The legal code was a common feature of the legal systems of the ancient Middle East. The Sumerian Code of Ur-Nammu (c. 2100–2050 BC), then the Babylonian Code of Hammurabi (c. 1760 BC), are amongst the earliest originating in the Fertile Crescent. In the Roman empire, a number of codifications were developed, such as the Twelve Tables of Roman law (first compiled in 450 BC) and the Corpus Juris Civilis of Justinian, also known as the Justinian Code (429–534 CE). In ancient China, the first comprehensive criminal code was the Tang Code, created in 624 CE in the Tang Dynasty. In India, the Edicts of Ashoka (269–236 BC) were followed by the Law of Manu (200 BC).
The Code of Urukagina, 2380–2360 BCE
Uru-ka-gina, Uru-inim-gina, or Iri-ka-gina was King of the city-states of Lagash and Girsu in Mesopotamia, and the last ruler of the 1st Dynasty of Lagash. He assumed the title of king, claiming to have been divinely appointed, upon the downfall of his corrupt predecessor, Lugalanda.
He is best known for his reforms to combat corruption, which are sometimes cited as the first example of a legal code in recorded history. Although the actual text has not been discovered, much of its content may be surmised from other references to it that have been found. In it, he exempted widows and orphans from taxes; compelled the city to pay funeral expenses (including the ritual food and drink libations for the journey of the dead into the lower world); and decreed that the rich must use silver when purchasing from the poor, and if the poor does not wish to sell, the powerful man (the rich man or the priest) cannot force him to do so.
He also participated in several conflicts, notably a losing border conflict with Uruk. In the seventh year of his reign, Uruk fell under the leadership of Lugal-Zage-Si, énsi of Umma, who ultimately annexed most of the territory of Lagash and established the first reliably documented kingdom to encompass all of Sumer. The destruction of Lagash was described in a lament (possibly the earliest recorded example of what would become a prolific Sumerian literary genre), which stressed that “the men of Umma … committed a sin against Ningirsu. … Offence there was none in Urukagina, king of Girsu, but as for Lugal-Zage-Si, governor of Umma, may his goddess Nisaba make him carry his sin upon his neck” (alternatively – “may she carry his sin upon her neck”). Lugal-Zage-Si himself was soon defeated and his kingdom was annexed by Sargon of Akkad.
Urukagina’s code has been widely hailed as the first recorded example of government reform, seeking to achieve a higher level of freedom and equality. It limited the power of the priesthood and large property owners, and took measures against usury, burdensome controls, hunger, theft, murder, and seizure (of people’s property and persons); as he states, “The widow and the orphan were no longer at the mercy of the powerful man”. Here, the word “freedom” (“ama-gi”), appears for the first time in recorded history.
Despite these apparent attempts to curb the excesses of the elite class, it seems elite or royal women enjoyed even greater influence and prestige in his reign than previously. Urukagina greatly expanded the royal “Household of Women” from about 50 persons to about 1500 persons, renamed it the “Household of goddess Bau”, gave it ownership of vast amounts of land confiscated from the former priesthood, and placed it under the supervision of his wife, Shasha (or Shagshag). In his second year of reign, Shasha presided over the lavish funeral of his predecessor’s queen, Baranamtarra, who had been an important personage in her own right.
In addition to such changes, two of his other surviving decrees, first published and translated by Samuel Kramer in 1964, have attracted controversy in recent decades. First, he seems to have abolished the former custom of polyandry in his country, on pain of the woman taking multiple husbands being stoned with rocks upon which her crime is written. Second is a statute stating that “if a woman says [text illegible…] to a man, her mouth is crushed with burnt bricks.” No comparable laws from Urukagina addressing penalties for adultery by men have survived. The discovery of these fragments has led some modern critics to assert that they provide “the first written evidence of the degradation of women”.
Lament about the Fall of Lagash to Umma
Urukagina participated in several conflicts, notably a losing border conflict with Uruk. In the seventh year of his reign, Uruk fell under the leadership of Lugal-Zage-Si, énsi of Umma, who ultimately annexed most of the territory of Lagash and established the first reliably documented kingdom to encompass all of Sumer. The destruction of Lagash was described in a lament (possibly the earliest recorded example of what would become a prolific Sumerian literary genre), which stressed that:
“the men of Girsu … committed a sin against Ningirsu. … Offence there was none in Urukagina, king of Girsu, but as for Lugal-Zage-Si, governor of Umma, may his goddess Nisaba make him carry his sin upon his neck” (alternatively – “may she carry his sin upon her neck”).
Cuneiform Law, 2350–1400 BCE
Cuneiform law refers to any of the legal codes written in cuneiform script, that were developed and used throughout the ancient Middle East among the Sumerians, Babylonians, Assyrians, Elamites, Hurrians, Kassites, and Hittites. The Code of Hammurabi is the most well-known of the cuneiform laws, but there were a number of precursor laws.
Although they were written in several different cities and kingdoms, these early laws have a number of formulae in common. Most contain both an epilogue and a prologue, which usually explain the purpose of composing the laws, invoke divine authority, and command the reader to abide by them. They are always imposed or ‘enacted’ in the name of a ruler, be it a prince or king, and show no sign of being the result of legislative bodies.
While many of these codes are only partially known, they nevertheless paint a fairly clear picture that enables us to learn what issues pertaining to rules were considered significant by the societies they governed in the 3rd, 2nd, and 1st millennia BC.
Unlike modern codes, Cuneiform law provides no universal formula for general areas of law. Rather, laws typically consist of specific “if… then…” cases that are meant to act as an example or precedent. Punishments for crimes vary from code to code, but not all prescribe vengeance. Some call only for fines in certain instances, such as in the Code of Ur-Nammu, where one line reads: “If a man knocks out the eye of another man, he shall weigh out one-half a mina of silver.” These cases are sometimes arranged in a seemingly random order, though this may be the result of an inability to properly interpret them today as they would have been at the time they were in force.
Cuneiform law is generally classified separately from later Middle Eastern law, but has been viewed as a predecessor of Biblical and Jewish law. The communities of the Middle East that made use of cuneiform law were generally all in contact with one another, and developed similar cultures. Akkadian, a cuneiform language, was used throughout the entire area, and even as far as Egypt, for diplomatic communications during the Amarna Period.
Code of Ur-Nammu, c.2050 BCE
The first copy of the code, in two fragments found at Nippur, was translated by Samuel Kramer in 1952. These fragments are held at the Istanbul Archaeological Museums. Owing to its partial preservation, only the prologue and 5 of the laws were discernible. Kramer noted that luck was involved in the discovery:
In all probability I would have missed the Ur-Nammu tablet altogether had it not been for an opportune letter from F. R. Kraus, now Professor of Cuneiform Studies at the University of Leiden in Holland… His letter said that some years ago, in the course of his duties as curator in the Istanbul Museum, he had come upon two fragments of a tablet inscribed with Sumerian laws, had made a “join” of the two pieces, and had catalogued the resulting tablet as No. 3191 of the Nippur collection of the Museum… Since Sumerian law tablets are extremely rare, I had No. 3191 brought to my working table at once. There it lay, a sun-baked tablet, light brown in color, 20 by 10 centimeters in size. More than half of the writing was destroyed, and what was preserved seemed at first hopelessly unintelligible. But after several days of concentrated study, its contents began to become clear and take shape, and I realized with no little excitement that what I held in my hand was a copy of the oldest law code as yet known to man.
Further tablets were found in Ur and translated in 1965, allowing some 30 of the 57 laws to be reconstructed. Another copy found in Sippar contains slight variants.
The preface directly credits the laws to king Ur-Nammu of Ur (2112–2095 BC). The author who had the laws written onto cuneiform tablets is still somewhat under dispute. Some scholars have attributed it to Ur-Nammu’s son Shulgi.
Although it is known that earlier law-codes existed, such as the Code of Urukagina, this represents the earliest extant legal text. It is three centuries older than the Code of Hammurabi. The laws are arranged in casuistic form of IF (crime) THEN (punishment)—a pattern followed in nearly all later codes. For the oldest extant law-code known to history, it is considered remarkably advanced because it institutes fines of monetary compensation for bodily damage as opposed to the later lex talionis (‘eye for an eye’) principle of Babylonian law. However, murder, robbery, adultery and rape were capital offenses.
The code reveals a glimpse at societal structure during the “Sumerian Renaissance”. Beneath the lugal (“great man” or king), all members of society belonged to one of two basic strata: the “lu” or free person, or the slave (male, arad; female geme). The son of a lu was called a dumu-nita until he married, becoming a “young man” (gurus). A woman (munus) went from being a daughter (dumu-mi) to a wife (dam), then if she outlived her husband, a widow (nu-ma-su), who could remarry.
Laws of Eshnunna, c.1930 BCE
The Laws of Eshnunna (abrv. LE) are inscribed on two cuneiform tablets discovered in Tell Abū Harmal, Baghdad, Iraq. The Iraqi Directorate of Antiquities headed by Taha Baqir unearthed two parallel sets of tablets in 1945 and 1947. The two tablets are separate copies of an older source and date back to ca. 1930 BC. The differences between the Code of Hammurabi and the Laws of Eshnunna significantly contributed to illuminating the development of ancient and cuneiform law. Eshnunna was north of Ur on the Tigris River and became politically important after the fall of the third dynasty of Ur, founded by Ur-Nammu.
In distinction from the other Mesopotamian collections of law, this one got its name after the city where it had originated – Eshnunna, located on the bank of the Diyala River, tributary to the Tigris. This collection of laws is not a real systemized codex; nearly sixty of its sections are preserved. The Laws are written in Akkadian and consist of two tablets which are marked with A and B. In 1948, Albrecht Goetze of the Yale University had translated and published them. In some sources the Laws of Eshnunna are mentioned as the Laws of Bilalama due to the belief that the Eshnunnian ruler probably was their originator, but Goetze maintained that tablet B was originated under the reign of Dadusha. The text of the prologue is broken at the point where the ruler who promulgated the laws was specified.
Albrecht Goetze has noticed the specific style of expression. The laws were composed in a mode that facilitated memorizing. A distinguished Israeli scientist and one of the foremost experts on this collection of laws, Reuven Yaron of the University of Jerusalem concerning this matter stated: “What matters to me – and might have mattered to those who fashioned them almost 4000 years ago – is the ease of remembering the text.”
The conditional sentence (“If A then B” – as it also is the case with the other Mesopotamian laws) is an attribute of this codification. In 23 paragraphs, it appears in the form šumma awilum – “If a man…” After the disposition, a precise sanction follows, e.g. LU42(A): “If a man bit and severed the nose of a man, one mina silver he shall weigh out.”
The Laws clearly show signs of social stratification, mainly focussing on two different classes: the muškenum and awilum. The audience of the Laws of Eshnunna is more extensive than in the case of the earlier cuneiform codifications: awilum – free men and women (mar awilim and marat awilim), muškenum, wife (aššatum), son (maru), slaves of both sexes – male (wardum) and female (amtum) – which are not only objects of law as in classical slavery, and delicts where the victims were slaves have been sanctioned, and other class designations as ubarum, apþarum, mudum that are not ascertained.
Reuven Yaron has divided the offences of the Laws of Eshnunna into five groups. The articles of the first group had to be collected from all over the Laws and the articles of the other four were roughly ordered one after the other:
- Theft and related offences,
- False distraint,
- Sexual offences.
- Bodily injuries,
- Damages caused by a goring ox and comparable cases.
The majority of these offences were penalized with pecuniary fines (an amount of silver), but some serious offences such as burglary, murder, and sexual offences were penalized with death. It seems that the capital punishment was avoidable (in contrast to the Code of Hammurabi), because of the standard formulation: “It is a case of life … he shall die”.
Codex of Lipit-Ishtar, c.1870 BCE
Lipit-Ishtar was the 5th king of the First Dynasty of Isin, according to the Sumerian King List (SKL). Also according to the SKL: he was the successor of Išme-Dagān. Ur-Ninurta then succeeded Lipit-Ištar. Some documents and royal inscriptions from his time have survived, however; Lipit-Ištar is mostly known due to the Sumerian language hymns that were written in his honor, as well as a legal code written in his name (preceding the famed Code of Hammurabi by about 100 years)—which were used for school instruction for hundreds of years after Lipit-Ištar’s death. The annals of Lipit-Ištar’s reign recorded that he also repulsed the Amorites.
Babylonian Laws – The Code of Hammurabi, c.1790 BCE
The Code of Hammurabi is a well-preserved Babylonian code of law of ancient Mesopotamia, dated to about 1754 BC (Middle Chronology). It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code. A partial copy exists on a 2.25-metre-tall (7.5 ft) stone stele. It consists of 282 laws, with scaled punishments, adjusting “an eye for an eye, a tooth for a tooth” (lex talionis) as graded based on social stratification depending on social status and gender, of slave versus free, man versus woman.
Nearly half of the code deals with matters of contract, establishing the wages to be paid to an ox driver or a surgeon for example. Other provisions set the terms of a transaction, the liability of a builder for a house that collapses, or property that is damaged while left in the care of another. A third of the code addresses issues concerning household and family relationships such as inheritance, divorce, paternity, and reproductive behavior. Only one provision appears to impose obligations on a government official; this provision establishes that a judge who alters his decision after it is written down is to be fined and removed from the bench permanently. A few provisions address issues related to military service.
The code was discovered by modern archaeologists in 1901, and its editio princeps translation published in 1902 by Jean-Vincent Scheil. This nearly complete example of the code is carved into a diorite stele in the shape of a huge index finger, 2.25 m (7.4 ft) tall. The code is inscribed in the Akkadian language, using cuneiform script carved into the stele. The material was imported into Sumeria from Magan – today the area covered by the United Arab Emirates and Oman.
