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DK LONDON DK DELHI SANDSSOLPUUTBILOINSSHING SENIOR ART EDITOR SENIOR ART EDITOR EDITORIAL PARTNERS Gillian Andrews Chhaya Sajwan David and Silvia Tombesi-Walton ART EDITOR SENIOR EDITORS Anukriti Arora DESIGN PARTNER Camilla Hallinan, Laura Sandford Simon Murrell ASSISTANT ART EDITORS EDITORS Ankita Das, Adhithi Priya First American Edition, 2020 John Andrews, Alethea Doran, SENIOR EDITOR Published in the United States by DK Publishing Annelise Evans, Richard Gilbert, Arani Sinha 1450 Broadway, Suite 801, New York, NY 10018 Lydia Halliday, Tim Harris, Victoria Pyke, EDITORS Jess Unwin, Rachel Warren Chadd Copyright © 2020 Dorling Kindersley Limited Rishi Bryan, Nandini D. Tripathy DK, a Division of Penguin Random House LLC US EDITOR ASSISTANT EDITOR Kayla Dugger Ankita Gupta 20 21 22 23 24 10 9 8 7 6 5 4 3 2 1 ILLUSTRATIONS MANAGING EDITOR 001–316472–Sep/2020 James Graham Soma B. Chowdhury JACKET DESIGN All rights reserved. DEVELOPMENT MANAGER SENIOR MANAGING ART EDITOR Without limiting the rights under the copyright Sophia MTT Arunesh Talapatra reserved above, no part of this publication may PRODUCER, PRE-PRODUCTION Gillian Reid SENIOR JACKET DESIGNER be reproduced, stored in or introduced into a SENIOR PRODUCER Suhita Dharamjit retrieval system, or transmitted, in any form, or DTP DESIGNERS Rachel Ng by any means (electronic, mechanical, SENIOR MANAGING ART EDITOR Ashok Kumar, Manish Upreti, Anita Yadav photocopying, recording, or otherwise), without PROJECT PICTURE RESEARCHER Lee Griffiths Aditya Katyal the prior written permission of the copyright MANAGING EDITOR PICTURE RESEARCH MANAGER owner. Taiyaba Khatoon Gareth Jones PRE-PRODUCTION MANAGERS Published in Great Britain by Dorling Kindersley ASSOCIATE PUBLISHING DIRECTOR Balwant Singh, Sunil Sharma Limited PRODUCTION MANAGER Liz Wheeler Pankaj Sharma A catalog record for this book ART DIRECTOR is available from the Library of Congress. STUDIO 8original styling by Karen Self ISBN 978-0-7440-2041-0 DESIGN DIRECTOR Printed in the United Arab Emirates Philip Ormerod PUBLISHING DIRECTOR For the curious Jonathan Metcalf www.dk.com

CONTRIBUTORS PAUL MITCHELL, CONSULTANT EDITOR THOMAS CUSSANS Paul Mitchell is Professor of Laws at University College Thomas Cussans, writer and historian, has contributed to London, UK, specializing in legal history, Roman law, numerous historical works. They include DK’s Timelines of and the current law of obligations. His books include The World History, History Year by Year, and History: The Ultimate Making of the Modern Law of Defamation and A History Visual Guide. He was previously the publisher of The Times of Tort Law 1900–1950; he is also an editor of Chitty on History of the World and The Times Atlas of European History. Contracts and Goff and Jones on Unjust Enrichment. Among his other works are The Times Kings and Queens of the British Isles and The Holocaust. PETER CHRISP JOHN FARNDON Peter Chrisp is a professional author with a particular interest in ancient history. He has written more than John Farndon is the author of many books on the history 90 books, 25 of them for DK. His titles include Ancient of science and ideas, and on contemporary issues. He also Greece, Ancient Rome, Prehistory, Crime and writes widely on science and environmental issues and has Punishment, and Chrisp’s Crime Miscellany. been shortlisted five times for the Royal Society’s Young People’s Science Book Prize. CLAIRE COCK-STARKEY PHILIP PARKER Claire Cock-Starkey is a writer and an editor with a special interest in Victorian history and current Philip Parker is a historian specializing in the classical and affairs. She has written 12 books, including The medieval world. He is the author of the DK Companion Guide Book Lovers’ Miscellany, The Real McCoy and 149 to World History, The Empire Stops Here: A Journey Around Other Eponyms, and Seeing the Bigger Picture: the Frontiers of the Roman Empire, and A History of Britain Global Infographics. in Maps, and was a contributor to DK’s The History Book. He was previously a diplomat working on the UK’s relations FREDERICK COWELL with Greece and Cyprus and holds a diploma in international relations from Johns Hopkins University’s School of Advanced Frederick Cowell lectures in tort law and human rights International Studies. law at Birkbeck, University of London. His research interests include the legal obligations of international MARCUS WEEKS human rights organizations, the history of the European Convention on Human Rights, and the politics of the Marcus Weeks studied philosophy and worked as a International Criminal Court. He has worked as a legal teacher before embarking on a career as an author. He has adviser for nongovernmental organizations, specializing contributed to many books on the arts, humanities, and in international human rights law. popular sciences.

6 CONTENTS 10 INTRODUCTION 32 True law is right reason 64 Speak the truth Aristotle and natural law The Assize of Clarendon THE BEGINNINGS OF LAW 34 A person is liable for 66 To none will we deny wrongful damage or delay right or justice 2100 bce–500 ce The Lex Aquilia Magna Carta 18 Observe the words 35 The sacred laws 72 Every law is ordained of righteousness of the castes to the common good Early legal codes The Arthashastra and the Thomas Aquinas Manusmriti 20 This shall be an 74 The merchant’s everlasting statute 36 We cultivate the virtue companion unto you of justice The Lex Mercatoria The Ten Commandments Ulpian the Jurist and Mosaic law EMPIRE AND 38 Justice, truth, and peace ENLIGHTENMENT 24 The Mandate of Heaven The Mishnah and the Zhou dynasty China Talmud 1470–1800 25 The law of the sea 42 Walk in the way of 82 Protection for any The Lex Rhodia righteousness ingenious device The origins of canon law The Venetian Patent Statute 26 The art of ruling well Confucianism, Daoism, LAW IN THE 86 A boundary from and Legalism MIDDLE AGES pole to pole The Treaty of Tordesillas 30 This shall be binding 500–1470 by law 88 All governors shall keep The Twelve Tables 52 Is God a just judge? every poor person Trial by ordeal and combat The Poor Laws 31 Law is master of the rulers 54 A divine law and a Plato’s Laws traced-out way The Koran 58 No yard of land was left out The Domesday Book 60 An accusation cannot be repeated Gratian’s Decretum

7 92 Peace is glorious 109 The most important 148 The damages should and advantageous book in the history of be fairly considered Grotius’s On the Law of common law Hadley v. Baxendale War and Peace Blackstone’s Commentaries 150 Who can condemn the 93 Thy grave error and 110 This Constitution shall woman in this book? transgression be the supreme Law of The Madame Bovary trial The trial of Galileo Galilei the Land The US Constitution and 151 To take a life is revenge, 94 A turning point in Bill of Rights not justice the history of nations The abolition of the The Peace of Westphalia 118 Men are born and remain death penalty free and equal in rights 96 Tyrant, traitor, murderer The Declaration of the 152 Even war has rules The trial of Charles I Rights of Man The Geneva Conventions 98 All slaves shall be held THE RISE OF THE 156 The rights of to be real estate RULE OF LAW every worker Slave codes The Trade Union Act 1800–1945 102 The rights and liberties 160 The Nordic nations are of the subject 124 Justice under the branches of a tree The Glorious Revolution Constitution Scandinavian cooperation and the English Bill of Rights The US Supreme Court and judicial review 162 Evil customs of the past 104 Thou shalt not suffer shall be broken off a witch to live 130 Every Frenchman shall The Charter Oath The Salem witch trials enjoy civil rights The Napoleonic Code 163 It is justifiable, but not 106 The author shall have the for detestable curiosity sole right of printing 132 Let the oppressed The “Vivisection Act” The Statute of Anne go free The Abolition of the Slave 164 The state will care for the 108 A grand society Trade Act victims of industry of nations The Workers’ Accident Vattel’s The Law of Nations 140 Purity, activity, vigilance, Insurance System and discretion The Metropolitan Police Act 144 All contracts by way of gaming shall be null and void The Gaming Act 146 Bound to do no injury to fellow-creatures The Cruelty to Animals Act

8 192 We want a peace 234 A court with which will be just unparalleled power The Treaty of Versailles The European Court of Justice 194 A duty of care 242 The sister nations have Donoghue v. Stevenson grown together The Helsinki Treaty 168 No necessity could 196 Deadly weapons must justify killing be regulated 244 Let us step back from The Queen v. Dudley The National Firearms Act the shadows of war and Stephens The Partial Test Ban Treaty 197 From a democracy to 169 Where we are is a dictatorship 248 My children will not be our property The Nuremberg Laws judged by the color of The St. Catherine’s their skin Milling case A NEW The Civil Rights Act INTERNATIONAL 170 Free and unfettered ORDER 254 The right to competition remain silent The Sherman Antitrust Act 1945–1980 Miranda v. Arizona 174 The laws, rights, and 202 New evils require 256 The foundation of duties of war new remedies freedom, justice, The Hague Conventions The Nuremberg trials and peace The International Covenant 178 A separate legal 210 Genocide is a violation of on Civil and Political Rights personality the laws of humanity Salomon v. Salomon & Co. Ltd. The Genocide Convention 258 End the blame game No-fault divorce 180 Factories are literally 212 The architects of the death traps better world 259 The safety and welfare The Triangle Shirtwaist The United Nations and of witnesses Factory fire International Court of Justice The Federal Witness Protection Program 184 The war against 220 A safer world monopoly INTERPOL The Federal Trade Commission 222 All are equal before the law 186 Illegal evidence is fruit The Universal Declaration of the poisonous tree of Human Rights The exclusionary rule 230 The right to liberty 188 Power is the ballot and security The Representation of the The European Convention People Act on Human Rights 190 He shall not eat who does not work The Russian Constitution

9 260 The right of a woman 276 A world free of chemical 296 Compassion is to decide weapons not a crime Roe v. Wade The Chemical Weapons Euthanasia Convention 264 Nothing is more priceless 298 The cause of all humanity than animal life 278 To open trade for the The International The Endangered Species Act benefit of all Criminal Court The World Trade Organization LAW IN THE 304 Doping destroys fair play MODERN AGE 284 When does life begin? The International Convention The Dickey–Wicker Against Doping in Sport 1980–PRESENT Amendment 305 The battle against 270 Boundless, priceless, 285 Every parent should have climate change and threatened the right to know The Kyoto Protocol The World Network of Megan’s Law Biosphere Reserves 306 It’s sport against 286 If creativity is a field, these people 272 It is to justice what the copyright is a fence The Match-Fixing Task Force telescope is for the stars The WIPO Copyright Treaty DNA testing 308 The right to be forgotten 288 The landmine does not Google Spain v. AEPD and 274 Empower the watchdogs recognize peace Mario Costeja González of wrongdoing The Anti-Personnel Mine The Whistleblower Ban Convention 310 A free and open internet Protection Act The Open Internet Order 290 Patients, not criminals 275 Together we have The Portuguese drug strategy 314 It’s not about the money. overcome. Together It is about equality we shall overcome 292 Marriage should be Equal pay certification The Americans with open to all Disabilities Act Same-sex marriage 316 DIRECTORY 324 GLOSSARY 328 INDEX 335 QUOTE ATTRIBUTIONS 336 ACKNOWLEDGMENTS

