roman Law

Almost at the same time that William the Conqueror invaded England, a revival of the study of Roman law began in Western Europe. Beginning in Italy, it spread to Paris and then to Oxford. It was not a barbaric version like earlier codes, but the Corpus Juris of Justinian. This body of legal study was viewed at the time as being so sharp and intelligent that more conservative forces became alarmed. In 1219, Pope Honorius III forbade the teaching of Roman Law in the schools of Paris, then, and for a long time after, under a similar ordinance concerning the schools of London. A still more effective antidote to the teachings of Vacarius at Oxford, was the later settlement of the professors of the common law in the Inns of Court, between the Palace of Westminster and the cathedral. Soon the cleric unfamiliar with any other form of law, found themselves in the Royal Courts of England. When customs were searched for answers to issues to no avail, it is certain that the principles of Roman Law were implicated into the decisions and rulings. Henry de Bracton’s familiarity with Roman Law and the channels through which he derived it, have been demonstrated throughout his works. It is useless to suppose that such knowledge was not used; especially in the solution of those problems for which the ancient customs made no provision. But the influence of Roman Law became in England secret, and as it were, illicit (Jenks, 1920, p. 20).