The 9th century (CE) Indian ascetic, Udayan from Kerala proposed an interesting theory about the existence of God. He said that the sun and moon follows a pattern, which is almost a law. So, a law has to be made first, and then imposed by some enforcer. Among his contemporaries, Udayan didn’t find anyone fitting those supernatural shoes. Hence, it must be someone, you know who?
In the 20th century, Kurt Godel, a close friend of Einstein, who taught at Princeton presented a God Theorem. An abstruse thing, it’s understood by not many people including me! Anyway, for our purposes, if a pattern is there, there is likely to be a law, for or against.
Law codes can be defined as a collection of all laws. It follows from the definition that laws do not evolve all by themselves unless there are law-makers and law-enforcers. For such a development, the society following the codes need not be literate. However all the extant ancient law codes are from peoples who knew how to write. The first such existing code goes back to circa 2400 BCE and consists of tablets from the antique city of Ebla (modern Tell Mardikh) in Syria. Following this earliest example is another from ca 2050 BCE, and has been found among texts in the Museum of the Ancient Orient in Istanbul. It is from Ur Nammu, King of Sumer and Akkad belonging to the Third Dynasty of Ur. He proclaimed there that the god Nanna selected him to rule, and in addition to his royal duties he punished corrupt courtiers and introduced standard weights and measures. Next such code, written in Akkadian in two tablets dated circa 1920 BCE is from the ancient kingdom of Eshnunna and is in the Iraq Museum. It contains sixty regulations concerning properties laid down by the god Tispak, which the local king was asked to declare in writing. There are similar tablets, now in the University of Pennsylvania, written in Sumerian script giving directives on a lot of matters said to be from the King Lipit-Ishtar in the closing years of the twentieth century BCE. Then, there are the Mid-Assyrian group of clay tablets citing the laws of ancient Ashur (modern Qalat Shergat) in the fifteenth century BCE, excavated by German archaeologists in the years preceding the first world war. The most comprehensive and detailed among all such codes is the code of Hammurabi written in Akkadian around 1728 – 1686 BCE, and found at Susa, east of Babylon in 1901. It is carved on a six feet high column of diorite and is now in the Louvre Museum, Paris.
Ancient Egypt — 3,000 BCE
About 5,000 years ago, there was an unwritten civil code in Egypt divided apparently in 12 sections. Based on the principle of Ma’at, it emphasised tradition, rhetorical speech, social equality and impartiality in the judicial system. Regarded as the judgment of the dead, it was believed that the heart of the deceased would be weighed by the god Horus with ostrich feathers, head dress of the goddess Ma’at symbolizing justice. A heavy heart indicated that it was so due to evil deeds, and the body and the soul of the deceased would then be eaten by a special beast. If, however, the heart balanced itself against the feathers, then it was good, honest, and just. As a reward, the soul was allowed to live forever. It would be therefore apparent that the religious and secular aspects of the Egyptian society of the times were not separable. Perhaps, for this reason the judges used to wear a small figure of the goddess as a pendant round their necks, which also indicated that Ma’at stood for natural balance and order along with ethics and morality. Tradition was considered important because the Egyptians lived undisturbed in the valley of the Nile without any threats from invaders. Geographical features kept them away allowing the Egyptians to hold recurring festivals and follow traditional rituals for centuries and millennia. Consequently, a sort of record of the judgments were maintained and the system of justice evolved over a long period of time. Oratorical skill or the ability to make or break a case was given importance in the Middle Kingdom(ca 2040 – 1674 BCE) and thereafter, while the centuries preceding established impartiality as essential (ca 2200 – 2040 BCE) in the justice system. The belief that before god all his creations were equal gave rise to the concept of equality also in the Middle Kingdom.
Law Codes of Lipit – Ishtar — 20th Century BCE
He belonged to the first dynasty of Isin and was its fifth king from ca 1934 – 1924 BCE. He is known for the poems written in his honour in Sumerian language as also a law code, the authenticity of which is doubtful. These were used by the scholars of the times for centuries after his death. Inscriptions and documents of Lipit-Ishtar were found in Asia Minor and Mesopotamia, from which the following excerpts are obtained :
1 – If a man is caught stealing from someone else’s orchard, he has to pay a fine of ten shekels of silver.
2 – And, if he cuts down a tree there, the penalty shall be half a mina of silver.
3 – If a married man with children begets more from his slave, then the slave and her children (on being granted freedom by her master) shall not lay any claim on his property.
4 – If a married couple is issueless, and the man fathers children from a harlot, then the man shall provide clothing, grain and oil to that woman, and the children she has borne him shall become his heirs. The woman shall not live in the same house with the wife.
5 – The owners of adjacent houses / plots are required to get into an agreement that if one is harmed due to faults / defects in his neighbour’s property, then the aggrieved is to be compensated by the offender.
6 – If a man hired an ox and injured its eye, he has to pay half the price of the ox.
7 – For injuries in the part of the nose where the nose ring is fitted (under the cicumstances given in 6), the fine is one-third the price of the ox.
8 – For a broken horn (under conditions as in 6), the penalty is one -fourth.
9 – Compensation same as 8 for injuries in the tail.
Eshnunna Code on Properties — 1920 BCE
The Eshnunna Code gave directions on hiring, wages, punishments for theft, compensations for loss of limbs and such other aspects as would be seen in the excerpts following :
10 – A donkey can be hired for a day for 1 seah of barley and its driver is to be given the same quantity in addition.
11 – One shekel of silver is the monthly wage of a hired man and for food he is to get one pan of barley daily.
12 – A man stealing crops from the field of a palce/temple official during daytime is to pay a fine of 10 shekels of silver. If caught at night, he has to die.
13 – Punishment as above for household thefts.
42 – A man biting off the nose of another man shall pay one mina of silver; for the loss of an eye, the fine is the same amount; for an ear, 1/2 mina; while the fine for a slap on the face is 10 shekels of silver.
44 – During an altercation, if a man floors another and breaks his hand, the offender shall pay
1/2 mina of silver as compensation.
48 – There will be a formal trial for all cases involving penalties ranging from two-thirds of a mina to one mina. The trial for a capital offence is submitted before the king …
53 – If an ox gores to death another ox, then both the owners are to divide among themselves the prices of the dead and the live ox.
54 – If an ox gores by habit, the authorities are to bring this to the notice of the owner as a warning. Despite this, if the owner does not dehorn the ox, and the ox gores another man to death, then the owner shall pay a penalty of two-thirds of a mina of silver.
57 – If a vicious dog bites a slave and the slave dies, then the owner of the dog shall pay a penalty of 15 shekels of silver.
58 – If a wall is about to collapse, then the authorities are to warn the owner and he is liable to take measures to prevent it. Despite this, if the wall falls and kills a free man, then it is a capital offence, under the jurisdiction of the king.
Codex of Hammurabi — 18th Century BCE
Modern archaeologists view the Law Codes or Codex of Hammurabi as a very important discovery of this nature so far. The Codex offers a fascinating glimpse of the mores and morals; the life and times; and the beliefs and values in ancient Babylonia. Babylonia in the past is the vast tract of land to the south of Mesopotamia in modern Iraq containing the territories of Akkad and Sumer. The semitic tribe of Amorites coming from the west of the Euphrates river gained control over most of the area, but it was not entirely unified. The most powerful city state there was Isin of the Sumerians while the Amorites in course of time formed another in Babylon. The “Amorite” colonists were there mainly for the purpose of trade, and the Babylonians were in contact with other city states. Officials, peoples and troops went from Babylon to Canaan, Syria and other places. As the semitic tribes settled down in the area, their tribal customs were adopted as laws. There were constant struggles for supremacy between the cities with the victorious demanding tributes and troops from the subjugated ones. The customs and cults along with their city rights and usages were, however, left untouched. For instance, after the acquisition of Assur-bani-pal and Shamash-shum-ukin, the Babylonians urged that the city allow free entry to twenty foreigners at one time; that foreign women married to Babylonians are not to be treated as slaves; and that not even a dog is to be killed without trial ! A widely irrigated and strategically located area for trade, Babylon was the meeting point of diverse groups of people. Its hanging gardens were considered as one of the seven wonders of ancient world by the Greek engineer and mathematician Philon along with the Greek poet and writer Antipater of Sidon circa 200 BCE.
Hammurabi (ca. 1810 BC – 1750 BCE) vanquished the dynasty of Isin thus bringing to an end the centuries old domination of the Sumerians over Mesopotamia, and held together the diverse peoples residing there by formulating the laws known as the Codex named after him. His empire disintegrated after his death, but the laws he laid down survived even after Persian, Greek and Parthian invasions, disruptions with little effect on private life in Babylonia, and continued so as to leave its imprint on the subsequent Syro – Roman and the much later Islamic laws in Mesopotamia. It is believed by some experts that Moses ca 300 years after Hammurabi lifted quite a lot from the Codex to frame his laws known as the Mosaic Law or the Laws of Moses. As evidence they point out, in addition to other similarities, the famous (or infamous, depending on the point of view) “eye for an eye” principle of retribution. Other experts, notably Biblical archaeologists, say that the similarities are more on the surface than in depth. In support of their contention, they point out that in Mosaic law the principle of retributive justice is applied universally without any distinction relating to the position of the offender. In the Codex, however, the law applies only between parties of the same status – such as, nobility, priestly, upper class, middle class, lower class and so on.
Though not exactly a line by line copy, there are many correspondences between the Codex and the Torah of the Mosaic Bible or the first five Books of Moses. The Codex provides a list of crimes and the various punishments for committing them would attract along with the procedures for settling common disputes. Guidelines for citizens’ behaviour and conduct are there, but there is no provision for excuses and explanations. However, it is implied that evidences for defence are admissible. Hammurabi is stated to have displayed the Codex in the market so that nobody could say that he was not aware of the law. Scholars dispute this because very few people could read at that time. Literacy in that era was limited to the scribes and few others. Punishments given in the Codex may appear to be exceedingly cruel and harsh to modern readers, but that does not alter the fact that with these laws Hammurabi attempted to unify widely disparate groups of peoples into a whole – a crucial necessity for a civilisation. It can not also be denied that the laws are essentially humanitarian in their aim and direction, and recognized the identity assigned to a group or the modern corporate personality. Parts of it were recovered from Assur-bani-pal’s library at Nineveh and later copies of it made in Babylon show that it was studied closely, divided into chapters beginning with the words Ninu ilu sirum and recopied extensively for more than a millennium and a half. A cornerstone of the legal system is the concept that some laws are so basic that even the most powerful monarch on the earth can not change them. By inscribing his laws in stone, Hammurabi made the concept everlasting.
Hammurabi’s laws are the laws of a state, first and foremost. Features of tribal customs like self – help, blood – feud , marriage by capture and so on are not there. However, the traditions of family solidarity, district responsibility, ordeal and primitive retributive measures illustrated in lex murabi and talionis (an eye for an eye; a tooth for a tooth) are retained. A benevolent autocrat, the monarch possesses the strength and willingness to defend and protect the weak from the depredations of the most powerful of oppressors and keeps the doors to his court always open for this purpose. Royal intervention ceases only after the private complainant is appeased or the causes of public resentment are removed. Feudalities subservient to the monarch cover the land; masters of the levy collect the taxes; a regular police force maintains peace and order; and a postal network receive and distribute mails. The society regards the women as its free and dignified members. It is said that the Babylonians felt so secured that they did not think twice to ride in their carriages to the shores of the Mediterranean Sea for work and relaxation. No doubt, such conditions were created and fostered in the past, in centuries – old law abiding habits of the peoples and to their generally litigious approach to settle disputes. The tendency to write down important things, the practice of maintaining records and to store such materials in the vast archives in the temples of the cities also helped matters. Interestingly, the Babylonians always took recourse to written contracts, perhaps as a guard against being cheated by the peoples from other places with whom they did business. Such business deals and interactions helped in assimilation of the customs of different cities.
Hammurabi was of the view that he had been chosen by the gods to administer justice to his people and said so in the upper portion of the diorite column on which the Codex was inscribed. This section of the column now in the Louvre shows the monarch standing in front of the throne of the sun god Shamash and receiving a tablet from him. There it is engraved, “Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land”. Incidentally, circa one and a half millennia later, Emperor Ashoka of India installed stone edicts in various places where he called himself “Piyadassi or the favourite of the Gods”. Ashoka, however, was propagating Buddhism through these edicts.
There are 282 numbers of laws in the Codex, of which the numbers 13 and 66 to 99 are missing in the Louvre stela. Perhaps, this happened when the Elamite king Shutruk – Nahhunte carried it as plunder to Susa in Elam (modern Khuzestan in Iran), where it was discovered in Decmber, 1901. Written in Akkadian language, the stela containing the text is also stated to have been installed (perhaps, initially) in the temple of Marduk during the closing years of the reign of Hammurabi. According to the Codex, anyone can enter into a contract with someone else provided they both agree to its terms. A notary public wrote the deed of agreement in a temple; it was confirmed with an oath “by god and the king”, and publicly sealed before professional witnesses as also collaterally interested parties. The manner in which the processes were carried out ensured that there was nothing irreligious or illegal in the contract. If there was a dispute, the judges first examined the contract which they might or might not support. There was a provision for appeal against such judgment, having regard to which some contracts initially stipulated that the parties would abide by “the decision of the king” in the event of future disputes. For a large number of cases, the Codex stated what the decision would be, and in such instances the appeals to the king were returned to the judges to decide accordingly. Though not exactly like a modern treatise, the Codex is a careful and logical collection of chapters arranged in the order of their subject – matters.
The Codex divides the people under three categories : amelu, muskinu and ardu. The amelu is on the top of the heap. He belongs to a family, has inherited property and enjoys full civil rights. His birth, marriage and death is in records. The king, his courtiers, the professions and the craftsmen constituted this class with some status. They have the right to retributive justice for corporal injuries to them, and are liable to a heavier punishment for crimes and offences as also higher fees and fines. There is no specific property requirement, nor is there any racial undertone. The muskinu is somewhat difficult to define, and in time to come in Aramic and Hebrew as also in some modern languages would mean a beggar. The Codex does not regard him necessarily as poor, nor is there any restraint on his rights as a free man. Probably, he is a landless person; residing in a separate section of the city, and who has to accept monetary compensation for corporal injuries to him. He pays smaller fees and fines, and his offerings to the gods are equally modest. He has apparently no connection with the court or temple and does not form the majority of the population. Not much is written about him in contemporary records, making him even more difficult to define.
The ardu is a slave, a property of his master. He and his kind are many in numbers, and in all probability form the bulk of the population. His master feeds and clothes him, and takes away all the compensation paid for injuries caused to him. Normally, his master finds him a slave – girl to marry, and children born to the couple are also slaves, property of the master. Often, the master provides him a house with a busines or agricultural farm to run and takes an annual rent from him. He is allowed to have slaves of his own and employ them to get his work done. He is also allowed to marry a free woman, and the money she may bring is not for the master to acquire. The children born to the couple are free, but the master has a right to half of the slave’s property in the event of his death. He could free himself by paying his price to the master or could be free if he is dedicated to a temple or adopted by a free man. Then he straightway becomes an amelu, bypassing the category of muskinu. Slaves are obtained by purchases from abroad or they could be the captives from a war. They could even be free men earlier, downgraded due to criminal acts or unpaid debts. Naturally, they looked for opportunities to run away, and if captured the captor is bound to return him to the owner. The reward for this action is two shekels about one – tenth of the price of the slave. To detain or hide a slave or to help him in getting out of the city brings the punishment of death to the perpetrator. Slaves have for identification names of their owners branded or tattooed on their arms, removable only by surgery.
