Government and Law in the Ancient World

Introduction

Ancient law and legal tradition containing the rudiments of the modern civil legal system relate to the nature and structure of society of the times in which they developed and in which they operated. The nature of law in the ancient world is understood by looking to Roman law and legal custom. Customary law operated among wandering small groups, settled tribes, and small communities. It flourished in circumstances in which law was practical rather than theoretical. Unwritten law developed out of custom when it was known to be accepted as law and practiced as law by the persons who shared it. Legal rules and legal tradition were separate from yet related to societal ideas and practices. Feudal and canon law also paralleled the development of Roman law.

Mesopotamia

Located between the Tigris and Euphrates Rivers, Semitic people including the Sumerians, the Akkadians, the Chaldeans, the Hittites, the Babylonians, the Israelites, the Phoenicians, the Lydians, the Assyrians, and the Persians settled in the Fertile Crescent about 2000 b.c.e. Civilizations of that area developed writing, schools, libraries, and written law codes, moving civilization from prehistory to history. Their contributions included the wheel, glass, iron, bronze, the sail, coinage, mathematics, the alphabet, calendars, and farming and irrigation.

One of the remarkable rulers of history was the famous lawgiver Hammurabi (r. 1792-1750 b.c.e.), an autocrat who ruled with the blessing of the gods. He unified southern Mesopotamia, and his capital was at Babylon. The most important achievement of the Babylonians was the creation of written law, which governed people’s relations with one another and with the state. The earliest existing written laws are found in the law code of Hammurabi. Although it showed a high sense of justice, like most early legal systems, this code was based on the dominant religion of the culture and dealt harshly with those who broke its rules of behavior. For example, adultery was punishable by death, and the law of retaliation dictated that if a defective building collapsed and the owner was killed, the building architect was put to death. The civil and criminal laws of Hammurabi regulated practically everything in life, applying to personal property, real estate, business, trade, agriculture, inheritances, and adoption; they controlled the price of labor and animals, purchases, sales, contacts, leases, the rights of women, children, and slaves. There were penalties for injuries to property and to the body; in general, the law made a distinction between the three classes of society, so that a poor person injuring a noble received a more severe penalty than in the reverse case. The basis of the law was retaliation (“an eye for an eye”). Cases were tried in their local communities, but appeals to the king were permitted.

The concept of retaliation was also found in the Hebrew system, which borrowed heavily from the Babylonian code. Both the Babylonian and Hebrew systems relied on capital punishment and slavery as punishment for breaking civil and criminal law. Like the Babylonians, the Hebrews believed the law was of divine origin. The basis for Hebrew law, however, was the first five books of the Old Testament and the Talmud (the written traditions governing Jewish life). Many early Hebrew laws were solutions to practical problems. For example, dietary restrictions on eating certain foods such as pork reflected the dangers presented by lack of refrigeration and sanitation. The king was surrounded by a large bureaucracy: ministers, judges, and various officials for the collection of taxes, and tribune, for the maintenance and control of canals, and for the regulation of business matters. Business agreements of every kind had to be in writing to be valid. Another group surrounding the king consisted of both citizen soldiers and professionals; the latter received land lots from the king, which they could bequeath to their sons on condition that the sons also render military service—a practice followed by certain other ancient peoples.

The king and his civil and military officials, the priests, and landed proprietors, the rich merchants, and the manufacturers formed one of the three classes recognized by Babylonian law. The second class consisted of laborers and farmers; many of the latter were tenants who paid a share of their produce to the owner. The lowest class in Babylonian society was made up of slaves, persons who had been captured in war or who had lost their freedom through debt. The law protected them carefully. Although the slaves were chattel, they could own property and eventually buy their freedom; a male slave was also allowed to marry a free woman. Their offspring were free. The courts recognized women as free individuals who could own property, marry, and even obtain divorce. In contrast, women in the United States could not own property in their own name until the early twentieth century.

