The Law's Beginnings

THE LAW’S BEGINNINGS

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THE LAW’S BEGINNINGS Edited by

F.J.M. Feldbrugge

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

Published by: Brill Academic Publishers P.O. Box 9000, 2300 PA Leiden, The Netherlands [email protected] http://www.brill.nl Distributed in Canada, USA and Mexico by: Brill Academic Publishers P.O. Box 605 Herndon VA 20172 United States of America Tel: +1 800 337-9255 (toll free, Canada & USA only) +1 703 661-1500 Fax: + 703 661-1501 E-mai:l [email protected] Distributed in all other countries by: Turpin Distribution Services Ltd Blackhorse Road Letchworth Hertfordshire SG6 1HN United Kingdom Tel: +44 (0)1462 687528 Fax: +44 (0)1462 480947 E-mail: [email protected]

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ISBN 90-04-13705-X © 2003 Koninklijke Brill NV, Leiden, The Netherlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming , recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

Contents

Foreword F. Feldbrugge Incipient Law. Aspects of Legal Philosophy P. Cliteur

vii-x

1-9

Early Law in India D. Kolff

11-22

Justice and Written Laws in the Formation of the Polis E. van der Vliet

23-43

An Aspect of Archaic Roman Law: Auctoritas tutoris B. Sirks

45-58

An Emerging Legal System in an Embryonic State. The Case of Early Medieval Ireland D. Edel The Lex Frisionum. The Genesis of a Legalized Life N. Algra † The Earliest Law of Russia and its Sources F. Feldbrugge Glimpses of Indo-European Law S. Zimmer Before Hammurabi of Babylon. Law and the Laws in Early Mesopotamia K. Veenhof Aspects of Law and Order in Early State Societies H. Claessen

59-76

77-92

93-113

115-136

137-159

161-179

VI

A New Beginning of Law among Indigenous Peoples. Observations by a Legal Anthropologist A. Hoekema

Contents

181-220

Law’s Beginning W. Witteveen

221-253

Law’s Beginnings. Some Concluding Observations F. Feldbrugge

255-280

Contributors Index

281 283-285

Foreword

THE ORIGINS OF THIS PROJECT Anybody familiar with academic research management will be aware of the strength of the research model dominant in the natural sciences: on the basis of available knowledge, an hypothesis is put forward, information is collected in order to prove the veracity of the statement contained therein, and after analyzing and evaluating this information a conclusion is reached about this statement (true, untrue, or unproven). In other areas of academic endeavour – e.g. the humanities, social sciences, jurisprudence – there are other valid approaches which nowadays can do with some active support. One of these is the investigation of a broader field, where, at least initially, no specific questions are asked, but a wider range of phenomena is observed and described. This procedure may then yield various alternative avenues for further research and may suggest a variety of more specific questions. The researcher is like a 19th century explorer who enters an area which is still blank on the available maps. He does not really know what he is looking for. In this spirit I devoted my farewell lecture as professor of East Europea Russkaia Pravda.1 Although this is a much-studied subject, it is still bristling with unsolved problems. Some of these concern predominantly the history of medieval Russia and its legal institutions. Others fit very well into a comparative framework. By this I mean that their solution may be helped by looking beyond the borders of medieval Russia, and, conversely, that information gleaned from the study of the Russkaia Pravda may be useful outside the field of study of medieval Russian law. One of the most important clusters of problems coming to the fore in a comparative framework could be identified roughly as ‘early law’. Even a cursory acquaintance with the Russkaia Pravda suggests parallels with other early Slavic law codes and with the Germanic leges barbarorum. The next step would be a comparison with the earliest laws of other Indo-European peoples: archaic Greek and Roman law, Old Irish law, the early laws of India and of the Hittites. Extending the range further the oldest laws of Mesopotamia come into view and then comparable legal systems outside the sphere of Western civilization: China and Japan, Africa, the native Americans, etc. A small group of experts in some of these fields met in Leiden on 23 and 24 May 2002 at a symposium entitled ‘Beginnend recht’ (more about this title below). Two papers on the overall theme were contributed additionally by a legal philosopher and a legal theorist. The symposium was organized under the aegis of the E.M. Meijers 1

Het oudste Russische recht; Gedachten naar aanleiding van de Russkaia Pravda, Leiden 1998.

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F. Feldbrugge

Instituut, the research institute of the Leiden Law Faculty. Its support and that of its director, professor Carel Stolker, is gratefully acknowledged. The papers were originally contributed in Dutch. This volume presents the English versions. Professor Claessen could not attend the symposium, but contributed a paper beforehand.

TITLE AND THEME The genesis of this project has been explained at some length in order to stress that there was no clear-cut theme from the start. It gradually assumed its contours in preliminary discussions among the participants. Initially the accent was on ‘early law’: the earliest known codifications, or at least articulate legal systems, of a number of primarily European peoples. Further consideration of what was available allowed us to be more specific. It would seem that most of the papers would be concerned with a peculiar phase of legal development in which law divested itself of its close relations with other aspects of social life and assumed a new kind of independence. In the words of the introductory text to the Symposium: In this connection one might speak of a juridification of regulation and dispute settlement, occurring at a given moment. Rules of behaviour were more clearly expressed and more subject to reproduction, i.e. they might be invoked in subsequent similar situations in unchanged form. This presupposed their fixation in one way or another, in an oral tradition, but especially in written form. Fixation in writing is usually connected with emergent public authority. The registration and sanctioning of customary law evolved into autonomous legislation. One often observes, parallel to this development, a professionalization of legal affairs: judges and other servants of the court, courts, fixed procedures, legal documents, etc. The purpose of this Symposium is to direct the attention to this phase of transition, the ‘birth’ of law. What are the conditions for the juridification indicated above? To what extent can one identify general lines or laws of development?

These ideas were reflected in the Dutch title of the Symposium ‘Beginnend recht’. In English, as in German, French or Dutch (but not in Russian), the verb ‘to begin’ may be both transitive/active (‘I begin the story’) and reflexive (‘The story begins’), but ‘Beginning law’ might also be taken to refer to a first-year student who is taking up law. ‘Incipient law’ has been used by some of the authors in this collection, but I believe ‘Law’s beginnings’ is a more felicitous term.2 The fairly generous terms of reference allowed the individual author to devote attention to those aspects of the topic which he/she felt were of the most importance.3 I have felt that it would be counterproductive to impose strict discipline on a team of

2 3

I gratefully acknowledge the suggestions made in this respect by Professor Bernard Rudden, formerly of Brasenose College, Oxford. A most interesting and competent paper on the Chinese legal tradition by Mr. B. van Rooij was presented at the Symposium, but has not been included in this collection because it would in no way fit the format to which the other papers conformed.

Preface

IX

seasoned academics of high repute, from a wide variety of disciplines; the richness and scope of this collection have been enhanced in this way. Si parva licet componere magnis: two books come to mind which attempt to do a job similar to that taken on in this volume: Henry Maine’s Ancient Law and a German collection, edited by W. Fikentscher, H. Franke and O. Köhler.4 After more than 140 years Maine’s work still towers over all that came afterwards. His grasp of the material available in his day was astounding, but of course a great amount of new material has emerged since that time. However, the boldness of his views and his incisive judgement still make his opinions relevant to modern students of the subject. The German volume has the practical drawback of being entirely in German. As a result it has perhaps not received the international recognition it would deserve on the basis of its contents. But apart from this, the collection of studies it offers suffers from a lack of homogeneity. The three editors open with a long theoretical study of the objectives and possibilities of an historical anthropology of law. This is followed by the most ambitious and longest paper, by Fikentscher, on ‘Synepeics and a synepeic definition of law’. It would seem that the author of this concept has not been successful in explaining it sufficiently to the academic community and little or nothing has been heard about it since. The bulk of the volume is taken up by a collection of papers of quite different quality and orientation. Some of them are close to the theme of the present volume and have indeed been quoted in individual papers. Other papers in the Fikentscher volume are not specifically concerned with the earliest period of legal development and deal with some question or another of legal history or anthropology, while others again offer merely a brief overview of the legal history of a specific country of culture. During the process of working on this project, we gradually acquired a clearer understanding of our central theme, and the tentative titles of the project put forward during this time reflect this understanding: the beginning of law, the origins of law, early law, incipient law, the emergence of law, etc. What is implicit in all this is that there was an era without law and that at a certain moment in history, or rather at different moments in different places, law emerged, was born. And this again requires a concept of law, in order to enable us to recognize it when it appears. Several authors in this volume have explicitly addressed this question. We have, however, refrained from postulating an articulate concept of law as an overall starting-point for our individual papers. Instead we have assumed that a general idea about law, as present in general usage, would be sufficient to start with.

4

W. Fikentscher, H. Franke & O. Köhler (eds.), Entstehung und Wandel rechtlicher Traditionen, Freiburg/München 1980.

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F. Feldbrugge

THE SEQUENCE OF THE PAPERS The collection starts with a paper by a legal philosopher (Cliteur), because some elucidation of what we understand by law seems useful. Then a series of papers deals with the earliest legal systems of several Indo-European peoples, because this is where all modern legal systems have their roots: Indian (Kolff), Irish (Edel), Greek (van der Vliet), Roman (Sirks), Germanic (Frisian: Algra) and Slavic law (Feldbrugge). This section is concluded by a paper which attempts to sketch some common Indo-European elements (Zimmer). The following section contains three papers examining legal systems outside the Indo-European sphere: the early law of Mesopotamia (Veenhof), early legal systems of the non-Western world (Claessen), and the modern symbiosis of Western and nonWestern systems (Hoekema). The collection is concluded by a short reflection on the results obtained. It goes without saying that the collection could have gained by the inclusion of papers on other legal systems which are (comparatively) well documented in their early development: Egyptian, Hittite, Chinese law, to mention the most obvious examples. The reasons for not including these were purely practical: in a two-day symposium not more than a dozen papers could be accommodated. F. Feldbrugge

Incipient Law Aspects of Legal Philosophy

Paul B. Cliteur

The initial Dutch title of the project, to which this paper is a contribution, was beginnend recht (‘incipient law’). Its subtitle read: ‘the development of law in a society, as seen from the viewpoint of legal history, legal anthropology and legal theory’. My contribution will be that of the legal philosopher or legal theoretician. Incipient law for legal philosophers. But what is law? When does ‘incipient law’ become ‘law’? Does legal philosophy provide any answers to this question? Or would it be better to consult certain legal philosophers, but not others? And if so, who are they? At first sight legal philosophers are not so well equipped to answer this question as legal historians and legal anthropologists, who, after all, have studied the first patterns of customary law that evolve into ‘law’. Or rather: written law. But it does not take long to realise that this question brings up some very fundamental issues of legal philosophy, the most obvious one being: what is law? How should those early normative patterns be interpreted? Is it ethics? Is it religion? Is it custom? And how does it relate to ‘aw’? In other words, the ‘incipient law’ issue presumes an opinion about ‘completed’ or ‘finished law’. Legal philosophers have written much about this. Or rather: this is virtually the only subject about which they write. A large chunk of legal philosophy is a search for a convincing concept of law. As you know, according to Kant, lawyers had still not succeeded in their search in the eighteenth century and I fear that the situation has not much improved since then. Every academic student of jurisprudence faces this embarrassing shortcoming when the sources of law are discussed.1 These are means to identify applicable law. As such the books mention: legislation, custom, case law and treaties. With regard to the existence of those sources there is – at any rate for Europe in the year 2002 – considerable consensus, but not as a rule about the ratio and the comparative significance of those sources of law. Or, in other words: no one will dispute that legislation, custom, case law and treaties are sources of law. But the question what the comparative importance of each of those sources is, and the question whether or not one source should be considered the foundation for the other sources evokes a cacophony of opinions. Legal philosophy, however, does comprise a school of thought that believes that the question of what law is can be answered unambiguously. It is the analytical doc-

1

For an extensive survey, see: Allen, C.K., Law in the Making, Oxford 1951 (1927), 1-60 and Williams, Glanville, Learning the Law, London 1982 (1945). Also useful: Pollock, Frederick, A First Book of Jurisprudence. For Students of the Common Law (Sixth Edition), London 1929, Part II, Chapter II and Bodenheimer, Edgar, Jurisprudence. The Philosophy and Method of the Law (Revised Edition, Fourth Printing), Cambridge (Mass.) and London 1981 (1962), 323-445.

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Paul B. Cliteur

trine that goes back to the work of John Austin and Jeremy Bentham, which was further developed by H.L.A. Hart.2 But if I understand it correctly, these legal positivists remained utopians: searching for the Holy Grail, which to this date has not been found. What’s more: many of today’s philosophers of law teach us that this Holy Grail will never be found. Below I will discuss the reasons for this.3 Let me start by making some remarks about the four sources of law referred to above. First, legislation. Legislation is a popular source of law. Most of all with the general public. One popular misconception about the study of law is that lawyers should know statutes because they contain all law exhaustively. We know that for certain areas of law such as criminal law this perception is more or less correct. In an area of law in which legal certainty is an important ideal, law based on legislation, if not to be preferred, deserves pride of place. In the nineteenth century in particular this view inspired an aspiration after codification in criminal law, constitutional and civil law.4 To what extent did those major codifications help us? Do they clearly mark the transition from incipient law to law? Of course they intended to, but reality has proven more wilful than envisaged by the legal utopians (and as I mentioned earlier: that is what the legal positivists were). Perhaps the following everyday and well-known example can serve as an illustration. In the twenties a dentist in The Hague tapped electricity illegally by blocking the electricity meter by the insertion of a pen. He was taken to court on account of ‘theft’. The Dutch criminal code defines theft as the wrongful appropriation of an item that belongs, wholly or partially, to someone else.5 But is electricity an ‘item’? And does the insertion of a pen into a meter constitute ‘appropriation’? The Dutch Supreme Court answered this question in the affirmative.6 Here lies – and that is vital to our subject – the first defeat of legal utopianism. It is, after all, the court of law that provides for clarity, not the legislator. Napoleon as well as other codifiers would no doubt have regarded this as a crushing defeat. Legal utopians are of course aware of this problem. The solution proposed by Thomas Hobbes, one of the predecessors of Austin and Bentham, was that the court use the phrase ‘in the name of the law’. And of course that is partially correct. Moreover, an attempt can be made to bind the court to the law as strictly as possible by means of stringent interpretation techniques such as a historical and grammatical interpretation.7 But that does not change the fact that legislation cannot explain itself and that the court’s discretion will never be far away.

2

3 4 5 6 7

For information about Bentham and Austin and what of their work holds up: Hart, H.L.A., ‘Positivism and the Separation of Law and Morals’, in: Harvard Law Review, 71 (1958), as cited in: H.L.A. Hart, Essays in Jurisprudence and Philosophy, Oxford, 1983, 49-87. See also: Feldbrugge, F.J.M. Tussen theologie en medicijnen. Recht als regels en recht als proces, Leiden 1968, 6, who refrains from giving a definition of law. See: Tang, G.F.M. van der, Grondwetsbegrip en grondwetsidee, Arnhem 1998. Article 310 Dutch Criminal Code. Supreme Court, 23 May 1921, Nederlandse Jurisprudentie, 1921, 564. See: Kay, Richard, ‘Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses’, in: Northwestern University Law Review, 82 (1988), 226-292.

