Ancient Legal Thought

This is a study of what constituted legality and the role of law in ancient societies. Investigating and comparing legal codes and legal thinking in the ancient societies of Mesopotamia, Egypt, India, China, Greece, the Roman Republic, the Roman Empire, and of the ancient Rabbis, this volume examines how people used law to create stable societies. Starting with Hammurabi’s Code...

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This is a study of what constituted legality and the role of law in ancient societies. Investigating and comparing legal codes and legal thinking in the ancient societies of Mesopotamia, Egypt, India, China, Greece, the Roman Republic, the Roman Empire, and of the ancient Rabbis, this volume examines how people used law to create stable societies. Starting with Hammurabi’s Code, this volume also analyzes the law of the pharaohs and the codes of the ancient rabbis and of the Roman Emperor Justinian. Focusing on the key concepts of justice, equity and humaneness, the status of women and slaves, and the idea of criminality and of war and peace, no other book attempts to examine such diverse legal systems and legal thinking from the ancient world.

Larry May is Professor of Philosophy and Law, Emeritus at Vanderbilt University. He has published 37 books, including Limiting Leviathan: Hobbes on Law and International Affairs (2013), Proportionality in International Law, with Michael Newton, (2014), Contingent Pacifism (Cambridge University Press, 2015), Necessity in International Law, with Jens Ohlin (2016), International C...

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Larry May is Professor of Philosophy and Law, Emeritus at Vanderbilt University. He has published 37 books, including Limiting Leviathan: Hobbes on Law and International Affairs (2013), Proportionality in International Law, with Michael Newton, (2014), Contingent Pacifism (Cambridge University Press, 2015), Necessity in International Law, with Jens Ohlin (2016), International Criminal Tribunals, with Shannon Fyfe (Cambridge University Press, 2017), and is editor of The Cambridge Handbook of the Just War (Cambridge University Press, 2017). His books have won awards in law, philosophy, and political science and he has advised the US State Department, the CIA, the NIH, and the International Committee of the Red Cross.

