History of Law:
The Evolution of Victims' Rights
The establishment of victims' rights under a system of
laws is not a new phenomenon. Indeed, some of the earliest known
writings involve organizing and re-recording legal rights. Many
vestiges of earlier systems endure today and provide the essential
context within which to understand modern day victims' rights
Upon completion of this chapter, students will understand the
1. The development of law and its impact on victims.
2. The definition of stare decisis.
3. The various theories of what law is and what it does.
4. The different classifications of crimes.
5. The various types of defenses and their impact on victims.
6. The development of victims' rights in criminal law.
A complete and accurate understanding of the concepts inherent
in our American criminal law system can only be attained by a
review of its history, philosophy, and development. Modern criminal
law is the result of a long evolution of laws that have attempted
to deal with and define deviant behavior in society.
Code of Hammurabi
The Code of Hammurabi is considered one of the first known attempts
to establish a written code of conduct. King Hammurabi ruled Babylon
at approximately 2000 B.C. He was the sixth king of the First
Dynasty of Babylonia for about 55 years. During that period of
time, Babylon was a commercial center for most of the known and
civilized world. Since its fortune lay in trade and other business
ventures, the Code of Hammurabi provided a basis for order and
certainty essential for commerce. The Code established rules regarding
theft, sexual relationships, interpersonal violence, and other
issues. It was intended to replace blood feuds with a system sanctioned
by the state.
The Code of Hammurabi was divided into five sections:
The code established certain obligations and objectives for the
citizens of Babylon to follow. These included:
Of noteworthy importance in the code was its concern for the rights
of victims. In reality, this code may have been the first "victims'
rights statute" in history. Unfortunately, as will be seen,
society began to neglect victims in its rush to punish the offender,
with the result that victims' rights would not resurface until
the present century (Gordon, 1957).
Early Roman Law
Another important milestone in the development of American law
was early Roman law. Roman law was derived from the Twelve Tables,
written about 450 B.C. These tables were a collection of basic
rules relating to conduct of family, religious and economic life.
Early Roman legions conquered England in the middle of the first
century. Roman law, customs, and language were forced upon the
English people during the next three centuries of Roman rule.
Emperor Justinian I codified the Roman laws into a set of writings.
The Justinian Code, as these writings became known, distinguished
between two major types of laws:
It contained elements of both our civil and criminal law and influenced
Western legal theory into the Middle Ages.
It is unclear when the fifth book of the Old Testament, Deuteronomy,
was written, and indeed, as "oral history," the very
first version was not written at all (it was probably written
for the first time in about 100 B.C.). In any event, Deuteronomy
instructs that with respect to certain crimes, the penalty shall
be " . . . eye for eye, tooth for tooth, hand for hand, foot
for foot." (Chapter 19, Verse 15.) Because the rabbinic tradition
taught that this penalty was not to be interpreted literally and
that what the Biblical instruction really meant was that a victim
of an assault or other crime should receive from the criminal
the value of an eye, or the value of a foot, arguably
Deuteronomy presents the first more formalized scheme of victim
restitution since the Code of Hammurabi.
The Legal System in England
Prior to the Norman conquest of 1066 A.D., the legal system in
England was very decentralized. There was little written law except
for crimes against society. As a society, England had forgotten
or moved away from the teaching of the Code of Hammurabi, and
crimes during this period were again viewed as personal wrongs.
Compensation was paid to the victim or his/her family for the
offense. If the perpetrator failed to make payments, the victim's
family could seek revenge resulting in a blood feud. For the most
part during this period, criminal law was designed to provide
equity to what was considered a private dispute.
The Norman Conquest under William the Conqueror established royal
administrators who rode circuit to render justice. These royal
judges would use local custom and rules of conduct as a guide
in rendering their judgments. This system, known as stare decisis
(Latin for the phrase "to stand by the decided law"),
would have far reaching effects on modern American criminal law.
The next major development in the history of law was the acknowledgment
of the existence of Common Law. Early English Common Law forms
the basis for much of our present day legal system. Common Law
is a traditional body of then unwritten legal precedents created
by court decisions (as distinguished from statutory law written
by a Congress or other legislative body) during the Middle Ages
in England. During this period of time when cases were heard,
judges would start their deliberations from past decisions that
were as closely related as possible to the case under consideration.
