The popularity of the concept slightly waned after the 1997 Asian financial crisis when at the time Asia lacked a coherent regional institutional mechanism to deal with such crises. A few months after the crisis, The ASEAN Plus Three (APT) was conceived in December 1997 with the convening of a summit among the leaders of ASEAN, China, Japan and South Korea.
The APT Summit was institutionalised in 1999 when its leaders issued a
joint statement at the 3rd APT Summit. The joint statement determined
the main objectives, principles and further directions of APT countries'
and resolved to strengthen and deepen cooperation at various levels and
in various areas, particularly in economic, social, political and other
fields.
Definition
Various definitions of Asian values have been put forth. Generally, the phrase alludes to influences by Confucianism – in particular, filial piety or loyalty towards the family, corporation, and nation; the forgoing of personal freedom
for the sake of society's stability and prosperity; the pursuit of
academic and technological excellence; and, a strong work ethic together
with thrift.
Proponents of "Asian values" claim these values are more appropriate for the region than Western democracy with its emphasis on individual freedoms.
"Asian values" were codified and promoted in the Bangkok Declaration of 1993,
which re-emphasized the principles of sovereignty, self-determination,
and non-interference in civil and political rights. They included:
Proponents in Malaysia claim the concept helped reconcile Islam, Confucianism and Hinduism
and was unifying because it was different to the philosophy of the
West, though the liberal nature of Hinduism evidently contradicts it. Lee maintained that more than economics or politics, a nation's culture would determine its fate.
In Japan, a concept of "Ideals of the East" was embraced in some nationalist circles because it challenged the West and also because it offered the possibility of Japanese leadership in a new Asia.
Some attribute the economic success of East and Southeast Asian nations in the 1960s to the 1980s to "Asian values"; a third-way, Asian political model that was an alternative to totalitarianism and liberal democracy.
"Asian values" was also evident in the planning of the return of Hong Kong to China in 1997.
The popularity of the concept persisted. Some speculate it might
have contributed to the religious, social, cultural and economic changes
occurring in Asia in that time; for example, the Asian financial crisis and the collapse of the Suharto regime in Indonesia may have been successfully counteracted by liberal democracy.
The absence of India, with its towering civilizational sweep over most
of Asia, also made sure it didn't gain currency, since the concept
lacked features of Indic culture solidly imprinted on most of Asia.
In 2006, Jusuf Kalla,
the vice-president of Indonesia, linked Asian values with the proposed
East Asian Free Trade Agreement and the East Asian Community arising
from the East Asia Summit. He partly defended Asian values by placing emphasis on co-operation over competition.
"Asian values" continues to be discussed in academe with reference to the question of the universality of human rights (as opposed to a position of cultural relativism).
The authors of a study published in 2015 claimed that rice versus
wheat agriculture explain differences in analytic thinking, "implicit
individualism" and innovation between various Chinese provinces. Compared to wheat farming, rice farming is a labor-intensive practice that requires cooperation among many people.
However, the results of the study are controversial due to very small
sample sizes for some units of analysis (some samples were as small as
fewer than ten individuals), questionable measurement instruments and
model misspecification. Using an improved measure of
individualism-collectivism, the authors of a replication study found
that the conclusion of the 2015 article claiming to show evidence for
the relationship between wheat versus rice farming was the result of
faulty methodology.
Criticism
A number of criticisms of Asian values have been made. Kim Dae-jung (President of South Korea, 1998-2003), Amartya Kumar Sen (an Indian economist, philosopher, and Nobel laureate) and Yu Ying-shih (a Chinese-born American historian and sinologist) have argued that "Asian values" is doublespeak for suppressing "Western values" such as "freedom of speech" and "human rights".
Randall Peerenboom noted that many scholars "are in general agreement
that some Asian governments use the rhetoric of Asian values for
self-serving ends."
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman Emperor Justinian I. Roman law forms the basic framework for civil law,
the most widely used legal system today, and the terms are sometimes
used synonymously. The historical importance of Roman law is reflected
by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.
After the dissolution of the Western Roman Empire, the Roman law remained in effect in the Eastern Roman Empire. From the 7th century onward, the legal language in the East was Greek.
Roman law also denoted the legal system applied in most of Western Europe until the end of the 18th century. In Germany, Roman law practice remained in place longer under the Holy Roman Empire (963–1806). Roman law thus served as a basis for legal practice
throughout Western continental Europe, as well as in most former
colonies of these European nations, including Latin America, and also in
Ethiopia. English and Anglo-Americancommon law were influenced also by Roman law, notably in their Latinate legal glossary (for example, stare decisis, culpa in contrahendo, pacta sunt servanda). Eastern Europe was also influenced by the jurisprudence of the Corpus Juris Civilis,
especially in countries such as medieval Romania (Wallachia, Moldavia,
and some other medieval provinces/historical regions) which created a
new system, a mixture of Roman and local law. Also, Eastern European law
was influenced by the "Farmer's Law" of the medieval Byzantine legal system.