Incipient law. Aspects of legal philosophy

3

When I was a law student myself, the gas meters in Amsterdam could be tipped in such a way as to reduce the registration of gas consumption. Was this theft? The ruling about the dentist in The Hague could be a precedent in settling this new, yet old issue. A precedent means a decision by a court of law. In particular the American philosophy of law emphasises the contribution of a court of law to the creation of law. ‘The prophecies of what the courts will do and nothing more pretentious are what I mean by law’, are the famous words written by Oliver Wendell Holmes in his essay The Path of the Law.8 He wished to view law ‘realistically’ and thought he could best do so through the eyes of the ‘bad man’. The ‘bad man’ is interested in the risk of sanctions. The people tipping the gas meters are not interested in grandiloquent considerations of natural law, but in the risk of a court equalling ‘gas’ with ‘electricity’ or ‘tipping a gas meter’ with ‘inserting a pen into a electricity meter’. Lawyers are expected to make a ‘prophecy’. That – and nothing more pretentious – is law, according to the father of American realism. As with all revolutionary theories, there are always people plus royaliste que le roi and the king of American realism was quickly passed over by students who took an even more cynical attitude towards the law than the sceptic Holmes. To Jerome Frank the prophecies were just a gamble and law came about only after the judge had pounded his gavel and pronounced a concrete judgement. Law is a ‘law suit won’. An obligation is a ‘law suit lost’.9 It will be clear that this type of law is produced all the time. In their Journal, mémoires de la vie littéraire (1835) the Goncourt brothers described the production of law as follows [in translation]: Inside the Law was buzzing about. As soon as one suspect had left the dock, another took his place. And all at a terrifying speed! One, two or three-year sentences rained down on the heads so fleetingly perceived. It was frightening to see punishment gurgle from the president’s mouth like water from a fountain, in a steady, never-ending stream. Examination, witness statement, defence and claim, it was all over in five minutes. The president turned to one side, the justices nodded, the president muttered something, and that was the judgement.

Judgement as law. Could it be so simple? The Goncourt brothers compared the law to water from a fountain. But that does not make a fountain identical to water. And although law contains an element of indeterminateness, does that mean that there is nothing but indeterminateness? Perhaps here custom could play a role, which brings us to the German Von Savigny. ‘In dem gemeinsamen Bewusstsein des Volkes lebt das positive Recht, und wir haben es daher Volksrecht zu nennen’ (positive law lives in the common awareness of the people, which is why we should call it people’s law), according to Von Savigny.10 Law, therefore, is not a conscious creation. Neither by the legislator, nor by the court. Law is a structure of spontaneous growth. It is, rather, a national spirit, working and

8 9 10

Holmes, O.W., The Path of the Law, in: Harvard Law Review, 1897, 457, cited in: Holmes, Oliver Wendell, Collected Legal Papers, Peter Smith, New York 1952, 167-202, 173. Frank, Jerome, Courts on Trial, Myth and Reality in American Justice, Princeton University Press, Princeton, New Jersey 1973 (1949), 9. Savigny, Friedrich Karl von, System des heutigen Römischen Rechts, Erster Band, Berlin 1840, 14.

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living in all individuals, which produces law. The people form a natural unit, or ‘Einheit durch die einander ablösenden Geschlechter hindurch’ [a unit transcending the successive generations), which links the present to the past.11 Not only did Von Savigny stop the aspiration after codification in Germany, but in other countries as well.12 His ideas live on in the general principles of proper administration (which, according to some administrative law experts, are principles that live in the sense of justice). In particular in the ‘seventies and ‘eighties of the twentieth century great importance was attached to principles of law. Ronald Dworkin made it his primary weapon in his fight against H.L.A. Hart’s legal utopianism.13 According to Dworkin the law cannot be identified as a ‘system of rules’, as Hart thought he did in his book The Concept of Law.14 The law includes ‘principles, policies, and other sorts of standards’. Legal positivism, which believes that the law can be identified by means of a test that is related not to content but to ‘pedigree’, fails. Law is not an order of the highest ruler in the state, as John Austin claimed, nor a system of rules, as Hart wrote. Law is a story. With this last argument the American Dworkin sustained the criticism set in by his compatriot Lon Fuller (without Dworkin paying any royalties, by the way). Fuller compares the development of law to the telling of a funny story or a joke. When you try to retell a funny story, Fuller said in 1940 in a series of lectures that were published under the title The Law in Quest of Itself, it is always the product of two factors.15 First the story as you heard it. That is, ‘as it is at the time of its first telling’.16 Legal positivists (or in my terminology: legal utopians – they who think that you can identify law with an unambiguous factual criterion) are preoccupied with this element. The legal positivist ideal translated into interpretation could be that the interpreting party tries to carefully reconstruct the story ‘as it is at the time of its first telling’. This is done when an interpretation technique such as ‘original understanding’ is used, which is favoured by various members of the American Supreme Court,17 as well as the controversial Robert Bork.18 Fuller, however, finds this much too re-

11 12 13 14 15 16 17

18

Von Savigny, System, I, 20. In the United States, for instance, through the work of James Coolidge Carter. See: Carter, James Coolidge, Law: its Origin, Growth and Function, New York and London 1907. See: Dworkin, Ronald, Taking Rights Seriously, Cambridge (Mass) 1978 and the later main work: Dworkin, Ronald, Law’s Empire, Cambridge (Mass.), London 1986. Hart, H.L.A., The Concept of Law, Oxford 1961. Fuller, Lon L., The Law in Quest of Itself, Chicago 1940 (AMS edition 1978). Fuller, The Law in Quest of Itself, 8. Such as Scalia. See: Scalia, Antonin, ‘Modernity and the Constitution’, in: Smith, E. (ed.), Constitutional Justice under Old Constitutions, The Hague, London, Boston 1995, 313-318; Scalia, Antonin, A Matter of Interpretation. Federal Courts and the Law, An Essay by Antonin Scalia with commentary by Amy Gutmann, Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, Ronald Dworkin, Princeton, New Jersey 1997. But the Chief Justice as well: Rehnquist, William H., ‘The Notion of a Living Constitution’, in: Texas Law Review, 54 (1976), 693-706. Bork, R.H., ‘Neutral Principles and Some First Amendment Problems’, in: Indiana Law Journal, Vol. 47, 1971, 1-35; Bork, Robert H., Slouching towards Gomorrah. Modern Liberalism and American Decline, New York 1996; Bork, Robert H., The Tempting of America, The Political Seduction of the Law, London 1990.

Incipient law. Aspects of legal philosophy

5

stricted. When we consider how we tell a funny story, we are aware that it is not just the story as it was told for the first time. In retelling a story, the point of the story becomes the focal point. In other words: ‘the story as it should be’.19 A retelling of the story always combines these two elements. If the story was told poorly, you try to improve on it to make it sound as you think it should. You try for maximum effect. 42 years later, in 1982, Ronald Dworkin would embroider on the same idea as Fuller in an article entitled ‘Natural’ Law Revisited.20 Like Roscoe Pound21 and Lon Fuller22 before him, Dworkin advocated a moderate or non-traditional variant of natural law. Dworkin compares the judge to a mythical figure, Hercules, who is entrusted with the difficult task of further developing the law in the light of past events, but also against the background of what could be regarded as a desirable development. Every interpreting party is a link in a process that resembles a chain novel. What is someone to do who writes a chain novel together with others? The author is bound by the past. Characters that were killed off by previous authors cannot be revived, and previous events are binding. But an author could (and should) use his creativity to help the story evolve in the best possible way, by wondering ‘which decisions make the continuing novel better as a novel’.23 In my view the above is close in spirit to Von Savigny and Fuller. Fuller concluded his 1940 lectures with the words that in interpreting the law it is impossible to ascertain whether a specific contribution is novel or rather ‘the better telling of an old story’. As to the judge, Mansfield observed: ‘he is playing his part in the eternal process by which the common law works itself pure and adapts itself to the needs of a new day’.24 This brings me to a fourth source of law: the treaty. The law of treaties as a source of law became extremely popular after World War II. In a comparatively brief period the 1948 Universal Human Rights Declaration took the world as a moral Esperanto that has been adopted almost everywhere. Some years later various European treaties (pursuant to Articles 93 and 94 of the Dutch Constitution) became directly binding in the Dutch legal system. The fundamental rights in the Dutch Constitution with its ban on review have been made virtually obsolete by the effect of human rights clauses in treaties. The sense of awe inspired by the law of treaties is also remarkable. The question whether or not certain conventional obligations should be modified met with a storm of indignation in legal circles some years ago. The law of treaties is regarded as almost

19 20

21 22 23 24

Fuller, The Law in Quest of Itself, 8. Dworkin, Ronald A., ‘Natural’ Law Revisited’, in: University of Florida Law Review, 34 (1982), 165-188, also in: David M. Adams, ed., Philosophical Problems of the Law (Second Edition), Belmont etc. 1996, 93-99. See: Pound, Roscoe, ‘Natural natural law and positive natural law’, in: Natural Law Forum, Volume 5 (1960), 70-82 en Pound, Roscoe, The Ideal Element in Law, Indianapolis 2002 (1958). As best known in: Fuller, Lon L., The Morality of Law (Revised Edition), New Haven and London 1978 (1964). Dworkin, op.cit. 94. Fuller, The Law in Quest of Itself, 140. See also 114.

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immutable. It has thus acquired a significance of quasi-natural law – or is perceived as such. Rightly so or not, I will discuss later. For the moment I wish to confine myself to the observation that philosophers of law are divided on the relation and prioritisation of sources of law. Where legal positivists and legists point to the law’s primacy, they are contradicted by realists such as Holmes, Gray25 and Frank who consider statute law merely as potential law. Legists and realists in turn contend with the followers of the Historic School, Friedrich Hayek26 or Lon Fuller27 who recognise the law in the spontaneous structuring in society. It seems this strife in legal philosophy is far from over. A ‘master rule’, the ultimate rule of recognition by which law can be distinguished from its peripheral manifestations, seems more remote than ever. This is why I dubbed the legal positivists who think they have found the key to the concept of law ‘legal utopians’. Another apt name would be ‘scientific optimists’. But the same reproach could be made against the followers of the Historic School or the realists, for they, too, believe that in custom or case law they have found that one source of law from which all other law can be derived. Fuller (who himself remained critical) described what the legal utopian has in mind as follows: ‘Its object is to develop a criterion which will enable us to distinguish between those ideas or meanings which are only trying to become law and those which have succeeded – to set up a kind of finishing line, as it were.’28 Perhaps a comparison with theology would be appropriate here, a comparison which I have taken from Fuller, but which can also be found with Kelsen. Before Hobbes and Bodin appeared on the stage, morality and jurisprudence were dominated by a multitude of ‘deities’. ‘Polytheism’ was the norm. Reason, custom, consensus, the state’s mandatory power – all were regarded as factors that could structure the relations between people. As with the old gods in Greek society and the Roman empire there was no clear division of tasks. Sometimes they were allies, and sometimes they were adversaries. But with Hobbes a new era set in: monotheism. This is when ‘one supreme power ruling over the whole legal universe’ was introduced, Fuller wrote.29 Custom, for instance, may create law only if the law refers to it. Fuller himself leans more towards polytheism than towards monotheism. The master rule is an illusion, legal utopianism untenable. It is difficult to make a demarcation between law and incipient law, between law and morale. This inevitably begs the question: why is this so? After all those efforts by the greatest minds, why is it impossible to identify the law with an unmistakable demarcation criterion, as envisaged by the legal positivist? Why are lawyers still trying to find a definition of their concept of law? Why haven’t we reached the monotheism stage yet?

25 26 27 28 29

In Gray, John Chipman, The Nature and the Sources of the Law (Second Edition from the Author’s Notes), by Roland Gray, LL.B., New York 1948 (1909). Especially in: Hayek, F.A., Law, Legislation and Liberty. A new statement of the liberal principles of justice and political economy, London, Melbourne and Henley 1982. Especially in: Fuller, Lon L., The Principles of Social Order. Selected essays of Lon L. Fuller (edited with an introduction by Kenneth I. Winston), Durham, N.C. 1981. Fuller, The Law in Quest of Itself, 56. Fuller, The Law in Quest of Itself, 80.

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My answer would be: because this is not just an intellectual task, but a search for the most satisfactory ratio of elements that can be found only through long experience. Let me explain. Many disciplines of science focus on discovering patterns in reality that occur independent of the human will. We cannot choose the law of gravity or the theory of relativity, but we should recognise certain patterns as they present themselves to us. Because jurisprudence, too, can be regarded as a science, the misconception can take root that we can study legal reality in the way we study natural reality. In this way the law could ‘in essence’ be called a command from the sovereign. Or a complex of rules that are identified as law by a master rule. Or a complex of rules and principles and standards that have evolved into a spontaneous social structure. Or ... take your pick. But this could easily give rise to the misunderstanding that the law is something that somehow exists in reality, whereas the law is a matter of what we wish to regard as such. The law is a man-made construction that we wish to use. It is a pragmatic construct, which has a more or less useful function. It presupposes an entirely different form of scientific study than is common in sciences in which a segment of reality is discovered that forces itself upon us, independent of the human will. It is possible to regard law as the rule formulated by a judge, as envisaged by Gray. Or as the judgement passed by a judge, as Frank wants to have it. Or as the rule laid down by the legislator, as defined by Austin. Or as the ‘results of human action but not of design’ arising from the spontaneous order of actions, as Hayek observed in imitation of Ferguson.30 None of those views is ‘true’ in the sense that it depicts reality better than another opinion. Each view, however, does have different consequences. As yet we do not have much experience with what those consequences are. We only have about two hundred years of experience and since then we have been experimenting with different opinions about what could be regarded as law. In the laboratory of history experiments are carried out to find the best balance between legislation, custom, treaty and case law. By the British, the Americans, the Dutch, the French and other nations. Each of these systems features an entirely different ratio between the different sources of law. Law does not mean the same to an American as it does to a Frenchman. Yet today there are many similarities between the different systems. One dominant model that tries to balance several sources of law is the model of the constitutional state. Again – as goes for other legal constructs – the constitutional state is a deliberate construction with which we are experimenting. We know that governing a country requires power. Men are no angels.31 But we have learned from our mistakes. In par-

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Hayek, F.A., ‘The Results of Human Action but not of Design’, in: Hayek, F.A., Studies in Philosophy, Politics, and Economics, 1980 (first edition 1967). ‘What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.’ James Madison in Federalist papers, edited by Isaac Kramnick, Harmondsworth 1987, no. 47.

