Law is an institution that has evolved and flourished throughout its six-thousand-year history. Tracing this history in complex societies from the Ancient Middle East to the contemporary world, this book poses the following question: can international law become an effective instrument of social control among nations in the emerging world society?
To develop effective international law will require minimal standards of inclusiveness and mutual responsibility. International law must be limited in its scope and its powers. It must also meet the fundamental requirement of an effective legal system: a widespread belief in its justice and fairness. How has that kind of respect for the law come about in earlier societies, and how can it be fostered in the evolution of a world legal order?
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Law, Not War
The Long, Hard Search for Justice and Peace
By Richard Derecktor Schwartz
iUniverse LLCCopyright © 2014 Richard Derecktor Schwartz
All rights reserved.
Sociolegal Creativity in the Ancient Empires: Middle East Origins of Modern Law
Described as the cradle of civilization, the Middle East became an essential part of human history—influencing our ways of life to this day. Its legal significance will become clearer as we examine the civilizations that developed in the Fertile Crescent, the Nile Valley, and the territories surrounding Babylonia and Egypt. In that area, great empires rose and fell, leaving behind a rich record that helps us to understand our modern civilizations. In each empire, law within and war with others were continuing features.
With that in mind, we will describe two of the outstanding legal achievements in the ancient world: Babylonia and Egypt. A code of law was written in Babylonia. A philosophy of law appeared in Egypt. Both of these developments help us to understand how we use law today as a major instrument of social control—and how we might be able to develop an effective world rule of law for the emergent world society.
Hammurabi and His Code
The Babylonian King Hammurabi is a fascinating figure, one who made a major contribution to the law by using it to unify and build his society. He did a remarkable job of ruling ancient Babylon, was a successful warrior, pioneered in developing a comprehensive code of laws, and tried to define the role of the king for his successors.
When Hammurabi's Code was found, in 1901 in the Persian city of Sousa, it attracted enormous interest among lawyers and historians of the ancient world. Most of them focused mainly on the fact that the code laid out in detail a set of prohibited offenses with punishments attached to each. Less attention was paid to the purposes of the code, the support it received from the gods, the value of its continuing use, or the part it played in shaping Babylonian society.
Focus on the provisions of the code, especially by practicing lawyers, was understandable. Hammurabi's formulation was close enough to modern-day statute law to encourage comparison and contrast. There was a general sense of wonderment that the stele, the massive stone on which the code was inscribed, revealed a legal system that merited comparison and contrast with the statutes familiar to modern lawyers, judges, law professors, and their students.
Hammurabi's Code resembled modern law in several ways. It required a presumption of innocence and punished the witness who was found to give false evidence. It recognized the role of the judge and prohibited bribes. It dealt with tenancy obligations, security of loans, commercial transactions, and testamentary succession. Although the sanctions it prescribed were often severe, the enumeration of offenses was remarkably similar to the kinds of prohibitions specified in modern law.
By and large, however, the celebrators of Hammurabi have paid less attention to those parts of the code that deal with the purposes of the law, the support of the law, and the contributions of law in shaping a society. Those questions are worth pursuing for the insight they give us in understanding existing law and in projecting the needs of a legal system for a newly evolving society—the society of the world. Hammurabi's use of law during his reign (1792 to 1750 BC) in Mesopotamia provides us with a great deal of material to help us think about how a legal system develops and how it affects the social conditions of the society as a whole.
In addition, the story of Hammurabi is important for the way his contributions to law have been used and not used in the centuries that followed his formulations. To put that italicized point another way, Hammurabi's legal system could have become a direct ancestor of modern law. But mankind did not grasp the potential utility of Hammurabi's gift. As a result, his work did not serve as fully as it might have to shape modern law. Instead, only a few of his contributions had a direct effect on other legal systems created in the ancient world. It was as if each nation, state, empire, or religion had to forge its own system, rather than learning from Hammurabi and the experiences of Mesopotamia.
Every legal system borrows from what came before and generates some innovations that reflect its needs and its distinctive ways of meeting those needs. We can see in retrospect how powerful and creative the work of Hammurabi was in using law to forge Mesopotamian society. When he started his reign, there were few fragments of written law to be found among the cities of the Fertile Crescent, the Tigris-Euphrates Valley. His father, Sin-Mubaht, from whom he inherited the throne of Babylon, had used conventional military means of social control within the narrowly defined areas of his domain. But the son had an entirely different conception of the domain. Hammurabi showed early in his reign an aspiration to expand the area he would rule using a combination of military force, commerce, and law as the instruments. What started as Babylon, the city, expanded under his leadership to become the Babylonian Empire.
The code that Hammurabi formulated served two important purposes. It dealt with the ownership and inheritance of property, and it fostered trade and commerce. These economic ends usually work together to build and retain the wealth of a nation. Hammurabi's Code regulated the transfer and the inheritance of property. It also protected commerce from the ravages of raiders and thieves. These two foci of the code helped to provide the Babylonians with the conditions of confidence that were needed to expand the scope of commercial activity.
