HISTORY
HISTORY FALL 2017
Unit One
Law – I Historical and Theoretical Foundations
II Crime in British North America
I Introduction
The establishment of law is one of the earliest signs of civilization, along with agriculture, creation of administrative structure, and development of collective philosophy and/or theology. Virtually all societies, no matter how “primitive” or “advanced,” have some types of laws that guide economy, administration, and human relationships. Law, indeed, is an older and more widespread concept than written language.
The creation and development of laws, however, is often a hard-fought process, as we can see when we take a brief glance over any society anywhere in the world – including today’s U.S. Congress. Laws are challenged by conflicting ideas of justice, individual rights versus the needs and desires of the community, rights versus responsibilities.
Philosophers and legal scholars have tried to create a solid theoretical foundation for laws for centuries, but with limited success. Here we will briefly discuss three big schools of legal philosophy: Natural Law, Legal Positivism, and Legal Realism.
Natural Law
Natural law is an old idea, developed originally in Ancient Greece, probably during the Classic Age of Athens (500-300 Before Common Era [BCE]).
Greeks divided the world into “nature” (physis) and “custom/law” (nomos). Nature, as Greeks understood it, was always universal and the same, guided by scientific principles, while customs and laws differed over time and place. Therefore, the most solid foundation for any legal code would be to combine the two. Greek philosophers, led by Aristotle, argued that some laws are applicable to one particular place and people, while other, more natural, laws are universal, including basic human rights such as right to life and freedom.
The concept of natural law has directed much of the Western legal tradition. Philosophers ranging from St. Thomas of Aquinas to Thomas Jefferson have used it to envision their ideal societies. (You do remember that“Laws of Nature” –stuff from the Declaration of Independence, right?)
Natural law has its flaws. Both Greek and American ideas of human rights excluded slaves and (for the most part) women. This reflects a common tendency in laws: they often divide subjects into us and them, treating the two groups differently in courts. This tendency extends even to today. See for example the controversies surrounding detainees at Guantanamo Bay and the debates over whether they should be charged in civilian courts as common criminals, or in military tribunals as enemy combatants.
Declaration of Independence:
A Document Immersed in Natural Law.
Legal Positivism
Legal positivists gained ground in the 1800s. They challenged the ideas of natural law, arguing that all laws are made by human beings, and as such do not reflect any kind of divine or natural force. These thinkers separate laws and morality, arguing for the man-made and arbitrary character of all laws.
The main thinkers representing Legal positivism are Jeremy Bentham and John Austin, two notable British experts on law and philosophy from the late 1700s-early 1800s.
Legal Realism:
Legal realism is an American contribution to the legal philosophy, developed in the first half of the Twentieth Century by legal minds such as Oliver Wendell Holmes (served in the Supreme Court of the United States, 1902-1932).
Legal realists are closely linked to legal positivists. However, legal realists tend to be more active in their philosophy. They, for example, believe that law could be used to actively improve the society, and are interested in sociology and other sciences to help them influence their decision-making.
The proponents of legal realism think that laws reflect the times and values of the society, and laws and courts could be used for pushing social goals. Application of law does not happen in its own philosophical and logical vacuum, they would say.
Legal realists often have a very cynical (or realist, depending on one’s viewpoint) view of the law. Jerome Frank (1889-1957), American judge and legal thinker, famously said that a judicial decision might be determined by what a judge had for breakfast.
Oliver Wendell Holmes, Father of Legal Realism
The debate between Natural law –school and legal positivists and – realists continues even today. Is there a Natural law, something bigger than us humans, an order that is based on either laws of nature, as Thomas Jefferson would say? Or on laws of God, as Catholic or Islamic theologians, including St. Thomas of Aquinas or Abu Rayhan al-Biruni, would say? Or is all law built on human prejudices and self-interests?
Please go to the assignment –section and complete the assignment about legal philosophy.
II History of Written Laws
Laws usually seek to protect the status quo and the power of the people in charge, but they also have a more benevolent function. Written laws, for the most part, have increased the rights and eased the lives of people living under them. Laws, even largely unjust ones, are usually better than living under the fear of arbitrary punishment based on the whims of the powerful.