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ticular in the 20th century.32 We know that a concentration of power in the hands of a government can easily lead to perversion. This is why we started looking for safeguards with which power can be granted to a government, but at the same time can be curbed and be brought under the control of those governed. For this purpose the constitutional state has been designed. The constitutional state indicates in what way government control can be checked by the law.33 The first element of the constitutional state is that the government or state, too, is bound by legislation. This is the principle of legality. It has aspects of constitutional law and of criminal law. Each, however, attaches great value to legislation. But the constitutional state does not coincide with the regularity of the administration. This, at any rate, has proven too restricted. We were confronted with ‘gesetzliches Unrecht’ (legal injustice) and set out to find new conceptions of the constitutional state.34 Since the sixteenth and especially the seventeenth century there have been lawyers who claimed that we can only bind the government to the law effectively if in addition to the binding force of legislation, a binding force would be awarded to subjective higher rights.35 This is the origin of natural law, which would later take the shape of constitutional or human rights to be codified. Even if they are not yet rooted in statutes or conventions, some people regard these rights as an unequivocal part of the law. As customary or natural law or as legal principles generally perceived as just. But what to do with these principles, besides establishing their existence? In 1803 John Marshall, an American judge, carried out a historic experiment. As Chief Justice in the American Supreme Court he passed a judgement in which he designated the court of law as the body that could review the binding force of the legislator’s ordinary laws against the principles contained in the American constitution.36 Case law thus became a major source of law. That case law is a source of law is therefore not a farfetched idea. It does not form part of the natural order of things. It is a historic fact. And will remain so for as long as we want it to. And we want it to as long as we like the system’s consequences. This is the actual topic of discussion. Some people say that with judicial review case law has gained much too much in importance as a source of law.37 And this is a problem because it is contrary to the ideal of democracy. Democracy is served best if legislation takes pride of place as a source of law. Laws, are, after all, – these days at any 32

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34 35 36 37

Clive Ponting called fascism the only original ‘philosophy’ of the twentieth century. See: Ponting, Clive, The Twentieth Century. A World History, New York 1999, 7. See also: Glover, Jonathan, Humanity. A Moral History of the Twentieth Century, Jonathan Cape, London 1999. See for a well-founded definition of the concept of the constitutional state (and the Anglo-Saxon equivalent constitutionalism): Zoethout, C.M., Constitutionalisme. Een vergelijkend onderzoek naar het beperken van overheidsmacht door het recht, Arnhem 1995, 218-223. Term coined by Gustav Radbruch. See: Jansen, C.J.H., ‘Gustav Radbruch’, in: P.B. Cliteur & M.A. Loth (eds.), Rechtsfilosofen van de twintigste eeuw, Arnhem 1992, 71-91. See: Corwin, Edward S., The ‘Higher Law’ Background of American Constitutional Law, Ithaca, New York 1955. Clinton, Robert L., ‘Precedent as Mythology: A Reinterpretation of Marbury v. Madison’, in: The American Journal of Jurisprudence, 1990, 55-86. See the symposium ‘The End of Democracy? The Judicial Usurpation of Politics’, in: First Things, 67 (November 1996), with contributions by Robert George, Robert Bork et al..

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rate – democratically legitimised, while court judgements are not. The counter-majoritarian dilemma of the law of review therefore implies that caution is called for. However, in practice no such caution is exercised. The higher law contained in treaties proliferates.38 On an every-increasing scale new rights are formed against which courts review the legislation. Constitutional politics have gradually usurped normal politics. This means that the question is not so much where does law start but rather where do we think that law should start. In other words: we will have to reconsider a healthy relationship between democratic politics (taking decisions by parliamentary majority) and law (awarding the power of decision to courts of law). This presumes a new view of a good relationship between the sources of law: legislation, custom, case law and treaty.

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On this subject: Wellman, Carl, The Proliferation of Rights. Moral Progress or Empty Rhetoric?, Boulder, Oxford 1999.

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Early Law in India

Dirk H.A. Kolff

The legal system of India perhaps represents the oldest living tradition of written law in the world, and certainly is more extensive and diverse than that of classical Rome. This is the more striking, as the political history of dynasties and territories on the Indian subcontinent took a more fickle course than the history of even the European subcontinent and shows anything but a stable picture. The legal system apparently was to an extent immune from the effects of the weakness and the frequent collapse of state power. The reason is that Indian law emerged from a tradition other than that of the administration of states or conflict management by a public body and kept a permanent distance from the sphere of royal power. It emanated from an independent source of authority.1 The sources of the oldest written system of Indian law are to be found neither in royal decrees or legislation nor in customary law. The point of departure is not the positive laws of the early state, but must be looked for in notions concerning the natural and eternal order of things – which even the gods are subject to – and in the norms with regard to virtue and proper behaviour summarised under the term dharma. It is true that norms of this nature can be adopted by those in power and can be prescribed by the state as legal on pain of certain sanctions. Yet, this represents a derivative form of law, not a royal prescription sui generis. It remains dependent on rules of behaviour and ethical norms formulated by brahmin teachers outside of the domain of power. Dharma originates in a place beyond the power of the king. The king is autonomous only when legislating in fields, such as taxes, that are indifferent from the point of view of dharma, because they do not concern the issue of what is ethically correct. If a man is to fulfill his destiny during his life and after and reap the harvest of his acts, then he shall live according to the universal order that can, at least partly, be descried in the laws that govern the Vedic sacrifice or are closely associated with it. This knowledge of the cosmic order does not have a divine or human origin. It is revealed or can be found in three sources of dharma: the Veda, the tradition, and Good Custom. Let us first turn to Veda and tradition. Long before the beginning of the Common Era, several versions of each of the four Veda’s were in existence, kept alive, explained, and commented on by as many 1

Much of this article is based on J. Duncan M. Derrett, Dharmasastra and juridical literature, Wiesbaden 1973; Manmatha Nath Dutt (ed.), The Dharma-Sastra or the Hindus’ Law Codes, 2 vols, Delhi 1988; J.C. Heesterman, ‘The king’s order’, Contributions to Indian Sociology (n.s.) 20, 1 (1986), 1-13; Robert Lingat, The Classical Law of India, Berkeley 1973; J.L. Shastri (ed.), Manusmrti, Delhi/Varanasi/Patna 1983; L. Sternbach, Juridical Studies in Ancient India Law Texts, Delhi 1996. I apologise for the absence of all diacritics in this article.

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brahminical schools. These schools in their turn possessed their own collections of liturgic and divine texts. The prevailing opinion was, that these texts did not contain the whole of divine revelations (sruti). The weak memory of man had not been able to retain every letter of it. In addition to direct revelation, however, man had access to a multitude of traditions based on the memory (smrti) of people, and particularly of brahmins, whose duty it was to cherish these memories and to transmit them to the next generation. This smrti literature is very extensive. In the widest sense of the term, the famous epic texts of the Mahabharata and the Ramayana also belong to this category. Initially, legal prescriptions in the modern sense of the term have hardly a place in the smrti texts. But rules for correct behaviour are constantly put forward, e.g. with regard to phonetics, pronunciation, grammar, metre, and the better understanding of the Veda, whereas much stress is laid on astronomy and the calendar – a subject of great importance when organising a sacrifice – , and finally of course on the ritual of the sacrifice itself. This latter part of the tradition was imparted in the form of sutras, very compact aphorisms in prose, apparently meant to be learnt by heart by the disciples of a master and to serve as mnemonic assistance to those initiated in their use. They are incomprehensible without further instruction or commentary. One distinguishes three categories of sutras or guidebooks: those concerning the great sacrifices, the domestic sacrifices, and finally the dharma-sutras, which set out the rights and duties of the Arya, i.e. the Indo-European speaking elite, first of the Panjab and Kashmir, then further into northwestern India, and later of Central- and South-India as well. It is possible that the emergence of the sutras as a branch of literature, which can perhaps be dated to between the sixth and third centuries before the Common Era, is connected with a strengthening of the position of the brahmins, the literati and teachers of the Aryan communities, and with a growing authority of the norms of behaviour they had formulated. In that period, brahmins were, it seems, increasingly in demand as mediators, as articulate counsellors at royal courts, and as judges. If it is valid to speak of a link between early state formation and the emergence of this literature – and I will return to this issue – , then it makes sense that the sutras gave more and more rules relevant to the social behaviour of all members of the Arya communities and their relations with non-Aryans. This was not a complete innovation. Even earlier, the rules for the performance of domestic rituals had included hints about proper moral behaviour, and in particular about the duties and privileges of the householder. But the collections known as dharma-sutras encompassed more material of this nature and probably in each of the Vedic schools such manuals came into being. They were not anymore limited to the treatment of ritual duties, but tended to what the West recognises as ‘early law’. Meanwhile it should be stressed that in the Vedic schools this element was regarded almost as a bonus addition and that it occupied a minor place in the curriculum. During the next phase of disciplinary development, separate brahminical legal schools came into being independently from the Vedic schools. The dharma-sutras were systematically studied there. The literary deposit of the new legal discipline that now emerged, is known as the genre of the dharma-shastras, texts arranged in a strictly systematical order, so that later on the British did not hesitate to assign the

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status of codes to them. The oldest dharma-shastras that have reached us date perhaps from the last centuries before the beginning of the Common Era. In ancient India, the term smrti, i.e. tradition, was, from that time onwards, applied in particular to the dharma-sutra and dharma-shastra texts. This is important, because, according to the strictest principle, the authority of the revealed sruti texts is greater than that of smrti literature, which represented a tradition handed down by many who had nothing but their memories to go by. This meant, that in cases where one could not find a Vedic text that confirmed a tradition, it was considered reasonable to assume that an underlying original text had once existed and was lost, and that the brahmin smrti authors, who must have been excellent people, had been wellacquainted with the lost original or at least represented an almost spotless line connecting contemporary law with the Vedic past. Whatever the opinions of schools and commentators on questions like these would be, such arguments that left room for multiple interpretation, would continue to be valid throughout Indian legal history. This flexibility in the construction of the law remained one of the features and also one of the strong points of Indian jurisprudence. How old this tendency always to keep open many options of exegesis of legal scripture and tradition is, it is impossible to conclude on the basis of written sources. This feature, however, can be regarded as an intrinsic element, in a sense even the core, of the oldest Indian practice of jurisprudence, which seems to be built entirely from the necessity to constantly retain suitable room for adaptation. Sometimes, according to this implicit doctrine, it was even sufficient for a person to simply look around himself in order to sense what was required to lead a correctly regulated life. The reason was the existence of a third source for the knowledge of dharma, of the rules for a virtuous life. It consisted, according to an opinion held since time immemorial, in the observation of the behaviour of those who still were versed in the ancient Arya art of living. A meeting of experts, provided they were carefully chosen from the ranks of men acquainted with so-called Good Custom (achara), was capable of giving advice in the matter. It is not improbable, historically speaking, that this source of insight must be regarded as the most ancient explicitly formulated dharma and that much of what the dharma-sutras and the oldest dharma-shastras laid down as norms, simply consisted of the maxims found over the centuries by such meetings. At the same time, this can well have been the first source of law that dried up. Yet, the legal discipline based on the dharma-shastras would take over the function of conceptualisation and consensus seeking from the older meetings of wise men, be it according to stricter and falsifiable procedures and with the help of the sophisticated techniques and refined logics known as the subdiscipline of Mimansa. My argument so far bore upon the emergence, in the course of many centuries, within the circles of higher brahminical learning, of an explicit, at first fragmentary, though later systematically formulated dharma. On the other hand, I only hesitantly hinted at the unfolding, from this dharma, of a system of positive law, maintained by the power of kings or community leaders. There can be little doubt, however, that the brahmin interpreters of the sruti texts, of the smrti literature, and of a balanced life based on Good Custom, were, already at an early stage of state formation, welcome advisers at royal courts and put their expertise to good use as censores morum, this in spite of the fact that their primary concerns were the virtue of householders and the

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hope of a reward after this life. To gain an idea how this worked in practice and how this was followed by the juridification of the more ancient brahminical philosophy of norms, it is necessary to look into the actual contents of the smrti texts, first of all those of the dharma-sutras.

VARNA AND ASHRAMA At least some dozens of such collections, most of them probably having originated in as many Vedic schools, must have enjoyed a measure of authority in Ancient India. The earliest known, though certainly not the first, manual of this kind is reputed to be related to a Vedic school that can be localised in what is now Maharashtra in Western India. Later texts came into being in Central and even in Southeast India. The differences between these texts have no doubt to do with the different positions the Aryas occupied amongst the people speaking other than Indo-European languages in the different regions and with regional differences of custom. It is true that all these sutras claim the authority of eternal dharma revealed in the beginning of time. On the other hand, however, we perceive in their prescriptions the beginnings of Indian law, tailored to social relations on the ground, though formulated as moral and ritual instruction. The didactic voice typical of the ethical manual would remain. This literature would never, until the British period, assume the tone of lawyers’ law that the West is familiar with. This characteristic of Indian law is apparent from two notions, both essential in the dharma-sutras, that serve to create order in the lives of individuals and communities, namely varna and ashrama. The four varnas are hereditary, endogamous estates; their duties are defined by brahminical theory. This type of classification is not unusual among the Indo-European speaking peoples; it offers a hierarchical social order that enjoyed general authority, though it never even remotely described the stratification as found in actual society. At the apex of this human taxonomy, the brahmins place their own varna; its authority is of a transcendental quality, because it is firmly anchored in the knowledge of the cosmological and sacrificial words and rituals as revealed to their ancestors. The brahmins thus raise themselves above the Kshatriyas, who form the second varna, that of warriors and kings. One of the oldest texts says; ‘ Know that the relationship between a brahmin ten years of age and a Kshatriya hundred years old is as that of a father to a son, but of these two it is the brahmin who is the father.’ The brahmin is not subject to any king, but only to dharma and to Him who is the regulator of sacrifice; the brahmin knows what is sin and what is not, and can pronounce on this issue. In each case, they know the adequate expiation and are competent to advise the king in such matters. The king, however, can inflict punishment, either on the brahmins’ indication, or, if his only concern is the secular order of society, independently from them. There, not in the sphere of transcendent dharma, lies his power and his duty of independent action. Whereas the Kshatriya king restores and maintains political order, if necessary with force, the third varna, that of the Vaishyas, is responsible for agrarian production and cattle keeping, the exchange of goods and the provision of credit. The fourth varna is that of the Shudras, the rest category of the non-Aryans, impure and unfree, to whom the other varnas retain a certain distance.

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As long as these four estates stick to the roles they are born to perform, the balance of the social order is assured. Without giving up the theory of varna, however, the dharma-sutras already formulate rules, e.g. about how to handle marriages between different varnas, and the complications with regard to the rules of inheritance occasioned by the dialogue with social practice. Already at a very early stage, Indian society must have thrown up hundreds of more or less articulated and distinguishable so-called castes, i.e. locally and regionally recognizable groups of families who considered each other as of similar ritual status and as potential marriage partners and to whom the concept of varna carried little meaning. Whereas the neat and changeless fourfold order of varna belonged to the Great Tradition of brahminical theory and ideology, the lived-in world of empirical anthropology was inhabited by numberless castes or jatis characterised by fluid identity change and social mobility. In addition, the brahmins could not ignore the existence of many tribes, while religious sects always emerged, fused and disappeared responding to the dynamism of beliefs that was a feature of ancient India. In reaction to this, the brahmins coined the rule of thumb, found in a number of dharma-sutras, that ‘the customs of lands, castes and families are all equally valid, provided they do not run counter to the sacred texts.’ The central issue here is, that the king, while faithfully loyal to varna theory, takes into consideration the customs of his people. How the king and his people performed this balancing act, was of no direct concern to the brahmin: they were only thinkers and systematisers, deeply involved in matters of virtue and order, but with an eye for what was practical and could be achieved by the average king and judge. The space that texts and traditions left to different opinions about rules for correct behaviour, could therefore also be invaded by the established customs of each of the lands of ancient India. A customary rule, once adopted as law, could even leave its trace in the curriculum of the law schools. This happened in a great, though countless, number of cases. Elements taken from custom were tolerated, encapsulated, appropriated, and embraced. Even marriages between members of the first three varnas appeared acceptable, though perhaps on certain conditions. Only the gap between the first three varnas and the Shudras remained unbridgeable. Inversely, brahminical juridical thought had, in its turn, an impact on local legal practice. Uniformity, classification, and hierarchisation gradually percolated down and became part of the judgements of royal law courts and the committees of arbitration of different castes. Even within the brahmins’ varna, the most self-sufficient and autonomous estate, all sorts of adaptations to context- determined by region and means of sustenance – found their way into the dharma-sutra texts. Meanwhile, though academic questions continued to belong to the province of the brahmins, the king presided over the conflicts within his realm and remained responsible for social harmony. That role was not just conceded him by the brahmins, but explicitly endorsed as his most special duty, his so-called rajadharma. Because only when society was in a state of order, could one attempt to live one’s life according to the prescriptions of one’s birth and in such a manner that one retained hope of a future existence. In addition to the conditions to be fulfilled in society in the broadest meaning of the term, which was the rationale behind the rules concerning the varnas, there was another arrangement, aiming at assisting the individual to lead a well-mannered and well-organised life. This was the fourfold ashrama classification of the lives of male

