Our Legal Heritage - Pearson Global Schoolsassets.pearsonglobalschools.com/file-vault/ca_school/catalog/media/... · Our Legal Heritage 1 ... The Code of Hammurabi Mosaic Law Greek

17

Our Legal Heritage 1UNIT

UNIT OVERVIEWThe three chapters in this unit provide students with an introduction to

the foundations of law and Canada’s legal heritage. Students will learn

about the historical roots of the Canadian legal system and the evolv-

ing nature of the concepts of justice and equality. To clarify the role of

the law in regulating daily life, a classification system is used that takes

students through the various categories of law and illustrates how those

categories function in society. The jurisdictional division of powers,

the structure of the governments that create and enforce the law, and

the steps involved in enacting legislation are explained in terms that

students can comprehend. Through the activities in the student text

and the extension activities in this resource, students will demonstrate

an understanding of the dynamics of law in Canadian society.

UNIT OUTLINE

Chapter 1 Law and Society

Chapter 2 Classifying the Law

Chapter 3 Government andStatute Law

19

CHAPTER OUTLINE

Law in Our Lives

Rules versus Laws

What Is Law?

The Need for Law

Law and Morality

Law and Justice

Historical Roots of Law

The Code of Hammurabi

Mosaic Law

Greek Law

Roman Law

France and the NapoleonicCode

Influences on Canadian Law

Early British Law

The Feudal System

Common Law

Legal Reforms

Aboriginal Law

Reflecting on Our HistoricalRoots

Law and Society 1CHAPTER OVERVIEWThis introductory chapter offers students a broad overview of the influ-

ences on modern Canadian law. Students are made aware that from the

earliest times, all societies recognized that laws were required in order for

people to live together in harmony.

The chapter is divided into three main sections. The first section

addresses the ever-present influence of law in daily life and the need for

such laws. The second section examines early codes and laws and the

development of principles of justice. From the Code of Hammurabi to

the Napoleonic Code, students will begin to recognize the increasing

complexity of the legal system. The third section discusses Canada’s legal

system as a product of influences and developments from many cultures

over a long period of time.

The Looking Back activities at the end of the chapter provide students

with an opportunity to demonstrate their understanding and knowledge

of Canada’s legal heritage. The activities range from applying key vocab-

ulary to exploring issues of ethics and morality in law.

20 UNIT 1 ◆ Our Legal Heritage

Key Content Suggested Strategies

PLANNING CHART

Topic:Law in Our Lives

Key VocabularyRule of Law

ResourcesLaw in Action, pp. 9–16

BLM 1-1: Survivor IslandScenario

Legal Inquiry

Assessment Master 1-1: Rubric:Survivor Island Legal Code

Assessment

Generic Assessment Master G-1:Rubric: Group Work

AssessmentCOPY

COPY

COPY

1. Refer to the quotes on page 8 in the student text to generate discussionabout views of the law.

2. Introduce students to the study of law by having them examine the pho-tographs on page 9 (Figure 1.1). Have them work with a partner to record allof the laws that might apply in the situations depicted in the photographs.Give students 15 minutes to complete the exercise and then discuss.Emphasize the fact that laws govern all aspects of our lives. Laws that stu-dents might identify are listed in the “Solutions to Questions and Cases” section on page 24 of this resource.

3. Follow this activity with a discussion on rules versus laws. Use Figures 1.2and 1.3 (on page 11). Have students respond to the questions individually,then discuss their responses with a partner, and finally share with the class.Conclude with a brief note on the difference between rules and laws.

4. Use Extension Activity 1: Survivor Island Legal Code to finish off this section.This activity encourages students to become aware of the need for laws toregulate human relationships. Assessment Master 1-1: Rubric: SurvivorIsland Legal Code and Generic Assessment Master G-1: Rubric: Group Workhave been included for use with this assignment.

Topic:Historical Roots of Law

Key VocabularyGreat Laws of ManuCode of Li k’veiCode of HammurabicodifiedretributionrestitutionMosaic LawTen CommandmentsJustinian’s CodeNapoleonic Code


BLM 1-2: Laws from the Code of Hammurabi

Legal Inquiry

Generic Assessment Master G-2:Rubric: Research Report

AssessmentCOPY

COPY

1. Have students read pages 17 to 23 of the text and then answer the “BuildingYour Understanding” questions on page 23. They could answer the questionsin small groups, dividing the workload among group members and then shar-ing their answers. Discuss the answers using the answer key provided in thisresource.

2. Follow the instructions for Extension Activity 2: Law as a Reflection ofSociety. This activity will help students to recognize that laws are a reflectionof the society that created them. Students will require BLM 1-2: Laws fromthe Code of Hammurabi for this activity.

3. At this early stage in the course, it is a good idea to have students completean assignment that will enable you to assess the writing skills and abilities ofthe students in your class. Extension Activity 3: Research Report is designedas a comprehensive diagnostic tool that can be used to assess communica-tion skills, research skills, and the ability to stay focused on the task. GenericAssessment Master G-2: Rubric: Research Report can be used in conjunctionwith this assignment.

CHAPTER 1 ◆ Law and Society 21


Topic:Influences on Canadian Law

Key Vocabularytrial by ordealtrial by oath helpingtrial by combatadversarial systemdivine rightassizescircuit judgescase lawcommon lawstare decisisrule of precedentMagna Cartahabeas corpusThe Great Binding LawQuebec Civil Code


1. Begin this section by having students form groups of three. Distribute chartpaper and markers to each of the groups. Ask the groups to record what theyknow or understand about Canada’s trial system. They should describe the par-ties involved, how a trial proceeds, how a verdict is reached, and how sen-tences are determined. For each part, students should describe or explain whythat person or function is important to the legal system (e.g., Why do we havea judge and what is her or his role? What is the role of the lawyers? Why aretrials so formal? Why are there rules for evidence?). Give the groups about 15 minutes to complete this exercise and then discuss their results as a class.

2. Next, have the groups read pages 24 to 30 of the text and complete studynotes on this section. Different members of the group should summarize“Early British Law” (the various methods of trial), “The Feudal System” (howthe system worked and how justice was administered), and “Common Law”(assizes, circuit judges, case law, stare decisis, rule of precedent), “LegalReforms” (Magna Carta, habeas corpus) and “Aboriginal Law” (The GreatBinding Law). Each member should share his or her notes with the group. Atthe completion of this activity, students will have a full set of notes on thissection and should be able to identify the historical origins of each part ofCanada’s legal system.

3. Work as a class to answer the “Building Your Understanding” questions onpage 30 of the text. Instruct students to record the answers to the questionsin their notebooks.



Chapter Review

Resources Law in Action, “Looking Back,” pp. 31–32

- BLM 1-3: Comparing Two Democracies Legal Inquiry

- BLM 1-4: Historical Roots of Law Legal Inquiry

- Assessment Master 1-2: Rubric: Analysis of an Aboriginal Nation’s Laws

Assessment

- Assessment Master 1-3: Rubric: Article on Laws That Appear to

Discriminate Assessment

Law and Morality—Ethics Exercise, p. 33

- Assessment Master 1-4: Rubric: Applying Personal Ethics

Assessment

Additional Cases: R. v. Clark; R. v. Grundy; R. v. Harriott Case Analysis

- Generic Assessment Master G-3: Rubric: Case Analysis Assessment

- Generic Assessment Master G-10: Rubric: Case Presentation

Assessment

Law in Action Test Bank, Chapter 1

COPY

COPY

COPY

COPY

COPY

COPY

COPY

COPY

Extension Activities Activity 1: Survivor Island Legal Code

- BLM 1-1: Survivor Island Scenario Legal Inquiry

- Assessment Master 1-1: Rubric: Survivor Island Legal Code

Assessment

- Generic Assessment Master G-1: Rubric: Group Work Assessment

Activity 2: Law as a Reflection of Society

- BLM 1-2: Laws from the Code of Hammurabi Legal Inquiry

Activity 3: Research Report

- Generic Assessment Master G-2: Rubric: Research Report

Assessment

Activity 4: Continuity in Law

- BLM 1-5: Continuity in Law Legal Inquiry

Activity 5: Aboriginal Law

- Generic Assessment Master G-5: Rubric: Visual Display

AssessmentCOPY

COPY

COPY

COPY

COPY

COPY

COPY

The Rule of Law is a legal principle whereby the lawsof society apply equally to all and people are not gov-erned by arbitrary power. Which of the following wouldbe an abuse of the Rule of Law?

a) A stockbroker is arrested for insider trading.

b) An off-duty police officer is not charged by a fellowofficer for speeding.

c) The premier is charged for assault after pushinga protester out of the way.

d) A local politician gets his or her grass cut by theparks and recreation department.

e) Protesters are arrested after storming the provinciallegislature.