It is currently on display in the Louvre, with replicas in numerous institutions, including the Oriental Institute at the University of Chicago, the Northwestern Pritzker School of Law in Chicago, the Clendening History of Medicine Library & Museum at the University of Kansas Medical Center, the library of the Theological University of the Reformed Churches in the Netherlands, the Pergamon Museum of Berlin, the Arts Faculty of the University of Leuven in Belgium, the National Museum of Iran in Tehran, the Department of Anthropology, National Museum of Natural History, Smithsonian Institution, the University Museum at the University of Pennsylvania, the Pushkin State Museum of Fine Arts in Russia, the Prewitt-Allen Archaeological Museum at Corban University, Garrett-Evangelical Theological Seminary, and Museum of the Bible in Washington, DC.
Hammurabi ruled from 1792 to 1750 BC (according to the middle chronology). At the head of the stone slab is Hammurabi receiving the law from Shamash, and in the preface, he states, “Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash, and enlighten the land, to further the well-being of mankind.” The laws were arranged in 44 columns and 28 paragraphs; some follow along the rules of “an eye for an eye”.
It was taken as plunder by the Elamite king Shutruk-Nahhunte in the 12th century BC and was taken to Susa in Elam (located in the present-day Khuzestan Province of Iran), where it was no longer available to the Babylonian people. However, when Cyrus the Great brought both Babylon and Susa under the rule of his Persian Empire and placed copies of the document in the Library of Sippar, the text became available for all the peoples of the vast Persian Empire to view.
In 1901, Egyptologist Gustave Jéquier, a member of an expedition headed by Jacques de Morgan, found the stele containing the Code of Hammurabi during archaeological excavations at the ancient site of Susa in Khuzestan.
The stele unearthed in 1901 had many laws scraped off by Shutruk-Naknunte. Early estimates pegged the number of missing laws at 34, however the exact number is still not determined and only 30 have been discovered so far. The common belief is that the code contained 282 laws in total.
Laws of Hammurabi’s Code
The Code of Hammurabi was one of the only sets of laws in the ancient Near East and also one of the first forms of law. The code of laws was arranged in orderly groups, so that all who read the laws would know what was required of them. Earlier collections of laws include the Code of Ur-Nammu, king of Ur (c. 2050 BC), the Laws of Eshnunna (c. 1930 BC) and the codex of Lipit-Ishtar of Isin (c. 1870 BC), while later ones include the Hittite laws, the Assyrian laws, and Mosaic Law. These codes come from similar cultures in a relatively small geographical area, and they have passages that resemble each other.
The Code of Hammurabi is the longest surviving text from the Old Babylonian period. The code has been seen as an early example of a fundamental law, regulating a government – i.e., a primitive constitution. The code is also one of the earliest examples of the idea of presumption of innocence, and it also suggests that both the accused and accuser have the opportunity to provide evidence. The occasional nature of many provisions suggests that the code may be better understood as a codification of Hammurabi’s supplementary judicial decisions, and that, by memorializing his wisdom and justice, its purpose may have been the self-glorification of Hammurabi rather than a modern legal code or constitution. However, its copying in subsequent generations indicates that it was used as a model of legal and judicial reasoning.
While the Code of Hammurabi was trying to achieve equality, biases still existed against those categorized in the lower end of the social spectrum and some of the punishments and justice could be gruesome. The magnitude of criminal penalties often was based on the identity and gender of both the person committing the crime and the victim. The Code issues justice following the three classes of Babylonian society: property owners, freed men, and slaves.
Punishments for someone assaulting someone from a lower class were far lighter than if they had assaulted someone of equal or higher status. For example, if a doctor killed a rich patient, he would have his hands cut off, but if he killed a slave, only financial restitution was required. Women could also receive punishments that their male counterparts would not, as men were permitted to have affairs with their servants and slaves, whereas married women would be harshly punished for committing adultery.
Various copies of portions of the Code of Hammurabi have been found on baked clay tablets, some possibly older than the celebrated basalt stele now in the Louvre. The Prologue of the Code of Hammurabi (the first 305 inscribed squares on the stele) is on such a tablet, also at the Louvre (Inv #AO 10237). Some gaps in the list of benefits bestowed on cities recently annexed by Hammurabi may imply that it is older than the famous stele (currently dated to the early 18th century BC). Likewise, the Museum of the Ancient Orient, part of the Istanbul Archaeology Museums, also has a “Code of Hammurabi” clay tablet, dated to 1790 BC (in Room 5, Inv # Ni 2358).
In July 2010, archaeologists reported that a fragmentary Akkadian cuneiform tablet was discovered at Tel Hazor, Israel, containing a c. 1700 BC text that was said to be partly parallel to portions of the Hammurabi code. The Hazor law code fragments are currently being prepared for publication by a team from the Hebrew University of Jerusalem.
Hittite Laws, c.1650-1100 BCE
The Hittite laws have been preserved on a number of Hittite cuneiform tablets found at Hattusa (CTH 291-292, listing 200 laws). Copies have been found written in Old Hittite as well as in Middle and Late Hittite, indicating that they had validity throughout the duration of the Hittite Empire (ca. 1650–1100 BCE).
The laws are formulated as case laws; they start with a condition, and a ruling follows, e.g. “If anyone tears off the ear of a male or female slave, he shall pay 3 shekels of silver”. The laws show an aversion to the death penalty; the usual penalty for serious offenses being enslavement to forced labour. They are preserved on two separate tablets, each with approximately 200 clauses, the first categorised as being ‘of a man’; the second ‘of a vine’; a third set may have existed.
The laws may be categorised into eight groups of similar clauses. These are separated for the most part by two types of seemingly orphaned clauses: Sacral or incantatory clauses, and afterthoughts.
These eight main groups of laws were:
- I Aggression and assault: Clauses 1 – 24
- II Marital relationships: Clauses 26 – 38
- III Obligations and service – TUKUL: Clauses 39 – 56
- IV Assaults on property and theft: Clauses 57 – 144
- V Contracts and prices: Clauses 145 – 161
- VI Sacral matters: Clauses 162 – 173
- VII Contracts and tariffs: Clauses 176 – 186
- VIII Sexual relationships – HURKEL: Clauses 187 – 200
- Including the criminalisation of bestiality (except with horses and mules). The death penalty was a common punishment among sexual crimes.
The Hittite laws were kept in use for some 500 years, and many copies show that, other than changes in grammar, what might be called the ‘original edition’ with its apparent disorder, was copied slavishly; no attempt was made to ‘tidy up’ by placing even obvious afterthoughts in a more appropriate position.
This corpus and the classification scheme is based on findings arising out of a Master of Arts degree taken at the University of Queensland by N H Dewhirst, supervised by Dr Trevor Bryce in 2004.
Changes were apparently made to penalties at least twice: firstly, the kara – kinuna changes, which generally reduced the penalties found in a former, but apparently unpreserved, ‘proto-edition’; and secondly, the ‘Late Period’ changes to penalties in the already-modified Old Hittite version.
Code of the Nesilim, c.1650-1500 BCE
The Code of Nesilim (Imperial Hittites) is an ancient Hittite (Nesili) legal code dating from c. 1650 – 1500 BCE. This contained the laws that reflected the Hittite empire’s social structure, sense of justice, and morality, addressing common outlawed actions such as assault, theft, murder, witchcraft, and divorce, among others. It is particularly notable due to a number of its provisions, covering social issues that included the humane treatment of slaves. Although they were considered lesser than free men, the slaves under the code were allowed to choose whomever they wanted to marry, buy property, open businesses, and purchase their freedom. In comparison with The Code of Assura or the Code of Hammurabi, the Code of Nesilim also provided less-severe punishments for the code’s violations.
While it is not known who exactly authored the legal document, some historians believe that its source was someone important or of high power in the Hittite society and this could even be a king. The ancient legal document was posted online by Paul Halsall, a professor at Fordham University as part of his Internet History Sourcebooks Project.
The Torah (Law of Moses), 10th-6th Century BCE
The Law of Moses, also called the Mosaic Law, primarily refers to the Torah or the first five books of the Hebrew Bible. Traditionally believed to have been written by Moses, most academics now believe they had many authors.
The Law of Moses or Torah of Moses (Hebrew: תֹּורַת מֹשֶׁה, Torat Moshe, Septuagint Ancient Greek: νόμος Μωυσῆ, nómos Mōusē, or in some translations the “Teachings of Moses”) is a biblical term first found in the Book of Joshua 8:31-32, where Joshua writes the Hebrew words of “Torat Moshe תֹּורַת מֹשֶׁה” on an altar of stones at Mount Ebal. The text continues:
And afterward he read all the words of the teachings, the blessings and cursings, according to all that is written in the book of the Torah (Joshua 8:34).
The term occurs 15 times in the Hebrew Bible, a further 7 times in the New Testament, and repeatedly in Second Temple period, intertestamental, rabbinical and patristic literature.
The Hebrew word for the first five books of the Hebrew Bible, Torah (which means “law” and was translated into Greek as “nomos” or “Law”) refers to the same five books termed in English “Pentateuch” (from Latinised Greek “five books,” implying the five books of Moses). According to some scholars, use of the name “Torah” to designate the “Five Books of Moses” of the Hebrew Bible is clearly documented only from the 2nd century BCE.
In modern usage, Torah can refer to the first five books of the Tanakh, as the Hebrew Bible is commonly called, to the instructions and commandments found in the 2nd to 5th books of the Hebrew Bible, and also to the entire Tanakh and even all of the Oral Law as well. Among English-speaking Christians the term “The Law” can refer to the whole Pentateuch including Genesis, but this is generally in relation to the New Testament where nomos “the Law” sometimes refers to all five books, including Genesis. This use of the Hebrew term “Torah” (law), for the first five books is considered misleading by 21st-century Christian bible scholar John Van Seters, because the Pentateuch “consists of about one half law and the other half narrative.”
Law in the Ancient Near East
The “Law of Moses” in ancient Israel was different from other legal codes in the ancient Near East because transgressions were seen as offenses against God rather than solely as offenses against society (civil law). This contrasts with the Sumerian Code of Ur-Nammu (c. 2100-2050 BCE), and the Babylonian Code of Hammurabi (c. 1760 BCE, of which almost half concerns contract law). However the influence of the ancient Near Eastern legal tradition on the Law of ancient Israel is recognised and well documented. For example, the Israelite Sabbatical Year has antecedents in the Akkadian mesharum edicts granting periodic relief to the poor. Another important distinction is that in ancient Near East legal codes, as in more recently unearthed Ugaritic texts, an important, and ultimate, role in the legal process was assigned to the king. Ancient Israel, before the monarchical period beginning with David, was set up as a theocracy, rather than a monarchy, although God is most commonly portrayed like a king.
Moses and Authorship of the Law
According to the Hebrew Bible, Moses was the leader of early Israel out of Egypt; and traditionally the first five books of the Hebrew Bible are attributed to him, though most modern scholars believe there were multiple authors. The law attributed to Moses, specifically the laws set out in the books of Leviticus and Deuteronomy, as a consequence came to be considered supreme over all other sources of authority (any king and/or his officials), and the Levites were the guardians and interpreters of the law.
The Book of Deuteronomy (Deuteronomy 31:24–26) records Moses saying, “Take this book of the law, and put it by the side of the Ark of the Covenant of the LORD.” Similar passages referring to the Law include, for example, Exodus 17:14, “And the LORD said unto Moses, Write this for a memorial in a book, and rehearse it in the ears of Joshua, that I will utterly blot out the remembrance of Amalek from under heaven;” Exodus 24:4, “And Moses wrote all the words of the LORD, and rose up early in the morning, and built an altar under the mount, and twelve pillars, according to the twelve tribes of Israel;” Exodus 34:27, “And the LORD said unto Moses, Write thou these words, for after the tenor of these words I have made a covenant with thee and with Israel;” and Leviticus 26:46 “These are the decrees, the laws and the regulations that the LORD established on Mount Sinai between himself and the Israelites through Moses.”
The content of the Law is spread among the books of Exodus, Leviticus, and Numbers, and then reiterated and added to in Deuteronomy. This includes:
- The Ten Commandments
- Moral laws – on murder, theft, honesty, adultery, etc.
- Social laws – on property, inheritance, marriage and divorce,
- Food laws – on what is clean and unclean, on cooking and storing food.
- Purity laws – on menstruation, seminal emissions, skin disease and mildew, etc.
- Feasts – the Day of Atonement, Passover, Feast of Tabernacles, Feast of Unleavened Bread, Feast of Weeks etc.
- Sacrifices and offerings – the sin offering, burnt offering, whole offering, heave offering, Passover sacrifice, meal offering, wave offering, peace offering, drink offering, thank offering, dough offering, incense offering, red heifer, scapegoat, first fruits, etc.
- Instructions for the priesthood and the high priest including tithes.
- Instructions regarding the Tabernacle, and which were later applied to the Temple in Jerusalem, including those concerning the Holy of Holies containing the Ark of the Covenant (in which were the tablets of the law, Aaron’s rod, the manna). Instructions and for the construction of various altars.
- Forward looking instructions for time when Israel would demand a king.
The content of the instructions and its interpretations, the Oral Torah, was passed down orally, excerpted and codified in Rabbinical Judaism, and in the Talmud were numbered as the 613 commandments. The Law given to Moses at Sinai (Hebrew Halakhah le-Moshe mi-Sinai הלכה למשה מסיני) is a halakhic distinction.
