Introduction to Law: Legal History

[Music] on the 17th of May 1858 four men met in apartment Melbourne their names were wills Hammersley Thompson and Smith around a table and over a beer they developed the rules for a new type of football game initially those rules were called the Melbourne football rules but soon enough they were known as Australian football which is now a powerhouse of Australian sport from the pinnacle of the Australian Football League down to the oz kickers whose jerseys nearly reach their ankles now some of those 1858 rules are still in place to this very day for instance the original rule that said a player who catches the ball directly from the foot may call mark and take a free-kick from that spot where players can still do that provided the ball has been kicked far enough and that it hasn't bounced other rules have been changed or done away with for instance there was originally a rule that the ball could not be picked up by hand if it was on the ground it had to be kicked from the ground there was also a rule that tripping was allowed both of those rules have gone completely every year the AFL meets and considers changes to the rules so the rules evolved bit by bit year by year but they never start with a clean sheet they never sit down like those four men in the pub and think what should the rules of football be there are already rules the modern committee merely takes those rules and tweaks them according to modern circumstances so the current rules of football can trace their history back in a direct line to those four men in Apollo rules that were made a century and a half ago stand in the modern game alongside rules made this year so it is for football so it is for the law get everyone my name is Anthony Merrick and this is the second video for the first module of introduction to law in this video we're going to gallop across several thousand years of history and about half an hour we're going to look at the history of the law not in enough detail to make you anything like a legal historian but in enough detail that you'll be able to see something about where our laws have come from and how our history continues to leave its fingerprints all over our contemporary ORS so where do we begin the law didn't begin as neatly as football we can't point to a time when four men sat around a table and a puppet worked out the basis of the law it's much older than that and nobody knows for sure but there are a few places we can start the oldest written laws that we know are the Code of Hammurabi king of the Babylonians as best they can tell this was written around three thousand eight hundred years ago that still got the original in the move in Paris the thing is it'll be a bit of a stretch to suggest that our modern laws can trace their history back to Hammurabi it's tempting but there's not really any cultural connection between our laws and the laws of Babylon we don't have to come too much further forward though to find some laws much more relevant the first five books of the Christian Bible and a Jewish Torah Genesis Exodus Leviticus numbers and Deuteronomy are all traditionally understood to have been written by Moses recent scholarship though suggests that they were written between 500 and a thousand years before the comedy RL before Christ now those five books were a comprehensive legal code and they seem to have been written to guide the Israelite people after they had rebelled against the authority of Egypt and fled most of those laws let's face it have no contemporary relevance however all of those laws revolve around ten core provisions the Ten Commandments now you don't need to be a Christian or a Jew or a believer of any kind to see that these Ten Commandments really do underpin a lot of our legal tradition particularly four out of the last five don't kill don't steal don't make false accusations or lie under oath don't be greedy now of course other cultures came up with very similar rules but given the dominance of Christianity in our culture for many centuries it seems quite likely that these Ten Commandments and the first five books of the Bible are a jumping-off point for our legal history there is another contender about a thousand years later called the code of Justinian this was a code of the Roman Empire which quite clearly had comprehensive in some ways thoroughly modern set of laws given the prominence of Rome the Eternal City in both Christianity and the Roman Empire it's pretty reasonable to believe that the biblical tradition and the traditions of Roman law co-mingled at some point to provide the ancient precursors of our modern system and of course the Romans invaded what we now call Great Britain they hung around in Great Britain mainly in England until about 400 AD when a combination of economic decline and rampaging Saxon barbarians sent them on their way so between roughly 400 AD and roughly or exactly 1066 AD we have the anglo-saxon period of English history King Arthur and all that stuff around this time we start to see the first real written laws that we can say are in a direct line without current Wars in particular Ethelbert king of the Kentish who wrote his dues in that context dooms simplement laws now these were our first rebels and they came shortly after the Justinian code and immediately after Ethelbert had converted from paganism to Christianity you see an all coming together the Bible the Justinian code the