We will look at a few historical laws that have played a role in shaping our legal codes, including Ancient Egyptian laws, Codex Hammurabi, Torah, laws of Ancient Athens, Roman law, and Anglo-Saxon law.
Ancient Egyptian Laws
Egyptians believed in the balance of universe called Ma’at, which emphasized truth, balance, order, and justice on a universal scale and was personified in Goddess Ma’at. They based their laws on this principle, guaranteeing equal treatment under law for all Egyptians, regardless of their wealth or status. Slaves were, naturally, exempt from that rule.
Egyptians also believed in punishing the entire family for the wrongdoings of one member. If one was exiled or imprisoned, his entire family was sentenced alongside the guilty person. This seems like a way to make families coherent and force them to maintain social control.
Egyptians also had some types of legal professionals or judges, but sometimes they let oracles (a spiritual medium of sorts) cast verdicts as well. Pharaoh himself might oversee some of the most important cases.
Egyptian legal code was also largely written, making it probably the oldest written laws in the history. However, none of their law books have survived to our day.
Codex Hammurabi
King Hammurabi was a Babylonian ruler, who believed that God had sent him to deliver law to his people. Hammurabi lived ca. 1796-1750 BCE.
Hammurabi’s laws are only one of the several legal codes of the ancient Middle East, but they have survived in written form, making them highly valued by scholars.
Hammurabi is famous for his eye for an eye –concept of justice. His legal code believed in retribution and corporal punishments, but Hammurabi’s laws were also extensive in economic matters. The laws regulated interests, business contracts, just compensation, and other economic issues, much like our laws do today.
Hammurabi’s laws punished criminals corporally (flogging, cutting off body parts, putting them to death) but also economically (paying restitution to the crime victims) – again, much like our laws today.
Hammurabi’s laws also treat slaves and free people differently, reflecting a common tendency in ancient law codes from Egypt to Babylon and Greece.
Torah
Torah, or the first five books of the Old Testament that deal with the establishment of Judaism and Mosaic Law, forms the cornerstone of Judeo-Christian ideas of law and right and wrong.
According to most scholars, the books were written between 950-450 BCE, by a variety of authors who sought to derive their authority from God and the teachings of Moses.
The laws treat justice as a moral issue and define a full member of the Jewish community as one who follows the law. The laws emphasize morals and regulate people’s sexual behavior, relationships with other people, and proper behavior alongside more traditionally legal issues of protecting peoples’ persons and property.
Law itself separated Israelites from gentiles, so law was very much at the core of the group’s identity.
Ancient Greek Law
Athens was the center of intellectual life in Ancient Greece, so it is no wonder that Athenians were particularly interested in law.
Athens had a large class of legal professionals. Its laws were not written by kings or other rulers, but professional experts on law.
Court cases in Athens were decided very much in a similar manner as ours today. Parties made their case, presenting evidence and arguments to a group of people, a jury, who would decide which side was right. Juries would also determine appropriate punishment for the crimes.
Ancient Greeks had different types of courts for different types of crimes. For example, cases involving a homicide were tried in courts called Areiopagos, while most other cases would be decided in Dikastic courts, which both imposed but also wrote and interpreted laws.
Greek legal system substantially influenced the Roman system, which further influenced current western legal practices and theories. In laws as well as in arts and sciences, it seems that all paths lead back to Greece.
Roman Court in Action
Roman Law
Intellectually and culturally Romans were pretty much imitators of all things Greek, but they rarely surpassed Greek achievements. In engineering, military skills, and law, however, Romans learned from the Greeks butoutdid them.
Beginning with the so-called Twelve Tables, first written laws from roughly 450 BCE, Roman law guided theempire for roughly 1200 years. However, even today it continues to define Western and even Asian legal traditions
While Greeks had legal professionals, it was the Romans who elevated the status of lawyers and treated law as a science, applying scientific methods to its development and application. They recorded the laws, studied cases, applied methodological rigor to court proceedings and the study of law much like modern lawyers do.