Rabbinic Judaism asserts that Moses presented the laws to the Jewish people, and that the laws do not apply to Gentiles (including Christians), with the exception of the Seven Laws of Noah, which (it teaches) apply to all people.
Most Christians believe that only parts dealing with the moral law (as opposed to ceremonial law) are still applicable, others believe that none apply, dual-covenant theologians believe that the Old Covenant remains valid only for Jews, and a minority have the view that all parts still apply to believers in Jesus and in the New Covenant.
The Draconian Constitution (7th Century BCE)
The Draconian constitution, or Draco’s code, was a written law code created by Draco near the end of the 7th century BC in response to the unjust interpretation and modification of oral law by Athenian aristocrats. With most societies in Greece codifying basic law during the mid-seventh century BC, Athenian oral law was manipulated by the aristocracy until the emergence of Draco’s code. Around 621 BC the people of Athens commissioned Draco to devise a written law code and constitution, giving him the title of the first legislator of Athens. The literate could read the code at a central location accessible to anyone. This enactment of a rule of law was an early manifestation of Athenian democracy.
The need for written laws began with the unequal access to legal knowledge by the aristocracy and the people; the established laws of Athens were inefficiently formulated in the spoken language and often modified and re-evaluated. The aristocratic exploitation of this system began during the mid-seventh century BC, and laws were often amended to benefit the aristocracy. This triggered feuds by families ignorant of the law in an attempt to obtain justice.
To minimize the incidence of these feuds, the governing aristocratic families of Athens decided to abandon their concealed system of legal proposals and amendments and promulgate them to Athenian society in writing. They authorized Draco, an aristocratic legislator, to construct the written constitution, and he began to write the text around 621 BC. To promulgate the new constitution, its text was inscribed on displaying devices. As a result, the Draconian constitution was accessible to the literate.
Draco introduced the concepts of intentional and unintentional homicide, with both crimes adjudicated at the Areopagus. Since murder cases were tried by the state, feuds as a form of justice became illegal. The homicide laws were the only laws retained by the early-6th-century BC Solonian Constitution.
And Draco himself, they say, being asked why he made death the penalty for most offences, replied that in his opinion the lesser ones deserved it, and for the greater ones no heavier penalty could be found.
PLUTARCH, LIFE OF SOLON
Although the full Draconian constitution no longer exists, severe punishments were reportedly meted out to those convicted of offenses as minor as stealing an apple. There may have been only one penalty, execution, for all convicted violators of the Draconian constitution and the laws were said to be written in blood instead of ink. These legends have become part of the English language, with the adjective “draconian” referring to unusually harsh punishment.
Hoplites were able to participate in political life; they could vote and hold minor state official positions. To hold higher positions, property was required. Hoplites with debt-free property valued at ten minas or more could serve as an eponymous archon or a Treasurer. The Athenian strategoi (generals) and hipparkoi (cavalry commanders) were chosen from those holding unencumbered property worth at least 100 minas with offspring over 10 years of age who were born in wedlock. Four hundred one Council members were chosen from hoplites at least 30 years of age. No one could be elected by lot more than once to serve on the Council until the Council “cast the lot afresh”: again included every eligible individual for the next Council when everyone had served a turn. Election to political positions in Athens was based on sortition except for the Areopagus, which consisted of retired archons.
Council and Assembly
The Council was another concept Draco introduced to Athenian government in his constitution. In Aristotle’s Constitution of the Athenians, the Council was vaguely characterized as a magistracy. The Assembly was another Athenian magistracy which was described in detail by Aristotle.
Council or Assembly members who were absent from a meeting were fined, with the fines proportionate to social class. If the absent member was from the pentacosiomedimnus class, they were fined three drachmas. Knights were fined two drachmas, and zeugites one drachma.
In The Constitution of the Athenians
Aristotle’s timeline of the Draconian constitution is characterized by the vague phrase “not very long after”:
Such, then, is the relative chronological precedence of these offices. At that time the nine Archons did not all live together. The King occupied the building now known as the Boculium, near the Prytaneum, as may be seen from the fact that even to the present day the marriage of the King’s wife to Dionysus takes place there. The Archon lived in the Prytaneum, the Polemarch in the Epilyceum. The latter building was formerly called the Polemarcheum, but after Epilycus, during his term of office as Polemarch, had rebuilt it and fitted it up, it was called the Epilyceum. The Thesmothetae occupied the Thesmotheteum. In the time of Solon, however, they all came together into the Thesmotheteum. They had power to decide cases finally on their own authority, not, as now, merely to hold a preliminary hearing. Such then was the arrangement of the magistracies. The Council of Areopagus had as its constitutionally assigned duty the protection of the laws; but in point of fact it administered the greater and most important part of the government of the state, and inflicted personal punishments and fines summarily upon all who misbehaved themselves. This was the natural consequence of the facts that the Archons were elected under qualifications of birth and wealth, and that the Areopagus was composed of those who had served as Archons; for which latter reason the membership of the Areopagus is the only office which has continued to be a life-magistracy to the present day.
Such was, in outline, the first constitution, but not very long after the events above recorded, in the archonship of Aristaichmus, Draco enacted his ordinances.
ARISTOTLE, CONSTITUTION OF THE ATHENIANS CHAPTERS 3 AND 4, TRANSLATED BY FREDERIC G. KENYON
Given the founding of Athens by Cecrops I and its first constitution in 1556 BC, its legal framework would have functioned for over 900 years before Draco codified the laws and drafted his constitution around 620 BC. Therefore, subsequently, commentators assume that the phrase “not very long after” refers instead to the more-recent Cylonian affair.
Aristotle’s undefined use of “Prytanes” refers to a number of Athenian state positions during and after the development of the Draconian constitution:
Such was, in outline, the first constitution, but not very long after the events above recorded, in the archonship of Aristaichmus, Draco enacted his ordinances. Now his constitution had the following form. The franchise was given to all who could furnish themselves with a military equipment. The nine Archons and the Treasurers were elected by this body from persons possessing an unencumbered property of not less than ten minas, the less important officials from those who could furnish themselves with a military equipment, and the generals [Strategi] and commanders of the cavalry [Hipparchi] from those who could show an unencumbered property of not less than a hundred minas, and had children born in lawful wedlock over ten years of age. These officers were required to hold to bail the Prytanes, the Strategi, and the Hipparchi of the preceding year until their accounts had been audited, taking four securities of the same class as that to which the Strategi and the Hipparchi belonged.
ARISTOTLE, CONSTITUTION OF THE ATHENIANS CHAPTER 4, TRANSLATED BY FREDERIC G. KENYON
“Prytanes” later referred to the fifty members of the Council, although their only other appearance in the context of the Draconian constitution was in Herodotus’ account of the Cylonian affair (where the “Prytanes of Naucrari” are mentioned). This may have occurred due to Herodotus’ (a Dorian) habit of referring to the first magistrates of Dorian cities as “Prytanes of Naucrari” and conflating them with the first magistrates of Athens (the Archons). Thucydides’ more-detailed version also refers to Herodotus’ “Prytanes of Naucrari.” “Those,” he wrote, “to whom the people had confided the keeping of the citadel, seeing the partisans of Cylon perish at the feet of the statue of Minerva, caused them to go out of the citadel, promising them that no harm would be done to them.” As Thucydides had mentioned in his account of the Cylonian affair, the nine Archons were the people entrusted with the citadel.
A relationship between current officials and the Prytanes, strategoi and hipparkoi of the preceding year concerning financial securities is a controversial texts in the Oxford Classical Text edition of Aristotle’s Constitution of the Athenians, translated by Frederic G. Kenyon:
These officers were required to hold to bail the Prytanes, the Strategi, and the Hipparchi of the preceding year until their accounts had been audited, taking four securities of the same class as that to which the Strategi and the Hipparchi belonged.
ARISTOTLE, CONSTITUTION OF THE ATHENIANS, CHAPTER 4 (KENYON TRANSLATION)
The Gortyn Code (5th Century BCE)
The Gortyn code (also called the Great Code) was a legal code that was the codification of the civil law of the ancient Greek city-state of Gortyn in southern Crete.
Our sole source of knowledge of the code is the fragmentary boustrophedon inscription on the circular walls of what might have been a bouleuterion or other public civic building in the agora of Gortyn. The original building was 30 m (100 ft) in diameter; the 12 columns of text which survive are 10 m (30 ft) in length and 1.5 m (4 ft 11 in) in height and contain some 600 lines of text. In addition, some further broken texts survive; the so-called second text. It is the longest extant ancient Greek inscription except for the inscription of Diogenes of Oenoanda. Evidence suggests it is the work of a single sculptor. The inscription has been dated to the first half of the 5th century BCE.
The first fragment of the code was discovered in the 1850s. Italian archaeologist Federico Halbherr found a further four columns of the text while excavating a site near a local mill in 1884. Since this was evidently part of a larger text, he, with Ernst Fabricius and a team, obtained permission to excavate the rest of the site, revealing 8 more text columns whose stones had been reused as part of the foundations of a Roman Odeion from the 1st century BCE. The wall bearing the code has now been partially reconstructed.
The Great Code is written in the Dorian dialect and is one of a number of legal inscriptions found scattered across Crete but curiously, very few nonlegal texts from ancient Crete survive. The Dorian language was then pervasive among Cretan cities such as Knossos, Lyttos, Axos and various other areas of central Crete. The Code stands with a tradition of Cretan law, which taken as a totality represents the only substantial corpus of Greek law from antiquity found outside Athens. The whole corpus of Cretan law may be divided into three broad categories: the earliest (I. Cret. IV 1-40., ca. 600 BCE to ca. 525 BCE) was inscribed on the steps and walls of the temple of Apollo Pythios, the next a sequence, including the Great Code, written on the walls in or near the agora between ca. 525 and 400 BCE (I. Cret. IV 41-140), followed by the laws (I. Cret. IV 141-159), which contain Ionian characters and so are dated to the 4th century.
Though all the texts are fragmentary and show evidence of a continuous amendment of the law, it has been possible to trace the development of the law from Archaic proscriptions onwards, notably the diminishing rights of women and the increasing rights of slaves. Also, one can infer some aspects of public law.
The code deals with such matters as disputed ownership of slaves, rape and adultery, the rights of a wife when divorced or a widow, the custody of children born after divorce, inheritance, sale and mortgaging of property, ransom, children of mixed (slave, free and foreign) marriages and adoption. The code makes legal distinctions between different social classes. Free, serf, slave and foreigner social statuses are recognized within the document.
Bringing Suit: The code provides a measure of protection for individuals prior to their trial. Persons bringing suit are prohibited from seizing and detaining the accused before trial. Violations are punishable by fines, which vary depending on the status of the detained individual.
Rape and Adultery: Rape under the code is punished with fines. The fine is largely determined by the difference in social status between the victim and the accused. A free man convicted of raping a serf or a slave would receive the lowest fine; a slave convicted of raping a free man or woman would warrant the highest fine.
Adultery is punished similarly to rape under the code but also takes into consideration the location of the crime. The code dictates higher fines for adultery committed within the household of the female’s father, husband or brother, as opposed to another location. Fines also depend on whether the woman has previously committed adultery. The fines are levied against the male involved in the adultery, not the female. The code does not provide for the punishment of the female.
Divorce and Marriage Rights: The Gortyn law code grants a modicum of property rights to women in the case of divorce. Divorced women are entitled to any property that they brought to the marriage and half of the joint income if derived from her property. The code also provides for a portion of the household property. The code stipulates that any children conceived before the divorce but born after the divorce fall under the custody of the father. If the father does not accept the child, it reverts to the mother.
Property Rights and Inheritance: The code devotes a great deal of attention to the allocation and management of property. Although the husband manages the majority of the family property, the wife’s property is still delineated. If the wife dies, the husband becomes the trustee to her property and may take no action on it without the consent of her children. In the case of remarriage, the first wife’s property immediately comes into her children’s possession. If the wife dies childless, her property reverts to her blood relatives.
If the husband dies with children, the property is held in trust by the wife for the children. If the children are of age upon their father’s death, the property is divided between the children, with males receiving all of the land. If the husband dies without any children, the wife is compelled to remarry.
Adopted children receive all the inheritance rights of natural children and are considered legitimate heirs in all cases. Women are not allowed to adopt children.
The Twelve Tables of Roman Law (451 BCE)
The Law of the Twelve Tables was the legislation that stood at the foundation of Roman law. The Tables consolidated earlier traditions into an enduring set of laws.
Displayed in the Forum, “The Twelve Tables” stated the rights and duties of the Roman citizen. Their formulation was the result of considerable agitation by the plebeian class, who had hitherto been excluded from the higher benefits of the Republic. The law had previously been unwritten and exclusively interpreted by upper-class priests, the pontifices. Something of the regard with which later Romans came to view the Twelve Tables is captured in the remark of Cicero (106–43 BC) that the “Twelve Tables…seems to me, assuredly to surpass the libraries of all the philosophers, both in weight of authority, and in plenitude of utility”. Cicero scarcely exaggerated; the Twelve Tables formed the basis of Roman law for a thousand years.
The Twelve Tables are sufficiently comprehensive that their substance has been described as a ‘code’, although modern scholars consider this characterization exaggerated. The Tables were a sequence of definitions of various private rights and procedures. They generally took for granted such things as the institutions of the family and various rituals for formal transactions. The provisions were often highly specific and diverse.