Long before Hammurabi, it was the custom to regard god as the owner of all lands and citizens as his tenants, administered by the king, his vice regent. Total private ownership of land is therefore acknowledged in the Codex, and the tax for it is to be paid in money, produce or service. Apparently, priests, merchants and resident foreigners can hold lands, and all deals in land are subject to the payment of certain fixed charges. The king has the option to waive these charges, which he does as a form of reward through charters. These charters also indicate what are the obligations of the land holder to the king. He has to provide men for the army as also free labour. Generally, for a defined area, the land holder would be required to get the king a bowman (archer) and a pikeman to cover both of them with shields, and supply them everything that they need during the campaign. Sometimes (obviously, for a large area) a horseman is also required. A man enlisted thus has to serve six terms, after which the landholder has to find a replacement usually from among the slaves and serfs (not excluding the amelu or the muskinu). The state requisitioned free or forced labour less often. A number of orders from Hammurabi giving exemptions from such requirements to priests and persons tending flocks of sheeps have been found.
Land holders containing water bodies or riparian owners are expressly required to keep in good repair canals, quays, bridges, etc., in addition to the normal levy of a proportion of cash and agricultural produce. Each city is allowed to charge its own octroi and customs duties; and ferry , road and water taxes. The king has estates and the money he receives from subjects; high officials get residences and endowments from him. Rules governing certain feudal classes are given in the Codex. They get a house, garden, field , stock and a salary, for which they are required to be on the king’s beck and call at all times, a privilege they can decline only on pain of death. If required to go abroad, they could depute a capable son to go there. If there is no such son, he is replaced by a locum tenens (a temporary deputy) while one-third of his earnings are given to his wife and children for expenses. Excepting this provision, the fief is otherwise inalienable and can not be devised, diminished, exchanged, pledged, sold or sublet. All other land is leased from the state, while ancestral estates remain with the family for all time. Even then, if a land is sold the family retains the right of redemption in perpetuity.
The temple enjoys a unique position in the society, receiving tithes, customary shares from sacrifices and other offerings of the devotees, large amounts of produces from its estate in addition to money and other gifts, and employing many people if it happens to be large. It seems each city is initially a cluster round the temple, with the heads of all families there having the right to minister the temple and to a share in the receipts. In time, the families of the founders come to possess the right to manage the shrine or its gates for so many days in a year, which becomes a kind of property that can, be rented, pledged or shared within the family, but not alienated. Even after meeting those demands, the temple has a lot of assets and becomes a large granary and a store – house besides being the city archive. The temple has its share of responsibilities. Poor farmers go there to borrow seed, grain, and other requirements for farming, advances they are to return without interest. If a citizen becomes a prisoner of war, and is unable to secure his release by paying the enemy, the temple of his city has to intervene and do so. The king has no proprietary control over the temple; he only administers it. Like any other citizen he can borrow from the temple, and like them has to pay back. Persons devoted entirely and solely to the service of god are called hierodules or vestals in the Codex. They are required to remain chaste and are forbidden to go to a public house or tavern. They live in large nunneries and like other devotees enjoy lots of benefits.
Disposal of properties can be done in a number of ways according to the Codex such as barter, deposit, dedication, gift, loan or pledge – all matters of contract. A sale means handing over of the thing sold to the buyer, which in land deals is symbolized by a key, a staff or a sale deed given for the money paid and receipt. If sold on credit, the purchaser has to give a bond promising payment. Claims without supporting documents or witnesses are not admissible. The buyer has to check the sellers title before purchase. If he buys from a minor or a slave without power – of – attorney, the transaction will be regarded as theft (the punishment for which is death). Likewise, a receiver of stolen goods has to produce the seller and supporting documents or witnesses to the transaction, failing which he is to be executed as a thief. If he produces supporting documents or witnesses to the sale, he is spared and has to return the the things to the actual owner. He is of course entitled to press charges against the seller. If the seller is already dead, then he receives a five – fold compensation. The purchaser of a property belonging to a fiefdom or to a ward in chancery has to return it to the owner without any compensation. A sale becomes invalid with immediate effect, if there is an undisclosed liability or a defect in the sale deed.
Generally, land holders cultivate their lands themselves. They can also engage a farmer to till the land or give it on rent . The farmer so employed is liable to properly carry out his task, raise an average crop and keep the field in good order. The Codex prescibes a statutory return in the event of a crop failure. The losses due to crop failure in leased or rented land are to be borne by the tenant. If let on a profit sharing basis, the loss is to be shared in the same proportion as the profit envisaged. The land holder has no right to interfere when the tenant is keeping the land in good order, nor can he prevent the tenant from subletting it. For waste land, the tenant is bound to reclaim it, and remains rent – free for the first three years, and thereafter a statuttory rent given in the Codex is charged. If he neglects to reclaim the land, not only he has to pay the statutory rent but also to return the land to the owner in good order (in a reclaimed condition).The same conditions are applicable to gardens and orchards, but for date groves the free tenure is for four years. Temple lands are mainly cultivated under the metayer system which is a form of share – cropping with the owner providing most of the required agricultural inputs like seed, food for the workmen, fodder for the cattle, etc. The caretaker or the tenant usually has land of his own, and if he steals any of the inputs given to him, the Codex states that his fingers be cut off. He is heavily fined if he appropriates the implements or starves the cattle, and is to be gored and trampled to death by the cattle in the field if he fails to pay the fine. As irrigation is a prime requirement for raising crops, it is mandatory for the tenant to keep the system in good repair. If due to a damaged dyke or an open sluice the neighbour’s field is flooded and his crops are ruined, the caretaker has to pay for it or be sold with his family to raise the money. Stealing of water – bucket or other farming implements is fined heavily. Houses are generally given on rent for a year or longer than that, and the rent is to be paid in advance every six months. The house is required to be kept in good condition by the tenant. Woodwork like doors and door frames is removable, and the tenant is permitted to fix his own and to remove them when he is vacating the house. If the owner repossesses the house before the term is over, he must repay a fair proportion of the rent. A land holder can give his land on lease for the construction of houses and other buildings. Such buildings remain rent – free for eight to ten years, after which they become the land holder’s property.
Even with a plethora of slaves, hired help is necessary, especially during the harvests. The man hiring may or may not make the completion of the work a binding contract, and if so can ask for a surety or collateral. Hired cattle are used for ploughing, drawing water, threshing, etc. The Codex has fixed wages for seed planters, ox drivers, labourers, etc., hiring charges for oxes and donkeys. Flocks and herds of sheeps are given to shepherds against receipts for taking the animals to pastures. The shepherds get a statutory wage and are responsible for the care of the flocks and herds. They are liable to restore ox for ox, sheep for sheep, and are required to breed them satisfactorily. If he is less than honest in using the flock, the loss is to be compensated tenfold. If he is just negligent, he is required to make good the losses. If his flock gets into a field of crops, he has to pay for the losses fourfold; for standing crops (about to be harvested) the compensation is twelvefold. Losses due to disease or wild animal attack are to be borne by the owner.
Commerce & Trade
Commercial contracts generally stipulate payments in cash, in the currency of the place concerned, such as Babylon, Assyria, Larsa, Carchemish and so on. Payment in kind, however, is common according to a statutory scale given in the Codex. Anyway, loan is given to a person and its recovery has to be from him. No distraint on the debtor’s grain or animals is allowed. If there is such a forcible seizure, the debtor has to return the things taken. He is fined and loses his claim altogether. A man charged for non – payment of debt is allowed to nominate as mancipium or hostage to work off the debt, his wife, a child, or slave. The hostage can be held for only three years, and if the mancipium dies during that time due to natural causes the creditor is not responsible. If, however, the death is due to the cruelty of the creditor, he has to replace a son for a son or pay for a slave. Property is often pledged for a debt. Such property is to be of an intrinsic value equal to the debt. Personal guarantees are also common in which the guarantor himself is liable if the debtor fails to pay.
Having regard to the extensive trade carried throughout Babylonia and beyond, the Codex lays down comprehensive rules for its conduct. A merchant normally gives his goods to a travelling agent to find markets for his goods or finances him for journeys beyond the limits of the empire in camel trains or caravans. The agent has to give a receipt for the goods received in detail. Claims are to be made on that basis, and the agent is liable to return double of what he received even if there is no profit. He is, however, exempted for losses due to robbery or extortion during his travels. If the agent cheats, he has to pay three times the amount involved; for the lending mercant the fine is six times. The normal practice is to share the profit as per the contract, usually on a 50 – 50 basis. The caravans take the goods to the agent upfront, for which they give a receipt. They are fully responsible for the goods and obtain receipts on delivery. Failure to do so means paying a fine five times the value of the goods transported. He is paid his charges in advance. Warehousing, especially of grain, is one – sixtieth of the value of the material stored. The storekeeper is to take all risks and pays double for any shortage, but claims are not admitted unless backed by a properly witnessed receipt. The Euphrates River and the canals carry a lot of water – borne traffic, and ships (their tonnage determined by te amount of grain they carry) are continuously hired. Shipbuilding charges and the hiring rates for its crew are given in the Codex, and one year’s seaworthiness of the vessel is mandatory. The safety of the ship and the freight on board is the responsibility of the captain; he has to replace all losses. Disorderly conduct or treasonable activity in a tavern is not tolerated where the price of the liquor is fixed. The tavern – keeper is to report such matters and take the offenders to the police on the pain of death. It is common to pay through a banker, and written drafts against deposits are accepted. Bonds for payment are accepted. Interests for overdue loans are very high. There are instances of even temples charging 30 percent.
The earlier practice of regarding marriage as a form of purchase continues, but is essentially a contract to be man and wife. Relatives arrange the marriage, the groom’s father pays the bride – price and the suitor presents this to the bride’s father along with other gifts. These are returned to the groom upon marriage together with the dowry, which is the daughter’s share of her father’s property. The bride – price is more than that of a slave, but varies widely depending on the status of the parties. If the father refuses to give her daughter in marriage after receiving the presents, he is to return double of what he received. If the groom changes his mind, he loses all that he has given as presents. Lands and such may be given as dowry, but usually it consisted of personal effects and household furniture. It remains with her for life and passes on to her children thereafter. The marriage is necessarily to be conducted by a freeman and is a ceremonial joining of hands and the utterance of some formula of acceptance on the part of the bridegroom, as “I am the son of nobles, silver and gold shall fill thy lap, thou shalt be my wife, I will be thy husband. Like the fruit of a garden I will give thee offspring.” According to the Codex, the marriage is not valid unless there is a specific contract stating the consequences to which each party is liable for repudiating the other. But the contract may contain provisions not in the Codex, such as, that the wife is to act as a maidservant to her mother-in-law, or to a first wife. The man and wife form a unit as to external responsibility, especially for debt. The man is responsible for debts contracted by his wife, even before her marriage, as well as for his own; but he can use her as a mancipium. For this reason, the marriage contract has the provision that the wife is not to be seized for her husband’s pre – nuptial debts and vice versa. A man may make his wife a settlement by deed of gift, which gives her a life interest in part of his property, and he may allow her the right to bequeath it to a favourite child; but she is never allowed to leave it to her family. Even after marriage, she remains a member of her father’s house – she is rarely named wife of A; usually daughter of B, or mother of C.
The man has the option to divorce, when he is required to give everything he has received in the marriage and the custody of the children to the wife. Thereafter, he has to assign her the income of field, or garden, as well as goods, to maintain herself and children until they become adults. She shares equally with the children the allowance (as also probably his estate in the event of his death) and is free to marry again. If there is no children, the dowry is returned and the wife gets back the bride – price. If no bride – price has been paid, he has to pay her a mina of silver, written in the contract as forfeit for repudiating a wife. A bad wife (undefined) has no such privileges. The man is permitted to send her away keeping the dowry and the children with him. The worse thing is that he can downgrade her to a slave in his house with just food and clothing for maintenance. She can retaliate by charging him with cruelty and neglect, and if she proves her point gets a judicial separation along with her dowry. There is no other compensation for her. If she proves wrong, she is drowned. The marriage is dissolved if a man wilfully deserts his wife or is exiled. If he returns, he has no claim on her property and most probably not even on his own. A widow stays on in her husband’s house, bringing up the children. She can remarry only after obtaining judicial consent. In that event, the judge checks and makes a list of every item in the deceased’s estate and gives it to her and her new husband in trust for the children. They are not permitted to sell or give away anything mentioned in the list.If she does not remarry, she lives on in her husband’s house and gets a child’s share on the division of his estate, when the children comes of age. She still retains her dowry and any settlement deeded to her by her husband, which goes to her children as inheritance. If she has remarried, all her children get an equal share in her dowry, but the first husband’s gift fell to his children, or to her selection among them, if she is so empowered.
Normally, monogamy is the rule, the exception is when a childless wife allows her husband to live with a maid (who is no wife) to bear him children. The children are regarded as her own, and she remains the mistress of her maid. She is permitted to degrade the maid to slavery again for insolent behaviour, but is not allowed to sell her. If the wife gets a maid to live with her husband, the Codex does not allow the husband to take a concubine; if she does not, he is free to do so. The concubine is a co-wife, though not of the same rank as the first wife; the first wife has no power over her. A concubine is a free woman, is often given dowry for marriage, and her children are legitimate. She can only be divorced on the same conditions as a wife. If a wife becomes a chronic invalid, the husband is bound to maintain her in the home they have made together, unless she prefers to take her dowry and return to her father’s house. A man with an invalid wife is free to remarry. In all these instances, the children are legitimate and lawful heirs.There is, of course, no restraint on a man having children by a slave girl. Such children are born free, and their mother is not for sale. She becomes free upon her master’s death. Her children are legitimized by their father’s acknowledgment before witnesses, and are often adopted. Thus adopted, they rank equally in sharing their father’s estate; but if not adopted, the first wife’s children divide the estate and take the first choice. The vestal virgins are not supposed to have children, even though they are permitted to marry and often do so. The provision of a wife giving her husband a maid in the Codex is also for this reason. Free women are permitted to marry slaves and are eligible for dowry for the marriage. Their children are free, and after the slave’s death, the wife takes her dowry and half of what she and her husband have acquired in wedlock for self and children; the master taking the other half, as his slave’s heir. A father has control over his children until they are married. He has a right to what they earn by their labour, in return for their keep. He has the authority to hire them out and receive their wages, pledge them for debt, even sell them outright. Mothers have the same rights in the absence of the father; elder brothers, when both parents are dead. A father has no right to ask his married children for support, but they retain the right to inherit on his death. A daughter is under the absolute control of her father; he decides everything for her; often when she is a child. He has the power to give her in marriage, dedicate her to the service of some god as a vestal or a hierodule; or give her as a concubine. She has no choice in these matters. When she is of age, she can opt to become a votary or nun (may be to escape from an uncongenial marriage), and the father seemingly has no power to stop her from being one.
In all such instances, the father may provide her with a dowry. If he does not, on his death her brothers are required to do so, giving her a full child’s share if a wife, a concubine or a vestal, but one-third of a child’s share if she is a hierodule or a Marduk priestess. As the god Marduk holds a pre – eminent position in the Babylonian pantheon, the priestesses in his temple have the privilege of exemption from state dues, and absolute control over their properties. All other daughters have only a life interest in their dowry. It reverts to their family, if they are without any children, or is inherited by their children when they have some. A father may decide to execute a deed giving the daughter the power to leave her property to a favourite brother or sister. Generally, brothers look after the properties of their sisters. If she is not happy with them, she can appoint an agent or a steward. A married woman’s estate is managed by her husband. Apparently, a son also gets some share of his father’s estate on marriage; but instead of leaving he brings his wife to live there. Usually, this happens in child marriages.