Answer: b) and d)

Primary sources of law are defined as the sources thatgive our laws their moral values or content. Which ofthe following would be considered a primary sourceof law?

a) the Bible

b) the Criminal Code

c) customs

d) philosophy

e) court rulings

Answer: a), c), and d)

Puzzle 2

Puzzle 1

Many of the ancient laws were based on an “eye foran eye” philosophy to ensure that justice was done andthat no vengeance was exacted by the parties who hadbeen wronged. Which of the following laws do notreflect this philosophy?

a) If anyone delivers silver, gold, or anything else toanother for safe keeping, before a witness, but hedenies it, he shall be brought before a judge, andall that he has denied he shall pay in full.

b) If a man knocks out the teeth of his equal, histeeth shall be knocked out.

c) If a builder builds a house for someone, and doesnot construct it properly, and the house which hebuilt falls and kills its owner, then that buildershall be put to death.

d) If anyone hires oxen, and kills them by bad treat-ment or blows, he shall compensate the owner,oxen for oxen.

e) If anyone is committing a robbery and is caught,then he shall be put to death.

Answer: e). This approach seems to be based on deter-rence rather than on “an eye for an eye.”

Puzzle 3

Test Your Aptitude for Law: Activities for Getting Started

Legal Logic

© Pearson Education Canada 2003. LAW IN ACTION. The right to reproduce this page is restricted to the purchasing school. 23


Solutions to Questions and Cases

Page 9

Figure 1.1Laws that students might identify relating to the situ-ations depicted in the photographs are listed below.

Construction site: labour laws (hard hats, etc.); zoninglaw for municipality; contract law (hiring the builder)

Rollerblading: municipal bylaws (e.g., no motorizedvehicles in parks); tort law (if anyone is injured); con-tract law (Rollerblades have to be fit for purpose)

Traffic scene: provincial traffic laws (licences, insur-ance, etc.); tort law (if liable for accident); criminallaw (depending on careless driving, etc., if applicable)

Page 10

Consider ThisExamples will vary. However, a common basis for rec-ognizing injustice is understanding that one or moreof the principles of justice (fairness, equality, rights,etc.) have been violated. Through the study of law, stu-dents will examine how the principles of justice formthe basis of legal decision making.

Page 11

Figure 1.2The rules of rugby apply to the game only, and not tothe community at large. If you don’t play the game,then the rules don’t apply.

Laws apply to the entire community, including thegame of rugby. If you are a part of the community (juris-diction), then the laws apply and are enforced by thecourts.

Teaching Suggestion: To enhance student understand-ing, put the following statement on the chalkboard:All laws are rules, but all rules are not laws.

Then examine additional class/membership relation-ships. Example:All dogs are animals, but all animals are not dogs.

Following this discussion, ask students to explain theiranswers to items 1 to 10 in Figure 1.3.

Figure 1.3

1. Rule—Unless smoking in the community is pro-hibited by law, you can smoke outside of schoolproperty.

2. Rule—This rule is limited to a student–teacherarrangement. The courts will not enforce non-compliance.

3. Law—If you are driving in the community (i.e., province), then the seat-belt law applies andcan be enforced by the courts.

4. Law—If you are part of the community and under19 years of age, buying cigarettes is a violation andcan be enforced by the courts.

5. Rule—Unless wearing hats in the community isprohibited by law, you can wear your hat outsidethe classroom.

6. Rule—Unless the use of cellphones in the com-munity is prohibited by law, you can use your cell-phone outside the movie theatre.

7. Law—If you hunt in the community (i.e.,province), you need a licence. Violation can bepunished by the courts.

8. Law—If you are in the community and dispose ofyour garbage in an unacceptable manner, you canbe punished by the courts.

9. Law—If telling fortunes for money is prohibitedwithin the community, violators can be punished bythe courts.

10. Law—If public profanity is prohibited within inthe community, the courts will enforce this law.Note: If the comments defame the character ofthe teacher, the teacher can sue for slander.


Page 12

Figure 1.4Municipal traffic laws that are evident in the photo-graph include no stopping in the left lane, no parking inthe right lane, no stopping between 7 a.m. and 9 a.m.on weekdays, no stopping within 9 metres of the cross-walk, cars must stop for pedestrians using the cross-walk, no driving into a one-way street, and cyclistsmust obey traffic laws.

A rule that relates to the scene in the photographis pedestrians should use crosswalks properly (presscrosswalk button, look both ways, and then cross thestreet with arm pointing ahead).

Page 13

Case: Roncarelli v. Duplessis

1. Duplessis violated the principle that no one, includ-ing people in power, has the authority to take awayan individual’s rights except in accordance withthe law. In this case, if Roncarelli had violated anyregulations pertaining to the licence (e.g., servingminors), then the Liquor Commission would havehad the grounds to cancel his licence. However,ordering the Liquor Commission to cancelRoncarelli’s licence for a purpose that was unre-lated to the stipulation of holding a licence is anexample of arbitrary abuse of legal power.

2. Possible consequences:

• People in power (government officials) mighthave started withholding or cancelling permitsand licences in an arbitrary manner.

• In an attempt to obtain and retain permits andlicences, corruption (i.e., bribes and kickbacks)could have become the norm.

• The principle of “acceptance of the law” wouldhave been put to the test as citizens noticedthat the law did not apply equally to everyone.

Page 14

Law in Your LifeChoice of issues will vary. Students may prefer toexpress themselves by writing a letter to the editor ofa newspaper, by writing to an MP or MPP, or by join-ing an organization or lobby group that shares theirviews.

Page 15

Case: R. v. Dudley and Stevens

1. This case illustrates a variance between the lawand the moral values of the society in England dur-ing this period. While societal values generatedsympathy for the sailors, the judges found thesailors guilty of murder and sentenced them tohang. However, commuting the sentence to sixmonths’ imprisonment would likely have reducedthe variance between the moral values of societyand the judicial decision.

2. Since the question of whether the two sailors killedParker is not at issue, most responses should focuson whether the actions of the sailors can be justified.

Their actions can be justified because

• no other alternatives existed (their actions wereunavoidable), and

• compliance with the law was impossible becauseall three sailors would have died.

Their actions cannot be justified because

• intentionally killing another person is a crime(murder),

• the law must be applied impartially to every-one, and

• there is insufficient evidence that no alterna-tives existed or that the three sailors would oth-erwise have died.

Consider ThisThere are numerous situations in which equal treatmentmay not be just. To help students generate and assesstheir own examples, tell them that two principles of jus-tice (equality and fairness) must be balanced within eachof the situations. To assist them in the process of bal-ancing one principle with another, provide them withthe following pathways to reach a valid conclusion.

• Equal treatment is just if the two situations aresimilar in relevant ways (e.g., people with similarincomes and in similar family situations can beexpected to pay similar amounts of income taxes).

• Equal treatment is unjust if the two situations aredifferent in relevant ways (e.g., it would be unfairto treat all people—the physically able and thosewith physical disabilities—the same; consequently,it is justified to provide handicapped parking forpeople with disabilities).

Note: Students often respond by stating that it seemsfair or just to treat everyone equally (equal treatmentbefore the law). However, this claim is based on theassumption that all people are similarly situated.Because this assumption is incorrect, equal treatmentcan be unjust. For example, it would be unfair to treatall students equally regardless of their learning abilities.Therefore, special education programs for studentswith learning disabilities can be justified by applying theprinciples of justice.

Page 16

MacIsaac Discharged for Fiddlingwith Pot

1. Ashley MacIsaac was charged with possession ofmarijuana under the Controlled Drugs and SubstancesAct. His punishment was an absolute discharge.

2. If Judge Smith consistently granted an absolutedischarge to individuals convicted of possessionof marijuana, this decision would be consideredimpartial (similar cases are treated similarly).However, information in the article suggests thatMacIsaac may have been offered special protec-tion or privileges simply because he is a celebrity.When convicted of possession of marijuana, beinga celebrity should not be considered a relevant dif-ference, and therefore special treatment cannotbe justified.

Teaching Suggestion: Ask students to pair upand suggest a situation involving the possession ofmarijuana in which special treatment could be jus-tified. For example, special treatment might bejustified for an individual who had a medical con-dition in which limited use of marijuana had beenprescribed by a doctor. This situation could beconsidered a relevant difference for which specialtreatment can be justified.

Building Your Understanding

1. It is important to study the laws of your countryfor the following reasons:

• You need to know what the law is and what yourrights are to assist you in recognizing any viola-tion of your rights.

• Knowing what the law is and how the legal sys-tem works can provide you with the insight and

tools to influence changes that reflect prevailingvalues.

• As an informed, thoughtful, and active citizen,you can contribute to ensuring that the legalsystem serves the public.

2. Rules differ from laws in the following ways:

• Rules do not apply outside the game, so you canopt out of the rules if you do not play the game.

• Laws apply to the entire community, includingthe rule-guided games and activities. You cannotopt out.

• Rules are not enforced by the courts.

• Laws are enforced by the courts.

3. We need laws in society to protect us from the vio-lence of others, to safeguard our property, and tosettle disagreements and disputes. Laws also helpto regulate the law-making/law-enforcing process.

4. Three aspects of the Rule of Law:

• Individuals must recognize and accept that thelaw is necessary to regulate society.

• The law applies equally to everyone, includingpeople in power and famous individuals.