INTRODU

CTION

12 INTRODUCTION L aw is much more than a New civilizations established legal A large proportion of the law exists system of rules governing frameworks for laws with procedures to protect members of society and the conduct of members of and officials to ensure compliance. their property, and the enforcement society. Its rich complexity stems Their philosophers debated the of the law acts as a deterrent, as from its history, how it was created nature of justice and shaped well as ensuring justice. As trade and administered, its function, the political ideas. In Athens, the developed, civil laws were drawn way it operates, and its effects. ancient Greek city which practiced up to govern transactions and the the earliest democracy, reason and a conduct of businesses. To facilitate Around 10,000 years ago, as concept of justice as a virtue guided trade between nations, the earliest people began to gather in ever larger Plato’s and Aristotle’s theories of known maritime law—the Lex settlements, they had to find new law. The early Roman Republic’s Rhodia—evolved during Greece’s ways to live and work together Twelve Tables explained laws and Classical Age (500 bce–300 bce). peacefully. Clear laws were needed spelled out citizens’ rights. In China, to settle disputes. The earliest between 476 bce and 221 bce, Punishments and rights known law code—dating from scholars proposed radically different Long after the Greek and Roman around 2100 bce and set down by systems—Daoism, Confucianism, civilizations declined, barbaric order of Ur-Nammu, king of Ur, a city and Legalism—ranging in nature forms of justice existed in medieval in Mesopotamia (now Iraq)—listed from laissez-faire to authoritarian. Europe. In the absence of evidence commensurate punishments for Each had a lasting impact. or credible witnesses, alleged crimes. Murder, for instance, was offenders (usually the poor) could punishable by death—an early bid, The end of law is not be tried by ordeal, their innocence echoed in many later law codes, to to abolish or restrain, gauged by how well they recovered ensure that justice fit the offense. but to preserve and from physical ordeals, such as scalding or burning. Some disputes From the earliest times, rulers enlarge freedom. were settled by trial by combat: a invoked their gods to give laws John Locke physical fight. authority. The Jewish Torah enshrined laws by tradition given English philosopher Trial by ordeal was banned by to Moses by God. Around 1046 bce, (1632–1704) a 13th-century papal decree; trial King Wu of the Chinese Zhou by combat persisted much longer. dynasty similarly claimed a divine Legal systems changed as people mandate for his rule. In the 4th beyond a small ruling elite became century ce, Christianity’s Catholic richer and better educated. Apart canon law developed into a legal from the poorest, ordinary citizens system that has influenced modern began to acquire greater rights and civil law and common law, while protections. Chapter 39 of Magna Islamic Sharia law is based on the Carta, sealed in 1215, established word of Allah in the Koran.

INTRODUCTION 13 the right to justice of every free across the globe, prompting better legally binding regulations regarding man, a right later enshrined in the and safer working conditions. In matters such as trade, human rights, Habeas Corpus Act of 1679. In Germany, new laws compelling and international crime. INTERPOL England and Wales, poverty, too, employers to provide sickness collaborates with the police forces was addressed in the Poor Law Act funds for injured workers were of more than 190 countries to of 1601, which provided a very passed in 1883 and 1884. tackle organized crime, terrorism, basic safety net for those at the and cybercrime. A newer area of bottom of society. To accept the need for new or concern is how measures to protect revised laws, governments have to the environment can be enforced. While criminal, property, and be open to change. In more than commerce laws have existed since half of countries with populations This book presents, in roughly ancient times and been steadily of at least 500,000, some form of chronological order, some of the big adjusted and refined, legislation democratic government has now ideas that have influenced the law. concerning civil and human rights evolved, with separate branches for In each case, it describes the social had to be fought for and even today the creation, administration, and and political climate that produced is not universally adopted. The enforcement of the law by the them, people who championed them, English Bill of Rights (1688–1689) legislature, executive, and judiciary and the role these concepts have that ensured the power of an elected respectively. Separating the powers played in shaping the societies they parliament came in the wake of the in this way guards against the appeared in and others, too. ■ English Civil War, the execution of abuse of power and permits each Charles I, and the absolute rule of branch to check and balance the Laws must be justified both Charles II and James II. The powers of the others. by something more than Napoleonic Code of 1804 was built the will of the majority. around key ideas of The Declaration International lawmaking of the Rights of Man and of the Global commerce in both goods They must rest on the Citizen that emerged at the start and services has greatly increased eternal foundation of the French Revolution. It took a in the past century, requiring rafts of righteousness. century of campaigning to abolish of new international legislation. Calvin Coolidge most slavery, and bloody protests Nations also have to work together to secure women’s voting rights. to find legal measures to combat 30th US president (1923–1929) spiraling international crime. As the Industrial Revolution Organizations such as the United took shape in the 18th and 19th Nations, established to preserve centuries, workers began to peace after World War II, and trading recognize their collective muscle. blocs such as the European Union The UK’s Trade Union Act of 1871 have extended their scope to found gave workers a political voice, and institutions capable of making trade unionism gained strength

OTHFELBAWEG 2100 BCE–500CE

INNINGS

16 INTRODUCTION Ur-Nammu, king of According to rabbinic Greek merchants from Rhodes, The first law code Ur, formulates the tradition, Moses receives having established long-range of the newly established the Torah, the foundation trade links, develop a code of earliest known of Judaic law, from God Roman Republic written law code. international maritime is inscribed on on Mount Sinai. law widely adopted across 12 bronze tablets the Mediterranean. displayed in the Forum. C. 2100 BCE C. 1300 BCE 500–300 BCE C. 450 BCE C. 1750 BCE C. 1046 BCE 476–221 BCE King Hammurabi has a list King Wu establishes During China’s Warring of 282 laws inscribed on the Zhou dynasty in States period, legal China, claiming the a stele in the center “Mandate of Heaven” systems emerge based of Babylon. on Confucianism, for his rule. Daoism, and Legalism. H umans are a social species. These laid the foundations of administered. To trade with each Prehistoric peoples lived in Mosaic law. The Torah and the other, nations also needed mutually kinship groups and tribes later Talmud (a written collection accepted rules of commerce. The ruled by elders. Over millennia, of Jewish oral traditions) are the island of Rhodes, a major mercantile as civilizations evolved, different central sources of Jewish law. power in the Mediterranean, gave systems of government emerged. its name to the Lex Rhodia, which Rules of conduct, initially based In China, too, rulers claimed evolved from around 500 bce to on customs and religious beliefs, they had a divine right to govern. become the first widely recognized became formalized, and laws were In about 1046 bce, when Wu, first code of maritime law. codified. In Mesopotamia (now Iraq), king of the Western Zhou dynasty, the world’s first civilization, Ur- overthrew the ruling Shang As nations became increasingly Nammu, king of Ur, issued the first dynasty, he declared he had the sophisticated, their thinkers began known law code 4,000 years ago. “Mandate of Heaven,” which could to consider how their societies be withdrawn if he failed in his might be better organized. In Religion played a major role in sacred duty to rule justly. China, from the 5th century bce, early civilizations and inevitably three radically different systems of influenced lawmaking. Laws— Laws for complex societies governing emerged. Confucianism especially those governing morality Civilizations across the ancient proposed a return to traditional or religious observance—were widely world, in Mesopotamia, Egypt, values of virtue and respect, led by believed to have divine authority. India, China, Greece, and Rome, example. Daoism advocated the According to Jewish tradition, God established legal frameworks to framing of laws in harmony with gave Moses the Torah, the first five organize their increasingly large nature rather than by a ruler’s books of the Hebrew Bible, which and complex societies and to will, while Legalism imposed include the Ten Commandments. ensure the rule of law was properly authoritarian rule, with harsh

THE BEGINNINGS OF LAW 17 Aristotle outlines his The customary laws Jurist Domitius theory of justice based of India are described Ulpianus (Ulpian) writes in two Sanskrit works, more than 200 influential on the idea that laws the Arthashastra and should conform to natural commentaries and law, which is universal the Manusmriti. treatises on Roman law. and unchanging. C. 340 BCE 2ND CENTURY BCE 70 CE 212–222 CE 348 BCE 286 BCE C. 313 CE In Laws, Plato proposes The Roman tribune After the Second The Edict of Milan an initial dictatorship Aquilius proposes the Temple of Jerusalem decriminalizes Christian Lex Aquilia to provide is destroyed, Jewish guided by a wise financial compensation worship in the Roman legislator for city-states for wrongful damage people respond with Empire, paving the way for before elected officials closer observation of to property. the Torah’s laws. the first systematic can take charge. collections of canon law. punishment for offenses. In the Aristotle advocated a form of the Roman Empire expanded, the 2nd century bce, after more than constitutional government by laws were revised by jurists such 250 years of conflict during the the people and believed that as Ulpian but formed the basis of Warring States period, a Legalist legislation must be in harmony Roman law for a thousand years. dynasty finally established order, with natural law. although its severity was soon In c.313ce, Emperor Constantine, discredited. Confucianism became India, by contrast, favored a a convert to Christianity, issued the the predominant ideology, albeit strictly hierarchical society divided Edict of Milan, which proclaimed reinforced with a strict code of law. into castes, as advocated in the religious tolerance throughout Arthashastra and Manusmriti of the Roman Empire, ending the From the 5th century bce, the the 2nd century bce. persecution of Christians. In 380 ce, city-state of Athens had instituted Christianity became the Empire’s a form of direct democracy, where Rome and the Church official religion, and Christian all adult citizens could participate In about 509 bce, when the Romans theologians could begin to formulate in government. But in his Republic overthrew their tyrannical king, law based on Christian teachings. and Laws, the Greek philosopher Lucius Tarquinius Superbus, they Plato argued for government by the established the Roman Republic— The early canons, derived from few—a class of “philosopher-kings” a constitutional government ruled disputes about what people should in an ideal state, or an initial by two elected consuls. In c.450bce, believe, were the foundation of dictator guided by a wise legislator. the new Republic published its first Roman Catholic canon law, the He maintained that only those written law code—the Twelve body of law that regulates the trained in philosophy were capable Tables, inscribed on 12 bronze organization of the Church and of understanding the concepts of tablets—which set out the rights codifies Christian beliefs. Canon government and justice. His pupil and duties of Roman citizens. As law influenced the development of civil law in medieval Europe. ■

18 ROWIBGOSHRETDRESVOEOUFTSHNEESS EARLY LEGAL CODES (2100 bce–1750 bce) IN CONTEXT A round 6,000 years ago in symbols etched into clay tablets. Mesopotamia (now Iraq), The earliest surviving cuneiform FOCUS the Sumerians—the world’s set of legal rules, or code, was set The first written laws first civilization—began to build down by Ur-Nammu, king of Ur, cities, such as Uruk and Ur, which around 2100 bce. Each law took the BEFORE came to be governed by an ensi form of a stated crime followed by c. 4000 bce Uruk, the world’s (king). For people who lived in its punishment—for example, “If a first city, is established in small farming settlements, the man commits a murder, that man Sumer, Mesopotamia. responsibility to avenge wrongs must be killed.” against individuals had rested on c. 3300 bce Cuneiform, the families. In cities, large numbers A much more complete code, earliest system of writing, of unrelated people needed to find compiled by Hammurabi, king of is invented in Uruk. ways of living and working together Babylon from 1792 to 1750 bce, peacefully. Laws were therefore was discovered at the start of the c. 2334 bce Sargon of Akkad, invented to resolve disputes and 20th century. It is inscribed in a Mesopotamian city-state, prevent feuds. When city-states cuneiform script on a basalt stele conquers Sumer and creates grew powerful enough to form (stone pillar) 7½ feet (2.25 m) high, the world’s first empire. the first empires, they issued laws to control peoples spread across AFTER their domain. c. 600 bce The Book of Exodus echoes Babylonian law by Keeping a record stating “eye for eye” as an Initially, laws were passed on by element of the law of Moses. word of mouth. Around 3300 bce, the Sumerians began to record c. 450 bce The legal basis for information using a writing system retaliation—lex talionis—is called cuneiform (meaning “wedge- laid out in the Roman law shaped”), which consisted of text, the Twelve Tables. The relief at the top of the basalt pillar containing Hammurabi’s legal code shows the king standing before Shamash (seated), the Mesopotamian god of justice.

