May 26, 2005
Research: The Origins of Law
[NOTE: This document was added to the blog on September 6, 2005]
In this document I'm going to try to sum up some research I've been doing. My facts may not all be accurate yet. This is me trying to get my facts straight, and sort out the big picture in broad strokes.
I want to trace the evolution of law from the origins of written law to the present.
This is part of a research project that began with the question "What is the origin of artificial age lines?" It's essentially a question about legal history. And that, I quickly discovered, meant that I had to research not just particular laws -- but the history of how law itself evolved. My hope in this expanding project was that I would be able to discover a direct lineage of written law, one society borrowing from the previous from the time of Hammurabi to the present. I've been extremely pleased to discover that this largely possible.
I. WRITTEN LEGAL CODES - THEIR EVOLUTION IN WESTERN CIVILIZATION
Here are the broad strokes:
The Code of Hammurabi (ca. 1700 BC)is one of the earliest written law codes. There are others from roughly the same period in Mesopotamia, but none as influential.
2) Before Rome
There is a period next that I don't understand very well yet, where the Hittites, Hebrews, and Egyptians emerge and evolve. I'm looking at this as the period between "the cradle of civilization" in Babylonia / Sumer and the emergence of the Roman Empire. Hebraic codes will clearly play an important role in Canon Law and obedience to the Torah / Bible -- but I haven't pursued course of religious history adequately yet. From my point of view, this period culminates in Hellenic Greece, where you have a very advanced constitution-based democracy in Athens. And then: Rome absorbs Greece.
3) The Roman Empire
The most important legal code of all time: the Corpus Jurus Civilis -- translated as "The Civil Law". The Corpus Jurus Civilis was a project of the Byzantine Emperor Justinian I, produced between 529 and 543 AD. It collects a bunch of previous roman law, including the twelve tables, the pandects, etc. When you see the phrase "at civil law" in a dictionary, this is the document that is being referred to.
4) Common Law vs. Civil Law Explained
From here, law splits into two traditions: Common Law, and Civil Law. Civil Law is based on Roman Law, it's descendent. Common Law is based on customs, tradition, precedent. It is also influenced by Roman Law, but less directly. In the present day world, it seems that the countries of Europe (and their former colonies) are about evenly divided between those that follow the Common Law tradition, and those that follow the Civil Law tradition.
The tradition of Civil Law puts emphasis on written law created by legislators, judges playing a minor role in law-making. The Common Law uses judges much more as law-makers, and often avoids putting tradition into statute, for fear that doing so will interfere with the flexibility of judges to respond to specific cases. This could lead to very inconsistent judicial rulings, were it not for the principle of stare decisis -- "let the decision stand". A hierarchy of courts exist, and when a precedent is set, it is binding. Precedents are considered nearly inviolable.
Contrary to what you may think, given the Conservative furor over "judges making law", the U.S. is a Common Law country. If you go into a lawyer's office, the books that catalog statutory and constitutional laws would fit on a small shelf. The wall of books is the result of case law.
5) The Middle Ages
The Corpus Jurus Civilis is lost. To what extent it is remembered in countries of the Civil Law tradition, I'm unclear yet. Law is a matter of local authorities. Strange "superstitious" judicial systems arise, e.g. "Pick that burning hot stone out of the fire. If you heal within an allotted time, you're innocent."
It seems that the laws I'm interested fall into two distinct categories: Statutes and Constitutions. During the Middle Ages, Europe descends into feudalism and monarchies. Without a democratic or parliamentary system, there's no constitutional law to study. ...For this reason, I see that my next research project will have to be studying the origins of government.
6) The Enlightenment.
The Enlightenment seems to really be in motion between 1750 and 1800. During this period the Corpus Jurus Civilis, in its original Latin, is rediscovered by the Europeans. During the same period, there is what is described as a "codification movement", many countries putting their law into writing.
In England, codification results in William Blackstone's Commentaries on the Laws of England (1765-1769). When you see the phrase "at common law" in a dictionary, this is the work being referred to.