Romans also developed the foundation of modern tort law, devising clear sets of rules for suing for damages and other civic wrongdoing.
In public, i.e. administrative law, Romans developed checks and balances, filibustering, vetoes, impeachment processes and many other concepts used in our political systems even today.
Anglo-Saxon Law
Laws of medieval England were based on the same Germanic tradition that guided Scandinavian and Central European legal thinking.
Germanic tribes, Anglo-Saxons included, were heavily influenced by Roman law. They recognized the strength of Roman system and sought to emulate it in their thinking. Also, the coming of Christianity and missionaries from Southern Europe brought more refined legal thinking with them.
Anglo-Saxon law gave substantial rights to different regions, allowing them to maintain their customs and legal traditions. This is a clear connection to Anglo-American republican tradition of local rule and a community’s rights to determine its standards and affairs, as long as they don’t directly conflict with national laws and rules.
Anglo-Saxon law also influences the development of Common Law, or the law that is developed by judges in specific cases that gain the status of the precedent. This is another aspect of the law that has survived to our current legal system.
Anglo-Saxon Regions in Medieval England
III The Rise of England: The State as an Armed Robber
English have traditionally viewed themselves as law-abiding and just people. They have historically expressed strong belief in private property and respect for law. However, England rose to wealth and prominence the old-fashioned way: through massive theft and brutal violence.
If you kill one, you are a murderer. If you kill hundreds of thousands, somebody somewhere will raise a statue in your honor. If you steal a wallet, you are a felon. If you steal an entire country, you are a conquering hero. Differences between crimes and heroic achievements often lay in the scale of the crimes.
Even in the brutal and violent Early Modern world, the English turned out to be even more shameless than many others. It owes much of its rise to a group of high-level thieves called the Sea Dogs:
Elizabeth I (ruled 1558-1603) was a very ambitious queen who wanted to expand England’s power and wealth. In this age, Spanish had amassed massive fortunes in gold and silver from the Americas. Elizabeth was interested in developing English colonies, but did not mind growing rich by stealing from the Spanish as well.
Elizabeth granted Privateering licenses to so-called Sea Dogs, English seafaring adventurers, who were part explorers, part businessmen, part soldiers, and part common criminals. Privateering meant state-sanctioned piracy: holders of the license had queen’s blessing to go and rob Spanish ships and raid Spanish towns in the Americas.
The most famous Sea Dogs included:
Sir John Hawkins (1532-1595). Hawkins was an admiral, a naval administrator, merchant, father of the British slave trade, and a privateer, who devised many of the strategies that English used to rob Spanish ships transporting valuable goods from the Americas back to Spain. Hawkins was also one of the inventors of triangular trade – a system of shipping slaves from Africa to Americas, sugar and tobacco from America to Europe, and manufactured goods from Europe to Africa. This triangular trade system would form an important element in the economic development of the Atlantic World.
Sir Francis Drake (1540-1596). A notable sea captain, politician, and explorer, Drake’s main calling was piracy. He started his career by working for his second cousin Sir John Hawkins, but soon began to work for himself. Afight lost to the Spanish led to a life-long, passionate hatred of the Spanish, and Drake loved to attack and rob them. Spanish hated him so much that they offered a reward worth millions of current dollars for his head. He was also the first Englishman to circumnavigate the globe.
Sir Walter Raleigh (1552-1618). Raleigh was a true renaissance man: a poet, soldier, explorer, and a privateer. One of Queen Elizabeth’s favorites, Raleigh wanted to create a permanent English colony on the North Americanmainland. His experiments in Roanoke, between present day Virginia and North Carolina in 1585-1587 were failures, but his vision would later carry the settlers to Jamestown in 1607.
Sir John Hawkins, All Decked Out
The Sea Dogs epitomize the violent nature of power during the Early Modern period and the morally questionable drive that characterized the European conquests. However, they hardly were the only criminals in service of the state. They might have robbed the Spanish, but Spaniards had not exactly compensated the Aztecs, Incas, and other earlier owners of the goods. Aztecs and Incas had also stolen and enslaved their way to wealth, just like Europeans had.