Greece

The significance of the Greek or Hellenic civilization is that they were the first people in history to establish the institution of democracy. The Greek polis, or city-state, has been characterized as Western civilization in miniature. That form of government expressed a set of political values that remained fundamental throughout Western history. The political and military strengths inherent in the organization permitted the Greeks to expand abroad, while local patriotism and mutual suspicion divided the homeland into many tiny sovereign units. Although these states were banded together by a common culture and could occasionally cooperate against an outside enemy, their continuing rivalry eventually was to destroy Greek freedom. Class rivalry and search for individual gain produced economic growth in all Western civilization.

The great political theorists Plato and Aristotle discussed the nature of an ideal political unit. The city-state was a small sovereign political unit in which all important activity was conducted and where communal bonds were supreme. Citizens assembled periodically to vote on major issues and to elect officials. A steering committee or council was created in Sparta and Athens by 600 b.c.e. Elsewhere, the council represented the developing aristocracy and ran the government; its members were chosen for life. Membership was limited to landholders. The single office of king was replaced by a number of officials. All citizens were equal members of the polis, and all possessed fundamental private rights. Slaves existed, as did serfs. Women were considered politically incompetent. The polis was based on principles of justice, embodying basic equality, even-handed justice, participation in public activities, and government by law.

Development of Roman law

Roman law has been the most innovative and most copied system in the West. As the Roman Empire developed, so did a complex system of laws geared toward governing an increasingly urban population. Many types of law existed as a result of the diverse backgrounds of the people in the empire. In Celtic communities and among the nomad tribes on the Syrian frontier, the custom of the ancestors was an unwritten code. The Greek cities relied on the more advanced principles of Hellenic law. Rhodian sea law, a special field of Greek law, was standard over most of the empire.

When modern legal historians speak of Roman law, they are referring to private or civil law. Cicero, the Roman philosopher and trial lawyer, defined three elements of law, which predominated in all legal systems: legislation, administrative edicts, and judicial reasoning. Roman law spread throughout Europe, and after the fall of the Roman Empire, Constantinople continued to develop the concepts of Roman law. The first major surviving book on Roman law, the Institutiones (c. 160 c.e.; republished by Justinian I as part of Corpus Juris Civilis, 533 c.e.; Justinian’s Institutes, 1915), was a textbook written in the reign of Marcus Aurelius. In 528 c.e., Emperor Justinian I collected these laws and published them as the code of Justinian, or Corpus Juris Civilis. This code is the cornerstone of modern civil law systems dominant throughout Europe, South America, Scotland, and Quebec. In the United States, only Louisiana bases its legal system on civil law, reflecting its heritage as a French colony. The other states base their laws on the common law derived from England.

Julius Caesar recognized the need for codification of Roman law, not only because of conflicting laws passed by the assemblies though the centuries but also because of the need to bring order to the principles that had developed. Caesar, however, died before fulfilling the planned codification, which was done at periodic stages after his death. During the early Republic, the civil law (jus civile) received its first movement forward with the adoption of the Twelve Tables in 449 b.c.e. They continued to be the foundation of justice for centuries; as part of their education, Roman boys committed them to memory, and in the late Republic, the jurist Servius Sulpicius Rufus wrote a commentary on them.

Until the adoption of the Twelve Tables, the laws had been unwritten. The patricians, who alone were acquainted with them, handed them down orally from father to son, an exclusive knowledge that they used for the oppression of the plebeians. The patrician judge decided cases in favor of men of his own class, and no plebeian could quote the law as proof of injustice. The tribunes, therefore, began to urge the codification of the laws in the interest of the common people. The senate yielded, and a committee went to some of the Greek states of southern Italy to study their codes of law. When they returned, ten men were elected for one year for the purpose of drawing up the laws. The task was completed the following year (449 b.c.e.).

The new laws were set up in the forum on twelve wooden tablets and became known as the Twelve Tables. They were simple and harsh, but they codified the law of the time. Intermarriage between patricians and plebeians was prohibited; fathers were given the power of life and death over sons. Nothing was mentioned about legal procedure. The wealthy plebeians resented the law of the Twelve Tables that forbade marriage between classes, viewing it as a social stigma. They also viewed intermarriage as a stepping-stone to office. Because patricians themselves came to favor intermarriage because of their decreasing numbers and diminishing wealth, the prohibition was removed about 445 b.c.e. by the Canuleian Marriage Law.