In France, codification results in the Napoleonic Code (1804, AKA the Civil Code). The Napoleonic Code was not the first codification among Civil Law countries -- but it was the most influential, and remains Napoleon's greatest contribution to the world. French and Austrian codes follow the Institutions system of Gaius; three parts: Law of Persons, Law of Things, Issues common to both parts. Germany and Switzerland's codes are structured according to the Pandect system: General part, Law of Obligations, Law of Things, Family Law, Law of Inheritance. (See "civil code" in wikipedia.)
7) The Thirteen Colonies
Being under the control of England, the colonies follow English Common Law. In this situation, the charters for each of the colonies seem analogous to constitutions -- but I don't expect to discover voting rights there. I have yet to discover where to find statutory law from this period -- but know it to exist. There is a particularly awful law from this period that was inspired by the bible, declaring that disobedient children may be killed. At least one author has gone out of their way to state that the law was probably never actually used.
8) The U.S. Constitution
The U.S. Constitution deals with three age lines: 25, 30, and 35 -- the requirements for being a congressperson, senator, and president, respectively. I believe that if a historical precedent for these numbers is to be found, it will likely be in the Federalist papers.
The age of 21 is not introduced until the Fourteenth Amendment (1868), and comes in the context of reworking the electoral college. The voting age is lowered to 18 with the Twenty-sixth Amendment (1971), I believe in reaction to the outrage of 18-year-olds being able to die in Viet Nam, but not have a say about the government sending them there.
I've found a document by the Ireland Law Reform Commission considering lowering the age of majority from 21 to 18 in 1977 (and simultaneously raising the absolute minimum age for marriage) which references similar movements to lower the age of majority in other countries. It appears that there was a sort of global movement afoot during the 70s. Whether other countries were following the United States' lead, or if it was the influence of the global Children's Rights movement, I don't know. The document does mention, however, that in 1962 the United Nations was urging countries to set absolute minimum ages for marriage. The history of the United Nation's influence (or lack thereof) is another thread to pursue.
9) Canon Law
I know that the Bible has played a major role in shaping youth-related law. However, I have made little progress on this thread so far, but for quotations from the Bible itself and the law from the thirteen colonies period, previously mentioned.
To my great surprise, codifications of Canon Law were not completed until the 20th century. There is a divide between the Eastern and Western Catholic churches that's relevant here, but that I don't quite understand yet. The Western church published its first code of canon laws in 1917; a revised version, the Codex Iuris Canonici was released in 1983. The Eastern Catholic churches were writing the Codex luris Canonici Orientalis, but suspended work on it in 1959. In its place, the Codex Canonum Ecclesiarum Orientalium was released in 1990.
A superficial review of these two documents suggests to me that they are similar to constitutions, dealing with decision-making structures. I know that there are papal declarations and whatnot somewhere out there that are more analogous to statutes, dealing with homosexuality, women's ordination, etc. I've yet to find them.
10) Contemporary Common Law
Blackwell's Commentaries on the Laws of England have been superceded. In England, they've been replaced by Halsbury's Laws of England. In the United States, they've been replaced by the Corpus Juris Secundum (a direct reference to Rome's Corpus Jurus Civilis) and the American Law Institute's Restatements of the Law. Each of these American works is something like a 40 volume set, costing more than $4600 to purchase. It is unclear to me if these are the products of two competing companies, or if there is a more complicated relationship between them.
II. YOUTH'S PLACE IN THE LAW
With this backdrop in place, now I'll try to summarize some of what I've learned about young people's place in legal history.
1) The Importance of Rome
Roman Law influences everything that follows after it. While I am still pursuing research on Mesopotamian, Athenian, and Hebraic legal codes, I am convinced that Rome is the fulcrum of legal history, the "big bang" that everything else seems to proceed from.
2) Freemen, Slaves, and Dependents
In the "Institutes" section of the Corpus Jurus Civilis I found this profound statement: "The principle division of the law of persons is this, that all men are either free or slaves" (TITLE III. CONCERNING THE RIGHTS OF PERSONS). [http://www.constitution.org/sps/sps.htm]
Later in the same document, I find this: "some persons are independent, and some are subject to the authority of others; and again of the latter some are under the control of their parents, and others under that of their masters" (TITLE VIII. CONCERNING THOSE WHO ARE THEIR OWN MASTERS, OR ARE UNDER THE CONTROL OF OTHERS.)