Development
Before the Twelve Tables (754–449 BC), private law comprised the Roman civil law (ius civile Quiritium)
that applied only to Roman citizens, and was bonded to religion;
undeveloped, with attributes of strict formalism, symbolism, and
conservatism, e.g. the ritual practice of mancipatio (a form of sale). The jurist Sextus Pomponius
said, "At the beginning of our city, the people began their first
activities without any fixed law, and without any fixed rights: all
things were ruled despotically, by kings". It is believed that Roman Law is rooted in the Etruscan religion, emphasizing ritual.
Twelve Tables
The first legal text is the Law of the Twelve Tables, dating from the mid-5th century BC. The plebeian
tribune, C. Terentilius Arsa, proposed that the law should be written
in order to prevent magistrates from applying the law arbitrarily. After eight years of political struggle, the plebeian social class convinced the patricians to send a delegation to Athens to copy the Laws of Solon; they also dispatched delegations to other Greek cities for like reason. In 451 BC, according to the traditional story (as Livy tells it), ten Roman citizens were chosen to record the laws (decemviri legibus scribundis). While they were performing this task, they were given supreme political power (imperium), whereas the power of the magistrates was restricted. In 450 BC, the decemviri produced the laws on ten tablets (tabulae),
but these laws were regarded as unsatisfactory by the plebeians. A
second decemvirate is said to have added two further tablets in 449 BC.
The new Law of the Twelve Tables was approved by the people's assembly.
Modern scholars tend to challenge the accuracy of Roman
historians. They generally do not believe that a second decemvirate ever
took place. The decemvirate of 451 is believed to have included the
most controversial points of customary law, and to have assumed the
leading functions in Rome.
Furthermore, questions concerning Greek influence on early Roman Law
are still much discussed. Many scholars consider it unlikely that the
patricians sent an official delegation to Greece, as the Roman
historians believed. Instead, those scholars suggest, the Romans
acquired Greek legislations from the Greek cities of Magna Graecia, the main portal between the Roman and Greek worlds.
The original text of the Twelve Tables has not been preserved. The
tablets were probably destroyed when Rome was conquered and burned by
the Gauls in 387 BC.
The fragments which did survive show that it was not a law code
in the modern sense. It did not provide a complete and coherent system
of all applicable rules or give legal solutions for all possible cases.
Rather, the tables contained specific provisions designed to change the
then-existing customary law. Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure.
Early law and jurisprudence
Many laws include Lex Canuleia (445 BC; which allowed the marriage—ius connubii—between patricians and plebeians), Leges Licinae Sextiae (367 BC; which made restrictions on possession of public lands—ager publicus—and also made sure that one of the consuls was plebeian), Lex Ogulnia (300 BC; plebeians received access to priest posts), and Lex Hortensia (287 BC; verdicts of plebeian assemblies—plebiscita—now bind all people).
Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be regarded as the root of modern tort law.
However, Rome's most important contribution to European legal culture
was not the enactment of well-drafted statutes, but the emergence of a
class of professional jurists (prudentes, sing. prudens, or jurisprudentes) and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science.
Traditionally, the origins of Roman legal science are connected to Gnaeus Flavius.
Flavius is said to have published around the year 300 BC the
formularies containing the words which had to be spoken in court to
begin a legal action. Before the time of Flavius, these formularies are
said to have been secret and known only to the priests. Their
publication made it possible for non-priests to explore the meaning of
these legal texts. Whether or not this story is credible, jurists were
active and legal treatises were written in larger numbers before the 2nd
century BC. Among the famous jurists of the republican period are Quintus Mucius Scaevola who wrote a voluminous treatise on all aspects of the law, which was very influential in later times, and Servius Sulpicius Rufus, a friend of Marcus Tullius Cicero.
Thus, Rome had developed a very sophisticated legal system and a
refined legal culture when the Roman republic was replaced by the
monarchical system of the principate in 27 BC.
Pre-classical period
In the period between about 201 to 27 BC, we can see the development
of more flexible laws to match the needs of the time. In addition to the
old and formal ius civile a new juridical class is created: the ius honorarium,
which can be defined as "The law introduced by the magistrates who had
the right to promulgate edicts in order to support, supplement or
correct the existing law." With this new law the old formalism is being abandoned and new more flexible principles of ius gentium are used.
The adaptation of law to new needs was given over to juridical practice, to magistrates, and especially to the praetors. A praetor was not a legislator and did not technically create new law when he issued his edicts (magistratuum edicta). In fact, the results of his rulings enjoyed legal protection (actionem dare)
and were in effect often the source of new legal rules. A Praetor's
successor was not bound by the edicts of his predecessor; however, he
did take rules from edicts of his predecessor that had proved to be
useful. In this way a constant content was created that proceeded from
edict to edict (edictum traslatitium).
Thus, over the course of time, parallel to the civil law and
supplementing and correcting it, a new body of praetoric law emerged. In
fact, praetoric law was so defined by the famous Roman jurist Papinian (142–212 AD): "Ius
praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel
corrigendi iuris civilis gratia propter utilitatem publicam"
("praetoric law is that law introduced by praetors to supplement or
correct civil law for public benefit"). Ultimately, civil law and
praetoric law were fused in the Corpus Juris Civilis.
Classical Roman law
The first 250 years of the current era are the period during which
Roman law and Roman legal science reached its greatest degree of
sophistication. The law of this period is often referred to as the classical period of Roman law. The literary and practical achievements of the jurists of this period gave Roman law its unique shape.