THE BEGINNINGS OF LAW 19 See also: The Ten Commandments and Mosaic law 20–23 ■ The Twelve Tables 30 Judicial procedures ■ The Arthashastra and the Manusmriti 35 ■ Trial by ordeal and combat 52–53 Court cases recorded on and opens with a prologue, in which The ziggurat, a vast stepped pyramid clay tablets show how the king declares that he had been topped with a shrine, was the religious justice was administered ordered by the gods “to bring about center of Mesopotamian cities. in Mesopotamia. There were the rule of righteousness in the no formal courthouses or land, to destroy the wicked and the silver. Someone who cut off another lawyers. Accusers and evil-doers; so that the strong should person’s foot, for example, incurred accused, together with not harm the weak.” Pillars were set a fine of “ten shekels.” This idea of witnesses, appeared before up in Babylonian cities so that all financial penalty—a fine—rather an assembly of local people could see and follow the laws. than physical retaliation is closer or city elders—or a panel of to modern ideas on punishment. ■ three to six judges in more An eye for an eye serious cases—and provided Hammurabi’s laws are, like those In future time, through oral or written testimony. Like in Ur-Nammu’s code, set out as all coming generations, today, participants swore a conditional statements. Number let the king, who may solemn oath to tell the truth. 196 in its list of 282 judgments is be in the land, … not alter This could take place in a “If a man put out the eye of another public space, the king’s man, his eye shall be put out.” This the law of the land palace, or the city’s temple, principle reappeared in the books which I have given. where the accused swore of Exodus and Leviticus, as part of on a symbol of the local the Hebrew Torah, and then in The Code god. In some cases, people Roman law as lex talionis (the law of Hammurabi confessed because they of retaliation). Its purpose, however, feared angering the god was not to encourage retaliation, by swearing falsely. but to limit it to fit the offense. If a case could not be Ur-Nammu’s code had a less solved, it became a decision brutal approach to retribution for for the gods. The legal solution violent crime. Each part of the body in Hammurabi’s code was was given a value in weights of a trial by ordeal, where the accused had to leap into the Euphrates River: “If he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death.” The chief god of Babylon, Marduk (center), representing order, defeats the serpentlike sea deity Tiamat, representing evil and chaos.

20 IN CONTEXT USTAHNNTAITSETOVUSEYTHROEALULALSTBIENG FOCUS Divine law THE TEN COMMANDMENTS AND MOSAIC LAW (c. 1300 bce–6th CENTURY bce) BEFORE c. 1750 bce King Hammurabi of Babylon writes a law code. AFTER c.1207bce An inscription on granite by Pharaoh Merneptah of Egypt is the first reference to Israelites in Canaan and boasts that “Israel is laid waste.” 3rd century bce The Torah is translated into Greek, entitled Pentateuch (“five books”). c. 200 ce Rabbis in Palestine compile a written code of Jewish oral traditions, the Mishnah, which offers further guidance on interpreting the laws in the Torah. c. 350–550 ce Scholars publish the Gemara, an analysis and elucidation of the Mishnah; the two works form the Talmud. M osaic law is an ancient legal system set out in the Torah, which is the first five books of the Tanakh— the Jewish Bible, known to Christians as the Old Testament. The Torah (“instruction”) contains a great number of laws, which are presented as given directly by God to Moses, founder and lawgiver of the Jewish nation. In the legend of the Exodus, described in the Torah, Moses was ordered by God in c. 1300 bce to lead the Israelites out of enslavement in Egypt and take them to the promised land of Canaan. Moses led his people first to Mount Sinai, which he climbed, and there God gave him the Ten Commandments,

THE BEGINNINGS OF LAW 21 See also: Early legal codes 18–19 ■ The Arthashastra and the Manusmriti 35 ■ The Mishnah and the Talmud 38–41 ■ The origins of canon law 42–47 ■ The Koran 54–57 as well as many detailed laws This 17th-century painting by to show that the stories had been covering moral behavior, religious French portrait artist Philippe de shaped over time by many authors worship, and every part of daily life. Champaigne, entitled “Moses with using different vocabulary and The most important Commandment the Ten Commandments,” shows the styles. The text includes footnotes was the first: “You shall have no inscriptions on two tablets of stone. inserted by later generations to other gods before me.” The Israelites explain ancient place names and spent another 40 years in the desert Mosaic law was perceived as part point out evidence for events still before reaching Canaan, and Moses of a covenant, a formal agreement, visible “to this very day.” himself died within sight of it. between God and the Israelites. It was believed that God promised to Scholars in 19th-century protect the Israelites and give them Germany identified four types the land of Canaan if they obeyed of source material in the Torah. his laws. According to Exodus 19:5, They were termed E, J, D, and P God said, “Now if you obey me (Elohist, Jahwist, Deuteronomist, fully and keep my covenant, then and Priestly), with the earliest out of all nations you will be my material (most of Genesis, much treasured possession.” of Exodus, and some elements of Numbers) thought to come from Authors of the Torah E and J. Source E describes the The books of the Torah, written in traditions of the northern tribes and Hebrew, were thought to have been refers to God by the title “Elohim” set down by Moses himself. But, (“god”). Source J pertains mainly to from the 18th century, scholars the southern Israelite tribe of Judah developed a historical approach to and refers to God by his four-letter reading the Bible, which appeared name YHWH, assumed to be pronounced “Yahweh.” ❯❯ The five books of the Torah Genesis Exodus Leviticus Creation and the Escape from Egypt Laws on sacrifice, Israelites’ ancestry and laws, including the from Adam and Eve. Ten Commandments. priesthood, and ritual purity. Numbers Deuteronomy The Israelites’ 40 Laws on worship, crime, years in the desert and a census of and punishment, delivered by Moses the tribes. before his death.

22 THE TEN COMMANDMENTS AND MOSAIC LAW The Ten Commandments (Exodus 20) 1. You shall have 2. You shall not 3. You shall not 4. Remember the 5. Honor your no other gods make for yourself an misuse the name of Sabbath day and father and before me. idol and worship it. the Lord your God. keep it holy. your mother. 6. You shall 7. You shall not 8. You shall 9. You shall not give 10. You shall not not murder. commit adultery. not steal. false testimony against covet anything that belongs to your neighbor. your neighbor. The Book of Deuteronomy, the fifth exile: “I will put my dwelling place form, “walking in the garden in book of the Torah, is attributed to among you … I will walk among the cool of the day” (Genesis 3:8) or source D. It is associated with the you and be your God, and you will visiting Abraham in front of his tent religious reformation of King Josiah, be my people” (Leviticus 26:11–12). (Genesis 18). However, by the time who ruled the Israelite kingdom of Deuteronomy was written, God was Judah (formed after the northern and Mosaic law evolved over time, transcendent, existing beyond the southern tribes divided, in c. 930 bce) being updated in response to new created world, and Judaism was a in the 7th century bce. Josiah circumstances. Yet every new law monotheistic religion. King Josiah, centralized Jewish worship in the was presented as having been given in the course of his religious Temple in Jerusalem and enforced to Moses by God at Sinai. reformation, removed the Asherah strict monotheism. The northern statues from the Temple in kingdom, Israel, had been conquered One transcendent God Jerusalem, burned them, and by the Assyrians in 722 bce, and in The early Israelites worshipped other destroyed all the hilltop shrines. Deuteronomy, the history of Israel is Canaanite gods alongside Yahweh. rewritten as perceived from Judah. In the Torah, there are many stories Once Judaism became of Israelites worshipping Baal, the monotheistic, the earlier stories of The latest material, from source P, god of rain and fertility, and Asherah, Israelites worshipping Asherah and dates from after the Babylonian king the mother goddess. Yahweh and the Baal were interpreted as examples Nebuchadnezzar destroyed the city other gods were worshipped at of regression from Mosaic law. The and Temple of Jerusalem in 586 bce. sanctuaries (holy places), often Babylonian exile was now seen as He deported the Jewish leaders, located on hilltops. divine punishment for this. including the priests, to Babylon, and there the priests revised the The First Commandment, “You A nation of priests books of Genesis and Exodus and shall have no other gods before me,” During their exile in Babylon, the wrote Leviticus and Numbers. In the could be read to mean that other Jewish priests asserted that God Priestly stories, Yahweh was not tied deities may be worshipped, as long had commanded the Israelites to be to one place but could accompany as Yahweh is honored above them. a holy people, a nation of priests, so the Jews anywhere, including their In the stories attributed to sources that he could live among them. They J and E, Yahweh appeared in human