In other words, in the Roman world there were freemen, who controlled both slaves and the dependents living in their home (women, children). In essence, if not letter of the law, both slaves and dependents are human property.
Freemen were referred to as sui juris, "of one's own right". Slaves, women, and young people were under the absolute control of the male head of household -- the paterfamilias -- whose power was referred to as patria potestas. A distinction was made between slaves and dependents; however, slaves, women and children alike had to use a custom called the mancipium (from which we get the word "emancipate") in order to remove themselves from the father-husband-master's control. ...The commonalty with regards to the freeing process, I think more than anything else demonstrates that the essential people-as-property principle was in place.
3) Slave-like Statuses vs. Legally Defined Slavery
Let me depart from my focus on Rome for moment, in order to discuss this issue of people as property in a broader historical context.
...In "From Father's Property to Children's Rights: The History of Child Custody in the United States" (1994), Mary Ann Mason goes out of her way to counter the notion that Colonial children were viewed as property by the law:
"In labor-scarce America the services or wages of a child over ten was one of the most valuable assets a man could have. Thus fathers, without dispute, had almost unlimited authority of control over their natural, legitimate children, leaving almost no room for maternal authority, at least during the fathers' lifetime. [...] The existence of these common law rights have led some contemporary legal historians to conclude that the law regarded children as a property right, to be treated as chattel.
Yet, as indicated by the Massachusetts Bay Colony statute, the relationship between fathers and children was far more complex than these legal historians might have us believe. While fathers had almost absolute control over their children, fathers also had considerable responsibilities, both to their own children and to children legally bound to them as apprentices. In that sense the relationship between father and child was more that of master and servant than of owner and child. [...]" (p. 6-7)
Well, then, let's hear about the relationship between master and servant...
"To emphasize the similarities between the condition of children in various forms of servitude does not detract from the central fact that, both legally and conceptually, slavery was a distinctly different condition than indentured servitude. The central legal distinction was that indentured servitude was a contractual employment arrangement with rights and obligations adhering to both master and servant, while slavery was a form of property ownership where the slave held a legal status most closely akin to chattel. This meant that, short of murder, the master could use or abuse him as he could a horse. The master of an apprentice, as we have seen, was limited in the degree of physical punishment he could inflict upon his servant and was required to provide adequate food and shelter and, in most cases, elementary literacy and training in religion."
The thrust of Mason's objection to comparing youth to chattel (movable property) seems to be two-fold. First, there is the factual legal distinction, that youth were not dealt with as chattel under Common Law. The comparison to chattel, I've read elsewhere, has been a rhetorical tool dating back to the Abolitionists. Second, Mason seems to feel that being subject to near absolute control is significantly mitigated by the father's responsibility to provide food, shelter, and education (literacy, a vocation, religious training).
I do not find the argument compelling. It seems to me that Mason misses the gist of the social arrangement: adults command, youth obey. Even if we just look more closely at the enslavement of captured Africans, we discover that there are differences in status -- house servants had a better standard of living than workers in the field. Even if a slave-master were legally compelled to provide basic care for their slaves, this benefit cannot undo the fundamental repugnance of the non-consensual command-obey relationship... Which leads me to this:
"While a child had a clear obligation to be obedient toward his or her parents, the father had a mutual obligation to control the child." (p. 12)
I'm appalled to see Mason try to describe the command-obey relationship as one of mutuality. To argue ad absurdum, it's like saying that a murderer and a victim have mutual obligations to one another: the killer to kill, the victim to die.
Thus, I will take Mason's point to heart, that it is important to be precise when talking about legal history to get your legal definitions of status correct. And I will reject her notion that owing absolute obedience for the basics of survival in a society is a form of "mutuality". And I will persist in arguing that the essence of slavery is a non-consensual command-obey relationship -- a relationship experienced by slaves, women, and children under a freeman in the thirteen colonies, very much like that of slaves, women, and children under a Roman father.