Hammurabi's policies fulfilled several requirements if the society were to grow and flourish. These can be categorized in general terms, and we can look for them in each of the societies to be considered later on. They are the social elements that are dealt with, one way or another, in every society. And law becomes a major way of specifying how these elements are to be handled in each society.
The Four Elements
The first of these elements is inclusivity, who is in, who is partially in, and who is out. Hammurabi came to power in Babylon when the Semitic tribes to the south and the many Akkadian tribes to the north were not fully part of Babylon. Hammurabi invited their participation in several ways. He taxed them equally, employed their men in his military forces, respected their gods, set general familial requirements, regulated and enforced testamentary succession, ensured ownership and rental of land, and so forth. A reading of the substantive provisions of the code impresses us with its specificity. (See the 1915 edition, with an introduction by Charles F. Horn and translated by L.W. King.)
The code itself does not distinguish among these ethnic groups, even though they differed in language and customs. Rather, they were treated equally before the law. It was not that a law was made that called for their equal treatment. There was no Brown v. Board or equal protection clause in Babylon. But the courts proceeded to implement Hammurabi's policies of inclusiveness, in which the law was standard for people of different backgrounds and identities. This approach seems to have been the policy throughout Hammurabi's forty-year reign. Our inference to that effect is based on an actual record of cases available to us, as well as the inscriptions of the code.
The code did distinguish among status levels. Three strata are recognized: amelu, muskinu, and ardu—respectively, those born to wealth and privilege, free citizens, and slaves. These distinctions were less explicit in the city of Babylon than in some of the northern tribes that became part of the Babylonian Empire. Their inclusion in the code suggests a process of cultural borrowing, which the code adopted as part of the process of inclusion and incorporation. The cultures brought together in the empire became sources that the law incorporated as part of the process of creating a common legal standard for the empire.
Punishments accorded to the strata were more severe for the patrician amelu than for the other classes. The rationale for this policy, not entirely clear, seems to have been that the higher class could more easily afford a larger penalty. Perhaps there was also a fostering of noblesse oblige, that patricians were obliged to act according to a higher standard of morality.
Our inferences concerning such goals gain strength from the writings of Hammurabi himself. His statements introduce and conclude the code of laws. These writings express in general terms his vision of justice. In the prologue, he declares as his purpose "to cause justice to prevail in the land, to destroy the wicked and evil, to prevent the strong from oppressing the weak, to enlighten the land ... and to further the welfare of the people." He invokes the gods Anu and Bel to explain his drive for justice and to attest to the legitimacy of his lawmaking.
In his epilogue, he turns again to the gods to justify the code. In particular, he describes the code as a product of his close relationship with Shamas, the god of justice. Their partnership is illustrated on the stele, on which Hammurabi and Shamas are portrayed as consulting with each other. Again the emphasis is on the justice of the laws, a theme that is found in every legal system. The purpose is quite clear, then as now, to legitimize the law by stressing its origin and consequences as the instrument of justice.
In his epilogue, Hammurabi stresses the theme of justice over and over again. His purpose, he repeats, is "that the strong might not injure the weak, and that the widow and the orphan might be safe." To achieve these purposes, he declares, "I have in Babylon [raised] the temple whose foundations are as firm as the heavens and the earth, in order to administer justice in the land, to decide disputes, and to heal injuries." Clearly, he has an eye for the institutional setting within which judgments are to be made. Impressively, he demonstrates how laws can be formulated and administered. He takes the steps needed to foster impartial hearings to determine what happened, to sort out the claims of the litigants, and to enter impartial judgment.
We should note that the written code itself seems to have been promulgated toward the end of Hammurabi's reign, two years before his death. Thus, its provisions appear to be a summary of the legal norms that were emerging during the time of his reign. That suggests that the code sums up decisions as they had been made and favorably viewed during his forty years as king. To the extent that law was made during that long period, the process is somewhat comparable to common law evolution through a series of cases, rather than resembling the civil code approach practiced by the European countries on the basis of inheritance from Rome. Hammurabi, after all, could not copy an extant code. It was up to him to use the conditions he inherited to creatively make new law.
The second of these elements is responsibility, its scope and its limitations. Much attention in the code is devoted to obligations within the family. These include the authority of the father and the rights of property passed down by the father. Wives' property is also recognized, and is passed on to her children. The family is sustained in several ways as a unit, and marriage outside the family carries with it obligations of the married partners to the families of their origin. The law also specifies in severest terms, death by burning, for incest.
Family responsibility is also noted in the inheritance by the sons. A son who is disinherited has a right to a legal hearing. "If the son has no grievous fault which justifies his being thrust out, the son may not be cut off" from his inheritance.
As much attention is given in the code to sustaining the family as in regulating commerce. Perhaps that reflected a weakening of traditional family ties as Babylon expanded to include a variety of cultures. For whatever reason, it is clear that the family arrangements are subject to legal action, and that the legal standards—especially of property succession—are very much the object of court concern.