The cardinal principle in criminal justice is the lex talionis – eye for eye, tooth for tooth, limb for limb is the penalty for attacking and injuring an amelu. In a symbolic way this is reflected when the hand raised against a father is cut off, the eye which pries into forbidden secrets is blinded, and the ear (the organ of hearing and symbol of obedience) of a slave is removed for hitting a freeman. Likewise, a surgeon whose negligence resulted in a loss of life or limb and a brander removing a slave’s identification mark lose their hands. False accusation, consequent to which someone else may have died, is punishable by death. The perjurer bringing false witnesses to put someone else to death also gets a sentence of death. The death penalty is freely awarded for theft, and other crimes considered as similar to that, like entry into the palace or the temple treasury with the intent to steal; unlawful purchase from a minor or slave; selling stolen goods or receiving the same; and kidnapping. For claiming ownership of goods falsely; for helping and sheltering runaway slaves or detaining and appropriating them; for committing highway robbery; for dishonestly selling drinks; for causing death of a householder by bad building; and a host of other similar crimes the penalty is death. How the sentence is to be carried out or the method of execution is not specified in the Codex. Anyway, gibbeting or hanging from a post at the scene of the crime for burglary; burning a vestal for entering a tavern; and drowning a man for rape are the punishments mentioned. Interesting applications of the principle of lex talionis are the sentences of death given to a creditor’s son for his father having caused the death of a debtor’s son as mancipium; to a builder’s son for his father’s responsibility in causing the death of a house-owner’s son by building the house badly; and to a man’s daughter because her father caused the death of another man’s daughter. It is but natural for contracts not to include such criminal developments in the text as a rule. The marriage contract is an exception where it is specifically stated that the wife repudiating her husband is to be killed by putting her to sword or strangling or drowning. It is not clear who is the executioner in such instances.
An amelu beating up badly another amelu (who is superior to him in status) gets as punishment sixty strokes of an ox – hide scourge or whip. Saying slanderous things about a married woman or vestal leads to the branding of the speaker, which is as bad as degradation to a slave. A corrupt judge loses his office permanently; while spendthrift wives and unfilial children are awarded slavery. Imprisonment is not recognized by the Codex, but it happens to be quite common. Most common among all penalties is monetary compensation or fine. Fines are imposed for corporal injuries to a muskinu or to a slave (paid to his master); for damages done to property, or for breach of contract. Goods appropriated, illegally bought, or damaged by neglect, are not only returned to the owner, but also are usually accompanied by a fine, giving it the form of multiple restoration. This can be double, treble, fourfold, fivefold, sixfold, tenfold, twelvefold, even thirtyfold, depending on the enormity of the offence.
Intent is an important matter for consideration according to the Codex. Someone killing a man in a quarrel has to swear that he has not done so intentionally, and he is then required only to pay a fine depending on the status of the deceased. Although, the Codex does not say what would be the penalty of murder, but death is invariably the punishment given to a murderer. If an assault results in injury only and is unintentional, then the assailant in a quarrel has to pay the expenses for recovery. A brander, coaxed to remove a slave’s identification mark, has to say under oath that he is not to be blamed, and is set free. If a mancipium dies due to natural causes while under the creditor’s control, the creditor is not punished. Generally, accidents are regarded as a matter of chance unless proved that proper care has not been taken before its occurrence. A deserted wife living with someone else due to poverty is not punished.
Carelessness and negligence, however, are not excused. The negligent surgeon loses his hands , and so does a careless brander. Unsafe houses collapsing on their occupants are not only rebuilt, but also compensated for the properties damaged thereby. If there is loss of life, the offence is further compounded and the principle lex talionis is applied. If during the warranty period of one year a new boat is found defective, the boat – builder has to make it good again.
Status is another important matter for consideration in Codex, the position of the alleged accused is taken into account – mere suspicion is not a valid cause for conviction. The criminal has to be apprehended while he is committing the crime. A man is not charged with theft, unless the stolen things are found in his pssession.
In a lawsuit, the plaintiffs argue their own cases – it seems there are no lawyers. The appeal, however, is in writing; obviously, helped by a notary in its drafting. The judge examines the plea, calls the other parties before him, and sent for the witnesses. If they are not available, the case is adjourned and summons are issued for the witnesses to appear before the judge.
Important lawsuits, especially those involving life and death, are tried by a bench of judges. The judges are assisted by a group of elders who support the verdict, but whose exact function is not quite clear. Deliberations over agreements, declarations and non-contentious cases are usually carried out by one judge and twelve elders. The disputing parties and their witnesses are put on oath. Dishonest witnesses get the same punishment as the person on trial. When matters are beyond the knowledge of people, like the guilt or innocence of someone believed to be indulging in magic or a wife under suspicion, the ordeal by water is carried out. The suspect is forced to jump into the sacred river, when the innocent is expected to swim to safety and the guilty is expected to drown. When no witnesses are there to support the accused, such as highway robbery, the price of a slave obtained abroad, etc., he is given an opportunity to clear himself of the charge by an oath upon his innocence. However, a written evidence is deemed to be the ultimate proof, and its loss considerably reduces the force of the appeal. In such instances, great efforts are made to convince the judges of its existence by the terms of the affidavit of the witnesses to it. If satisfied, the judge issues an order that whenever found it has to be brought before the authorities. There are instances when the court has gone to see the property along with the sacred symbols needed for making the oaths. The verdict is embodied in writing, sealed and witnessed by the judges, the elders, witnesses, and a scribe. The parties are given copies of the verdict after swearing that they would abide by the conditions stated threin. The scribe takes one copy for storage in the archives. Appeals to the king are permitted, and there are plenty of such examples. The court in Babylon appears to be superrior to those in the provincial cities, and a defendant has the right to answer the charge before the local court, and refuse to plead at Babylon. Lastly, offences not included in the Codex are severely denounced, and the offenders are warned that they are likely to be punished by “the hand of God” as opposed to “the hand of the king.”
Excerpts from the Codex, Translated by Leonard William King, 1910
1. If any one ensnare another, putting a ban upon him, but he can not prove it, then he that ensnared him shall be put to death.
5. If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge’s bench, and never again shall he sit there to render judgement.
8. If any one steal cattle or sheep, or an ass, or a pig or a goat, if it belong to a god or to the court, the thief shall pay thirtyfold therefor; if they belonged to a freed man of the king he shall pay tenfold; if the thief has nothing with which to pay he shall be put to death.
15. If any one take a male or female slave of the court, or a male or female slave of a freed man, outside the city gates, he shall be put to death.
21. If any one break a hole into a house (break in to steal), he shall be put to death before that hole and be buried.
36. The field, garden, and house of a chieftain, of a man, or of one subject to quit-rent, can not be sold.
56. If a man let in the water, and the water overflow the plantation of his neighbor, he shall pay ten gur of corn for every ten gan of land.
103. If, while on the journey, an enemy take away from him anything that he had, the broker shall swear by God and be free of obligation.
110. If a “sister of a god” open a tavern, or enter a tavern to drink, then shall this woman be burned to death
121. If any one store corn in another man’s house he shall pay him storage at the rate of one gur for every five ka of corn per year.
126. If any one who has not lost his goods state that they have been lost, and make false claims: if he claim his goods and amount of injury before God, even though he has not lost them, he shall be fully compensated for all his loss claimed. (I.e., the oath is all that is needed.)
134. If any one be captured in war and there is not sustenance in his house, if then his wife go to another house this woman shall be held blameless.
142. If a woman quarrel with her husband, and say: “You are not congenial to me,” the reasons for her prejudice must be presented. If she is guiltless, and there is no fault on her part, but he leaves and neglects her, then no guilt attaches to this woman, she shall take her dowry and go back to her father’s house.
143. If she is not innocent, but leaves her husband, and ruins her house, neglecting her husband, this woman shall be cast into the water.
153. If the wife of one man on account of another man has their mates (her husband and the other man’s wife) murdered, both of them shall be impaled.
160. If a man bring chattels into the house of his father-in-law, and pay the “purchase price” (for his wife): if then the father of the girl say: “I will not give you my daughter,” he shall give him back all that he brought with him.
175. If a State slave or the slave of a freed man marry the daughter of a free man, and children are born, the master of the slave shall have no right to enslave the children of the free.
176. If, however, a State slave or the slave of a freed man marry a man’s daughter, and after he marries her she bring a dowry from a father’s house, if then they both enjoy it and found a household, and accumulate means, if then the slave die, then she who was free born may take her dowry, and all that her husband and she had earned; she shall divide them into two parts, one-half the master for the slave shall take, and the other half shall the free-born woman take for her children. If the free-born woman had no gift she shall take all that her husband and she had earned and divide it into two parts; and the master of the slave shall take one-half and she shall take the other for her children.
195. If a son strike his father, his hands shall be hewn off.
200. If a man knock out the teeth of his equal, his teeth shall be knocked out.
206. If during a quarrel one man strike another and wound him, then he shall swear, “I did not injure him wittingly,” and pay the physicians.
226. If a barber, without the knowledge of his master, cut the sign of a slave on a slave not to be sold, the hands of this barber shall be cut off.
229 If a builder build a house for some one, and does not construct it properly, and the house which he built fall in and kill its owner, then that builder shall be put to death.
265. If a herdsman, to whose care cattle or sheep have been entrusted, be guilty of fraud and make false returns of the natural increase, or sell them for money, then shall he be convicted and pay the owner ten times the loss.
273. If any one hire a day laborer, he shall pay him from the New Year until the fifth month (April to August, when days are long and the work hard) six gerahs in money per day; from the sixth month to the end of the year he shall give him five gerahs per day.
282. If a slave say to his master: “You are not my master,” if they convict him his master shall cut off his ear.
Hittite Laws — ca 1600 BCE
It is believed that the Hittites were the first to introduce constitutional monarchy in an era when kings were considered to be vice regents of god. There was a group known as pankus, who kept a close watch on the king’s activities. In addition, the king and his family had to often face a rebellious aristrocracy. With a monarchy composed of such elements, no wonder that the Hittites made tremendous progress in legislation and law. A collection of about 200 laws written in the Hittite cuneiform script was found at Hattusa in western Asia Minor. It is a single work in two tablets containing the laws of different periods of the Empire and indicating a steady progress towards mild punishments compared to the generally harsh retributions of the neighbouring contemporary kingdoms. For instance, the punishment for stealing was to compel the offender to give back the things stolen as opposed to death elsewhere. Copies of the laws were subsequently found written in Old, Middle and Late Hittite, thereby showing that the laws were in use as long as the Empire was in existence (ca 16th to 11th century BCE). One of the earlier law awards drawing and quartering for an offence relating to agriculture. Slaves, however, were punished severely. Their owners had the right to kill them at will. Generally, however, an animal was given in return for the slave along with some compensation. An interesting clause is the importance given to the area lying within the bend in the river Halys, regarded as forming the core of the Empire. It states that the reward for the capture of a fleeing slave on the other side of the river is more than that given for capture on this side. Rape was considered to be a capital offence, and a slave disobeying the owner or practising magic was doomed to die. The Hittite laws are in the form of case laws, that is, a situation is given in the beginning and a ruling follows. They are structured as in, if xxx…., then yyyy…. They are not issued as commands, like, you shall not…. Some examples :-
If a man burns down the house of another man, then he has to build the house and give it to the owner. He is not responsible for the loss of life and property due to the fire.
If a slave burns down the house of a man, then his owner has to compensate for it, and the slave is given to the owner after severing his nose and ears. If the owner does not compensate, then he has to give up the slave.
If in a quarrel a man or a woman is killed, then the offender has to provide four men or women in restitution.
If a copper box is made by a smith, then he is paid one hundred pecks of barley. If it is a copper dish weighing two pounds, then he gets one peck of emmer.
If in a quarrel a man kills a female or male slave, then he is to give the owner two female or male slaves.
If a slave gets a groom among free men for his daughter after giving the bride price, then the groom is not to be considered a slave.
If a man injures another, then he has to look after the injured until he recovers, pay the expenses, and provide some one to do the housework of the injured. After recovery , he has to pay three shekels of silver.
If a man disagrees with the king, then he and his family members are decimated; if he questions a lord, then his head is cut off. If a slave rebels against his owner, then he is buried alive.
Mosaic Law or the Laws of Moses — ca 16th Century BCE
These are the laws stated to be revealed by god to Moses on Mount Sinai for the Hebrew People or the Israelites, while they were wandering around the desert for 40 years after getting out of Egypt due to Pharaoh’s persecutions. The Torah is the collection of those revealed 613 instructions or mitzvots, which form the first five books of the Hebrew Bible or Tanakh and of the Old Testament of the Bible of the Christians. Actually, the divisions are not quite clear cut. Torah is also used in a general sense to include Judaism’s oral and written laws containing all the authoritative religious teachings over the ages, and is called the Five Books of Moses. In addition it is called the Pentateuch, after the Greek word meaning five containers or scroll cases in which the five books (scrolls) were kept. These books are : Genesis; Exodus; Leviticus; Numbers; and Deuteronomy (Discourses). The story of creation is narrated in the Genesis along with the tale of Noah’s Ark; Exodus is the narrative of the Hebrew people’s journey from Egypt to the Promised Land under the leadership of Moses; and Leviticus is the priest’s manual for rules and sacrifices. The Numbers gives a census of the Jews reaching towards the end of their journey, while Deuteronomy is a near recapitulation of all that has been stated in the first four books. Incidentally, Moses could not reach the goal he set for his followers to attain because of his disobedience to god in the final stage of the journey even though he lived for 120 years. According to some archaeologists, Moses seems to be a fictional character because of the absence of any evidence like shards of pottery, tablets, etc. relating to him. On the basis of the stories of him in the Bible, he is criticised by many for his intolerance and the harshness of his laws proclaiming death for offences considered to be minor subsequently. It seems, the most well known among his critics is Thomas Paine, who wrote :
“Among the most detestable villains in history, you could not find one worse than Moses. Here is an order, attributed to ‘God’ to butcher the boys, to massacre the mothers and to debauch and rape the daughters.”
John Stewart Mill in his essay, On Liberty, called the Mosaic Law “a barbaric law for a barbaric people.” Anyway, it is the belief of Orthodox Judaism that the Mosaic Law is applicable to Jews even today. Moses is venerated by Jews and Roman Catholics, and is regarded as a Prophet by the Muslims and Bah’ais. The following excerpts from the Exodus begin with the rules for social conduct (including the famous Ten Commandments), though no orderly sequence of numbering has been followed, and end with the civil laws.
1 And God spake all these words, saying,
2 I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage.
3 Thou shalt have no other gods before me.
4 Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth:
5 Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me;
6 And shewing mercy unto thousands of them that love me, and keep my commandments.
7 Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain.
8 Remember the sabbath day, to keep it holy.
9 Six days shalt thou labour, and do all thy work:
10 But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates:
11 For in six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it.
12 Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.
13 Thou shalt not kill.
14 Thou shalt not commit adultery.
15 Thou shalt not steal.
16 Thou shalt not bear false witness against thy neighbour.
17 Thou shalt not covet thy neighbour’s house, thou shalt not covet thy neighbour’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour’s.
12 He that smiteth a man, so that he die, shall be surely put to death.
13 And if a man lie not in wait, but God deliver him into his hand; then I will appoint thee a place whither he shall flee.
14 But if a man come presumptuously upon his neighbour, to slay him with guile; thou shalt take him from mine altar, that he may die.
15 And he that smiteth his father, or his mother, shall be surely put to death.
16 And he that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death.
17 And he that curseth his father, or his mother, shall surely be put to death.
18 And if men strive together, and one smite another with a stone, or with his fist, and he die not, but keepeth his bed:
19 If he rise again, and walk abroad upon his staff, then shall he that smote him be quit: only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.
20 And if a man smite his servant, or his maid, with a rod, and he die under his hand; he shall be surely punished.
21 Notwithstanding, if he continue a day or two, he shall not be punished: for he is his money.
23 And if any mischief follow, then thou shalt give life for life,
24 Eye for eye, tooth for tooth, hand for hand, foot for foot,
25 Burning for burning, wound for wound, stripe for stripe.
26 And if a man smite the eye of his servant, or the eye of his maid, that it perish; he shall let him go free for his eye’s sake.
27 And if he smite out his manservant’s tooth, or his maidservant’s tooth; he shall let him go free for his tooth’s sake.
7 If a man shall deliver unto his neighbour money or stuff to keep, and it be stolen out of the man?s house; if the thief be found, let him pay double.
8 If the thief be not found, then the master of the house shall be brought unto the judges, to see whether he have put his hand unto his neighbour?s goods.
9 For all manner of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing, which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbour.