domes of Ethelbert his laws were developed by a later kings in the anglo-saxon period as well almost notably by King catered never heard that story the old story of King Canute commanding that tired not to come in sometimes people tell that story as a way of laughing at the foolishness of Kings and politicians in reality however Caleb was a wise legislator and the true legend is that he went to the seaside and commanded the Seas not to rise in order to show people that there were limits even to his power he never expected the Seas to obey that was his whole point the anglo-saxons held meetings called boots there was the folk mood at village level - ire moot at Shire level and the rectangular at a national level to this day more students still participate in mock trials called boots more importantly though these moose where people met to discuss the laws and justice important matters of the day were precursors of our modern Parliament's the idea that laws to be made by debate discussion and agreement started with the ancient Greeks and then it was expressed in the Roman Senate and then in the wood Tanguma which led to our modern powers we'll then of course came the Battle of Hastings in 1066 William of Normandy a Duke of France crossed the English Channel and decisively defeated the anglo-saxon forces of King Howard and soon those Norman French occupied the whole of England the interesting thing about William of Normandy though is that he wasn't only an excellent fighter and an excellent general it turned out he was also an excellent administrator quite a wise ruler he made a number of decisions early on and those decisions still affect us to this very day first up he instituted the system of feudalism so he broke England up into pieces and gave each piece to a Norman Lord in return for tax and the promise of military support and those Lords each broke up their areas into smaller units for lesser Nobles and so on and so on and to be getting right down to the tenant farmers and those farmers would also form the armies that were required for the military support what this did was it allowed William to remain in effective control of the entire country from either London or from Normandy without modern transport and without modern communications quite effective this idea that we break countries up into smaller administrative units with the centre remaining in charge is the basic arrangement for our Parliament's and our court system to this very day second William quite cleverly allowed most of the previous anglo-saxon laws to remain intact you see he had just wiped to the battlefield clean forgetful men in a poppy colleges sat down and made up the laws himself but he didn't it was smart enough to realize the importance of continuity so he allowed the previous laws to remain he even left the moots in place and then he changed things slowly as he wished to so our legal history from the Romans and the Bible of the anglo-saxons remained intact and continued to be slowly modified King Henry ii came along about a hundred years after hastings he is remembered as the father of the common law he made some changes which really were dramatic until this time people known as sheriffs effectively ruled each local community the lords were nominally in charge but it would be a sheriff who made most of the rules and doled out most of the parchments you've heard of the Sheriff of Nottingham in Robin Hood yet unfortunately many of those sheriffs became corrupt and King Henry ii had had enough so he dismissed them the lot of them he'd caught so howard disputes gonna be resolved now well henry ii took judges from his court in london and sent them out into the countryside these judges were known as Assis judges and each went out in a circuit dispensing judges and dispensing justice and ending up back in London is it an interesting that even today Australia has a Federal Circuit Court and when our higher courts sit away from home that's said to be sitting on the circuit when those circuit court judges returned to London they wrote down the judgments they're given and those were circulated to the other judges the judges began to rely on those previous judgments so that their decisions were consistent this meant that instead of the law being idiosyncratic or based on the personal decisions of each judge the more became common it became the common law this idea that there is one common law that similar cases should be judged on the basis of precedence so that similar cases have similar outcomes is still absolutely crucial to virtually every case you will ever see in court today a nine hundred year old system which works in the age of the internet only fifty years or so after the common law commenced King John found himself under awful pressure he was being attacked by the Scots and his Nobles will they'd had enough with him taxing them and taking the men from their fields to fight it will considered battles and so while he was off fighting they occupied London I'm willing to bet that got his attention King John had to do a deal and that deal signed in 1215 was called Magna Carta the Great Charter now many people regard the Magna Carta is the birth certificate of freedom honestly that's overstating it a bit it wasn't developed with any higher principles in mind it was essentially a list of blackmail demands which the King agreed to because he had no intention of following through he asked the Pope