Chapter 4

History of Law:

The Evolution of Victims' Rights

Abstract: 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 laws.

Learning Objectives: Upon completion of this chapter, students will understand the following concepts:

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.

Historical Overview

Critical Dates in the History of Law:

The Development of the Concept of 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.

The Bible

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.

Common 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

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.

What Is Law?

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 order.

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 they serve.

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.

Classifications of Crimes and Defenses

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, 1996).

Personal Defenses

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 judicial system.

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

Special Defenses

The most common special defenses include: self-defense; defense of others; defense of property; mistake; necessity; alibi; duress; and entrapment.

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.

Procedural Defenses

The most common procedural defenses include lack of a speedy trial, selective prosecution, double jeopardy, and prosecutorial misconduct.

The Modern Day Evolution of Victims' Rights

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 process.

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 a year.

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 crimes?

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, CT: Archon.

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 Publishing.

Wallace, H. (1994). The battered women syndrome: Self-defense and duress as mandatory defenses?. The Police Journal, LXVII (2), 133-139.

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, IL: Nelson-Hall.

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