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Legal history or thehistory of law is the study of howlaw hasevolved and why it has changed. Legal history is closely connected to the development ofcivilizations[1] and operates in the wider context ofsocial history. Certain jurists and historians of legal process have seen legal history as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts; some consider legal history a branch ofintellectual history. Twentieth-centuryhistorians viewed legal history in a more contextualised manner – more in line with the thinking ofsocial historians.[2] They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact withsociety to change, adapt, resist or promote certain aspects ofcivil society. Such legal historians have tended to analyzecase histories from the parameters ofsocial-science inquiry, using statistical methods, analysingclass distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transaction costs, and the number of settled cases, they have begun examining legal institutions, practices, procedures, and briefs offering a more nuanced picture of law and society than traditional legal studies ofjurisprudence,case law andcivil codes can achieve.[3]
Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept ofMa'at, and was characterised by tradition,rhetorical speech, social equality and impartiality.[4] By the 22nd century BC,Ur-Nammu, an ancientSumerian ruler, formulatedthe first extant law code, consisting of casuistic statements ("if... then..."). Around 1760 BC,King Hammurabi further developedBabylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon asstelae, for the entire public to see; this became known as theCodex Hammurabi. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fullytransliterated and translated into various languages, including English, German and French. Ancient Greek has no single word for "law" as an abstract concept,[5] retaining instead the distinction between divine law (thémis), human decree (nómos) and custom (díkē).[6] YetAncient Greek law contained majorconstitutional innovations in the development ofdemocracy.[7]
Ancient India andChina represent distinct traditions of law, and had historically independent schools of legal theory and practice. TheArthashastra, dating from the 400 BC, and theManusmriti from 100 BCE[8] were influential treatises in India, texts that were considered authoritative legal guidance.[9] Manu's central philosophy was tolerance and pluralism, and was cited across South East Asia.[10] During theMuslim conquests in the Indian subcontinent,sharia was established by the Muslim sultanates and empires, most notablyMughal Empire'sFatawa-e-Alamgiri, compiled by emperorAurangzeb and various scholars of Islam.[11][12] After British colonialism, Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of theBritish Empire.[13] Malaysia, Brunei, Singapore andHong Kong also adopted the common law.
The eastern Asia legal tradition reflects a unique blend of secular and religious influences.[14] Japan was the first country to begin modernising its legal system along western lines, by importing bits of theFrench, but mostly theGerman Civil Code.[15] This partly reflected Germany's status as a rising power in the late nineteenth century. Similarly,traditional Chinese law gave way to westernisation towards the final years of theQing dynasty in the form of six private law codes based mainly on the Japanese model of German law.[16] Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split betweenChiang Kai-shek's nationalists, who fled there, andMao Zedong's communists who won control of the mainland in 1949. The current legal infrastructure in thePeople's Republic of China was heavily influenced by sovietSocialist law, which essentially inflates administrative law at the expense of private law rights.[17] Today, however, because of rapid industrialisation China has been reforming, at least in terms of economic (if not social and political) rights. A new contract code in 1999 represented a turn away from administrative domination.[18] Furthermore, after negotiations lasting fifteen years, in 2001 China joined theWorld Trade Organization.[19]
The legal history of theCatholic Church is the history ofCatholic canon law, the oldest continuously functioning legal system in the West.[20][21] Canon law originates much later thanRoman law but predates the evolution of modern Europeancivil law traditions. The cultural exchange between the secular (Roman/Barbarian) and ecclesiastical (canon) law produced thejus commune and greatly influenced both civil and common law.
The history of Latincanon law can be divided into four periods: thejus antiquum, thejus novum, thejus novissimum and theCode of Canon Law.[22] In relation to the Code, history can be divided into thejus vetus (all law before the Code) and thejus novum (the law of the Code, orjus codicis).[22]Eastern canon law developed separately.
In the twentieth century, canon law was comprehensively codified. On 27 May 1917, Pope Benedict XV codified the1917 Code of Canon Law.
John XXIII, together with his intention to call theSecond Vatican Council, announced his intention to reform canon law, which culminated in the1983 Code of Canon Law, promulgated byJohn Paul II on 25 January 1983. John Paul II also brought to a close the long process of codifying theEastern Catholic canon law common to all 23sui juris Eastern Catholic Churches on 18 October 1990 by promulgating theCode of Canons of the Eastern Churches.