The jurists worked in different functions: They gave legal
opinions at the request of private parties. They advised the magistrates
who were entrusted with the administration of justice, most importantly
the praetors. They helped the praetors draft their edicts,
in which they publicly announced at the beginning of their tenure, how
they would handle their duties, and the formularies, according to which
specific proceedings were conducted. Some jurists also held high
judicial and administrative offices themselves.
The jurists also produced all kinds of legal punishments. Around AD 130 the jurist Salvius Iulianus
drafted a standard form of the praetor's edict, which was used by all
praetors from that time onwards. This edict contained detailed
descriptions of all cases, in which the praetor would allow a legal
action and in which he would grant a defense. The standard edict thus
functioned like a comprehensive law code, even though it did not
formally have the force of law. It indicated the requirements for a
successful legal claim. The edict therefore became the basis for
extensive legal commentaries by later classical jurists like Paulus and Ulpian.
The new concepts and legal institutions developed by pre-classical and
classical jurists are too numerous to mention here. Only a few examples
are given here:
Roman jurists clearly separated the legal right to use a thing
(ownership) from the factual ability to use and manipulate the thing
(possession). They also established the distinction between contract and
tort as sources of legal obligations.
The standard types of contract (sale, contract for work, hire,
contract for services) regulated in most continental codes and the
characteristics of each of these contracts were developed by Roman
jurisprudence.
The classical jurist Gaius (around 160) invented a system of private law based on the division of all material into personae (persons), res (things) and actiones (legal actions). This system was used for many centuries. It can be recognized in legal treatises like William Blackstone's Commentaries on the Laws of England and enactments like the FrenchCode civil or the GermanBGB.
The Assemblies could decide whether war or peace. The Senate had
complete control over the Treasury, and the Consuls had the highest
juridical power.
Post-classical law
By the middle of the 3rd century, the conditions for the flourishing
of a refined legal culture had become less favourable. The general
political and economic situation deteriorated as the emperors assumed
more direct control of all aspects of political life. The political
system of the principate, which had retained some features of the republican constitution, began to transform itself into the absolute monarchy of the dominate.
The existence of a legal science and of jurists who regarded law as a
science, not as an instrument to achieve the political goals set by the
absolute monarch, did not fit well into the new order of things. The
literary production all but ended. Few jurists after the mid-3rd century
are known by name. While legal science and legal education persisted to
some extent in the eastern part of the Empire, most of the subtleties
of classical law came to be disregarded and finally forgotten in the
west. Classical law was replaced by so-called vulgar law.
Substance
Concept of laws
ius civile, ius gentium, and ius naturale – the ius civile ("citizen law", originally ius civile Quiritium) was the body of common laws that applied to Roman citizens and the Praetores Urbani, the individuals who had jurisdiction over cases involving citizens. The ius gentium ("law of peoples") was the body of common laws that applied to foreigners, and their dealings with Roman citizens. The Praetores Peregrini were the individuals who had jurisdiction over cases involving citizens and foreigners. Jus naturale was a concept the jurists developed to explain why all people seemed to obey some laws. Their answer was that a "natural law" instilled in all beings a common sense.
ius scriptum and ius non-scriptum
– meaning written and unwritten law, respectively. In practice, the two
differed by the means of their creation and not necessarily whether or
not they were written down. The ius scriptum was the body of statute laws made by the legislature. The laws were known as leges (lit. "laws") and plebiscita (lit. "plebiscites," originating in the Plebeian Council). Roman lawyers would also include in the ius scriptum the edicts of magistrates (magistratuum edicta), the advice of the Senate (Senatus consulta), the responses and thoughts of jurists (responsa prudentium), and the proclamations and beliefs of the emperor (principum placita). Ius non-scriptum was the body of common laws that arose from customary practice and had become binding over time.
ius commune and ius singulare – Ius singulare
(singular law) is special law for certain groups of people, things, or
legal relations (because of which it is an exception from the general
rules of the legal system), unlike general, ordinary, law (ius commune).
An example of this is the law about wills written by people in the
military during a campaign, which are exempt of the solemnities
generally required for citizens when writing wills in normal
circumstances.
ius publicum and ius privatum – ius publicum means public law and ius privatum
means private law, where public law is to protect the interests of the
Roman state while private law should protect individuals. In the Roman
law ius privatum included personal, property, civil and criminal law; judicial proceeding was private process (iudicium privatum);
and crimes were private (except the most severe ones that were
prosecuted by the state). Public law will only include some areas of
private law close to the end of the Roman state. Ius publicum was also used to describe obligatory legal regulations (today called ius cogens—this
term is applied in modern international law to indicate peremptory
norms that cannot be derogated from). These are regulations that cannot
be changed or excluded by party agreement. Those regulations that can be
changed are called today ius dispositivum, and they are not used when party shares something and are in contrary.
Public law
Cicero, author of the classic book The Laws, attacks Catiline for attempting a coup in the Roman Senate.
