Evolution of Criminal Law

Updated on March 21, 2016
Colleen Swan profile image

Colleen is an attorney in the United States, and a solicitor on the roll in England and Wales

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Roots of English law

The earliest recording of laws reflects understanding that humankind, while at the highest end of the animal spectrum, remains an inevitable part of its kingdom. As such, human nature requires legal limitations upon its unbridled behavior. Without legal sanctions, those same urges which fuel the rampages of the animal sphere would dominate human society. Indeed, our modern phrase “the law of the jungle” indicates this reality.

The first known codes of law were created by the Sumerians, Babylonians, Greeks, Romans, and other ancient civilizations. In addition, whatever one’s religious beliefs, the Ten Commandments said to have been given to Moses, according to the Old Testament of the Christian Bible, contain many central principles accepted by our current society. Laws against stealing and killing still stand, while the committing of adultery is understood to be a major factor in countless crimes. One of the earliest grounds for voluntary manslaughter, a murder alleged to have been committed due to an eruption of passion, was a man’s having found his wife in an intimate situation with another man.

Leges Henrici

Catapulting several millennia, we will shift to that pivotal year, 1066. Prior to the Norman Conquest, Saxons had established laws, and were regularly adding to their number via a system of circuit judges. Still, though William did not, by any means, conquer a lawless realm, he largely centralized all laws within The Crown’s purview. In terms of property law, all land became the property of The Crown, and still is, ultimately, to this day. This means that if someone dies without leaving a will, or any other indication of wishes as to disposal of property, and all avenues of search for relatives have proved futile, ownership will revert to The Crown.

William’s self-proclaimed ownership created groundwork for his son, King Henry I, to broaden his control of its laws. In 1116, Henry I set forth “the Leges Henrici, thereby designating himself “the law giver”, a title which, while containing a Latinate version of his name, was doubtless meant to be inherited by his successors. According to Henry’s edict, offenses against the king’s peace included arson, robbery, murder, false coinage and crimes of violence. (Echoes of these laws are reflected today when someone is arrested and/or prosecuted for having disturbed the peace.)

The court system

Criminal laws were first set forth as a solution to the previous self-help methods of avenging an injury. Individual decisions as to the degree and method of retaliation resulted in such chaos that governmental authorities recognized the need to intervene. This mediation succeeded in that a party who felt injured knew that the government would take some definite action on his behalf. Initially, criminal and civil laws were united. Later, during the reign of Henry II, due to his conflict with his archbishop Thomas Becket, the court system divided into civil and criminal branches.

Following some turmoil in dividing the two, it became feasible for a defendant to be sued both by society represented by The Crown, and an individual able to bring a legitimate claim due to an injury sustained via the same act, within legal boundaries. Originally, there were few crimes. Murder, by way of example, was simply murder. Even such a justification as self-defense would not guarantee a more lenient sentence. Though a plaintiff with a strong enough claim might apply and obtain a royal pardon, its granting remained a matter of chance, received by the fortunate. (This process has come down to us today in that, at times, a governing body can commute or forbid an execution decided upon by a jury.)

Source

Mens rea - Actus reus

During its early stages, criminal law was concerned with only the act in question premised on the theory that “the thought of man shall not be tried”. In time, however, perhaps due to a growing sense of community and the influence of the church, this perspective altered. The understanding that a crime involved a combination of intent and action “mens rea” and “actus reus” became accepted. The depth and degree of this intent would determine the culpability, and thereby the appropriate sentence. Thus, by the end of the 15th century, the crime of homicide was divided into murder and manslaughter. The crucial difference lay in the intent, deemed “malice aforethought” in judgments of homicide. This state of mind was deduced by the judiciary from the overall framework of surrounding facts and circumstances. The intent called “mens rea”, meaning the guilty mind, coupled with its resulting act, “actus reus”, comprised the commission of a crime.

Crime of ill wishing

To some extent a thought separate from a deed could be viewed as a criminal offense. During the reign of King Henry VIII, “ill wishing” was still considered a crime. Indeed, even to speak of the king’s demise, no matter how many years in the future, was viewed as high treason. Even in fairly recent times, certain mental disorders evoke a belief in their sufferers that their wishes caused or contributed to the death of another.

Sigmund Freud was instrumental in helping patients understand the difference between thought and action, aiding them to forgive themselves for any such hopes if, during the natural course of events, they came to fruition. This proved especially true with a patient who; forced to put her hopes of marriage on hold while she cared for her ailing father, found herself incapacitated by guilt after his passing. Still, she had not, in the slightest way, quickened his demise. Eventually, Freud’s analysis allowed her to enter, guilt-free, into her long-postponed marriage.

The conduit

Conversely, a father shows his four-year-old son how to use "a toy gun to surprise Mom when she walks through the door by pretending to shoot at her forehead", and then gives the child a real loaded gun. The Father will be found to bear the full burden of guilt for consequent death or grievous bodily harm, either of which will be adjudged as justifying a charge of first degree murder. The same will prove true if a doctor deputes a nurse to inject a drug into the vein of a patient. If this doctor can be shown to have had knowledge, based on years of treating this patient, that he has a life-threatening allergy to this particular medication, he, and not the nurse, will be found guilty of causing the patient’s demise. As in the above hypothetical of the child, the nurse has acted with every reason to have trusted the doctor’s instructions.