Slavery, coverture, indentured servitude, dependence (as a minor), apprenticeship, and other master-servant relationships -- these are slave-like statuses.
4) Public vs. Private Spheres, re Legal Age Lines
In my research on legal age lines, an important distinction is emerging: there are laws that deal with minors under the custody of the paterfamilias, and there are laws that deal with the one's right as a citizen to participate in the government and civil life. This distinction could almost be identified as a difference between Statutory and Constitutional law.
It doesn't appear that the constitutions of any Western nations deal with family law. In their constitutions we find age lines that deal with being a voter, a senator, a president, etc. It is within statutes that we find law pertaining to the age of majority, parental responsibilities, etc.
An interesting note: Via the Ireland Law Reform Commission document, I learned that the ages for voting and holding various public offices varies widely according to nation. I have noted in the Athenian Constitution by Aristotle that you have to be 40, 50, or 60 to hold various positions. [I see similar things in Plato's Laws.] ...It will be interesting to see if I can find any connections back to the Greeks' age lines, as opposed to the Roman ones.
Another interesting note: In the U.S., the age for being a state-level congressperson, senator, or governor depends on what state you are in. Those lines are embedded in state constitutions. Law about age of majority, emancipation, parental responsibilities, etc. will be in the states' statutes. ...I know that there have been various efforts at promoting unified code on certain issues; I haven't discovered yet how to see if any age laws have been subject to this attention.
5) Constitutional Law Requires a Constitution
As I noted in the first section of this paper, when you're discussing government positions and voting, those are matters of Constitutional law. However, there's not going to be a constitution in a monarchy, is there? This insight suggests that I will need to research and write another paper on the origins of government.
6) Clues re the Origin of the Age of Majority
What is the origin of the "age of majority"? What was its first occurrence in written law? What rights did it confer?
Reading through the Ireland Law Reform Commission document, I was struck by the concurrence of marriage and ability to make contracts. Some of the component rights of the age of majority are the right to marry, the right to make contracts, and the right to vote. I'm beginning to suspect that the right to vote is a separate issue, one that has been lumped together with marriage and contract law for convenience. The Ireland document discusses raising the marriage age, and lowering the voting age, until they match... Is this a merging of the public and private spheres? (And in very recent times?)
Within the privacy of the patriarchal family, the key to understanding youths' status seems to be property ownership.
Only the paterfamilias is allowed to own. Whatever benefits his sons' labors bring in, belong to him. This remains so until the paterfamilias dies. If the son does not have legal right to own his own body, if the son does not have legal right to own his own labors, then how could he have the right to make contracts -- unless it is willed by the father?
I recall seeing something in Hammurabi about the minor son not being allowed to make contracts. A form of coverture also seems to be in place, where a father's crime may be punished by executing his son.
Marriage, originally, according to the Handbook of Marriage and the Family (1987. Ch. 27, "Families and the Law".), was a contract between private parties -- not a state-officiated status. It makes sense then, that a son would not be in charge of this contract-making... But then, it seems that marriage is one means of becoming emancipated.
Hm. Looking into the origins of emancipation may help answer this question. That sends me back to Rome again...
7) Clues re the Origin of Artificial Age Lines
One bit of bedrock I seem to have discovered is that in Roman times, puberty was commonly set at 14 for boys, 12 for girls. I've encountered various references to Roman theories of stages of development. These seem to be the rationale behind laws that deal with childhood within the family. Laws that deal with government posts, on the other hand, seem to be fairly arbitrary, setting "minimum standards" for important people, based on the presumption that older equals wiser. The arbitrariness of the one set of laws may have infected the other set over time...
I've encountered other societies' theories of stages of development, both for Athens and the Middle ages -- although I don't have any actual data transcribed yet. Stages of development will be an interesting thread to pursue farther. It seems pretty clear at this point that Philipe Aries' thesis that "childhood" didn't exist in the Middle Ages -- that people went directly from infancy to adulthood is false. [Various authors have criticized him on this point, and he himself more or less conceded.] Aries is not entirely wrong, however; there does seem to be an abrupt shift from "childish things" to adult clothing. One might interpret this simply as a failure of merchants to create sub-niches for marketing, as has occurred in present times.