The constitution of the Roman Republic
was not formal or even official. Its constitution was largely
unwritten, and was constantly evolving throughout the life of the
Republic. Throughout the 1st century BC, the power and legitimacy of the
Roman constitution was progressively eroding. Even Roman
constitutionalists, such as the senatorCicero, lost a willingness to remain faithful to it towards the end of the republic. When the Roman Republic ultimately fell in the years following the Battle of Actium and Mark Antony's suicide, what was left of the Roman constitution died along with the Republic. The first Roman Emperor, Augustus,
attempted to manufacture the appearance of a constitution that still
governed the Empire, by utilising that constitution's institutions to
lend legitimacy to the Principate,
e.g. reusing prior grants of greater imperium to substantiate Augustus'
greater imperium over the Imperial provinces and the prorogation of
different magistracies to justify Augustus' receipt of tribunician
power. The belief in a surviving constitution lasted well into the life
of the Roman Empire.
Private law
Stipulatio was the basic form of contract
in Roman law. It was made in the format of question and answer. The
precise nature of the contract was disputed, as can be seen below.
Rei vindicatio is a legal action by which the plaintiff demands that the defendant
return a thing that belongs to the plaintiff. It may only be used when
plaintiff owns the thing, and the defendant is somehow impeding the
plaintiff's possession of the thing. The plaintiff could also institute an actio furti (a personal action) to punish the defendant. If the thing could not be recovered, the plaintiff could claim damages from the defendant with the aid of the condictio furtiva (a personal action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim damages from the defendant. Rei vindicatio was derived from the ius civile, therefore was only available to Roman citizens.
Status
To describe a person's position in the legal system, Romans mostly used the expression togeus. The individual could have been a Roman citizen (status civitatis) unlike foreigners, or he could have been free (status libertatis) unlike slaves, or he could have had a certain position in a Roman family (status familiae) either as the head of the family (pater familias), or some lower member—alieni iuris—which lives by someone else's law. Two status types were senator and emperor.
Litigation
The history of Roman Law can be divided into three systems of procedure: that of legis actiones, the formulary system, and cognitio extra ordinem.
The periods in which these systems were in use overlapped one another
and did not have definitive breaks, but it can be stated that the legis
actio system prevailed from the time of the XII Tables (c. 450 BC) until
about the end of the 2nd century BC, that the formulary procedure was
primarily used from the last century of the Republic until the end of
the classical period (c. AD 200), and that of cognitio extra ordinem was
in use in post-classical times. Again, these dates are meant as a tool
to help understand the types of procedure in use, not as a rigid
boundary where one system stopped and another began.
During the republic and until the bureaucratization of Roman judicial procedure, the judge was usually a private person (iudex privatus). He had to be a Roman male citizen. The parties could agree on a judge, or they could appoint one from a list, called album iudicum.
They went down the list until they found a judge agreeable to both
parties, or if none could be found they had to take the last one on the
list.
No one had a legal obligation to judge a case. The judge had
great latitude in the way he conducted the litigation. He considered all
the evidence and ruled in the way that seemed just. Because the judge
was not a jurist or a legal technician, he often consulted a jurist
about the technical aspects of the case, but he was not bound by the
jurist's reply. At the end of the litigation, if things were not clear
to him, he could refuse to give a judgment, by swearing that it wasn't
clear. Also, there was a maximum time to issue a judgment, which
depended on some technical issues (type of action, etc.).
Later on, with the bureaucratization, this procedure disappeared,
and was substituted by the so-called "extra ordinem" procedure, also
known as cognitory. The whole case was reviewed before a magistrate, in a
single phase. The magistrate had obligation to judge and to issue a
decision, and the decision could be appealed to a higher magistrate.
When the centre of the Empire was moved to the Greek East in the 4th century, many legal concepts of Greek origin appeared in the official Roman legislation.
The influence is visible even in the law of persons or of the family,
which is traditionally the part of the law that changes least. For
example, Constantine started putting restrictions on the ancient Roman concept of patria potestas, the power held by the male head of a family over his descendants, by acknowledging that persons in potestate,
the descendants, could have proprietary rights. He was apparently
making concessions to the much stricter concept of paternal authority
under Greek-Hellenistic law. The Codex Theodosianus (438 AD) was a codification of Constantian laws. Later emperors went even further, until Justinian finally decreed that a child in potestate became owner of everything it acquired, except when it acquired something from its father.
The codes of Justinian, particularly the Corpus Juris Civilis (529–534) continued to be the basis of legal practice in the Empire throughout its so-called Byzantine history. Leo III the Isaurian issued a new code, the Ecloga, in the early 8th century. In the 9th century, the emperors Basil I and Leo VI the Wise
commissioned a combined translation of the Code and the Digest, parts
of Justinian's codes, into Greek, which became known as the Basilica.
Roman law as preserved in the codes of Justinian and in the Basilica
remained the basis of legal practice in Greece and in the courts of the Eastern Orthodox Church even after the fall of the Byzantine Empire and the conquest by the Turks, and, along with the Syro-Roman law book, also formed the basis for much of the Fetha Negest, which remained in force in Ethiopia until 1931.
In the West
In the west, Justinian's political authority never went any farther
than certain portions of the Italian and Hispanic peninsulas. In Law codes
were issued by the Germanic kings, however, the influence of early
Eastern Roman codes on some of these is quite discernible. In many early
Germanic states, Roman citizens continued to be governed by Roman laws
for quite some time, even while members of the various Germanic tribes
were governed by their own respective codes.