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Aryans, especially brahmins. Boys first became students at one of the rigorous schools, where they were made familiar with the texts, the way to interpret them, and with the techniques meant to master their senses and to cleanse their souls. Then a man married and as householder became one of the pillars of society; this naturally was the phase to which the dharma-sutras that cared so much for home and family, paid most attention. After this, especially for those fortunate enough to live and see the birth of their son’s son, followed old age in a jungle hermitage. For the very few there was, finally, the option to renounce all relationships with society and to set out alone on a journey of mendicancy and renunciation of the world, on the way to a life after this. It is possible that the roles of men that the brahmins thus forced into hierarchy as estates and life stages, was in reality to be found in ancient society, though in an uncoordinated and unordered way. Like so many brahminical rules, what was at stake was not so much a scheme forced on society, but an ideal type and a model. Responsible people, provided they justified their defiance with manners consistent with the logics of brahminical reasoning, could diverge from them. Marriages between varnas were a case in point. With regard to the four ashramas, the brahmins themselves warned for the consequences if the scheme, in particular the two last phases of it, would be taken too literally. On the one hand, after decades of life as a bachelor, a man could immediately become a hermit or even opt for a life of radical renunciation. Such things were not intrinsically wrong. But the sutras made it very clear that they were not recommended: to renounce the world was something for those over 70 years of age or for those without offspring. According to one of the dharma-sutras, it is the householder who, having fulfilled all his family duties, can, more than anybody else, count on reaching Brahma’s heaven. The contemporaries of the sutra editors may well have heard in this emphasis on the importance of householdership a warning against an overvaluation of the lifestyle of renunciation and religious rapture. Though the brahmins did in no way forbid it, a frequent turn to such a role was considered as socially disruptive. To postpone it to the last phase of the plan of life was their answer. Ancient India probably teemed with ecstatics and charmers, self-tormentors and mystical beggars. Such persons could acquire considerable charisma as healers, exorcists, soothsayers and the like. They had, therefore, to be curbed decisively. And people generally had to be shown the way back to the virtues of sacrifice and home, and to the education of those who would, one day, take over the care of the ancestors. One of the dharma-sutras in this connection quotes as follows from the Veda: ‘You are reborn in your offspring; this, o mortal, is your immortality.’ Just as in the case of the varna model, the brahminical maxims for a regular individual life, as laid down in the ashrama scheme, aimed first and foremost at the ethics of the individual as a member of society.

BETWEEN THE SCHOOLS AND THE COURTS The tone of the sutras, in all this, is didactic and the atmosphere that of the academies in which they were taught. Sometimes, however, especially when the subject is the

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sanctions and prescribed penances in cases of sinful or impure behaviour, the directives given tend to the juridical, to the legal aspects of family affairs, inheritance and the division of earthly goods, and to the task of the king to apply these norms in his role as judge. The brahmin literati, after all, leave the executive aspect of their recommendations to the king. It is he who can translate brahminical advice concerning penitence into a criminal verdict. The sutras only in the second instance devote any attention to the compulsory nature of the sanctions pronounced by the learned lawyers. Yet, it seems reasonable to assume that brahmins have participated in informal ad-hoc legal counsel set up ‘out of court’, so to say, to find a way forward in actual jurisprudence, not necessarily always under the auspices of a king. An important tool to maintain the social moral order was ostracism. It was part of the brahmins’ sovereignty in cases of virtue. Infringement of the rules of dharma could mean banishment from a person’s varna, and therefore from the community of Aryas, either temporarily or for good. A detailed classification of sins in the sutras assumes the character of something akin to European medieval penitential books. The ritual of excommunication is elaborated in great detail, but in addition action is recommended concerning the loss of hereditary rights a person excommunicated might have enjoyed and what the consequences of such action in terms of the ritual status of his children might be. Reinstatement in old rights was sometimes made possible on the condition of penance, which inevitably led to the elaboration of systematic dosages of suggested punishment. Notions about the importance of membership of a particular varna and about the age of a person accused, as well as about intent, selfdefence, complicity, recidivism, and mercy took shape at an early stage. The most severe penance is the injunction to commit suicide. He who kills a brahmin should seek death in battle or throw himself in a fire. And there were other similarly ghastly penances that must have had effect, even without a royal court enforcing them. Many philosophical and conceptual elements of a later law of criminal procedure are also discernible in the sutras. Parallel to these stern procedures, more merciful ones existed. A man could achieve a great deal towards recovering his old legal status by performing certain sacrifices and repeating prayers. According to one of the dharma-sutras, he who at sunrise murmurs the gayatri 1,008 times, frees himself from sin, provided he has not killed a learned brahmin. Some penances have a exemplary purpose, for instance the case of the sinner who, for the duration of his punishment, must go begging from seven households in his village while calling out: ‘Who shows charity towards a cursed man?’ Through all these various ideas one senses the competition between and the hesitations inside the different schools about the course to be followed, and particularly the disputes about what could still be defended as orthodox and to what extent solutions were practicable in a context often characterised by very heterodox custom. Often, the brahmin schools left open which of their reasonings and rules were to be applied in a particular case. As much as they could, they avoided involvement in practical things or getting their fingers burnt in conflict. But in spite of their prudent attitude, they came to occupy the central place in legal matters. A case in point is the matter of Wergeld or compensation paid between parties, of which the sutras did not speak because it was a matter that concerned the king. This was a custom that the

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schools, at least to a certain extent, took possession of, brahminised and transformed into a system of payments to brahmins, e.g. the payment of a cow. Such an atonement restored dharma, but did not represent a fine in the ‘modern’ sense, i.e. a payment to the state. In many cases, one feels, the royal interest was not at stake. Social control and pressure within the elites of the three highest varnas must more often than not have been sufficient to enforce payment of the penalty stipulated, in spite of their theoretically voluntary character. The sutras stress what one could call good manners, e.g. the duty of hospitality, the correct reception of guests at the right time, the food to be offered to every guest according to his varna, and so on. The good old Arya customs should be maintained, whether the by-product was modern law as we see it nowadays or not. For little sins the sutras prescribe a whole gamut of fasts, recitations of mantras, gifts to brahmins, and ascetic exercises. He who kills a cow, must tend a herd and feed himself exclusively with the five products of the cow: milk, curd, butter, urine, and dung. Other rules now sound more juridical to us, like those concerning the choice of the right bride, and the relative merits of the seven more or less recognised forms of marriage, some of which were not allowed for brahmins, though they were legal for the inferior varnas. Then there were the brahmins’ opinions on adoption and the law of inheritance, as well as those concerning the maximum rent one could charge for a loan. The justification for these teachings is always the maintenance of the transcendentally fixed order as given to man at the time of creation. Their purpose was not to support practices that were desirable from an administrative point of view. That was beyond the responsibility of brahmins. The message was simply that to violate universal order was sin. Penance and punishment, good manners and the law, therefore, developed together in the exchanges between the brahminical schools and the royal courts, the two clearly distinguished centres of, respectively, transcendental authority and immanent power. The crucial phenomena consist of the negotiations between these centres and the unceasing dialogues of each of them with the world of endlessly diverse custom. What we see is not primarily the taking shape of a unified legal system, let alone a process of legislation. Because brahminical authority is transcendentally founded and, therefore, fundamentally different from the power, however sacral it may be, of the king, the two occupy confronting and complementary positions and continue to speak their own languages. This has not to do with a separation of religious and secular law, neither with a separation between legislative and executive powers. Crucial is the happy absence of any legislation, because the only real law, dharma, was fixed long ago, though it was transmitted imperfectly and incompletely, and remains forever in need of contemporary reformulation and interpretation, of common sense and of a dialogue, in which the king from the point of view of his rajadharma, participates.

THE LEGAL DISCIPLINE GAINS INDEPENDENCE From amongst the brahmin teachers or gurus, a number gradually specialised as legal advisers or jurisconsults, though that did not mean they were necessarily in the

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service of the state. Knowledgeable as to the duties that bound the members of all varnas, these brahmins naturally also pronounced about the tasks of Kshatriyas, particularly about those of the kings themselves. On the one hand, the king was expected to implement the advice of the brahmins, but apart from this he had the right, in his own executive sphere, to use violence according to his own judgement, though within certain limitations as laid down by the brahmins, e.g. that he was supposed not to kill those who lost or threw away their weapons, who asked for mercy, or who fled the field of battle. His duties as a Kshatriya also served the cause of peace: he was to protect those in need of assistance and to punish those who hindered the re-establishment of order. How he managed this, was long left open in the brahminical manuals. But the later sutras devote more attention to the duty of the king, in situations in which dharma was at stake, to take the advice of his brahmin confessor or adviser. This reflects without doubt an increased authority of the brahmins of those days in general, particularly of the counsellors connected with the royal courts. Something resembling a rudimentary administrative code appears to be taking shape as early as the time of the sutras. Indications can be found in the sutras of what can be termed an embryonic law of criminal procedure. But such rules are few and they are not ordered into a system as the penances for sinners are. In daily routine, however, the dialogue of brahminical learning and royal justice must have intensified to the point that the process can for practical purposes be considered as one uniform law machine.2 It was held, for instance, that ‘criminals who have been punished by the king, are cleansed from sin and go to heaven like virtuous people who have done good deeds.’ In the view of the learned, on the condition that their primacy remained untouched in principle, the two parts of the law machine overlapped and co-operated in one department. On the one hand, a just king was not in need of constant advice, whereas brahminical thought on all sorts of dharmic subjects was often of little concern to royal management. On the other hand, as states grew, the demand for legitimate executive regulation increased. So the sutras offer ideas on the composition of a court of law, the choice of judges, the kinds of proof, e.g. the contribution to it given by witnesses, and concerning procedure in general. Encased as it were in the system of rules meant to uphold dharmic virtue, a first beginning of civil law may already be discerned in this period, for instance with regard to the acquisition of property through possession only, the payment of debt by the heir of the debtor, all of this within a largely semi-nomadic or pastoralist context. As a matter of course, the rule to fall back on in difficult cases was invariably: consult the brahmin learned! In the sutras, one finds not only the constructive element of correction or re-education, but also that of deterrence, as when fines are imposed on the owners of cattle that have caused damage to the standing crops of a field. Such a development seems to represent another step towards state law, because it is the state, not the brahmin guru, whose task it is to assure the harvest and the taxes based on it. Yet, in spite of these explorations of the administrative sphere, the sutra literature is first and foremost concerned with the registration of the norms as they emanate from the law 2

I borrow this term, denoting the workings of adjective law and the production of legal decisions in general, from Marcel Berlings and Clare Dyer, The Law Machine, 2nd ed., Harmondsworth 1986.

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schools, i.e. primarily those concerned with the maintenance of family life according to brahminical values. Often, there is an underlying defensive tone in these prescriptions, as if the Arya communities were surrounded and culturally threatened by a turbulent non-Aryan majority. This seems to reflect a political situation that could perhaps be characterised as a time of troubles. One may assume that this period of unruliness was followed by a stint of intensified state building. To the latter period we now turn. It represents a new stage of the development of Indian law during which the brahmin legal counsellors were increasingly drawn into the system of administration. The attention of many of them shifted from the family to the state. What the didactics of the old schools had not been able to regulate from the classrooms, would now more systematically be taken on by the same learned men from the royal courts themselves. That the political circumstances in which the old schools functioned, changed, is apparent from the emergence of a new genre of legal literature, better adapted to the new context and pushing aside the fragmentary dharma-sutras. I am referring to the dharma-shastras. The term shastra can be translated as science, discipline, or treatise. In many respects these disquisitions are closer to the courts of kings and to royal patronage than the sutras. They are also easier to listen to for non-brahmins. They are exclusively in verse, and in the same metre as the great epics Ramayana and Mahabharata, with which they also share the same cultural background. Their language is less archaic and is close to classical Sanskrit. Though the tone is at first rather ethical and even lyrical, now and then characterised by philosophical speculation, the material, especially in the so-called Manu dharma-shastra, which is probably the oldest surviving text of the genre, is distinctly juridical. This is not to say that the Vedic point of departure is forsaken. But far more legal themes than just family law or the law of succession are elaborated upon. Separate chapters are devoted to the function of the king (according to so-called rajadharma) and to rules that are of use to him as judge and administrator. Manu takes more than one third of his 2,694 verses to explain the tasks of directly administering a kingdom. An important part of this section consists of a methodical classification of manners of conflict management (the socalled margas). Whereas in the old schools the legal regulation of life was a small part of a curriculum that embraced all knowledge, the new legal discipline broke out of the domain of the schools and established its independent authority in specialised, monodisciplinary legal academies, where the sutras of the different Vedic traditions were received as sources of law and carried forward to new syntheses. Most important is that the shastras speak no longer to the disciples resident in the school, as the sutras did in a language meant for insiders only, but with clarity and distinctly address all those in society that bear responsibility, in particular the king as leader and judge. They continue to express smrti, though in a new idiom, presenting their meaning as the word of Brahma himself or of the sages of old. To put it differently, their standing is now emancipated and autonomous, their applicability in jurisprudence greatly enhanced. Yet, all this is not to deny, that, in the last analysis, they are concerned with the moral content and the merit of the behaviour discussed, not its punishability or administrative desirability. Seen in the wider context of the Indian history of science, the emancipation of the

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science of law is no exception. Grammar and astronomy had, probably, at an earlier date declared their independence from the Vedic schools, where, after all, what mattered was the memorisation of the Vedic texts, not the reflection of their contents. What started this development in the case of legal studies, is a question almost impossible to answer. Practically in none of these texts, soon revered and seemingly of timeless origin, the compilator or author takes the risk of exposing himself as an observer of particular facts such as the emergence of Buddhism, or the rise to power in North India of the Maurya dynasty. Historical references like these would have detracted from the transcendent authority that the shastras, in spite of their intention to be useful, needed to claim. In spite of this handicap in dating, which is a difficulty met in almost all research of Indian texts, classical indologists conclude, mostly on the basis of philological criteria, that, already about the middle of the first millennium before the Common Era, learned brahmins, specialised in legal matters, maintained a tradition of comparing the sutras they knew. It is also probable that their relationship with a royal court was closer than in the case of their colleagues in the Vedic schools. Somewhat later, during the last centuries of the millennium, Vedic schools in which, next to other scriptures, the sutras were still taught, must have existed simultaneously with mono-disciplinary schools of dharma. The latter had more of a future. The increased following of sects like that of the buddhists and the formation of states that, more than ever before, were intensively involved in the fiscal and juridical affairs of their territories, can only have led to a greater administrative demand for authoritative legal regulation. This demand the brahmins had to meet if they were to maintain their strong position in the field of the formulation of the law. The royal courts would have more to offer in return in the way of patronage than the pious donors on whom the old Vedic schools depended. This was the context of the production of dharma-shastra texts which continued for perhaps more than thousand years untill the ninth century of the Common Era. After that time, the commentators seem to have known about a hundred of them. Their total volume is immense. P.V. Kane, in his History of Dharmashastra, deals with them in more than 7,000 pages.3 Naturally, during the centuries of their most intense production, we can no longer speak of ‘early law’. The problem of the impact of the early dharma-shastras on decision making and on society in general cannot be dicussed unless one recognises that there was no demand in ancient India for legislation in the modern sense, except perhaps to a certain extent in the field of criminal matters. Neither the brahminical schools, nor the royal courts came to the fore as legislators. The early dharma texts, in other words, should not be judged as positive law. On the other hand, they are far more juridical than moral or religious treatises on norms of behaviour or on natural law. They represent far more than just remote sources of law.4 What they do give is a mass of very elaborate and sophisticated conceptual and normative legal material, fit to play a central 3 4

P.V. Kane, History of Dharmashastra, 5 vols., Poona 1930-1975. One can, therefore, only agree with Lariviere that dharmashastra represents law in a very real sense, though what ‘real’ means in the Indian cultural and historical context is a different question, as we have tried to show above. Richard W. Lariviere, ‘Dharmasastra, Custom, ‘Real Law’ and ‘Apocryphal’ Smrtis’, in Bernhard Kölver (ed.), Recht, Staat und Verwaltung im klassischen Indien, München 1997, 97-110.