• No one has the authority to take away our rightsexcept in accordance with the law.

5. Generally, Canadian laws reflect the values ofCanadians. That is, the moral standards that areapplied to determine right from wrong are sharedby most citizens and lawmakers. Individuals who donot share these moral values can express theiropposition and lobby the lawmakers to change thelaw. At times, the lawmakers can apply standardsthat go beyond what the community values orwants (e.g., the Canadian government abolishedcapital punishment in 1976 despite division ofpublic opinion on the issue).

6. Examples will vary and are illustrative if they meetthe criteria attached to each of the four charac-teristics.

First characteristic: Treat like cases alike and dif-ferent cases differently.

Criteria:

• The features that are identified as similar mustbe relevant to the practice or decision being



defended (e.g., evidence is consistently con-sidered inadmissible in court if it was obtainedby unauthorized or improper means).

• The features that are identified as different mustbe relevant to the practice or decision beingdefended (e.g., individuals or groups that aredisadvantaged because of race, sex, age, or phys-ical disability can be treated differently).

Second characteristic: Discrimination on the basisof irrelevant characteristics is unjust.

Criteria: The features that are identified to justifya practice or decision must be relevant to that prac-tice or course of action (e.g., a learning disability isa relevant feature that can justify providing a spe-cial education plan for a student—whether thatsame student wears a nose or lip ring would notbe a relevant feature for either providing or deny-ing that student the special education plan).

Third characteristic: Laws should be applied impar-tially.

Criteria: Fame, fortune, power, and authority arenot relevant characteristics to justify different treat-ment before the law.

Fourth characteristic: The law itself must reflect abalancing of conflicting rights that is consistentwith society’s values.

Criteria: The rights identified must be relevant tothe practice or course of action being identified(e.g., regarding the practice of legal abortion, theright of the mother to choose has been consideredmore relevant than the rights of the fetus).

Page 17

Consider ThisCurrent methods of identification include finger-printing, speech pattern analysis, retinal scans, irisscans, DNA analysis, facial imaging, hand geometry,and facial thermograms. The methods vary in theirapplications due to cost, time required to conduct eachmethod, and the reliability of the identification method(e.g., fingerprints are always reliable as no two prints arealike—fingerprints even grow back after a finger hasbeen cut; speech patterns can change or be altered;retinal scans require special lighting, etc.). Studentsshould be encouraged to use their imaginations to spec-ulate on future methods.

Page 18

Figure 1.6The laws from the Code of Hammurabi appear to reflectmostly the values and standards of powerful, wealthymen. Consequently, the laws protected the elders frombeing accused of wrongdoing, and the laws protectedlandowners and temples from theft. Human life andproperty appeared to have a conversion value (e.g., paytenfold or be put to death). Compliance with the lawwas reinforced by the fact that the king of Babylonclaimed that the laws came from a higher authority(the gods) whom the people feared and respected.

Page 19

Figure 1.7It is difficult to infer a sense of justice from this excerptbecause even though murder, theft, and lying wereprohibited, there is no mention of any punishment forthese offences. It appears that victims of crime hadrights, but the accused did not. For instance, a victimof theft was paid back fivefold (oxen), and the defenceof property could justify killing a thief.

Page 21

Figure 1.10Student responses will vary—the person identifiedmight be a parent, a teacher, or an instructor. TheSocratic method teaches critical thinking and is oftenused in English, Science, and Math classes.

Page 23

Figure 1.12According to the Napoleonic Code, a woman in Frenchsociety held no legal status in matters of property, con-tracts, etc., except with the authority of her husband.Although mutual obligations were expected from boththe husband and the wife, the wife was expected toobey her husband, had no authority to determine thecommon residence, and could only demand divorcefrom her husband for committing adultery if he kept hisconcubine in their common house.


1. The Great Laws of Manu is a document of lawsrecorded between 1280 and 880 BCE in India.

2. One of the earliest-known written legal codes isthe Code of Hammurabi (1792–1750 BCE).

3. The set of laws found in the Book of Exodus inthe Bible is the Ten Commandments.

4. In ancient Greece, citizens were expected to par-ticipate in society by

• voting on major decisions affecting the city-state;

• serving on juries, which determined guilt andsentencing; and

• speaking on behalf of women (non-citizens) whowere on trial (as women were not allowed tospeak on their own behalf).

5. Roman society had the first paid legal advisers.

6. The Justinian and Napoleonic Codes formed thebasis of our modern civil law (laws governing per-sonal relationships), which regulates such mattersas property, wills, contracts, and family law.

Page 25

Law in Action: Purging by Water

1. Trial by ordeal was used in this case because a ver-dict of guilt or innocence based on facts could notbe determined. For instance, Denise had not wit-nessed the death of her husband, and no eyewit-ness account was mentioned. Beliefs held inEngland at the time also explain why trial by ordealwas used. Guilt was determined because the com-munity “knew” Nicholas was guilty, and it wasbelieved that God would protect him if he weretruly innocent.

Page 29

Figure 1.15From the image, we can conclude that fish were amainstay of the Nootka diet. The fish hanging frombeams are being smoked for winter consumption. The

spacious home suggests that it is a multifamily dwelling,indicating that communal living was a Nootka prac-tice. Finally, the carvings in the background suggestthat the Nootka were skilled woodworkers and thatthey held strong spiritual beliefs.

Figure 1.16Women were regarded as the ancestral source of theNation and had rights to land, soil, family lineage, andlordship titles within the Confederacy of Nations.

Page 30


1. The similarity is that members of the communitywho were not directly involved in the crime or dis-pute could participate in the trial process. The dif-ference is in the roles they played. In trail by oathhelping, the participants provided testimony some-what akin to character witness statements. In theGreek system of law, by contrast, the participantscollectively made decisions about guilt or inno-cence and sentencing.

2. The records of the cases and their decisions (caselaw) have helped to establish a common method ofdealing with similar cases or legal issues. As accu-rate written reports of previous cases and theirdecisions were made available, it became easierfor judges to abide by previous decisions, whichhas resulted in the rule of precedent used today.

3. Rule of precedent is based on the argument thatsimilar cases should be treated similarly. Thisargument has been shown to be valid to the extentthat the two cases can be shown to be similar inrelevant ways and that the previous decision wasjust. Student examples will vary and are illustra-tive of the rule as long as the two criteria are met.

4. The Magna Carta provided the first recognition ofindividual rights for the people of Britain. It alsorecognized certain aspects of the Rule of Law. Forinstance, it recognized that the law applied equallyto everyone. That is, no one—not even the king—was above the law. In addition, the Magna Cartarecognized that no one has the authority to takeaway an individual’s rights except in accordancewith the law. To that end, habeas corpus requiresthe custodial authority to present an arrested or


detained person before a judge or court to deter-mine the validity of the arrest. Those who are law-fully detained are dealt with in accordance withthe law. Those who have been unlawfully detainedare released.

5. In the Iroquois Confederacy, the right of owner-ship passes through clans and consanguinity(genetic or blood relationships) in the female line.


Pages 31–32

Quick Quiz

1. a) Code of Hammurabi; b) common law; c) TenCommandments; d) trial by combat; e) MagnaCarta; f) adversarial system; g) The Great BindingLaw; h) Code of Li k’vei; i) Justinian’s Code; j) staredecisis; k) Napoleonic Code; l) habeas corpus

Checking Your Knowledge

2. a) According to Babylonian law, since the punish-ment for theft from a neighbour was death, thenthe punishment for false accusation of theft wasalso death. According to Mosaic Law, givingfalse testimony was forbidden, so Adil’s behav-iour would be considered an offence in MosaicLaw.

b) According to the Code of Hammurabi, the judgewould be publicly removed from the judge’sbench for life. Under Mosaic Law, an acciden-tal act of harm (mistake in judgment) was not asgreat a concern as punishing a deliberate action.Therefore, the judge would not likely be pun-ished for a mistake in judgment.

3. Students can complete this activity using BLM 1-3: Comparing Two Democracies. Legal Inquiry

Inform students that there will be numerouscomparison activities throughout this text and thatthe subject matter and the strategy required todeal with the comparison will become more com-plex. Help students find the relevant text infor-mation by coaching them on how to formulatespecific questions connected with the descriptorsin the “Features” column of the chart. For instance,

COPY

four questions for the “Early Greece” column mightbe the following:

• What groups were excluded from exercisingtheir rights?

• What rights are identified?

• What was the size of juries?

• What kinds of decisions did jurors make?

Once students have generated useful questions,ask them to read the text information and recordtheir answers in the appropriate cells of the “EarlyGreece” column. Finally, help students generate spe-cific questions to assist them in filling in the “Today”column. The questions should be anchored to thedescriptors in the “Features” column but should also“feed off” the descriptive data in the “Early Greece”column. For instance, four questions for the “Today”column might be as follows:

• What groups are excluded from voting today?

• What roles can women play in politics andwithin the trial process today?

• What is the range in size of juries today?

• What types of decisions do juries make today?