The Codex Justinianus and the Institutes of Justinian were known in Western Europe, and along with the earlier code of Theodosius II, served as models for a few of the Germanic law codes; however, the Digest portion was largely ignored for several centuries until around 1070, when a manuscript of the Digest was rediscovered in Italy. This was done mainly through the works of glossars who wrote their comments between lines (glossa interlinearis), or in the form of marginal notes (glossa marginalis).
From that time, scholars began to study the ancient Roman legal texts,
and to teach others what they learned from their studies. The center of
these studies was Bologna. The law school there gradually developed into Europe's first university.
The students who were taught Roman law in Bologna (and later in
many other places) found that many rules of Roman law were better suited
to regulate complex economic transactions than were the customary
rules, which were applicable throughout Europe. For this reason, Roman
law, or at least some provisions borrowed from it, began to be
re-introduced into legal practice, centuries after the end of the Roman
empire. This process was actively supported by many kings and princes
who employed university-trained jurists as counselors and court
officials and sought to benefit from rules like the famous Princeps legibus solutus est ("The sovereign is not bound by the laws", a phrase initially coined by Ulpian, a Roman jurist).
There are several reasons that Roman law was favored in the
Middle Ages. Roman law regulated the legal protection of property and
the equality of legal subjects and their wills, and it prescribed the
possibility that the legal subjects could dispose their property through
testament.
By the middle of the 16th century, the rediscovered Roman law
dominated the legal practice of many European countries. A legal system,
in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law, had emerged. This legal system, which was common to all of continental Europe (and Scotland) was known as Ius Commune. This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries.
Only England and the Nordic countries did not take part in the wholesale reception of Roman law. One reason for this is that the English legal system
was more developed than its continental counterparts by the time Roman
law was rediscovered. Therefore, the practical advantages of Roman law
were less obvious to English practitioners than to continental lawyers.
As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge. Elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity
system. In addition, some concepts from Roman law made their way into
the common law. Especially in the early 19th century, English lawyers
and judges were willing to borrow rules and ideas from continental
jurists and directly from Roman law.
The practical application of Roman law, and the era of the European Ius Commune, came to an end when national codifications were made. In 1804, the French civil code
came into force. In the course of the 19th century, many European
states either adopted the French model or drafted their own codes. In
Germany, the political situation made the creation of a national code of
laws impossible. From the 17th century, Roman law in Germany had been
heavily influenced by domestic (customary) law, and it was called usus modernus Pandectarum. In some parts of Germany, Roman law continued to be applied until the German civil code (Bürgerliches Gesetzbuch, BGB) went into effect in 1900.
Colonial expansion spread the civil law system.
Today
Today, Roman law is no longer applied in legal practice, even though the legal systems of some countries like South Africa and San Marino are still based on the old jus commune.
However, even where the legal practice is based on a code, many rules
deriving from Roman law apply: no code completely broke with the Roman
tradition. Rather, the provisions of the Roman law were fitted into a
more coherent system and expressed in the national language. For this
reason, knowledge of the Roman law is indispensable to understand the
legal systems of today. Thus, Roman law is often still a mandatory
subject for law students in civil law jurisdictions.
As steps towards a unification of the private law in the member states of the European Union are being taken, the old jus commune,
which was the common basis of legal practice everywhere in Europe, but
allowed for many local variants, is seen by many as a model.
Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land
and protects the individual person from it. When a government harms a
person without following the exact course of the law, this constitutes a
due process violation, which offends the rule of law.
Due process has also been frequently interpreted as limiting laws and legal proceedings (see substantive due process)
so that judges, instead of legislators, may define and guarantee
fundamental fairness, justice, and liberty. That interpretation has
proven controversial. Analogous to the concepts of natural justice, and procedural justice
used in various other jurisdictions, the interpretation of due process
is sometimes expressed as a command that the government must not be
unfair to the people or abuse them physically. The term is not used in
contemporary English law, but two similar concepts are natural justice,
which generally applies only to decisions of administrative agencies
and some types of private bodies like trade unions, and the British
constitutional concept of the rule of law as articulated by A. V. Dicey and others.
However, neither concept lines up perfectly with the American theory of
due process, which, as explained below, presently contains many implied
rights not found in either ancient or modern concepts of due process in
England.
Due process developed from clause 39 of Magna Carta
in England. Reference to due process first appeared in a statutory
rendition of clause 39 in 1354 thus: "No man of what state or condition
he be, shall be put out of his lands or tenements nor taken, nor
disinherited, nor put to death, without he be brought to answer by due
process of law." When English and American law gradually diverged, due process was not upheld in England but became incorporated in the US Constitution.
By jurisdiction
Magna Carta
In clause 39 of Magna Carta, issued in 1215, John of England
promised: "No free man shall be seized or imprisoned, or stripped of
his rights or possessions, or outlawed or exiled, or deprived of his
standing in any other way, nor will we proceed with force against him,
or send others to do so, except by the lawful judgment of his equals or
by the law of the land." Magna Carta itself immediately became part of the "law of the land",
and Clause 61 of that charter authorized an elected body of 25 barons
to determine by majority vote what redress the King must provide when
the King offends "in any respect against any man". Thus, Magna Carta established the rule of law
in England by not only requiring the monarchy to obey the law of the
land but also limiting how the monarchy could change the law of the
land. However, in the 13th century, the provisions may have been
referring only to the rights of landowners, and not to ordinary
peasantry or villagers.