10 If a man deliver unto his neighbour an ass, or an ox, or a sheep, or any beast, to keep; and it die, or be hurt, or driven away, no man seeing it:
11 Then shall an oath of the LORD be between them both, that he hath not put his hand unto his neighbour?s goods; and the owner of it shall accept thereof, and he shall not make it good.
12 And if it be stolen from him, he shall make restitution unto the owner thereof.
13 If it be torn in pieces, then let him bring it for witness, and he shall not make good that which was torn.
14 And if a man borrow ought of his neighbour, and it be hurt, or die, the owner thereof being not with it, he shall surely make it good.
10 And six years thou shalt sow thy land, and shalt gather in the fruits thereof:
11 But the seventh year thou shalt let it rest and lie still; that the poor of thy people may eat: and what they leave the beasts of the field shall eat. In like manner thou shalt deal with thy vineyard, and with thy oliveyard.
12 Six days thou shalt do thy work, and on the seventh day thou shalt rest: that thine ox and thine ass may rest, and the son of thy handmaid, and the stranger, may be refreshed.
13 And in all things that I have said unto you be circumspect: and make no mention of the name of other gods, neither let it be heard out of thy mouth.
Chinese Imperial or Traditional Laws — ca (2200?) 530 BCE
Zhou Dynasty ca 1120 — 220 BCE
It seems there are references to laws in the Chinese lores of the Xia (c 2200) and Shang (c 1750) dynasties, but a code was actually written on some bronze vessels known as the list of penalties in circa 536 BCE during the reign of the Zhou dynasty. Although the vessels were not found, letters raising objections to the introduction of written laws exist. One such missive states that people would now become fearless, start doing things they have not done before, and take their chances with the code. This was, from the look of it, before the appearence of Confucius (551 – 479 BCE) on the scene, who took the moral high ground. Confucius said (in accordance with the Chinese belief in a higher cosmic order of Heaven, Earth and Man minus any Supreme Entity) that a society is based on five kinds of relationships each with its unique virtue. There is the relationship between fathers and sons where filial attachment is the defining attribute. Next, is the one between the king and his subjects with loyalty as the dominant theme. The relationship binding a husband and wife is composed of love mainly; brothers, brotherliness – naturally; and friends – trust, obviously. The king is the heaven’s emissary on earth, and though the laws set by him have no divine origin, the subjects are required to obey them. Consequently, different dynasties promulgated different laws giving rise to what is known as the imperial or traditional Chinese laws, the main purpose of which was to maintain order. There was not much in them to uphold citizen’s rights and equality. Anyway, Confucius recommended that the best way to an orderly society was through proper conduct and institutions fostering such behaviour. This was known as li. The opposing point of view, known as the Legalist school, wanted written laws and punishments for violating them. This was called fa. Thus li was meant to nip disputes in the bud, while fa was to deter them by punishments. Imperial or traditional Chinese law over the ages was a blend of the two with the Confucian school accepting fa as indispensable despite all moralistic teachings.
Qin Dynasty — ca 220 BCE
Cosmic equilibrium or concerns over familial piety were not on the agenda of the Legalists, they were only interested in maintaining order in the society by punishing harshly those who caused disruptions. There was a little – known Legalist by the name Kuan Chung in the 7th century BCE, but the most prominent members of this school were Shang Yang and Han Fei in the 4th and 3rd centuries BCE respectively. It was Shang who publicised the laws by displaying them outside the royal palace, a somewhat futile exercise having regard to the largely unlettered population. Han was trained as a Confucian scholar, and became a proponent of Legalism subsequently. He wrote a collection of articles on the subject titled Hanfeizi, ridiculing there the status quoists who opposed his proposals to change laws in order to meet the needs of a changing society. In essence, Legalism meant framing of a set of written laws applicable to as many contigencies as possible, summary punishments for violations and rewards for those who promoted the causes of the state. It was resorted to when adherence to moralist principles was not enough to maintain social harmony. When the Zhou dynasty disintegrated, the era known as the period of the Warring States began and the practice of following moralist and legalist principles together was abandoned in favour of harsh legalist measures. During the short – lived Qin dynasty of a little over 10 years (ca 220 BCE), the punishments were particularly severe, like boiling alive offenders and death by tearing off ribs from the chest and such mutilations of accused persons. The measures brought in a short spell of stability : a centralized bureaucracy was formed, gaps in the Great Wall were joined by newly constructed segments, a network of roads was laid and the empire was divided into provinces. Standardized currency, weights and measures were introduced along with an official script. Confucian books and documents were, however, destroyed to remove the vestiges of moralist principles. The flip side is that the empire collapsed; people rose in revolt fearing that otherwise they would be executed.
Han Dynasty — ca 205 BCE to 220 CE
The erstwhile feudal state system was dismantled by Gaozu, the Han emperor, and a supposedly merit – based bureaucracy took its place. Gaozu, a junior prison officer in the Qin regime, was facing death as a punishment for his failure to move a group of prisoners from one place to another due to bad weather. In desperation, he set the prisoners free and led them to revolt. Ultimately, the group developed into an army and brought down the Qin empire when
Gazou became the emperor and the founder of the Han dynasty. He made Confucianism the doctrine of the state, but at the same time asked his comrade in arms Xiao to formulate a written law code. It appears the code consited of 906 volumes, divided into 60 sections.
Gazou’s successor Wu Di ruled that judgments were to be given on the basis of the statutes applicable to the facts of the case. Reforms, like laws against the killing of slaves and abolition of privileges enjoyed by nobles and officials in regard to prosecution and punishments were introduced. Even then, horrific punishments continued such as death by boiling, beheading and sawing off the torso from the waist. Fugitive offenders’ relatives were killed; thieves were branded on the face; and second time accuseds were castrated. Noses were removed; limbs were amputated; and banishment from the kingdom or exile was the punishment for dishonest officials. For minor offences, iron collars were put round the necks of the accused or they were forced to work for long terms in state projects. Officials failing in their duties were removed from their posts and were made to pay heavy fines. There were regime changes in the centuries following, due to which perhaps there was not much law making activities. The Sui dynasty (581 to 618 CE) apparently introduced a set of laws known as the Kaihuang Lu, not a single copy of which was found.
Tang Dynasty — ca 615 to 900 CE
Codification of laws for the whole empire received a boost in the Tang Period, justifiably regarded as the golden age of Chinese history. Increased trade and commerce, blooming art and literature and astonishing devlopments in agriculture and industry are the hallmarks of that era over a millennium ago. Paper was manufactured, printing was invented and coal was burnt to obtain energy (long before the Europeans) during the reign of the Tang dynasty. Agricultural output increased manifold due to irrigation, the practice of crop rotation and use of labour saving methods like ox – drawn ploughs and water – wheels. This all round progress was reflected in the comprehensive law code of the times, which served as a model for the succeeding Song, Yuan, Ming and Qing dynasties. A sort of code was framed replacing the earlier Kai Huang in 617 CE, in which death penalty was restricted to crimes like murder, robbery, treason and desertion from the army. Twenty years later during the reign of Li Shimin, the list of crimes punishable with death or exile was shortened. After a revision in 651, the code was given a final shape in 653 incorporating the harmony among the five elements (earth, water, wood, metal and fire) as also the equilibrium attained by balancing the opposing forces of yin and yang. There were five types of punishments : whipping, caning, imprisonment, exile and death, supposedly in consonace with the harmonies. After minor amendments over the years, the well- known Tang Code of 737 CE consisted of 501 clauses divided into 12 chapters, and included for the first time a punitive measure applicable to businessmen. Clause 33 in the miscellaneous chapter stated that anyone constructing a gate to prevent entry into a market or arbitrarily setting the prices of commodities would be whipped eighty times, and his profits confiscated. The chapters followed the modern practice of listing the definition of the terms employed; administrative and security matters were dealt with next; and then substantive issues like murder, theft and marriage. The last two chapters were on the do’s and dont’s of enforcing a penal code – on making arrests, on conducting trials and on sending offenders to prison. Matters not included in the Code were taken up by issuing administrative statutes, regulations and ordinances, thus bringing a lot of flexibility in the judicial system. It enabled officials to apply rules relating to local customs, without any amendment or modification of the codified laws. Confucian principle of equality was bent a little in the clause of eight considerations where people of high birth (royalty and the like) were punished leniently. These considerations were : relationship, motive, character, profession, past actions, status, companions and habits. One more important feature of the Tang Code was the importance given to filial relationships. Offsprings defying their parents were treated severely, many a times to death.
Yuan Dynasty or the Mongolian Empire — 1264 to 1368 CE
The Sung Dynasty which ruled in between the Tangs and the Mongols expanded the Tang Code and made some superficial changes. When Kublai Khan founded the Yuan Dynasty in 1264, no written code was followed during his reign and the reign of his successors for the administration of justice. The practice was to direct the provincial governments to decide lawsuits by precedents and administrative decrees. Such decrees and important decisions were circulated among all concerned officials as Statutory Regulations. It was necessary to do so because of the empire’s vast administrative structure consisting of twelve provinces exercising control over sixty subordinate regions or taos, which in turn had 185 supervisory circuits or lus under them. The administration, military and watch and ward departments were all separate and functioned independently. The judicial system was under the administrative division, and a subject had to pass six official scrutiny before his appeal was submitted to the emperor.
The Mings — 1368 to 1644 CE
Zhu Yuanzhang or Hung Wu, the founder of the Ming dynasty, wanted to do away with the Mongolian system of justice without written laws and introduced the Tang Code in full and naming it after his dynasty. Some amendments were made in 1374 and 1397, but the Tang Code’s flexibility was retained by issuing supplementary regulations from time to time. The Ming Code remained a masterly work like the one it emulated, but the emperor spoilt his name by his nearly deranged behaviour in the later part of his thirty year rule. He was suspicious of everyone and came down heavily on dishonest palace officials. An official accused of taking bribes was beheaded and the head was put on a pike for public display. So was his skin (after skinning) filled with straw. In one occasion , the emperor suspected his chief advisor to be behind an attempt to his overthrow. He ordered everyone connected with the alleged conspiracy to be killed, and contemporary accounts state that 15,000 people lost their lives as a result. It is reported that officials summoned by him used to take final leave of their families before seeing him because they were not too sure of remaining alive the day next. One significant amendment of the Ming Code was introduced during the revision in 1585, when women were given enhanced protections and rights in marriage.
The Manchurian or Qing Code — 1644 to 1911
Daqing Luli or the Great Qing was the name of the Manchu law code framed in 1740 having 436 chapters and 1800 sub clauses.Comprehensive summaries and explanatory notes were also developed for the benefit of the local li chia system, the existing power hierarchies in villages to resolve disputes. This was necessary to minimise the diifficulties arising due to over centralisation of power and a lack of delegation of authority. In fact, between 1,000 to 1,800 CE, the number of districts in the empire rose from 1230 to 1500. As a result the local magistrates were inundated with disputes brought to them for resolution by people numbering anywhere between 80,000 and 250,000. Great reliance was therefore placed on the ancient belief that criminal violence and moral impropriety disrupted cosmic harmony, and it was necessary to restore it so as to make the society orderly. The Confucian principles were the guidelines for civilised behaviour, while those who were unable or incapable to conform to it were dealt with by legalist principles and punished accordingly. In view of this, civil matters in the legalist system were limited to property rights, marriage and inheritance. The awards were invariably penal, though occasionally monetary compensation was paid. No wonder that the records available show a picture of contradiction and corruption. Despite that, there were a number of checks and balances against blatant misuse, especially in regard to death by execution. The point is that there was no magna carta in the Chinese system to uphold indvidual rights, to say nothing of such exercises running afoul of the state. The central idea was to preserve the empire by etiquette and by good conduct, and when that failed harsh measures were taken to restore order and cosmic harmony. The Manchus failed because the system became unwieldy in the later stages of the empire, and the confrontation with the Europeans helped the process of decay in no small measure. Historians, like Max Weber, until the mid – twentieth century were of the view that because of the Confucian influence law was not exactly a matter of importance in imperial China. This, however, is not quite true as would be evident from the following aphorisms from the legalist principles :-
It has always been true that:
To prove adultery, you must nab both parties;
To prove theft, you must produce loot;
To prove homicide, you must find the wound.
It is also necessary to remember that as early as 220 BCE, the short – lived Qin dynasty introduced the provision of equality (diluted somewhat in the dynasties following) before the law, and the scholar Han Fei author of the legalist doctrine Hanfeizi was himself a victim of the laws he framed when the empire fell. He was tied to four horses and was torn apart as the horses were made to run in four different directions. It was him and his colleagues who stressed that in addition to the moral principles the laws framed by the emperor (no divinity) had to be in clear, easily – understood terms, and people were to be informed of them. There was a list of ten abominable crimes, considered to be most disruptive of social harmony : Rebellion, Sedition, Treason, Disobedience, Depravity, Discord, Blasphemy, Dishonesty, Incest and Disrespect to parents. This kind of codification was the attempts of the rulers to bring the empire under a centralised administration, a process criticised by thinkers like Confucius because it did not differentiate between the noble and the base.
Revived Confucianism in the Han Dynasty continued right upto the Qing period, but by then the legislation had become so unwieldy that even the administration was not aware of all of its complex ramifications. Thus law came to be regarded as official and unofficial, the official variety coming from the emperor while the unofficial was the law of the people or of the business community to deal with matters of common concern. There was no method of separation; the emperor delegated some of his administrative and judicial powers to the officials and retained the rest with him. In effect, administrative and judicial powers were with the magistrates and the legislative function was performed by the emperor. Official law consisted of two components – penal and administrative. The first listed the punishments for deviant behaviour and the second listed the duties of the officials. While records relating to the dispensation of official law are available and accessible, those of the unofficial law are not only diffuse and diverse but also extremely difficult to obtain. It is for this reason early historians were of the view that there was no civil law in the Chines traditional legal system. The penal law had as its base the code of punishments issued by each dynasty excepting the Mongol or Yuan. Generally, the Tang Code was the model followed by the others. It set the rules for awarding punishments (there were specfic punishments for every offence) as also the methods of interpretation. The magistrate had to first define the offence on the basis of the facts and the punishment meant for that offence followed. Mutilating punishments were discarded in the Tang Code and. five forms (death, exile, forced labour, whipping and beating) of punishments were retained. This continued upto the closing years of the Manchu rule in the early twentieth century. There were two sections in the penal code; general principles and specific offences. Some variations and amendments were introduced in the code by different dynasties, and once introduced the rulers and their successors were most unwilling to change them. To add some meaning to the ever – increasing tome, the rulers especially the later ones like the Mings and the Manchus started adding explanatory or sub statutes. Ultimately a stage was reached when sub statutes outnumbered the definitive articles. They were more detailed and had explanatory notes. Sub statutes cleared by the emperor were deemed to be a part of the code, and sometimes contained provisions unrelated to earlier articles. In instances where nothing relevant could be found, the decision of the Board of Punishments was taken as a precedent. From the Han period onwards, the provisions in the code were called either rules or ordinances. The additions were either rulings or models. Mostly they were called decrees.
The administrative law had its origin in the Qin period, and most of its guiding principles were spelt out at that time more than two millennia ago. Naturally, the emperor was supreme and beyond the pale of law. He was the law, had the power to make or break any law and held the authority to overturn any legal decision taken in his name. Despite this unbridled power, the vast bureaucracy acted as a brake on his unthinking use of the machinery of the state. There were instances when he had amended the the recommendation for a corporal punishment by the judiciary, but everywhwere he had recorded why he had done so and under what circumstances. There were also instances of officials pointing out inconsistencies in his decisions and subsequent rectification of the decision by the emperor.