Once students have generated useful questions,have them form groups to broaden their commonknowledge and record their answers in the appro-priate cells of the “Today” column. Answers areprovided in Table TR 1.1 on page 30.

At this introductory level of making comparisons,the assessment criteria used to judge a student’sability to draw comparisons would be the relevanceand accuracy of the descriptive data placed in eachof the columns of the organizing chart.

Looking Back

4. The codification of Roman law into the TwelveTablets meant that the well-organized written lawscould be revised as needed, and judges could makeconsistent decisions based on these coded laws.This practice fostered Roman justice throughoutthe empire. The Tablets promoted the public pros-ecution of crimes, enacted a system of victim com-pensation, and protected the lower class (plebeians)from being abused by the ruling class (patricians).

5. Legal advisers were required during Roman timesbecause numerous complex laws governing crim-inal behaviour, contracts, and individual disputeshad evolved. As a result, it became necessary toask people who had expertise in the law to advisethose who did not.

6. The Rule of Law is an essential concept of justicein Canada’s legal system because it helps to main-tain a respect for individual rights. It recognizesequality before the law as a principle of justice,and it makes acceptance of the law easier within asociety that by and large exhibits an absence ofintimidation by force or widespread corruption bygovernment officials.

Developing Your Thinking andInquiry Skills

7. This critical thinking activity challenges studentsto determine to what extent the outcome of eachcase is just or unjust. This is an excellent oppor-tunity to encourage students to apply criteria whenmaking each judgment. By making the criteria forjudgment explicit prior to deciding each case, stu-dents can focus on the details and considerationsthat are most relevant to their sense of justice.Provide students with the following criteria forjudging to what extent the outcome of each case isjust or unjust. Explain that each criterion has beenformulated into a question to make it easier forthem to respond. Instruct students to read eachcase and answer each criteria question in the orderpresented below. The three criteria are applicableto all of the cases.

Criteria for Judgment:

• Are the considerations for individual rights(explicit or implied within the case summary)relevant to deciding the outcome?

• Are the considerations (other than individualrights) relevant and appropriately applied?


Table TR 1.1: Answer to Looking Back #3, Page 31

-3Features of Democracy Early Greece Today

Groups excluded • women, children, aliens, and slaveswere excluded

• all people are equal before the law

• children under the age of 18 can-not vote federally

Rights involved • voting

• women could not speak on theirown behalf during a trial

• women can vote and hold officepolitically

• women speak on their own behalfat trial and can serve as lawyersand judges

Size of jury • ranged from 101 to 1001 jurors • there are 12 jurors in criminal lawcases and usually 6 jurors (variesfrom province to province) in civilcases

Decisions made by jury • jurors voted on decisions aboutguilt or innocence and sentencing

• in criminal law, jurors decide guiltor innocence only

• in civil law, jurors decide on theappropriate remedy for the harmsuffered


• Does the decision/outcome reflect a fair bal-ancing of conflicting rights and/or other con-siderations?

Student responses will vary and can be consideredappropriate to the extent that students haveinferred that certain conditions or facts are con-nected to a specific case. Possible responses areprovided in Table TR 1.2 below.

8. Students could use BLM 1-5: Historical Roots ofLaw to complete this activity. Legal Inquiry

Note: This activity will require considerabletime to complete and may be challenging for somestudents to do on their own. An alternativeapproach to this activity is to have students iden-tify the law that was codified by each society andthe nature of that society’s law and then use checkmarks in the remaining appropriate cells of thechart. This approach will enable students to rec-ognize the common roots on which Canadian lawis based.

COPY

Table TR 1.2: Possible Responses to Looking Back #7, Page 32

-3Case Relevant Rights Other Considerations Decision/Outcome of Case

a) Implied rights relevantto this case:• right to protect

property• right not to be

harmed or abused bythe actions of others

Was “reasonable” forceor excessive force usedto protect property?(implicit consideration)

The consideration of “reasonable” force is a factor that isapplied when balancing the right to protect property withthe right not to be harmed (security of the person). SinceJames used excessive force (fired a shotgun and hit arobber who was running away), the outcome of this caseis just (convicted of assault). Similarly, if the 10-monthsentence fell within the usual range of sentencing for thatoffence, it is just (similar cases treated similarly).

b) Explicit rights relevantto this case:• freedom of religion

was considered paramount

• right of parents todiscipline their children

Implicit right relevant tothis case:• right of children not

to be harmed orabused by others

Was “reasonable” orexcessive force used todiscipline the child?(explicit consideration)

Assuming that the judge correctly assessed that thediscipline was not excessive, then the consideration of“use of reasonable force” would constitute a fairbalancing between the explicit rights of the parent(religion and discipline) and the implied right of the childnot to be harmed or abused by others. Therefore, theoutcome of this case (acquittal) can be considered just.

c) Explicit right relevant tothis case:• right of those con-

victed to temporaryrelease for humani-tarian reasons

• likelihood the con-victed person willreturn to serve hissentence

• probability the tem-porary release willpose any danger tothe public

(implicit considerations)

If the convicted man was given permission to leave thecountry, we can infer that the two other considerations(will return, no danger) were carefully weighed against the right of the convicted person to obtain release onhumanitarian grounds. The judge’s decision can beconsidered just.

d) Implied right relevant tothis case:• freedom to observe

religious practices

Was the minor’s lifeendangered by notreceiving thetransfusion? (explicitconsideration)

If the minor’s life was not endangered, there appears tobe a lack of balance between the right to observereligious practices and the right not to be harmed by theactions of others. As long as no harm has come to theminor (short term and long term) by not having thetransfusion, then the decision to authorize a bloodtransfusion, which also has potential risks, is unjust.


Discuss students’ responses and supportingevidence as a class. Answers to this activity areprovided in Tables TR 1.3: Answer to Looking Back

#8 and TR 1.4: Alternative Answer to Looking Back #8. (See pages 32–39.)


-3Aspect of LawHighlighted

Society

Babylonia Hebrew Greek Roman Byzantine

Law codified Code ofHammurabi (1700BCE)

Mosaic Law (1250BCE)

Draco’s Law (621BCE; Solon’s Law(594 BCE)

Twelve Tablets(450 BCE)

Justinian’s Code(529 CE)

Type of law Criminal and civil(e.g., torts)

Criminal and civil(e.g., marriage)

Criminal Criminal and civil Criminal and civil

Description - rules and penal-ties for everyaspect of lifewere codified

- laws were codi-fied in the Bookof Exodus in theOld Testament

- laws were alsoset down for theHebrews in theTorah or thePentateuch

- laws were codi-fied by Draco in621 BCE andthen refined bySolon in 594BCE

- laws establishedthe state asresponsible forpunishing per-sons accused ofcrime

- Solon’s reformsequated politicalrights withamount of prop-erty owned (i.e.,those with themost propertyhad the mostrights)

- laws were codi-fied and revisedas new laws wereneeded

- Justinian clari-fied Roman lawand codified itinto a new bodyof law thatformed the basisof civil law

Basis of laws(retributionor restitution)

- basis of laws wasretribution; lawsdid not distin-guish betweenan accident anda deliberateaction

- restitution wascommon in theevent of damageto property ortheft

- laws were moreconcerned withpunishing adeliberate action(retribution) thanan accidental actof harm

- laws were morelikely to punishthe guilty partythan permit aperson of highstatus to shiftpunishment to aperson of lesserstatus

- restitution pro-vided for theft

- Draco’s lawswere harsh (i.e.,retribution—death waspenalty for manyoffences)

- many laws werebased onretribution (e.g.,punishment fortheft)

- laws alsoprovided asystem of victimcompensation(restitution)

- retribution andrestitution


Table TR 1.3: Answer to Looking Back #8, Page 32 (continued)

-3

Law codified Napoleonic Code(1804 CE)

Magna Carta(1215 CE)

Great Binding Lawof the IroquoisConfederacy(1720 CE)

Criminal Code(1892 CE)

Type of law Civil Civil and criminal(legal rights, suchas trial by jury)

Civil Criminal and civil

Description - a new code oflaws regulatingcivil matters wasaccessible to thepublic

- the Magna Cartawas the first stepin establishingindividual basicrights

- laws were codi-fied into a constitution

- laws reflectaspects ofMosaic, Greek,Roman, French,and British law

Basis of laws(retributionor restitution)

- retribution - retribution - retribution - retribution andrestitution

Aspect of LawHighlighted

Society

French British Aboriginal Canadian




Society


Laws serve to

- protectproperty

- punishment wasestablished fortheft from atemple or court(death)

- punishment forstolen items wastenfold amountstolen; if thiefcould not pay,then thief wouldbe put to death

- punishment forcommitting arobbery, ifcaught, wasdeath

- if thief was notcaught, victimcould claimamount of hisloss and becompensated bythe community

- punishment forstealing itemswas four or fivetimes amountstolen

- laws establishedthat it was acapital offence(if premeditated)to destroy abuilding or aheap of corn bya house byburning

- protectpersons

- the wealthy weregiven moreprotection in lawthan the poor

- women andchildren wereconsidered theproperty of men

- slavery was legal

- people wereprotected underthe law (e.g.,Thou shalt notkill, Honour thymother andfather)