From about 200 b.c.e. begins the “classical” period of Roman law. Freed of the rigidity of the Twelve Tables, the jurists accepted a “formula” for each case coming before them. This contained the essence of the legal issues involved and defined the penalty to be assessed by those who heard the evidence and pronounced judgment. Although the plaintiff drew up the formula (amended by the defendant), he turned for its preparation to a specialized consultant. The Praetor’s Edict, issued each year, was a steadily growing body of these formulas. Beside the praetors stood the other skilled aristocrats who gave “responses” or advice on specific points at issue and developed a more professional body of legal commentary.

When the Romans acquired land in war, they leased a small part of it or granted it to settlers. The larger part was added to the public domain. Anyone who wished to do so could occupy it by paying the government a percentage of the animals grazing or of the produce. In theory, this practice seemed equitable, but in reality, only the patricians and the wealthy plebeians were able to exercise the privilege. They bought, sold, and bequeathed the land, until eventually they came to regard it as their own. The plebeians were determined to end this injustice and at the same time win admission to all the offices in the state. The Struggle Between the Orders occurred in 367 b.c.e., when two tribunes, Licinius and Sextius, proposed a series of laws. The Licinian-Sextian laws provided that the custom of electing military officers instead of consuls should cease, and that two consuls should be regularly elected, one of whom could be a plebeian. It was further stipulated that no one could occupy more than 300 acres (122 hectares) of the public land or permit more than one hundred cattle or five hundred sheep to graze on it.

With the Hortensian law in 287 b.c.e., it was decreed that all plebiscites were to be binding on the entire populace as laws, thereby making the plebeian council a sovereign body freed from the senate. The government was a democracy in form but actually an oligarchy, for the senate exercised more actual power than ever. Patrician aristocracy gave way to a hybrid oligarchy composed of old and blue blood families intermarried with newly rich plebeians. Factions and manipulation of votes in the assemblies were rampant. The criminal law was developing along with the civil law, but criminal law was often arbitrary and penalties for crimes began by the second century c.e. to be different for members of the upper classes and lower classes, and the latter were regularly subjected to judicial torture to gain the truth. During the first century c.e., the Roman jurists began to devise remedies to fill gaps in the contractual system. A favored remedy was barter. Remedies for extortion and fraud were also introduced at that time.

Egypt

The ancient Egyptians made their own genuine unprecedented laws, legislation, and administrative regulations, which continually progressed over time. Legal and legislative texts were found on the walls of palaces and temples on papyri written in hieroglyphics, Greek, Latin, Hebrew, Aramaic, and Arabic. About 3200 b.c.e., King Menes laid down the oldest legislative systems in human history when he issued the law of Tehut, god of wisdom, as the only law applicable throughout Egypt. He also made Memphis the capital of the first unified and centralized state in history, with an organized system of government, administration, judiciary, education, police, and armed forces.

The Egyptian pharaoh or king was a living god, an autocrat with almost unlimited power. His primary duty was to preserve the right order of things and ensure justice, a duty expressed in the Egyptian word ma’at (untranslatable). That concept confirmed the stability and unchanging continuity of the pharaoh’s rule. Also included was the concept of the good. The Egyptians regarded their pharaoh as an ideal leader, composed of power and graciousness. The king controlled executive and judicial powers and exercised his executive power with the assistance of many civil servants. Officials could dispense his law, but the king was able to exercise discretion to guard his people and to act as deputy of the gods on earth. The king was the chief priest of all the gods, as well as the commander of the army, administrator of justice, and controller of economic life of the country. He theoretically owned all the land in Egypt and directed the planting of crops and every major activity. The kings had a bureaucracy that gradually grew in size. Large-scale corruption resulted. The higher officials formed nobility, which was largely hereditary. The officials were educated so that they could help the king administer justice and supervise the erection and care of public works.