to annul a Magna Carta and the Pope said sure it took a few more decades nearly to the end of the thirteenth century for the Magna Carta to come roaring back into prominence some of its provisions are truly awful but forget us the beauty of the Magna Carta comes down to just a few words no free man shall be seized or imprisoned or stripped of his rights or possessions or outlawed or exiled except by the lawful judgment of his equals or by the law of the land to no one will we sell to no one deny or delay right or justice remember in the first video when we talked about the rule of law and we said that it was different to rule by people because under the rule of law nobody can just make the rules or judgments they want well here in the Magna Carta we can say for the first time we can see just the first hint of the rule of law the king could no longer simply issue judgments or decrees justice had to be done and it had to be done in partially of course many thousands of times the system failed to live up to those fine words but those fine words had been written and the rule of law was on its way now as the royal courts in the circuit court developed they began to develop procedures in the early centuries there was no real need for procedures someone could just come along to the quarter explain themselves the best they could but as confidence in the common law grew more and more people brought their disputes to court procedures needed to be developed the key procedure was called the writ system now as you might guess from the name the writ system was based on documents so a person seeking a remedy from the court would first need to purchase the proper writ and then provide that writ to the court the writ would also act as a command to the other party commanding them to come to court and answer the complaint in the region all of this sounds pretty sensible really at first there were only a few writs and they did help with efficiency but then the number of different routes began to grow and the courts began to focus much more on whether a party had complied with the technical requirements of the written rather than whether the party actually had justice on their side this had two effects first since the writs were complex and they had to be completed exactly right litigants started relying on professionals who had established themselves in the business of providing advice about those bits those professionals in turn started to formalize their own profession and thus was born the profession of law second though people began to realize that the courts no longer really offered justice you can have the best case in the world but if you're put in the wrong reach or if you put in a suitable writ but the judge preferred another one then your case would fail without any consideration of the merits at all people also realize there was no rule preventing them from taking their grievance straight to the king so they did and the numbers grew so the Kings started referring these questions to his Chancellor a bishop who heard those grievous grievances in his office called his Chancery this was the beginning of the Chancery law now the Chancellor's at least initially weighed all that worried about the letter of the law they operated what was called a court of conscience looking to justice rather than to the specifics of the writs Chancery law based on conscience became known as the law of equity an entirely separate line of precedents began as a law student you will study equity as one of your core subjects studying principles developed separately to the rest of the law in the Court of Chancery yet again history to lawyers is not merely historical now the middle of the second millennium was a time of strife the England first there was the English Civil War which began in 1642 as a battle between the Parliament and the king over the budget resulted in the king being executed England ultimately being ruled by a dictator Oliver Cromwell before the restoration of the throne in 1660 king charles ii was the king restored to the throne but within a few decades his son james ii found himself in the middle of a religious battle james ii was catholic and the powers that be were all from the Church of England the leaders of the Parliament worked against him and in 1688 their successful plan was that they invited James has brought her Mary along with her Dutch husband William of Orange to invade England from Holland the English army defected from winter William and Mary and the Parliament appointed William and Mary to the front now setting aside the sheer moxie required to pull off a stunt like this the Glorious Revolution had some profound legal impacts see for the first time the monarch could absolutely not claim to have been placed on the throne by the will of God they had been placed on the throne by the Parliament by people by the law under the Lord and under one law in particular called the Bill of Rights Act 1688 this act provided for free elections free parliamentary debate and less corrupt legal proceedings can you see that although the crown in England still reigned supreme it was now a constitutional monarchy where even the monarch was subject to the law come forward another hundred years and we're still talking about history but it's starting to be the history of a far more recognisable world society is becoming more sophisticated more learning the printing presses with us and literacy is