Acknowledgments
General Introduction
Maps
Part A: Ancient Mesopotamia and Egypt
Introduction for Part A
Section I: Ancient Procedural Law
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Acknowledgments
General Introduction
Maps
Part A: Ancient Mesopotamia and Egypt
Introduction for Part A
Section I: Ancient Procedural Law
1. Ancient Legal Reasoning
1.1 “Codes,” Edicts, and Decrees
1.2 Primitive Legal Reasoning
1.3 Legal Reasoning “by Example”
1.4 The Terms for Law and Justice
1.5 Religious and Secular Law
2. Judging, Trials, and Assemblies
2.1 Judges and Judging
2.2 Judicial Decision-Making and Ancient Legal Thought
2.3 Ancient Mesopotamian Assemblies
2.4 Ancient Trials
2.5 The Rule of Law in Mesopotamia
2.6 Participation in Justice
3. Oaths, Ordeals, and Truth
3.1 Proof by Ordeal
3.2 Proof by Swearing of Oaths
3.3 The Determiner of Truth
3.4 Religion and Proof
3.5 Ancient Proof and Truth-Telling
Section II: Freedom, Equality, and Legal Status
4. Debt Forgiveness and Equity
4.1 The “Code” of Hammurabi and the Edicts of Ammisaduqa
4.2 The Law of Replenishing Stolen Goods
4.3 Debt Relief and Equity in Ancient Legal Thought
4.4 Equity and Debt Relief
4.5 Forgiveness, Equity, and Debt Restructuring
5. Freedom and Slavery
5.1 Types of Slavery in the Laws of the Ancient Near East
5.2 Foreign Slaves
5.3 Debt Slaves and Adoption Slaves
5.4 Two Modern Conceptions of Freedom
5.5 Assessing Ancient Conceptions of Freedom
5.6 The Relationship of Ancient Freedom and Slavery
6. Class, Legal Status, and Equality
6.1 The Muskenum in Ancient Babylonia
6.2 Protecting the Muskenum Class?
6.3 The Weak and the Poor
6.4 Class Inequality and Class Inequity
6.5 Equality Before the Law
7. Women’s Separate Sphere
7.1 Women as Priests and Saloon-Keepers
7.2 Marriage and Inheritance
7.3 Adultery and Rape
7.4 Honor and Pollution
7.5 Patriarchy and Separate Spheres
Section III: Crime and Punishment
8. Complicity and Conspiracy
8.1 Conspiracy in an Egyptian Harem
8.2 Conspiracy and the Great Tomb Robberies
8.3 Guilt Based on Inaction and Complicity in Egypt and Mesopotamia
8.4 Conceptualizing Complicity
9. Crime and Lex Talionis
9.1 Hammurabi and Lex Talionis
9.2 Penalties and Punishments in Hammurabi’s Code and Egyptian Law
9.3 Proportionality and Lex Talionis
9.4 Defending Lex Talionis
9.5 Criminal Punishment
10. Capital Punishment
10.1 Death for Death
10.2 Sorcery and False Accusation
10.3 Murder and Rape
10.4 Punishment and Law Enforcement
10.5 Possible Ancient Defenses of Capital Punishment
Section IV: International Justice
11. Ancient Treaties and Trust
11.1 Ancient Vassal Treaties
11.2 The Hittite-Egyptian Treaty of 1285 BCE
11.3 Ancient Compliance
11.4 Oaths and Threats
11.5 Trust in the Ancient “International” Community
12. Aggressive War and Necessity
12.1 Opportunity
12.2 Necessity
12.3 Vengeance and Punishment
12.4 Humanitarian Intervention
12.5 Reconsidering National Defense and Humanitarian Intervention
Concluding Thoughts for Part A
Part B: Ancient Greece and China
Introduction for Part B
Section V: Law, Justice, and Equity
13. Custom and Law in Ancient Greece and China
13.1 Antigone and Law
13.2 Law and Democracy in Ancient Greek Legal Thought
13.3 Ancient Chinese Legal Thought about Law
13.4 The Critique of Written Law in China and Greece
13.5 The Debate about the Proper Place of Law
14. Justice and Equity
14.1 Justice and the Rule of Law for the Greeks
14.2 Equity and Fairness for Aristotle
14.3 Justice and Equity in Ancient China
14.4 Conceptualizing Ancient Equity
14.5 Distinguishing Justice and Equity
15. Trials, Juries, and Democratic Assemblies
15.1 Chinese Trials and Investigations
15.2 Athenian Jury Trials
15.3 Political and Legal Institutions in Greece and China
15.4 Aristotle’s Criticisms of Democracy
15.5 Trial Procedures in Ancient Legal Thought
Section VI: Legal Status
16. Citizens and Aliens
16.1 Law, Aliens, and Social Status in Ancient China
16.2 Citizenship in Ancient Athens
16.3 Metics and Aliens in Athens
16.4 Metics and Greek Democracy
