Legal History

Ancient Law
Ancient Egypt
Territory
Started around 3500 BC and lasted until around 30 BC
Concentrated south of the Nile River
Kind of Government
Monarchy, led by the Pharaoh. He was considered to be half man, half god by the
people.
The Pharaoh holds legislative, executive, and judicial power, and also serves as the
religious leader of the people. He derives his authority from the gods. His duty is to
maintain divine peace and order in his jurisdiction.
Election to power comes about as inherited by the first-born son of the Pharaoh.
However, there are circumstances where the throne was passed on to other
relatives of the Pharaoh, including females, and even to those who earned His favor.
Next to the Pharaoh was the Vizier, who served as the primary leader of the
government and acted as the Chief Overseer of the land. Ancient law stated that the
Vizier was to act by the law, judge fairly, and not act willfully or head strong. Other
members of the government were the Nomarks, or local governors, who ruled over
an area of land like a state or province called a nome.
The Pharaoh had the final say in all the dealings within and without the state.
Maat
Maat is a goddess serving as the epitome of divine order, truth, and justice.
She is always being attacked by forces of chaos. In the spiritual realm, it was the
gods who helped maintain order. In the earthly realm, it is the pharaoh that helps
maintain it through his able leadership.
Legislature
Ancient Egypt did not follow any written law or code, and laws were based on the
decrees of the Pharaoh.
Judiciary
Officials of the Government, such as scribes and priests, served as judges when
they were appointed to be as such by the Pharaoh. These judges should not be
economically dependent on anyone as to prevent corruption and promote impartiality
in their judgements. However, there are cases where situations involving the
dishonesty of these judges are put to the test. Their punishments would be to have
their noses cut off.
The Pharaoh is still the ultimate judge and has the final say in all cases.
Legal Procedure
The Ancient Egyptians followed the rule of common law based on judicial
proceedings and custom.

There are various evidences of the use of legal documents by the people. These
could range from the wills and inheritance of estates, the documentation referring to
the transfer of power in administrative settings, deeds of property and sales, as well
as official records of case proceedings.
Criminal acts could be against the state, the Pharaoh, gods, or persons. The initial
presumption was that of the guilt of the accused.
In criminal cases, trial consisted of 1) giving sufficient pieces of evidence to prove
claims, 2) coercion or torture to elicit an admission from the accused, 3) the
confession (or denial) of the accused, which is the basis of conviction, 4) passing of
judgment. In some cases, the accused were forced to confess to a crime which they
did not commit because of the torture inflicted on them.
Civil cases consist of property rights and succession.
In civil cases, judgments are based on written and oral evidence, such as witness
testimonies under oath, and documents evidencing the claims. All sides are heard
by the judge whereupon he will render judgment deemed proper to him. Special
considerations are given for certain groups, such as widows, orphans and the timid,
since they are commonly perceived to be incapable of looking properly after their
interests.
The penal provisions include different type of sanctions, ranging from corporal
punishment (ie. lashing, manual labor), fines and confiscation of property. Death is
inflicted by various methods such as burning, drowning, and decapitation. For the
most heinous crimes, posthumous punishments were also given, such as the
removal of ones name from his tomb. For Egyptians, this is considered to be a
great punishment because having their names erased means condemnation to
oblivion.
The Pharaoh had the power to grant pardons to those guilty of crimes.

The Jewish History of the Law

I.

II.

Law before Moses Before 1300 BC

a. Folkways
i. Accumulated experience from the forefathers/leaders of their
time.
ii. Suiting life in peculiar circumstances
iii. Taboo as compelling people to proper conduct
Taboo as sacred and in doing taboo, the wrath of the Gods
would punish man
iv. Manner to impress conformity to the law
Tribal customs (i.e. initiations to boys to become men)
Customary law
a. Customs developed by populations which has the
force of law
Moses the Lawgiver
a. Migration/exodus from Egypt lead by Moses
i. Moses became the Judge and leader of the Jews
ii. The Lord revealed the law to Moses: Torah/Pentateuch

III.