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role, and no doubt often actually playing such a role, in the core institution of Indian legal decision making: i.e. in the interpretation of legal values and rules by means of dialogue between learned brahmin lawyers and judges, in the search by them for consensus and the conciliation of contradictions, and in the finding of what represented justice in each special case. The shastras shared this role, however, with two other sources of law, namely customary law and the administrative practice of issuing decrees by kings. In some cases, there may have been many legal options open to judges, and a varying room of manoeuvre left to them by those in power, but they were bound by a number of procedural rules, many well-defined concepts of justice, and an idiom of transcendentally founded notions of virtue that could not be tampered with. To sum up, firstly, brahminical interpretation of and reflection on a set of virtues founded on revelation, but incompletely handed down to posterity and, secondly, the brahmins’ dialogue with the royal courts and the world of custom were the key elements of early Indian law. Already the first sutras must have been the fruit of these processes; the same can be said of all later legal texts. Comparatively speaking, this is perhaps not surprising: the discipline of law is, after all, an eminently practical, empirical occupation. What is striking in the case of ancient India is that the interpretation of by far the greater part of written law, i.e. the part that was concerned with the brahmins’ efforts to keep alive the old Indian art of living, remained exclusively and firmly in the hands of the brahmins themselves. This feature of the history of Indian law must be understood as the natural corollary of the belief, strongly held in India even today, that power corrupts and that whoever claims authority or wants to keep it, must keep away from power and, therefore, from king and state. In India, the term ‘the authority of the state’ is a contradictio in terminis. To the extent the government yields power, its authority weakens and devaluates. To regain it, the king can try and engage the brahmin. The result is a triple alliance of, first, the sovereign sphere of virtue, which is the special domain of the brahmin learned who have access to the universal and transcendental, then an entirely different sphere of practical dominion and royal order, indispensable if one desires to maintain society in a state of virtue and, finally, the dynamic ordre vécu or lived-in order with its evolving customs, shifting loyalties, and survival strategies.5 The three are locked in continuous dialogue. The most lasting and admirable fruit of this dialogue is the Indian legal system.

5

See my ‘The Indian and the British Law Machines: Some Remarks on Law and Society in British India’, in W.J. Mommsen and J.A. de Moor (eds), European Expansion and Law: The Encounter of European and Indigenous Law in 19th- and 20th-Century Africa and Asia, Oxford/New York 1992, 201-35.

Justice and Written Laws in the Formation of the Polis

Edward Ch. L. van der Vliet

INTRODUCTION: ANTHROPOLOGICAL APPROACHES In a well-known story the anthropologist Hoebel relates how he had been questioning his Cheyenne informant continuously on matters of conflict and strife among his ‘people’, and that his informant, realising what the aims of his questioner were, said at a certain moment: ‘The Indian on the prairie, before there was the White Man to put him in the guardhouse, had to have something to keep him from doing wrong.’1 Every human society has and is based upon a set of (more or less) formal rules and customs, and every human society has the means to have these rules maintained and obeyed, also when they have not been recorded in writing. Every human society has the instruments to discipline wrongdoers and malevolent people, or, in the extreme case, to exclude them definitively. When posing the question what ‘politics’ is and how it can be defined and circumscribed in stateless societies, it always appears that it expressly involves the solving and control of conflicts, along with the organisation of common activities like feasts. ‘Custom is King’.2 The problem is, however, how ‘law’ can be distinguished from and defined in respect of ‘customs’ in stateless societies, in societies without an articulated jurisdiction, or in the (early) Greek polis, where the word nomoi may mean both ‘laws’ and ‘customs’. The problem, in other words, is, where and how to distinguish between what Pospís˘il calls ‘authoritarian’ and’customary law’.3 Bohannan proposes the criterium of ‘gross and flagrant abuses of the rules’,4 but who and what decides what ‘gross and flagrant’ is? A second problem is how these laws can be maintained and obedience enforced in societies without a state, i.e. where an institution structurally possessing a legitimated monopoly of the power to enforce, when necessary, obedience or compliance and cooperation, is absent.5 In Hoebel’s approach both as1 2 3 4 5

E.A. Hoebel, The Law of Primitive Man. A Study in Comparative Legal Dynamics, Cambridge, Mass., 1967, 4 (hereafter: Hoebel, The Law). Hoebel, The Law, 20. L. Pospís˘il, Anthropology of Law. A comparative theory, New Haven 1974, 193-197 (hereafter: Pospís˘il, Anthropology); N. Rouland, Legal Anthropology, London 1994, 126 (hereafter: Rouland, Legal). P. Bohannan, ‘The Differing Realms of the Law’, in id. (ed.) Law and Warfare. Studies in the Anthropology of Conflict, Garden City, NewYork, 1967, 43-56, at 46 (hereafter: Bohannan, ‘The Differing’). M. Abélès, ‘State’, in A. Barnard and J. Spencer (eds.)., Encyclopedia of Social and Cultural Anthropology, London & New York 1996, 527-529, at 529; H.J.M. Claessen & P Skalník, ‘Limits: Beginning and End of the Early State’, in id. (eds.), The Early State, The Hague-Paris-New York 1978, 619-635, at 630; E.R. Service, Origins of the State and Civilization. The Process of Cultural Evolution, New York 1975, 14-15 & 84; cf. M. Weber, Wirtschaft und Gesellschaft. Studienausgabe, Tübingen 1976, 122, and Service, 86-90 & 97-99. Service states that for the presence of laws, in particular of private law, enforcement is not by definition required.

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pects coincide, the definition of law and the right to enforce obedience by physical means: ‘The essentials of legal coercion are general social acceptance of the application of physical power, in threat or in fact, by a privileged party, for a legitimate cause ...’, and ‘the application of physical force by an individual or group possessing the socially recognized privilege of so acting’.6 The implication of this approach, however, is the obvious presence of elements of Staatlichkeit in every society. But it is evident from anthropological studies that in so-called stateless societies these elements are absent.7 Even in Early States ‘it is not always clear whether the decrees of a sovereign have the force of laws. The definitions of the concepts of law vary greatly, while, moreover, the data of the case studies do not permit us to draw definite conclusions about the effects of the decrees in question.’8 Although the ruler is always considered the highest judge and lawgiver, informal influences on the process of law-giving can always be discerned also. Diversity, besides, is great. The survey of the ‘Early State’ shows in only three cases (China, Iberia, and Cuba) the presence of a ‘penal code’.9 Bohannan emphasizes the absence in a ‘stateless society’ of a ‘uni-centric power system’.10 It is very doubtful, thus, whether a direct connection can be established between law-giving and jurisdiction, and the formation and evolution of early states. Yet, these elements appear to have been essential aspects of the evolution of the Greek polis in particular as a state. Law-giving was a reaction to social (internal) conflicts, and an answer to a call for justice from below. It was instrumental to the creation and legitimation of the institution of the polis as state. In this contribution I will discuss how precisely this process functioned, and, consequently, how much correction this view may need. First, however, we must agree about what can be defined as (the) law(s). One thing seems certain: the anthropological diversity of what can be considered as forming the contents and subjects of the law of primitive man, is enormous and does not allow for generalisations. Like the similar but broader defined ‘customs’, law appears to be specific to culture. I return to Hoebel. Hoebel departed from a restricted number of ‘fundamental reciprocal relations’, such as Hohfeld had formulated: demand-right/duty, privilege-right/no-demand-right, power/liability, and immunity/no-power.11 Hohfeld has had an enormous influence on the anthropological study of law. Later students, although strongly influenced by Hohfeld, often ended up being highly critical of this essentially western approach to attempting to describe different legal systems by the use of general principles of this kind, and distanced themselves from it. As Moore comments: ‘In my opinion legal anthropologists should read Hohfeld and then, cheerfully, should do without him.’12 Yet the approach by Pospís˘il, who delineates a

6 7 8 9 10 11 12

Hoebel, The Law, 27 & 28. S. Roberts, Order and Dispute. An Introduction to Legal Anthropology, Harmondsworth 1979, 21-22 (hereafter: Roberts, Order). H.J.M. Claessen, ‘The Early State: A Structural Approach’, in H.J.M. Claessen & P. Skalník (eds.), The Early State, The Hague/Paris/New York 1978, 533-596, at 559. Claessen, ‘The Early’, 559-561; table on p. 561. Bohannan, ‘The Differing’, 52. Hoebel, The Law, 46-63. S. Falk Moore, Law as Process. An Anthropological Approach, London/Henley/Boston 1978, 142 (hereafter Moore, Law).

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separate ‘field of law’ where the ‘field of customs’ and the ‘field of political decisions’ overlap, is in essence similar. Pospís˘il emphasizes procedure and abstract rules, and identifies universal ‘attributes of law’, authority, the intention of universal application [italics added, vdV], obligatio and the application of physical and psychological sanctions.13 But in this context the discussion between Gluckman and Bohannan remains fundamental. Both depart from the concepts and conceptual associations inherent to the culture and societies studied by them in order to determine what the ‘native system’ is. Gluckman in the end translates this in the terminology and categorisation of English and Roman-Dutch law, without which operation, he states, any comparative study would be impossible. Bohannan explicitly rejects this final step.14 Actually, this is a variant of the emic/etic debate.15 Part of the heavy criticisms raised against Gagarin’s book on early Greek law16 are based on a similar, essentially western and formal concept of law and philosophy of law. The far-reaching abstraction suggested by Bohannan, however, does not seem more workable. Yet, in this contribution I will attempt to describe what the ancient Greeks themselves considered to be the subject of ‘law’ and how this was related to their system of values. Bohannan defines the difference between ‘law’ and ‘custom’ by means of the concepts of ‘double institutionalization’ and ‘re-institutionalization’.17 Finally, this re-institutionalisation is the result of a variety of procedural possibilities, from ‘lumping it’, via ‘avoidance’, ‘coercion’, ‘negotiation’, ‘mediation’, and ‘arbitration’ to ‘adjudication’.18 The approach thus shifts from ‘law’ (according to Moore: ‘a category of our own culture’19) to ‘process’ (as a sociological concept). Later definitions emphasize the institutional and organisational context of legal obligations rather than the aspect of coercion.20 The central emphasis in her book is on how ‘law’ and ‘juridicial conflict-solving’ are being used as strategies to control and direct a situation, as a concrete instrument in the hands of interested groups or individuals. Also others than the socially dominant groups may make use of ‘legal ideas and process-

13

14

15

16

17 18 19 20

Pospís˘il, Anthropology and L. Pospís˘il, ‘The Attributes of Law’, in P. Bohannan (ed.), Law and Warfare. Studies in the Anthropology of Conflict, Garden City, N. Y., 1967, 25-41; see the comments by Rouland, Legal, 126-7. M. Gluckman, ‘Concepts in the Comparative Study of Law’, in L. Nader (ed.), Law in Culture and Society, Chicago 1969, 349-373 (hereafter Gluckman, ‘Concepts’), and P. Bohannan, ‘Ethnography and Comparison in Legal Anthropology’, Ibid., , 401-418. The emic approach is based on statements, concepts and interpretations deemed appropriate by the actors themselves, the etic approach on those deemed appropriate by the community of scientific observers. See A. Barnard, ‘Emic and Etic’, in: A. Barnard & J. Spencer (eds.), Encyclopedia of Social and Cultural Anthropology, London/New York 1996, 180-183; M. Harris, The Rise of Anthropological Theory. A History of Theories of Culture, London/Henley 1969 (repr. 1979), 568-604, esp. 571 (definition of emics) and 575 (definition of etics). M. Gagarin, Early Greek Law, Berkeley/Los Angeles/London 1986 (hereafter Gagarin, Early), reviewed by R.W. Wallace & R. Westbrook , American Journal of Philology 110, 1989, 362-367, esp. 3667, and by E. Ruschenbusch, Classical Philology 84, 1989, 342-5, esp. 343-4. Their criticisms of Gagarin’s view of the ‘voluntary’ nature of ancient Greek justice are, however, fully justified. Bohannan, ‘The Differing’, 46-49,esp. 47; quoted by Gluckman, ‘Concepts’, 371. L. Nader & H.F. Todd Jr., ‘Introduction: The Disputing Process’, in id. (eds.), The Disputing Process – Law in Ten Societies, New York 1978, 1-40, at 8-10. Moore, Law, 17. Moore, Law, 222.

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es ... as important factors in upholding or changing systems of inequality’.21 The point is ‘to understand situations where legal forms and legal understandings are called into existence’, and we observe that both elite and less powerful groups are active actors in that game.22 At the conference of which the collection of Starr and Collier was the product, different approaches stood diametrically opposed: the ‘cultural’ (emphasizing cultural context) and the ‘social’ (emphasizing the context of societal developments) analyses.23 This resulted into three different approaches: the ‘interactional’ (cf. ‘instrumental’), the ‘cultural’ (‘legal instruments as elements of discourse’) and the ‘institutional’ (emphasizing economic and political processes) ones. This discussion will be the background against which I will now approach the study of the early Greek legislation and codification in relation to the formation of the polis and the emergence of the state.

ARCHAIC GREECE: THE FORMATION AND EMERGENCE OF POLIS AND STATE The formation of the polis and the emergence of the state in the polis determined the evolution of Greek society in the Archaic period (7th and 6th centuries B.C). The question is, however, whether these two processes were everywhere, and not only in the greater poleis, two sides of the same coin. Yet legislation and codification by written laws obviously were an essential part of the process. The traditional view of this development can be summarized as follows. The formation of the polis, the ‘citizens state’, involved the conscious and determined creation of a societal and political order (taxis). The role of law-giving, the emergence and activities of lawgivers and the codification of laws by putting them into writing, seem obvious requirements for this process of creating social order. Another, no less fundamental, part of this development was the archaic colonisation, the foundation of numerous new poleis outside the Greek core or homeland: along the coasts of Sicily, Southern Italy, Libya, the northern shores of the Aegean, and the Black Sea. Because the citizens of this new settlements and poleis often had various origins, one of their first needs was to have the rules and laws of these new foundations and amalgamous societies securely established by undisputed laws. Greek law-giving, and the idea of creating social order through lawgiving thus, it is thought, was inextricably bound up with the colonisation and may very well have had its beginning in these so-called colonies.24 On the other hand, the driving force behind these developments seems to have been the increasing social in-

21 22 23 24

J. Starr & J.F. Collier, ‘Introduction: Dialogues in Legal Anthropology’, in id. (eds.), History and Power in the Study of Law. New directions in legal anthropology, Ithaca/London 1989, 1-28, at 10. Starr & Collier, ‘Introduction’, 25. Starr & Collier, ‘Introduction’, 20. G. Camassa, ‘Leggi orale e leggi scritte. I legislatori’, in S. Settis (ed.), I Greci. Storia Cultura Arte Società. II. Une storia greca. 1. Formazione, Torino 1996, 561-576, at 565-6 (hereafter Camassa, ‘Leggi’); K.J. Hölkeskamp, ‘Written law in archaic Greece’, Proceedings of the Cambridge Philological Society 38, 1992, 87-117, at 104 (hereafter Hölkeskamp, ‘Written’); K.J. Hölkeskamp, Schiedsrechter, Gesetzgeber und Gestezgebung im archaischen Griechenland, Stuttgart 1999, 281-2 (hereafter Hölkeskamp, Schiedsrechter).

