Ancient law: A joy and a process

I recently re-visited Gorthyna, an old Cretan citystate, home to a famous code of laws (app 450 BC), which in part survives to this day. Significant fragments were found inscribed in stone, now safely sheltered close to the Basilica dedicated to St Timon, companion of St Paul. The surviving portions relate mostly to paternal and succession/ property rights. They are a marvellous sight and they have rekindled my interest in ancient laws and codes.

Ancient laws are a fascinating phenomenon. They are instructive and suggestive of the joys of studying law. This short article seeks to highlight some early laws and codes (a word used very liberally here). It is a very small part of a much larger and complex narrative. Relatively few ancient texts survive. Any law, new and old, needs to be examined in context, and context is never uniform. The underlying objectives and vested interests need to be identified and understood.

Draco (around 620 BC) produced a law code for Athens attaching the death penalty for every offence no matter how small. Even stealing an apple was punished in this way. It is easy today to dismiss him as some sort of drafting psychopath, but he was merely obeying the repressive instructions given to him by the Athenian governing elite who insisted that they should be protected even from petty criminals.

That is broadly the context whereby his laws helped generate the notion of ‘draconian’ punishments. The great Solon (app. 594 BC) was later commissioned to reform this brutal code, but he faced an uphill struggle because his extensive and balanced reforms dissatisfied opposing vested interests. His reforms could not please everybody. He decided to flee Athens and stayed away for ten years to avoid demands to revise his reforms.

Sparta is another striking example of a law and constitution that can only be explained by reference to the prevailing socio-economic context. At its height (around 650 BC), Sparta had many more slaves than citizens. The latter lived a wealthy life on the strength of the hard labour of its enslaved neighbouring population, whose numbers were rightly perceived as a constant potential security threat.

Sparta created a relatively smallish elite militaristic class to defend the city from both external and internal forces. Unusually, it had two kings and children were from an early age educated by the State under very harsh conditions. The law-maker Lycurgus had fashioned a system of laws suitable to this very peculiar society based on its needs and concerns. It still has its admirers.

Like Gorthyna and roughly at the same time, Rome developed a set of rules placed in the marketplace for all literate Roman citizens to read. The Twelve Tables (around 450 BC) were written on bronze tables, and we more or less know what rules they contained. They were far from a complete code. One of the more dramatic rules declared that the father had the power of life and death over his children. Later Roman law became more complex and structured especially following Justinian (app. 560 AD).

The best preserved and most extensive code is probably the one Hammurabi presented to the powerful Shamash, the god of the sun and justice (app 1750 BC). Hammurabi, the great king and lawmaker of Babylon proclaimed his work to be immutable and that any attempt to change it would be punishable by death.

Broadly, the code sought to obtain justice through publicity of the rules and a system of proportionality. If you kill one of my sheep, I will take one of yours, but only one (art 195-6). If a contractor builds an unsafe house which collapses causing death, the careless builder would pay with his life (art 229). A life for a life and perfect proportionality (or almost), and now overseen by the State, not executed through self-help.

Though impressive, parts of the code were quite brutal. The Israelites approved of the eye for an eye and tooth for a tooth proposition and they inserted it in what we today call the Old Testament (Exodus 21. 23-25, around 1300 BC).

A common process seems to link the various ancient laws and codes: (a) originally, societies generally drew little difference, if at all, between laws and religious commands; and (b) these laws were kept secret and were known and enforced exclusively by castes or priesthoods who thereby exercised tremendous power.

Enlightened rulers eventually decided that justice required that their subjects should know in advance what was expected of them and what sanctions could follow a breach. They devised the notion of inscribing the laws and making them publicly available. This was a significant departure from the secrecy, uncertainty and abuse of the past.

David Fabri