16.5 Learning from the Athenian Metics
17. Women
17.1 Women and Citizenship in Ancient Athens
17.2 Marriage and Adultery Laws in Ancient Greece
17.3 The Status of Women in Plato’s Laws
17.4 Private Property and the Family
17.5 The Status of Women in Democracies
18. Slavery and Democracy
18.1 Early Greek Laws on Slavery
18.2 Aristotle’s Defense of Slavery in Athens
18.3 Other Athenian Views of Slavery
18.4 Law and Freedom in Ancient Athens and China
18.5 Thinking about Law and Freedom
Section VII: Responsibility and Punishment
19. Causation and Responsibility
19.1 The Javelin Thrower in the Second Tetralogy of Antiphon
19.2 Plato and Aristotle on Causation
19.3 Contemporary Philosophical Discussions of the Second Tetralogy
19.4 Proximate Causation and Contributory Causation
19.5 The Second Tetralogy’s Lessons
20. Homicide and Pollution
20.1 Ancient Greek Legal Thought and Criminal Law
20.2 Draco’s Homicide Law
20.3 Pollution in Antiphon, Aeschylus, and Plato
20.4 Pollution Problems
20.5 Legal Pollution in Athens
21. Justification, Excuse, and Mitigation
21.1 Ajax and Oedipus
21.2 Antiphon’s Third Tetralogy
21.3 Aristotle on Justification and Proportionality
21.4 Lack of Virtue and Mitigation of Punishment in Ancient China
21.5 Justification and Excuse in Legal Thought
22. Hubris and Impiety
22.1 Ancient Greek Conceptions of Hubris
22.2 Two Cases of Hubris from Demosthenes
22.3 Impiety in Ancient Greece and China
22.4 Impiety and Hubris as Ancient Honor-Based Crimes
22.5 Dishonor and Hubris in Legal Thought
Section VIII: War and Amnesty
23. Amnesty, Sanctuary, and Exile
23.1 The Athenian Amnesty of 403 BCE
23.2 Sanctuary in Ancient Greece
23.3 Exile and Ostracism
23.4 Equity and Extraordinary Practices in China and Greece
23.5 Why Amnesty and Sanctuary Are Important
24. Justified War and the Law of Nations
24.1 Ancient Chinese Ideas of the Justification for War
24.2 Ancient Greek Ideas about Aggressive War
24.3 Ancient Greece and the Law of Nations
24.4 The Obligation to Keep Treaties
24.5 Treaty Enforcement in International Law
Part C: India and the Roman Republic
Section IX: Law, Justice, and Equity
25. Law and Its Sources in Ancient Roman and Indian Law
25.1 Sources of Ancient Roman and Indian Law
25.2 The Twelve Tables and Cicero on the Nature of Law
25.3 Ancient Indian Conceptions of Law in the Sutras and Code of Manu
25.4 The Nature and Sources of Law
26. Legal Procedures and Trials
26.1 Procedure in the Law of the Kings and the Twelve Tables
26.2 Ancient Indian Procedural Law
26.3 Trials in Ancient India and the Roman Republic
26.4 Witnesses and Proof
26.5 Why Legal Procedure Matters
27. Equity and Justice
27.1 Cicero on Equity and Justice
27.2 Equity in Ancient Indian Legal Thought
27.3 Equity in Roman Legal Thought and Practice
27.4 From Jus Gentium to Jus Naturale
27.5 Equity’s Promise and Problems
27.6 Law and Its Relation to Morality
Section X: Legal Status and Social Class
28. Legal Status of Women
28.1 The Early Roman Laws on Women
28.2 The Early Indian Laws on Women
28.3 Alternative Accounts of the Legal Status of Women in Rome and India
28.4 The Legal Status of Women in Theory and Practice
28.5 Legal Status of Women and the Social Control of Marriage
29. Social Class and Slavery
29.1 Class and Law in Ancient India and Rome
29.2 The Sudra in Ancient Indian Law
29.3 Slavery in the Roman Republic
29.4 Comparing the Lowest Classes in Ancient Rome and India
29.5 Law and the Worst Off
Section XI: Responsibility and Punishment
30. Political and Moral Crimes
30.1 Poisoning in the Roman Republic
30.2 Poison and Treason in Ancient India
30.3 Hierarchy and Crime
30.4 Ancient Roman and Indian Criminal Procedure
30.5 The Moral and Political Aims of Ancient Criminal Law
31. Punishment, Cruelty, and Humaneness
31.1 Punishment in the Twelve Tables
31.2 Punishment in the Code of Manu in Ancient India
31.3 Exile, Banishment, and Outcasting as Alternatives to Capital Punishment
31.4 A Few Words from Seneca
31.5 Thinking About Punishment Humanely