- only “citizens”had rights(women,children, aliens,and slaves didnot have rights)

- Solon’s Lawestablished thatnative-borncitizens couldnot be enslaved;it also gave thelowest class theright to vote inthe assemblyand to sit asjurors in thecourts

- protected thelower class fromthe ruling class

- establishedmonetarycompensation forinjuries causedby and insultsmade by anotherperson

- gave all free menequal rightsbefore the lawand establishedthat the accusedare innocentunless provenguilty



-3

Laws serve to

- protectproperty

- laws regulatedproperty issues

- protection ofproperty is animportant aspectof British law

- protection ofproperty andpeople is a keyelement ofcriminal law

- protectpersons

- gave all malecitizens equalrights before the law (deprivedwomen ofindividualrights—i.e., theywere under theauthority of theirhusbands)

- Rule of Law gaveeveryone equalitybefore the law

- the Magna Cartarecognized thatno one has theauthority to takeaway anindividual’srights except inaccordance withthe law

- habeas corpuswas designed toprevent unlawfularrest byensuring thatanyone detainedwas chargedbefore a courtwithin areasonable time

- Rule of Lawapplies today

- habeas corpus,right to a trial bypeers, andfreedom fromarbitrary arrestare guaranteedby the Charter


Society





Society


Laws serve to

- protectpersons

- accused had theright to be triedby an impartialjury of peers

- establishedpractice ofhaving a legaladviser for theaccused

- settledisputes

- judges settleddisputes (lawsset out rules forjudgment;judges could notalter decisions)

- as societybecame morecomplex, lawswere devised tosettle disputesbetween citizens

- regulatecontracts,wills, andfamilies

- Code ofHammurabiaddressedcontractenforcement,marriage laws,and rights ofsuccession

- laws coveredmarriage anddivorce,responsibility forfamily, andsuccession rights

- laws weredevised toregulatecontracts, wills,inheritances,and families(e.g., gavefathersjurisdiction overtheir sons;prohibited inter-class marriages)

- laws weredevised toregulate wills



-3

Laws serve to

- protectpersons

- circuit judgesapplied principleof stare decisis(stand by thedecision)

- right of theaccused to betried by animpartial jury ofpeers is thecornerstone ofCanada’s legalsystem

- judges followrule of precedent(similar casestreated similarly)

- lawyers used todefend accusedin court

- settledisputes

- judges settleddisputes (hadmoreinvestigativepowers)

- travelling courts(assizes) settleddisputes

- law addresseddisputesettlement

- laws wereestablished tosettle disputes


- laws weredevised toregulatecontracts, wills,and family law(e.g., men givenstrongerauthority overfamily, reducedrights ofillegitimatechildren)

- laws regulatecontracts, wills,and family law


Society



Table TR 1-4: Alternative Answer to Looking Back #8, Page 32


Society


Law codified Code ofHammurabi (1700BCE)

Mosaic Law (1250BCE)

Draco’s Law (621BCE; Solon’s Law(594 BCE)

Twelve Tablets(450 BCE)

Justinian’s Code(529 CE)

Type of law Criminal and civil(e.g., torts)

Criminal and civil(e.g., marriage)

Criminal Criminal and civil Criminal and civil

Description - rules andpenalties forevery aspect oflife were codified

- laws werecodified in theBook of Exodusin the OldTestament

- laws were alsoset down for theHebrews in theTorah or thePentateuch

- laws werecodified byDraco in 621BCE and thenrefined by Solonin 594 BCE

- laws werecodified andrevised as newlaws wereneeded

- Justinianclarified Romanlaw and codifiedit into a newbody of law thatformed the basisof civil law

- retribution √ √ √ √ √

- protectproperty

√ √ √

- protectpersons

√ √ √ √ √

- settledisputes

√ √

- regulatecontracts

√ √

- regulatewills

√ √

- regulatefamilies

√ √ √

- restitution √ √ √ √

Laws serve to

Basis of laws:


Table TR 1-4: Alternative Answer to Looking Back #8, Page 32 (continued)

-3

Law codified Napoleonic Code(1804 CE)

Magna Carta(1215 CE)

Great Binding Lawof the IroquoisConfederacy(1720 CE)

Criminal Code(1892)

Type of law Civil Civil and criminal(legal rights, suchas trial by jury)

Civil Criminal and civil

Description - a new code oflaws regulatingcivil matters wasaccessible to thepublic

- the Magna Cartawas the first stepin establishingindividual basicrights

- laws werecodified into aconstitution

- laws reflectaspects ofMosaic, Greek,Roman, French,and British law

- retribution √ √ √ √

- protectproperty

√ √ √

- protectpersons

√ √ √ √

- settledisputes

√ √ √ √

- regulatecontracts

√ √ √

- regulatewills

√ √ √

- regulatefamilies

√ √ √ √

- retribution √

Laws serve to

Basis of laws:


Society


9. Student findings and conclusions will vary butshould include some of the points outlined in TableTR 1.5 below.

10. At that time, trial by ordeal could be used to deter-mine guilt for any offence that carried a deathpenalty if the court could not render a decision.Plotting against the lord, witchcraft, and commit-ting murder are three examples. The practice wasbased on the belief that God would intervene to

protect an innocent person. Trial by hot iron isdescribed in the text.

Trial by hot water involved plunging theaccused’s arm in boiling water. If the burn healedafter being bandaged for three days, the accusedwas innocent. If blisters remained, the accusedwas guilty.

In trial by cold water, the accused was tied upand thrown into a river or lake. If the accusedfloated, the person was considered guilty. If the



-3 Adversarial System Inquisitorial System

Characteristics • has roots in “trial by combat” from earlyBritish law (common law): trial is a contestbetween two adversaries (attorneys)—theemphasis is on winning

• based on Roman law (civil law); intent isobjective inquiry

Merits

• guilt or innocence of the accused is deter-mined solely during the trial

• inquiry involves three steps: police investiga-tion, examining phase (overseen by a magis-trate), and a public trial

• police department works on behalf of the prosecution

• role of the police is to find the truth: investiga-tion is done under the supervision of a magistrate

• defendant is responsible for gathering evi-dence for his or her case

• defendant is not solely responsible for gather-ing evidence in his or her defence (policeinvestigation would also do this)

• defence and prosecution are each in charge oftheir own evidence

• the court oversees all evidence

• role of the judge is to serve as a neutral ref-eree: judge hears both sides of a case fromattorneys who present evidence that supportstheir client (minimal intervention by judge)

• role of the judge is similar to that of an adjudi-cator: judge has control over proceedings (conducts own investigations, conducts thehearings, examines the witnesses, determinesthe facts and laws pertaining to the case)

• witnesses belong to one side or the other • witnesses are the court’s witnesses

• an impartial and knowledgeable judge makes adecision based on facts presented rather thanon facts that the judge has sought out (judgecannot come to an early conclusion about acase and proceed with an investigation basedon that conclusion)

• the function of the courts is to pursue thetruth (not to decide cases based on evidencepresented by attorneys)

• emphasis on procedural fairness ensures thatindividual rights are upheld

• trials do not get caught up with obscure pointsor procedural issues (as can happen in theadversarial system with its emphasis on proce-dural fairness)

• attorneys attempt to make the best argumenton behalf of their client

• emphasis is on evidence, not on the oratoricalskills of attorneys

accused sank, the person was considered inno-cent. Many innocent people drowned before theycould be rescued.

11. Distribute and review the assessment criteria out-lined in Assessment Master 1-2: Rubric: Analysisof an Aboriginal Nation’s Laws prior to having stu-dents complete this activity. Assessment

Communicating Your Ideas

12. Prior to having students complete this activity, stressthat their timelines should highlight the significantlegal documents and contributions covered in thetext. Visual aids included with the timelines shouldbe relevant and illustrative. Additional backgroundinformation on key dates in legal history can beaccessed at www.duhaime.org/hist.htm#.

13. Prior to having students complete this activity, askthem to identify the characteristics of a good inter-view and good interview questions (e.g., questionsshould be clear in meaning; be specific to that

COPY

person’s legal position or expertise; elicit a detailedresponse rather than a “yes” or “no” answer; andcontain a reference to principles such as individualrights, equality, and fairness).

Putting It All Together

14. Distribute and review the criteria outlined inAssessment Master 1-3: Rubric: Article on LawsThat Appear to Discriminate prior to having stu-dents complete this activity. Assessment

Page 33

Law and Morality—Ethics ExerciseThis critical thinking activity challenges students tomatch their standards of moral judgment to the societalstandards used to determine right and wrong. To assiststudents in making these moral judgments in a thought-ful manner, provide them with Assessment Master 1-4: Applying Personal Ethics and review the assess-ment criteria it contains. AssessmentCOPY

COPY


Additional Case: R. v. Clark

1. It appears that Mr. Clark used his position as pre-mier to obtain free home renovations. This is abreach of trust because elected officials are not touse their positions for their own personal gain. In a democratic system, members of governmentare expected to act in the best interests of all thepeople.