Members of the royal family, officials, nobles, and priests formed the upper class of Egyptian society, which had a highly stratified structure. Peasants made up the largest class; slaves were at the lowest level of society. Throughout ancient Egyptian history, most of the people were poor, living in mud huts. Agriculture was the basis of economic life, and the small landowner paid taxes on his farm and possessions. Prisoners and criminals were subject to forced labor in the mines and quarries. It was the duty of the peasant and the government to maintain the irrigation ditches and canals.

The imperial law in Egypt was embodied in edicts, codes, and imperial constitutions as well as so-called laws of the land, which were the remnants of the laws of the Ptolemaic Dynasty (323-30 b.c.e.) and a series of special legal arrangements affecting particular groups. Roman law was promulgated to the people of Egypt through the edicts of the prefect, who was the provincial governor and representative of the emperor and also the supreme judicial, fiscal, administrative, and military authority of the country during his term in office. The edicts were widely circulated to every community in Egypt. They were written in Greek, however, so even though they may have been posted everywhere, only those literate in Greek could actually read them. The subject matter of the edicts varied widely, ranging from the particular to the general, but the surviving fragments indicate that the texts dealt with areas such as fiscal administration, religious practices, criminal and civil law, and government abuses.

India

India’s caste system divided society into functional classes: Brahmans, the highest caste who had magical powers and priestly duties; Kṣatriya, who were the rulers and warriors; Vaiśya, who were the cultivators; and Śūdras, who were the peasants and the lowest caste. The Panchamas, or untouchables, who fell below the peasants, lacked inherited status or caste. Moral law, or dharma, depended on the observance of these divisions, and the king was the guarantor of dharma, particularly the privileges of the Brahmans. Ancient Indian society was a monarchy. Set against the monarchy, however, was the concept of self-rule by members of a guild, a village, or an extended kin-group with a common set of interests. This cooperative self-government often produced republicanism and even democracy.

Republican polities were most common and vigorous during the peak of the Buddhist period (sixth or fifth century b.c.e.-c. 200 c.e.). At that time, India was in the midst of urbanization; cities were full of traffic and noise. Trading caravans moved between cities, stopping for many months in a single village. Wandering priests and self-proclaimed teachers brought religious teachings that threatened the Brahmans. Warlords sought to control this society; nonmonarchical forms of government existed. New vocabulary developed, and by the sixth century b.c.e., words translated as “republic,” in which decisions were made by group members working together, entered public parlance. Indian republics, however, differed greatly from Western democracy partly because of the clan basis and the exclusivity of the ruling class. Republican polities were based on the settlement or conquest of a given area by an identifiable warrior people who dominated the political life of that area. Some were subject to a king; in others, the citizens themselves ran their affairs in a republican manner. In both types of states, the government was dominated by Kṣatriyas, people of the warrior caste.

In most states, however, political participation was restricted to members of a specific royal clan, the Rajanya. It is likely that political power was restricted to the heads of a limited number of royal families among the ruling clans. The heads of these families were consecrated as kings and participated in deliberations of state. Power, therefore, was concentrated in the hands of a few patriarchs representing the leading lineages of sections of the warrior caste. Indian kings were seldom as powerful as they wished to be and, therefore, were not in a position to restructure society or create states. They were generally content to gain the submission of their neighbors. These defeated rivals were often left to control their own affairs, required only to pay tribute and provide troops for the conquerors. The existence of warlords was not fatal to the republican tradition.

The sense of political “community” was slowly abandoned, and by the third and fourth centuries c.e., states known earlier as “republics” were subject to hereditary heads of government, and eventually became monarchies. “Government by discussion” continued, but the idea of hierarchy and inequality and caste became increasingly dominant.

China

The early emperors of China claimed to be the sons of heaven, with authority to govern all the earth. The main business of government, however, was performed by officials who had been selected through a civil service examination. These officials were responsible for collecting taxes, directing building projects, deciding on punishments for various crimes, and compiling the calendar. The emperor was responsible for leading various ceremonies. There were no ancient laws in China under which the republic was governed. Whoever succeeded in gaining possession of the throne, regardless of his ancestry, made new laws according to his way of thinking. His successors on the throne were obliged to enforce the laws that he promulgated as founder of the dynasty, and these laws could not be changed without good reason. The Chinese government was a monarchy and, to some extent, an aristocracy. All legal statutes inaugurated by magistrates required written confirmation by the king on the petition presented to him, but he himself made no final decision on important matters of state without consulting the magistrates.

