The Origins & Evolution of Law

“Strange times are these in which we live when old and young are taught falsehoods in school.  And the person that dares to tell the truth is called at once a lunatic and fool.  Plato 427 BC

The Natural  Rights of Natural Law are written on the hearts of free men everywhere, from time immemorial.  But they are not written on the hearts of the strongly dominated, subjugated, and fearful.

Pain, and perhaps death or torture, would be the consequence of disloyalty to a royal or noble tyrant, and so humanity as a whole,  like slaves, being ruled by such men, groveled in misery, fear, and full obedience through perpetual eras of societal rigidity.

But to be most realistic, once one accepts a subservient role in life, contentment and peace could be found by going along and getting along.  Knowing one’s place and playing one’s part could result in harmony and perhaps happiness within the walls of one’s limited life.
But some men were unwilling to be anyone’s doormat, lapdog, obedient beast, or obsequious servant, and wanted personal freedom.

Liberty, honor, dignity, self-respect, self-reliance, justice, and a role in their own governance were extremely important to men and societies with spines and a spirit of freedom.  They wanted and demanded that their natural rights be respected and provided for under law.  A strong check against tyranny, corruption, injustice and unequal treatment would have been the foremost of their civic concerns.  Thus, laws came to be written.

From Wikipedia:
~The Sumerians later issued other codes, including the “code of Lipit-Ishtar”. This code, from the 20th century BC, contains some fifty articles,  “The Sumerian was deeply conscious of his personal rights and resented any encroachment on them, whether by his King, his superior, or his equal. No wonder that the Sumerians were the first to compile laws and law codes.”   — Kramer

“-only when a more centralized English monarchy emerged following the Norman invasion, (1066 AD) and when the kings of England attempted to assert power over the land and its peoples, did the modern concept emerge, namely of a crime not only as an offense against the “individual”, but also as a wrong against the State.”

For hundreds of years, crimes against persons and families were viewed as more like civil tort offenses and not societal offenses.  If someone stole from you, that was a crime of property involving only you and him.  Compensation was the just remedy.  That also was seen as the remedy for crimes as evil as rape, assault, and even murder.  They were between your greater family and the victims. [before the huge expanse in the size of cities, -as more and more people flooded into them especially following the commencement of the industrial age, towns and cities were very small by comparison, and “everyone knew everyone else”, and everyone was a member of one family or another, so crime by strangers would have been far rarer than in later ages.]

A monetary recompense of proper size was treated as the proper solution to such an injustice in order to avoid feuds and blood-letting.  That is still common practice even in today’s world in societies with strong family bonds and ancestry going back  centuries, -all living in the same region.

[But in developing nations, it came to be understood that lawless behavior does not just impact the victim but sows the fear in the rest of society that they could be victims next.  Individual crimes upset the public peace and thus came to be seen as an offense against society itself because all might be under the danger of possible threat by law-breakers.

Thus, criminal codes were written making hurtful behavior not just unacceptable as personal behavior between individuals, but also punishable as a crime against the peace and security of society, as well as gross disregard for the authority of the Church, (moral law) the Government & the State, (civil & criminal law) and God himself (eternal law) who was “keeping account of all lawlessness” and evil behavior.  With Judgement Day awaiting all.]

~from Wikipedia:
“The idea that acts like murder, rape and theft are prohibited exists all around the world, and has a universal moral basis. What precisely is a criminal offense is defined by criminal law of each country. While many have a catalog of crimes called the Criminal Code, in some common law countries no such comprehensive code exists.

Usually a natural person perpetrates a crime, but legal persons or entities may also commit crimes (corporations). Conversely, at least under U.S. law, non-persons such as animals cannot commit crimes.

As cultures change and the political environment shifts, societies may criminalize or decriminalize certain behaviors,..
-in those cases where no clear consensus exists on a given norm, the drafting of criminal law by the group in power to prohibit the behavior of another group may seem to some observers an improper limitation of the second group’s freedom,

Hart (1961) saw the law as an aspect of sovereignty, with lawmakers able to adopt any law as a means to a moral end.
Thus the necessary and sufficient conditions for the truth of a proposition of law simply involved internal logic and consistency, and that the state’s agents used state power with responsibility.

…if conformity with Natural Law forms a necessary condition for legal validity, all valid law must, by definition, count as morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice.

One can solve this problem by granting some degree of moral relativism and accepting that norms may evolve over time and, therefore, one can criticize the continued enforcement of old laws in the light of the current norms. People may find such law acceptable, but the use of State power to coerce citizens to comply with that law lacks moral justification. More recent conceptions of the theory characterize crime as the violation of individual rights. [negating the validity of victimless crimes]

Since society considers so many rights as naturalrather than man-made, [hence the term “right”] what constitutes “a crime” also counts as natural, in contrast to laws (seen as man-made). Adam Smith illustrates this view, saying that a smuggler would be an excellent citizen, “…had not the laws of his country made that a crime which nature never meant to be so.”

Natural-law theory therefore distinguishes between “criminality” (which derives from human nature that violates the rights of others) and “illegality” (which originates with the interests of those in power).

Lawyers sometimes express the two concepts with the phrases malum in se and malum prohibitum respectively. They regard a “crime malum in se” as inherently criminal; whereas a “crime malum prohibitum” (the argument goes) counts as criminal only because the law has decreed it so.

This view leads to a seeming paradox: one can perform an illegal act without committing “a crime”, while “a criminal act” could be perfectly legal. Many Enlightenment thinkers (such as Adam Smith and the American Founding Fathers) subscribed to this view to some extent, and it remains influential among so-called classical liberals and libertarians.

This idea came from common law, and the earliest conception of a criminal act involved events of such major significance that the “State” had to usurp the usual functions of the Civil Tribunals, and direct a special law or privilegium against the perpetrator.

All the earliest English criminal trials involved wholly extraordinary & arbitrary courts without any settled law to apply, whereas the civil (delictual) law operated in a highly developed and consistent manner (except where a king wanted to raise money by selling a new form of writ).
The development of the idea that the “State” dispenses justice in a court only emerges in parallel with or after the emergence of the concept of sovereignty.

From the Hellenic system onwards, the policy rationale for requiring the payment of monetary compensation for wrongs committed has involved the avoidance of feuding between clans and families.

If compensation could mollify families’ feelings, this would help to keep the peace.  On the other hand, the institution of oaths also played down the threat of feudal warfare. Both in archaic Greece and in medieval Scandinavia, an accused person walked free if he could get a sufficient number of male relatives to swear him not guilty.

[such a practice would require a high level of honor in society, with lying being a heinous offense against the moral universe, society, and one’s family & ancestors.]

These means of restraining private feuds did not always work, and sometimes prevented the fulfillment of justice. But in the earliest times “the State” did not always provide an independent policing force. Thus criminal law grew out of what 21st-century lawyers would call torts; and, in real terms, many acts and omissions classified as crimes actually overlap with civil-law concepts.  [as was the case in the Nicole Simpson murder]

~     ~     ~     ~

by Adrien Nash


About arnash
“When you find yourself on the side of the majority, it’s time to pause and reflect.” - Mark Twain - Politicians and diapers - change 'em often, for the same reason. "Government is like a baby. An alimentary canal with a big appetite at one end and no sense of responsibility at the other." Ronald Reagan "Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views." William F. Buckley, Jr. “The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.” - Bertrand Russell The people are the masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert it. Abraham Lincoln “Good people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.” - George Orwell “Satan will use a lake of truth to hide a pint of poison”.

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