In the eleventh century, King Edward the Confessor proclaimed
that Common Law was the law of the land. Court decisions were
finally recorded and made available to lawyers who could then
use them to plead their cases. This concept is one of the most
important aspects of today's modern American law.
The Magna Carta and U.S. Constitution
The Magna Carta of England and the U.S. Constitution both stand
as great documents and moments in the history of American law.
The Magna Carta was signed on June 15, 1215 and was later interpreted
to grant basic liberties to all British citizens. The U.S. Constitution
established certain individual rights, defined the power of the
federal government, and -- among other things -- limited punishment
for violation of laws.
American law combines both Common Law and written statutes.
An offshoot of written law, administrative law is comprised of
rules and regulations adopted by governmental agencies at the
federal, state and local levels. Many governmental agencies are
invested with the power to pass regulations that prohibit certain
types of conduct. Some of these regulations provide for fines
rather than imprisonment of the offender.
Constitutional law is at the foundation of American criminal law.
The Constitution does not define new crimes (the only crime defined
in the Constitution is treason); rather, it sets limits on other
laws as they apply to individuals. An example of this principle
is the U.S. Supreme Court's ruling that flag burning, which was
proscribed as criminal conduct by a state statute, is protected
under the First Amendment right to freedom of expression.
Max Weber, an acclaimed sociologist during the early twentieth
century, stated that the primary purpose of law is to regulate
the flow of human interaction (Rheinstein, 1954).
Dr. Weber, who is famous for a number of modern day concepts including
the concept of bureaucracy, believed that laws make the behavior
of others predictable (Wallace, Roberson, and Steckler, 1994).
Thus, one of the accepted purposes of law is to support social
Laws also serve other purposes including:
Banishing retribution occurs because laws replace the power of
individuals to carry out revenge against the perpetrator. The
law shifts the burden and responsibility of making the victim
whole from the individual to the state. Laws reflect public opinion
by defining the boundaries between current concepts of illegal
behavior and allowing individuals to guide their conduct according
to these written requirements. Some argue that laws deter potential
law violators. The threat of punishment is sufficient to prevent
individuals from committing the prohibited act. Punishment of
offenders occurs when laws grant the government the ability or
power to sanction wrongdoers. Finally, socioeconomic control occurs
when laws support and maintain the social and economic systems
Roscoe Pound, one of the great legal scholars of modern times,
believed that law was a type of social engineering (1968). The
law was a tool that met the needs of men and women living
and working together in society. Pound believed that law must
change with the advent of new ideas. He articulated a series of
Jural Postulates that were propositions setting forth the
basis of all law because they reflected the shared needs of society.
There are three basic types of crimes:
There are three categories of defenses:
Because of the wide variety of state and federal statutes dealing
with these topics, only a brief and basic discussion is possible.
However, understanding these concepts is essential to progress
to more complex issues.
Types of Crimes
Categories of Defenses
Defenses are those claims that state the defendant should not
be held accountable for his or her acts, even though the defendant
may have acted in violation of the criminal law. Defenses may
be personal, special or procedural in nature (Wallace and Roberson,
The most common personal defenses include infancy, insanity, involuntary
intoxication, and certain syndromes. Each of the personal defenses
raises issues that have caused controversy within our American
Insanity at the time of trial is referred to as "incompetency
to stand trial." The accused must have a sufficient mental
state in order to assist his or her attorney in the defense of
the case. If the accused does not have sufficient mental state,
then the trial must be delayed. Unlike the question of mental
state at the time of the act, which negates the guilt, incompetency
to stand trial refers only to the ability of the accused to assist
his or her counsel and does not negate the commission of
the offense. If the accused is determined to be incompetent to
stand trial, the state is required to delay the trial until the
individual is competent.
Insanity is a legal term that excuses the defendant's conduct
based upon his or her lack of required mental state. This concept
uses medical/psychiatric knowledge to come to a determination
regarding the defendant's mental status.