Drafting and Development
The Twelve Tables of Roman society were said by the Romans to have come about as a result of the long social struggle between patricians and plebeians. After the expulsion of the last king of Rome, Tarquinius Superbus, the Republic was governed by a hierarchy of magistrates. Initially, only patricians were eligible to become magistrates and this, among other plebeian complaints, was a source of discontent for plebeians. In the context of this unequal status, plebeians would take action to secure concessions for themselves using the threat of secession. They would threaten to leave the city with the consequence that it would grind to a halt, as the plebeians were Rome’s labor force. Tradition held that one of the most important concessions won in this class struggle was the establishment of the Twelve Tables, establishing basic procedural rights for all Roman citizens in relation to each other. The drafting of the Twelve Tables may have been fomented by a desire for self-regulation by the patricians, or for other reasons.
Around 450 BC, the first decemviri (decemvirate, board of “Ten Men”) were appointed to draw up the first ten tables. According to Livy, they sent an embassy to Greece to study the legislative system of Athens, known as the Solonian Constitution, but also to find out about the legislation of other Greek cities. Some scholars deny that the Romans imitated the Greeks in this respect or suggest that they visited only the Greek cities of Southern Italy, and did not travel all the way to Greece. In 450 BC, the second decemviri started to work on the last two tables.
The first decemvirate completed the first ten codes in 450 BC. Here is how Livy describes their creation:
“…every citizen should quietly consider each point, then talk it over with his friends, and, finally, bring forward for public discussion any additions or subtractions which seemed desirable.” (cf. Liv. III.34)
In 449 BC, the second decemvirate completed the last two codes, and after a secessio plebis to force the Senate to consider them, the Law of the Twelve Tables was formally promulgated. According to Livy (AUC 3.57.10) the Twelve Tables were inscribed on bronze (Pomponius (Dig. 1 tit. 2 s2 §4) alone says on ivory), and posted publicly, so all Romans could read and know them.
Some of the provisions are procedural to ensure fairness among all Romans in the courts, while other established legal terms dictating the legality of capital crimes, intentional homicide, treason, perjury, judicial corruption, and writing slanderous poems. The Romans valued keeping peace in the city and the Twelve Tables were a mechanism of establishing and continuing peace and equality.
Influence and Significance
The Twelve Tables are often cited as the foundation for ancient Roman law. Although faced with many issues, the Twelve Tables provided a premature understanding of some key concepts such as justice, equality, and punishment. While these ideas were not fully understood, the Twelve Tables play a significant role in the basis of the early American legal system. Political theorists, such as James Madison have highlighted the importance of the Twelve Tables in crafting the United States Bill of Rights. The idea of property was also perpetuated in the Twelve Tables, including the different forms of money, land, and slaves.
Although legal reform occurred soon after the implementation of the Twelve Tables, these ancient laws provided social protection and civil rights for both the patricians and plebeians. At this time, there was extreme tension between the privileged class and the common people resulting in the need for some form of social order. While the existing laws had major flaws that were in need of reform, the Twelve Tables eased the civil tension and violence between the plebeians and patricians.
The influence of the Twelve Tables is still evident in the modern day. For example, the Twelve Tables are tied into the notion of Jus Commune, which translates as “common law”, but is commonly referred to as “civil law” in English-speaking countries. Some countries including South Africa and San Marino still base their current legal system on aspects of jus commune. In addition, law school students throughout the world are still required to study the Twelve Tables as well as other facets of Roman Law in order to better understand the current legal system in place.
The Twelve Tables are no longer extant: although they remained an important source through the Republic, they gradually became obsolete, eventually being only of historical interest. The original tablets may have been destroyed when the Gauls under Brennus burned Rome in 387 BC. Cicero claimed that he learned them by heart as a boy in school, but that no one did so any longer. What we have of them today are brief excerpts and quotations from these laws in other authors, often in clearly updated language. They are written in an archaic, laconic Latin (described as Saturnian verse). As such, though it cannot be determined whether the quoted fragments accurately preserve the original form, what is present gives some insight into the grammar of early Latin. Some claim that the text was written as such so plebeians could more easily memorize the laws, as literacy was not commonplace during early Rome. Roman Republican scholars wrote commentaries upon the Twelve Tables, such as L. Aelius Stilo, teacher of both Varro and Cicero.
Like most other early codes of law, they were largely procedural, combining strict and rigorous penalties with equally strict and rigorous procedural forms. In most of the surviving quotations from these texts, the original table that held them is not given. Scholars have guessed at where surviving fragments belong by comparing them with the few known attributions and records, many of which do not include the original lines, but paraphrases. It cannot be known with any certainty from what survives that the originals ever were organized this way, or even if they ever were organized by subject at all.
The Edicts of Ashoka (269-236 BCE)
The Edicts of Ashoka are a collection of more than thirty inscriptions on the pillars, as well as boulders and cave walls, attributed to Emperor Ashoka of the Mauryan Empire who reigned from 268 BCE to 232 BCE. Ashoka used the expression Dhaṃma Lipi to describe his own Edicts. These inscriptions were dispersed throughout the areas of modern-day Bangladesh, India, Nepal, Afghanistan and Pakistan, and provide the first tangible evidence of Buddhism. The edicts describe in detail Ashoka’s view about dhamma, an earnest attempt to solve some of the problems that a complex society faced. According to the edicts, the extent of Buddhist proselytism during this period reached as far as the Mediterranean, and many Buddhist monuments were created.
These inscriptions proclaim Ashoka’s adherence to the Buddhist philosophy which, as in Hinduism, is called dharma, “Law”. The inscriptions show his efforts to develop the Buddhist dharma throughout his kingdom. Although Buddhism as well as Gautama Buddha are mentioned, the edicts focus on social and moral precepts rather than specific religious practices or the philosophical dimension of Buddhism. These were located in public places and were meant for people to read.
In these inscriptions, Ashoka refers to himself as “Beloved of the Gods” (Devanampiya). The identification of Devanampiya with Ashoka was confirmed by an inscription discovered in 1915 by C. Beadon, a British gold-mining engineer, at Maski, a village in Raichur district of Karnataka. Another minor rock edict, found at the village Gujarra in Datia district of Madhya Pradesh, also used the name of Ashoka together with his titles: “Devanampiya Piyadasi Asokaraja“. The inscriptions found in the central and eastern part of India were written in Magadhi Prakrit using the Brahmi script, while Prakrit using the Kharoshthi script, Greek and Aramaic were used in the northwest. These edicts were deciphered by British archaeologist and historian James Prinsep.
The inscriptions revolve around a few recurring themes: Ashoka’s conversion to Buddhism, the description of his efforts to spread Buddhism, his moral and religious precepts, and his social and animal welfare program. The edicts were based on Ashoka’s ideas on administration and behaviour of people towards one another and religion.
Besides a few inscriptions in Greek and Aramaic (which were discovered only in the 20th century), the Edicts were mostly written in the Brahmi script and sometimes in the Kharoshthi script in the northwest, two Indian scripts which had both become extinct around the 5th century CE, and were yet undeciphered at the time the Edicts were discovered and investigated in the 19th century.
The first successful attempts at deciphering the ancient Brahmi script were made in 1836 by Norwegian scholar Christian Lassen, who used the bilingual Greek-Brahmi coins of Indo-Greek king Agathocles to correctly and securely identify several Brahmi letters. The task was then completed by James Prinsep, an archaeologist, philologist, and official of the East India Company, who was able to identify the rest of the Brahmi characters, with the help of Major Cunningham. In a series of results that he published in March 1838 Prinsep was able to translate the inscriptions on a large number of rock edicts found around India, and to provide, according to Richard Salomon, a “virtually perfect” rendering of the full Brahmi alphabet. The edicts in Brahmi script mentioned a King Devanampriya Piyadasi which Prinsep initially assumed was a Sri Lankan king. He was then able to associate this title with Asoka on the basis of Pali script from Sri Lanka communicated to him by George Turnour.
The Kharoshthi script, written from right to left, and associated with Aramaic, was also deciphered by James Prinsep in parallel with Christian Lassen, using the bilingual Greek-Kharoshthi coinage of the Indo-Greek and Indo-Scythian kings. “Within the incredibly brief space of three years (1834-37) the mystery of both the Kharoshthi and Brahmi scripts (were unlocked), the effect of which was instantly to remove the thick crust of oblivion which for many centuries had concealed the character and the language of the earliest epigraphs”.
The Edicts are divided into four categories, according to their size (Minor or Major) and according to their medium (Rock or Pillar). Chronologically, the minor inscriptions tend to precede the larger ones, while rock inscriptions generally seem to have been started earlier than the pillar inscriptions:
- Minor Rock Edicts: Edicts inscribed at the beginning of Ashoka’s reign; in Prakrit, Greek and Aramaic.
- Minor Pillar Edicts: Schism Edict, Queen’s Edict, Rummindei Edict, Nigali Sagar Edict; in Prakrit.
- Major Rock Edicts: 14 Edicts (termed 1st to 14th) and 2 separate ones found in Odisha; in Prakrit and Greek.
- Major Pillar Edicts: 7 Edicts, inscribed at the end of Ashoka’s reign; in Prakrit.
The Minor Rock Edicts (in which Ashoka is sometimes named in person, as in Maski and Gujarra) as well as the Minor Pillar Edicts are very religious in their content: they mention extensively the Buddha (and even previous Buddhas as in the Nigali Sagar inscription), the Samgha, Buddhism and Buddhist scriptures (as in the Bairat Edict).
On the contrary, the Major Rock Edicts and Major Pillar Edicts are essentially moral and political in nature: they never mention the Buddha or explicit Buddhist teachings, but are preoccupied with order, proper behaviour and non violence under the general concept of “Dharma”, and they also focus on the administration of the state and positive relations with foreign countries as far as the Hellenistic Mediterranean of the mid-3rd century BCE.
Minor Rock Edicts
The Minor Rock Edicts of Ashoka (r.269-233 BCE) are rock inscriptions which form the earliest part of the Edicts of Ashoka. They predate Ashoka’s Major Rock Edicts.
Chronologically, the first known edict, sometimes classified as a Minor Rock Edict, is the Kandahar Bilingual Rock Inscription, in Greek and in Aramaic, written in the 10th year of his reign (260 BCE) at the border of his empire with the Hellenistic world, in the city of Old Kandahar in modern Afghanistan.
Ashoka then made the first edicts in the Indian language, written in the Brahmi script, from the 11th year of his reign (according to his own inscription, “two and a half years after becoming a secular Buddhist”, i.e. two and a half years at least after returning from the Kalinga conquest of the eighth year of his reign, which is the starting point for his remorse towards the horrors of the war, and his gradual conversion to Buddhism). The texts of the inscriptions are rather short, the technical quality of the engraving of the inscriptions is generally very poor, and generally very inferior to the pillar edicts dated to the years 26 and 27 of Ashoka’s reign.
There are several slight variations in the content of these edicts, depending on location, but a common designation is usually used, with Minor Rock Edict N°1 (MRE1) and a Minor Rock Edict N°2 (MRE2, which does not appear alone but always in combination with Edict N°1), the different versions being generally aggregated in most translations. The Maski version of Minor Rock Edict No.1 is historically particularly important in that it confirmed the association of the title “Devanampriya” with the name “Asoka”, thereby clarifying the historical author of all these inscriptions. In the Gujarra version of Minor Rock Edict No.1 also, the name of Ashoka is used together with his full title: Devanampiya Piyadasi Asokaraja.
There is also a unique Minor Rock Edict No.3, discovered next to Bairat Temple, for the Buddhist clergy, which gives a list of Buddhist scriptures (most of them unknown today) which the clergy should study regularly.
A few other inscriptions of Ashoka in Aramaic, which are not strictly edicts, but tend to share a similar content, are sometimes also categorized as “Minor Rock Edicts”. The dedicatory inscriptions of the Barabar caves are also sometimes classified among the Minor Rock Edicts of Ashoka.
The Minor Rock Edicts can be found throughout the territory of Ashoka, including in the frontier area near the Hindu Kush, and are especially numerous in the southern, newly conquered, frontier areas of Karnataka and southern Andhra Pradesh.
Minor Pillar Edicts
The Minor Pillar Edicts of Ashoka refer to 5 separate minor Edicts inscribed on columns, the Pillars of Ashoka. These edicts are preceded chronologically by the Minor Rock Edicts and may have been made in parallel with the Major Rock Edicts.
The inscription technique is generally very poor compared for example to the later Major Pillar Edicts, however the Minor Pillar Edicts are often associated with some of the artistically most sophisticated pillar capitals of Ashoka, such as the renowned Lion Capital of Ashoka which crowned the Sarnath Minor Pillar Edict, or the very similar, but less well preserved Sanchi lion capital which crowned the very clumsily inscribed Schism Edict of Sanchi. According to Irwin, the Brahmi inscriptions on the Sarnath and Sanchi pillars were made by inexperienced Indian engravers at a time when stone engraving was still new in India, whereas the very refined Sarnath capital itself was made under the tutelage of crafstmen from the former Achaemenid Empire, trained in Perso-Hellenistic statuary and employed by Ashoka. This suggests that the most sophisticated capitals were actually the earliest in the sequence of Ashokan pillars and that style degraded over a short period of time.
These edicts were probably made at the beginning of the reign of Ashoka (reigned 268-232 BCE), from the year 12 of his reign, that is, from 256 BCE.
The Minor Pillar Edicts are the Schism Edict, warning of punishment for dissent in the Samgha, the Queen’s Edict, and the Rummindei Edict as well as the Nigali Sagar Edict which record Ashoka’s visits and Buddhist dedications in the area corresponding to today’s Nepal. The Rummindei and Nigali Sagar edicts, inscribed on pillars erected by Ashoka later in his reign (19th and 20th year) display a high level of inscriptional technique with a good regularity in the lettering.
