Ancient Laws and Modern Problems

John Sassoon

Description

John Sassoon’s study of the written laws of four thousand years ago puts paid to the belief that the most ancient laws were merely arbitrary and tyrannical. On the contrary, the earliest legal systems honestly tried to get to the truth, do justice to individuals, and preserve civil order. They used the death penalty surprisingly seldom, and then more because society had been threatened than an individual killed.
Some of the surviving law codes are originals, others near-contemporary copies. Together they preserve a partial but vivid picture of life in the early cites. This occupies more than half the book.
Comparison of ancient with modern principles occupies the remainder and is bound to be controversial; but it is important as well as fascinating. The first act of writing laws diminished the discretion of the judges and foretold a limit on individual justice. Some political principles such as uniformity of treatment or individual freedom have, when carried to extremes, produced crises in modern legal systems world wide.
But it is tempting but wrong to blame the judges or the lawyers for doing what society require of them.

Sujets

• Droit et juridique
• Legal history
• Comparative
• General officer
• Anthropology
• LAW
• General
• Cultural Studies

Informations

• Publié par: Intellect Books
• Date de parution: 01 avril 2005
• Nombre de lectures: 0
• EAN13: 9781841509174
• Langue: English
• Poids de l'ouvrage: 7 Mo

Extrait

JOHN SASSOON
ANCIENT LAWS AND MODERN PROBLEMS
In vain thy reason finer webs shall draw,
Entangle Justice in her net of Law,
And right, too rigid, harden into wrong
ALEXANDER POPE , An Essay on Man , 1733-4
JOHN SASSOON
ANCIENT LAWS AND MODERN PROBLEMS
The balance between justice and a legal system
Paperback edition first published in the UK in 2004 by Intellect Books, PO Box 862, Bristol BS99 1DE, UK.
Paperback edition first published in the USA in 2004 by Intellect Books, ISBS, 920 NE 58th Ave. Suite 300, Portland, Oregon, USA.
Copyright 2004 John Sassoon
First Published in 2001 by Third Millennium Publishing.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission.
A catalogue record for this book is available from the British Library
ISBN 1-84150-025-5
Set in Century Schoolbook
Designed and produced by
Pardoe Blacker Limited
Lingfield Surrey
Printed and bound in Great Britain by Antony Rowe Ltd.
CONTENTS
Introduction
Acknowledgements
Chapter 1. EMERGENCE FROM PREHISTORY
Chapter 2. THE LAW CODES
Chapter 3. THE BURDEN OF PROOF
Chapter 4. THE CONCEPT OF PROPERTY
Chapter 5. THE FAMILY AS PROPERTY
Chapter 6. CHILDREN
Chapter 7. ADOPTION
Chapter 8. RAPE AND THE FAMILY
Chapter 9. WOMEN ACCORDING TO THE LAWS
Chapter 10. CRUELTY UNDER THE LAW
Chapter 11. THE HAMMURABI MYSTERY
Chapter 12. LAW IN THE ANCIENT WORLD
Chapter 13. ANCIENT LAWS AND MODERN PROBLEMS : THREE PROBLEM PRINCIPLES
Chapter 14. ANCIENT LAWS AND MODERN PROBLEMS : JUSTICE AND OTHER HAZARDS
List of References
Bibliography
Index
DEDICATION
To ELWYN BLACKER Without whose encouragement and active support this book would never have happened
INTRODUCTION
T HE LEGAL SYSTEMS of modern democracies appear to be in something very like disarray. Few would think of looking at the ancient laws of around four thousand years ago for ideas about what has gone wrong and what might be done. That, basically, is what this book is about.
I am the textbook outsider: outside the community that studies ancient Mesopotamia; outside any community that studies law. But maybe that is the only way a book of this kind could be written; maybe that explains why such a book does not seem to have been written before.
This book is not a history of law. It extracts from the surviving laws of the city states of Sumer, Akkad and Babylon an idea of what their underlying concepts of justice might have been. It reflects on the nature of their societies including their notions of justice, and compares them with some aspects of modern societies. Ancient legal systems are necessarily interpreted with the aid of imagination but not, hopefully, of fantasy. If this exercise aims a spotlight at some modern orthodoxies, that may be no bad thing.
Such a ground plan needs for its basic material surviving original laws from a single culture and a definable period. Although reference is made to development since the stone age, the core material is the surviving laws from the peak of the Sumerian cities to Hammurabi of Babylon from, say, 2100 BC until, say, 1800 BC .
History is normally told from the point of view of a modern scholar looking backwards, so the past reaches us as an entertaining video with minimum impact on our thoughts or our lives. The relevance of the past is a matter of choice for each generation, so if we find the past to be irrelevant that reflects our own choice that for us it shall be so. It is a common belief that the past has gone away; but even a cursory glance reveals that elements of past societies, conflicts, decisions, are still there, still active components of today s problems and attitudes. The lessons of past experience are waiting to be consulted but indifferent if they are not. Too deep a searching of the past can suffocate the present and make it impossible for modern people to live their own lives and grow according to their nature, because that requires the freedom to make their own mistakes. But one persistent illusion needs to be confronted: that the past is another country whose inhabitants were somehow primitive, a belief that bolsters a second illusion that where our ancestors were primitive we are civilised and superior.