The Mayflower

The first settlers sailed from Plymouth to America on the Mayflower in 1620
The first settlers sailed from Plymouth to America on the Mayflower in 1620 | Source

Conclusion

Clearly, there is a great deal more which could be written regarding the development of the British legal system. Indeed, many scholarly tomes have been dedicated to its beginnings and growth. We hope this overview provides a fruitful encapsulation of its progress and impact upon modern thought.

Eventually, British settlers would sail to “the new world” in order to colonize uncharted land in the name of the then reigning monarch. Thus, much of early American law was drawn from those known to the settlers. Many of these laws are still at the core of the American system, joined with the United States’ Constitution.

End

Questions & Answers

    © 2013 Colleen Swan

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      • Colleen Swan profile imageAUTHOR

        Colleen Swan 

        3 years ago from County Durham

        Hi Kevin, Thank you for your comment and congrats. I always find it fascinating to learn about laws and beliefs from the past.

      • Kevin Ramirez profile image

        Kevin Ramirez 

        3 years ago

        Congrats on hub of the day. Totally forgot that wishing someone ill was a thing.

      • Colleen Swan profile imageAUTHOR

        Colleen Swan 

        4 years ago from County Durham

        Thank you Charles for looking in. It is interesting how the legal system evolves. In a way it is an ongoing story being written by its characters.

      • profile image

        Charles Norton 

        4 years ago

        This article has a lot of interesting information. I like to learn about history and why we have certain systems set up and where the ideas came from. The court system for criminal laws is one of the things that intrigues me the most. Though with too much government intervention things can get crazy, I am glad they help step in to control the chaos of criminal law situations. http://www.franklinfamilylaw.com/legal-services/

      • Colleen Swan profile imageAUTHOR

        Colleen Swan 

        5 years ago from County Durham

        Hi Everyone

        Thank you so much for your wonderful comments which have inspired me. I was apprehensive about writing for hubpages, but it has proved uplifting. I have found the guidance within the editing of assistance, mainly because I tend to run amok once I get into action. I am feeling motivated and ready to write more, with a little less abandon. Kind regards Colleen

      • cynthtggt profile image

        Cynthia Taggart 

        5 years ago from New York, NY

        Congratulations on your Hub of the Day. Excellently presented, well written and so interesting. I am amazed how short this piece is yet I feel like it contains as much as a lengthy piece of writing on the subject, which is because it is so well written. And an important hub too that deserves this accolade. Voted up.

      • VictoriaSheffield profile image

        Author Victoria Sheffield 

        5 years ago from Georgia

        This is a great piece of history!!

      • profile image

        Howard Schneider 

        5 years ago from Parsippany, New Jersey

        Very interesting and informative Hub, Colleen. The development of our American legal system is largely informed by this history.

      • Buildreps profile image

        Buildreps 

        5 years ago from Europe

        Congratulations with your HotD. Very interesting article! I read it with pleasure. You really catapulted us into the post Dark Ages. I missed a little bit the connection between the Ten Commandments and the awakening of the English Law. It would be very interesting.

      • cfin profile image

        cfin 

        5 years ago from The World we live in

        You should have an article on actus reus and mens rea

      • rose-the planner profile image

        rose-the planner 

        5 years ago from Toronto, Ontario-Canada

        Congratulations on HOTD, well deserved! This is a very insightful look at the evolution of Criminal Law! Thank you for sharing. -Rose

      • thumbi7 profile image

        JR Krishna 

        5 years ago from India

        Congrats on hub of the day.

        Criminology and law are always fascinating. This hub is educational to me and it is explained in simple language.

      • dahoglund profile image

        Don A. Hoglund 

        5 years ago from Wisconsin Rapids

        Very well written overview of how English Law evolved. A fascinating subject. Congratulations on the Hub of the Day Award.

      • DreamerMeg profile image

        DreamerMeg 

        5 years ago from Northern Ireland

        Very interesting thanks. I have heard of laws being defined as "the crystallised prejudices of the people" but don't know who said that.

      • profile image

        Benjamin Chege 

        5 years ago

        Hi Colleen Swan. Very informative hub. Voted up, useful and awesome. I did not have an idea that Greeks were also involved in creating the first known codes of law. It is like they started everything, including Philosophy, Science and other disciplines. Thanks for the information.

      • PurvisBobbi44 profile image

        PurvisBobbi44 

        5 years ago from Florida

        Hi,

        This was very fascinating, detailed and refreshing. I enjoyed hearing from someone who has the knowledge and experience of the law and takes the time to share. Have a great new week.

        Bobbi Purvis

      • FlourishAnyway profile image

        FlourishAnyway 

        5 years ago from USA

        Interesting discussion of the evolution of laws. Like MsDora, I especially enjoyed the presentation of mens rea. I could imagine an entire hub dedicated to that that topic with fascinating examples of cases in which people were let off because they didn't mean to do it.

      • MsDora profile image

        Dora Weithers 

        5 years ago from The Caribbean

        Voted Up! Very interesting how our laws evolved. They have become more complicated, which I assume is for our good. Especially interesting is the Mens rea, "“the thought of man shall not be tried” and the crime of ill wishing. I can only imagine the debates.

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