Shorter versions of Magna Carta were subsequently issued by British monarchs, and Clause 39 of Magna Carta was renumbered "29". The phrase due process of law first appeared in a statutory rendition of Magna Carta in 1354 during the reign of Edward III of England,
as follows: "No man of what state or condition he be, shall be put out
of his lands or tenements nor taken, nor disinherited, nor put to death,
without he be brought to answer by due process of law."
In 1608, the English jurist Edward Coke wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by legem terrae,
the law of the land, "that is, by the common law, statute law, or
custom of England.... (that is, to speak it once and for all) by the due
course, and process of law.."
Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of Queen Anne) by the Queen's Bench, in the case of Regina v. Paty. In that case, the British House of Commons had deprived John Paty and certain other citizens of the right to vote in an election and committed them to Newgate Prison merely for the offense of pursuing a legal action in the courts. The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows:
[I]t is objected, that by Mag.
Chart. c. 29, no man ought to be taken or imprisoned, but by the law of
the land. But to this I answer, that lex terrae is not confined to the
common law, but takes in all the other laws, which are in force in this
realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there the
words lex terrae, which are used in Mag. Char. are explained by the
words, due process of law; and the meaning of the statute is, that all
commitments must be by a legal authority; and the law of Parliament is
as much a law as any, nay, if there be any superiority this is a
superior law.
Chief Justice Holt
dissented in this case because he believed that the commitment had not
in fact been by a legal authority. The House of Commons had purported to
legislate unilaterally, without approval of the British House of Lords, ostensibly to regulate the election of its members.
Although the Queen's Bench held that the House of Commons had not
infringed or overturned due process, John Paty was ultimately freed by
Queen Anne when she prorogued Parliament.
English law and American law diverge
Throughout
centuries of British history, many laws and treatises asserted various
requirements as being part of "due process" or included in the "law of
the land". That view usually held in regards to what was required by
existing law, rather than what was intrinsically required by due process
itself. As the United States Supreme Court
has explained, a due process requirement in Britain was not "essential
to the idea of due process of law in the prosecution and punishment of
crimes, but was only mentioned as an example and illustration of due
process of law as it actually existed in cases in which it was
customarily used".
Ultimately, the scattered references to "due process of law" in English law did not limit the power of the government; in the words of American law professor John V. Orth, "the great phrases failed to retain their vitality." Orth points out that this is generally attributed to the rise of the doctrine of parliamentary supremacy in the United Kingdom, which was accompanied by hostility towards judicial review as an undemocratic foreign invention.
Scholars have occasionally interpreted Lord Coke's ruling in Dr. Bonham's Case as implying the possibility of judicial review, but by the 1870s, Lord Campbell
was dismissing judicial review as "a foolish doctrine alleged to have
been laid down extra-judicially in Dr. Bonham's Case..., a conundrum
[that] ought to have been laughed at".
Lacking the power of judicial review, English courts possessed no means
by which to declare government statutes or actions invalid as a
violation of due process. In contrast, American legislators and
executive branch officers possessed virtually no means by which to
overrule judicial invalidation of statutes or actions as due process
violations, with the sole exception of proposing a constitutional
amendment, which are rarely successful.
As a consequence, English law and American law diverged. Unlike their
English counterparts, American judges became increasingly assertive
about enforcing due process of law. In turn, the legislative and
executive branches learned how to avoid such confrontations in the first
place, by tailoring statutes and executive actions to the
constitutional requirements of due process as elaborated upon by the
judiciary.
In 1977, an English political science professor explained the present situation in England for the benefit of American lawyers:
An American constitutional lawyer might well be surprised
by the elusiveness of references to the term 'due process of law' in
the general body of English legal writing.... Today one finds no space
devoted to due process in Halsbury's Laws of England, in Stephen's Commentaries, or Anson's Law and Custom of the Constitution. The phrase rates no entry in such works as Stroud's Judicial Dictionary or Wharton's Law Lexicon.
Two similar concepts in contemporary English law are natural justice,
which generally applies only to decisions of administrative agencies
and some types of private bodies like trade unions, and the British
constitutional concept of the rule of law as articulated by A. V. Dicey and others.
However, neither concept lines up perfectly with the American
conception of due process, which presently contains many implied rights
not found in the ancient or modern concepts of due process in England.
Various countries recognize some form of due process under customaryinternational law.
Although the specifics are often unclear, most nations agree that they
should guarantee foreign visitors a basic minimum level of justice and
fairness. Some nations have argued that they are bound to grant no more
rights to aliens than they do to their own citizens, the doctrine of national treatment, which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use of treaties
to govern treatment of foreign nationals abroad, the distinction, in
practice, between these two perspectives may be disappearing.
Under many civil law systems, including the English common law,
in criminal proceedings the accused is presumed innocent unless the
prosecution presents a high level of evidence as described above. In
civil proceedings (like breach of contract) the defendant is initially presumed correct unless the plaintiff presents a moderate level of evidence and thus switches the burden of proof to the defendant.
History
Roman law
The sixth-century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat—"Proof lies on him who asserts, not on him who denies". It is there attributed to the second and third century jurist Paul. It was introduced in Roman criminal law by emperor Antoninus Pius.