One of the major legal systems developed during the Middle Ages wasIslamic law andjurisprudence. A number of important legal institutions were developed byIslamic jurists during the classical period ofIslamic law andjurisprudence. One such institution was theHawala, an earlyinformal value transfer system, which is mentioned in texts ofIslamic jurisprudence as early as the 8th century.Hawala itself later influenced the development of theAval inFrench civil law and theAvallo in Italian law.[23]
Roman law was heavily influenced by Greek teachings.[24] It forms the bridge to the modern legal world, over the centuries between the rise and decline of theRoman Empire.[25] Roman law, in the days of theRoman Republic andEmpire, was heavily procedural and there was no professional legal class.[26] Instead a lay person,iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.[27] Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire, the EmperorJustinian codified and consolidated the laws that had existed in Rome so that what remained was one twentieth of the mass of legal texts from before.[28] This became known as theCorpus Juris Civilis. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before."[29]
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During theByzantine Empire theJustinian Code was expanded and remained in force until the Empire fell, though it was never officially introduced to the West. Instead, following the fall of the Western Empire and in former Roman countries, the ruling classes relied on theTheodosian Code to govern natives and Germaniccustomary law for the Germanic incomers – a system known as folk-right – until the two laws blended together. Since the Roman court system had broken down, legal disputes were adjudicated according to Germanic custom by assemblies of learnedlawspeakers in rigid ceremonies and in oral proceedings that relied heavily ontestimony.
After much of the West was consolidated underCharlemagne, law became centralized so as to strengthen the royal court system, and consequentlycase law, and abolished folk-right. However, once Charlemagne's kingdom definitively splintered, Europe became feudalistic, and law was generally not governed above the county, municipal or lordship level, thereby creating a highly decentralized legal culture that favored the development of customary law founded on localized case law. However, in the 11th century,crusaders, having pillaged theByzantine Empire, returned with Byzantine legal texts including the Justinian Code, and scholars at theUniversity of Bologna were the first to use them to interpret their own customary laws.[30] Medieval European legal scholars began researching theRoman law and using its concepts[31] and prepared the way for the partial resurrection of Roman law as the moderncivil law in a large part of the world.[32] There was, however, a great deal of resistance so that civil law rivaled customary law for much of the late Middle Ages.
After theNorman conquest of England, which introducedNorman legal concepts into medieval England, the English King's powerful judges developed a body ofprecedent that became thecommon law.[33] In particular,Henry II instituted legal reforms and developed a system of royal courts administered by a small number of judges who lived inWestminster and traveled throughout the kingdom.[34] Henry II also instituted theAssize of Clarendon in 1166, which allowed for jury trials and reduced the number oftrials by combat.Louis IX of France also undertook major legal reforms and, inspired byecclesiastical court procedure, extended Canon-law evidence andinquisitorial-trial systems to the royal courts. In 1280 and 1295 measures were instituted by theCourt of Arches and other authorities in London to improve the conduct of lawyers in the courts.[35] Also, judges no longer moved on circuits becoming fixed to their jurisdictions, and jurors were nominated by parties to the legal dispute rather than by the sheriff.[34] In addition, by the 10th century, theLaw Merchant, first founded onScandinavian trade customs, then solidified by theHanseatic League, took shape so that merchants could trade using familiar standards, rather than the many splintered types of local law. A precursor to modern commercial law, the Law Merchant emphasised the freedom of contract and alienability of property.[36]
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The two main traditions of modern European law are the codified legal systems of most of continental Europe, and the English tradition based on case law.[37]
Asnationalism grew in the 18th and 19th centuries,lex mercatoria was incorporated into countries' local law under new civil codes. Of these, the FrenchNapoleonic Code and the GermanBürgerliches Gesetzbuch became the most influential. As opposed to Englishcommon law, which consists of massive tomes of case law, codes in small books are easy to export and for judges to apply. However, today there are signs that civil and common law are converging.European Union law is codified in treaties, but develops through theprecedent set down by theEuropean Court of Justice.
The African law system is based on common law and civilian law.[38] Many legal systems in Africa were based on ethnic customs and traditions before colonization took over their original system.[39] The people listened to their elders and relied on them as mediators during disputes. Several states didn't keep written records, as their laws were often passed orally. In theMali Empire, theKouroukan Fouga, was proclaimed in 1222–1236 AD as the official constitution of the state. It defined regulations in both constitutional and civil matters. The provisions of the constitution are still transmitted to this day bygriots under oath.[40] During colonization, authorities in Africa developed an official legal system called the Native Courts.[41] After colonialism, the major faiths that stayed were Buddhism, Hinduism, and Judaism.
TheUnited States legal system developed primarily out of the English common law system (with the exception of the state ofLouisiana, which continued tofollow the French civilian system after being admitted to statehood). Some concepts fromSpanish law, such as theprior appropriation doctrine andcommunity property, still persist in some US states, particularly those that were part of theMexican Cession in 1848.
Under the doctrine offederalism, each state has its ownseparate court system, and the ability to legislate within areas not reserved to thefederal government.
A comprehensive view of legal history must encompass legal systems beyond the Western tradition. Scholars have increasingly focused on non-Western frameworks, such as Islamic law, which emphasizes religious principles; Confucian legal traditions, where moral conduct is integral to law; and the adaptive nature of African customary law. By comparing these diverse systems with Western legal developments, researchers have highlighted both striking differences and unexpected similarities, thereby enriching our understanding of law as a global phenomenon.