Major Rock Edicts
The Major Rock Edicts of Ashoka refer to 14 separate major Edicts, which are significantly detailed and extensive. These Edicts were concerned with practical instructions in running the kingdom such as the design of irrigation systems and descriptions of Ashoka’s beliefs in peaceful moral behavior. They contain little personal detail about his life. These edicts are preceded chronologically by the Minor Rock Edicts.
Three languages were used, Prakrit, Greek and Aramaic. The edicts are composed in non-standardized and archaic forms of Prakrit. Prakrit inscriptions were written in Brahmi and Kharosthi scripts, which even a commoner could read and understand. The inscriptions found in the area of Pakistan are in the Kharoshthi script. Other Edicts are written in Greek or Aramaic. The Kandahar Greek Edict of Ashoka (including portions of Edict No.13 and No.14) is in Greek only, and originally probably contained all the Major Rock Edicts 1-14.
The Major Rock Edicts of Ashoka are inscribed on large rocks, except for the Kandahar version in Greek (Kandahar Greek Edict of Ashoka), written on a stone plaque belonging to a building. The Major Edicts are not located in the heartland of Mauryan territory, traditionally centered on Bihar, but on the frontiers of the territory controlled by Ashoka.
Major Piller Edicts
The Major Pillar Edicts of Ashoka refer to seven separate major Edicts inscribed on columns, the Pillars of Ashoka, which are significantly detailed and extensive.
These edicts are preceded chronologically by the Minor Rock Edicts and the Major Rock Edicts, and constitute the most technically elegant of the inscriptions made by Ashoka. They were made at the end of his reign, from the years 26 and 27 of his reign, that is, from 237-236 BCE. Chronologically they follow the fall of Seleucid power in Central Asia and the related rise of the Parthian Empire and the independent Greco-Bactrian Kingdom circa 250 BCE. Hellenistic rulers are not mentioned anymore in these last edicts, as they only appear in Major Rock Edict No.13 (and to a lesser extent Major Rock Edict No.2), which can be dated to about the 14th year of the reign of Ashoka circa 256–255. The last Major Pillar Edicts (Edict No.7) is testamental in nature, making a summary of the accomplishments of Ashoka during his life.
The Major Pillar Edicts of Ashoka were exclusively inscribed on the Pillars of Ashoka or fragments thereof, at Kausambi (now Allahabad pillar), Topra Kalan, Meerut, Lauriya-Araraj, Lauria Nandangarh, Rampurva (Champaran), and fragments of these in Aramaic (Kandahar, Edict No.7 and Pul-i-Darunteh, Edict No.5 or No.7 in Afghanistan) However several pillars, such as the bull pillar of Rampurva, or the pillar of Vaishali do not have inscriptions, which, together with their lack of proper foundation stones and their particular style, led some authors to suggest that they were in fact pre-Ashokan.
The Major Pillar Edicts (excluding the two fragments of translations found in modern Afghanistan) are all located in central India.
The Pillars of Ashoka are stylistically very close to an important Buddhist monument, also built by Ashoka in Bodh Gaya, at the location where the Buddha had reached enlightenment some 200 years earlier: the Diamond Throne. The sculpted decorations on the Diamond Throne clearly echoe the decorations found on the Pillars of Ashoka. The Pillars dated to the end of Ashoka’s reign are associated with pillar capitals that tend to be more solemn and less elegant than the earlier capitals, such as those of Sanchi or Sarnath. This led some authors to suggest that the artistic level under Ashoka tended to fall towards the end of his reign.
‘Manusmriti’: The Law of Manu (c.200 BCE)
The Manusmṛiti is an ancient legal text among the many Dharmaśāstras of Hinduism. It was one of the first Sanskrit texts to have been translated into English in 1794, by Sir William Jones, and was used to formulate the Hindu law by the British colonial government.
Over fifty manuscripts of the Manusmriti are now known, but the earliest discovered, most translated and presumed authentic version since the 18th century has been the “Calcutta manuscript with Kulluka Bhatta commentary”. Modern scholarship states this presumed authenticity is false, and the various manuscripts of Manusmriti discovered in India are inconsistent with each other, and within themselves, raising concerns of its authenticity, insertions and interpolations made into the text in later times.
The metrical text is in Sanskrit, is variously dated to be from the 2nd century BCE to 3rd century CE, and it presents itself as a discourse given by Manu (Svayambhuva) and Bhrigu on dharma topics such as duties, rights, laws, conduct, virtues and others. The text’s fame spread outside India, long before the colonial era. The medieval era Buddhistic law of Myanmar and Thailand are also ascribed to Manu, and the text influenced past Hindu kingdoms in Cambodia and Indonesia.
Manusmriti is also called the Mānava-Dharmaśāstra or Laws of Manu.
Eighteenth-century philologists Sir William Jones and Karl Wilhelm Friedrich Schlegel assigned Manusmriti to the period of around 1250 BCE and 1000 BCE respectively, which from later linguistic developments is untenable due to the language of the text which must be dated later than the late Vedic texts such as the Upanishads which are themselves dated a few centuries later, around 500 BCE. Later scholarship, shifted the chronology of the text to between 200 BCE and 200 CE. Olivelle adds that numismatics evidence, and the mention of gold coins as a fine, suggest that text may date to the 2nd or 3rd century CE.
Most scholars consider the text a composite produced by many authors put together over a long period. Olivelle states that the various ancient and medieval Indian texts claim revisions and editions were derived from the original text with 100,000 verses and 1,080 chapters. However, the text version in modern use, according to Olivelle, is likely the work of a single author or a chairman with research assistants.
Manusmriti, Olivelle states, was not a new document, it drew on other texts, and it reflects “a crystallization of an accumulated knowledge” in ancient India. The root of theoretical models within Manusmriti rely on at least two shastras that pre-date it: artha (statecraft and legal process), and dharma (an ancient Indian concept that includes duties, rights, laws, conduct, virtues and others discussed in various Dharmasutras older than Manusmriti). Its contents can be traced to Kalpasutras of the Vedic era, which led to the development of Smartasutras consisting of Grihyasutras and Dharmasutras. The foundational texts of Manusmriti include many of these sutras, all from an era preceding the common era. Most of these ancient texts are now lost, and only four of have survived: the law codes of Apastamba, Gautama, Baudhayana and Vasishtha.
The modern version of the text has been subdivided into twelve Adhyayas (chapters), but the original text had no such division. The text covers different topics, and is unique among ancient Indian texts in using “transitional verses” to mark the end of one subject and the start of the next. The text can be broadly divided into four, each of different length. and each further divided into subsections:
- Creation of the world
- Source of dharma
- The dharma of the four social classes
- Law of karma, rebirth and final liberation
The text is composed in metric Shlokas (verses), in the form of a dialogue between an exalted teacher and disciples who are eager to learn about the various aspects of dharma. The first 58 verses are attributed by the text to Manu, while the remaining more than two thousand verses are attributed to his student Bhrigu.
The structure and contents of the Manusmriti suggest it to be a document predominantly targeted at the Brahmins (priestly class) and the Kshatriyas (king, administration and warrior class). The text dedicates 1,034 verses, the largest portion, on laws for and expected virtues of Brahmins, and 971 verses for Kshatriyas. The statement of rules for the Vaishyas (merchant class) and the Shudras (artisans and working class) in the text is extraordinarily brief. Olivelle suggests that this may be because the text was composed to address the balance “between the political power and the priestly interests”, and because of the rise in foreign invasions of India in the period it was composed.
On Virtues and Outcast
Manusmriti lists and recommends virtues in many verses. For example, verse 6.75 recommends non-violence towards everyone and temperance as key virtues, while verse 10.63 preaches that all four varnas must abstain from injuring any creature, abstain from falsehood and abstain from appropriating property of others.
Similarly, in verse 4.204, states Olivelle, some manuscripts of Manusmriti list the recommended virtues to be, “compassion, forbearance, truthfulness, non-injury, self-control, not desiring, meditation, serenity, sweetness and honesty” as primary, and “purification, sacrifices, ascetic toil, gift giving, vedic recitation, restraining the sexual organs, observances, fasts, silence and bathing” as secondary. A few manuscripts of the text contain a different verse 4.204, according to Olivelle, and list the recommended virtues to be, “not injuring anyone, speaking the truth, chastity, honesty and not stealing” as central and primary, while “not being angry, obedience to the teacher, purification, eating moderately and vigilance” to desirable and secondary.
In other discovered manuscripts of Manusmriti, including the most translated Calcutta manuscript, the text declares in verse 4.204 that the ethical precepts under Yamas such as Ahimsa (non-violence) are paramount while Niyamas such as Ishvarapranidhana (contemplation of personal god) are minor, and those who do not practice the Yamas but obey the Niyamas alone become outcasts.
On Personal Choices, Behaviors, and Morals
Manusmriti has numerous verses on duties a person has towards himself and to others, thus including moral codes as well as legal codes. This is similar to, states Olivelle, the modern contrast between informal moral concerns to birth out of wedlock in the developed nations, along with simultaneous legal protection for children who are born out of wedlock.
Personal behaviours covered by the text are extensive. For example, verses 2.51-2.56, recommend that a monk must go on his begging round, collect alms food and present it to his teacher first, then eat. One should revere whatever food one gets and eat it without disdain, states Manusmriti, but never overeat, as eating too much harms health. In verse 5.47, the text states that work becomes without effort when a man contemplates, undertakes and does what he loves to do and when he does so without harming any creature.
Numerous verses relate to the practice of meat eating, how it causes injury to living beings, why it is evil, and the morality of vegetarianism. Yet, the text balances its moral tone as an appeal to one’s conscience, states Olivelle. For example, verse 5.56 as translated by Olivelle states, “there is no fault in eating meat, in drinking liquor, or in having sex; that is the natural activity of creatures. Abstaining from such activity, however, brings greatest rewards.”
On Rights of Women
Manusmriti offers an inconsistent and internally conflicting perspective on women’s rights. The text, for example, declares that a marriage cannot be dissolved by a woman or a man, in verse 8.101-8.102. Yet, the text, in other sections, allows either to dissolve the marriage. For example, verses 9.72-9.81 allow the man or the woman to get out of a fraudulent marriage or an abusive marriage, and remarry; the text also provides legal means for a woman to remarry when her husband has been missing or has abandoned her.
It preaches chastity to widows such as in verses 5.158-5.160, opposes a woman marrying someone outside her own social class as in verses 3.13-3.14. In other verses, such as 2.67-2.69 and 5.148-5.155, Manusmriti preaches that as a girl, she should obey and seek protection of her father, as a young woman her husband, and as a widow her son; and that a woman should always worship her husband as a god. In verses 3.55-3.56, Manusmriti also declares that “women must be honored and adorned”, and “where women are revered, there the gods rejoice; but where they are not, no sacred rite bears any fruit”. Elsewhere, in verses 5.147-5.148, states Olivelle, the text declares, “a woman must never seek to live independently”.
Simultaneously, states Olivelle, the text presupposes numerous practices such as marriages outside one’s varna, such as between a Brahmin man and a Shudra woman in verses 9.149-9.157, a widow getting pregnant with a child of a man she is not married to in verses 9.57-9.62, marriage where a woman in love elopes with her man, and then grants legal rights in these cases such as property inheritance rights in verses 9.143-9.157, and the legal rights of the children so born. The text also presumes that a married woman may get pregnant by a man other than her husband, and dedicates verses 8.31-8.56 to conclude that the child’s custody belongs to the woman and her legal husband, and not to the man she got pregnant with.
Manusmriti provides a woman with property rights to six types of property in verses 9.192-9.200. These include those she received at her marriage, or as gift when she eloped or when she was taken away, or as token of love before marriage, or as gifts from her biological family, or as received from her husband subsequent to marriage, and also from inheritance from deceased relatives.
Flavia Agnes states that Manusmriti is a complex commentary from women’s rights perspective, and the British colonial era codification of women’s rights based on it for Hindus, and from Islamic texts for Muslims, picked and emphasised certain aspects while it ignored other sections. This construction of personal law during the colonial era created a legal fiction around Manusmriti’s historic role as a scripture in matters relating to women in South Asia.
On Statecraft and Rules of War
Chapter 7 of the Manusmriti discusses the duties of a king, what virtues he must have, what vices he must avoid. In verses 7.54 – 7.76, the text identifies precepts to be followed in selecting ministers, ambassadors and officials, as well as the characteristics of well fortified capital. Manusmriti then lays out the laws of just war, stating that first and foremost, war should be avoided by negotiations and reconciliations. If war becomes necessary, states Manusmriti, a soldier must never harm civilians, non-combatants or someone who has surrendered, that use of force should be proportionate, and other rules. Fair taxation guidelines are described in verses 7.127 to 7.137.
‘Corpus Iuris Civilis’ (Code of Justinian, 529-534 CE)
The Corpus Juris (or Iuris) Civilis (“Body of Civil Law”) is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor. It is also sometimes referred to as the Code of Justinian, although this name belongs more properly to the part titled Codex Justinianeus.
The work as planned had three parts: the Code (Codex) is a compilation, by selection and extraction, of imperial enactments to date; the Digest or Pandects (the Latin title contains both Digesta and Pandectae) is an encyclopedia composed of mostly brief extracts from the writings of Roman jurists; and the Institutes (Institutiones) is a student textbook, mainly introducing the Code, although it has important conceptual elements that are less developed in the Code or the Digest. All three parts, even the textbook, were given force of law. They were intended to be, together, the sole source of law; reference to any other source, including the original texts from which the Code and the Digest had been taken, was forbidden. Nonetheless, Justinian found himself having to enact further laws and today these are counted as a fourth part of the Corpus, the Novellae Constitutiones (Novels, literally New Laws).