32. Crimes Concerning Political and Legal Abuse
32.1 Ancient India’s Protections of Political and Legal Process
32.2 The Roman Crimes of Majestas and Ambitus
32.3 Infamia and Calumnia
32.4 Ancient Laws Concerning Punishment of Legal or Political Officials
32.5 The Importance of Protecting Legal and Political Processes
Section XII: War and Treaties
33. Treaties, Hostages, and Keeping Faith
33.1 Treaties in Ancient India and the Roman Republic
33.2 Keeping Faith
33.3 The Role of Hostages
33.4 Conquest by Morality
33.5 Treaties in Emerging Ancient Empires
34. The Rules of War and the Law of Peoples
34.1 The Law of Nature and the Law of Peoples
34.2 Roman Ideas of the Law of War
34.3 Ancient Indian Ideas on the Law of War
34.4 Prisoners of War
34.5 International Law in Ancient India and Rome
Part D: Rabbinic Law and the Roman Empire
Section XIII: Justice, Equity, and Conflict of Laws
35. Law, Morality, and Religion
35.1 Justice and Equity in Rabbinic and Late Roman Legal Thought
35.2 Religion and Law in Ancient Rabbinic Thought
35.3 Morality and Law in the Roman Empire
35.4 The Religious Aspects of Law
35.5 Morality and the Domain of Law
36. Dual Legal Regimes
36.1 Overlapping Legal Domains
36.2 Circumcision and Conversion
36.3 Roman Interference with Jewish Religious Life
36.4 Conflict of Laws for Jews in the Roman Empire
36.5 Autonomy and Tolerance of States Within States
37. The Law and Ancient Legal Scholars
37.1 Rabbis and Ancient Rabbinic Law
37.2 The Legal Scholars of the Roman Empire
37.3 Why Did Legal Scholars and Rabbis Come to Make Law?
37.4 Professional Legal Scholars and Lawyers
37.5 Did Professional Legal Scholars Make the Law More Humane?
Section XIV: Differential Status
38. Women in Jewish and Roman Thought
38.1 The Status of Women in Rabbinic and Imperial Roman Times
38.2 Religion and the Status of Women in Rabbinic and Roman Law
38.3 Marriage and Divorce
38.4 Rape and Sexual Violence
38.5 Lack of Advances for Women at the End of the Ancient Period
39. Slaves in Jewish and Roman Legal Thought
39.1 Slaves as Both Persons and Things in Late Roman Thought
39.2 Slaves in Rabbinic Law
39.3 The Quandary Over Slavery Revisited
39.4 The Few Critics of Slavery During Later Ancient Times
39.5 Reconsidering the Idea of Moral Progress in Light of Slavery
Section XV: Responsibility
40. Intention and Causation in Criminal Law
40.1 Causation and Crime in Rabbinic Legal Thought
40.2 Causation and Crime in the Legal Thought of the Roman Empire
40.3 Intention in Ancient Rabbinic Legal Thought
40.4 Intention in the Legal Thought of the Roman Empire
40.5 Conceptualizing Criminal Responsibility
41. Injury and Murder
41.1 Injuria in the Roman Empire
41.2 Injury and Assault in the Talmud
41.3 Murder in the Roman Empire
41.4 Homicide in the Talmud
41.5 Why Crime is Understood as Outrageous in Ancient Legal Thought
Section XVI: Universal Law at the End of Ancient Times
42. Universal Law and Human Rights
42.1 Roman Conceptions of Natural Law
42.2 Ancient Rabbinic Conceptions of Divine Law
42.3 Universal Law, Divine or Natural
42.4 Universal Law, Universal Jurisdiction, and Human Rights
42.5 The Idea of Human Rights
43. The Origins of the Just War Doctrine
43.1 Pacifism in the Early Christianized Roman Empire
43.2 Augustine’s Defense of the Just War
43.3 Ancient Rabbinic Ideas of a Just War
43.4 Universal Law and Limitations on War
43.5 Some Remaining Worries About War’s Inhumaneness
44. The Origins of the Just War Doctrine
44.1 Pacifism in the Early Christianized Roman Empire
44.2 Augustine’s Defense of the Just War
44.3 Ancient Rabbinic Ideas of a Just War
44.4 Universal Law and Limitations on War
44.5 Some Remaining Worries About War’s Inhumaneness
Part E: Final Thoughts
45. Final Thoughts on Equity, Justice, and Humaneness
45.1 Ancient Conceptions of Equity and Justice
45.2 Some Cases of Equity
45.3 Mercy and Equity
45.4 Humaneness, Discretion, and Equity
Bibliography
Index
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