The point here is not to single out the Englishmen, but to point out that the hypocrisy that characterizes empire-building touches the English as well as everybody else.
The first successful English colony began in Jamestown, in 1607. The English settlers were violating Spanish claim to all lands in the Americas, minus Portuguese-controlled Brazil, and they were definitely venturing onto Native American lands. However, English sought to legally justify their claims:
The Spanish claim to the land was established in the Treaty of Tordesillas (1493), where the Pope of the Roman Catholic Church had split the unconquered non-Christian world between Portugal and Spain. England, having gone through the Protestant Reformation, did not feel obligated to follow the Pope’s edicts.
Native Americans’ understanding of property was different from the English. Since they did not have a legally validated, written document stating their ownership to the land, English settlers viewed it as free for the taking. As highly legalistic people, English treated both themselves and the original inhabitants of the lands according to English law, which they viewed as superior and practically universal in its principles. English concepts of ownership, law, and crime would soon dominate English settlers, Native Americans, and African slaves alike.
Talking Law to Chesapeake Indians
III Crime in Colonial America
Each colony was unique, including the matters of crime and punishment. They all shared a belief in English law and the principles of HYPERLINK "http://www.archives.gov/exhibits/featured_documents/magna_carta/" Magna Carta, but each region weighed the seriousness of particular crimes differently. For this purpose, we will look at crimesand courts in New England, Middle Atlantic Colonies, and the South.
New England:
Puritans’ concerns were often otherworldly. Their Calvinistic religion (belief in predetermination, the idea that Jesus died only for the chosen few, and belief in the depravity of man) often demanded a strict regulation ofindividual morals. Puritans admired John Calvin’s rule in the Swiss city of Geneva, where the leading theologian of the Puritan movement had built a city that ruthlessly regulated people’s behavior according to the principles of Mosaic Law.
As such, Puritan legal thinking was a mix of English legal traditions and strict laws of Moses, as interpreted by Calvin and other Puritan/Calvinist thinkers. Sinning was usually equal to breaking the law.
Puritans’ worries often centered on sex and property. Like most Early Modern Englishmen, they believed that sex was essential to a healthy and fulfilling life; however, their religion said that only heterosexual sex between married partners was acceptable. This dilemma made them very concerned about the sexual tendencies of the non-married or unhappily married people in their communities.
Adulterers had to wear a Scarlet “A” on their clothes, or even face the ultimate punishment. At least two people were hanged for adultery in Massachusetts.
Gay sex was punishable by death, but, surprisingly, many Puritan officials were often reluctant to pursue gay sex –cases. Historians have speculated that this might have been the result of the labor shortage in the colonies or tacit-if-embarrassed understanding of how common these acts were in the communities. One can speculate that many Puritans in effect practiced some form of don’t ask, don’t tell –policy on gays.
“Buggery,” or bestiality, was a much more actively pursued and surprisingly common crime in New England. The laws of Puritan communities ordered both the offending human and animals involved to be executed. Court records show numerous trials and subsequent executions of men and animals for these acts.
The most famous buggery-case is the trial and execution of Thomas Granger, a teenager from Plymouth. In 1642, he was found guilty of immoral acts with “a mare, a cow, two goats, five sheep, two calves, and a turkey.” After the conviction, the animals were killed in front of Granger, who was then put to death by hanging, as demanded by HYPERLINK "http://kingjbible.com/leviticus/20.htm" Leviticus, 20:15.
Spreading “false gospel” was also a crime in New England. Court records tell of at least two Quakers, who entered New England to preach their interpretation of the gospel. They were driven out of town with a threat of execution if they were to return. Driven by the obsession for martyrdom, as many early Quakers were, the preachers re-entered and were promptly hanged for their “crimes.”
Property crimes were initially rare, as Puritan communities were initially very small. Somebody possessinganother person’s property was easy to detect and harshly punished, including branding the offending person with a letter “T.”
Larger communities, such as Boston, soon developed more active underworlds and criminal activities, including brothels, gangs of thieves, and other underground businesses.