iii. Torah as the constitution of the Jewish law

Jewish history and Religion in different times in the
a. Abrahams covenant with God
i. Forming of the covenant with God which lead to the monotheistic Jewish
Religion.
ii. There was no Law yet before Abraham the law being the religious Judaism
Law which is the Law from God YAWEH
b. Egyptian rule over ancient Jews
i. The Jews settled in Goshen Egypt under the Egyptian rule.
ii. Moses led them out of slavery into Exodus of the Jewish people.
Exodus out of Egypt to the promise land and during the Exodus, God
gave Moses the 10 commandments which was the start of the
ancient law of the Jew
c. Canaan 1400BC
i. Upon arrival in Canaan in 1400BC, the tribes of the Jews were divisided into
12 tribes ruled by 12 judges.
ii. At 1000BC Israelite needed a new form of leadership which lead to the
monarchy where the Jewish God appointed Saul as King
iii. Saul was succeeded by David as king and Solomon succeeded David after a
certain disputes for the throne. Upon Solomons death a civil war dividing
ancient Israel into 2 started where it was divided as:
Northern 10 tribes
Southern 2 tribes of Judah and Benjamin
iv. The Jewish tribe eventually fell under the Assyrian Rule in 800BC
d. Babylonian Captivity under Nebuchadnezzar
i. After the Assyrian Rule, the Jewish people were then captured and was
taken captive under the Babylonian rule under King Nebuchadnezzar. The
difficulty in ruling of the Jews lead to the Babylonians, thinking that they will
have an easier time with the Jews, to migrate them into Babylon.
ii. Jewish Laws and courts that persisted until this time was challenged with the
new environment which lead to the Talmud being translated to Hebrew and
Aramaic.
iii. The prevalence and translation of the Jewish law into common tongue in
Babylon lead to the Talmudic academies in Babylonia.
e. Persian Conquest to Babylon
i. Jewish then returned to Judah where the Jews, in their desire to revive its
laws from that of the ancient texts formed the Pharisees and Sadducees
which are of:
Political parties
Social parties
School of thought
f. Greek to Roman rule
i. After the Persian conquest, the Jews were then influenced by the Hellenistic
philosophy leading to Jewish diaspora where Jews lived among other
cultures where they were able to cultivate their culture despite being among
other people.
ii. There started a revolt of the ancient orthodox Jews forming Hasmonean
dynasty up to the time of the annexation by the Romans.
iii. Herod was the king at this time and also this was the period where the birth
of Jesus Christ happened. Due to the brutal treatment to Judaism there were

revolts at the time and the populace were in a need of a savior which was
prophesized in their texts.

The Formation of the Jewish Legal System through the times

MOSES:
I.

II.

Role in the formation of the legal system

a. From being captives and slaves of the Egyptians, they had an Exodus, they needed
a new home and Moses lead them out of Egypt
b. Being the one who lead them out of Egypt, Moses also had the responsibility to
Judge his fellow Jews on different matters during their 40 year exodus.
c. Written Law: Tablets of Moses from God at first, Pentateuch/Talmud/Torah
i. First written law of the Jews were the 10 commandments tablets etched by
Moses as inspired by God
ii. Prior to 500AD all were in oral form, they were eventually written.
Midrash- searching of the Scriptures after the Babylonian exile
Methods of study of the scriptures:
o Peshat- simple interpretation of words and things
o Remes- to hint, to find meanings hidden in apparently superfluous or
meaningless words and signs
o Derush- homiletic, prophetical, sermon-like approach
o Sod- mysterious metaphysical, theosophical approach; meaning given
through inspiration or revalation
Midrash produced the Talmud
a. Talmud- the common law equivalent in relation to the Torah as the constitution
i. Interspersed with poetical, religious and philosophical digressions
ii. 2 separate Talmuds
Palestine/Jerusalem version
Babylonian version
iii. Talmud were observed to have absorbed materials from different cultures
where the Jews were exposed
iv. Compilation by multiple sages in the thousands of years
v. The legal part of the Talmud is called Halachah
vi. Prophetical, religious, historical and ethical aspects is called Haggadah
b. Jehudah finally compiled the Mishnah (exposition of the law of Moses) in 200AD
i. Mishnah the code for practical human guidance and government
ii. Humane and liberal in intent
Law is not always meant to be observed to the letter, particularly
when rights of one man against another are involved.
c. How the Talmud was used:
i. There was a need from the Hebrews to see the laws an inspired or
commanded by God that the Jews developed a system of interpretation
where wise men (commentators) were permitted to interpret the use of
collateral material such as tradition, lore, historical incident and previously
existing comment as founded in the reasoning that it is from the constitution:
the Mosaic Code
d. Mishnah
i. Distinction between civil law and criminal law
Civil law:

a. 3 judges were required

b. Majority verdict of one
c. Anyone can be a witness
Criminal law
a. 23 judges
e. School of repeaters
i. Scribes did all the work for the compilation of the Talmud from the time of the
return from Babylon to 220 BC. And from 220BC to 220 AD during the
Persian, Egyptian, Syrian and Roman rule.
ii. They were the ones who taught in synagogues and instructed the people
iii. The school thrived and grew despite all that happened in this time.
iv. They were led by a president (Nasi) and a Vice President (Ab Beth Din)
v. Eventually became the Sanhedrin which is the highest tribunal both civil and
religious.
Sanhedrin:
a. 71 members chosen among great family and from priests
b. Requirements:
i. Learned in law
ii. Know the whole body of Jewish learning, religious,
legal and lay
iii. Understanding in Talmudic interpretation
iv. Linguist: knows the languages of neighboring nations
v. Historian and geography of neighboring nations
vi. Other schools of higher learning
Possibly using a somewhat Socratic method
a. Discussion method used by some present-day law schools
f. Election: none, God chooses the next of their leaders, Joshua succeeded Moses
after Moses death.
g. Penal system:
i. The 10 commandments
Importance to having One God
Sacredness of Gods Name and Image
The 5th and 7th commandment focusing on the Family as it is an
important unit in the Jewish culture, religion and society
6 and 8 commandment as to penal laws
9th for legal procedure
10 covetousness, source of property rights/laws
ii. Vengeance
primitive tribal law
a. There were a time when revenge was not allowed to go too
far
b. Beginning of judicial system as to how much revenge were
you entitled to
c. Entitled vengeance not only to persons but to things (i.e. if ox
gored man
d. Concept of damages probably came from this where instead
of delivering the object, the owner can make a stipulated
payment, and though limitations to this are murder and rape
where vengeance is still seek by the aggrieved party.
e. Function of the court
i. Limited to being the medium for the limit of blood feud

ii. Served more as a peacemaker

iii. Decisions can still be ignored or violated
f. As the chief that served as the court grew more powerful,
the judgment became less likely to be ignored.
g. kings Peace developed where the king or the chief had the
right to maintain peace within his realm
i. Though peace was still the intent and not to punish
Feuds were sometimes left for the Gods to decide
a. Trial by battle
b. Trial by ordeal
i. Save the righteous and punish the evil doer
Capital punishment is practically abolished
h. Legal Procedure
i. Jews were allowed to sue if they have a tort (an injury to a person or his
property) which is written in the tort
Torts like:
a. Hitting someone
b. Trespassing
c. Libel or slander
Though when the tort was made by beast, it is not the owner who will
be punished, but the beast.
a. But if the beast is known to be dangerous, owner is
accountable *people first understand the concept of
negligence
i. Rights
i. Among the Jews the father is king in his home, able to rule his wife,
descendants and slaves
Everyone is considered as property of the father of the clan.
Slavery laws were benign
a. Slaves should be freed after 6 years
ii. Property rights became that of a moral rule
Property more likely to be protected as economy expanded
iii. Rights as to accidental killing, they were given cities of refuge
iv. Criminal rights provided many opportunities to acquit the suspected offender
Only one punishment can be given, no matter how many times the
person did the act
Judges were required to fast a full day before rendering judgment
Opportunities were given to provide additional evidence for the
defendant
At the entrance to the court, where judgment had been rendered, a
signalman was stationed, after a capital sentence had been uttered
and execution was to take place. Within sight was a horseman ready
to take to the executioners the message that a new witness had
appeared or new evidence had been discovered.
Convicted criminal himself was permitted to stop 4 times on the way
to the place of execution to offer new arguments in his defense or to
produce new evidence.
v. Jews were often restricted to own land so they resulted to trading and
banking
First commercial bankers of Europe