[There is a relevant, fascinating custom in ancient Rome of having the son, at adulthood, strip off his clothing and put on an adult's toga. This is an amazingly clear instance of there being an adult dress code.]
8) Protecting Youth for Selfish Reasons
As I dig deeper and deeper into history, I'm finding more and more questions to ask:
- what is the origin of written law?
- what is the origin of constitutional government?
- what are the origins of constitutional age lines?
- what is the origin of "senior citizen" status and retirement age?
- what are the origins of legally recognized marriages?
- what is the history of the right to marry?
- what is the origin of emancipation?
- what is the history of adults' legal entitlement to obedience?
- what is the history of adults' explicit right to use corporal punishment?
- what is the origin of parental obligation to care for children?
- how has liability for damages caused by youth changed?
- what is the origin of the juvenile delinquency code?
- what is the origin of the curfew?
- what is the origin of compulsory schooling?
- what is the origin of our youth labor laws?
- what are the earliest origins of slavery?
- how did the legal status of slavery evolve over time?
- how did women's rights within marriage evolve over time?
- what is the history of indentured servitude and other slave-like statuses?
- what is the history of theories of stages of development?
- what is the history of adult-identified clothing?
So many questions! But I'm heartened to be beginning to find answers. Two leads are worth mentioning here.
It appears that legal parental responsibilities to care for one's children may have a selfish origin. Mason's book seems to be saying that these obligations had their origin in the 1601 English Poor Act -- which was intended to lessen the burden on society for caring for impoverished children.
In a similarly selfish move, U.S. laws against child labor seem to come from the 1938 Fair Labor Standards Act -- a New Deal measure aimed at putting jobs in the hands of adults, by taking them away from youth. This also seems to partly be the case for retirement, which came into being circa 1935 (?). [The Social Security administration's website is unclear on this point, on a superficial reading.]
9) The Parallel Stories of Women's and Slaves' Liberation
I'm increasingly convinced that in order to tell the story of "The Invention of Adulthood", I'm going to also have to tell the story of women's and slaves' experience with being treated as human property.
Women in the 19th century were fighting for the right to divorce, to own property, to inherit, to make wills, to have custody of children (a form of ownership)... It seems to me that these struggles are far more like what YL must face now than those of the civil rights era.
There are interesting threads concerning marriage. Apparently divorce was easy in Rome -- but the Catholic church moved to make matrimony unbreakable. There's a transition from marriage being a contract between private parties to a status officiated by the state. Given that divorce has similarities to emancipation -- especially post- patria potestas, when divorce grants independence, rather than remitting control of the woman to her father -- right to divorce is a thread that needs to be pursued.
There seems to be connection between marriage and slavery. Gerda Lerner, in "The Creation of Patriarchy", suggests that women were the first slaves -- being easier to take captive and keep (due to their maternal bonds to infants) than men. ...I suspect that the existence of any slave-caste in a society has a chilling effect upon all relationships, permeating them with a similar dehumanization.
Mason points out that there were no provisions for slavery in the Common Law. The enslavement of Africans was a "peculiar institution" originating in the 14th century, along was a racial justification, if I recall correctly. I need to see to what extent slavery existed in Civil Law countries during the Middle Ages. If there were a continuing thread there, it would greatly bolster my rhetoric that YL is part of an ongoing effort to wipe away the last vestiges of persons-as-property.
III. NEXT STEPS
I've outlined a great deal many more questions to research above. ...Next I will have to start getting my primary sources organized, and find replacement citations for information I gleaned from non-authoritative texts such as wikipedia. Moving to the O.E.D. and perhaps the Encyclopedia Britannica may be good starting points -- but I'll also need to be looking for more specialized books now. [I've been astonished at how far I've gotten with just an unabridged Webster's Dictionary and the wikipedia!] I haven't decided yet if I need to get hard-copy citations for the various codices I'm studying, or if the "Liberty Library" online site will be adequate.
Posted by Sven at May 26, 2005 12:01 PM