Laws of contracts and properties, customarily known as civil law generally precede the penal law elsewhere. In traditional Chinese law the order was reversed, and principles for dealing with civil matters were either obtained directly from penal provisions or indirectly by reading into the code the basis for a civil suit. This was particularly noticed in suits involving debts and usury, land deals, mortgage of properties, and the prices of commodities in markets. Land holders had two kinds of rights; for the topsoil and for the subsoil. Those with subsoil rights had a permanent claim on land provided they paid the taxes and possessed official seals of approval. They could also lease the topsoil to another party. In that event, he had no right to cultivate and live on the land, which only the topsoil right holder possessed. Cultivation of the land was his right, and he was obligated to pay rent or share a part of the produce with the subsoil right holder. He could sell his right to cultivate the land to someone else, and the topsoil right holder was not authorised to stop him. The land was considered to be owned by the family and not any individual. Another interesting feature of traditional land – holding rights was dian or the conditional sale of the land, which empowered the seller to buy back the property at the original price without any interest because land belonging to a family for generations had to remain with them.
There were no town councils or local government bodies for the magistrates to steer, but that did not mean that the villages were entirely under the disposition of such officials. Village elders or the local gentry were authorised to mediate informally in a civil dispute at the first instance. As traditional Chinese society was largely composed of small agricultural communities, there was no difficulty in finding suitable persons for this purpose. In view of this, most of the social and to some extent civil disputes were resolved at the village level, and the family or the families concerned agreed to abide by the decision of their seniors. That was how commercial disputes were also resolved, and after the formation of merchant’s guilds during the Tang period such bodies played the roles of the elders.
District police chief or the police outpost in – charge under him had the authority to arrest and hold in detention the offender, who could only be convicted after he had confessed to having committed the crime. This was obtained by any one or a combination of those infamous methods of torture, the first of which was a thorough beating. Earlier, the magistrates were empowered to apply the full scale of punishments, including death and exile. Subsequently, after the Qin and Han periods a sort of standard procedure was followed. Regardless of the eneormity of the offence, the matter was presented before the district court of the place of occurrence.After considering the facts of the case, the magistrate gave the punishment according to the code. If more than a beating was recommended, the case was forwarded to the higher court in the prefecture or the province for validation of the judgment. The provincial court could punish the accused no more than a term of penal servitude or forced labour. Crimes deserving the penalty of death or exile were to be reviewed by the head of the prefecture. Death sentences and cases of homicide were sent to the highest judicial authority in the capital, the Board of Punishments. Barring exceptional situations, no death sentence could be carried out without explicit authorisation from the emperor himself. As Confucian moral precepts were considered as essential in the creation of a civilised society and considering that one learned modes of civilised behaviour from parents, filial obedience was given a lot of importance in the Chinese traditions. It was believed that unruly children were prone to violate the law and indulge in criminal activities thereby disrupting peace and harmony in the society they lived.
Obedience to parents fostered the habit of submission to the authority of the emperor. It is for this reason the lack of respect to parents was considered one of the Ten Abominations, a guilt destroying human bonds, going against reason, violating justice and denying the existence of Heaven.
Greek Laws — ca 800 BCE
There are no properly arranged or systematic compendium of ancient Greek Laws, other than the references to such notions in the poems of Homer. As regards the ancient laws in currency in the Greek peninsula of Attica, there are the speeches of the Attic orators and the not too reliable inscriptions. It appears Plato in his writings also discussed the subject from an Athenian point of view, but without any effect on the actual practice of law. Aristotle criticised the work, The Laws of Plato, in his book Politics while commenting on laws in relation to constitutions along with a review of the laws framed by some earlier Greek lawmakers. There are also the diluted interpretations of the grammarians and the commentators on the Athenian constitution, which can be supplemented by the treatise on the Constitution of Athens stating the fields of operation of various public officials and the manner in which the courts of law worked. There were also the works of Theophrastus, a few fragments of which are extant, narrating the laws of various uncivilised and Greek states. In fact, each of the ancient Grecian city – states had their own laws, often in the form of written statutes. The practice of settling a difference between two city – states or between the citizens of a state through some external mediator point to the existence of some general principles of law. This feature could be seen mainly in the laws of inheritance and adoption; in the commercial laws and laws of contract; and the wide dissemination of information on lawful contracts among the public. In the Athenian city – state, men and women were assigned different roles; there were comparatively little difference in status due to birth; and religion had a special importance. Excepting Sparta, most of the city – states followed the Athenian way of life. Sparta was different, following a regimen of strict discipline – the source of the phrase, a spartan way of life. The development of the city states were due to the geographical features of Greece, agricultural plains on the seashore and inland separated by rugged mountains with difficult passages. As a result fairly isolated communities stayed in the areas with their own systems of administration. Even so, the period ending in 900 BCE, was regarded as the Dark Ages. At that time, the Greeks had neither laws nor any system of punishments. If someone was murdered, the family and friends of the victim would find out the murderer and kill him thus beginning an endless series of bloody reprisals. Official laws were made known around the middle of the seventh century BCE. Law makers were appointed officals, usually ex – magistrates entrusted to write laws only. They were required to be completely neutral and political outsiders. Ancient Greeks had their first written law ca 620 BCE framed by the strict lawmaker Draco (whose name is commemorated in the phrase draconian laws). Harsh penalties were quite common among his prescribed punishments, out of which the next humane lawmaker Solon (c 594 BCE) kept only exile as the penalty for homicide. It was Solon to whom the honour for creating four basic categories of Ancient Greek laws was due. These were : the laws of the torts; of family; of public; and of procedure.
Laws of the torts
Someone causing harm to someone else or to his property is liable to tort, to pay for restitution. Both Draco and Solon wrote a number of laws for tort, mentioning specific punishment for a particular crime. However, for most of the crimes the penalty was monetary compensation. Thus murder was under the purview of tort, for which Draco specified the penalty of exile. Solon fixed the penalty for rape at 100drachmas, and ruled that for theft it would be depending on the amount of money stolen. Quite a variety of offenses were included, like, say, a dog bite. The dog was to be surrendered to the authorities with a three cubit long wooden collar (so as to prevent it from biting the dog – catcher, presumably). Concerned over the dense positioning of residences in the cities, Solon even provided guidelines for spacing and positioning of houses, walls, wells, dug – out ditches as also some types of trees with spread – out under the soil roots (perhaps with a view to make good use of the nutrients in the soil).
Family laws .
The family laws written by Solon were meant for the regulation of behaviour of married men and women; there were provisions for allowances in marriage and adoption; for inheritances and the roles (recommended) for parents supporting the couple and their children. No penalties were set for transgression of these rules; it was upto the head of the families to discipline the erring members. As the women in Greece of the times were under the control of either their fathers or their husbands (kyrios or official guardian), there was not much in the family laws relating to them. Women were occasionally present in the courts as witnesses in trials for homicide or to evoke sympathy among the jurors deliberating over the fate of the members of their families.
Such laws were formulated as guidelines for the provision of public services as also the manner in which public functions were to be conducted. Quite a number of this type of laws were written by Solon. For example, he ruled that people living at a distance from drinking water wells were to dig wells of their own. Prevented the export of agricultural products (not grown in sufficient quantities) except olive oil, of which there was always a disposable surplus. Put a ceiling on the land area a man could possess. Enabled vendors to fix themselves the rate of interest to be charged, and banned the trade in perfumeries so as to curb (presumably) useless ostentation.
These laws were meant for the judges telling them how to make proper use of the diktats.
Step by step procedures were outlined for enforcement of the laws. Solon even laid down the minimum number of witnesses to be called for deposition in trials for homicide. The court system of the Greeks was not run by specialists. There were no appointed judges or court officials; nor was there any lawyer. A lawsuit was brought to the court by two litigants, one arguing that an illegal act was committed and the other defending or justifying the action. The jurors composed of the gathered audience voted for one or the other, and if their verdict was against the offender, further decided on the penalty to be imposed. Normally, a case consisted of two “litigants,” one who argued that an unlawful act was committed, and the other argued in defense. The arguments before the courts were rhetorical and were called deliberative and forensic. The deliberative was a speech of a general nature while the forensic was for or against the accused. Areiopagos was the name of the earliest court where homicide cases were heard only in the beginning. Subsequently, however, it began to try other cases as well. It was composed of former magistrates or arkhons, who conducted the preliminary hearing but had no role in the main trial and its proceedings. Among its arkhon members, there was a group consisting of eleven people, called the Eleven. This group had the power to arrest a criminal and to kill him if he was ‘ep autophoro’ , that is, caught red handed. Circa the fifth century BCE, the Areiopagos was assigned to carry out political and religious trials, and its erstwhile functions were divided among four separate courts. These were : the Prutaneion deliberating over and deciding on instances of death caused by an animal or an inanimate object; the Palladion – on accidental death and slaying of aliens; the Delphinion – on justifiable homicide; and the Phreatto – on second time offenders. The group lording over these courts consisted of nearly sixty people and were called the ephetai. They were from Areiopagos and continued to function till ca 400 BCE, when they were replaced by democratically elected jurors or the dikastai. The emergence of the ephetai heralded the beginning of the courts of the dikastai or dikastic courts. In such courts every kind of case was heard, including public and private hearings. The dikastai or the jurors were authorised to determine the law applicable; to decide the relevant facts; and to pronounce the verdict. There were three requirements to fulfil to become a juror : full citizenship; 30 years of age or above; and participation in the annual oath taking ceremony for the office in that year, limited to 6,000people. The number of jurors for ordinary or public cases was 500 while for private hearings the number was between 200 and 400. The panel of jurors for a case was made up of the dikastais who showed up on the day of the trial, and because of the large number of jurors available it was not necessary for an individual dikastai to go to the dikastic court every day. Usually, the trials were over in one day’s sitting.
In order to enjoy full citizenship and the benefits of the city – state laws, one had to be a free – born, land owning, native male. No special status was given to anyone, even though certain families were each assigned to conduct specified public religious festivities. In Athens, there were four social classes based on wealth, and people could promote themselves to a higher class if they made more money. In Sparta, the avowed rival of Athens, everyone was “equal” provided they had the required education. Anyway, despite this measure of equality, Spartans got their kings cum spiritual leaders from two families only.
Slaves were allowed to have families and own properties, but were devoid of any political rights. They were considered to be the personal property of their masters. Every household, even the poor ones, possessed slaves, using them as servants or labourers. Their masters often promised to free them, with the idea of making them work hard. The masters were not allowed to beat or kill their slaves. City – states had their own legal slaves, who lived on their own doing special work allotted to them and were more independent than the household slaves. Such public slaves in Athens were asked to check the circulation of counterfeit coins. Temple slaves were the servants of the temple and assigned work there. Around 500 BCE, slaves accounted for a third of the population of some city – states. Most of the slaves except those in Sparta had revolted one time or the other. The Spartan slaves were composed of people from many areas and therefore lacked the cohesion needed to stage a revolt. Spartans, however, had a special type of slaves known as helots. They were prisoners of war and were allotted to families to free the women from housework (so that they could raise healthy children). As the helots were treated very harshly, they broke into revolts quite often.
Roman Laws — ca 449 BCE to 530 CE
The Roman law, its date of inception unknown, continued to grow over nearly a thousand years, from the beginning with twelve law tables borrowed from the Greeks to the Codes of Emperor Justinian I so as to become later the model to be followed or emulated in various parts of the world. Circa the middle of the fifth century BCE, C. Terentilius Arsa, the tribune or protector of the plebeians (working class Romans) proposed that there should be written laws in order to prevent its misuse by whimsical and condescending patrician (upper class) magistrates. Naturally, the Patricians did not like the idea, and the debate went on for eight years, after which some people were sent to Athens to copy out the Laws of Solon, the reputed Greek lawmaker besides similar deputations to other Greek cities. Around 451 BCE, ten Romans were selected to write down the laws and they (known as the decemviri legibus scribundis ) completed the work a year later, putting down the laws in ten tablets. The plebeians, however, were not happy with the results and another group was given the task . This body finished the work in another year, in 449 BCE, but used twelve tablets to record their compilations. This Law of the XII tables was approved in the People’s Assembly. The foregoing account based on the narratives of contemporary Roman historians are viewed with some skepticism. Doubts are expressed that a second group of scribes was ever formed. Then, the matter of Greek influence on early Roman law is still being discussed by the scholars. Another point of view is that the Romans had no need to send a delegation; the Greek city of Magna Graecia was Rome’s window to the Greek world, and the copies of legislation could as well have been obtained there. Lastly, the twelve tablets were never found – the Celts apparently destroyed them when they descended on Rome in 387 BCE for conquest and plunder. A very recent paper has suggested that early Roman law was derived from the Etruscan religion with its emphasis on pomp, pageantry and ritual.
Between 754 and 201 BCE, only Roman citizens were allowed to take recourse to its old civil law, an undeveloped, religion – oriented, conservative and symbolic legal instrument, as would be seen in the form of sale called Mancipatio where five witnesses were required to complete a simple transaction. The twelve tables which came into existence around the fifth century BCE, were not exactly codes of law. Instead of giving a set of laws applicable to all possible situations, they were formulations meant to amend the customary law of the times. Though the amendments included nearly all aspects of law, special emphasis was given to civil procedure and private law. It seems the class struggle between patricians and plebeians in republican Rome not only resulted in the XII tables, but also in strking advances in the field of law. Lex Canuleia enacted in 445 BCE permitted marriage between patricians and plebeians. Lex Licinia Sextia in 367 BCE banned possessions of private lands stipulating that one of the consuls (magistrates) deliberating over such a matter had to be plebeian. Lex Ogulnia (300 BCE) enabled plebeians to become priests; Lex Hortensia (287) made decisions of the plebeian assembly binding on all people; and Lex Aquilia (286) planted the seeds of modern tort laws. All this pale into relative insignificance before the greatest contribution, the emergence of a class of trained jurists and of a science based on law. It is interesting that the Romans applied over the years the scientific principles of Greek philosophy on matters of law and formulated a legal science, an exercise the Greeks never undertook. It is said that the formularies or the standardized words used to begin a legal process were published by the jurist Gnaeus Flavius in 300 BCE, which the priests guarded as a secret before that time. This could be an apocryphal story, but jurists were very much in action and were writing treatises on law in the 2nd century BCE. Among the famous jurists of that time were Quintus Scaevola, the author of a large tome on everything in law and Servius Rufus, a friend of Marcus Cicero. This period of sophisticated and refined legal culture was prevailing, when (in 27 BCE) republican Rome transformed into a monarchical principate. Around this time, judicial officers like magistrates and praetors started adaptation of law to new situations. The praetors, who were not legislators and did not technically framed any new law while issuing edicts, were more active in this regard. Anyway, the resultant actions based on his edicts enjoyed legal backing and were often the source of new legal rulings. The successor of a praetor was not bound by the previous edicts, but he certainly used the ones he found useful to his purpose. As a result an ever increasing corpus of edicts came to exist in time. This praetoric law was parallel to the civil law in addition to supplementing and correcting it, and in the end the two became one in what was called Corpus Juris Civilis.
Classical Roman laws
Roman law and Roman legal framework went on to reach the peak of excellence in the first two and a half centuries of the common or current era (CE), known as the classical period. It was then, the Roman jurists acting in different directions endowed the Roman law with its unique characteristics. The jurists counseled individuals; advised magistrates and praetors (specially) on how to state in their edicts issued in the beginning of their term what they intend to do; and were often in high administrative and judicial positions themselves. In fact, their advises to the praetors were compiled in a book known as the standard form of edicts ca 130 CE by Salvius Iulianus, which the praetors used from then on. The book provided descriptions of the cases where the praetor could start legal proceedings and instances where he could be lenient to the defendant. Although it formally lacked the force of law, in effect it was like a law code and was the subject of numerous commentaries by jurists later. Some of the cherished principles of law developed by the jurists of that time were:
Separation of the rights to use a thing (ownership) from the distinct ability to use the thing for a purpose (possession). The difference of legal obligations of a tort from those of a contract.
Formulation of standard wordings for contract (sale, hire, for services, for work and so on) and the necessary features of each such contracts; and
The system of private law framed by the jurist Gaius (ca 160 CE) dividing all materials between classes of personae (persons), res (things) and actiones (legal measures), a system that was followed for centuries later; was the subject matter of numerous commentaries; and had a distinct influence on the French Civil or Napoleonic Code.
