Law - A Definition
Sources of Law
Trial by Ordeal
When Moses stood on Mount Sinai and received a body of law contained in the Torah (the Bible,or the Old Testament), its origins were clear to all who accepted its mandates. Even so, the Bible relates that Moses and the divine code of law he attempted to enforce encountered stiff opposition on a number of occasions. Thus it is understandable how law from less lofty origins can be ignored, opposed, and violated.
Law & Justice,
By Howard Abadinsky
I. LAW - a definition:
Difficult to define.
Lawyers and judges: What they practice and what
Immanuel Kant (1724-1804) Faulted lawyers for
being unable to agree on
definition of the subject matter of
Kant proceeded to construct his own definition, which was not universally accepted
Society is possible only on the basis of order and law
can be conceived of as simply a body of rules
governing a social order.
BUT - at what point do social rules and customs, the
norms of society, become LAW
Law appears to have four components:
2. regularly enforced by coercion
3. by persons authorized by society
4. as stipulated by courts of law
A. SOURCES OF LAW
1. Natural Law (the law of nature) Binding on all
a. Greece, 4th century BC or BCE. Discovered that
societies which could not easily be dismissed
as primitive cherished different and even
conflicting customs. And the search was on for
universal principals of conduct, based upon
human nature, that might underlie the variety of
customs and serve as a criteria for their
b. Rome, Christian framework (Thomas Aquinas
(1225-1274), William Blackstone (1723-1780)
and the Bill of Rights (1791).
2. Rational Law A system of modern or rational law
involves the application of general principles to
Western society uses two basic systems for
implementing a system of rational law: the
common law and civil law.
a. The Common Law1066 Conquest of Anglo-Saxons
by the Normans 1086 A census throughout the
realm to make a record of the names of towns,
number of persons, cattle, and houses as well as
the customs and norms of the population.
Gradually the Norman kings fashioned these
local customs into a single body of general
Writs and Orders
Common law notion that a judicial decision
serves a dual function:
(1) res judicata (final conclusive judgment)
(2) stare decisis et non quieta movere
"stand by the decision and do not disturb
what is settled"
b. Equity A concern for fairness. It is not enough to
act in accord with the letter of the law, one must
also act fairly. Petition the King, asking him to
intercede in the name of justice on behalf of a
Referred to king's chancellor, a combination
executive secretary and chief of staff. He was
usually an educated clergyman with a staff of
scribes. "Keeper of the king's conscience."
Chancery courts or courts of equity
Maxims Chancellor's decisions were often
contrary to law
Difficult to predict
16th century - decisions began to be
18th century - as much fixed by
decisions and as much formed into
technical legal rules as the rules of the
c. Courts of Law and Courts of Equity in the United
States. U.S. Constitution (Article III, Section 2 -
federal judicial has power to hear cases arising
both in law and in equity.
II. TRIAL BY ORDEAL The ordeal is a primitive
form of trial used to determine the guilt or
innocence of the accused, the result being
regarded as a divine or preterhuman judgment.
It is a device for regulating the primitive law of
force, under conditions of comparative fairness.
The concept that victory would inure to the right
was a belief that was subsequently engrafted to
the concept of the ordeal.
earliest - wagers of battle or other bilateral
later - man, alleging innocence and facing his
creator on trial by ordeal
Tremendous impact of religion on the daily lives
of the people who rely on it. Without
understanding the belief of divine intervention
seen and believed as punishing the guilty and
vindicating the innocent, the concept of trial by
ordeal cannot be understood in terms of justice.
a. Ordeals by Fire and Heat
b. Ordeals by Water and the association of innocence
c. Ordeal by Direct Appeal to God
Ordeal of the cross