THE BEGINNINGS OF LAW 23 were instructed to keep themselves Speak to the entire assembly apodictic—absolute statements of separate from their Babylonian of Israel and say to them: right and wrong, such as “You shall neighbors by observing strict rules Be holy, because I, not murder.” Even so, the Mosaic of diet and cleanliness. (The Hebrew the Lord your God, code included many laws that word qadosh, translated as “holy,” am holy. resembled Mesopotamian and literally means “separate.”) It was Leviticus 19:1–2 Babylonian laws. For example, law common in the ancient world for 251 in Hammurabi’s code states, “If priests to observe rules of purity. hyssop, and a live bird; dip them an ox be a goring ox, and it shown Egyptian priests, for example, had into the blood of a sacrificed bird that he is a gorer, and [the owner] to bathe in cold water four times a and some fresh water; and sprinkle do not bind his horns, or fasten the day and wear papyrus sandals and the house seven times. “Then he is ox up, and the ox gore a free-born linen rather than leather or wool. But to release the live bird in the open man and kill him, the owner shall the idea that a whole nation should fields outside the town. In this way pay one-half a mina in money.” follow such laws was unique. he will make atonement for the Exodus 21:29–30 says that if a bull house, and it will be clean.” “has had the habit of goring and The Jewish rules and rituals are the owner has been warned but has described in detail. Leviticus 11:47 Absolute truth not kept it penned up and it kills a commands the people to distinguish Earlier ancient law codes, such man or woman, the bull is to be “between the unclean and the clean, as the Code of Hammurabi, were stoned and its owner also is to be between living creatures that may casuistic—describing procedure in put to death. However … the owner be eaten and those that may not be particular cases, from which general may redeem his life by the payment eaten.” Pork, shellfish, and many principles were derived. In contrast, of whatever is demanded.” other foods were forbidden. Those the Ten Commandments were animals that were permitted could Although Mesopotamian kings be eaten only if they were ritually claimed to rule on behalf of gods, slaughtered and the blood removed. they never claimed that their gods According to Leviticus 11:39, “If an were themselves the authors of the animal that you are allowed to eat laws. To break a law was to commit dies, anyone who touches its carcass an offense against a fellow human, will be unclean till evening.” who might choose to pardon the offender. But breaking a law in the Leviticus 14:48–53 describes an Torah was different: it was not just elaborate ceremony to purify a house an offense against a fellow human, with mold on the walls. A priest it was also a sin against God. ■ should take cedar wood, scarlet yarn, The Torah scroll Reading from the Torah scroll is The scroll that contains the text The scroll is kept in a richly part of the ritual of Jewish prayers. It of the Torah—including the laws ornamented cabinet called the takes place on certain days, including given by God to Moses—is the Torah ark. The holiest part of the Sabbath and Jewish holidays. most sacred object in every the synagogue and the focal Jewish synagogue. Each scroll, point of prayer, this is built on or Sefer Torah (sefer means the wall facing Jerusalem. “book” or “written document”), is handwritten on special Passages from the Torah scroll parchment using a traditional are read out in the synagogue, quill or reed. The text contains usually several times a week. 304,805 Hebrew letters, which Selected sections are read every have to be written perfectly by Sabbath morning, chosen so that a trained scribe. A single the entire Torah is read over the mistake would invalidate course of a year. The end of this the entire scroll. annual cycle is marked by the festival of Simchat Torah.

24 OTHFEHMEAAVNEDNATE ZHOU DYNASTY CHINA (c. 1046 bce–256 bce) IN CONTEXT A round 1046bce, King is described in the earliest Zhou Wu of the state of Zhou documents. In the Kang Gao FOCUS overthrew the last king (Announcement to the Prince of The right to rule of the Shang dynasty, which had Kang), attributed to Wu, the king governed China for five centuries. gives legal advice to Feng, his BEFORE To justify his rebellion, the founder younger brother. Feng had been c. 1600–c. 1046 bce The of the new Zhou dynasty appealed appointed to govern a region of Shang, the first Chinese to a concept called tianming Zhou territory. Wu warns his dynasty, rules over much of (“Mandate of Heaven”). Wu argued brother not to let punishments eastern China. Shang kings that a king could only govern if he “be warped to agree with [your] create the first Chinese laws. was favored by heaven. He said own inclinations” and tells him Crimes are punished with the that Shang kings had neglected to revere the laws. ■ death penalty, mutilation, or their sacred duties and ruled imprisonment with hard labor. corruptly, so heaven would transfer The Mandate is not its mandate to another dynasty. easy to keep; may it AFTER not end in your persons. 770–476 bce Zhou dynastic Shang kings had derived their Display and make bright power is weakened as local royal authority from their supposed your good fame … rulers compete for supremacy. ability to communicate with their Ode on King Wen ancestors through divination. They 476–221 bce Zhou China did this by interpreting cracks made King Wen (1152–1056bce) was breaks up into seven warring in bones and turtle shells. King Wu King Wu’s father states, but Zhou kings and the rulers who succeeded him, continue to play a ritual role including those of later dynasties, until the final king, Nan, is now used the Mandate of Heaven deposed in 256 bce. to justify their rule. 221 bce The Qin state The duty of kings triumphs, and China is united Zhou kings believed that they had by Qin Shi Huang, the first a duty to rule justly or they risked emperor of the Qin dynasty. losing heaven’s mandate. This duty See also: Early legal codes 18–19 ■ Confucianism, Daoism, and Legalism 26–29 ■ Magna Carta 66–71 ■ The trial of Charles I 96–97

THE BEGINNINGS OF LAW 25 OTHFETHLEAWSEA THE LEX RHODIA (500 bce–300 bce) IN CONTEXT T he Lex Rhodia (Law of colonies, from Spain to the Black Rhodes) is the earliest Sea. It also influenced Roman law FOCUS known code of maritime and provided an agreed accepted Maritime law law. It developed during Greece’s method for resolving maritime Classical Age (500 bce–300 bce). The disputes across the Mediterranean. BEFORE Greek island of Rhodes was one of 900–500 bce Greeks from the wealthiest seafaring states of the Law of jettison the island of Rhodes establish eastern Mediterranean. The sea law One part of the code that survives, long-range trade links across was so comprehensive that it was in Emperor Justinian’s Digest the Mediterranean Sea and adopted by other Greek states and (533 ce), concerns the jettison of establish colonies in Sicily cargo by ships in distress and and Lycia (western Turkey). states that, “ … if the cargo has been jettisoned in order to lighten a ship, AFTER the sacrifice for the common good c. 408 bce The three city-states must be made good by common of Rhodes—Lindos, Ialyssos, contribution.” This principle of and Camirus—unite as one sharing losses, called “general federal state. average,” still applies in maritime law. Such was the prestige of the 146 bce–44 ce The Romans Lex Rhodia that when the Byzantine conquer all the lands around Empire issued a new maritime the Mediterranean Sea, code in c. 700 ce, it was called creating a single state, which Nomos Rhodion Nautikos is subject to Roman law. (Rhodian Sea Law). ■ 533 ce Byzantine Emperor The Colossus of Rhodes was one Justinian I’s summary of of the Seven Wonders of the Ancient Roman law, the Digest, is World. Erected in 280 bce, this huge published. statue of the sun god Helios greeted sailors entering the harbor at Rhodes. c. 700 ce Nomos Rhodion See also: The Lex Aquilia 34 ■ Ulpian the Jurist 36–37 ■ The Lex Mercatoria 74–77 Nautikos (Rhodian Sea Law) is ■ The World Trade Organization 278–283 issued. It remains influential until the 12th or 13th century.

26 IN CONTEXT RTHUELIANRGTWOEFLL FOCUS Law and philosophy CONFUCIANISM, DAOISM, AND LEGALISM (476 bce–221 bce) BEFORE c. 1046–771 bce Kings of the Western Zhou dynasty rule a feudal state, in which regional lords govern on their behalf. 771–476 bce In the Spring and Autumn period, Zhou kings lose control as regional states fight among themselves. Bigger states conquer smaller ones until only seven are left: Chu, Han, Qi, Qin, Wei, Yan, and Zhao. AFTER 221 bce China is unified by the Qin dynasty (221–206 bce), which imposes Legalism. 141 bce The Han dynasty (206 bce–220 ce) makes Confucianism the state philosophy and discredits Legalism. D uring China’s Warring States period (476–221 bce), the country was divided into seven rival states, which were constantly at war with one another. Chinese philosophers responded by developing three competing systems of belief: Confucianism, Daoism, and Legalism. Each took a very different approach to the role of government and law, and each had a lasting influence on Chinese history. Confucianism Philosopher Kong Fuzi (551–479 bce), known as Confucius, looked to traditions to provide social stability. He stressed the importance of the ancient rites (li) performed

THE BEGINNINGS OF LAW 27 See also: Early legal codes 18–19 ■ Zhou dynasty China 24 ■ Plato’s Laws 31 ■ The Arthashastra and the Manusmriti 35 Three rival philosophies developed during the Chinese Warring States period. Confucianism: Daoism: Legalism: Confucius People can People should People are be taught live in harmony self-interested. Philosopher Kong Qui was to be good. with nature Rulers should born in 551 bce, into the lower and the universe. deter crime ranks of the nobility in the Rulers should Rulers should and keep people small eastern state of Lu. govern by leave people in order with He was later known by his virtue and punishments. followers as Kong Fuzi tradition. alone. (“Master Kong”), which led to his Western name Confucius. in honor of ancestors and gods; of shame. To govern by virtue, and After spending years at the humaneness or fellow feeling (ren); create order by rites, will not only Lu court without gaining and filial piety (xiao), the respect of give them the sense of shame, but influence, he traveled from children for their parents. Confucius moreover they will become good.” one state to another, hoping argued that filial piety should be to persuade rulers to employ extended beyond the family to Daoism him as a minister. He failed society as a whole. There were five The key text of Daoism is the Dao to achieve office, as his ideas key social relationships in which De Jing, which is attributed to Laozi seemed idealistic and old- each individual had a proper place: (“old master”), a possibly mythical fashioned to the rulers of the ruler to subject, father to son, teacher from the 6th century bce. time. Yet Confucius continued husband to wife, older brother to While the text may have been the to spread his philosophy younger brother, and friend to friend. work of more than one author, its through teaching. His In each of these, the superior partner central idea is that people should live reputation for learning should be like a caring father, while in harmony with the natural order of attracted many students, the inferior should be respectful the universe, called the Dao (Way). who came to him to study and obedient. The Dao De Jing uses water as an ancient ritual texts, such example of what this means: “Water as the Book of Rites and the Confucius believed that laws is fluid, soft, and yielding. But water Book of Songs. and punishments were necessary will wear away rock, which is rigid only in a primitive society, where and cannot yield. As a rule, whatever Although Confucius wrote people did not observe the proper is fluid, soft, and yielding will no books, after his death in rites. If people were set a good overcome whatever is rigid and hard.” 479 bce, his teachings were example by those in authority and written down by his students were educated, they would behave Daoists believed that all social in the Lunyu (“Conversations”), well. Confucius said, “To govern problems would be solved if people which is known in the West simply by law, and to create order lived a simple life and rid themselves as the Analects. by means of punishments, will of ambition and greed. They shared make people try to avoid the the Confucian distrust of laws. But Key work punishment but have no sense unlike Confucians, who thought ❯❯ c. 500 bce Analects

28 CONFUCIANISM, DAOISM, AND LEGALISM that government benefited society, Do not value goods The Book of Lord Shang argues Daoists defended private life and that are hard to come by, that wicked people should be in wanted rulers to leave people alone. positions of power for two reasons: The best way to live was through and the people people’s loyalty should be to the wu wei (action that avoided effort), will not steal. laws themselves, not to the people and the perfect ruler was one who who enforce the laws; and wicked made no laws, imposed no Laozi people are likely to report offenses restrictions on his subjects, and because they like to spy on others. whose actions went unnoticed. Dao de Jing, 4th century bce The penalties imposed by As a philosophy of individualism In the 4th century bce, Legalism Shang Yang were humiliating and inaction, Daoism’s practical was adopted by Shang Yang, chief and painful. They included facial applications for government were minister of the western state of tattooing, mutilation, and public limited. Yet it had a lasting influence Qin. The Book of Lord Shang, a execution in various ways, such on later philosophy and religion, compilation of writings by Shang as being boiled, quartered, or buried especially Chinese Buddhism. and his followers, attacks the alive. Punishment was also beliefs of Confucianism, saying that collective, extending to the whole Legalism reverence for the past and traditions family or clan of an offender. Failure The most successful philosophy encourage people to criticize their to report a crime was treated as during the Warring States period present rulers. Even humaneness harshly as committing one. was Fajia (“standards”), known in and virtue undermine the law. the West as Legalism. Legalists Using Legalism, Shang Yang believed that people were essentially created a strong authoritarian state self-interested, lazy, and ignorant. and a powerful army of peasants The way to create social order and who were conscripted as soldiers. a strong state was to deter crime He destroyed the feudal power of with strict laws and punishments. the nobility, who were now subject Even light offenses should be to the same laws as everyone else. punished harshly. When a new ruler whom Shang Yang had previously humiliated In Qin dynasty China, the The emperor has philosophy of Legalism was followed absolute power— strictly, with the law-making emperor his laws apply to at the top of the social pyramid and all his subjects. the slaves at the bottom. China is divided into Commanderies are subdivided 36 commanderies into counties (xian), each under (jun), each with a magistrate, who enforces a governor. the law and collects taxes. Peasants are given land in return for serving in the army or working on imperial building projects. Other commoners include artisans and merchants. Slaves are captured in war or enslaved as punishment for crimes.