The third element concerns authority. The position of the king became very important in Babylon, and continued as Babylon expanded to become the Babylonian Empire. Hammurabi's position as king is supported by a pantheon of gods, one for each function of government. In particular, his legal authority derives from the god Shamash, the god of justice. Their relationship is pictured in murals as one of consultation between Hammurabi and Shamash. Hammurabi has been characterized as the "tenant farmer of the gods," but in the artistic portrayal of the relationship, it appears that the two relate to each other in an equalitarian way.
By the same token, the monarch who shares authority with the gods counts on honor, respect, and obedience from his subjects. The authority of the king is inferable, but not really very visible. Perhaps the use of the law, with authority given by the king to the judges, had the effect of diffusing authority. In some situations, withholding of direct involvement in the social control system, and the granting of such powers to surrogates, can maintain the position of authority while defusing resentment. Hammurabi may well have reigned successfully for that long period of time with the aid of a legal system that exercised social control in a manner widely discerned as objectively just—not merely the paramount ruler's whim.
On the matter of militancy, Hammurabi's reign manifests a combination of readiness and restraint. His officers and soldiers were organized with military discipline to defend the boundaries of Babylon and to extend those boundaries into what became the Babylonian Empire. They also acted as hearing officers in legal cases, in preference to the priests, who served more frequently as clerks and keepers of the records.
Available accounts of military action in that period are surprisingly sparse, compared with the legal records. The scarcity of military records may have resulted from the limited use of the military as a tool for expanding imperial control. In contemporary terms, Hammurabi seems to have used and favored soft over hard power in expanding his empire. His character and philosophy suggest a preference for law under the god Shamash, rather than for war as sponsored by the obscure god Ninurta.
Later on, however, that ratio may well have changed. By the time of Nebuchadnezzar, more than a thousand years later, the Babylonian Empire carried out conquests throughout the Middle East, successfully challenging the Egyptian Empire for control of Palestine and Syria. It turned out, however, that Babylonia proved unable to sustain itself against Persia, led by Cyrus and Darius.
One is tempted to see in this account a morality tale: Hammurabi established the empire using law much more than he used war. His success led to the expansion of Babylon from a city-state to a great and successful empire. His strategy clearly did not endure.
Instead, the empire Hammurabi established moved increasingly to become a military power. War took precedence, and by the time of Nebuchadnezzar we find very little attention paid to the ideas of justice. Daniel, the Hebrew prophet, seems to have prophesied the king's fate accurately in reading the famous handwriting on the wall, "Mene, Mene, Tekel u-Pharsin" (You have been weighed in the balance and found wanting.) It was the same Daniel who later famously defended Susannah against the false accusations of the elders. Law seems to have found a more welcoming home in the empire to the East, Aran, or Persia, as it came to be known. Along these lines, it is interesting to note that the Code of Hammurabi, that seven-foot stele, was found not in Babylonia, but in Persia. It is not known how Hammurabi's Code got to the Persian city of Sousa, or whether the code was used by the Persians primarily as a guide to legislation or as a trophy of their military victories.
There is an ironic end to the story of Hammurabi's reign. It has to do with his forebodings about the future, and it is surprisingly included as a powerful epilogue to the code itself. We can speculate as to why Hammurabi ended the code in this manner, but it is clear that he did not view the future with confidence.
In that document, Hammurabi sees the future as uncertain. He urges his successor to maintain the code as he has written it: "Let him not alter the law of the land which I have given, or the decisions which I have rendered and let him not deface my monument," a clear reference to the stele on which the code was written. "If such a prince have wisdom and be able to maintain order in his land, let him observe the words which I have inscribed on this monument; for this inscription will show him the rule of conduct, the statutes, the laws of the land which I have given, and the decisions which I have rendered. He shall rule his subjects according to them; he shall administer law to them, render decisions, and he shall exterminate the wicked and criminals out of his land, and grant prosperity to his subjects."
Excerpted from Law, Not War by Richard Derecktor Schwartz. Copyright © 2014 Richard Derecktor Schwartz. Excerpted by permission of iUniverse LLC.
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Table of Contents
Chapter 1: Sociolegal Creativity in the Ancient Empires: Middle East Origins of Modern Law, 1,
Chapter 2: Moses the Lawgiver, 19,
Chapter 3: Early Christianity, 35,
Chapter 4: The Astonishing Creativity of Athens, 53,
Chapter 5: Rome: Birthplace of Constitutional Law and the Legal Profession, 72,
Chapter 6: Islam and Mohammed: The Last Prophet, 98,
Chapter 7: War and Peace on the Continent: The European Union, 119,
Chapter 8: Great Britain: Empire to Commonwealth, 138,
Chapter 9: The United States: Democracy on Trial, 159,
Chapter 10: Toward a World Society, 184,