2. The Rule of Law is illustrated in this case becauseit shows that not even the premier of a province isexempt from criminal charges if he or she appearsto break the law.

3. Students may either agree or disagree. Absoluteprivilege can be seen as necessary to ensure opencommunication at all times. Elected officials shouldnot be afraid of discussing unpleasant events forfear of prosecution (e.g., for slander). On the otherhand, some critics see the protection offered by

Pages 47–48 of this teacher resource

Teaching Suggestions: Each of the Additional Casesprovided on pages 47–48 of this resource could beanalyzed by a group of students (three cases withapproximately eight to ten students in a group) andpresented to the class using the following outline:

a) Relevant facts (circumstances of the case)

b) Answers to the questions

c) Moral and legal issues of the case

d) Criteria applied to reaching a judgment

Student work can be assessed using GenericAssessment Master G-3: Rubric: Case Analysis andGeneric Assessment Master G-10: Rubric: CasePresentation. AssessmentCOPY

Solutions to Additional Cases


absolute privilege as an abuse of the Rule of Law.Politicians can make allegations within the Houseof Commons (for example, a member could accusethe prime minister of being corrupt without havingto prove the charges) and be free from criminalprosecution or civil lawsuits. This “privilege” is notoffered to ordinary citizens, so it appears to vio-late the Rule of Law.

Additional Case: R. v. Grundy

1. According to the Code of Hammurabi, “If anyonesteals cattle or sheep, a pig or a goat, the thief shallpay tenfold.” Since this case involves personal prop-erty (money), the sentence would likely be to paytenfold the amount taken.

2. The Mosaic Law sets out penalties or restitutionsimilar to the Code of Hammurabi. The MosaicLaw states that “If a man steals an ox or a sheepand kills it or sells it, he shall restore five oxen foran ox and four sheep for a sheep.” Since this caseinvolves the theft of property, the individual wouldbe required to pay four or five times the valuetaken.

3. According to the Code of Hammurabi, if a thief isunable to pay restitution, that person would beput to death. Under Canadian law, if someonecould not pay all of a restitution order at one time,the courts would establish a schedule for payments.

4. Student opinions will vary. Some students mightargue that strict sentences do not deter criminalsfor reasons such as the following:

• Strict sentences would not stop someone fromcommitting an impulsive crime (e.g., a crackaddict in need of money for drugs would notthink about the consequences of his or heractions).

• The death penalty has not lowered the homi-cide rates in American states that have capitalpunishment; in fact, states without capital pun-ishment have lower murder rates than thosestates that still impose the death penalty.

Others might argue that strict sentences establishstrong consequences for criminal actions and forceindividuals to consider the implications of theiractions (e.g., some believe that if penalties were

harsher for youths under 16 years of age, the inci-dence of crime in that age group would decline.Lenient penalties cause youths to believe that theycan “get away” with committing crimes).

Additional Case: R. v. Harriott

1. If Harriott had been convicted under Hammurabi’sCode, his sentence would have been death. UnderMosaic law, theft was a capital offence, so Harriottwould have been sentenced to death by stoning.

2. Hammurabi’s Code expected judges to strictly fol-low strictly the laws set out in the Code and did notallow for errors in judgment.

3. The historical development of Canada’s trial systemdraws on a number of legal developments that haveoccurred through the centuries. The adversarialsystem and the right to face one’s accuser have along history in legal proceedings that date back tothe Code of Hammurabi. The current adversarialsystem draws its roots from trial by combat underfeudal law and from Roman law. The Romans werethe first to use legal scholars (lawyers). Lawyersnow do “mock battle” in the court, often with thestrongest side (the side with the best legal argu-ments) winning. The jury system has its roots inGreek law. Trial by jury was first used in Athensas far back as 400 BCE. The juries voted on theguilt or innocence of the accused. If the accusedwas found guilty, the jury then voted on the mostappropriate sentence. The original jury methoddid not demand a unanimous verdict as is requiredtoday, and so juries were always composed ofuneven numbers (i.e., 101, 501, or 1001 citizens)to avoid ties in voting. The use of precedents ispart of the common law system that developed inEngland. The principle of stare decisis (to stand bythe decision) is used to ensure uniformity and fair-ness across the system. The legal rights of theaccused have developed through the centuries.The basic protections offered an accused inCanada (habeas corpus, right to a trial by peers,freedom from arbitrary arrest) are guaranteed inthe Charter of Rights and Freedoms entrenched inthe Constitution Act, 1982, but the basis for theserights are found in the Magna Carta signed inRunnymede in 1215.


Survivor Island Legal Code

PurposeThe purpose of this exercise is to help students to rec-ognize that all “societies” need laws. Whenever peo-ple are required to work together, laws are needed togovern the relationships among the individuals.

Note: Students will revisit the idea of a “Survivor”scenario in the Chapter 6 opener. The focus of thatscenario is more specific (i.e., the need for criminallaws).

Resources• BLM 1-1: Survivor Island Scenario

Legal Inquiry

• Assessment Master 1-1: Rubric: Survivor IslandLegal Code Assessment

• Generic Assessment Master G-1: Rubric: GroupWork Assessment

Teaching Strategiesa) Divide the class into groups of five. The members

of each group will be survivors of a plane crashwho need to develop a code of “laws” to survive.

b) Distribute BLM 1-1: Survivor Island Scenario andreview the scenario described and the task thatmust be completed.

c) Have students present and explain their legal codeto the class and then hand it in for evaluation.

Law as a Reflection of Society

Purpose This think-pair-share activity is designed to enhancestudents’ thinking, inquiry, and communication skills.An examination of legal codes can reveal a great deal

Activity 2

COPY

COPY

COPY

Activity 1 about the society that wrote the laws. This exercisewill provide students with an opportunity to examine anancient code and modern Canadian law and then ana-lyze what those laws tell us about each society.

Resources• Library Resource Centre

• Internet

• BLM 1-2: Laws from the Code of HammurabiLegal Inquiry

• Canada’s Criminal Code

Teaching Strategiesa) Have students work with a partner to examine the

laws provided in BLM 1-2: Laws from the Codeof Hammurabi. Instruct them to briefly outlinewhat these laws reveal about Babylonian society.For example, the law in Hammurabi’s Code deal-ing with the flooding of the fields indicates thatBabylon was an agricultural society. The referencesto slavery make it clear that it was also a class-based society that permitted slavery. In addition,the idea of a “purchase price” for brides indicatesthat women were not considered equals to men.The society was also fairly complex in that wageswere established for various classes of workers.

b) Next, have the student pairs locate and examineCanada’s Criminal Code to see what those lawsreveal about Canadian society. For example, lawsabout hijacking aircraft did not exist until recentlybecause there was no widespread air travel untilthe post-war era. Similarly, laws dealing with com-puter crimes have only recently been developedas the Internet is increasingly used in business andeveryday life.

c) Invite students to share and compare their find-ings with the class. Students should notice thatexamining the laws of a society can reveal a greatdeal about the economic, social, and political struc-ture of that society.

COPY

Extension Activities


Research Report

Purpose This exercise is designed to develop students’ think-ing, inquiry, and communication skills as they preparea two-page written report on a selected topic in legalhistory. At this introductory stage of the course, thisassignment can be used as a diagnostic tool to assessstudent writing ability.

Resources• Generic Assessment Master G-2: Rubric:

Research Report Assessment

• Library Resource Centre

Teaching Strategiesa) Book the Library Resource Centre prior to assign-

ing this activity and work with the librarian to pre-pare a list of books available on ancient law, history,and philosophy. A list of Internet sites suitable forthis project should also be compiled (this list mayinclude school licensed sites, such as e-library, orother paid-access sites).

b) Instruct students to prepare a two-page researchreport on a selected topic in legal history. A list ofpossible topics is provided below; however, youmay wish to add, delete, or alter this list depend-ing on the needs of the class.

Topics:

Legal Philosophy: Confucius, Socrates, Plato,Aristotle, Cicero, St. Augustine, St. ThomasAquinas, Thomas Hobbes, John Locke, JeremyBentham, John Austin, John Stuart Mill, H.L. Hart

Legal History: Urukagina’s Code, Ur Nammu’s Code,Solon’s Law, The Twelve Tablets, Justinian’s Code,feudalism, common law, the Magna Carta, theNapoleonic Code, The Great Binding Law, Lawsof the Cherokee Nation

c) Distribute and review the assessment criteria con-tained in Generic Assessment Master G-2: Rubric:Research Report prior to having students completethis activity.

COPY

Activity 3Continuity in Law

Purpose This activity is designed to help students realize thatcertain legal principles have been present in legal codesfrom the earliest times.

Resources• BLM 1-5: Continuity in Law Legal Inquiry

Teaching Strategiesa) Have students read the background material on

the historical roots of law in the text (pages 17 to30).

b) Distribute copies of BLM 1-5: Continuity in Lawand have students complete the master.

c) Discuss the answers using Table TR 1.6 on page 45.