The work was directed by Tribonian, an official in Justinian’s court in Constantinople. His team was authorized to edit what they included. How far they made amendments is not recorded and, in the main, cannot be known because most of the originals have not survived. The text was composed and distributed almost entirely in Latin, which was still the official language of the government of the Byzantine Empire in 529–534, whereas the prevalent language of merchants, farmers, seamen, and other citizens was Greek. By the early 7th century, the official government language had become Greek during the lengthy reign of Heraclius (610–641).
The Corpus Juris Civilis was revised into Greek, when that became the predominant language of the Eastern Roman Empire, and continued to form the basis of the empire’s laws, the Basilika, through the 15th century. The Basilika in turn served as the basis for local legal codes in the Balkans during the following Ottoman period and later formed the basis of the legal code of Modern Greece. In Western Europe the Corpus Juris Civilis was revived in the Middle Ages and was “received” or imitated as private law. Its public law content was quarried for arguments by both secular and ecclesiastical authorities. This revived Roman law, in turn, became the foundation of law in all civil law jurisdictions. The provisions of the Corpus Juris Civilis also influenced the canon law of the Catholic Church: it was said that ecclesia vivit lege romana – the church lives by Roman law. Its influence on common law legal systems has been much smaller, although some basic concepts from the Corpus have survived through Norman law – such as the contrast, especially in the Institutes, between “law” (statute) and custom. The Corpus continues to have a major influence on public international law. Its four parts thus constitute the foundation documents of the Western legal tradition.
Compilation Process – Codex and Digesta
Justinian acceded to the imperial throne in Constantinople in 527. Six months after his accession, in order to reduce the great number of imperial constitutions and thus also the number of court proceedings, Justinian arranged for the creation of a new collection of imperial constitutions (Codex Iustinianus). The commission in charge of the compilation process was explicitly authorized to leave out or change text and to delete what was obsolete or contradictory. Soon, in 529, the Codex was completed and was conferred the force of law in the whole empire, replacing all earlier constitutions and the Codex Theodosianus.
A little more than a year after the enactment of the first edition of the Code, Justinian appointed a commission to compile the traditional jurists’ law in a new, shortened and contemporary codification: the ‘Digest or Pandects’. The traditional collection of jurists’ law, Justinian believed, was so extensive that it had become unmanageable, necessitating a new compilation. The commission completed its work within three years, in 533.
The commission surveyed the works of classical jurists who were assumed in Justinian’s time to have the authority to clarify law (ius respondendi) and whose works were still available. In total, there are excerpts from 38 jurists in the Digest.
The Four Parts
The “Codex Justinianeus” or “Codex Justiniani” (Latin for “Justinian’s Code”) was the first part to be finished, on 7 April 529. It contained in Latin most of the existing imperial constitutiones (imperial pronouncements having force of law), back to the time of Hadrian. It used both the Codex Theodosianus and the fourth-century collections embodied in the Codex Gregorianus and Codex Hermogenianus, which provided the model for division into books that were themselves divided into titles. These works had developed authoritative standing. This first edition is now lost; a second edition was issued in 534 and is the text that has survived. At least the second edition contained some of Justinian’s own legislation, including some legislation in Greek. It is not known whether he intended there to be further editions, although he did envisage translation of Latin enactments into Greek.
Numerous provisions served to secure the status of Christianity as the state religion of the empire, uniting Church and state, and making anyone who was not connected to the Christian church a non-citizen. The Christianity referred to is Chalcedonian Christianity as defined by the state church, which excluded a variety of other major Christian sects in existence at the time such as the Church of the East and Oriental Orthodoxy.
The very first law in the Codex requires all persons under the jurisdiction of the Empire to hold the Christian faith. This was primarily aimed at heresies such as Nestorianism. This text later became the springboard for discussions of international law, especially the question of just what persons are under the jurisdiction of a given state or legal system.
Other laws, while not aimed at pagan belief as such, forbid particular pagan practices. For example, it is provided that all persons present at a pagan sacrifice may be indicted as if for murder.
The Digesta or Pandectae, completed in 533, is a collection of juristic writings, mostly dating back to the second and third centuries. Fragments were taken out of various legal treatises and opinions and inserted in the Digest. In their original context, the statements of the law contained in these fragments were just private opinions of legal scholars – although some juristic writings had been privileged by Theodosius II’s Law of Citations in 426. The Digest, however, was given full force of law.
As the Digest neared completion, Tribonian and two professors, Theophilus and Dorotheus, made a student textbook, called the Institutions or Elements. As there were four elements, the manual consists of four books. The Institutiones are largely based on the Institutiones of Gaius. Two thirds of the Institutiones of Justinian consists of literal quotes from Gaius. The new Institutiones were used as a manual for jurists in training from 21 November 533 and were given the authority of law on 30 December 533 along with the Digest.
The Novellae consisted of new laws that were passed after 534. They were later re-worked into the Syntagma, a practical lawyer’s edition, by Athanasios of Emesa during the years 572–77.
Sharia (Islamic Law, c.570 CE)
Sharia law is a religious law forming part of the Islamic tradition. It is derived from the religious precepts of Islam, particularly the Quran and the hadith. In Arabic, the term sharīʿah refers to God’s immutable divine law and is contrasted with fiqh, which refers to its human scholarly interpretations. The manner of its application in modern times has been a subject of dispute between Muslim fundamentalists and modernists.
Traditional theory of Islamic jurisprudence recognizes four sources of Sharia: the Quran, sunnah (authentic hadith), qiyas (analogical reasoning), and ijma (juridical consensus). Different legal schools—of which the most prominent are Hanafi, Maliki, Shafi’i, Hanbali and Jafari—developed methodologies for deriving Sharia rulings from scriptural sources using a process known as ijtihad. Traditional jurisprudence (fiqh) distinguishes two principal branches of law, ʿibādāt (rituals) and muʿāmalāt (social relations), which together comprise a wide range of topics. Its rulings are concerned with ethical standards as much as with legal norms, assigning actions to one of five categories: mandatory, recommended, neutral, abhorred, and prohibited. Thus, some areas of Sharia overlap with the Western notion of law while others correspond more broadly to living life in accordance with God’s will.
Classical jurisprudence was elaborated by private religious scholars, largely through legal opinions (fatwas) issued by qualified jurists (muftis). It was historically applied in Sharia courts by ruler-appointed judges, who dealt mainly with civil disputes and community affairs. Sultanic courts, the police and market inspectors administered criminal justice, which was influenced by Sharia but not bound by its rules. Non-Muslim (dhimmi) communities had legal autonomy to adjudicate their internal affairs. Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies, and fiqh was complemented by various economic, criminal and administrative laws issued by Muslim rulers. The Ottoman civil code of 1869–1876 was the first partial attempt to codify Sharia.
In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models. Judicial procedures and legal education were likewise brought in line with European practice. While the constitutions of most Muslim-majority states contain references to Sharia, its classical rules were largely retained only in personal status (family) laws. Legislators who codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence. The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of Sharia, including hudud corporal punishments, such as stoning. In some cases, this resulted in traditionalist legal reform, while other countries witnessed juridical reinterpretation of Sharia advocated by progressive reformers. Some Muslim-minority countries recognize the use of Sharia-based family laws for their Muslim populations. Sharia also continues to influence other aspects of private and public life.
The role of Sharia has become a contested topic around the world. Introduction of Sharia-based laws sparked intercommunal violence in Nigeria and may have contributed to the breakup of Sudan. Some jurisdictions in North America have passed bans on use of Sharia, framed as restrictions on religious or foreign laws. There are ongoing debates as to whether Sharia is compatible with democracy, human rights, freedom of thought, women’s rights, LGBT rights, and banking.
The word sharīʿah is used by Arabic-speaking peoples of the Middle East to designate a prophetic religion in its totality. For example, sharīʿat Mūsā means law or religion of Moses and sharīʿatu-nā can mean “our religion” in reference to any monotheistic faith. Within Islamic discourse, šarīʿah refers to religious regulations governing the lives of Muslims. For many Muslims, the word means simply “justice,” and they will consider any law that promotes justice and social welfare to conform to Sharia.
Jan Michiel Otto distinguishes four senses conveyed by the term sharia in religious, legal and political discourse:
- Divine, abstract sharia: God’s plan for mankind and the norms of behavior which should guide the Islamic community. Muslims of different perspectives agree in their respect for the abstract notion of sharia, but they differ in how they understand the practical implications of the term.
- Classical sharia: the body of rules and principles elaborated by Islamic jurists during the first centuries of Islam.
- Historical sharia(s): the body of rules and interpretations developed throughout Islamic history, ranging from personal beliefs to state legislation and varying across an ideological spectrum. Classical sharia has often served as a point of reference for these variants, but they have also reflected the influences of their time and place.
- Contemporary sharia(s): the full spectrum of rules and interpretations that are developed and practiced at present.
A related term al-qānūn al-islāmī, which was borrowed from European usage in the late 19th century, is used in the Muslim world to refer to a legal system in the context of a modern state.
According to the traditional Muslim view, the major precepts of Sharia were passed down directly from the Islamic prophet Muhammad without “historical development,” and the emergence of Islamic jurisprudence (fiqh) also goes back to the lifetime of Muhammad. In this view, his companions and followers took what he did and approved of as a model (sunnah) and transmitted this information to the succeeding generations in the form of hadith. These reports led first to informal discussion and then systematic legal thought, articulated with greatest success in the eighth and ninth centuries by the master jurists Abu Hanifah, Malik ibn Anas, Al-Shafi‘i, and Ahmad ibn Hanbal, who are viewed as the founders of the Hanafi, Maliki, Shafiʿi, and Hanbali legal schools (madhhabs) of Sunni jurisprudence.
Modern historians have presented alternative theories of the formation of fiqh. At first Western scholars accepted the general outlines of the traditional account. In the late 19th century, an influential revisionist hypothesis was advanced by Ignac Goldziher and elaborated by Joseph Schacht in the mid-20th century. Schacht and other scholars argued that having conquered much more populous agricultural and urban societies with already existing laws and legal needs unknown to the desert-dwelling conquerors, the initial Muslim efforts to formulate legal norms regarded the Quran and Muhammad’s hadiths as just one sources of law, with jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the caliphs also being valid sources. At least one source (historian Tom Holland) has argued that the strong scholarly tradition of Mobad among the conquered Zoroastrians of Persia and rabbis among the conquered Jews influenced the law of their largely illiterate warrior conquerors; and that this can explain such issues as why the Quran mentions only three prayers (24:58) while Muslims pray five times a day (Zoroastrians prayed five times a day) and why the Quran commands adulterers be lashed, while Sharia calls for their execution by stoning (Deuteronomy 22:21 of the Jewish Torah calls for stoning to death of women who have been found to have had sex before marriage).
According to this theory, most canonical hadiths did not originate with Muhammad but were actually created at a later date, despite the efforts of hadith scholars to weed out fabrications. After it became accepted that legal norms must be formally grounded in scriptural sources, proponents of rules of jurisprudence supported by the hadith would extend the chains of transmission of the hadith back to Muhammad’s companions. In his view, the real architect of Islamic jurisprudence was Al-Shafi‘i (d. 820 CE/204 AH), who formulated this idea (that legal norms must be formally grounded in scriptural sources) and other elements of classical legal theory in his work al-risala, but who was preceded by a body of Islamic law not based on primacy of Muhammad’s hadiths.
While the origin of hadith remains a subject of scholarly controversy, this theory (of Goldziher and Schacht) has given rise to objections, and modern historians generally adopt more cautious, intermediate positions, and it is generally accepted that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam. It continued some aspects of pre-Islamic laws and customs of the lands that fell under Muslim rule in the aftermath of the early conquests and modified other aspects, aiming to meet the practical need of establishing Islamic norms of behavior and adjudicating disputes arising in the early Muslim communities. Juristic thought gradually developed in study circles, where independent scholars met to learn from a local master and discuss religious topics. At first, these circles were fluid in their membership, but with time distinct regional legal schools crystallized around shared sets of methodological principles. As the boundaries of the schools became clearly delineated, the authority of their doctrinal tenets came to be vested in a master jurist from earlier times, who was henceforth identified as the school’s founder. In the course of the first three centuries of Islam, all legal schools came to accept the broad outlines of classical legal theory, according to which Islamic law had to be firmly rooted in the Quran and hadith.
Principles of Jurisprudence
Classical jurists held that human reason is a gift from God which should be exercised to its fullest capacity. However, they believed that use of reason alone is insufficient to distinguish right from wrong, and that rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad.
Traditional theory of Islamic jurisprudence elaborates how scriptures should be interpreted from the standpoint of linguistics and rhetoric. It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date. In addition to the Quran and sunnah, the classical theory of Sunni fiqh recognizes two other sources of law: juristic consensus (ijmaʿ) and analogical reasoning (qiyas). It therefore studies the application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools.This interpretive apparatus is brought together under the rubric of ijtihad, which refers to a jurist’s exertion in an attempt to arrive at a ruling on a particular question. The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason (ʿaql) as a source of law in place of qiyas and extension of the notion of sunnah to include traditions of the imams.
Sources of Sharia
- Quran: In Islam, the Quran is considered to be the most sacred source of law. Classical jurists held its textual integrity to be beyond doubt on account of it having been handed down by many people in each generation, which is known as “recurrence” or “concurrent transmission” (tawātur). Only several hundred verses of the Quran have direct legal relevance, and they are concentrated in a few specific areas such as inheritance, though other passages have been used as a source for general principles whose legal ramifications were elaborated by other means.
