In the beginning God created the heavens and the Earth… Then God said, “Let us make mankind in our image”… So God created mankind in his own image and mankind did quickly create problems for themselves that needed solving by others. Unfortunately, God wasn’t a great problem solver it seems to mankind was forced to solve his own problems and so created systems of laws to help. This blog is the story of those laws.
I’m no historian and am even less of a theologian so that first paragraph may not be entirely historically accurate. In this blog (the whole thing not just this post) I will explore some of histories more important legal developments, I’ll discuss some of the more interesting cases to come before the courts and hopefully by the end of it I’ll have worked out for myself what this law stuff is all about.
As a schoolboy I was taught that when writing a story you should start at the beginning, have a middle then an end. I note Mary Beard seems to disagree with this notion in her excellent book SPQR but I don’t pretend to be anywhere near as clever has her so I’m going to stick to the school’s formula for this first blog – I’ll jump though history later – and write about the beginning of it all.
Where did law start? I don’t know. Sorry to disappoint but nor does anybody else really. China looks like a pretty good bet since they have the oldest operating legal system in the world. Early Chinese law sounds like it would have had some pretty enjoyable cases for an advocate to argue – deference to things facing south was a thing and judgments could be founded, on what I presume was a purposive approach to statutory interpretation, by reading the markings on a tortoises shell. Still they did find the time to ban parents marrying their kids, which is good.
The Chinese system seems to have been what we would today call a deeply patriarchal system whereby the eldest male in the family was the boss and ancient Chinese laws prohibited back-chatting your elders; punishments could include death. The older I get the more I approve of this sort of law. We could at the very least introduce it for bus passengers.
While China may have the oldest legal system still in use I believe I’m correct in saying that the earliest Chinese legal code that survives date from around 1027 BC at the very earliest. In legal terms even the ancient Chinese law is a new kid on the block.
The Code of Urukagina looked to combat corruption doing so by giving legal rights to poor and vulnerable individuals who may otherwise have been abused or neglected by the elite or the state itself. It dates from around 2380 BC, a cool 1,353 years before the earliest known Chinese legal code.
King Urukagina’s code required rich people to pay poor people in silver when buying goods from them and prohibited the rich from requiring or forcing the poor to sell against their wishes. Essentially, Urukagina established property rights and, presumably, allowed the poor and widowed women he sought to protect to enforce those rights against the rich. His code also exempted widowed women and orphans from taxes. He also sought to reduce theft and murder thus enshrining in law the earliest recorded criminal laws.
Although Urukagina took some steps to protect women he wasn’t exactly a modern feminist. It seems polygamy was acceptable, as was polyandry at the start of Urukagina’s reign but he outlawed women taking multiple husbands and ordered that any woman doing so should be stoned to death. A woman committing adultery should also be stoned to death, using stones inscribed with her crime.
While Urukagina’s Code may be the oldest we know about, we do not have the text of the code only writings that make reference to it. Ur-Nammu’s Code is the old legal code that has survived, at least in part, to this day from its creation sometime around 2112 BC. Archaeologists have been able to translate around 40 of the code’s 57 laws from various stone tablets.
Ur-Nammu’s Code created criminal offences and provided punishments for those committing the offences. Later legal systems could be very brutal – the Babylonians insisting on an eye for an eye and our own Victorian legal system that executed children and transported people for relatively trivial offences are good examples. In contrast, Ur-Nammu’s Code prescribes a system of financial penalties for offences, including what we might now call assault occasioning actual or grievous bodily harm. Death was still a penalty for serious offences such as rape, murder and robbery as well as crimes we would no longer call crimes, such as adultery.
The code of Ur-Nammu was enforced by a legal system comprising specialised judges who would hear evidence given under oath, give reasoned judgments and make enforceable orders. Importantly, the punishment ordered by a judge should be proportionate to the crime under Ur-Nammu’s Code. This is something that continues under modern English law where we have concepts such as totality that limits the total sentence that can be imposed for multiple crimes as well as bandings for fines so a rich man pays more than a poor one so that the punishment fits the crime.
Around 1850 BC, some 820 years before the earliest known Chinese laws a court was hearing the trial of three men and a woman all accused of murdering the woman’s husband. There were nine witnesses for the prosecution and two for the woman who both gave evidence that the victim had been violent towards his wife and that she had not taken part in the murder, although it seems that she was aware of it after the fact and covered up the death. Today we might say that the wife was acting under some sort of duress in covering up the murder once she discovered or, or even diminished responsibility if she had a hand in planning the killing. Whatever the ancient term, her defence was successful and the court acquitted her. Her three co-defendants were not so lucky; all three were executed in front of the victim’s house.
About 1797 BC, a man called Ankh-ren, or possibly Sekhenren, died, probably in the town of Kahun, which is in Egypt. We know this because more than three-and-a-half thousand years later in 1889 Flinders Petrie found his will along with that of another man named Uah. Ankh-ren left all his property to his brother, Uah.
Uah’s will passed all the property he had been given in life by his brother to Uah’s wife, Teta. She was banned from pulling down the buildings but was given free reign to pass them on to her children however she saw fit. In modern English law, we would probably say that Uah had created a trust and appointed Teta as trustee of it with a life interest for her and the children as the ultimate beneficiaries. Today this would be a complex legal instrument, which may well suggest that humans developed relatively complex law a very long time ago. Indeed so modern in form was Uah’s will that the London Evening Standard suggested that it could even be granted probate by a court in 1889.
While I may one day choose to write a whole post about Draco, I cannot end this post on the beginnings of law without mentioning Draco’s Law, written down in 621 BC. Devised by a Greek citizen the law was so severe that the orator Demades remarked that Draco had written his laws in blood not ink. The penalty for almost everything was death. When asked why, Draco is reported to have replied that “the smallest [offence] deserves death and there is no greater punishment I can find for the greater crimes”. Given this, I am left wondering why Draco went to the effort of differentiating between intentional and unintentional homicide.
So severe were Draco’s laws that today, more than two and a half thousand years later we still use his name to describe a particularly harsh law or penalty, which we say are draconian. In an ironic twist Draco was loved for his draconian law so much so that he was showered by the citizens of Athens with their hats and cloaks, which I am told was a customary way of showing respect. They showed him so much respect that he is said to have been smothered to death by the hats and cloaks they threw!
I am going to end there. I don’t pretend that this is a full historical account of all the important ancient legal codes and decisions because it isn’t. I haven’t touched on the Babylonian laws, the Gortyn Code, Roman law or even the ten commandments, all of which deserve a mention in the history of law. Maybe I’ll get to them one day but for now this brief flypast of the first 1,759 years of ancient legal codes, documents and cases will have to suffice.