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equality and tensions, which caused internal conflicts and also produced a ‘call for justice’. The strongest pressure in this direction came from forces from the lower and oppressed social strata.25 Its results were the establishment of (written) laws, occasionally the introduction of new laws, and, in particular, the firm foundation of political institutions in and by legislation. Wolff rightly raises the question of the foundation of the authority of this legislation.26 As an explanation he emphasizes the strong presence of Legalismus in ancient Greek culture and society. He thus sees the development of law and legal procedure in ancient Greece as a rational process, but what he presents as the answer is actually the problem that must be solved. My point of departure is the historiographical traditions concerning lawgivers and their activities in archaic Greece. Their reliability is questionable, and the idea of ‘the law-giver’ emerged as the answer to developments in Athens at the end of the fifth century B.C. My next point is the administration of justice and concepts of justice in the previous pre-polis societies in ancient Greece, in particular the world of the Homeric epics and of Hesiod. I will discuss shortly the general historical context of the early development and evolution of the polis and the field of societal and, in particular, political forces which created the frame for early Greek legislation. As far as legislation itself is concerned I will deal with, subsequently, its actual content and subjects (as far as anything can be said with relative certainty on this subject), and the social values referred to by them and expressed through them, in particular by the Athenian law-giver Solon and the Spartan poet Tyrtaios. Consequently, I will discuss the question how we should interpret the nature of this juridification. This, finally, will lead me to an evaluation of recent views of the role of legislation in the early evolution of the polis and its institutions, in particular in relation to the social and political forces which were the driving power behind this development. The particular place of Crete and the Cretan poleis in this evolution, however, must remain outside the limited scope of this paper.27

25

26 27

H.-J. Gehrke, ‘Gesetz und Konflikt. Überlegungen zur frühen Polis’, in J. Bleicken (ed.), Colloquium aus Anlaß des 80. Geburtstages von Alfred Heuss, Kallmünz 1993, 49-67 (hereafter Gehrke, ‘Gesetz’); H.J. Wolff, ‘Vorgeschichte und Entstehung des Rechtsbegriffs im frühen Griechentum’, in W. Fikentscher, H. Franke & O. Köhler (eds.), Entstehung und Wandlung rechtlicher Traditionen, München 1980, 557-579, at 557 (hereafter Wolff, ‘Vorgeschichte’), referring to K. Latte, ‘Der Rechtsgedanke im archaischen Griechentum’, Antike und Abendland 2, 1946, 63-76 (= Kleine Schriften zu Religion, Recht, Literatur und Sprache der Griechen und Römer, München 1968, 233-251), at 71-72 (=244-5); K.J. Hölkeskamp, ‘Arbitrators, Lawgivers and the ‘Codification of Law’ in Archaic Greece: Problems and perspectives’, Mètis. Revue d’anthropologie du monde grec ancien 7, (1992) [1995], 49-81, at 65; cf. 66-67 (hereafter Hölkeskamp, ‘Arbitrators’). Wolff, ‘Vorgeschichte’, 559. The recent studies by Hölkeskamp are fundamental, but in his book (Hölkeskamp, Schiedsrechter) he does not discuss the ‘Solonian’ laws of Athens. See R. Osborne, ‘Law and laws. How do we join up the dots?’, in L. G. Mitchell & P.J. Rhodes (eds.), The development of the polis in archaic Greece, London/New York 1997, 74-82 (hereafter Osborne, ‘Law’), and H.-J. Gehrke, ‘Der Nomosbegriff der Polis’, in: O. Behrends & W. Sellert (eds.), Nomos und Gesetz. Ursprunge und Wirkungen des griechischen Gesetzesdenkens, Göttingen 1995, 13-35 (hereafter Gehrke, ‘Der Nomosbegriff’), who in particular deals with Cretan texts, and Gagarin, Early. A collection of epigraphically preserved laws is given by R. Koerner, Inschriftliche Gesetzestexte der frühen griechischen Polis. Aus dem Nachlass herausgegeben von Klaus Hallof, Köln/Weimar/Wien 1993 (hereafter Koerner, IGFG), which is, however, organised by subject, splitting individual texts under different headings.

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On closer inspection the earliest Greek lawgivers (Zaleukos, Charondas, etc.) are shadowy figures disappearing in the mist of time and invented traditions.28 The traditions concerning them and their legislative activities can only be firmly observed in a much later period. Their historical reliability should thus be seriously questioned, and this consequently applies to the actual fact of their legislative activities, and the historicity of their legislation as such. Plato, in the Athens of the late fifth and first decennia of the fourth century B.C., was the first to formulate and elaborate the idea of creating an orderly polis by the means of purposeful law-giving, which was based upon the ideal and knowledge of absolute justice, and thus upon laws which are in principle eternal and unchangeable and made by one or a few legislators. As in many other respects, Plato was an original thinker in this matter too and his ideas were new and revolutionary, even if they were rooted in the historical circumstances of his age. The situation of Athens of the late fifth century was, indeed, very specific.29 It was determined by, first, the increasing power of the Athenian popular assembly as the decision-taking and legislating institution, and, on the other side, by an increasing feeling of discontent in the upper stratum of the Athenian citizenry with the existing political relations. In this context, the idea originated of opposing ‘written’ (temporary) and ‘unwritten’ (eternal) laws, and of ‘laws’ and ‘decrees’.30 First, this discontent was expressed by the wish to return, concretely, to the ‘ancestral constitution’ (patrios politeia), whatever that may have been – an idea that not long afterwards also was to take roots in Sparta too and doubtlessly in a number of other poleis as well. As an immediate consequence of the failure of the Sicilian expedition the opposition of elite and people resulted in the oligarchic coup of the ‘Four Hundred’, which soon failed, in 411 B.C. Thereafter, the people decided to establish a committee with the task of reviewing and purging the entire existing corpus of laws, reserving a particular place for what could be considered as the original ‘laws of Solon’. After the establishment, by the Spartan victors of the Peloponnesian war, of the tyrannical regime of the ‘Thirty’, and its fall and the restoration of the democracy in 403, a sharp procedural distinction was made between the making of laws in the proper sense and the issuing of decrees. In particular the introduction of a new law was subjected to strict procedural control. 31Plato’s ideas in respect of the role of lawgivers and law-giving should be understood against this background, although his actual proposal of establishing a polis-society from scratch, and based upon the ideal and knowledge of absolute justice by special lawgivers on the basis of strict logical reasoning, was absolutely revolutionary. From that moment the idea of the role of the lawgivers figured prominently both in the discussion on the ideal polis (Aristotle) and in local historiography and historical discourse. 28

29

30 31

Hölkeskamp, ‘Written’, 87-89; Hölkeskamp, ‘Arbitrators’, 51-60, see esp. 55; Camassa, ‘Leggi’, 565571; A. Szegedy-Maszak, ‘Legends of the Greek lawgivers’, Greek, Roman, and Byzantine Studies 19, 1978, 199-209; Gagarin, Early, 52. M. Ostwald, From Popular Sovereignty to the Sovereignty of Law. Law, Society, and Politics in Fifth-Century Athens, Berkeley/Los Angeles/London 1986 (hereafter Ostwald, From Popular) gives an excellent survey and explanation of this evolution, on which this section is mainly based. Ostwald From Popular; J. de Romilly, La loi dans la pensée grecque, Paris 1971. M.H. Hansen, The Athenian democracy in the age of Demosthenes. Structure, principles and ideology, Oxford /Cambridge, Mass., 1991, 162-170 (hereafter Hansen, The Athenian); R. Thomas, Oral tradition and written record in classical Athens, Cambridge etc. 1989, 40 (hereafter Thomas, Oral).

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But let me return to the period of the emergence of the Greek polis, that is in my interpretation the last quarter of the 8th century B.C. At the beginning of this period the polis did not yet exist as a political institution. Below, I will give my reasons for this rather explicit conviction. It is the age when the Homeric epics got their definitive, written form, and it is the age of the ‘farmer’-poet Hesiod. In this world the administration of justice was the prerogative of the basilèes, the chieftains. ‘Kings’ is, I think, a too heavily loaded word with a too strong association of coercive power.32 Law, which encompassed everything that was being thought of as proper behaviour among human beings, was considered to be under the protection of the highest god, Zeus. The most important question here, in the context of this paper, is what was actually involved in the administration of justice. It can best be formulated as procedure rather than principle.33 This does not mean, however, that in ancient Greek law procedural law took precedence over substantial law in a modern sense. It rather involved the way and rules whereby things were done without deeper legalistic thinking.34 The discussion and giving of the judgement took place in public, and the whole procedure was associated with the agora, the place of meeting and gathering. The famous judicial scene on the Shield of Achilles gives us a clear impression of how this proceeded.35 On the shield two towns are pictured in opposing situations: the one, in war and under siege, the other living in peace. In the latter a lawsuit is going on. A man has been killed, and one party offers to pay the fine (poinè), while the other refuses to accept. The verdict is given by the gerontes, the elders, sitting around and listening. The people look on, but do not remain silent. A costly price is set apart for the judge who, by general consent, gives the best formulation of the disputed case. As judges, the gerontes obviously have to state what the conflict actually is about. This being ascertained, the conclusion apparently will follow automatically. The main point here, however, is peaceful mediation and the solving of a conflict. A different view is presented in the Works and Days (Erga) of Hesiod. Here the basilèes, explicitly called so, are judges and administrators of justice. But Hesiod, facing them, feels himself powerless. He calls them dôrophagoi basilèes, ‘gifts eating basileis’, who take gifts and give crooked judgements in return.36 In his famous parable he shows the nightingale in the claws of the hawk, who snaps at her: ‘Miserable thing, why do you cry out? One far stronger than you holds you fast, and you must go wherever I take you, song-stress as you are. And if I please I will make my meal of you, or let you go‘37 This parable, however, has a double meaning. Implicitly, it warns the basileis in their turn, pointing to the revenging power of the god Zeus, in front of

32 33 34 35 36 37

Wolff, ‘Vorgeschichte’, 564-5. E.A. Havelock, The Greek Concept of Justice. From its Shadow in Homer to its Substance in Plato, Cambridge Mass./ London 1978, 137 (hereafter Havelock, Greek Concept). The criticisms raised against Gagarin’s approach go too far in my opinion. See above n. 15; cf . Wolff, ‘Vorgeschichte’, 576. Ilias XVIII, 497-508; see the discussion by Gagarin, Early, 26-33, esp. 30-31, and Hölkeskamp, ‘Arbitrators’, 61 and n. 32 with references to further discussion. Erga 38-39, with the commentary by M.L. West Hesiod, Works and Days. Edition with Prolegomena and Commentary, Oxford 1978, 151-2. Erga 202-212; translation by H.G. Evelyn-White, Hesiod, the Homeric Hymns and Homerica, with an English translation, Cambridge Mass. / London 1982.

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which they are no less powerless.38 Hesiod warns that the community where justice is being despised will be destroyed39 – but his words express the hope of the powerless.

The polis, the state and the laws But how can this be interpreted in a broader, more general, context? In the perspective of legal anthropology, the presence and use of this kind of judicial procedures are not unique, they show the ancient Greek world not to be different from other societies possessing the means to solve and control conflicts, which, besides, the elite, the nobles, can manipulate to their own advantage in a stratified society. The important question in the scope of this paper is how much this testifies to the presence of an administration of justice and legislation which are institutionally framed, i.e. framed by the polis or by the state, both being in line in this context. The definition of the state I use is a strict one. Only when occupants of an institutional position or a ruler have the structural and legitimate means to enforce obedience, if necessary by way of physical coercion, can a state be said to exist.40 In the world of Hesiod and Homer a state in this sense had not yet materialized, at least not among the aristocracy, and that must be, I think, the decisive argument. Only with the establishment of a socalled tyrannis, or when the polis can be effectively mobilised as a political actor – and that is the point I emphasize here -, a state can be said to exist in archaic Greece. This is not the situation reflected in the songs of Hesiod, nor in the Homeric epics. Besides, the polis was a very particular institution. It is, essentially, not defined by its external forms, but by its internal functioning. The crystallisation of the polis was first a matter of identity before it became a matter of institutions. The polis is not only an institution or a frame of connected institutions, but rather an effective instrument of political action in the hands of those who form the polis. The polis is there from the moment it has crystallized as an institution and can be mobilised politically through its communal identity. To put it precisely: the formation of the polis created at the same time the frame for the emergence of the state in the polis. This I have discussed elsewhere more extensively.41 Here it would go too far to discuss the exact date of the emergence of the polis in archaic Greece and to analyse the process in detail. For the subject of this paper, however, we must have a closer look at the field of social and political tensions wherein the emergence of the polis took form. First, it is to be observed that from the Sub-Mycenaean period on the various Greek communities had been stratified or at least ranked. In the beginning of the 8th century B.C. this stratification had become clearly articulated. The subsequent evolution was determined by, first, an apparently extremely strong growth of population, and, second, increasing social complexity, involving growing trade and exchange, and observed through the rise of specialised handicrafts, the increasing 38 39 40 41

M.-C. Leclerc, ‘L’épervier et le rossignol d’Hésiode: une fable à double sens’, Revue d’Études Grecques 105, 1992, 37-44. Erga 238-247. See n. 5. E.Ch.L. van der Vliet, ‘Models of Political Evolution and the Formation of the Polis’, Pharos. Journal of the Netherlands Institute in Athens 8, 2000, 129-148.

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spread of luxury goods and eastern imports, and the like.42 The pattern of settlement shows a shift towards the formation of greater settlements, at the cost of a great number of smaller ones, and implying a decrease of the general mobility of the population. These greater settlements were located on not very exposed hilltops or otherwise centrally situated places in the neighbourhood of a natural higher place, from where, as a basis, the surrounding countryside could be exploited and dominated. The so-called colonisation in the West (and along the northern coasts of the Aegean) essentially conforms to this pattern,43 and is simultaneous with similar developments in the Greek ‘core-area’. In the subsistence economy the importance of agriculture increased at the cost of pastoralism. Besides, the terrain of the pastoral economy moved to geographically marginal areas, towards mountainous districts and around watersheds. The origin of conflicts between neighbouring communities over land thus becomes actually visible. At the same time in a considerable number of poleis internal social tensions arose and could break out into open conflict.44 This created within the early poleis, or poleis in statu nascendi, a political space or arena which was defined by a number of fields of tension: between aristocracy and common people (demos), among the aristocracy itself, and between an ambitious, strong, influential and increasingly powerful individual leader aspiring to outshine his rivals, if necessary with support from the common people, and the other nobles, and finally, between the powerful and ambitious leader with his supporters on the one side and the community, the other nobles and common people together, on the other. When within this complex and interacting field of tensions the scale tended to skip in one direction, the other forces might combine to restore some kind of balance. Thus I imagine how this process functioned. Because the various communities did not exist in isolation, there was a permanent interaction among them, through exchange and conflict, warfare and rivalry, expressed, in particular, at the ‘international’ Sacred Games of Olympia and other places, the rise of which was simultaneous with that of the polis.45 This set of factors accompanied and determined the formation of the citizens’ state, the polis, which is so characteristic of ancient Greece. The decisive outcome was that the polis, being a political community, as such could be mobilised into action. In particular, the polis presented its citizens with a symbol with which they could identify. In this process of identification and mobilisation – ‘We, the polis ...’-, the ‘call for justice’ obviously had a key meaning and became of central importance.