- Hadith: The body of hadith provides more detailed and practical legal guidance, but it was recognized early on that not all of them were authentic. Early Islamic scholars developed a methodology for evaluating their authenticity by assessing trustworthiness of the individuals listed in their transmission chains. These criteria narrowed down the vast corpus of prophetic traditions to several thousand “sound” hadiths, which were collected in several canonical compilations. The hadiths which enjoyed concurrent transmission were deemed unquestionably authentic; however, the vast majority of hadiths were handed down by only one or a few transmitters and were therefore seen to yield only probable knowledge. The uncertainty was further compounded by ambiguity of the language contained in some hadiths and Quranic passages. Disagreements on the relative merits and interpretation of the textual sources allowed legal scholars considerable leeway in formulating alternative rulings.
- Consensus (ijma) could in principle elevate a ruling based on probable evidence to absolute certainty. This classical doctrine drew its authority from a series of hadiths stating that the Islamic community could never agree on an error. This form of consensus was technically defined as agreement of all competent jurists in any particular generation, acting as representatives of the community. However, the practical difficulty of obtaining and ascertaining such an agreement meant that it had little impact on legal development. A more pragmatic form of consensus, which could be determined by consulting works of prominent jurists, was used to confirm a ruling so that it could not be reopened for further discussion. The cases for which there was a consensus account for less than 1 percent of the body of classical jurisprudence.
- Analogical reasoning (qiyas): Qiyas is used to derive a ruling for a situation not addressed in the scripture by analogy with a scripturally based rule. In a classic example, the Quranic prohibition of drinking wine is extended to all intoxicating substances, on the basis of the “cause” (ʿilla) shared by these situations, which in this case is identified to be intoxication. Since the cause of a rule may not be apparent, its selection commonly occasioned controversy and extensive debate. Twelver Shia jurisprudence does not recognize the use of qiyas, but relies on reason (ʿaql) in its place.
The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as istihsan (juristic preference), istislah (consideration of public interest) and istishab (presumption of continuity). A jurist who is qualified to practice ijtihad is known as a mujtahid. The use of independent reasoning to arrive at a ruling is contrasted with taqlid (imitation), which refers to following the rulings of a mujtahid. By the beginning of the 10th century, development of Sunni jurisprudence prompted leading jurists to state that the main legal questions had been addressed and the scope of ijtihad was gradually restricted. From the 18th century on, leading Muslim reformers began calling for abandonment of taqlid and renewed emphasis on ijtihad, which they saw as a return to the vitality of early Islamic jurisprudence.
Decision Types (Aḥkām)
Fiqh is concerned with ethical standards as much as with legal norms, seeking to establish not only what is and is not legal, but also what is morally right and wrong. Sharia rulings fall into one of five categories known as “the five decisions” (al-aḥkām al-khamsa): mandatory (farḍ or wājib), recommended (mandūb or mustaḥabb), neutral (mubāḥ), reprehensible (makrūh), and forbidden (ḥarām). It is a sin or a crime to perform a forbidden action or not to perform a mandatory action. Reprehensible acts should be avoided, but they are not considered to be sinful or punishable in court. Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife, while neutral actions entail no judgement from God. Jurists disagree on whether the term ḥalāl covers the first three or the first four categories. The legal and moral verdict depends on whether the action is committed out of necessity (ḍarūra) and on the underlying intention (niyya), as expressed in the legal maxim “acts are [evaluated according] to intention.”
Aims of Sharia and Public Interest
Maqāṣid (aims or purposes) of Sharia and maṣlaḥa (welfare or public interest) are two related classical doctrines which have come to play an increasingly prominent role in modern times. They were first clearly articulated by al-Ghazali (d. 1111), who argued that maslaha was God’s general purpose in revealing the divine law, and that its specific aim was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property. Although most classical-era jurists recognized maslaha and maqasid as important legal principles, they held different views regarding the role they should play in Islamic law. Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning. Others regarded them as an independent source of law, whose general principles could override specific inferences based on the letter of scripture. While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence. These scholars expanded the inventory of maqasid to include such aims of Sharia as reform and women’s rights (Rashid Rida); justice and freedom (Mohammed al-Ghazali); and human dignity and rights (Yusuf al-Qaradawi).
Branches of Law
The domain of furūʿ al-fiqh (lit. branches of fiqh) is traditionally divided into ʿibādāt (rituals or acts of worship) and muʿāmalāt (social relations). Many jurists further divided the body of substantive jurisprudence into “the four quarters”, called rituals, sales, marriage and injuries. Each of these terms figuratively stood for a variety of subjects. For example, the quarter of sales would encompass partnerships, guaranty, gifts, and bequests, among other topics. Juristic works were arranged as a sequence of such smaller topics, each called a “book” (kitab). The special significance of ritual was marked by always placing its discussion at the start of the work.
Some historians distinguish a field of Islamic criminal law, which combines several traditional categories. Several crimes with scripturally prescribed punishments are known as hudud. Jurists developed various restrictions which in many cases made them virtually impossible to apply. Other crimes involving intentional bodily harm are judged according to a version of lex talionis that prescribes a punishment analogous to the crime (qisas), but the victims or their heirs may accept a monetary compensation (diya) or pardon the perpetrator instead; only diya is imposed for non-intentional harm. Other criminal cases belong to the category of taʿzīr, where the goal of punishment is correction or rehabilitation of the culprit and its form is largely left to the judge’s discretion. In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to Sharia.
The two major genres of furūʿ literature are the mukhtasar (concise summary of law) and the mabsut (extensive commentary). Mukhtasars were short specialized treatises or general overviews that could be used in a classroom or consulted by judges. A mabsut, which usually provided a commentary on a mukhtasar and could stretch to dozens of large volumes, recorded alternative rulings with their justifications, often accompanied by a proliferation of cases and conceptual distinctions. The terminology of juristic literature was conservative and tended to preserve notions which had lost their practical relevance. At the same time, the cycle of abridgement and commentary allowed jurists of each generation to articulate a modified body of law to meet changing social conditions. Other juristic genres include the qawāʿid (succinct formulas meant to aid the student remember general principles) and collections of fatwas by a particular scholar.
Classical jurisprudence has been described as “one of the major intellectual achievements of Islam”and its importance in Islam has been compared to that of theology in Christianity.
Schools of Law
The main Sunni schools of law (madhhabs) are the Hanafi, Maliki, Shafi’i and Hanbali madhhabs. They emerged in the ninth and tenth centuries and by the twelfth century almost all jurists aligned themselves with a particular madhhab. These four schools recognize each other’s validity and they have interacted in legal debate over the centuries. Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world. For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi’i school in Lower Egypt, East Africa, and Southeast Asia; and the Hanbali school in North and Central Arabia. The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs. The Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought. The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the Twelver, Zaidi and Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools. The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman.
The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system. Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system. State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question). Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws. Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence. The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements. Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.
Tang Code (624-637 CE)
The Tang Code was a penal code that was established and used during the Tang Dynasty in China. Supplemented by civil statutes and regulations, it became the basis for later dynastic codes not only in China but elsewhere in East Asia. The Code synthesized Legalist and Confucian interpretations of law. Created in AD 624 and modified in AD 627 and 637, it was promulgated in AD 652 with 502 articles in 12 sections and enhanced with a commentary in 653. Considered as one of the greatest achievements of traditional Chinese law, the Tang Code is also the earliest Chinese Code to have been transmitted to the present in its complete form.
Origin and Context
The Tang code took its roots in the code of the Northern Zhou (564) dynasty, which was itself based on the earlier codes of the Cao-Wei and Western Jin (268). Aiming to smooth the earlier laws and reduce physical punishments (such as mutilations) in order to appease social tensions in the newly pacified Tang territories, it was created in AD 624 at the request of Emperor Gaozu of Tang. After further revisions in 627 and 637 under Emperor Taizong, the code was completed by commentaries in 653, under Gaozong.
Organization and System of Punishments
French historian and sinologist Jacques Gernet has called the Tang Code “an admirable composition of faultless logic in spite of its size and complexity.” The American sinologists Wallace Johnson and Denis C. Twitchett described it as “a very rational system of justice” in which “both the accuser and the officials involved had to be careful lest they themselves face punishment”. The Tang Code contained more than 500 articles divided into twelve large sections.
The penalty for an offence was determined according to two factors:
- Offence : The Tang Code clearly associated each offence with a penalty.
- Relational position : For relatives, this position was measured by the kind and duration of mourning that had to be observed for each degree of kinship. Relations outside the family were defined according to positions in a social hierarchy capped by the emperor himself. In this hierarchy, officials were higher than ordinary men, who were themselves superior to persons of servile status. For instance, a slave committing a crime against his master was punished more severely than if an ordinary person had committed the same crime. The same offence committed by the master against his slave, on the other hand, resulted in a lower penalty than the same crime committed by a common person.
The local magistrate acted as examiner and sometimes as investigator, but his final role in legal cases was to determine the proper penalty for the offense that had been committed: he had to fix the nature of the offense as defined by the code, and to increase or reduce the associated penalty depending on the social relation between offender and victim.
The historically famous wuting “five hearings” was a Chinese technique for eliciting the facts of a case. While questioning a witness, the magistrate would look closely for five kinds of behavior: “the person’s statements, expression, breathing, reaction to the words of the judge, and eyes. Through careful observation, it was thought that the experienced magistrate could arrive at a knowledge of whether the person was, in fact, telling the truth.”
If a magistrate was unable to decide a case on the basis of evidence and witness testimony, he could seek the permission of higher officials to use judicial torture. The accused could be beaten no more than 200 blows in up to three interrogations held at least twenty days apart. But when the accused was able to withstand the full amount of torture without making a confession, the magistrate would use the same torture on the accuser. If the tortured accuser admitted making a false accusation, he would receive the same punishment that would have been inflicted upon the accused had this latter been convicted.
The offence modulated according to the degree of social relation determined the final penalty which could range from flagellation using a rattan and bastinado with a bamboo stick, to penal labour, exile with penal labour, and death by strangulation (garrote) or decapitation.
Halakha (Jewish Religious Law)
Halakha is the collective body of Jewish religious laws derived from the written and Oral Torah. Halakha is based on biblical commandments (mitzvot), subsequent Talmudic and rabbinic law, and the customs and traditions compiled in the many books such as the Shulchan Aruch. Halakha is often translated as “Jewish Law”, although a more literal translation might be “the way to behave” or “the way of walking”. The word derives from the root that means “to behave” (also “to go” or “to walk”). Halakha guides not only religious practices and beliefs, but also numerous aspects of day-to-day life.
Historically, in the Jewish diaspora, halakha served many Jewish communities as an enforceable avenue of law – both civil and religious, since no differentiation exists in classical Judaism. Since the Jewish Enlightenment (Haskalah) and Jewish emancipation, some have come to view the halakha as less binding in day-to-day life, as it relies on rabbinic interpretation, as opposed to the authoritative, canonical text recorded in the Hebrew Bible. Under contemporary Israeli law, certain areas of Israeli family and personal status law are under the authority of the rabbinic courts, so are treated according to halakha. Some differences in halakha are found among Ashkenazi, Mizrahi, Sephardi, Yemenite, Ethiopian and other Jewish communities who historically lived in isolation.
Etymology and Terminology
The word halakha is derived from the Hebrew root halakh – “to walk” or “to go”. Taken literally, therefore, halakha translates as “the way to walk”, rather than “law”. The word halakha refers to the corpus of rabbinic legal texts, or to the overall system of religious law. The term may also be related to Akkadian ilku, a property tax, rendered in Aramaic as halakh, designating one or several obligations.
Halakha is often contrasted with aggadah (“the telling”), the diverse corpus of rabbinic exegetical, narrative, philosophical, mystical, and other “non-legal” texts. At the same time, since writers of halakha may draw upon the aggadic and even mystical literature, a dynamic interchange occurs between the genres. Halakha also does not include the parts of the Torah not related to commandments.
Halakha constitutes the practical application of the 613 mitzvot (“commandments”) in the Torah, as developed through discussion and debate in the classical rabbinic literature, especially the Mishnah and the Talmud (the “Oral Torah”), and as codified in the Mishneh Torah and Shulchan Aruch. Because halakha is developed and applied by various halakhic authorities rather than one sole “official voice”, different individuals and communities may well have different answers to halakhic questions. With few exceptions, controversies are not settled through authoritative structures because during the Jewish diaspora, Jews lacked a single judicial hierarchy or appellate review process for halakha.
According to the Talmud (Tractate Makot), 613 mitzvot are in the Torah, 248 positive (“thou shalt”) mitzvot and 365 negative (“thou shalt not”) mitzvot, supplemented by seven mitzvot legislated by the rabbis of antiquity.
Rabbinic Judaism divides laws into categories:
- The Law of Moses which are believed to have been revealed by God to the Israelites at biblical Mount Sinai. These laws are composed of the following:
- The Written Torah, laws written in the Hebrew Bible.
- The Oral Torah, laws believed to have been transmitted orally prior to their later compilation in texts such as the Mishnah, Talmud, and rabbinic codes.
- Laws of human origin including rabbinic decrees, interpretations, customs, etc.
This division between revealed and rabbinic commandments may influence the importance of a rule, its enforcement and the nature of its ongoing interpretation. Halakhic authorities may disagree on which laws fall into which categories or the circumstances (if any) under which prior rabbinic rulings can be re-examined by contemporary rabbis and that the first category is immutable, with exceptions only for life-saving and similar emergency circumstances.