The conditions needed for supporting a flourishing intellectual (and legal) culture did not last long, and deteriorated with worsening economic and political conditions. The principiate system introduced in 27 BCE retaining some features of the republican ethos gave way to absolute monarchy, with the emperor having his finger in every pie. The spirit of enquiry necessary to carry forward any discipline was not in line with the political dispensation from the middle of the third century CE. Consequently, development of legal science nearly stopped, and there was no
jurist who made a name like his predecessors. Some activities on legal science, on the subtleties of classical law were carried out in the eastern part of the kingdom, but in the west classical law was replaced by what was known as vulgar law. The writings of the eminent jurists were changed to fit into the new situation. During the period 529 to 534 CE legal materials of various kinds were collected under the orders of emperor Justinian I which became the basis for the revival of Roman law. This revived version of Corpus Juris Civilis influenced the Canon law of the Catholic church, and subsequently the foundation of all civil law systems.
There were different bodies of common law applicable to different categories of people. Thus ius civile (citizen law) was applicable to Roman citizens; and ius gentium (law of the people) was the law applicable to foreigners and their dealings with the Romans. There was also the ius naturale or natural law, the law applicable to everyone. The jurists reasoned that any law which made sense to everybody was a natural law. It was for this reason slavery was a part of ius gentium. Though slaves were a fact known and accepted by all people, it was not exactly natural and, possibly, there were some people to whom it did not make any sense. Written and unwritten laws were called ius scriptum and ius non scriptum respectively. They were so called after the manner of their creation and not whether they were read or heard. The ius scriptum was the body of the statutes passed in the legislature and consisted of : magisterial edicts; Senate decisions; commentaries of jurists; and monarchial proclamations. The ius non scriptum was customary practices turning into laws due to long usages. Ius publicum and ius privatum denoted public and private laws respectively; the first protecting the interests of the state and the second those of the individual. The Romans considered property, criminal and civil laws in the domain of the private as also judicial proceedings and crimes (excepting the serious ones requiring state intervention). Till the time Roman empire was in existence, public law used to contain some parts of the private law.
There was no prosecution service conducted by the state, and cases were brought by the citizens themselves for which they received no or little monetary compensation. Politicians, however, did so regularly because that was considered a public service. Either verbal or written summons were issued, following which a judge to decide the case was appointed. The judge had to be a male Roman citizen and generally a private individual. The contestants were required to be unanimous in selecting a judge from a prepared list. For important cases of the state, a five – member bench of judges was formed. It was not binding on a judge to try a case, but he had a moral obligation to do so. He was at liberty to chose the manner in which he conducted the proceedings, and passed his ruling after going through the evidence. As he was neither a jurist nor a trained legal person, he often took the help of a jurist to understand the case (but was not bound to follow the advice proffered). If things were beyond his comprehension, he could refuse to pass any order. He was required to decide one way or the other within a stipulated time. When bureaucracy took over the judicial process, a magistrate reached a decision in a single sitting. He could not refuse to pass a judgment, and his verdict could be appealed against before a magistrate superior to him.
Manusmriti or the Laws of Manu — ca 200 BCE to 200 CE
Whether or not Manusmriti or the Laws of Manu can be called a code of law is a matter of controversy even now. It was there for everyone to see since it was compiled in Sanskrit until Sir William Jones, the founder – president of the Asiatic Society, Kolkata, himself a Sanskrit scholar, found it and translated it. As the Britishers were not too disdainful of Indian culture at that time and as they were looking for a suitable prop to support their fledgling colonial administrative structure, they were not to be blamed for picking it up as the code of conduct (and laws) of the Hindus. It was Raja Rammohun Roy’s determined opposition which prevented its adoption though some vestiges of it remained in the regulations. But a code of conduct (and law) it certainly is if caste divisions and the doctrine of four stages in life (student, married, retired and renunciation) are accepted. Such acceptance is also open to question, the reasons for and against which are to be found in the Vedic and the Upanishadic texts. Perhaps, that is why despite repeated recommendations of daily readings of the Vedas, the Manusmriti never refers to the source of the rules contained therein, other than a nebulous Svayambhu (as is evident from Stanzas 5 and 6 in Chapter I) :
5. This (universe) existed in the shape of Darkness, unperceived, destitute of distinctive marks, unattainable by reasoning, unknowable, wholly immersed, as it were, in deep sleep.
6. Then the divine Self-existent (Svayambhu, himself) indiscernible, (but) making (all) this, the great elements and the rest, discernible, appeared with irresistible (creative) power, dispelling the darkness.
Manu said that (according to the opening stanza) to a delegation of sages (rishis) who had gone to him to know sacred laws of each of the (four chief) castes (varna). Smriti literature, also known as the Dharmashastras, appeared at a time when two of the famous emperors of the period became adherents of non-Vedic religions. The first was Chandragupta (ca 340 – 298 BCE) who reportedly starved himself to death in southern India according to the Jain faith after handing over the throne to his son Bindusara. The second and far more famous than him was his grandson Ashoka, who after waging a war in Kalinga (Orissa) and killing over 100,000 people turned to Buddhism and became an ardent proselytizer of the faith. The Dharmashastras were the attempts by the orthodox, ritualistic and upper caste Hindus to prevent erosion of their authority and supremacy, and the Manusmriti was a part of that campaign. According to historian Romila Thapar, “The severity of the Dharmashastras was doubtless a commentary arising from the insecurity of the orthodox in an age of flux.” The period of writng is estimated to be 200 BCE and 200 CE. Manusmriti is composed of 12 chapters containing 2,684 verses, of which 1214 are stated to be originally written and the rest are subsequent elaborations. Mostly written as a code of behaviour and conduct for the members of the four caste divisions, it also contains the rules a just and pious king has to follow along with the customs a virtuous woman is expected to observe. The price one pays for deviation from the straight and the narrow is rather steep: a headlong descent into hell and such other assorted sufferings. Chapter VIII somewhat resembles a code of law, with the first stanza reading :
1. A king, desirous of investigating law cases, must enter his court of justice, preserving a dignified demeanour, together with Brahmanas and with experienced councillors.
Crime and punishment
Not all the 420 stanzas there are on crime and its punishment – some mentions the offence; some other talks of feelings like guilt; and yet some more the offence and its concomitant punishment, including amputation or death.
40. Property stolen by thieves must be restored by the king to (men of) all castes (varna); a king who uses such (property) for himself incurs the guilt of a thief.
94. ‘Headlong, in utter darkness shall the sinful man tumble into hell, who being interrogated in a judicial inquiry answers one question falsely.
181. He who restores not his deposit to the depositor at his request, may be tried by the judge in the depositor’s absence.
270. A once-born man (a Sudra), who insults a twice-born man with gross invective, shall have his tongue cut out; for he is of low origin.
299. A wife, a son, a slave, a pupil, and a (younger) brother of the full blood, who have committed faults, may be beaten with a rope or a split bamboo,
323. For stealing men of noble family and especially women and the most precious gems, (the offender) deserves corporal (or capital) punishment.
408. Whatever may be damaged in a boat by the fault of the boatmen, that shall be made good by the boatmen collectively, (each paying) his share.
Criticisms and Objections
Even a cursory reading of the chapters of Manusmriti shows its heavy bias for Brahmanas, a minority of population then (and now). Anyone not belonging to that chosen caste, especially a Sudra, is not to be blamed for feeling wronged, insulted and derided, as would be seen in the following :
(The Roman numerals indicate the chapter, and the Arabic ones the stanzas, excerpted from George Buhler’s translation of the Laws of Manu, 1886)
I – 99. A Brahmana, coming into existence, is born as the highest on earth, the lord of all created beings, for the protection of the treasury of the law.
III – 110. But a Kshatriya (who comes) to the house of a Brahmana is not called a guest (atithi), nor a Vaisya, nor a Sudra, nor a personal friend, nor a relative, nor the teacher.
III – 111. But if a Kshatriya comes to the house of a Brahmana in the manner of a guest, (the house-holder) may feed him according to his desire, after the above-mentioned Brahmanas have eaten.
III – 112. Even a Vaisya and a Sudra who have approached his house in the manner of guests, he may allow to eat with his servants, showing (thereby) his compassionate disposition.
IV – 80. Let him not give to a Sudra advice, nor the remnants (of his meal), nor food offered to the gods; nor let him explain the sacred law (to such a man), nor impose (upon him) a penance.
IV – 81. For he who explains the sacred law (to a Sudra) or dictates to him a penance, will sink together with that (man) into the hell (called) Asamvrita.
V – 83. A Brahmana shall be pure after ten days, a Kshatriya after twelve, a Vaisya after fifteen, and a Sudra is purified after a month
V – /04. Let him not allow a dead Brahmana to be carried out by a Sudra, while men of the same caste are at hand; for that burnt-offering which is defiled by a Sudra’s touch is detrimental to (the deceased’s passage to) heaven.
VII – 2. A Kshatriya, who has received according to the rule the sacrament prescribed by the Veda, must duly protect this whole (world).
VIII – 16. For divine justice (is said to be) a bull (vrisha); that (man) who violates it (kurute ‘lam) the gods consider to be (a man despicable like) a Sudra (vrishala); let him, therefore, beware of violating justice.
VIII – 21. The kingdom of that monarch, who looks on while a Sudra settles the law, will sink (low), like a cow in a morass.
VIII – 88. Let him examine a Brahmana (beginning with) ‘Speak,’ a Kshatriya (beginning with) ‘Speak the truth,’ a Vaisya (admonishing him) by (mentioning) his kine, grain, and gold, a Sudra (threatening him) with (the guilt of) every crime that causes loss of caste.
VIII – 123. But a just king shall fine and banish (men of) the three (lower) castes (varna) who have given false evidence, but a Brahmana he shall (only) banish.
VIII – 177. Even by (personal) labour shall the debtor make good (what he owes) to his creditor, if he be of the same caste or of a lower one; but a (debtor) of a higher caste shall pay it gradually (when he earns something).
VIII – 267. A Kshatriya, having defamed a Brahmana, shall be fined one hundred (panas); a Vaisya one hundred and fifty or two hundred; a Sudra shall suffer corporal punishment.
VIII – 268. A Brahmana shall be fined fifty (panas) for defaming a Kshatriya; in (the case of) a Vaisya the fine shall be twenty-five (panas); in (the case of) a Sudra twelve.
VIII – 270. A once-born man (a Sudra), who insults a twice-born man with gross invective, shall have his tongue cut out; for he is of low origin
VIII – 272. If he arrogantly teaches Brahmanas their duty, the king shall cause hot oil to be poured into his mouth and into his ears.
VIII – 279. With whatever limb a man of a low caste does hurt to (a man of the three) highest (castes), even that limb shall be cut off; that is the teaching of Manu.
VIII – 413. But a Sudra, whether bought or unbought, he may compel to do servile work; for he was created by the Self-existent (Svayambhu) to be the slave of a Brahmana.
VIII – 418. (The king) should carefully compel Vaisyas and Sudra to perform the work (prescribed) for them; for if these two (castes) swerved from their duties, they would throw this (whole) world into confusion.
IX – 317. A Brahmana, be he ignorant or learned, is a great divinity, just as the fire, whether carried forth (for the performance of a burnt-oblation) or not carried forth, is a great divinity.
IX – 319. Thus, though Brahmanas employ themselves in all (sorts of) mean occupations, they must be honoured in every way; for (each of) them is a very great deity.
IX – 326. After a Vaisya has received the sacraments and has taken a wife, he shall be always attentive to the business whereby he may subsist and to (that of) tending cattle.
IX – 334. But to serve Brahmanas (who are) learned in the Vedas, householders, and famous (for virtue) is the highest duty of a Sudra, which leads to beatitude.
X – 4. Brahmana, the Kshatriya, and the Vaisya castes (varna) are the twice-born ones, but the fourth, the Sudra, has one birth only; there is no fifth (caste).
X – 121. If a Sudra, (unable to subsist by serving Brahmanas,) seeks a livelihood, he may serve Kshatriyas, or he may also seek to maintain himself by attending on a wealthy Vaisya.
X – 123. The service of Brahmanas alone is declared (to be) an excellent occupation for a Sudra; for whatever else besides this he may perform will bear him no fruit.
X – 129. No collection of wealth must be made by a Sudra, even though he be able (to do it); for a Sudra who has acquired wealth, gives pain to Brahmanas.
XI – 35. The Brahmana is declared (to be) the creator (of the world), the punisher, the teacher, (and hence) a benefactor (of all created beings); to him let no man say anything unpropitious, nor use any harsh words.
Some consolation is there for Kshatriyas, Vaisyas and Sudras when Manu says :
I – 87. But in order to protect this universe He, the most resplendent one, assigned separate (duties and) occupations to those who sprang from his mouth, arms, thighs, and feet.
Meaning, that all of them, Brahmanas, Kshatriyas, Vaisyas and Sudras have the same origin, the body parts of the resplendent one, from his mouth, arms, thighs and feet respectively. But Vaisyas and Sudras are then demoted as impure because :
I – 92. Man is stated to be purer above the navel (than below); hence the Self-existent (Svayambhu) has declared the purest (part) of him (to be) his mouth.
Feminists are justifiably angry with Manu, despite some placatory stanzas in chapter III :
56. Where women are honoured, there the gods are pleased; but where they are not honoured, no sacred rite yields rewards.
57. Where the female relations live in grief, the family soon wholly perishes; but that family where they are not unhappy ever prospers.
58. The houses on which female relations, not being duly honoured, pronounce a curse, perish completely, as if destroyed by magic.
59. Hence men who seek (their own) welfare, should always honour women on holidays and festivals with (gifts of) ornaments, clothes, and (dainty) food.
So far so good, the derogatory stanzas are in chapter V discussing women, funeral rites, etc.
147. By a girl, by a young woman, or even by an aged one, nothing must be done independently, even in her own house.
148. In childhood a female must be subject to her father, in youth to her husband, when her lord is dead to her sons; a woman must never be independent.
149. She must not seek to separate herself from her father, husband, or sons; by leaving them she would make both (her own and her husband’s) families contemptible.
150. She must always be cheerful, clever in (the management of her) household affairs, careful in cleaning her utensils, and economical in expenditure.
Again, in chapter IX :
3. Her father protects (her) in childhood, her husband protects (her) in youth, and her sons protect (her) in old age; a woman is never fit for independence.
17. (When creating them) Manu allotted to women (a love of their) bed, (of their) seat and (of) ornament, impure desires, wrath, dishonesty, malice, and bad conduct.
No wonder, the German philosopher, Friedrich Nietzsche (famous for his statement, God is dead) was reported to have said, “Close the Bible and open the Manusmriti” – probably during one of his periods of madness.
during one of his periods of madness.
Moreover, some of the laws are contradictory : stanzas II – 240 and IX – 18 on the education of women oppose each other. Likewise, stanzas 90 and 94 of chapter IX on marriage are confusing , if not in opposition.
II – 240. Excellent wives, learning, (the knowledge of) the law, (the rules of) purity, good advice, and various arts may be acquired from anybody.
IX – 18. For women no (sacramental) rite (is performed) with sacred texts, thus the law is settled; women (who are) destitute of strength and destitute of (the knowledge of) Vedic texts, (are as impure as) falsehood (itself), that is a fixed rule.
IX – 90. Three years let a damsel wait, though she be marriageable; but after that time let her choose for herself a bridegroom (of) equal (caste and rank).
IX – 94. A man, aged thirty years, shall marry a maiden of twelve who pleases him, or a man of twenty-four a girl eight years of age; if (the performance of) his duties would (otherwise) be impeded, (he must marry) sooner.