42 43

44

45

A. Snodgrass, Archaic Greece. The Age of Experiment, London /Melbourne/Toronto 1980 (hereafter Snodgrass, Archaic). E.Ch.L. van der Vliet, 2001 ‘Staatsvorming als dekolonisatie. Poleis en vroege staten in Zuid-Italië. Een verkenning’, in A., J de Jong & G. Prince (eds.), Cultuurcontacten. Ontmoetingen tussen culturen in historisch perspectief, Groningen 2001, 11-22. Gehrke, ‘Der Nomosbegriff’, 18; Hölkeskamp, ‘Arbitrators’, 66-7; D.W. Tandy, Warriors into Traders. The Power of the Market in Early Greece, Berkeley/Los Angeles 1997, 229-234; cf C.G. Starr, Individual and Community. The Rise of the Polis 800-500 B.C., New York 1986, 55-63, esp. 63. Snodgrass, Archaic, 55-57, 105-106, and A. Snodgrass, ‘Interaction by design: the Greek city state’, in C. Renfrew & J. F. Cherry (eds.), Peer Polity Interaction and socio-political change, Cambrdidge etc 1986, 47-58; Hölkeskamp, ‘Arbitrators’ 67-8; Hölkeskamp, Schiedsrechter, 283.

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The content and subject of laws in the early polis It is not possible to present here a complete survey or impression of the contents of the early Greek laws. The main reason is their great diversity, not only in respect of their specific and respective rulings, but also in respect of the kinds of issues settled through them. A common theme, at least as far as the actual contents and subjects of these laws are concerned, can therefore not be distilled from them. Here I would like to stress that in this respect our situation is similar to that of the legal anthropologists facing a similar variety of laws and customs, in particular regarding the matter that formed the subject of the rules and ‘laws’ in the societies and cases studied by them, often and mostly stateless societies. As there is no such thing as the law of ‘primitive’ man, neither is there the law of the ancient Greeks. On the other hand, however, we may observe that it is actually this preoccupation with procedure which is the common and essential characteristic of early Greek legislation, and which as such is more important than the apparent diversity of the various laws.46 The choice I have made in selecting examples from this material and the accents laid here are thus expressly mine.47 Besides, in respect of the sources of information I will restrict myself as much as possible to the texts which have been preserved as inscriptions, and I will only very reluctantly make use of later written traditions, because we cannot ascertain whether or how much they actually contain ancient and original material, and, besides, we must suspect them as being for the greater part the product of later reconstructions, (re)interpretations, and ideals, if not simple inventions. These doubts also should apply to the laws of Solon which have been transmitted in Athens, on which I will have to say more later. The nature of the epigraphically preserved material, however, contributes of course to its fragmentary character, besides it being partly the product of chance finds. The epigraphic texts are often scanty, but their great advantage, on the other hand, is their undisputable authenticity. Mostly, they bear immediate testimony to the times and circumstances they were written in. This, however, also has the disadvantage of making them difficult to understand and to interpret for us, because of their obscure meanings, concise formulae, the unknown institutions or office-holders mentioned in them, and thus, apart from their fragmentary and incomplete conservation, our complete lack of knowledge of their historical context and background. In our experience, they usually start without any introduction. A rather recent find is a law text from Tiryns, from the 7th century B.C.48 Apparently, it deals with regulations concerning cultic practices. It speaks of fines that must be paid, respectively collected, to and by certain office-holders and the divinities Zeus and Athena. It mentions platiowoinoi (pourers of libations of wine, with ques46 47

48

This is a basic argument of Hölkeskamp. See the survey of the mainly epigraphic evidence by Hölkeskamp Schiedsrechter. A seIection of the more important texts is dealt with by Osborne, ‘Law’, and also Gehrke, ‘Der Nomosbegriff’, whom I cannot follow, however, when he stresses the problem of the control and distribution of land as a general theme in early Greek laws. I would rather say matters related to the definition of citizenship and heritage of landed property; cf . Gehrke, ‘Gesetz’. Supplementum epigraphicum graecum XXX 380 (hereafter SEG) = Koerner, IGFG 31 (p. 87-93); Hölkeskamp, Schiedsrechter, 257-260.

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tion mark, according to Osborne; perhaps a symposiastic club or cultic association)49, platowionarchoi, hieramnemomes (‘the remembrancer of sacred things’, a ‘priestly’ function), and an epignomon, and the plèthos (‘the common people’, but here obviously the people in the sense of the assembled or common citizenry is meant). The text prescribes who shall act, and imposes further fines, if one of the mentioned ‘authorities’ (I put this word on purpose between inverted commas, to avoid modern connotations) fails to do what he should. Another famous law, of the 6th century, comes from Dreros, on Crete.50 It is a ‘decree’ (hade ewade: ‘this was decided by’, is the formula) of the ‘polis’, and in its conclusion it is confirmed through an oath by, among others, the ‘twenty of the polis’, whatever they may have been. Besides, we may assume that in this period we are dealing with poleis which were dominated by ‘aristocracies’. The law from Dreros deals with the highest office there, that of kosmos, which the same person was forbidden to occupy more than once in ten years. It contains a regulation of the imposition of fines on him who does not obey this rule and who perseveres in imposing fines as if he were still in office after he was obliged to lay it down. He is fined with an amount, double of what he has collected. An archaic law from Chios (where the stone has been found), or Erythrai (from where it probably originated), dated in the first half of the 6th century B.C., contains a number of regulations on obviously constitutional matters.51 The text, however, is seriously damaged, and what it all is about remains a matter of guess. This text too mentions fines, but also administration of justice (in appeal?) with an important role for the dèmosiè boulè (the council of the demos). There are rules on how this council is to be composed, the days of its assembly, and in the first text basilèes are mentioned, and there is a reference to a rhetra (in Sparta: the orally formulated law) regarding – probably -, the sanctuary of the goddess Hestiè. To understand how these legal texts may have functioned, we should look at how they were displayed in public. The Chios law was inscribed on the stone in boustrophedon, that is ‘as the ploughing ox turns’, with alternating lines from left to right and from right to left. On the front side (A) this follows the length of the stone, then it continues on the side (B) from the point where it ended on the front. At the back (C) the line follows the width of the stone, and finally the remaining shorter side (D) is used.52 This gives the impression of a rather casual approach, whereby the various rules, of which we cannot be sure that their contents were related between themselves, were subsequently inscribed on the stones with short intervals. On the other hand, the inscribed laws are impressive by their monumental character and their as-

49 50

51

52

Osborne, ‘Law’, 75; cf. Gehrke, ‘Gesetz’, 55-56. R. Meiggs & D. Lewis (eds.), A selection of Greek historical inscriptions to the end of the fifth century B.C., revised edition; Oxford 1988, no. 2 (hereafter M&L); V. Ehrenberg , ‘An Early Source of PolisConstitution’ in Polis and Imperium. Beiträge zur Alten Geschichte, Zürich/Stuttgart 1965; Hölkeskamp, Schiedsrechter, 90-97. M&L 8; Hölkeskamp, Schiedsrechter, 80-86; cf. E.W. Robertson, The First Democracies. Early Popular Government Outside Athens, Stuttgart 1997, 96-101 & 90, n. 97; U. Walter, An der Polis teilhaben. Bürgerstaat und Zugehörigkeit im Archaischen Griechenland, Stuttgart 1993, 89-97. L.H. Jeffery, The Local Scripts of Archaic Greece. A Study of the Origin of the Greek Alphabet and its Development from the Eighth to Fifth Centuries B.C., Oxford 196, pl. 65.

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sociation with that other feature of new and monumental construction in the Archaic age, the temples, near the walls of which they were usually placed or found.53 A peculiar case is ‘Drakon’s Law on Homicide’. It is part of a legislation ascribed to the first Athenian lawgiver, Drakon (traditionally: 621 B.C.), and it has been inscribed on the stone during the period of the review of the Athenian corpus of laws at the end of the fifth century.54 In this way it has been preserved. It is, perhaps, superfluous to say, but the text is not without damages and lacunae. But why has this part of the Drakonian ‘corpus’ been selected for this special treatment and publication? It may have to do with problems caused by the troubles and civil strife following the oligarchic coup of 411 B.C. It deals with the procedures in case of, obviously, unintended manslaughter. Two procedures are being prescribed, which may have followed each other in practice. The dikazein, which is the task of the basileis, seems to have been the giving of a verdict ‘when the procedure is such that the judge has no choice in the matter’, while the diagnônai by the ephetai: ‘designates the actual making of a decision based on the evidence’. A similar distinction is apparently being made in procedures established by the Gortyn laws.55 Later, in the classical Athenian democracy, there is a similar way of splitting the various stages of the procedure: for instance, the Council of 500 having to judge whether there is a case, then the actual process before one of the people’s courts (the heliaia or dikasteria), and, finally, in case of a conviction, the final verdict (the penalty) being given by, again, the prytaneis of the Council of 500.56 According to this law of Drakon the convicted or guilty has to go into exile. Subsequent rules deal with the place where he is or is not admitted to come without endangering his life, and describe increasingly broader circles of kin (always supposing the absence of the next closer one) who may consent to his return. The procedure, thus, falls in two separate parts, the dikazein which means giving a judgment whether there is a case, and the diagnônai which means deciding the question of guilty or not-guilty with the implication of a penalty often already fixed by custom or law. After Drakon, Solon is said to have come to the fore as the ultimate and most important lawgiver of Athens. As I pointed out, all we know about Solon’s legislation is transmitted through a later written tradition. We may even go further. The representation of Solon as a law-giver is the product of Athenian discourse in the fourth century B.C., 57after the review of the laws at the end of the fifth century when the Athenians had decided to purge their corpus of laws and decrees because it had become completely confused and probably inconsistent, while specifically preserving the laws which were recognised or certainly known as being drafted by Solon. In the future the magistrates were expressively and strongly forbidden to use an ‘unwritten law’.58 At this general review a special place had been reserved for the laws which 53 54 55 56 57

58

Hölkeskamp, ‘Written’, 99-102; and Schiedsrechter, 278-9. M&L 86; R.S. Stroud, Drakon’s Law on Homicide, Berkeley/Los Angeles/London 1968. M. Gagarin, Drakon and early Athenian homicide law, New Haven /London 1981, 47-48. For instance in M&L 46. E. Ruschenbusch, ‘

 ´ ς  . Theseus, Drakon, Solon und Kleisthenes im Publizistik und Geschichtsschreibung des 5. und 4. Jahrhunderts v. Chr.’, Historia 7, 1958, 398-424, and Osborne, ‘Law’, 80. Andokides, On the Mysteries 87; Hansen, The Athenian,170; Ostwald, From Popular, 130 & 164; cf Wolff ‘Vorgeschichte’, 566 emphasizes that this only applied to office-holders while exercising their function, in order to protect the re-established democracy.

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were recognised as haven been given or made by Solon at the beginning of the sixth century, and which were distinguished by their respectability and had to be preserved by a special treatment. References to the laws of Solon are to this selection, and all these references occur in later rhetorical texts, e.g. fourth century forensic speeches, and scholarly literature. It is therefore obvious that also at the end of the fifth century the Athenians did not have the means and criteria to decide which ancient laws (which sometimes were remarkable because they used terms and words which were no longer understood) were really from Solon, and which were not. The original Solonian legislation reportedly had been written on wooden boards and had thus been exposed on the Akropolis. We can be sure that these original boards were destroyed when the Persians set fire to the Akropolis temples in 480 B.C., but in the fourth century obviously ‘the’ wooden boards with the laws of Solon stood on the agora. Besides, many occasional references to a law by Solon, that is without the specification of the axon or kurbis and the column where it can be found, should be considered as a strategic and intentionally vague reference to ‘an ancient and respectable law’, in the context of the oral culture which still dominated the proceedings at the Athenian law courts in the fourth century. It is this oral culture which still determined in fourth century Athens the way wherein written documents were used and referred to, ‘as memorial, ... and mnemonic aid, but not necessarily as record’.59 Accepting, however, that enough had been preserved or remembered of the greater part of this material as being reliable or authentic, what then can be concluded from it in respect of the subject and content of Solon’s legislation? A great deal of the material assembled by Ruschenbusch60 is related to two main themes, but it must be stressed that this emphasis is the result of the bias of our sources, i.e. specific forensic speeches that have been preserved because of their rhetorical qualities and which mainly deal with this particular kind of cases. The first theme concerns murder, manslaughter, and severe physical injury, the second with cases which we would consider as involving the law of inheritance, and which relates to claims on property by kin, the consequences of marriage in these respects, and deals in particular with the epikleros, the heiress through whom (landed) property was transmitted in the absence of a brother as a male heir. This theme is also a main subject of the law code of the Cretan polis of Gortyn which we know because it was inscribed on stone and displayed in public, along the walls of the temple of Apollo, in the fifth century.61 This matter regards the essence and the core of the Greek polis: the question of legal citizenship through kinship and descent and the maintenance of the number of (male) citizens, and their klèroi, the individually owned landed property which provided the citizen with his means of subsistence and which was the basis of his position and status as a citizen. Another theme found both in ‘Solon’s’ laws and in the laws of Gortyn concerns sexual misbehaviour (rape, etc.). Another law ascribed to Solon,

59 60 61

Thomas , Oral, 34-94, esp. 54-55. E. Ruschenbusch,   
. Die Fragmente des solonischen Gesetzeswerkes mit einer Textund Überlieferungsgeschichte, Wiesbaden 1983 (hereafter Ruschenbusch). R.F. Willetts, The Law Code of Gortyn. Edited with Introduction, Translation and Commentary, Berlin 1967 (hereafter Willetts, The Law); cf. J. Kohler & E. Ziebarth, Das Stadtrecht von Gortyn und seine Beziehungen zum gemeingriechischen Rechte, Hildesheim 1972 (= reprint of Göttingen 1912).

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and in our view a very curious one, is the prohibition of political passivity and the refusal to take sides in political strife (stasis).62 Special attention should be given to the laws against luxury and conspicuous wealth, the restriction or even prohibition of marriage payments, of an extensive show of pomp and wealth at funerals, or the prohibition of perfumes and the trade in them.63 We may, perhaps, compare a law from Arkadia (an inscription, again) forbidding women to wear multi-coloured dress, probably at a place of worship.64 Part of ‘Solon’s’ legislation were, besides, rules at which distance from the border it was allowed to plant olive-trees and figs. One should not forget, however, that Solon’s legislation reportedly consisted of two parts, of which the second may easily be overlooked by us but may have been the more important one in the eyes of the Greek themselves: the sacred laws, regulating the cultic calendar, cultic practices, matters related to sacrifices, etc. In this context an early 6th century B.C. law from Argos may be mentioned, prohibiting the use by ‘private persons’ (doubtlessly people of high standing are intended in the first place) of certain cultic instruments which were reserved for sacrifices by the demos.65 A few remarks must be made on the sumptuary laws and those restricting funerary rites. These concerned in particular the instruments whereby the aristocrats could articulate and enhance their social status, the ways whereby social inequality was both expressed and created. It thus concerned also the instruments of rivalry among the elite, the means which could be the instruments of evoking tensions threatening the coherence of the polis society. Similarly, I am convinced that marriage payments, which belong to the same category of expressions of social relations, both equal and unequal, were the main cause of indebtedness, and thus were at the roots of the social and economic tensions which threatened to destabilize Athenian society in the age of Solon. There can be no doubt, however, that Solon actually did write laws for the Athenians. His own words are to be found in one of his songs wherein he justifies his actions and measures.66 But we do not know what this really implied, whether he just laid down in writing what was common usage, or did actually create new laws. Probably, the result of his work was a mixture of both,67 the recording in writing being a selection, or also introducing an emphasis which involved a particular interpretation. The greatest freedom the legislator obviously had, appears to have been in the prescription of the penalties, and not in the selection of the items subject to laws. On the latter there may have been general agreement, but systematisation may not have been practised – if we can rely in this respect on the impression given by the structure of the Gortyn ‘code’, although Osborne suggests the possibility of an ordering by office-holder.68 This proposal, however, lacks proof. The 62 63 64 65 66 67 68

Ruschenbusch F 38 (p. 82-83) Ruschenbusch interprets stasis here with the old meaning of ‘external war’. Ruschenbusch F 71-73 (p. 95-97). See Osborne, ‘Law’, 79; SEG XI 1112. Koerner, IGFG no. 25 (p. 74-7). Fr.36W, 18-20. References to Solon and Tyrtaios are to the edition by M.L. West (ed.), Iambi et elegi graeci ante Alexandrum cantati. II, Oxford 1972. Gagarin, Early, 78. Willetts, The Law, 34: ‘The Gortyn code is really a codification not of law, but of laws’. Cf. Osborne, ‘Law’, 77-78, with further references.; Hölkeskamp, ‘Written’, 90; ‘Arbitrators’, 55-56; and Schiedsrechter, 262-6.