Aboriginal Law

Purpose This activity is designed to develop students’ thinking,inquiry, and communication skills as they research andprepare a bulletin board display on an Aboriginalnation’s legal system.

Resources • Library Resource Centre

• Generic Assessment Master G-5: Rubric: VisualDisplay Assessment

Teaching Strategiesa) Divide the class into groups of four to research

and prepare a bulletin board display on an assignedAboriginal group and its legal system. Aboriginalnations could include the Mi’kmaq, Maliseet,Iroquois Confederacy, Cherokee, Blackfoot, Blood,Piegan, Stoney, Haida, and Nisga’a nations.

b) Explain to the groups that their displays shouldinclude a) a map outlining where the Aboriginal nationlived; b) an outline of the structure of its society (eco-nomic, political, and social); c) a description of its

COPY

Activity 5

COPY

Activity 4


legal system (types of laws, enforcement proce-dures, administration of justice); d) photos or othervisual aids to explain information presented; and e)a title for the display.

c) The completed bulletin board displays can be eval-uated using Generic Assessment Master G-5:Rubric: Visual Display.

Table TR 1.6: Answer Key to BLM 1-5: Continuity in Law

-3Law Legal Code Modern Canadian LawEquivalent

Legal Principle

“Thou shalt not kill.” Mosaic Law Criminal Code laws againstmurder and manslaughter

Protection of people; rightto life

“If anyone is committing arobbery and is caught, thenhe shall be put to death.”

Code of Hammurabi Criminal Code laws againsttheft

Protection of property;enjoyment of property

“Thou shalt not raise a falsereport, or put thine handwith the wicked to be anunrighteous witness.”

Mosaic Law Criminal Code makes it anoffence to commit perjury(“false witness”); alsoprohibition against makingfalse reports (obstruction ofjustice).

Law is based on the idea ofjustice and truth. Truthcannot be discovered withperjury. This also indicatesthe moral aspect ofCanada’s legal system, suchas affirming or swearing totell the truth at trial.

“The husband may demanddivorce for cause of adulteryon the part of his wife.”“The wife may demanddivorce for cause of adulteryon the part of herhusband….”

Napoleonic Code The Divorce Act listsmarriage breakdown ascause for divorce andadultery as evidence ofmarriage breakdown.

The granting of a divorce foradultery can be traced backto the ancient laws. Theimportance of children(especially male heirs) haslong been supported in law.

“No freeman shall be taken,imprisoned, … or in anyother way destroyed …except by the lawfuljudgment of his peers, or bythe law of the land. To noone will we sell, to none willwe deny or delay, right orjustice.”

Magna Carta The Canadian Charter ofRights and Freedomsguarantees the legal rightsof all Canadians. Theseinclude the right to trial byjury, freedom from arbitraryarrest or detention, andfreedom from unreasonablesearch.

The principle of the Rule ofLaw (that is, that laws applyequally to all) is afundamental principle ofCanada’s justice system.This was an importantdevelopment in the signingof the Magna Carta and wasnot evident in the ancientlegal codes.

“If anyone opens hisditches to water his crops,but is careless, and thewater floods the fields ofhis neighbour, then he shallpay for the loss.

Code of Hammurabi Canadian tort law makesindividuals responsible forcausing harm or damage tothe property of another.

The principle of legalliability for torts (causingharm to others) has beenpresent from the earliestlegal codes.

“If anyone hire an ox or anass, and a lion kill it in thefield, the loss is upon itsowner.”

Code of Hammurabi Canadian contract law setsout rules regarding liabilityfor loss for bailments.

The principle expressedhere is that an individual isnot liable for somethingthat is beyond his or hercontrol and was not a resultof carelessness.


Additional Resources

BooksDepending on the focus taken, there are a number ofexcellent books on ancient legal codes and early civi-lizations. For example:

Copleston, Frederick. A History of Philosophy. 9 vols.New York: Doubleday, 1993–94.

This nine-volume set provides an excellent overviewof the history of philosophy from the Ancient Greeks toKant. This is an excellent resource for teachers andstudents. It provides the teacher with a solid back-ground on the philosophies that influenced modernlaw. Students will find this set a useful resource forresearch papers.

Civilization of the Ancient Mediterranean: Greece andRome. 3 vols. Edited by Michael Grant and RachelKitzinger. New York: Charles Scribner’s Sons, 1988.

This encyclopedia includes sections on Greek andRoman law. It contains a wide variety of information onthe social, economic, and political aspects of Greekand Roman society. Articles on topics such as marriageare followed by a brief bibliography on the topic.

de Hamel, Christopher. The Book: A History of TheBible. New York: Phaidon Press, 2001.

Looks at the history of the printed Bible. Includesan explanation and examination of the various trans-lations of the Bible.

The Encyclopedia of Ancient Civilizations of the NearEast and Mediterranean. Edited by Haywood, John.New York: M.E. Sharpe, 1997.

Offers an excellent overview of the ancient societiesof the Near East and Mediterranean. The articles areeasy to read and at an appropriate level for students.

Encyclopedia of North American Indians. Edited byFrederick E. Hoxie. New York: Houghton Mifflin, 1996.

Includes information on the social, economic, andpolitical aspects of the Aboriginal societies of NorthAmerica. Short articles on various subjects and per-sonalities are followed by a partial bibliography on thetopic.

Iroquois Book of Rites. Edited by Horatio Hale.Philadelphia: D.G. Brinton, 1883. Reprint, Oshweken,Ont.: Iroqrafts, 1989.

A very important historical source of Iroquois lawand rituals (originally published in 1883). Studentsmay have a difficult time with this book unless theyare good readers, but teachers will find it a good basicresource.

The Oxford Illustrated History of Western Philosophy.Edited by Anthony Kenny. New York: Oxford UniversityPress, 2001.

Features clear, concise articles on the philosophersand their philosophies. Students will be able to easilyunderstand the articles. Teachers will find it a handysupplement for background information on philo-sophical topics.

MagazinesLawNow (published six times a year by the LegalStudies Program, Faculty of Extension, at the Universityof Alberta) is an excellent source of articles on allaspects of law. It features commentary and news sto-ries covering various aspects of legal history, jurispru-dence, and current case law. Sample articles and orderinformation are available at www.extension.ualberta.ca/lawnow.

Other Resources• Newspapers are a very useful source of information

for law teachers. Current cases and legal historycan be found in major daily newspapers acrossCanada. Book reviews are also a good way to findupdated material by legal scholars.

• On-line sources of legal history are also useful.The following Web sites are good sources for thevarious topics covered in this chapter:

www.abu.nb.ca/ecm/topic/arch2htm provides a goodoverview of the Code of Hammurabi and some com-parisons with Mosaic Law. It also has links to otherancient history sites.

www.fordham.edu/halsall/ancient/asbook.html providesa collection of links to information on ancient laws,including a detailed discussion of the Code ofHammurabi and a collection of contracts fromMesopotamia.

www.commonlaw.com provides legal history andphilosophy related to ancient and modern law. Thissite includes links to a variety of legal codes, suchas the Laws of the Cherokee Nation.

R. v. Clark (2002), B.C.S.C.

Glen Clark, the former premier of British Columbia,was charged with two counts of breach of trust forallegedly accepting free renovations from friend andneighbour Dimitrios Pilarinos. The renovations weresupposedly given in exchange for helping advancePilarinos’s casino licence application to the govern-ment of British Columbia. Clark is supposed to haveinfluenced Michael Farnworth, the minister respon-sible for gaming in B.C., to approve Pilarinos’s casinoapplication and failed to inform Farnworth of the ren-ovations that Pilarinos had done. Clark is said to havereceived about $10 000 worth of free labour and mate-rials from Pilarinos in the summer of 1998. Duringthe time that Pilarinos built an addition to Clark’s homeand a deck for his summer cabin, Pilarinos had a casinoapplication under government consideration.

1. A “breach of trust” means that a person has abuseda position of authority in order to gain some ben-efit for himself or herself. How does this conceptapply to this case?

2. How does this case illustrate the principle of theRule of Law?

3. Members of Parliament cannot be prosecuted forslander for statements made in the House ofCommons. This freedom is called “absolute priv-ilege” and only applies to statements made in theHouse of Commons, not to anything said outsideof the House. Is this privilege a violation of theRule of Law? Why or why not?

R. v. Grundy (2002), Alta. Q.B.

Robert Grundy was employed by Yorkton SecuritiesInc. from 1986 to 2000. From October 1997 toSeptember 1998, Grundy, acting as a registered rep-resentative, made unauthorized discretionary trades inseveral client accounts. These unauthorized tradesresulted in shortfalls of cash and securities in the

accounts. To cover the losses, Grundy misappropri-ated cash and securities from unrelated client accountsand directed stolen cash and securities to accounts offive of his friends, who remitted cash back to him. Thecompany was required to make cash settlements andmake corrections to the affected accounts, thus los-ing $217 749.85.