The word is stated to have been derived from purusha – sukta of the Rik Veda, mentioning that Shudras emerged from the feet of the lord (padbhyAm shUdrO ajaayata). In a symbolic way, it affirms that like a body standing on its feet the Shudras hold up the society. Consisting of members of the professional classes of farmers, blacksmiths, potters, carpenters, cobblers, cowherds and so on, they are indeed the people without whom a society cannot function. Taking the notion further, it can be argued that activities like teaching (Bramhanas), fighting (Kshatriyas) and business (Vaisyas) can be suspended for a while without much effect on daily life. But the contributions of the Shudras are vital, and lack of such support could result in a total breakdown. Manu acknowledges the emanation of Shudras from the feet of the lord, but brands them as impure because the body part down below the navel is unclean, an ex – cathedra declaration. Manu does not say why it is so other than the fact that malodorous excretions come out from there. To compound the matter further, he uses invectives like despicable, etc. against the Shudras. These are incendiary statements, one of the reasons prompting Dr. Babasaheb Ambedkar to burn Manusmriti in public on 25th December, 1972. Two famous and respected Hindu revivalists Swami Dayananda Saraswati (of Arya Samaj) and Srila Prabhupad of Indian Society of Krishna Consciousness (ISKCON) upheld Manusmriti as definitive and true for obvious reasons. It seems, eminent personalities like Annie Besant, Swami Vivekananda, Rabindranath Tagore, Sarvepalli Radhakrishnan, Robert Ouspensky and Pandurang Shastri admired Manusmriti for its philosophical content as in the stanza below :
VI – 45. Let him (a person in Sanyas or renunciation) not desire to die, let him not desire to live; let him wait for (his appointed) time, as a servant (waits) for the payment of his wages.
Subject matter of the chapters
In chapter I itself, Manu provides a brief outline of the contents of the twelve chapters in some stanzas. These can be summed up as discourses on :
A) The creation of the universe, the rule of the sacraments, the ordinances of studentship, and the respectful behaviour (towards Gurus), the most excellent rule of bathing (on return from the teacher’s house);
B) (The law of) marriage and the description of the (various) marriage-rites, the regulations for the great sacrifices and the eternal rule of the funeral sacrifices;
C) The description of the modes of (gaining) subsistence and the duties of a Snataka, (the rules regarding) lawful and forbidden food, the purification of men and of things;
D) The laws concerning women, (the law) of hermits, (the manner of gaining) final emancipation and (of) renouncing the world, the whole duty of a king and the manner of deciding lawsuits;
E) The rules for the examination of witnesses, the laws concerning husband and wife, the law of (inheritance and) division, (the law concerning) gambling and the removal of (men nocuous like) thorns;
F) (The law concerning) the behaviour of Vaisyas and Sudras, the origin of the mixed castes, the law for all castes in times of distress and the law of penances;
G) The threefold course of transmigrations, the result of (good or bad) actions, (the manner of attaining) supreme bliss and the examination of the good and bad qualities of actions;
H) The primeval laws of countries, of castes (gati), of families, and the rules concerning heretics and companies (of traders and the like)- (all that) Manu has declared in these Institutes.
Chapter VIII prescribing the laws, lists in the beginning the 18 titles of lawsuits, which are :
Non-payment of debts, deposit and pledge, sale without ownership, concerns among partners, and resumption of gifts (5);
Non-payment of wages, non-performance of agreements, rescission of sale and purchase and disputes between the owner (of cattle) and his servants (9);
Disputes regarding boundaries, assault, defamation, theft, robbery/violence and adultery (15 ;
Duties of man and wife, partition (of inheritance), gambling and betting (18).
Naturally, there are different methods of conducting the trial, a number of criteria for witness selection, various kinds of oath and so on, but above everything apparently is tustworthiness, especially of those in king’s service :
34. Property lost and afterwards found (by the king’s servants) shall remain in the keeping of (special) officials; those whom the king may convict of stealing it, he shall cause to be slain by an elephant.
With regard to the methods to be used to determine the facts of the case, the general principle is given in stanza 44, and the reasons due to which the plaintiff and the defendant lose their rights to a lawsuit are in stanza 58 :
44. As a hunter traces the lair of a (wounded) deer by the drops of blood, even so the king shall discover on which side the right lies, by inferences (from the facts).
58. If a plaintiff does not speak, he may be punished corporally or fined according to the law; if (a defendant) does not plead within three fortnights, he has lost his cause.
The list of people debarred from appearing as witnesses is in 64; 68 states who could be a witness for whom; and 72 provides the instances where a measure of leniency is necessary :
64. Those must not be made (witnesses) who have an interest in the suit, nor familiar (friends), companions, and enemies (of the parties), nor (men) formerly convicted (of perjury), nor (persons) suffering under (severe) illness, nor (those) tainted (by mortal sin).
68. Women should give evidence for women, and for twice-born men twice-born men (of the) same (kind), virtuous Sudras for Sudras, and men of the lowest castes for the lowest.
72. In all cases of violence, of theft and adultery, of defamation and assault, he must not examine the (competence of) witnesses (too strictly).
Where evidences and witnesses are lacking, oaths requiring super – human abilities provide the clue, as would be seen in 109, 114 and 115 :
109. If two (parties) dispute about matters for which no witnesses are available, and the (judge) is unable to really ascertain the truth, he may cause it to be discovered even by an oath.
114. Or the (judge) may cause the (party) to carry fire or to dive under water, or severally to touch the heads of his wives and children.
115. He whom the blazing fire burns not, whom the water forces not to come (quickly) up, who meets with no speedy misfortune, must be held innocent on (the strength of) his oath.
Stanza 117 relates to false evidence; 118 to grounds for disqualification; and 129 says how to apply pressure :
117. Whenever false evidence has been given in any suit, let the (judge) reverse the judgment, and whatever has been done must be (considered as) undone.
118. Evidence (given) from covetousness, distraction, terror, friendship, lust, wrath, ignorance, and childishness is declared (to be) invalid.
129. Let him punish first by (gentle) admonition, afterwards by (harsh) reproof, thirdly by a fine, after that by corporal chastisement.
Stanzas 147 to 201 are on lawsuits generally of a commercial nature and excepting one instance (193) the penalties are monetary compensations usually :
147. (But in general) whatever (chattel) an owner sees enjoyed by others during ten years, while, though present, he says nothing, that (chattel) he shall not recover.
152. Stipulated interest beyond the legal rate, being against (the law), cannot be recovered; they call that a usurious way (of lending); (the lender) is (in no case) entitled to (more than) five in the hundred.
158. The man who becomes a surety in this (world) for the appearance of a (debtor), and produces him not, shall pay the debt out of his own property.
165. A fraudulent mortgage or sale, a fraudulent gift or acceptance, and (any transaction) where he detects fraud, the (judge) shall declare null and void.
189. (A deposit) which has been stolen by thieves or washed away by water or burned by fire, (the bailee) shall not make it good, unless he took part of it (for himself).
190. Him who appropriates a deposit and him (who asks for it) without having made it, (the judge) shall try by all (sorts of) means, and by the oaths prescribed in the Veda.
191. He who does not return a deposit and he who demands what he never bailed shall both be punished like thieves, or be compelled to pay a fine equal (to the value of the object retained or claimed).
192. The king should compel him who does not restore an open deposit, and in like manner him who retains a sealed deposit, to pay a fine equal (to its value).
193. That man who by false pretences may possess himself of another’s property, shall be publicly punished by various (modes of) corporal (or capital) chastisement, together with his accomplices.
200. Where possession is evident, but no title is perceived, there the title (shall be) a proof (of ownership), not possession; such is the settled rule.
201. He who obtains a chattel in the market before a number (of witnesses), acquires that chattel with a clear legal title by purchase.
When a workman loses his wage; why someone is banished; and what are the responsibilities of cowherds are given in stanzas 215 to 233 while 237 is a pastoral / municipal regulation :
215. A hired (servant or workman) who, without being ill, out of pride fails to perform his work according to the agreement, shall be fined eight krishnalas and no wages shall be paid to him.
219. If a man belonging to a corporation inhabiting a village or a district, after swearing to an agreement, breaks it through avarice, (the king) shall banish him from his realm,
230. During the day the responsibility for the safety (of the cattle rests) on the herdsman, during the night on the owner, (provided they are) in his house; (if it be) otherwise, the herdsman will be responsible (for them also during the night).
232. The herdsman alone shall make good (the loss of a beast) strayed, destroyed by worms, killed by dogs or (by falling) into a pit, if he did not duly exert himself (to prevent it).
233. But for (an animal) stolen by thieves, though he raised an alarm, the herdsman shall not pay, provided he gives notice to his master at the proper place and time.
237. On all sides of a village a space, one hundred dhanus or three samya-throws (in breadth), shall be reserved (for pasture), and thrice (that space) round a town.
Boundarydisputes; use of force to acquire property; and violen actions are dealt with in stanzas 245 to 287 :
245. If a dispute has arisen between two villages concerning a boundary, the king shall settle the limits in the month of Gyaishtha, when the landmarks are most distinctly visible.
253. If there be a doubt even on inspection of the marks, the settlement of a dispute regarding boundaries shall depend on witnesses.
257. If they determine (the boundary) in the manner stated, they are guiltless (being) veracious witnesses; but if they determine it unjustly, they shall be compelled to pay a fine of two hundred (panas).
264. He who by intimidation possesses himself of a house, a tank, a garden, or a field, shall be fined five hundred (panas); (if he trespassed) through ignorance, the fine (shall be) two hundred (panas).
284. He who breaks the skin (of an equal) or fetches blood (from him) shall be fined one hundred (panas), he who cuts a muscle six nishkas, he who breaks a bone shall be banished.
287. If a limb is injured, a wound (is caused), or blood (flows, the assailant) shall be made to pay (to the sufferer) the expenses of the cure, or the whole (both the usual amercement and the expenses of the cure as a) fine (to the king).
Rulings on damages to goods; methods of restraining habitual offenders; and stealing of various articles are mentioned in stanzas 288 to 331 :
288. He who damages the goods of another, be it intentionally or unintentionally, shall give satisfaction to the (owner) and pay to the king a fine equal to the (damage).
293. But if the cart turns off (the road) through the driver’s want of skill, the owner shall be fined, if damage (is done), two hundred (panas).
310. Let him carefully restrain the wicked by three methods,- by imprisonment by putting them in fetters, and by various (kinds of) corporal punishments.
319. He who steals the rope or the water-pot from a well, or damages a hut where water is distributed, shall pay one masha as a fine and restore the (article abstracted or damaged) in its (proper place).
320. On him who steals more than ten kumbhas of grain corporal punishment (shall be inflicted); in other cases he shall be fined eleven times as much, and shall pay to the (owner the value of his) property.
331. For husked grain, vegetables, roots, and fruit the fine (shall be) one hundred (panas) if there is no connexion (between the owner and the thief), fifty (panas) if such a connexion exists.
Stanzas 349 and 350 are applicable to just killings :
349. In their own defence, in a strife for the fees of officiating priests, and in order to protect women and Brahmanas; he who (under such circumstances) kills in the cause of right, commits no sin.
350. One may slay without hesitation an assassin who approaches (with murderous intent), whether (he be one’s) teacher, a child or an aged man, or a Brahmana deeply versed in the Vedas.
Stanzas 401 to 406 are on price fixing; checks for weights and measures; and ferry charges :
401. Let (the king) fix (the rates for) the purchase and sale of all marketable goods, having (duly) considered whence they come, whither they go, how long they have been kept, the (probable) profit and the (probable) outlay.
403. All weights and measures must be duly marked, and once in six months let him re-examine them.
404. At a ferry an (empty) cart shall be made to pay one pana, a man’s (load) half a pana, an animal and a woman one quarter of a (pana), an unloaded man one-half of a quarter.
405. Carts (laden) with vessels full (of merchandise) shall be made to pay toll at a ferry according to the value (of the goods), empty vessels and men without luggage some trifle.
406. For a long passage the boat-hire must be proportioned to the places and times; know that this (rule refers) to (passages along) the banks of rivers; at sea there is no settled (freight).
Sharia or Islamic Law — ca 613 CE
In Arabic, sharia literally means the path to a source of water, seemingly an appropriate description of law for a pastoral society living in deserts. Water here perhaps is a metaphor for ideal conditions, and sharia is the code of law and aspects of personal conduct necessary to attain that stage under the Muslim principles of jurisprudence. The features of daily life are the features of sharia, and include politics, economics, banking, family, business, law and such other matters of interest in a society. As such, there are no set pieces of laws in sharia – no codification of laws in it; what it contains is a system for making laws, based on the Qur’an, the holy book of Islam; hadith or the sayings of Prophet Muhammad; and deliberations and interpretations spread over centuries along with precedents. There are traditional legal schools dealing in legal theory, such as Hanafi, Shafi, Maliki and Hanbali of the Sunni sect and Jaafari of the Shias. From ca 610 CE, Prophet Muhammad at the age of 40 began to receive Ayats or Signs of God which continued till his demise in ca 632 CE. These revelatons form the verses of the Qur’an, and along with the traditions or Sunnah constitute the immutable Basic Code. There is also fiqh (“understanding of details”), obtained through consensus (ijma) and analogy (qiyas), and used in framing the laws. In view of this, there are certain laws obtained from a source divine, immutable and beyond the boundaries of time, applicable in all circumstances as also the laws derived from principles set by Islamic scholars, judges and lawyers.
The consensus or unanimity was arrived at by the followers of the Prophet on some matters. Such principles together with analogies drawn from the substance of the immutable doctrines are followed by the traditional Sunni sect. They also take into account the opinions and views of the community as a secondary source. Analogies, however, are not liked by the Shia sect who believes that it avoids deep thinking on the matter and comes up with convenient solutions. Nor do they favour unanimity of views or agreements formed by consensus. When Shia scholars and theologians were including these two concepts in their legal system, the Shia Imams were alive. They considered themselves as followers of the Prophet, and thereore the bearers of tradition or Sunnah. Also, in Shia judicial system, a lot of importance is given to logic. The Shias hold the wiew that they employ the methods of logic in a much more extensive way than the Sunnis. Logic, of course, to them is not another source of law, but a means to check that the derived work is in conformity with the Qur’an and Sunnah. Thus, the Qur’an; stories and practices of Prophet Muhammad and of the twelve Shia Imams; and reasoning are the sources in what is known as Imami-Shi’i law.
Islamic legal systems aredivided into two sections consisting of : a) the origin of the law or its sources and methodology; and b) divisions of the law or the rules to be followed. The early Muslim communities were much more concerned with the practical and immediate task of authority and teaching than with the issues of theory and its origin. Such maters were dealt with by the early Muslim jurist Ash – Shafi, who in his book Ar – Risalah codified the basic principles of Islamic legal systems. The book lists the four sources of law : Qur’an, Sunnah, Qiyas (analogy) and Ijma (consensus) and stresses that the immutable and basic texts of the Qur’an and hadith or the sayings of the Prophet are to be understood by following systematically the principles of interpretation of the Arabic language. There are two main sections of sharia law : Rites of worship; and Personal dealings and public matters. The first consists of : Ritual Purification; Prayers; Fasts; Charities; and Pilgrimage to Makkah. The second involves :
Financial transactions; Endowments; Laws of inheritance; Marriage, divorce, and child care; Foods and drinks (including ritual slaughtering and hunting); Penal punishments; and (in the public domain) Warfare and peace; and Judicial matters (including witnesses and forms of evidence). With the exception of prayers and fasting, there are no restrictions on women in the worship rituals. Women can pray and fast provided they are in a suitable condition of health to do so. Women are not prevented from pursuing religious studies, though men are commonly found doing so. According to early Muslim scholars Abu Hanifa and Al – Tabary, a woman could even work in a position of responsibity like that of a judge. Having regard to the fact that the Prophet’s wife Aisha was a participant in politics and an expert on hadith (sayings of the Prophet), it is not correct to allude that Islam prohibits employment of women. Actually, Islam advises, “Treat your women well and be kind to them for they are your partners and committed helpers”. Likewise, there is no restriction on married women going out for employment, even though in patriarchal societies it is not unusual to expect of women to give their role of wife and mother the first priority. Women have the right to inherit property, and such inheritance can not be taken away from her even by her husband or father. Depending on the nature of the relationship, her male relatives are bound to give her financial support whether she needs it or not. It is upto her entirely to relieve her male relatives of this obligation of support.