It is becoming apparent that during the brief five thousand years of written records there have been no such beings as primitive people anywhere on the planet. Modern man with his full range of intellect has been all over the earth, and his primitive ancestors have been extinct, for far longer than even the remote precursors of writing. Though ancient history may deal with a distant past, it is the study of written records and therefore of modern man. For instance, the intelligence available and brought to bear on the problems of governing a city has not changed noticeably during the passage of a few thousand years; people were people then and a city was a city, and reason and intelligence are clearly visible in the ancient solutions to the problems of government. What has changed are the numbers of those to be ruled and the practical means of administration available to rulers; and it is these that have altered the kinds of solution arrived at. Ancient laws tell of a search for truth and justice by simple and direct means which did not always succeed; modern laws will tell our descendants about a more complex society whose laws were usually effective but in which truth and justice were not always the first objectives.
Discussion today of the problems our city dwelling ancestors faced tends to be conducted in a special tone of voice which implies that the ancient issues are not to be taken seriously, not because they no longer arise but because the principles our ancestors brought to bear on those issues are not part of any of today s orthodoxies; and that special tone conveys, tactfully, the further message that the more sacred of today s orthodoxies are not to be questioned under the pretext of studying the past.
There are plenty of excellent histories which depict the ancient world as it appears to modern eyes; but apparently none that attempt to understand the ancient world by trying to visualise the modern world as ancient eyes might have seen it; nor is there any recognition that an exercise of that kind might contribute to our understanding of ourselves. In spite of the conjectural element, that is what this book is going to do. But there is a word of caution. To imagine the ancient world as that world may have seen itself has to involve the temporary suspension of adherence to many of today s values. Some of those most deeply and sincerely committed to today s values may find that difficult.
Generally, the most ancient world in history will be presented through the medium of their surviving laws in the conventional order, from today s standpoint looking backwards; but the attempt to understand those laws will then involve considering what the ancient world might have thought about some of our solutions to the problems they faced and which were evidently common to us both. Just as we record our contemporary history in the hope that it may serve as an example or a warning to our descendants so we need to, and can, learn from our ancestors once we have accepted both that they were modern men and women and that they faced many of the same problems as we do.
The easiest point from which to start a discussion of the ancient world is their laws, because their laws have sometimes survived in original when other indications of their ways of life have vanished or reach us only at second hand. A comparison of some of the principles which underlie the most ancient legal systems with those which underlie the most modern raises two questions which neither our historians nor our lawyers appear to have addressed: the first, how did our ancestors manage to solve, or avoid having to face, so many of the social and legal problems which baffle us? The second, how has it come about that thousands of sincere, intelligent, devoted, trained, honest men and women who are our barristers and judges find themselves running, and consciously running, a system which in the course of its normal, correct operation can produce injustice on a magnificent scale?

THE EPIC OF GILGAMESH : these fragments of a tablet illustrate some of the problems faced by those who set out to translate that epic, or indeed any tablets.
Let it be said that our barristers and our judges are among the most intelligent and sensitively ethical of all our people and that our system produces excellent justice for most of the time. So what has gone wrong for part of the time, and how on earth has the growing catastrophe apparently escaped their notice for so many decades, even centuries?
A study of the ancient world will not solve modern problems but it may throw some light on them. Many considerations tending in different directions will go into the stand taken on the various issues. Among those considerations are, first, that we are dealing with sincerity not malice; another, that some of the problems that arose millennia ago are not dead and irrelevant but are still facing us and are still unsolved; a third, that some of the worst problems facing legal systems are not legal problems at all but the result of principles adopted by the societies they serve; fourth, that though our ways of dealing with those problems are different from those of our ancestors, our objectives are often, though not always, the same while modern methods are sometimes more and sometimes less successful than the ancient methods; fifth, that in the ancient world justice was individual while today it is social The list goes on and it contains more than laws; but when trying to strike a balance and seek an answer to the main questions it will be found, surprisingly often, th