Grundy was charged with fraud over $5000 in June2000 and pleaded guilty to the charge in November ofthat year. Grundy received a sentence of two years lessa day with the following conditions: conditions of pro-bation—240 hours’ community service within the first18 months, taking counselling and treatment for stressand depression; residing only where approved by hissupervisor; and remaining in his residence or on itsgrounds between the hours of 8:00 p.m. and 6:00 a.m.,seven days per week. He was allowed to go directlyfrom his home to his work and was ordered to pay resti-tution of $218 700 to Yorktown.

The Crown appealed the sentence, believing thatit was too light and failed to meet the need to deterothers from similar acts. The appeal was allowed andGrundy’s sentence was changed so that he was con-fined to his residence 24 hours a day and could onlyleave to complete the 240 hours of community ser-vice. In essence, he was under 24-hour house arrest.

1. This case involved fraud, which is similar to theft.According to the Code of Hammurabi, what wouldthe penalty be in such a case?

2. What is the penalty for theft of property underMosaic Law?

3. According to the Code of Hammurabi, what wouldhappen to a thief who could not pay? What wouldhappen if someone in Canada could not pay all ofa restitution order at one time?

4. The Code of Hammurabi has very strict sentencesthat were meant to deter people from committingcrimes. Do you think that strict sentences are agood way to deter crime? Why or why not?

Additional Cases


R. v. Harriott (2002), Ont. C.A.

Allan Harriott was convicted of six counts of criminaloffences as a result of a home invasion and robbery atthe apartment of Ricardo and Maria Iraheta. Harriottand a young offender forced their way into the Iraheta’sapartment and demanded money, drugs, and jewellery.Mrs. Iraheta told the intruders that she and her hus-band were no longer in the jewellery business, so therewas not much to steal. The intruders did manage toget a few pieces of jewellery and between $1300 and$1500 in cash. During the invasion, Harriott threat-ened to shoot Mrs. Iraheta if she did not get the jew-ellery, and he kicked her as he and the young offenderwere leaving.

At trial, Harriott was convicted of two counts ofrobbery, two counts of forcible confinement, one countof possession of a weapon for the purpose of commit-ting an indictable offence, and one count of wearing adisguise with intent to commit an indictable offence.He was sentenced to four years’ imprisonment. TheCourt of Appeal overturned the conviction and ordereda new trial. Harriott was again convicted of all sixcounts at the second trial, and this time the sentence

imposed was eight years’ imprisonment. Harriott againappealed to the Ontario Court of Appeal, but the con-viction and sentence were upheld.

1. Examine the Code of Hammurabi on page 18 ofthe text. What would Harriott’s sentence have beenif he had been convicted under Hammurabi’sCode? Is there a similar law in the Mosaic Law?

2. The appeal process is commonly accepted in ourlegal system in order to ensure that there were noerrors in the judgment. Why did Hammurabi’sCode have such a strict prohibition against judgeschanging their sentences?

3. This case shows the many legal changes that havetaken place through the years. The trial was con-ducted in court and followed the adversarial systemof justice. Similarly, the decision of guilt or inno-cence was determined by a jury. The judge usedprecedents to determine the appropriate sentence,and the rights of the accused were protected underthe legal process. Identify the historical roots ofeach of these aspects of Canada’s legal system.

Additional Cases

48 © Pearson Education Canada 2003. LAW IN ACTION. The right to reproduce this page is restricted to the purchasing school.

BLM 1-1

SURVIVOR ISLAND SCENARIO

Name: Date:

The SettingYou and the four members of your group are the only survivors of a plane crash. Your location is a remote islandin the Caribbean. The island is relatively small and is uninhabited. The only items you were able to rescue fromthe plane before it was engulfed in flames were as follows: 2 cases of water (70 x 500-mL bottles), a first-aid kit,2 blankets, a box of matches, 5 chocolate bars, 24 snack-size bags of peanuts, and some dishes (2 plates, 3 cups,a small stainless steel pot, 4 knives, and 2 forks).

Your TaskAs a group, you must decide how you will survive until you are rescued. The rescue could take several weeks. Youmust decide upon rules dealing with the rationing of food and water, safety for the group, how to make contact withthe rescuers, and any other issues that you feel need to be looked after. You must, therefore, draft a “SurvivorIsland Legal Code” that will be used to govern your “society” until you are rescued (that is, if you are rescued).

You will need to consider the following questions:

• Who will be in charge? How will the leader be chosen?

• What are the actions that the group will take to survive? What will be the order of completing these tasks?

• How will the rules be enforced?

• What will happen if someone violates one of the rules? Who will determine any punishment?

Once you have completed your legal code, you are to present and explain it to the class. Following your presen-tation, you will submit your code for evaluation.

EvaluationYour evaluation will be based on the legal code your group creates as well as on your performance as part of a group(individual and group assessment).



BLM 1-2

LAWS FROM THE CODE OF HAMMURABI

Name: Date:

With a partner, examine the laws from the Code of Hammurabi found in your text on pages 17–18 and on this mas-ter. Then, discuss and outline what these laws tell us about Babylonian society.

16. If anyone receives into his house a runaway male or female slave of the court, orof a freedman, and does not bring it out at the public proclamation of the majordomus, the master of the house shall be put to death.

53. If anyone is too lazy to keep his dam in proper condition, and does not so keep it;if then the dam breaks and all the fields are flooded, then shall he in whose damthe break occurred be sold for money, and the money shall replace the corn whichhe has caused to be ruined.

102. If a merchant entrusts money to an agent (broker) for some investment, and thebroker suffers a loss in the place to which he goes, he shall make good the cap-ital to the merchant.

117. If anyone fails to meet a claim for debt, and sell himself, his wife, his son, anddaughter for money or give them away to forced labour: they shall work for threeyears in the house of the man who bought them, or the proprietor, and in thefourth year they shall be set free.

128. If a man takes a woman to wife, but has no intercourse with her, this woman is nowife to him.

163. If a man marries a woman and she bear him no sons; if then this woman dies, ifthe “purchase price” which he had paid into the house of his father-in-law isrepaid to him, her husband shall have no claim upon the dowry of this woman; itbelongs to her father’s house.

209. If a man strikes a freeborn woman so that she loses her unborn child, he shall payten shekels for her loss.

210. If the woman dies, his daughter shall be put to death.

215. If a physician makes a large incision with an operating knife and cures it, or if heopens a tumor (over the eye) with an operating knife, and saves the eye, he shallreceive ten shekels in money.

216. If the patient is a freed man, he receives five shekels.

217. If he is the slave of someone, his owner shall give the physician two shekels.

246. If a man hires an ox, and he break its leg or cuts the ligament of its neck, heshall compensate the owner with ox for ox.

274. If anyone hires a skilled artisan, he shall pay as wages of the … five gerahs, aswages of the potter five gerahs, of a tailor five gerahs, … of a rope maker four ger-ahs….

BLM 1-3

COMPARING TWO DEMOCRACIES

Name: Date:

Use the following table to compare democracy in ancient Greece with democracy today. Then summarize your find-ings in the space below the chart.


-3 Early Greece Today

Groups excluded

Rights involved

Size of jury

Decisions made by jury

Conclusions:


BLM 1-4

HISTORICAL ROOTS OF LAW

Name: Date:

Use the “Historical Roots of Law” section of your text (pages 17–23) and other resources to identify the similar-ities and differences among the laws in the societies listed in the table below.


Society


Law codified

Type of law

Description

- protectproperty

- protectpersons

- settledisputes


Laws serve to

Basis of laws(retributionorrestitution)

(continued on page 53)


-3

Law codified

Type of law

Description

- protectproperty

- protectpersons

- settledisputes


Laws serve to

Basis of laws(retributionorrestitution)


Society


BLM 1-4 (continued)


BLM 1-5

CONTINUITY IN LAW

Name: Date:

Carefully complete the table below by filling in the appropriate spaces. For the modern Canadian law equiva-lent, simply state the general law rather than an exact reference to the Criminal Code or other statutes.

-3Law Legal Code Modern Canadian LawEquivalent

Legal Principle

“Thou shalt not kill.” Mosaic Law Criminal Code laws againstmurder and manslaughter

Protection of people; rightto life

“If anyone is committing arobbery and is caught, thenhe shall be put to death.”

“Thou shalt not raise a falsereport, or put thine handwith the wicked to be anunrighteous witness.”

“The husband may demanddivorce for cause of adulteryon the part of his wife.”“The wife may demanddivorce for cause of adulteryon the part of herhusband...”

“No freeman shall be taken,imprisoned, … or in anyother way destroyed ...except by the lawfuljudgment of his peers, or bythe law of the land. To noone will we sell, to none willwe deny or delay, right orjustice.”

Magna Carta

“If anyone opens hisditches to water his crops,but is careless, and thewater floods the fields ofhis neighbour, then he shallpay for the loss.

“If anyone hire an ox or anass, and a lion kill it in thefield, the loss is upon itsowner.”

Code of Hammurabi

Documents

Our Legal Heritage - Pearson Global Schoolsassets.pearsonglobalschools.com/file-vault/ca_school/catalog/media/... · Our Legal Heritage 1 ... The Code of Hammurabi Mosaic Law Greek