Adult women can not be forced into marriages against their will is a provision of Islamic law in addition to the other provisions for her protection at the time of marriage. Moreover, it is stipulated that she has the full right to her mahr, a marriage gift, which is presented to her by her husband and is included in the nuptial contract. It is also stipulated that if the marriage contract says so, she can divorce her husband without going to the courts. Traditionally, Islamic jurists are of the opinion that Muslim women can only marry men of the same faith, though this restriction is not applied on men. The Qur’an allows Muslim men to marry any woman of the people of the book, that is, people belonging to the Christian or Jewish faith (which are also revelatory religions like Islam). However, such marriages in a non – Muslim country are strongly dicouraged in fiqh law and are considered as reprehensible or mukrah.
According to Sunni Islamic law, a man is permitted to divorce his wife if there are grounds for such action by saying talaq three times, a process known as triple talaq. It is possible to remarry an ex – wife, provided the wife meanwhile has married and divorced someone else. The divorced wife is entitled to keep her gift or mahr received during the marriage, and to child support until the age of weaning when the father can claim custody in the interest of the child. So long as she remains unmarried, the divorced wife gets spousal support as well, the amount of which is usually mentioned in the marriage contract (but can be changed by court ruling if that is deemed necessary).
Islamic laws prescribe five ways to grant freedom to a slave and look down on and excoriate people who enslave free persons thereby acting as a brake on slave trade. Acquisition of slaves was restricted to prisoners of war instead of whole sale killing of the vanquished community. Killing of the combatants only was permitted in Islam, and the Islamic fighters were under strict instructions not to attack men, women, children, the elderly, clergy, artisans, and other workers not engaged in war.In fact, freeing of the slaves is insisted upon in the Qur’an, and there is not a single verse encouraging that practice.
Sartorial standards and codes of conduct
There is a dress code in the Qur’an settiing the appropriate standards for the women adherents of the faith. As regards men, the custom is that they should act without the women having to “say to the believing men to lower their gaze and preserve their modesty, it will make for greater purity for them and Allah is well aware of all that they do.” It is also ordained that women are to cover themselves well and not show their ornaments to men other than their fathers and husbands. For the men the requiremnts are less, a cover for the body from the knee to the waist. The logic behind this is to prevent both men and women falling into temptation. Even if one slips up, the other is to be on guard to prevent discord and strife in the society. Hijab, customarily known as the headdress of Muslim women is derived from the Arabic word, hajaba. Actually, the word means “to hide from sight or view” or “to conceal”, and is intended for the body as well as the head.
The followers of Islam are taught (and expected to adhere to) certain behavioural customs, which can be traced back to the Abrahamic traditions in pre – Islamic Arabia. It seems the Prophet either sanctioned or gave tacit approval to such customs, and as a result they came to be regarded as practices followed by him and became a part of the sunnah (tradition). Some of those customs are :
Taking the name of god before eating and drinking.
Taking food and drink by the right hand while eating and drinking.
Wishing someone “peace be upon you ” on meeting, and on being greeted similarly.
Bury the dead after a funeral prayer in a grave after enshrouding the body in coffin
Civil law also known as Romano – Germanic law or Continental law is the foremost legal system in the world, ahead of Common law, the other system of law prevailing in the rest of the countries. The cardinal difference between civil and common laws is that in the first abstract rules are applied by the judges to various cases before them, while in the second specific cases are the sources of abstract rules. Civil law has its origin in Roman law, Canon law and the Enlightenment, the eighteenth century intellectual movement in Europe placing reason as the base of authority. Codes of law setting the principles to apply are the bedrock of the legal systems in many civil law countries. French civil code or the Napoleonic law is the first example cited in this regard, although the German and Swiss civil codes are no less important. Civil laws in Scandinavian countries are generally uncodified, while those in Scotland and South Africa are not codified at all. Nonetheless, there are countries where a mix of civil and common laws prevail, usually in Muslim countries like Saudi Arabia, Pakistan and Bangladesh along with simlar countries in the Arabian Gulf and North Africa. Corpus Juris Civilis of the Roman emperor Justinian I, as amended by medieval legal scholars is the source of civil law system. Different countries adopted the Roman legal system in different ways. Legislative actions in some made it a positive law, while in others legal theorists worked on it for its adoption. As a result, Europe was not entirely under the domination of Roman law, which was generally an alternative source. When a particular matter was not found under a suitable provision in local customs and laws, the Roman law was resorted to. Anyway, European legal tradition normally interpreted local rules according to Roman law, so in the end it had some influence on the main source of law as well. Another effect, going above the Roman law foundation is the inclusion of that source into civil codes. This development (concept of codification) especially in the 17th and 18th centuries was due to the recognition of Natural Law and the effects of the Enlightenment. Concepts of democracy, protection of property and the rule of law were the political ideals of that time, which in turn required the creation of certainty of law, through the recording of law and through its uniformity. As the ideal could only be realised by codification of laws, the earlier mix of Roman law and customary and local law was abandoned, and the process for law codification began. The concept of nation states developing at that time also contributed to the process (of codification), which required documentation of the law to be applied to any particular state.
France and Germany
The proces of codification did not go unopposed, the principal objection was that it would give rise to ossification or inflexibility. The proponents of codification cited it as necessary for certainty, unity and systematic recording of the law. Despite resistance, the codification of European private laws moved forward. Prominent among such laws are the French law or Napoleonic code of 1804, the German civil code of 1900 and the codes of the Swiss. As Germany was a rising power in the late 19th century and having regard to its tightly organized legal system, nations like China (late Manchu dynasty and the Nationalists) and made the German code the basis for their legal systems. The German code is also the foundation of law in Taiwan and South Korea, and some experts argue that it heavily influenced the law in erstwhile socialist countries where it existed with an overlay of Marxist – Leninist principles.
Though the process of codification of law began in the second half of the 18th century, it gained momentum only after the French revolution and civil codes of lasting influence were promulgated in France Austria, Quebec, Spain, Germany and the Netherlands. Its original difference from the Common law developed by Anglo – Saxon people (mostly in England) was that instead of the Roman Justinian law the Anglo – Saxons tried cases only by local customs and went on doing so even after law books were written. Subsequently, however, came to be identified as customary law that were local compilations of legal principles recognized as normative. Anyway, codification is not the only defining characteristic of civil codes, because the civil law systems of Scandinavian countries are largely uncodified.
Methodological approach to codes and statutes along with codification of laws are the differences between civil and common laws. Legislation is the primary source of law in civil law countries. In the absence of precedents, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general rules and principles of the code, often getting analogies from suitable from statutory provisions so as to cover deficiencies and to achieve a purposeful end. As opposed to this, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted very strictly. With regard to separation of powers, it is viewed quite differently in civil law and common law countries. Some common law countries, like the United States, judges are seen as balancing the power of the other branches of government. As against such a notion, the early idea of separation of powers in France was to earmark different roles to the legislature and to the judicial system. Having regard to the French saying that judges are the mouth of law, their task was only to apply the law. As a corollary , it follows that many civil law jurisdictions reject the formalistic notion of inviolable precedents, though there is no restriction on paying due consideration to settled case-laws. Another interesting difference is the general belief
that common law verdicts are much longer and contain extensive, all – inclusive reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. It is somewhat true in France with judges referring only to legislation, but not prior case laws. This is not to suggest that judges do not take into consideration prior case laws while writing the verdict. Anyway, court opinions in German-speaking countries can be as voluminous English ones, and generally discuss academic opinions on the matter along with prior case laws.
Sociological factors also account for the differences. Attorneys in some civil law countries are selected, trained and then promoted as judges, whereas common law judges are usually selected from accomplished and reputable attorneys. Attorneys are to apply for the position of a judge in Scandinavian countries in order to become one, while in France there is a post – graduate school for the training of judges. As regards criminal procedure, certain civil law systems are based upon a variant of the inquisitorial system in preference over the adversarial system. Under the inquisitorial system, the court or a part of the court is actively involved in determining the facts of the case, while under the adversarial system the role of the court is solely that of an impartial referee. In common law countries, a judicial set up like this (inquisitorial system) is sometimes criticized as lacking the cherished principle of a presumption of innocence(“the accused is presumed to be innocent until declared guilty by a court”). Nonetheless, most European countries are signatories to the European Convention on Human Rights, Article 6 of which guarantees “the right to a fair trial” and the presumption of innocence.
Common Law is defined as a legal system where courts frame and refine laws on a case – by – case basis, and the “ideal” common law court is expected to resolve legal disputes by deliberating over precedents of other courts. This principle known as stare decisis stipulates that if a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision. In the event of the current dispute being fundamentally different from all previous cases, it will resolve the matter itself, with reference to general legal guidelines. Following this, the new decision becomes precedent, and will bind future courts under the principle of stare decisis. With the passage of time, the precedents created by past decisions form a complex set of rules, which are intended for application to a wide variety of cases. “Common Law” is the corpus of such rules. However, in reality, common law systems are more complicated than the “ideal” system, and eviate considerably therefrom. The decisions of a court are binding only within a defined area, a specified jurisdiction, and even within a given jurisdiction, some courts have more power than others. For instance, verdicts of a subordinate court are passed over in favour of those of the appellate courts in the same jurisdiction. The necessity for common law to function along with statutory and regulatory laws also add to the complexity. Nevertheless, stare decisis, the principle that similar cases should be decided according to similar rules, lies at the heart of all common law systems. Countries tracing their legal heritage to England, like the United Kingdom, Canada minus Quebec, the United States, and countries previously held by the Britishers and some more.
Evolution of Common Law
Common law evolved in England during the 12th and 13th centuries under the inquisitorial system in the form of collective judicial decisions based on custom, precedent and tradition.
Legal methods of this nature were features of cultures existing since long back in history in continental Europe. There were other societies as well where precedent and custom had at times played a substantial role in the legal process, as the Germanic law recorded in ancient Roman chronicles would testify. Casuistry or case – based reasoning is the form of justification used in common law. This kind of procedure practiced in common law is called the adversarial system. The common law was intended for compansating someone for wrongful acts in civil cases, but not in criminal cases. Such wrongful acts were called torts, and included both intentional torts and torts caused by negligence. Common law also developed the body of law recognizing and regulating contracts. Prior to the institutional stability brought about in England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the people of the Germanic cultures of continental Europe were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For instance, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other “test” of truthfulness, known as trial by ordeal. If the accused was cured of the wound within a prescribed period, he was considered as innocent; if not, he was put to death in most instances.
The first Plantagenet king of England, Henry II (1154) institutionalized common law by creating a unified system of law “common” to the country by incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating the jury system. The jurors were citizens sworn on oath to investigate reliable criminal accusations and civil claims. They arrived at their decisions by evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today’s civil and criminal court systems. Henry II introduced the the practice of sending judges from his own central court to hear the disputes across the country. They settled the disputes aaccording to their knowledge of the local customs. On returning to the court, they discussed the cases with the other judges, and their decisions would be recorded and kept for future reference. Over time, a rule called stare decisis developed which is where a judge would be bound to follow the decision of an earlier judge; he was required to follow the earlier judge’s interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. By this system of precedent, decisions became sort of inflexible, and so the pre-Norman system of disparate local customs was replaced by an elaborate and consistent system of laws that was common throughout the whole country, and came to be known as “common law.” The king’s creation of a powerful and unified court system, which curbed to some extent the power of the canonical or church courts, and brought him (and England) into conflict with the church, most famously with the Archbishop of Canterbury, Thomas Becket. Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry’s behalf. Though it is doubtful that Henry actually intended to bring about the assassination of Becket, there is no doubt that at the time of the murder the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen. Becket was immediately venerated as a martyr and later as a saint, and his murder gave rise to a wave of popular outrage against the king. Henry was compelled to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes. Despite this setback, judge-made common law continued for centuries as the primary source of criminal and civil laws throughout the kingdom. Subsequently, when the Parliament acquired legislative powers, statutory laws began to limit the applicability of the common law in some areas. As of today common law retains its status as an essential element of the British legal system. Incidentally, Magna Carta signed by a successor of Henry, King John in 1215 had a profound influence on the common law of the times and required the king to renounce certain rights, respect certain legal procedures and accept that the will of the king could be subjected to law. It explicitly protected certain rights of the king’s subjects – whether free or fettered – most notably the right of Habeas Corpus, meaning that they had rights against unlawful imprisonment. Many clauses were renewed throughout the Middle Ages, and further during the subsequent periods, and the 17th and 18th centuries. By the early 19th century Most of the clauses in their original form were removed from English law in the early 19th century.
Judgement under common law
Thorough research and analysis are required under common law jurisdiction to determine what “the law is” in a given situation. Firstly, the facts are to be ascertained. Secondly, the relevant statutes and cases are to be found, if any. Thirdly, the principles, analogies and statements by various courts are to be located so as to determine how the court deciding on the matter is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures are given more importance than earlier cases and those of lower courts. Next, the information gathered and the reasons put forward are all considered together to determine what is it that the law states. The final step is to apply the law to the facts.
Common law is more workable than statutory law. For one thing, common law courts are not mandated to follow precedent, and for sufficient and extraordinarily good reason, can reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. For the second, common law having evolved through a series of gradual steps, which have worked out all the details over a decade or more, is in a position to change substantially but without a sharp break, thereby reducing disruptive effects. As opposed to this, it is very difficult to start a legislative process : legislatures do not generally act until a hue and cry is raised, a crisis point is reached and the situation has become totally intolerable. Consequently, legislative changes have the tendency to be large, jarring and disruptive (either positively or negatively). On a number of subject matters, legal treatises compile common law decisions and state overarching principles which, in the compiler’s opinion, have a bearing on the results of the cases. But, treatises are not the law, and lawyers and judges normally use such treatises as “finding aids” to locate the relevant cases.
Common law and commerce
Common law draws its strength by relying on judicial opinion, and for this reason is a significant contributor to the growth of commercial systems in almost all parts of the world. Common law gives reasonably precise guidance on almost every issue,which enables parties (especially commercial parties) to anticipate whether a proposed course of action is likely to be lawful or not. This ability to predict gives more freedom to commercial entities to come close to the boundaries of law than otherwise possible. Thus, when the the parties know ahead of time that the proposed arrangement, perhaps close to the line, is almost certainly legal, the resulting commercial contracts are more economically efficient, and create greater wealth. It is possible for newspapers, taxpayer-funded entities with some religious affiliation, and political parties to obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply. This is not possible in non-common-law countries, where fine questions of law are to be deliberated upon and resolved anew each time they arise, making consistency and prediction quite difficult. Thus, in legal systems without a strong allegiance to a large body of precedent, commercial organizations have less a priori guidance, and are required to leave alone many opportunities just to be on the safe side.
Copyright and common law
According to common law copyright is a natural right, and the copyright holder is entitled to the same protections anyone would be in regard to tangible and real property. Courts in the United Kingdom and the United States repudiated this rule and held that copyright is a limited right created by the legislature under statutes and subject to the conditions and terms the legislature considered appropriate for the purpose. Copyright holders, however, insist that they had a perpetual right to control the dissemination of their work. The legislature in the U.K. could sanction such a right (and did to the book, Peter Pan), but is not bound to do so and can set a time limit for exercising the right. However, Copyright Clause prevented the U.S. Congress from doing such things, though the U.S. Supreme Court has pronounced authoritatively that extension to the time limit already given to a copyright holder can be granted.
Domains of common law
Common law is the main legal system in England and Wales, Northern Ireland, Irish Republic, of the federal law in the United States (except Louisiana state law in all other states), of the federal law in Canada (as also in provinces except Quebec), Australia and New Zealand. It is the law in South Africa, India (along with some Hindu law) excepting Goa (where Portuguese
law is applied), Scotland, Singapore and Hong Kong. Quebec and Louisiana follow the French law to some extent, while Sri Lanka follows the Roman – Dutch law introduced by their former colonisers. Even then, countries following the civil law are numerically more than the common law following countries. Erstwhile Soviet Union and the socialist countries followed socialist laws on a base of Germanic civil law.
Based on Wikipedia and other sources