Middle Atlantic Colonies
Middle Atlantic, stretching from New York to Maryland, was geographically and culturally between New England and the South. Parts of it were settled by Puritans (parts of New Jersey) or members of the Dutch Reformed Church (New York Upstate), another Calvinist organization. Pennsylvania was heavily Quaker and Maryland Catholic, bringing their religious ethics and cultural traditions to play in determining crime and punishment.
Cities of the era were more attractive to criminals, as large communities of often transient people offer opportunities for enterprising and ethically challenged men and women. A 1744 writer from New York City complained that "it seems to be now becoming dangerous for the good people of this city to be out late at night without being sufficiently strong or well-armed."
In the port cities many of the crimes involved the typical vices associated with the presence of sailors and hucksters: prostitution, illegal gambling, drunkenness, and petty theft.
Burglary was considered a particularly heinous crime, since it included a violation of one’s personal space and the sanctity of a home. Many colonial communities imposed America’s first “three strikes and you’re out” –laws against burglars: the third offense would lead to hanging.
Pillory: popular punishment for treason,
sedition, arson, blasphemy, witchcraft, perjury,
wife beating, cheating, forgery, coin clipping, dice cogging,
slandering, conjuring, fortune-telling, and drunkenness.
The South
The South was in general more concerned about money than God, but they also had strict church attendance laws, whenever a church was within a commuting distance.
In the South, as well as elsewhere in English North American colonies, the punishments were heavily shame-based, including branding, forcing criminals to wear identifying pieces of clothing, or putting them on a pillory.
Although court records show that southerners did punish sex criminals occasionally – after all, the oldest recorded case of a person hanged for gay sex in North American colonies took place in Virginia in 1629 – they were not as obsessed about sex as Puritans.
In the South, labor was a much desired commodity, leading to the popularity of slavery as well as widespread use of indentured servitude. Court records show the popularity of cases surrounding runaway slaves or indentured servants, or free men abusing other men’s human property. For example, impregnating another man’s indentured servant would lead to monetary compensation or other paid damages.
HYPERLINK "http://www.earlyamericancrime.com/" site offers some interesting tidbits about crime in early America.
IV Revolutionary Era
Revolution is one of the worst crimes in most law books. Fundamentally, it is a crime against the concept of law itself: an open, unapologetic, and violent rejection of current laws and the legal authorities’ right to rule.
In the American Revolution, revolutionaries had to appeal to a set of principles even bigger and more revered than the English law. Thomas Jefferson, the primary writer of the Declaration of Independence, solved the issue by appealing to Natural law and especially as it was presented by John Locke: since King George III had failed to satisfy his end of social contract and protect people’s life, liberty, and property, the Laws of Nature justified the Revolution.
English believed in Natural Law –concept as well, but Americans stretched it even further. Ideologically and intellectually speaking, the American Revolution was a battle between two differing interpretations of Natural law.
A Roomful of High Felons.
One of the big challenges of revolutions is that its leaders have to simultaneously encourage people to overthrow the law but respect the new rules and laws, as set by the revolutionary leaders. The American Revolution was not an exception.
Who gave the Revolutionary leaders their authority? Many claimed mandates from the people of their colonies, but much of those mandates came from like-minded affluent white men. Their support rarely rested on democratically tested consensus of their communities. Revolutionary leaders and the Second Continental Congress in many ways took charge by boldly declaring themselves as the new law of the land.
Even before the Revolution, many colonists’ attitudes toward crime and laws began to change. Behavior that would have previously been frowned upon and/or strictly condemned gained approval among many self-identified patriots:
Smuggling foreign goods was, under new British import duties, increasingly accepted and even celebrated act of defiance. Smugglers transformed from common criminals into appreciated defenders of free trade and colonists’ rights.
Even violent and downright thuggish behavior was now increasingly accepted, as mobs in Boston trashed the houses of tax collectors, tarred and feathered loyalists, and raised their fists and, eventually, weapons against King George III’s soldiers and other supporters.
Revolutions turn crimes into celebrated actions and equates obedience to laws with support to the existing powers. As such, Revolutions are confusing moments in the lives of citizens, further complicating laws, morals, and society’s mores.