There are five basic tests for insanity which have been used in
the American court system:
1. The McNaghten Test
2. The Irresistible Impulse Test
3. The Durham Rule
4. The Federal Test
5. The Model Penal Code or ALI Test
The most common special defenses include: self-defense; defense
of others; defense of property; mistake; necessity; alibi; duress;
1. They did not provoke the attack.
2. They were threatened with death or great bodily injury.
3. The danger was imminent.
4. They used only the amount of force necessary to repel the attack.
These elements are judged by the "reasonable person standard"
and not the subjective point of view of the victim.
The most common procedural defenses include lack of a speedy trial,
selective prosecution, double jeopardy, and prosecutorial misconduct.
As the above discussion indicates, we have evolved from the
time of blood feuds, to payment of funds to victims, to the concept
that the state is the "victim."
The chapter on the history and overview of the victims' movement
includes a list of many of the significant milestones in the victims'
movement. This section will briefly examine some of the more important
areas of victims' rights that directly affect the criminal justice
Victims' Rights Constitutional Amendment
Section 1. To ensure that the victim is treated with fairness,
dignity, and respect, from the occurrence of a crime of violence
and other crimes as may be defined by law pursuant to section
two of this article, and throughout the criminal, military, and
juvenile justice processes, as a matter of fundamental rights
to liberty, justice, and due process, the victim shall have the
following rights: to be informed of and given the opportunity
to be present at every proceeding in which those rights are extended
to the accused or convicted offender; to be heard at any proceeding
involving sentencing, including the right to object to a previously
negotiated plea, or a release from custody; to be informed of
any release or escape; and to a speedy trial, a final conclusion
free from unreasonable delay, full restitution from the convicted
offender, reasonable measures to protect the victim from violence
or intimidation by the accused or convicted offender, and notice
of the victim's rights.
Section 2. The several States, with respect to a proceeding
in a State forum, and the Congress with respect to a proceeding
in a United States forum, shall have the power to implement further
the rights established in this article by appropriate legislation.
While progress has been made in the area of victims' rights, there
is still much to be done. Slowly, society is beginning to realize
that victims of crime should have access to the criminal justice
system in the same manner as criminal defendants. Understanding
the history of the American criminal law system allows us to be
more effective advocates for victims.
Definition of Terms
Common Law: A traditional body of unwritten legal precedents
created by court decisions during the Middle Ages in England.
Defenses: Those claims that state the defendant should
not be held accountable for his or her acts, even though the defendant
may have acted in violation of the criminal law. Defenses may
be personal, special or procedural in nature.
Felony: A criminal offense that is punishable by death
or imprisonment in a state or federal institution for more than
Infractions or Petty Crimes: The least serious crimes which
are minor violations of the law and normally are punished by a
fine, and do not carry any imprisonment.
Misdemeanor: Are usually punishable by a fine and/or incarceration
in a local penal facility for up to one year in length.
Stare Decisis: Judges would use local customs and rules of conduct as a guide in rendering their judgment. It is a Latin phrase meaning "to stand by the decided law."
Self Examination Chapter 4
History of Law:
The Evolution of Victims' Rights
1) What is the significance of the Code of Hammurabi?
2) What is the purpose of laws?
3) What are the three various classifications of
4) List the different types of defenses available
to a person charged with a crime.
5) Discuss the evolution of the victims' movement as it relates to the development of American law.
Gordon, H. (1957). Hammurabi's code: Quaint or forward looking.
New York: Rinehart.
Masters, R. & Roberson, C. (1985). Inside criminology.
Englewood Cliffs, NJ: Prentice-Hall.
Pound, R. (1968). Social control through the law. Hamden,
Rheinstein, C. (Ed.). (1954). Max Weber on law in economy and
society. Cambridge, MA: Harvard University Press.
Siegel, L. (1989). Criminology, 3rd Ed. St. Paul, MN: West
Wallace, H. (1994). The battered women syndrome: Self-defense
and duress as mandatory defenses?. The Police Journal, LXVII
Wallace, H. & Roberson, C. (1996). Principles of criminal
law. White Plains, NY: Longman.
Wallace, H., Roberson, C., & Steckler, C. (1995). Fundamentals
of police administration. Englewood Cliffs, NJ: Prentice-Hall.
Additional Suggested Reading
Kaplan, Skolinick, & Feeley. (1991). Criminal justice:
Introductory cases and materials. New York: Foundation Press.
Hagan. (1990). Introduction to criminology, 2nd Ed. Chicago,
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