THE BEGINNINGS OF LAW 29 came to power, the minister fell Across China, he imposed Legalism The Terracotta Army, guarding the from grace. In 338 bce, subjected to and a unified way of life, introducing tomb of emperor Qin Shi Huang, was the same harsh laws he himself had standard currency, weights, and intended to protect him in the afterlife. introduced, he was torn apart by measures and a new, simpler As well as 8,000 warriors, the army chariots, and all members of his writing system based on a single set includes chariots and horses. family were killed. of characters. Using forced labor, the emperor built the first Great which promoted social cohesion Historian Sima Qian (c.145–86bce) Wall across the northern frontier, a and loyalty to superiors, seemed wrote that Shang Yang deserved his network of roads, and a vast tomb, more suitable when China was fate, yet admitted that his policies where he was later buried with a united and at peace. Under the were effective: “By the end of 10 terracotta army to guard him. Han, Legalism as a philosophy years, the Qin people were quiet. was discredited, and the harshest Nothing lost on the road was picked Qin China was a totalitarian punishments were abolished. In up and kept, the hills were free of state where every aspect of people’s 141 bce, the seventh Han emperor, robbers, every household prospered, lives was controlled. The emperor Wudi, adopted Confucianism as the men fought bravely on the battlefield ordered a mass burning of books, and state ideology. Confucius’s Analects but avoided disputes at home.” according to Sima Qian, he had 460 became a sacred book, memorized Confucian scholars buried alive. The by generations of students. The greatest Legalist philosopher, first emperor’s rule was so harsh Han Feizi (c. 280–233 bce), argued that the Qin dynasty lasted just 4 Despite this, China remained that universally enforced and well- more years after his death in 210 bce. an autocratic state, in which publicized laws benefited everyone Confucianism was backed up by by bringing order and predictability Han reforms strict enforcement of the law— to life. Legalism made people do In 206 bce, Liu Bang, a rebel leader, as one Chinese proverb says, things they would avoid otherwise, seized power, founding the new Han the country is “Confucian on the such as working hard and fighting dynasty, which created China’s outside, Legalist on the inside.” in wars. If the laws were resented, First Golden Age. While Legalism Confucius’s ideal society, where it was because the people were like had been effective in a time of laws and punishments were infants who had no understanding constant warfare, Confucianism, unnecessary, was never achieved. ■ of what was good for them. Qin totalitarianism The Qin state conquered the other warring states one by one until, in 221 bce, King Zheng of Qin defeated Qi, the last independent kingdom, and declared himself Qin Shi Huang (First Exalted Emperor of Qin). When people are stupid, they are easy to govern. Shang Yang The Book of Lord Shang

30 BTHINISDISNHGABLYLLBAEW THE TWELVE TABLES (c.450 bce) IN CONTEXT I n around 450 bce, the Roman significant provisions about legal Republic compiled its first procedure, covering summons to FOCUS written law code, inscribed on court, trials, the role of witnesses, Codification of Roman law 12 bronze tablets displayed in the and execution of judgment. Forum, Rome’s main public space. At BEFORE the time, the plebeians (commoners) Rome was still an agricultural 510/509 bce Romans drive were engaged in a long-running town, and many of the newly codified out their last king and struggle with the small ruling class laws concerned farming disputes. establish a republic. All of patrician (noble) families who One law banned marriage between government positions are held high office and the priests patricians and plebeians but was held by patricians. who acted as magistrates and swiftly repealed. Others were later interpreted the laws handed replaced by updated laws. Yet Romans 494 bce After the plebeians down over time. Plebeians could looked back to the Twelve Tables as threaten to leave Rome, they be punished for offenses against the foundation of their legal system. ■ are granted the right to elect laws of which they had no knowledge. their own officials, called As a concession to them, 10 patrician That single little book tribunes, to defend their magistrates, called decemvirs, were of the Twelve Tables … interests and propose laws. tasked with recording Rome’s seems to me, assuredly, to customary laws. Thanks to the surpass the libraries of all AFTER decemvirs’ Twelve Tables, Roman 390 bce The original Twelve citizens now knew some of their the philosophers. Tables are destroyed when more important rights and could Cicero invading Gauls sack Rome. appeal against magistrates’ rulings. Copies of the text survive, Roman statesman (106–43bce) and it is learned by heart by A code of civil laws generations of Roman children. The Tables dealt with civil law (the law concerning relations 367 bce Plebeians finally gain between members of society), the right to serve as consul, outlining citizens’ rights and one of Rome’s two annually responsibilities. It also contained elected heads of state. See also: Early legal codes 18–19 ■ The Lex Aquilia 34 ■ Ulpian the Jurist 36–37 ■ Magna Carta 66–71

THE BEGINNINGS OF LAW 31 LOAFWTHISE RMUALSETRESR PLATO’S LAWS (348 bce) IN CONTEXT W ritten by Athenian A fresco in the Vatican Museum, philosopher Plato in the Vatican City, depicts Plato (left) FOCUS 350s bce, Laws is his last with his student Aristotle, who The sovereignty of law and longest book. His more famous was influenced by his teacher’s Republic had looked at an ideal state views on law and government. BEFORE ruled by philosopher-kings with no 399 bce The Greek philosopher need for laws. In contrast, Laws is The city’s officials are subject to the Socrates is sentenced to death concerned with the “second-best authority of examiners, who check in Athens, leaving his pupil state,” where law is supreme. their qualifications and can hold Plato with a hatred of them to account. Plato’s doctrine democracy as mob rule. The book, set in Crete, is a of the sovereignty of law and a mixed dialogue between an unnamed government system had a lasting c. 367–361 bce Plato serves as Athenian; a Spartan named Megillus; legacy, influencing philosophers from tutor to Dionysius II, the new and a Cretan, Clinias. The Cretan is Aristotle to the 18th-century French tyrant of Syracuse, but his on his way to establish a new city, judge Montesquieu. ■ attempt to make Dionysius a Magnetes (Magnesia). The three philosopher-king is a failure. discuss its constitution, and the Athenian suggests a code of laws AFTER covering every aspect of life. c. 330 bce In Politics, Plato’s pupil Aristotle argues that Plato’s theorized city-state a state should combine combines an authoritarian system democracy and oligarchy with democratic elements. Its laws (government by the few). are first drawn up by a dictator and a wise legislator, who then c. 130 bce The Greek historian surrender their powers to elected Polybius praises the Roman officials. Every law has a prelude Republic as a successful to persuade the people that it is in mixed government system. their interests to obey it. To stop anyone from becoming more 1748 In The Spirit of Laws, powerful than the law, there is a Montesquieu proposes a system of checks and balances. mixed government system. See also: Aristotle and natural law 32–33 ■ The Glorious Revolution and the English Bill of Rights 102–103 ■ The US Supreme Court and judicial review 124–129

32 RTRIGUHETLRAEWASISON ARISTOTLE AND NATURAL LAW (c. 340 bce) IN CONTEXT Aristotle distinguished between natural law and conventional laws. FOCUS Natural law Natural law is universal Conventional laws and unchanging. vary according to BEFORE customs, over time, and c. 441 bce In his tragedy from place to place. Antigone, Sophocles suggests that there are unwritten and To be just, a law must be based on unalterable divine laws. more than convention—it must be in c. 375 bce In The Republic, harmony with natural law. Plato argues that the ideal community is “established I n the 4th century bce, the as an example of the two laws in accordance with nature.” Greek philosopher Aristotle in conflict. In the play, Antigone distinguished between the breaks the king’s edict by holding AFTER unchanging, universal law of nature a funeral for her brother Polyneices. c.1050ce Iranian Muslim and mankind’s conventional laws, Aristotle observed that in a plea scholar Al-Biruni argues that which vary from place to place. For to the king, Antigone justifies natural law is the survival of a law to be just, he argued, it should breaking his conventional law with the fittest, which must be be in harmony with natural law. an appeal to a higher natural law, overcome by divine law, which does not belong “to today revealed by Muhammad. In his Rhetoric, Aristotle cited or tomorrow, it lives eternally: no Antigone, a 5th-century tragedy one knows how it arose.” c.1140–1150 In his Decretum, by the Greek playwright Sophocles, Gratian equates natural law with the laws of the Church. c.1265–1274 Thomas Aquinas brings together Aristotle’s philosophy and Christian theology in Summa Theologica.

THE BEGINNINGS OF LAW 33 See also: Plato’s Laws 31 ■ Ulpian the Jurist 36–37 ■ The origins of canon law 42–47 ■ Gratian’s Decretum 60–63 ■ Thomas Aquinas 72–73 There really is, Centuries later, some Roman jurists, Aristotle as everyone senses, including the renowned Ulpian, something just by nature early in the 3rd century ce, accepted The writings of Aristotle— and common to all. the Stoic idea that humans were philosopher, scientist, and equal in natural law and that slavery polymath—shaped the Aristotle was contrary to nature. Yet they development of ancient and never went so far as to argue that medieval philosophy. Born in Rhetoric (I.13), 4th century bce this principle should be put into 384 bce at Stagira in Thrace, practice in civil law. he went to Athens at the age However, Aristotle did not explain of 17, where he studied and how to distinguish natural law from Divine reason taught for 20 years at Plato’s cultural beliefs. Even the example The Roman statesman Cicero was Academy. After Plato’s death he gave of a natural law—the right strongly influenced by the Stoics. in c. 347 bce, Aristotle traveled to a burial—is not a universal In De Republica (c. 51 bce), he urged to Asia Minor. In c. 344 bce, he custom. Many societies do not bury that “True law is right reason in visited the island of Lesbos in the dead, but leave their bodies for agreement with nature … [with] one the Aegean, where he made a carrion birds, who pick the bones eternal and unchangeable law … detailed study of maritime life. clean. It was left to later thinkers to valid for all nations and all times, find a rational basis for natural law. and … one master and ruler, that is Aristotle was tutor to God over us all, for he is the author Alexander the Great for a brief Natural harmony of this law, its promulgator, and its period, then returned to Athens In c.300bce, the Greek philosopher enforcing judge.” While Cicero took in 335 bce and founded his Zeno, the founder of Stoicism, the Stoic view of “God” as divine own school, the Lyceum. This identified natural law with divine reason, his words resonated with included a library, a museum, reason, which he saw as a purposeful later Christian thinkers, including and a map collection. He wrote order pervading the cosmos. As part Gratian—an Italian monk—and around 200 books, covering of this cosmos, humans have divine Thomas Aquinas. They saw Cicero’s every branch of science and reason within them. By following description of a universal lawmaker philosophy then known. In only reason rather than emotion, and judge as the Christian God. ■ 323 bce, he moved to Chalcis, people can live in harmony with and died the following year. natural law. So far as the civil law is concerned, slaves are not Aristotle’s work endured in Because they believed that all considered persons; but the Islamic world after the fall human beings shared both divine of Rome and was revived in reason and natural law, the Stoics this is not the case the West by Thomas Aquinas. saw humanity as a community in according to natural law, which all people were equal. The because natural law regards Key works ideal society, in their view, was a world state in which everybody lived all men as equal. Nichomachean Ethics together in harmony, following the Ulpian the Jurist Rhetoric rule of divine reason. Politics Ad Sabinum (XLIII), c.212ce