A second classical distinction is between the Written Law, laws written in the Hebrew Bible, and the Oral Law, laws which are believed to have been transmitted orally prior to their later compilation in texts such as the Mishnah, Talmud, and rabbinic codes.
Commandments are divided into positive and negative commands, which are treated differently in terms of divine and human punishment. Positive commandments require an action to be performed and are considered to bring the performer closer to God. Negative commandments (traditionally 365 in number) forbid a specific action, and violations create a distance from God.
A further division is made between chukim (“decrees” – laws without obvious explanation, such as shatnez, the law prohibiting wearing clothing made of mixtures of linen and wool), mishpatim (“judgements” – laws with obvious social implications) and eduyot (“testimonies” or “commemorations”, such as the Shabbat and holidays). Through the ages, various rabbinical authorities have classified some of the 613 commandments in many ways.
Sources and Process
The development of halakha in the period before the Maccabees, which has been described as the formative period in the history of its development, is shrouded in obscurity. Y. Baer (in Zion, 17 (1951–52), 1–55) has argued that there was little pure academic legal activity at this period and that many of the laws originating at this time were produced by a means of neighbourly good conduct rules in a similar way as carried out by Greeks in the age of Solon. For example, the first chapter of Bava Kamma, contains a formulation of the law of torts worded in the first person.
The boundaries of Jewish law are determined through the Halakhic process, a religious-ethical system of legal reasoning. Rabbis generally base their opinions on the primary sources of halakha as well as on precedent set by previous rabbinic opinions. The major sources and genre of halakha consulted include:
- The foundational Talmudic literature (especially the Mishna and the Babylonian Talmud) with commentaries;
- Talmudic hermeneutics: the science which defines the rules and methods for the investigation and exact determination of the meaning of the Scriptures; includes also the rules by which the Halakhot are derived from and established by the written law. These may be seen as the rules by which early Jewish law was derived.
- Gemara – the Talmudic process of elucidating the halakha
- The post-Talmudic codificatory literature, such as Maimonides’s Mishneh Torah and the Shulchan Aruch with its commentaries (see #Codes of Jewish law below);
- Regulations and other “legislative” enactments promulgated by rabbis and communal bodies:
- Gezeirah (literally, “declaration”): “preventative legislation” of the rabbis, intended to prevent violations of the commandments
- Takkanah (literally, “Repair”, meaning also “Regulation”): “positive legislation”, practices instituted by the rabbis not based (directly) on the commandments
- Minhag: Customs, community practices, and customary law, as well as the exemplary deeds of prominent (or local) rabbis;
- The she’eloth u-teshuvoth (responsa, literally, “questions and answers”) literature.
- Dina d’malchuta dina (literally, “the law of the king is law”): an additional aspect of halakha, being the principle recognizing non-Jewish laws and non-Jewish legal jurisdiction as binding on Jewish citizens, provided that they are not contrary to a law in Judaism. This principle applies primarily in areas of commercial, civil and criminal law.
In antiquity, the Sanhedrin functioned essentially as the Supreme Court and legislature (in the US judicial system) for Judaism, and had the power to administer binding law, including both received law and its own rabbinic decrees, on all Jews—rulings of the Sanhedrin became halakha; see Oral law. That court ceased to function in its full mode in 40 CE. Today, the authoritative application of Jewish law is left to the local rabbi, and the local rabbinical courts, with only local applicability. In branches of Judaism that follow halakha, lay individuals make numerous ad-hoc decisions, but are regarded as not having authority to decide certain issues definitively.
Since the days of the Sanhedrin, however, no body or authority has been generally regarded as having the authority to create universally recognized precedents. As a result, halakha has developed in a somewhat different fashion from Anglo-American legal systems with a Supreme Court able to provide universally accepted precedents. Generally, Halakhic arguments are effectively, yet unofficially, peer-reviewed. When a rabbinic posek (literally, “he who makes a statement”, “decisor”) proposes an additional interpretation of a law, that interpretation may be considered binding for the posek’s questioner or immediate community. Depending on the stature of the posek and the quality of the decision, an interpretation may also be gradually accepted by other rabbis and members of other Jewish communities.
Under this system there is a tension between the relevance of earlier and later authorities in constraining Halakhic interpretation and innovation. On the one hand, there is a principle in halakha not to overrule a specific law from an earlier era, after it is accepted by the community as a law or vow, unless supported by another, relevant earlier precedent; see list below. On the other hand, another principle recognizes the responsibility and authority of later authorities, and especially the posek handling a then-current question. In addition, the halakha embodies a wide range of principles that permit judicial discretion and deviation (Ben-Menahem).
Notwithstanding the potential for innovation, rabbis and Jewish communities differ greatly on how they make changes in halakha. Notably, poskim frequently extend the application of a law to new situations, but do not consider such applications as constituting a “change” in halakha. For example, many Orthodox rulings concerning electricity are derived from rulings concerning fire, as closing an electrical circuit may cause a spark. In contrast, Conservative poskim consider that switching on electrical equipment is physically and chemically more like turning on a water tap (which is permissible by halakha) than lighting a fire (which is not permissible), and therefore permitted on Shabbat. The reformative Judaism in some cases explicitly interprets halakha to take into account its view of contemporary society. For instance, most Conservative rabbis extend the application of certain Jewish obligations and permissible activities to women.
Within certain Jewish communities, formal organized bodies do exist. Within Modern Orthodox Judaism, there is no one committee or leader, but Modern US-based Orthodox rabbis generally agree with the views set by consensus by the leaders of the Rabbinical Council of America. Within Conservative Judaism, the Rabbinical Assembly has an official Committee on Jewish Law and Standards.
Note that Takkanot, the plural form of Takkanah above, in general do not affect or restrict observance of Torah mitzvot. (In common parlance sometimes people use the general term takkanah to refer either gezeirot or takkanot.) However, the Talmud states that in exceptional cases, the Sages had the authority to “uproot matters from the Torah”. In Talmudic and classical Halakhic literature, this authority refers to the authority to prohibit some things that would otherwise be Biblically sanctioned (shev v’al ta’aseh, literally, thou shall stay seated and not do). Rabbis may rule that a specific mitzvah from the Torah should not be performed, e. g., blowing the shofar on Shabbat, or taking the lulav and etrog on Shabbat. These examples of takkanot which may be executed out of caution lest some might otherwise carry the mentioned items between home and the synagogue, thus inadvertently violating a Sabbath melakha. Another rare and limited form of takkanah involved overriding Torah prohibitions. In some cases, the Sages allowed the temporary violation of a prohibition in order to maintain the Jewish system as a whole. This was part of the basis for Esther’s relationship with Ahasuerus (Xeres). For general usage of takkanaot in Jewish history see the article Takkanah. For examples of this being used in Conservative Judaism, see Conservative halakha.
The antiquity of the rules can be determined only by the dates of the authorities who quote them; in general, they cannot safely be declared older than the tanna (from Aramaic, literally, “repeater”) to whom they are first ascribed. It is certain, however, that the seven middot (literally, “measurements”, and referring to [good] behavior) of Hillel and the thirteen of Ishmael are earlier than the time of Hillel himself, who was the first to transmit them.
The Talmud gives no information concerning the origin of the middot, although the Geonim (“Sages”) regarded them as Sinaitic (Law given to Moses at Sinai). The Artscroll Series writes in its Overview to the book of Ezra:
“During the Mishnaitic and Talmudic periods, the Sages of Israel… took the eternal tools of exegesis and used them to reveal the secrets that had always been locked within the words of the Torah, secrets that Moses had taught Israel and that, in turn, had been transmitted orally for over a thousand years until the oral tradition began to crumble due to persecution and a lack of diligence. They did nothing new and certainly made no changes in the Torah; they merely made use of hermeneutic principles that had not been need while the tradition of study was still at its zenith.” (pg. xii-xiii)
The middot seem to have been first laid down as abstract rules by the teachers of Hillel, though they were not immediately recognized by all as valid and binding. Different schools interpreted and modified them, restricted or expanded them, in various ways. Rabbi Akiva and rabbi Ishmael and their scholars especially contributed to the development or establishment of these rules. “It must be borne in mind, however, that neither Hillel, Ishmael, nor [a contemporary of theirs named] Eliezer ben Jose sought to give a complete enumeration of the rules of interpretation current in his day, but that they omitted from their collections many rules which were then followed.”
Akiva devoted his attention particularly to the grammatical and exegetical rules, while Ishmael developed the logical. The rules laid down by one school were frequently rejected by another because the principles that guided them in their respective formulations were essentially different. According to Akiva, the divine language of the Torah is distinguished from the speech of men by the fact that in the former no word or sound is superfluous.
Traditional Chinese Law
Traditional Chinese law refers to the laws, regulations, and rules used in China up to 1911, when the last imperial dynasty fell. It has undergone continuous development since at least the 11th century BC. This legal tradition is distinct from the common law and civil law traditions of the West – as well as Islamic law and classical Hindu law – and to a great extent, is contrary to the concepts of contemporary Chinese law. It incorporates elements of both Legalist and Confucian traditions of social order and governance.
To Westerners, perhaps the most striking feature of the traditional Chinese criminal procedure is that it was an inquisitorial system where the judge, usually the district magistrate, conducts a public investigation of a crime, rather than an adversarial system where the judge decides between attorneys representing the prosecution and defense. “The Chinese traditionally despised the role of advocate and saw such people as parasites who attempted to profit from the difficulties of others. The magistrate saw himself as someone seeking the truth, not a partisan for either side.”
Two traditional Chinese terms approximate “law” in the modern Western sense. The first, fǎ, means primarily “norm” or “model”. The second, lǜ, is usually rendered as “statute”.
Laws were developed by government officials to regulate ancient Chinese society. The laws of the aristocratic societies of early China put substantial emphasis on maintaining distinct ranks and orders amongst the nobles, in addition to controlling the populace. As a result, lǐ, meaning “ritual” or “etiquette,” governed the conduct of the nobles, whilst xíng, the rules of punishment, governed the commoners and slaves.
The early rulers of the Zhou dynasty issued or enforced laws that already exemplified the values of a primogeniture regime, most notable of which is filial piety. The earliest document on the law in China that is generally regarded as authentic is the Kang Gao, a set of instructions issued by King Wu of Zhou to a younger prince for the government of a fief. The Kang Gao is a chapter of the Book of Documents.
During the 6th century BC, several of the independent states into which the Zhou kingdom had fragmented codified their penal laws and inscribed them on bronze cauldrons. For example, at least two codifications from the state of Zheng survive, from 536 BC and 504 BC – the first on cauldrons and the second on bamboo. Additionally, other notable codes include the codes of Wei, drafted by Li Kui. Such codification was part of the process by which rulers attempted to make the central administration of the state more effective. However, they attracted criticism from orthodox statesmen, including Confucius, on the basis that they eroded the distinction between the “noble” and the “base.”
The Five Punishments dated from this time.
Legalism and Qin
In 221 BC, the state of Qin finally obtained supremacy over its rivals and thus the Qin dynasty was founded. One of the reasons for its success was the adoption, on the advice of Lord Shang Yang, of far-reaching penal and administrative codes in the 4th century BC. The laws imposed severe punishments for failure to comply with duties imposed by the state and on the whole punished all alike. During this stage, law was marked by a purely Legalist spirit, hostile to the moral values advocated by the Confucian school of thought.
The Legalist school, as represented by such thinkers as Han Fei Zi, insisted that the ruler must always rely on penal law and the imposition of heavy punishments as the main instrument of the government. At the same time, moral considerations and social standing should be rigorously excluded. Another hallmark of Legalist thinking was that equality should be before the law. On the question of legislative technique, the Legalists stressed that the rules enacted by the ruler for punishment of offences should be clear and intelligible to the ordinary people, and they should be properly communicated to the populace.
Multiple corporal punishments were implemented by the Qin, such as death by boiling, chariots, beating, and permanent mutilation in the form of tattooing and castration. People who committed crimes were also sentenced to hard labor for the state.
Legalism survived in a diluted form after the Han dynasty succeeded the Qin. It was recognised that there was a need for complex penal and administrative codes that enabled the emperor to govern the country through a hierarchy of ministers and officials, all ultimately responsible to him. Imperial legal systems all retained the original Legalist insistence that the powers of officials be defined in detail and that punishments be prescribed for transgressions, whether inadvertent or not. Han lawmakers took account of Confucian values and introduced rules designed to implement them.
By 167 BC the law had changed so that castration itself was not used to punish, instead, it became an optional replacement for execution.
The Gentoo Code (also known as A Code of Gentoo Laws or Ordinations of the Pundits) is a legal code translated from Sanskrit (in which it was known as vivādārṇavasetu) into Persian by Brahmin scholars; and then from Persian into English by Nathaniel Brassey Halhed, a British grammarian working for the East India Company. Vivādārṇavasetu is a digest of Hindu law in 21 sections (taraṅga) compiled for Warren Hastings by the pandits. The translation was funded and encouraged by Warren Hastings as a method of increasing colonial hold over the Indies.
It was translated into English with a view to know about the culture and local laws of various parts of Indian subcontinent. It was printed privately by the East India Company in London in 1776 under the title A Code of Gentoo Laws, or, Ordinations of the Pundits. Copies were not put on sale, but the Company did distribute them. In 1777 a pirate (and less luxurious) edition was printed; and in 1781 a second edition appeared. Translations into French and German were published in 1778. It is basically about the Hindu law of inheritance (Manusmriti). The Pandits and the Maulvis were associated with judges to understand the civil law of Hindus and Muslims.
Originally published by Wikipedia, 01.05.2020, under a Creative Commons Attribution-ShareAlike 3.0 Unported license.