Historical Development of the Criminal Law

As the textbook author states (Siegel 2009), we can trace modern-day law back to 2000 B.C. to the Babylonian Code of Hammurabi. In fact, the term lex talionis, which means an eye for an eye, is an Hammaurabi concept.  That concept today can be found in the concept of retributive punishment or ensuring that the punishment fits the crime.  The Mosaic Code of the Israelites (1200 B.C.) is another example of how earlier codes among groups of people have influenced law in today’s society.  Within the Ten Commandments, after all, is found a list of prohibitions against such behavior as stealing and violent acts.  During the Byzantine Empire, emperor Justinian created Corpus Juris Civilis, a body of codes that were enacted to uphold order within the empire and provided a foundation for future civil and criminal legal classifications.  In fact, French Emperor Napoleon I used those codes to establish the civil codes (1769-1821) of France.  After the fall of the  Roman Empire and through the Dark Ages (500-1000 A.D.), the earlier legal codes were lost and emerged again in Germanic societies.  Under the concept of wergild (a term that means worth), e.g. “what is this crime worth,” the accused person underwent one of two methods for determining guilt.  One, the individual was brought before a 12-14 panel of individuals who would speak on behalf of the defendant and during which time the defendant would swear an oath of innocence.  Two, an ordeal could take place through which the accused person could prove his/her innocence. This entailed various torture techniques based on the concept that Divine forces would ensure that an innocent person would not be harmed.  Punishments were harsh and included public flogging, branding, beheading, and burning.

Thinking about these early approaches to developing legal codes and punishment techniques, it is not difficult to see how they influenced the modern day legal system.  Although early Americans did engage in similar harsh punishment techniques, those techniques were replaced by what is considered to be a more humane approach to punishment.