34 DFAOAPRMERAWGSREOONNIGSFLUILABLE THE LEX AQUILIA (286 bce) IN CONTEXT T he Lex Aquilia was a Roman a civil wrong arising from an law that provided financial intentional or negligent breach FOCUS compensation for wrongful of duty of care. Civil law and private damage to property. Named after property Aquilius, the plebeian tribune Roman laws were subject to (elected official of ordinary citizens) interpretation, but the jurist Ulpian BEFORE who framed it, it was one of the first (c. 170–223 ce) later reiterated that 494 bce Barred from public laws drawn up after the Plebeian unlawful damage is that caused office, plebeians set up their Assembly was given the power to “in a blameworthy fashion”—thus own assembly. legislate without seeking approval including harm through negligence, from the Senate. Plebeians could but not as a result of accident. Ulpian c. 450 bce The Twelve Tables now gain redress for civil wrongs was cited in Emperor Justinian’s is Rome’s earliest written done by the patricians, the ruling Digest of 533 ce, preserving the Lex law code. elite who dominated the Senate. Aquilia’s legacy for years to come. ■ 287 bce The Lex Hortensia The Lex Aquilia described the If a stone falls out of a cart gives the Plebeian Assembly compensation owed in different and … smashes something, the power to make laws scenarios. It stated that if anyone without Senate approval. unlawfully killed a slave or livestock, the carter is liable to the they had to pay the owner its highest Aquilian action if he loaded AFTER value in the preceding year. Another 426 ce Emperor Valentinian clause covered damage to all types the stones badly. III’s Lex Citationum (Law of of property, requiring the cost of the Ulpian Citations) names five earlier damage to be assessed within 30 respected jurists (Ulpian, days and the appropriate sum paid. Justinian’s Digest, 533ce Gaius, Papinian, Paulus, and Modestinus) whose opinions Later definition are to guide judges in trials. The Lex Aquilia superseded all earlier laws dealing with unlawful 529–533 ce Emperor Justinian damage. Its legacy is the modern publishes the Code, the Digest, legal concept of the “delict” as and the Institutions, which together form a definitive See also: The Twelve Tables 30 ■ Ulpian the Jurist 36–37 ■ Gratian’s body of Roman law. Decretum 60–63 ■ Donoghue v. Stevenson 194–195

THE BEGINNINGS OF LAW 35 OTHFETHSEACCRAESDTELSAWS THE ARTHASHASTRA AND THE MANUSMRITI (2nd CENTURY bce) IN CONTEXT T he Arthashastra and the in a previous life. Both books forbid Manusmriti are two ancient mixing between castes. Although FOCUS Hindu texts written in neither text functioned as a law The caste system Sanskrit and thought to date from as code, each describes strict rules and and Hindu law early as 200 bce. The Arthashastra punishments for every part of life. (Science of Prosperity) is a practical BEFORE guide for kings, offering advice on The Manusmriti took on a 1500–1200 bce The Rig Veda, how to maintain power and create new significance in the late 18th the earliest Sanskrit text, is a strong state. The Manusmriti century, when the British rulers of composed in India’s tribal (Recollections of Manu) is a set of India interpreted it as a definitive society, where rajas (rulers) rules or codes supposedly derived legal code for Hindus, equivalent are chosen by chieftains. from Manu, mythical founder of the to Sharia law for Muslims. It was human race. It is more concerned translated into English under 1100–500 bce Hereditary with moral and social behavior the title Institutes of Hindu Law kingdoms appear in northern and duties than the Arthashastra. and used to formulate laws for India, and a fourfold caste Britain’s Hindu subjects. ■ system emerges. The books portray Indian society divided into four varnas (castes), a AFTER hierarchy based on ritual purity. The 1794 The Manusmriti is purest were the brahmins (priests), translated into English and followed by kshatriyas (rulers and used by British colonial rulers warriors), vaishyas (merchants and as a law code for Hindus. farmers), and shudras (laborers). It was believed that to be born into a 1905 A manuscript of the particular caste was a reward or Arthashastra, lost since the punishment for actions performed 12th century, is rediscovered. Dr. Bhimrao Ambedkar, seen here 1949 Newly independent on a 1960 postage stamp, was India’s India’s constitution bans first law minister and a prominent discrimination on the basis campaigner against the caste system. of caste, but the issue persists See also: Early legal codes 18–19 ■ Confucianism, Daoism, and Legalism 26–29 into the 21st century. ■ The Mishnah and the Talmud 38–41 ■ The Koran 54–57

36 OWTHFEEJCUVUISRLTTTIIUCVEEATE ULPIAN THE JURIST (c.170–223ce) IN CONTEXT D omitius Ulpianus was the school of the Roman Empire, and it most influential jurist of is possible that Ulpian studied or FOCUS Classical Rome. He wrote taught there. Morality and theory of law prolifically, authoring over 200 books on law in little more than 10 years. In Rome, Ulpian rose to be a BEFORE His acclaim was renewed many high-ranking official in the imperial c. 450 bce The Twelve Tables centuries later in the Middle Ages, government. Early in the 3rd century, herald a millennium of when the name “Ulpian” became he served under Emperor Caracalla codifying Roman law, ending synonymous with Roman law. as his master of petitions, penning with the Code of Byzantine replies to requests made to the emperor Justinian I in 529ce. Distinguished career emperor. It was after 212 ce, when Ulpian was born in the late 2nd Caracalla extended citizenship to 27bce–14ce Emperor Augustus century in the Phoenician city of all free inhabitants of the empire, appoints certain law experts, Tyre, in what is now Lebanon. The that Ulpian began to write his own or jurists, to give legal opinions nearby city of Berytus (Beirut) was works on law for the benefit of, on his behalf. home to the most famous law among others, the new citizens. In 222 ce, the new emperor, Severus 1st century ce Two rival law schools flourish in Rome: Ulpian the Jurist states three the Sabinians tend to promote maxims (principles) of law. tradition and conservative orthodoxy, and the Proculians Live honestly Harm no one Give everyone reasoning and consistency. (honeste vivere). (alterum non what is due to them (suum AFTER laedere). cuique tribuere). 533 ce Justinian I publishes the Digest, a compendium of writings of Roman jurists. c. 1070 Manuscripts of Justinian’s legal books are rediscovered in northern Italy, prompting a revival of interest in Roman law and in Ulpian.

THE BEGINNINGS OF LAW 37 See also: The Twelve Tables 30 ■ Aristotle and natural law 32–33 ■ The Lex Aquilia 34 ■ The origins of canon law 42–47 ■ Gratian’s Decretum 60–63 ■ Thomas Aquinas 72–73 Alexander, made Ulpian prefect in Ulpian ranked as one of Rome’s five Law is … the science command of Rome’s Praetorian most revered jurists, along with Gaius, of what is right Guard. However, Ulpian clashed Papinian, Paulus, and Modestinus. He with the soldiers, and in 223 ce, is depicted here in a French work and what is unjust. they mutinied and killed him. published in 1584. Ulpian the Jurist Priests of law rationalize Roman law, Justinian Roman law. In this respect, Roman Ulpian had an exalted view of directed his legal experts to assess law forms the basis of civil law, the Roman law, which he considered the existing, contradictory body of system widely used today. to be universal, rational, and based legislation and produce a definitive on what Aristotle described as version. The result was the Codex Renaissance revival “natural law.” Ulpian perceived law (Code), a comprehensive collection Despite his prominence in the pages as “the art of goodness and fairness,” of imperial laws published in 529 ce. of the Digest, Ulpian was largely of which “we [jurists] are deservedly This was followed by the Digest forgotten until around 1070 ce, when called the priests. For we cultivate and the Institutiones (Institutions), old manuscripts were rediscovered the virtue of justice and claim a textbook for law students, both in Italy. Later, in 1583, the Digest, awareness of what is good and fair.” published in 533 ce. the Code, and the Institutions were printed together under the title The above lines form part of a Much of Ulpian’s writing survives Corpus juris civilis (Body of Civil definition of law by Ulpian that was in excerpts included in the Digest. In Law) and became the basis for legal chosen as the opening text of the preparing the work, the compilers education across Western Europe. ■ Digesta (Digest), a compilation of the often chose Ulpian as their preferred interpretations of respected jurists authority—not only because he was commissioned in the 6th century one of the last great jurists and had by Emperor Justinian I. In order to studied the earlier ones, but also because of the clarity and elegance of his writing, which makes up one- third of the whole text. The codified system of legal principles expressed in these works of Justinian is a defining feature of Ulpian was assassinated by the Praetorian Guard in the imperial palace. They struck in the presence of Emperor Severus Alexander and his mother and close adviser, Julia Mamaea.