There were two orders or grades of magistrates: those who governed the various courts of the royal palace (considered to be a model for the rule of the entire realm) and all provincial magistrates or governors who ruled a province or city. Other orders of magistrates served the king’s business and were entrusted by him with the responsibility of keeping the public conscience; that is, informing the king as they saw fit as to any infraction of the law in any part of the entire kingdom. This scheme appears similar to the equity courts in common law countries.

The Shang Dynasty (1600-1066 b.c.e.) is the earliest Chinese dynasty for which written evidence exists. During this dynasty, the emperor and his court relied on soothsayers to predict the future and make decisions through oracle bones. Shang civilization was a series of towns united under the king. The Zhou Dynasty replaced the Shang in about 1066 b.c.e. and ruled until 256 b.c.e. Under the Zhou, China made many technological advances and began to experience steady population growth. To control their holdings, Zhou kings set up an agricultural system in which nobles owned the land and serfs worked it. They appointed their relatives to govern, giving each a city-state. Each local lord had total authority on his own land and built his own army.

In 221 b.c.e., the first emperor of the Qin Dynasty unified the land on a new imperial basis. The Qin ruler conquered all the other states in northern China and created the first true Chinese empire, calling himself Shi Huangdi, or the first emperor. He adopted many new techniques for unifying China, including standardizing coins, creating a uniform system of weights and measures, and adopting a single writing system. One of the most significant building projects of the Qin was the Great Wall of China (although the present-day Great Wall of China is probably not the same wall). The Han Dynasty overthrew the Qin in 206 b.c.e., governing until 220 c.e. Under the Han, China enjoyed a four-hundred-year period of peace and the expansion of trade routes that became known as the Silk Road, one of the most-used trade routes in the world.

Mesoamerica

Civilizations developed in Mexico and upper Central America after about 1400 b.c.e. Mesoamerica is distinguished from all other parts of the Americas by the presence of a well-developed writing system. One important use was the recording of history. States were stratified into a series of classes headed by a highly centralized, hierarchical government. The most powerful member of the elite class was the ruler or king. Power was based on economic or religious considerations, and the belief that their supernatural origins gave the king and his family the divine right to rule. Leaders were seen, both in their lifetimes and after, as the incarnations of deities.

Mexico’s greatest pre-Hispanic civilization, the Maya, was agriculturally based. The Maya had a complex and elaborate writing system. The classical form of political organization had no standing armies and emphasized the qualities of the individual leader. Primogeniture was the most recognized principle of succession. Although there were no standing armies, warfare was important, and wars were initially fought to obtain tribute and captives for sacrifice. The prevailing mode of warfare was ritualized conflict or raiding without intent to gain territory, a practice common in Mesoamerican societies. The aim later expanded to include territorial and resource acquisition, prestige, and increased power. The form of government changed over time, from egalitarianism to elitist, then to a system of shared power.

Britain

The breakdown of Roman law and civilization in Britain occurred rather swiftly after the departure of the Roman army in 410 c.e. Raids from continental pirates and Vikings brought mercenary soldiers from Europe to defend against attack. These mercenaries were the Angles and Saxons from northern Germany. These invaders were not centrally organized as the Romans had been or as the Normans would be. Roman Britain was replaced by Anglo-Saxon Britain, with the Celts remaining in Cornwall, Wales, and Scotland.

The English tribes that came from the Continent possessed an elaborate and developed legal system, containing three branches: legislative or lawmaking; executive, which ensured the observation of laws; and judicial, which determined whether laws had been broken and dictated necessary sanctions. The legislative functions were carried out by the king and his council. Legal codes were produced at regular intervals. There was no law enforcement body to perform the executive function. It was up to victims or their family to seek justice. The judicial role was performed by a court called the hundred court, which met every four weeks at a prominent local landmark. The king’s reeve usually presided over the court, which performed many functions, including parish council business, planning, and magistrates court.

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