becoming more widespread technology allows sea travel and trade so we're no longer talking about clusters of villages the writ system which had been creaking along for centuries really was on its last legs some aspects of the law were just stupid by modern standards I mean if you were accused of a crime you weren't even allowed to speak in your own defense if you weren't a Christian so for instance if you were Jewish you couldn't give sworn evidence because the evidence had to be given on the Gospels jurors were kept without food or fire in order to prompt them to render a quick verdict even the Chancery Court by this stage had become rule-bound no longer really gave justice and so in the 1870s they began an era which is remembered as the Reform hero the courts were reformed into the Royal Courts of Justice the King's Bench for major cases the common pleas for lesser cases the Exchequer for financial cases the Court of Chancery that matters in equity the Court of Appeal and the House of Lords for appeal matters and specialist courts for Admiralty divorce and bankruptcy proceedings common procedures were established and the courts began formally reporting their own judgments to carry along the doctrine of precedent the parliament was reformed too during this period ultimately resulting in what was called Universal manhood suffrage which meant that every male over 21 got a vote it took a few more decades for women to win the same right but you can see the parliamentary system was becoming a democratic parliamentary system it was during this era of reform that the parliaments and the courts in the Australian colonies were being established so let's now carry all of this history away from England and to southern shores European people settled in Australia in 1788 in Sydney whether their arrival should be characterized as settlement or invasion is of course a matter of annual dispute in late January let us simply say that they arrived initially New South Wales and Ben a man's land we're just penal colonies however the number of free settlers in various parts of Australia gradually grew the colonies separated from one Ella and during the 19th century those colonies progressively obtained their own parliamentary institutions and their own courts initially though the lawmaking ability of the colonial Parliament's was quite confined because they were not allowed to make any laws which were repugnant that was the term used repugnant to the laws of England so they could make their own laws but the boundaries of law was still pretty firmly established by the mother country the courts generally had full power to decide the spirit side of the common law and also under local acts of parliament those colonial supreme courts also had the ability to make decisions in equity following the old Chancery principles bear in mind though that the local courts were - all that free in the sense that they still followed and were bound by the presidents of the English courts and ultimately it would still be possible although extraordinaire only expensive to appeal matters to what was called the Privy Council of the House of Lords now in 1865 a piece of legislation called the colonial acts and validity Act generally did away with the idea of repugnancy the colonies became more self-governing I've always found it interesting that in the middle of the 19th century the great push was for colonies to separate but by the end of the century the great push was in the opposite direction as colony started to move back towards unification in the form of the Federation but that's how it happened so let's look briefly and from a legal perspective at that Federation story there were a whole bunch of reasons why the colonies move towards Federation some of the ones that we traditionally hear about like the need for a common market without tariff barriers and the need for standardizing rail gauges well it seemed pretty unlikely really because those things could have been accomplished without the need for Federation why would colonies which had only recently one full self-government giveaway part of that the things that could be concluded by agreement between the colonies and the colonial office in London anyway I would suggest that there were really two key drivers for Federation the first was defense as a nation Australia would be entitled to raise its own defence forces now this was important because other major European powers had colonies near Australia the French the Dutch and the Germans if any of those countries had decided to invade Australian territory it might be some time before Britannia could come to the rescue a second and related driver was the ability to make what is called extraterritorial legislation simply put this is more which can be applied beyond our borders as a country Australia would be able to make extraterritorial legislation to prevent for instance French convicts in New Caledonia from coming to Australia to wreak havoc it took a decade of conventions and discussions but ultimately a constitution was drafted and put to the vote the first boat was only put in New South Wales South Australia Tasmania and Victoria and it was not successful in New South Wales so they went back to work and then from 1899 through to 1900 successful referenda were held in all of the Australian colonies leading to Federation on the 1st of January 1901 now the Constitution was carefully intended to preserve the