LW111- Module 1 WK1

• Legal history


  Enriches our understanding of the law, enhancing our grasp of current problems and empowering us to imagine new alternatives
• Legal historians


  • Examine how legal ideas, doctrines, and institutions change over time, exploring how they shape and are shaped by social, cultural, political, and economic contexts
  • Are guided by figures like judges and legislators as well as ordinary people, who give voice to their own ideas of what the law is and should be
• Legal history tells us about central questions of how we organize our society; it's a terrific guide to all sorts of questions of morality and duty. It helps us understand and shape our government.
• Legal tradition


  Legal regimes of the past that differentiate legal systems by country or time
• Categories of legal tradition

  • Roman-Germanic
  • Roman-Canonic
  • Civil law
  • Common law
  • Religious systems
• Civil law system


  Origins in Roman Law (the Twelve Tables, Corpus Iuris Civile, and Corpus Iuris Canonici) and was decisively influenced by Canonic Law
• Common law system


  Arrived during the 11th century in England, characterized by the creation of legal dispositions coming from the judicial resolutions and following the judicial precedent
• Religious systems


  Law and religion are practically synonyms, with the applicability of this mixture of conduct rules restricted to certain subjects
• Basic types of legal systems


  • Civil law
  • Common law
  • Customary law
  • Religious law
  • Hybrid or mixed systems
• Common law emanated from British Rule, with the countries that were once under British Rule using the common law system
• Most of Europe and South America use a civil law system
• Common law


  Case law is a primary source of law, with judge-made law filling in gaps when there was no written law. Judges look to prior decisions to determine the judge-made law and apply it to new cases.
• Civil law


  Relies on comprehensive legal codes that contain all laws for the country, with court cases being investigations by the court to see how the facts fit into the already established codes applicable to the situation.
• Religious law


  Many Middle Eastern countries use religious law systems for all or part of their laws, based on sharia law derived from the Koran, the Sunnah and the Hadith. The legal system includes general and summary sharia courts, with certain religious leaders able to overrule any government act on religious grounds.
• Customary law


  A system based on long-standing traditions in a particular community, typically unwritten and revealed only to group members, with select leaders of the group usually implementing the customary laws.
• Many countries have mixed legal systems incorporating common, civil, religious, and customary law systems.
• Western contact - especially English, French, German, Spanish, and American - begins across the sixteenth century, especially in modern PNG and the Solomons, but only accelerates in the eighteenth and nineteenth centuries.
• By the late 1800s, Britain, France, Germany, Spain and the USA were all competing for control of islands in the Pacific.
• After Germany's defeat in World War I (1914-18), Japan received control of the German possessions in Micronesia.
• Through all these changes of rule, the Pacific Islanders themselves had little or no voice in the government.
• After World War II (1939-45) the United Nations (UN) decided that four areas in the Pacific should be governed as trust territories until they were ready for independence.
• Many Pacific countries gained independence from the 1960s to 1980s, with their constitutions stating that customary law would be part of the law applied by all courts.
• Much of what constitutes customary law is not recorded in a written form but is passed on orally by chiefs.
• Legislation


  Laws made by the legislature of the country before independence
• Customary law


  • Increasing tendency to incorporate aspects of customary law at the time of post colonialism
• Countries with laws proposing customary law be part of the law applied by all courts

  • Samoa
  • Solomon Islands
  • Vanuatu
  • Nauru
  • Kiribati
  • Tuvalu
• All countries, with the exception only of Tonga, have express provisions for customs or customary law to be used as the basis for determining rights to customary land
• Much of what constitutes customary law is not recorded in a written form but is passed on orally by chiefs
• Common law


  The law that emerged as "common" throughout the realm as the king's judges followed each other's decisions to create a unified common law throughout England
• Common law


  Often used as a contrast to Roman-derived "civil law", with the fundamental processes and forms of reasoning in the two being quite different
• There has been considerable cross-fertilization of ideas between common law and civil law, while the two traditions and sets of foundational principles remain distinct
• Lord Chief Justice Edward Coke's treatise, Institutes of the Lawes of England, was the first attempt at a comprehensive compilation of centuries of common law

  17th century
• Sir William Blackstone's Commentaries on the Laws of England was the next definitive historical treatise on the common law


  1765–1769
• Reception statute


  A statutory law adopted as a former British colony becomes independent, by which the new nation adopts pre-independence English law, to the extent not explicitly rejected by the legislative body or constitution of the new nation
• In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity prevailing in case of conflict
• Rule of law


  The view that royalty was above the law and subject only to the law of God and not to other men was a viewpoint during the latter part of the Roman era
• Magna Carta 1215


  • Enshrined the principle that the King was not above the law
  • We are ruled by the law and the law alone
  • Qualified Independent Judiciary
  • Confidence in Fair Process
  • The law is known by all
• Although the phrase "Rule of Law" does not appear in Magna Carta, its concepts are seen throughout the document
• Rule of law


  • Requires that the government (meaning the King) is bound by the law, and that everyone is bound by it
• Rule of law


  • No one is above the law, the law is applied equally and fairly to both the government and citizens
  • Presumption of innocence
  • Fair and prompt trials