Talmudical law
According to Talmud,
"every man is innocent until proved guilty. Hence, the infliction of
unusual rigours on the accused must be delayed until his innocence has
been successfully challenged. Thus, in the early stages of the trial,
arguments in his defence are as elaborate as with any other man on
trial. Only when his guilt has become apparent were the solicitous
provisions that had been made to protect defendants waived".
Islamic law
Similar
to that of Roman law, Islamic law also holds the principle that the
onus of proof is on the accuser or claimant based on a hadith documented by Imam Nawawi. "Suspicion" is also highly condemned, this also from a hadith documented by Imam Nawawi as well as Imam Bukhari and Imam Muslim.
After the time of Muhammad, the fourth CaliphAli ibn Abi Thalib has also been cited to say, "Avert the prescribed punishment by rejecting doubtful evidence."
Middle Ages in Europe
Western Europe
After the collapse of the Western Roman Empire, the West began to practice feudal law, which was a synthesis of aspects of Roman law as well as some Germanic
customs according to the new elite, including presumed guilt. For
instance, the accused could prove his innocence by having twelve people
swear that he could not have done what he was accused of. In practice,
this tended to favor the nobility over the lower classes, whose witnesses risked being seen as less credible. After the rediscovery of Roman law in the 12th century and the development of the jus commune, the canon law of the Catholic Church influenced the common law during the medieval period through its preservation of Roman law doctrine of the presumption of innocence.
Eastern Europe
Following the aforementioned Roman law of Justinian, who lived at the dawn of the medieval era, the Eastern Roman Empire
generally continued along his legal code which includes presumption of
innocence. This also influenced nearby states within its cultural
sphere, such as Orthodox, Slavic principalities like Serbia.
In Civil law, "it is the most general concept that everybody (suspect, accused, or not) must be considered innocent until a final judgement finds the person
guilty.
But there is another point of view also,—and it usually appears in the
international
declarations—which does not connect the stopping of the presumption of
innocence to a final judgement, but it is 'satisfied' with any provision that states guilt, that is based on law.
There is a significant difference between the two formulations. The
final judgement usually means the end of the punitive procedure, which
can take place many more years after the time of the crime committed. It
can happen, for instance, in the case of caught in the act, the
statements of witnesses, the confession of the offender, the perpetrator
must be presumed innocent for some years till the final judgement is
reached
despite the above enlisted facts".
Meaning
Sir William Garrow
coined the phrase "presumed innocent until proven guilty", insisting
that defendants' accusers and their evidence be thoroughly tested in
court
"Presumption of innocence" serves to emphasize that the prosecution
has the obligation to prove each element of the offense beyond a
reasonable doubt (or some other level of proof depending on the criminal
justice system) and that the accused bears no burden of proof. This is often expressed in the phrase "innocent until proven guilty", coined by the British barristerSir William Garrow (1760–1840) during a 1791 trial at the Old Bailey.
Garrow insisted that accusers be robustly tested in court. An objective
observer in the position of the juror must reasonably conclude that the
defendant almost certainly committed the crime. In 1935, in its judgment of Woolmington v Director of Public Prosecutions, the English Court of Appeal
would later describe Garrow's articulation as being the 'golden thread'
connecting both the criminal burden of proof and the presumption of
innocence within the web of English criminal law.
The presumption of innocence was originally expressed by the French cardinal and canonical juristJean Lemoine in the phrase "item quilbet presumitur innocens nisi probetur nocens (a person is presumed innocent until proven guilty)", based on the legal inference that most people are not criminals.
However, this referred not merely to the fact that the burden of proof
rests on the prosecution in a criminal case, but the protections which a
defendant should be given: prior notice of the accusation being made against them, the right of confrontation, right to counsel, etc. It is literally considered favorable evidence for the accused that automatically attaches at trial. It requires that the trier of fact, be it a juror or judge, begin with the presumption that the state is unable to support its assertion.
To ensure this legal protection is maintained, a set of three related
rules govern the procedure of criminal trials. The presumption means:
With respect to the critical facts of the case—whether the crime
charged was committed and whether the defendant was the person who
committed the crime—the state has the entire burden of proof.
With respect to the critical facts of the case, the defendant does
not have any burden of proof whatsoever. The defendant does not have to
testify, call witnesses or present any other evidence, and if the
defendant elects not to testify or present evidence, this decision
cannot be used against them.
The jury or judge is not to draw any negative inferences from the
fact the defendant has been charged with a crime and is present in court
and represented by an attorney. They must decide the case solely on
evidence presented during the trial.
It is better that ten guilty persons escape than that one innocent suffer.
The idea subsequently became a staple of legal thinking in Anglo-Saxon jurisdictions and continues to be a topic of debate.
This duty on the prosecution was famously referred to as the “golden thread” in the criminal law by Lord SankeyLC in Woolmington v DPP:
Throughout the web of the English
criminal law one golden thread is always to be seen—that it is the duty
of the prosecution to prove the prisoner's guilt subject to what I have
already said as to the defence of insanity and subject also to any
statutory exception...
The Universal Declaration of Human Rights,
article 11, states: "Everyone charged with a penal offence has the
right to be presumed innocent until proved guilty according to law in a
public trial at which he has had all the guarantees necessary for his
defense.".