38 IN CONTEXT JTAURNSUDTTPIHCE,AEC, E FOCUS Divine law THE MISHNAH AND THE TALMUD (c. 200–c. 500 ce) BEFORE 516 bce King Cyrus of Persia allows the Jews exiled in Babylon to return to Jerusalem and rebuild their Temple. 70 ce Following a Jewish revolt, the Romans sack Jerusalem and destroy the Temple. AFTER c. 1070–1105 In France, Rabbi Shlomo Yitzaki (Rashi) writes a commentary on the Talmud. 1240 The Talmud is put on trial in Paris and condemned for blasphemy. Every copy in France is burned. 1519–1523 In Venice, Italy, Daniel Bomberg publishes the first printed copy of the Babylonian Talmud. T he Talmud (“Study”) is a written compendium of Jewish oral laws that govern every part of a devout Jew’s life. Made up of the Mishnah and the Gemara, it is the central text of Rabbinic Judaism, which emerged after the Romans destroyed the Temple in Jerusalem in 70 ce, and is the mainstream form of Judaism. The Romans had ruled Jerusalem and the surrounding province of Judea from the 1st century bce onward—at first through client kings, and later through governors. In the 1st century bce, Judaism divided into rival forms, each taking a different attitude toward Jewish law. Temple worship was overseen by the

THE BEGINNINGS OF LAW 39 See also: The Ten Commandments and Mosaic law 20–23 ■ The Arthashastra and the Manusmriti 35 ■ The origins of canon law 42–47 ■ The Koran 54–57 The six seder (orders) of the Mishnah Zeraim (Seeds) Moed (Festivals) Nashim (Women) Prayers, blessings, and the The Sabbath, Passover, and Rules on marriage, divorce, Torah’s agricultural laws other festivals and vows 11 tractates 12 tractates 7 tractates Nezikim (Damages) Kodashim (Holy things) Tohorot (Purities) Courts, civil and criminal law, Temple worship, sacrifices, Ritual purity and sayings of the Fathers and dietary laws 12 tractates 10 tractates 11 tractates Sadducees, aristocratic priests who the dead, punish the wicked, and reestablish the Sanhedrin, the believed only in the written law reward the just. The Sadducees Jewish high council, in Yavne. outlined in the Torah of Moses. rejected this idea of an afterlife. Citing Hosea 6:6 in the Torah Pharisees, on the other hand, (“I desired mercy, not sacrifice”), believed in a stricter observance of In 70 ce, following a Jewish Zakkai convinced the Sanhedrin Jewish law than the Sadducees. rebellion, the Romans besieged that animal sacrifice (the preserve They argued that purity laws and captured Jerusalem and razed of temple worship) could be replaced applied not only to priests, but to the Temple to the ground. The by prayer, study of the law, and the daily lives of all Jewish people. Sadducees disappeared from benevolence. This was justified in history. The loss of the Temple was a the Talmud with a saying of God to The Pharisees derived their catastrophe for Jews—in the ancient King David: “A single day in which beliefs from an oral tradition that world, it was inconceivable to you sit and engage in Torah is had accrued over time. In the words imagine a religion without a temple, preferable to the thousand burnt of Romano–Jewish historian and Jerusalem’s Temple was the offerings that your son Solomon Josephus, “The Pharisees have only place on Earth where Jews will offer before Me on the altar.” delivered to the people a great could offer sacrifices to atone for sin. many observances by succession After a second Jewish rebellion from their fathers which are not Preserving Judaism in 132–136 ce, Emperor Hadrian written in the law of Moses; and for It was largely thanks to Rabbi expelled all Jews from Jerusalem, that reason it is that the Sadducees Yochanan ben Zakkai, a Jewish which was rebuilt as a Roman reject them.” One of the Pharisees’ scholar, that Judaism was able city. To preserve Judaism, rabbis innovations was a belief that, at the to continue without a temple. He compiled a code of laws written end of time, God would resurrect persuaded the Romans to let him in Hebrew called the Mishnah ❯❯

40 THE MISHNAH AND THE TALMUD (“Repeating” or “Teaching”). way of preparing for the future. This page of a printed Talmud shows Completed in c. 200 ce by Rabbi Alongside the Mishnah, the Talmud the Mishnah and Gemara in the center Judah Ha-Nasi, the book is the includes the Gemara (“Completion”), a (in larger type), medieval commentaries oldest part of the Talmud. Based much longer commentary written known as the Tosafot (“Additions”) on on the oral tradition of the Pharisees, by later rabbis in Aramaic, which the left, and Rashi’s commentary along the Mishnah is divided into six was the everyday spoken language with notes by later scholars on the right. seder (orders). These, in turn, are at the time. Two different Gemaras subdivided into between seven and were created: a Palestinian version, 8th century, the city of Córdoba twelve tractates (books), which cover compiled between 350 and 400 ce, became a center of Jewish learning. every part of Jewish life. One of and a Babylonian one, written Halakha (Jewish law, derived these tractates, Pirkei Avot (Sayings between 350 and 550 ce. The latter from the Talmud) influenced the of the Fathers), traced the oral tradition version is much longer and is seen development of Sharia (Islamic law). through a line of authorities all the as having greater authority. Unlike Christianity, whose laws way back to Moses in Sinai. were made by councils or synods, The Gemara is a vast body of Jewish and Muslim laws were Building a virtual temple diverse material that explores the derived through scholarship. Both The subject of the Mishnah’s fifth meaning of the laws outlined in the systems regulate every part of daily order, Kodashim, was the Temple Mishnah and their application in life, and both combine laws based of Jerusalem. The writers lovingly daily life. Unlike most law codes, it on a divinely inspired book (the described every detail of the lost often presents contradictory rulings Torah and Koran, respectively) building and of the sacrificial by rabbis side by side without with later oral traditions. process. This was so that temple deciding between them. Rather worship could continue to be at than fixing Jewish law, the Gemara The Talmud on trial the center of Jewish religious life. enabled it to be studied and argued From Spain, the Talmud spread to According to the Talmud, “He who over, and has been described as the Christian Europe, where schools engages in study of the laws of first interactive text. were established in major cities. sacrifice should be regarded as if he Europe’s rulers knew nothing about had offered up a sacrifice himself.” The Babylonian Talmud (made up the Talmud, assuming that Jews Since 70 ce, Jews have prayed daily of the Mishnah and the Babylonian only studied the Torah of Moses. for the Temple to be restored by God Gemara) spread widely within the and for worship to resume there— Islamic world, where Jews had a In 1238, Nicholas Donin, a so study of the Temple was also a protected status. Following the French Jew who had converted Muslim conquest of Spain in the to Christianity and became a Moses received the Torah at Sinai and O dreadful and terrible transmitted it to Joshua … day … Sun and Moon are the elders to the prophets, darkened, the heavens and the prophets to shattered, the stars the Men of the driven away … the Great Assembly. universe mourns. Pirkei Avot Hebrew account of the trial of the Talmud

THE BEGINNINGS OF LAW 41 Franciscan friar, denounced the elsewhere in Christian Europe, Rashi Talmud. He told Pope Gregory IX very few complete manuscripts that the Talmud was offensive and of the Talmud have survived. Born in Troyes in northern blasphemous and that without it, France in 1040, Rabbi Shlomo the Jews would have converted to Studying the Talmud Yitzaki, known as Rashi, was Christianity long ago. The traditional way to study the the most influential Talmudic Talmud was in male-only pairs. commentator in history. As On March 3, 1240, King Louis IX Students read a page and argue a young man, he studied in of France had every copy of the over its meaning. As the Gemara the yeshiva at Worms in Talmud in the country seized and explains, “when Torah scholars Germany. At the age of 25, brought to Paris, where the book study together, they sharpen one he returned to Troyes and was put on trial for blasphemy. another.” Today, women also explore became a rabbi while also Donin prosecuted, and four leading the book in yeshivas (Jewish working as a wine maker. He rabbis defended the Talmud. Donin schools dedicated to the study of founded a yeshiva of his own had found passages referring to a the Talmud, the Torah, and other 5 years later. Yeshu (Jesus), a false prophet who religious texts). People now read was the son of a prostitute and had the Talmud online, too, using live Rashi wrote extensive been justly executed. The rabbis streaming or video conferencing, commentaries on both the answered that this was not Jesus and websites offer to find students Torah and the Babylonian Christ but another man, saying “not a havruta (“learning partner”). Talmud. His writing was clear every Louis born in France is king.” and concise, and he analyzed In 1923, Meir Shapiro, a Polish the text phrase by phrase. The Talmud was condemned rabbi, suggested that Jews around Although he wrote in Hebrew, and sentenced to be burned. The the world should study the Talmud he explained the meaning of manuscripts were carried through collectively, at the rate of one page obscure words in French. the streets of Paris in 24 wagonloads a day. This idea was embraced, and Rashi died in 1105 in Troyes. to a great bonfire. As a result of this tens of thousands of Jews began to and subsequent public burnings read the book together. It took seven Ever since the Babylonian and a half years for them to read the Talmud was first printed in Yemenite Jews in Jerusalem read Talmud, a cycle first completed in the 1520s, every copy of the and debate the Talmud together. Study February 1931. The 13th cycle ended work has included Rashi’s of the Talmud was traditionally a male in 2020. Today, around 350,000 Jews commentary on the inner activity to be undertaken once boys take part in the collective reading. ■ margin of each page. had completed a course of Torah study. Key works c. 1070–1105 Commentary on the Torah c. 1070–1105 Commentary on the Talmud

WALK IN THE WAY OF RIGHTEOUSNESS THE ORIGINS OF CANON LAW (c. 313–380 ce)



44 THE ORIGINS OF CANON LAW IN CONTEXT They believed that Christ’s 12 founded by apostles, wrote, “We apostles (“messengers”) had should look upon the bishop even FOCUS received the Holy Spirit—the third as we would upon the Lord himself.” Canon law member of the Christian Holy Trinity. Saul of Tarsus, later known Bishops issued canons to govern BEFORE as Paul (c. 5–67 ce), also claimed local church organization and ritual c. 30 ce Jesus Christ is to be an apostle on the basis of a and their followers’ behavior, but crucified; his followers are vision of Christ. In c. 48 ce, one of primarily to dictate what people the first Christians. the first theological disputes in the should believe. Doctrine had never new Christian Church was resolved been important in earlier religions, c. 48 ce A church council in at a meeting of its leaders, the but Christianity was different, Jerusalem rules that Gentiles Council of Jerusalem. Paul, backed offering salvation to the faithful need not follow Mosaic law by the apostle Peter, argued that and damnation to those who held to be Christian. Gentiles (non-Jews) who believed in incorrect beliefs. Serious offenses Jesus could be Christians without such as heresy (opinions contrary to AFTER first becoming Jews or following those of the Church leadership) and 406–476 Germanic peoples Mosaic law. The Council circulated blasphemy (insulting the sacred) conquer the Western Roman a canon to this effect. were disciplined by “anathema”— Empire, but the Church a punishment excommunicating, preserves Roman customs Leadership and beliefs or expelling, the offender from the and canon law. The Christian communities founded Christian community. Less serious by Paul and his companions were offenses were punished with 1054 The Great Schism splits led by episkopoi (“overseers”), exclusion from communion. the Church into the eastern or bishops, assisted by diakonoi Greek Orthodox and western (“servants”), or deacons. They Another way to control belief Roman Catholic churches. presided over rituals, such as was through texts. In the 2nd communion (a holy meal of bread century, the bishops assembled c.1140–1150 Gratian’s Decretum and wine in memory of Christ’s a fixed set of holy books to creates a discipline of canon death), and baptized converts. stand alongside the Mosaic Old law separate from theology. In the early years of the Church, Testament. This New Testament Christians were able to select their included only books and letters R oman Catholic canon own local bishops and deacons. thought to have been written by law is the world’s oldest apostles or their companions. continually functioning As Christianity spread, the When various Gnostic and other legal system. It has its origins in authority of the bishops increased. the first years of Christianity but They appointed presbyters (“elders”), has over the past two millennia or priests, to perform rituals on been adapted to reflect political, their behalf. In the late 1st century, economic, social, and cultural Bishop Clement of Rome claimed changes, as well as religious ones. to belong to an unbroken line of The word “canon” derives from the bishops going back to St. Peter. Greek kanon, meaning a straight He argued that bishops of churches rod, or rule. Early canons were founded by apostles, such as his primarily concerned with theology own, had apostolic authority for and developed from debates about their canons. In c. 100 ce, Bishop what people should believe. Ignatius of Antioch, another church The first followers of Jesus Paul’s dramatic conversion on the Christ were Jews who followed road to Damascus turned him from a Mosaic law (Hebrew laws ascribed persecutor of Christians into one of the to Moses in the Old Testament). most influential Christian missionaries.