rights of the states this was done in a number of ways but let's look specifically at three first the new Parliament included a Senate where each state would be represented by the same number of senators regardless of the size of the state so tiny Tasmania has the same number of senators as massive New South Wales this was done to protect the small States against the large ones second changes to the Constitution require what we call a double majority so it's not enough for a majority of Australians to support any judges there also needs to be support from voters in a majority of states finally in a section you will come to know well when you study constitutional law section 51 the lawmaking power of the Commonwealth is confined generally speaking the Commonwealth can only make a law in the areas set out in that section the Constitution also established a new court the High Court but it left intact the state supreme courts and lower courts and let the states in charge of those they continued to administer the common law and so you can see the thread between Australian institutions and old Henry the second centuries before the father of the common law we got much much more than cricket from the British the High Court however didn't operate quite as people expected it was okay in the early years when judges like Sir Samuel Griffith who had actually been at the conventions and helped to draft the Constitution was still on the bench when they mean what the Constitution was meant to do they wrote it and they stuck pretty firmly to the states rights agenda as time went on neither things changed the first big turning point was a case called the engineer's case in 1926 which did away with the concept called implied immunities and another concept called reserved state powers both of which protected states rights and then in 1942 a case called the uniform tax case gave the Commonwealth primary or 30 other income tax that combined with section 96 of the Constitution which allows the Commonwealth to attach conditions to money it gives to the states gave the Commonwealth here in power over the national finances the final blow came in 1983 the Tasmanian Dan's case when the High Court agreed that the Commonwealth could legislate in almost any area they liked provided they were doing so in accordance with an international agreement now we really do have a situation where the Commonwealth government is the primary government and the states are forced to play second fiddle is that a good thing or a bad thing I'll leave that to you to decide the final thing to mention in all of this is that the history that I've just given it's a very white history of Australia the truth is that there have been laws in Australian for tens of thousands of years Australia's indigenous people have had systems to connect people to land systems for forming and managing families systems they are luring certain types of conduct and punishing those who transgress they have mingled social legal cultural and family based rules and norms and it's still the case that the governments of Australia struggle to incorporate accept and coexist with those indigenous forms of culture the Royal Commission into Aboriginal deaths in custody which ran from 1987 until 1991 was the turning point of recognition of just how calling the interface between Australian law and indigenous culture was working the Native Title Act which followed the Marvo decision in 1992 was a big step forward and has given indigenous people more control over their own lands various governments have tried different ways to incorporate indigenous values into criminal law proceedings with Maree courts and circle sentencing it remains the case that Aboriginal people are dramatically over-represented in our prison populations and that as a non-indigenous legal culture we are still many years finding a way for our laws to coexist with a culture that preceded us in this place by millennia as an academic I really like to say something profound about all of this but the truth is that I have nothing nothing except an awareness that as a community we have a long long way to travel we'll come back to this question throughout the course and then in some detail in module five all right so I promised you a few thousand years in half an hour or so I do hope you can see just how relevant all this history is to you as a contemporary lost human aspects of our law that will seem strange to real aaja cool can often be explained by the history lying beneath them once you know that history learning the rest of the lore will be so much easier in the final video of this first module we'll explore some of the concepts underlying the law we'll ask what is a law and what is justice and we'll look at some different perspectives on how the law is and how the war ought to be

Channel: Anthony Marinac

Views: 8,842

Rating: 4.7916665 out of 5

Keywords: Law study, legal history, Hammurabi, Ten commandments, Torah, Justinian Code, Dooms of Ethelbert, Dooms of Aethelbert, witangemot, Roman Senate, Feudalism, Henry II, Common Law, Father of the Common Law, Assize Judges, Magna Carta, Writ system, Chancery Law, English Civil War, Long Parliament, Cromwell, Restoration, Glorious Revolution, Bill of Rights, Jury system, Reform Era, Suffragettes, colonial parliaments, repugnance, Federation, colonial acts validity act

Id: q7GP5pemjiA

Length: 35min 4sec (2104 seconds)

Published: Wed Apr 18 2018