 Middlemen
Traveling merchants
vi. Land property rights
Lands were owned by God
Usury forbidden because it endangered the economic independence
a. Lending money at any interest was considered usury
Lands were divided among clans and families to be worked on
Every 7 years (sabbatical years) lands were given rest and were
redistributed
a. Considered as righting wrongs
Ancient Greeks
Sparta
-

One of the city-states in Ancient Greece and embodied principles antithetical to that of
Athens
Military-oriented state
Did not have written laws
Lycurgus was the lawgiver

Members
-

There are several classes of people in Sparta, and here are the three most distinct
classifications:
Spartiates/spartans are the warrior class
Perioikoi are the free men, the artisans and craftsmen
Helots are the serfs, often obtained from conquered territories

Government
The legislature of Sparta was bicameral

The senate body is called the Gerousia

-

It is composed of twenty-eight men over 60 years old from a limited range of noble families,
plus Spartas two kings
Only those with military experience can be elected
Election through loudest applause
Jurisdiction included deciding cases such as homicide
Exclusive power to initiate legislation

The assembly was called the Appella

-

It is composed of men over 30 years old, also elected in the same way as was the Gerousia
In theory the more important executive and legislative body, but in reality was powerless
against the Gerousia
Could not initiate legislation, could only accept or reject laws

Krypteia
-

Secret police employed by the Spartan government

Can punish helots suspected of insubordination

Ephors
-

The local officials elected annually, multiple terms are not allowed
Elected from the whole body of Spartiates
have power over the greatest matters

State Policies
The state policies of Sparta center on:
-

Military proficiency
Elimination of luxury (i.e. excessively decorated furniture was prohibited)
Equal division of land
Preventing excessive wealth accumulation
Discouraging of trade by forbidding use of gold and silver as currency

Agoge
-

The institution responsible for the inculcation of the trademark Spartan military style
A public training school
Children taken away from parents at an early age and sent to the Agoge
Emphasized order and discipline in harsh, war-like conditions

Marriage
-

Marriage was near-compulsory

However, the men were not permitted to live with wife until 30
Propagation encouraged by state with the following rules:
No children must permit wife to procreate with another man
Three boys becomes exempt from military service
Four boys freedom from all duties/burdens to the state

The Big Three of Greek Philosophy: Socrates, Plato and Aristotle

Socrates
-

Socrates as a gadfly, the annoying

Employed the Socratic Method (cross-examination)
Said method involves subjecting of statements and theories to a critical questioning and
analysis and disproving faulty arguments

He advocated antidemocratic theories of the state, preferring rule of the learned instead of
rule of the mob

Plato
-

Founded the Academy, a school for various disciplines of the men of that day, which included
a legislative drafting bureau
Added the establishment of sound premises alongside disproving faulty arguments,
improving on Socrates method
Like his teacher, he was antidemocratic in his principles, and was obsessed with Spartan
totalitarianism
Preferred rulers of the state as an educated and cultured aristocracy

Aristotle
-

Systematized logic using syllogisms

Like the two great thinkers before him, advocated an educated and cultured class to run
state matters
Credited with the seminal concept of natural law

Ancient Romans
Twelve Tables
-

Codified laws that stood at the foundation of Roman Law.

Served as the foundation of Roman Law.
Inscribed in bronze, posted in the Public Forum
Divided into three parts
o Concerns of Religion
o Rights of the Public
o Private Persons

Election to Power
-

Kingdom: succession
Republic: Election of two Consuls
o 36 at least years of age
o 1 year term
o Veto power over the other
o 367 BC, one Plebian
Empire: Dictatorship
o Hereditary, as long as there is a suitable candidate.

Legal Procedure

Contracts treated as sacred

Sanctioned by religious rituals

Penal Laws
-

o Base on degree of violence

Improvidentia
Culpa lata
Culpa levis

Rights
-

Ius suffragiorum (right to vote)

Ius honorum (The right to stand for civil or public office)
Ius commercii (right to make contracts)
Ius gentium (a concept of human rights rather than rights attached to citizenship)
Ius connubii (right to marry)
Ius migrationis (the right to preserve one's level of citizenship upon relocation to a polis of
comparable status)

Womens Right
-

Freeborn women were citizens

o Could not vote or hold office
o Could own businesses, own property, and obtain a divorce.