THE BEGINNINGS OF LAW 45 See also: The Ten Commandments and Mosaic law 20–23 ■ Aristotle and natural law 32–33 ■ The Koran 54–57 ■ Gratian’s Decretum 60–63 ■ Thomas Aquinas 72–73 In the Christian Church’s One of these heresies, Many bishops first three centuries, Arianism, was the belief endorsed Arianism, which led to the Church canon law condemned that God the Father many forms of belief existed eternally, being divided and as heresies. mocked by pagans. but God the Son arrived later. In 380 ce, the Edict As Roman emperors To unite the Church, of Thessalonica campaigned against the First Council paganism, the united of Nicaea decided made Christianity Christian Church became on one creed: the state religion of the that God the Father Roman Empire, paving more powerful. the way for canon law. and God the Son were one and eternal. sects challenged this apostolic lapsed could be readmitted. In 251, Communion, even on the deathbed, authority, the Church condemned Bishop Cyprian of Carthage held a was denied to anyone who sacrificed their writings as heretical. synod (council) of bishops, which in a pagan temple and to adulterous ruled that the lapsed should be wives. Bishops, priests, and deacons Persecution of Christians judged according to individual had to be celibate or they were Christians refused to make guilt. A second synod in Rome removed from office. The canons sacrifices to Roman gods or the confirmed the ruling later that year. of Elvira were binding only over emperor and so, in the early years, The Church was now deciding churches that took part in the synod. most Romans viewed Christians its law by a majority vote of The practice of permanent clerical with suspicion and hostility. bishops in synods. The greatest celibacy spread to other churches in They suffered a series of sporadic persecution took place under the Western Roman Empire, but it persecutions, beginning in 64 ce, Emperor Diocletian in 303–305 and was interpreted more loosely in the under Emperor Nero. Despite this, continued to a lesser extent for Eastern Roman Empire, where by the 3rd century, Christians several years under his successor priests were allowed to marry. had become a visible minority Galerius in the Eastern Roman throughout the empire, and the (Byzantine) Empire (separated The Edict of Milan persecution increased dramatically. from the Western Empire in 285). In 312, Constantine I, a recent convert to Christianity, became ruler In 250, Emperor Decius ordered In the early 300s, 19 Spanish of the Western Roman Empire. The everyone except Jews to make bishops held a synod at Elvira following year, together with Eastern sacrifices to Roman gods or face (now Granada in Spain), where Roman Emperor Licinius, he issued death. Some Christians submitted they issued canons regulating the Edict of Milan, which for the and were called lapsi (“lapsed”). the behavior of believers. One first time gave freedomof worship After the persecution ended, the canon forbade baptized women from to Christians. It also ordered the ❯❯ Church had to decide whether the marrying Jews, pagans, or heretics.

46 THE ORIGINS OF CANON LAW restoration of property that had Let us free our life throughout the empire. This quarrel been confiscated from Christians from errors and delighted pagans, who exploited it during Diocletian’s persecution. to mock Christian beliefs. with the help of the In 324, Constantine became sole mercy of God, let us direct it The Council of Nicaea ruler of the Roman Empire. Although Constantine, who had no interest Christianity was not yet the state along the right path. in theology, was horrified to see religion, under Constantine’s rule Constantine I the Church divided and mocked by bishops assumed the rank, dress, pagans. To unite the Church, he and duties of civic authorities. Letter to the summoned the first universal synod The emperor, who was constantly Numidian Bishops, 330ce of bishops, which met at Nicaea, in attended by bishops, gave the what is now Turkey, in 325. It was bishop of Rome an imperial palace, had taken place at a time when described as an ecumenical council, later called the Lateran Palace—the there was a major split in the because bishops came from “the precursor to the Vatican. He also Church over the nature of Jesus whole world” (oikoumenikós in issued several edicts that gave the Christ. It began in Alexandria, Greek). More than 250 bishops Church power to enforce its canons. where a priest named Arius argued attended what became known as that while God the Father had the First Council of Nicaea, which Constantine decreed that any existed for all time, the Son came was overseen by Constantine. Christian in a civil lawsuit with later and had a beginning in time, a fellow Christian could transfer and was therefore subordinate to The Council rejected Arianism the case from a secular court to the the Father. Alexander, bishop of (the views expressed by Arius) arbitration of a bishop. According to Alexandria, denounced Arius as and adopted the Nicene Creed, a the historian Eusebius, Constantine a heretic. Yet many bishops and statement of belief declaring that also “put his seal on the decrees of leading Christians supported the Father and Son were “of one bishops made at synods, so that it Arius, and the argument spread substance” and that the Son had would not be lawful for the rulers been born of the Father “before all of provinces to annul what [the ages.” Two dissenting bishops were bishops] had approved, since exiled along with Arius, whose the priests of God were superior to writings were burned. The Council any magistrate.” Another imperial also issued a number of canons decree banned heretics from on matters including the date of assembling to worship and handed Easter and the organization of the over their property to the Church. Church’s hierarchy. The bishops Constantine’s defeat of Licinius Constantine the Great The first Christian emperor, In 324, Constantine became sole Constantine I, was born c. 272 ce. ruler of the Roman Empire after He became ruler of the Western defeating the Eastern emperor Roman Empire in 312 after winning Licinius. In 330, he transferred a civil war against the previous the imperial capital from Rome emperor, Maxentius (c.276–312ce). to Byzantium, founding a new Before the decisive Battle of the Christian city, Constantinople Milvian Bridge, Constantine had (now Istanbul). Constantine had a dream in which he was told to formerly worshipped Sol Invictus, decorate the shields of his soldiers (“unconquered Sun”), the official with a Christian symbol, the sun god of the Roman Empire chi-rho (the first two letters of and patron of the army. For a Christ in Greek). Following his few years after his conversion, victory, Constantine saw the Constantine continued to show Christian God as his personal Sol Invictus on his coins, and patron and did all he could to was only baptized a Christian spread his religion. on his deathbed in 337.

THE BEGINNINGS OF LAW 47 The First Council of Nicaea was attended by bishops from all parts of the Roman Empire, including Britain and Persia. The Eastern bishops formed the majority at the Council. of provincial capitals (known as 529 as the first item in Emperor filioque (“and the Son”) to the Nicene metropolitans) were given authority Justinian’s comprehensive Creed, arguing that the Holy Spirit over the other provincial bishops. collection of imperial laws, proceeded from the Son, as well as However, the bishops of Rome, the Codex Justinianus. the Father. In 1054, this led to the Antioch, and Alexandria were set Great Schism between the western above all the rest. The canons Canon law is imposed Roman Catholic and eastern Greek adopted at the First Council of In 381, Theodosius held a second Orthodox churches when the latter Nicaea were binding on every ecumenical council, which took refused to adopt the new wording. church, but they still did not apply place in Constantinople. This Although the Orthodox Church has to all the emperor’s subjects reaffirmed the Nicene Creed as a collection of early canons (the because Christians remained a the only legitimate statement of Pedalion, or “Rudder”), it does not minority in the Roman Empire. Christian belief. The Council also have the Catholic Church’s full code. added a new clause, which said Later Roman emperors that the Holy Spirit “proceeded from” As the body of Catholic canons campaigned against paganism, the Father. Now everyone in the grew, various attempts were made and the Christian Church grew Roman Empire except Jews had to put them into some sort of order, increasingly powerful. Christianity to obey canon law: they had to go to culminating in the writings of a finally became the state religion in church, follow fasts, and believe in 12th-century monk named Gratian. 380, when Emperor Theodosius I the Nicene Creed. Canon law would In his Concordia discordantium issued the Edict of Thessalonica, continue to develop alongside civil canonum (later known as Gratian’s which ordered everyone in the law as a separate legal system, Decretum), Gratian analyzed and empire to become Christian. eventually with its own courts, organized around 3,800 texts on Anyone who refused was judged judges, and coercive penalties. ecclesiastical discipline. With this to be “demented and insane.” The work, canon law became a legal Church was now able to burn For almost 700 years, there was science, distinct from theology and almost all heretical writings. The a single Christian Church, but that worthy of study in its own right. ■ Edict of Thessalonica was so changed in the 11th century, when significant that it was listed in Pope Benedict VIII added the word Canon law is a unique phenomenon … because of the unique nature of the Church: a society of divine origin by its institution, yet human in its bearers of authority. Stephan Kuttner German historian (1907–1996)

LMAIDWDILNET 500–1470

HAEGES

50 INTRODUCTION The Koran, a record Imam al-Bukhari’s The Domesday Book, Gratian’s of divine revelations authoritative collection a comprehensive Decretum becomes of hadith, along with survey of to the Prophet the definitive Muhammad, others, provides landownership in reference for canon forms the basis guidance for Islamic England, helps law in the Roman of Islamic law. qadis (judges) and centralize power Catholic Church. muftis (legal scholars). under the monarchy. 632 C. 840 1086 C.1140–1150 529–533 8TH CENTURY 1066 C. 1088 The Eastern Roman Imam Abu William the Conqueror Europe’s first (Byzantine) Emperor Hanifa establishes introduces trial by university is Justinian publishes a the first of the great established in series of works of combat to England to Bologna, Italy. At first, Islamic law settle property and it teaches only canon Roman law, the schools. and civil law. Corpus juris civilis land disputes. (Body of the Civil Law). E ven after the Western His followers collected the texts of interpretation of the Koran. Together Roman Empire collapsed, the revelations in the Koran. The with the Koran, hadith became the the Roman Catholic Church Prophet was also a skilled military basis for what was to become remained a predominant cultural and political leader, uniting warring Sharia, or Islamic law. and political power in Europe tribes under a single constitution throughout the Middle Ages. It had and amassing an army. Within a The Roman Catholic Church also a monopoly on the dissemination of century of his death, Islam had formulated its own laws, known as written texts—and the knowledge spread from the Arabian Peninsula canons; they governed the beliefs they contained—before the advent as far as South Asia and North and behavior of mainly the clergy at of printing, and consequently Africa to create the Islamic Empire. first, but later of the congregation, exercised a significant influence on too. The Italian legal scholar Gratian government and the law. However, Codifying religious law was the first to compile the canons this period also saw struggles The Islamic Empire developed a into a comprehensive treatise, called between the Church and monarchy sophisticated legal system that was Decretum Gratiani. It was the first and between the monarchy and its inspired by Muhammad’s example of six texts collected into the Corpus citizens for control of the law. and based on study of the Koranic juris canonici, which was completed text. Muhammad’s disciples had also by the 14th century and became the Meanwhile, in Arabia in the recorded many hadith—sayings and definitive reference of canon law. 7th century, the Prophet Muhammad actions ascribed to the Prophet founded the religion of Islam. He and his family and companions. Islamic and Christian scholars told of a divine revelation of the These hadith, once they had been also incorporated ideas from the words of God, which he began verified by Islamic judges and legal Classical Greek philosophers, such preaching in Mecca in 610, and scholars, provided commentary and as the concept of natural law, into continued until his death in 632. their cultures. Gratian in his Decretum said that natural law