Legal History Essay Example | Topics and Well Written Essays - 2000 words

Legal History - Essay Example The law is no longer a fabric of clearly-defined spectrums, but is rather a patchwork quilt of various shades of gray. This framework is important in that it stimulates self-interrogation. It does away with the all-too-convenient givens of a legal system - that there is but one set of "correct" rules and that legal decisions are but logical outcomes of tested principles that are empirically-replicable. This is perhaps the best frame to undertake as we wade through the murky waters of legal history - navigating through Roman and anglo-saxon law; and moving towards and studying the various subtopics such as criminal law and justice, tort and restitution law, and gender law. Roman law is the legal system of ancient Rome, covering more than one thousand years from the twelve tables to the Corpus Juris Civilis. Animated in large part by the great thinkers of its time, this provides ready example that the law is more a patchwork quilt of the evolving mindsets of the day, than a steady and solid rock. For example, the great thinker Cicero maintains that there was no distinction between that which was morally good and what was useful to man. To quote from Cicero, "Virtue is a habit of the mind, consistent with nature and moderation and reason." [Rhetorical Invention (bk. II, sc. LIII)] Much of this has been influenced by Platonic philosophy which is hinged on moral virtue as practiced by just rulers. As such, the concept of government and duty has underlain much of ancient law and has aided the people of the time in charting their destiny. The interface between law and literature and the arts provides insights into how legal history was shaped during the past. Much of the law was influenced by the cultural milieu of the time. To quote from Green (1929): It is generally understood that the plays of Plautus, based on Greek models and avowedly translations of Greek comedies, have been so adapted for presentation to a Roman audience that they present a mixture of Greek and Roman elements. But the extent to which materials of each kind are used has been the subject of considerable discussion rather wide disagreement. Especially is this true as to the legal questions involved in the questions presented. The law of restitution Another field of law which would demonstrate how the law indeed is borne of subjective experiences and interpretations, rather than fixed principles is the law on restitution. The road towards accepting free acceptance as an iron-clad principle in the law of restitution may appear tantalizing to some, but as many legal scholars have pointed out, it is a road fraught with many dangers. Indeed, even the larger fulcrum on which it rests - the broad concept of unjust enrichment - has been the source of vociferous disagreement. So murky are the waters that judicial acceptance of the concept through the years has been less than overwhelming. The farthest it has reached, according to Hedley (1995) is this: a considerable number of judges now recognize that there is an important subject called restitution and that in general terms, it concerns the removal of benefits that would otherwise unjustly enrich the defendant. It is not difficult to imagine that jurisprudence surrounding the much more limited principle of free acceptance is even narrower. To aspire for universality or even, less