The International Covenant on Civil and Political Rights,
art. 14, paragraph 2 states that "Everyone charged with a criminal
offence shall have the right to be presumed innocent until proved guilty
according to law.". The presumption of innocence is also expressly
regulated in Art. 66 of the Rome Statute of the International Criminal Court,
according to which "Everyone shall be presumed innocent until proved
guilty before the Court in accordance with the applicable law.".
The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe
says (art. 6.2): "Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law". This convention
has been adopted by treaty
and is binding on all Council of Europe members. Currently (and in any
foreseeable expansion of the EU) every country member of the European Union
is also member to the Council of Europe, so this stands for EU members
as a matter of course. Nevertheless, this assertion is iterated verbatim in Article 48 of the Charter of Fundamental Rights of the European Union.
(a) Articles 8 (1) and 8 (2) (right to a fair trial), in conjunction
with Article 1 (1) (obligation to respect and ensure rights without
discrimination) of the American Convention on Human Rights
make the Inter-American Court to stress that "the presumption of
innocence is a guiding principle in criminal trials and a foundational
standard for the assessment of the evidence. Such assessment must be
rational, objective, and impartial in order to disprove the presumption
of innocence and generate certainty about criminal responsibility. (...)
The Court reiterated that, in criminal proceedings, the State bears the
burden of proof. The accused is not obligated to affirmatively prove
his innocence or to provide exculpatory evidence. However, to provide
counterevidence or exculpatory evidence is a right that the defence may
exercise in order to rebut the charges, which in turn the accusing party
bears the burden of disproving".
In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms
states: "Any person charged with an offence has the right to be
presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal".
In the Colombian constitution, Title II, Chapter 1, Article 29 states that "Every person is presumed innocent until proven guilty according to the law".
In France, article 9 of the Declaration of the Rights of Man and of the Citizen 1789, which has force as constitutional
law, begins: "Any man being presumed innocent until he has been
declared guilty ...". The Code of Criminal Procedure states in its
preliminary article that "any person suspected or prosecuted is presumed
innocent for as long as their guilt has not been established" and the jurors' oath repeats this assertion (article 304). However, there exists a popular misconception that under French law, the accused is presumed guilty until proven innocent.
In Iran, Article 37 of the Constitution of the Islamic Republic of Iran
states: "Innocence is to be presumed, and no one is to be held guilty
of a charge unless his or her guilt has been established by a competent
court".
In Italy, the second paragraph of Article 27 of the Constitution states: "A defendant shall be considered not guilty until a final sentence has been passed."
In Romania, article 23 of the Constitution states that "any person shall be presumed innocent until found guilty by a final decision of the court."
The Constitution of Russia,
in article 49, states that "Everyone charged with a crime shall be
considered not guilty until his or her guilt has been proven in
conformity with the federal law and has been established by the valid
sentence of a court of law". It also states that "The defendant shall
not be obliged to prove his or her innocence" and "Any reasonable doubt
shall be interpreted in favor of the defendant".
In the South African Constitution, section 35(3)(h) of the Bill of Rights
states: "Every accused person has a right to a fair trial, which
includes the right to be presumed innocent, to remain silent, and not to
testify during the proceedings."
In New Zealand, the New Zealand Bill of Rights 1990
provides inter alia at section 25 (c) "Everyone who is charged with an
offence has, in relation to the determination of the charge, the
following minimum rights: (c) the right to be presumed innocent until
proved guilty according to law"
In the United Kingdom
changes have been made affecting this principle. Defendants' previous
convictions may in certain circumstances be revealed to juries. Although
the suspect is not compelled to answer questions after formal arrest,
failure to give information may now be prejudicial at trial. Statute law
also exists which provides for criminal penalties for failing to
decrypt data on request from the police. If the suspect is unwilling to
do so, it is an offence.
Citizens can therefore be convicted and imprisoned without any evidence
that the encrypted material was unlawful. Furthermore, in sexual
offence cases such as rape, where the sexual act has already been proved
beyond reasonable doubt, there are a limited number of circumstances
where the defendant has an obligation to adduce evidence that the
complainant consented to the sexual act, or that the defendant
reasonably believed that the complainant was consenting. These
circumstances include, for example, where the complainant was
unconscious, unlawfully detained, or subjected to violence.
Canada
In Canadian law, the presumption of innocence has been reinforced in certain instances. The Criminal Code previously contained numerous provisions according to which defences to certain offences were subject to a reverse onus: that is, if an accused wishes to make that defence, they had to prove the facts of the defence to a balance of probabilities,
rather than the Crown having to disprove the defence beyond a
reasonable doubt. This meant that an accused in some circumstances might
be convicted even if a reasonable doubt existed about their guilt. In several cases,
various reverse onus provisions were found to violate the presumption
of innocence provision of the Charter of Rights and Freedoms. They were
replaced with procedures in which the accused merely had to demonstrate
an "air of reality" to the proposed defence, following which the burden
shifted to the Crown to disprove the defence.
Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, received Royal Assent in December 2018. Among other things, it eliminated several reverse onus provisions from the Criminal Code, some of which had previously been found unconstitutional, and others pre-emptively in order to avoid further Charter challenges.