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word for ‘laws’ Solon used, however, is thesmoi69 and not nomoi, which later was the usual word for ‘laws’, but which also encompassed the notion of customs and customary behaviour. Thesmos, on the other hand, bore the connotation of being sanctioned from the outside. The thesmoi were warranted by the authority of the god Zeus, while the nomoi were the product of human actions.70

Eunomia: justice and society It is generally assumed, and part of the ancient tradition, that Solon’s legislation also involved the regulation and ordering of the Athenian political ‘constitution’. Later interpreters, at least, knew exactly what this implied. His own words are much less precise on that subject. He says: I did give the people (demos) as much geras (authority depending on status) as it was entitled to and as was suitable. I told those with power and wealth to restrain themselves, and I stood like a shield between the two parties (on another place he uses the image of the border-stone) to keep them from committing injustice to each other.71 With his words and songs Solon tried to mobilise the Athenians into political action. He achieved this aim, referring to social and moral values. My next question is, how this could have been achieved. The key word (and idea) is eunomia. Apparently it refers to a society and a situation characterized by the presence of goods laws, but its actual meaning goes deeper. It is: ‘good order’.72 This concerns the quality of social and communal life, and it thus can also be interpreted as the existence of a situation of (social) ‘harmony’. The Greek-Dutch dictionary of Montijn gives as its first meaning ‘good observation of the laws’.73 Its opposite is dusnomia. The element dus- does not so much mean bad, as rather ‘dangerous, evil minded’. Dusnomia expresses and refers to discord in society and polis, to mutual enmity, and hatred, among the citizens or groups of citizens. The idea of ‘having bad laws’ in opposition to the possession of good laws, rather is expressed by the word kakonomia. This becomes in more common use in the course of the fifth century B.C. Herodotos applies it to the Spartans, in the past: ‘at that time they were the kakonomôtatoi, the worst governed’, among the Greeks.74 ‘Eunomia’, Solon says, ‘puts crooked dikai right’ (euthunei de dikas skolias).75 He wrote the thesmoi equally for both the bad and the good, and he gave everybody the ‘straight’ right he was entitled to, or what suited him.76 Here Solon uses the verb xun-

69 70

71 72 73 74 75 76

Fr. 36W 18 & 31W. P.J. Rhodes, A Commentary on the Aristotelian Athenaion Politeia, Oxford 1981, 177; Wolff , ‘Vorgeschichte’, 562; J.W. Jones, The Law and Legal Theory of the Greeks. An Introduction, repr. Aalen 1977 (= Oxford 1956), 33-34. Fr. 5W 5-6; 37W 6-10. H.G. Liddell & R. Scott, A Greek-English Lexicon. Revised and augmented throughout by Sir Henry Stuart Jones, Oxford 1968. J.F.L. Montijn, Grieks-Nederlands Woordenboek, 5th ed.; Zwolle 1960. Hdt. I, 65. Fr. 4W 36. Fr. 5W; cf 36W 18-20; On dikè, not the same as our concept of Right with a capital, see Havelock, Greek Concept.

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harmozo, ‘to fit together’ ‘force and right’,77 to which the concept of musical ‘harmony’ is related. ‘Right’ (artios, euthus) is the adjective here with the meaning of ‘straight’, that is the opposite of ‘crooked’. Political decisions, or ‘answers’ as the Spartan rhetra says, in this way can be ‘straight’ or ‘crooked’. When in Sparta the people reacted to the proposals made by the Council of Elders and the Kings with ‘crooked’ answers, the assembly was dismissed.78 Straight or crooked are thus essential qualifications of dikè in the sense of what is said or answered. The concept of dikè or rather its plural dikai in Homer applies to what is considered as the correct or right behaviour of people (or gods) towards each other, to what ‘should happen’. It is the ‘proper thing to expect.’79 The associations related with it are not static, but dynamic, a mutual giving and taking. Solon evokes the image of the sea which is not disturbed by the wind when he wants to evoke a picture of what is the ‘most just’.80 Both Solon and before him the Spartan poet Tyrtaios wrote an elegy which is known by the title of Eunomia. Both poems have a political meaning and have political aims. Both evoke the image of the polis as it should ideally be, and both evoke the image of the ideal polis-citizen.81 Tyrtaios and Solon, like others elsewhere, mobilised their fellow-citizens to political action, and without broad support they might not have succeeded. And both appeals, obviously, achieved their aims. Solon, however, apparently had to face the strongest opposition. Tyrtaios could and did refer to the existing Spartan order, describing the unwritten but yet explicitly formulated ‘law’ whereby the Spartan polis-state was defined: both through cults and institutions, with shared place of honour and authority (geras, the Homeric expression used by Solon, but not explicitely by Tyrtaios) of the two kings, the gerontes (the council of elders), and the people. Solon, on the other side, faced the task to create this community,82 both by persuasion and coercion, but he emphasized the moral qualities of the citizen and the necessity of self-control. Greed and arrogance (koros), hubris (recklessness that knows no limits), and atè (the blinding that is caused by these) threatened to destroy the community of the Athenians. The guilty were not only the nobles driven by ambitions which nothing or nobody apparently could restrain, showing no regard for the property of the gods or that of the community, the people, but also the ‘leaders of the people’, showing neither restraint nor respect for justice.83 Obviously, the Athenian society was divided by, on the one hand, the aspirations of the aristocrats, and, on the other, by that of the demos, whereby also individual nobles did not remain aloof. The crisis had been aggravated, or had perhaps exploded (we have no information), through the prob-

77 78 79 80 81

82 83

36W 16. Tyrtaios Fr. 4W; Plut., v. Lyc. vi. Havelock, Greek Concept, 182. Fr. 4W. Havelock, Greek Concept, 256, interprets these words differently, referring to the image of the ‘ship of state’ endangered by a storm. M. Meier, Aristokraten und Damoden. Untersuchungen zur inneren Entwicklung Spartas im 7. Jahrhundert v. Chr. und zur politischen Funktion der Dichtung von Tyrtaios, Stuttgart 1998, 236-302 (hereafter Meier, Aristokraten). P.B. Manville, The Origins of Citizenship in Ancient Athens, Princeton, N..J.,1990, on the creation of the Athenian citizenship by Solon. Solon, fr. 4W 7-10.

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lems caused by debt-slavery. Athenians had been sold outside Attika (if they had not escaped by fleeing), and no longer knew how to speak their mother tongue properly – but, Solon adds, some people had been sold unjustly, and others justly.84 Apparently, the conclusion of an evolution had been reached. During the seventh century, Attika had existed in relative isolation, but at the same time the social relations were strongly hierarchical and had become rigid.85 Solon’s actions broke through this situation. I am convinced, however, that the decisive factor was his charismatic personality, and not so much the contents of the laws he wrote or formulated. But I do not want to elaborate this point here. The other question is why political support for reform could be achieved and activated through the appeal to eunomiè. Solon warned his fellow-Athenians that, if they persevered in their wrong ways, they might in the end lose their freedom and become enslaved.86 Obviously, he was not referring to the question of debt-slavery or something similar. Discord among the citizens may be the cause of stasis, ‘civil war’, and consequently lead to fatal weakness in the confrontation with external foes who will subject the polis and enslave its citizens. The loss of political autonomy is felt as enslavement, but defeat in war may also lead to real enslavement by the conquerors. That is what Solon meant. That, also, is the conclusion of the Spartan rhetra: the people will have the kratos, and that is not so much the decision-making, internal political power, but rather the power over other, in particular neighbouring poleis.87 A polis where eunomiè resided will not only prosper materially, but will also keep its independence and be victorious in battle. The same message, and the same prospect, are contained in Herodotos’ story of the Spartans being the kakonomôtatoi of the Greeks. But after the introduction of the ‘Lykourgan’ constitution, they were the strongest and militarily most powerful among the Greeks.88 Only in the wars with their neighbours, the Tegeates, they lost and were enslaved, and bound themselves in the chains they had brought with them, until they found, and brought home a certain relic, the ‘bones of Orestes’. There is no reason to assume that the social-economic tensions and conflicts which manifested themselves in Athens at the end of the 7th century B.C. and which were the immediate cause of the actions and legislation of Solon, occurred in the same form in other poleis. Yet, obviously, the ‘call for justice’ was a common and widespread phenomenon in the early poleis. Everywhere their existence and stability were threatened by political and social conflicts. The call for justice, however, was not in the first place a call for the making of just laws, for legislation based on the idea of absolute justice as we find this later on and as Plato was to propose; it did not so much concern the actual content of the laws (I don’t think that there was much disagreement in the various poleis what the content and subject of their laws should be), but rather the creation of an instrument for solving conflicts in a just way, that is to

84 85 86 87 88

Solon, fr. 34W 8-15, esp. 9-10. I. Morris, Burial and ancient society. The rise of the Greek city-state, Cambridge etc. 1987, 205; J. Whitley, The Archaeology of Ancient Greece, Cambridge 2001, 233-241. Solon, fr 4W: 18-25. Cf. Meier, Aristokraten, 269. Hdt. I, 65.

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say, it was a call for the establishment of the right procedures in the first place.89 This aspect is emphasized again and again, and it is not restricted to the legislation in the archaic period. There is a permanent concern with controlling people and situations in ancient Greek society. This is reflected in repeated prescriptions of procedures, dealing with the obligations of subsequent categories of office-holders to perform the tasks neglected by others, under increasing penalties. These should not be seen as hierarchical, centralised systems with the power of control being concentrated through intermediate levels from basis to the top, but rather as movements on a flat surface, like ripples in a pond wherein a stone has been thrown. The field of political tensions in the polis was mainly formed by, on the one hand, centrifugal forces, like personal ambitions, the exercise of power, high-handedness, and, on the other, by centripetal ones, expressed through the possession of the means of control, both formally and informally, by the community. This tension can be observed at all levels of the ancient Greek society, and it explains in my view the obsession with procedural forms which is so characteristic of the Greek epigraphic legal texts. A related aspect of this phenomenon is the idea of the polis as constituted by the politai, who form the polis by taking part in it. This not only implies strict control over office-holders, but in particular the rotation or circulation of office holding. What, then, was the frame that the societies of archaic Greece could provide for the beginning juridification? Or, in slightly different words, which were its societal and cultural foundations? Wolff’s thesis of the strong presence of an essential Legalismus in Greek society does not have many followers at the moment, and I think rightly. In this context the idea of Camassa, that before the written legislation a common tradition of oral laws existed, which was preserved and handed down in verse, is interesting and stimulating. The office of mnamôn (‘remembrancer’) in various places might be a reminiscence of that. But, unfortunately, more concrete evidence of such a tradition is lacking or at its best scanty. Besides, all epigraphic evidence of (early) laws is written in prose. This brings us to the nature of this early legislation. Osborne points out, rightly, that we only possess and see the tip of the iceberg, and he concludes that the internal coherence and systematic structure of the early laws of the poleis actually must have been much greater than it appears from these dispersed fragments. Hölkeskamp, on the other side, emphasizes the ad hoc character of this legislation, and, consequently, has more doubts about its systematic and coherent contents. The diversity and specificity of the contents and subjects of the inscribed laws, rules, and procedures is such indeed, that I think Hölkeskamp is here on the right side.

CONCLUDING REMARKS In this contribution I have thus shown in particular how the developments in relation to early legislation were related to and embedded in a field of historical and therefore changing and evolving societal forces and tensions. Its ideological aspect, the reference to eunomia and the call for justice, is overwhelming, and consequently 89

This must not be confused with the strictly western concept of ‘procedural law’; see above, esp. n. 15.

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its effect is mainly legitimating. In this I disagree with Hölkeskamp in that I interpret the detailed descriptions and delineations of the competences and responsibilities of various office-holders and offices90 not as the expression of a pre-existing and established administrative order, but rather as the expression of a concern for controlling and keeping in line a reluctant practice of unwillingness or simply disinterest, in the context of rules functioning in a predominantly oral culture.91 I interpret this as an attempt at finding a way to ensure the application of agreed rules in the future rather than as the formal expression of established rules of ensured enforcement. Legislature, rules, courts and enforcement agencies, of course, appear to have been present in the early polis. But did the rule really determine the outcome as definitively as we are used to expect? In other words, can these enforcement agencies and courts be considered as organs of the state?92 The crucial point in this question is the precise meaning of the word ‘superficial’ in Roberts’ statement that ‘the risks [scil. of comparing dissimilar with dissimilar] are perhaps greatest where the arrangements under observation bear a superficial resemblance to those in our own society about which we have established clear and dogmatic ideas’.93 Which function, then, is left for actual legislation in the archaic polis? First, apparently, it was mostly ad hoc, responding to a problem that had more or less suddenly emerged and which needed immediate solution by means of regulation.94 This ruling was or might be inscribed on a stone or a wooden board and displayed on the appropriate central place, often a temple. Sometimes this would lead to the formulation of additional rulings. This explains the fragmentary nature and great variety of content of this legislation. The next question is along the same line. It concerns how much presence of an already existing institutional frame was required for this legislation in order to be effective, a certain degree of Staatlichkeit as it can be said beautifully in German. In other words, it concerns the question whether or not a rudimentary form of polis had to be in existence. Hölkeskamp argues strongly in favour of this position, seeing the early legislation as the final stage of the institutional evolution of the early polis.95 A second aspect of this problem is the question, whether this legislation gave an institutional definition and delineation, and thus a stronger legitimacy, to the institutions which were affected by it. In other words, using again the German terminology, whether this process accentuated and strengthened the Staatlichkeit of these institutions. I do not think that these questions must or should be answered positively. No state without coercing power. And power might be yielded by individual nobles, but it was not the legitimate coercive force of the state. It could and might become that, when the powerful combined their forces, but even then much depended on the balance, or imbalance, of relations between the group acting collectively and the indi90 91 92 93 94 95

Osborne , ‘Law’, 79: ‘Clear identification of responsibility, and its limits, is all over the epigraphic remains’. Thomas, Oral, 35. See Roberts , Order, 18-21. Roberts, Order, 17. Hölkeskamp, ‘Written’, 92. Hölkeskamp, ‘Written’, 107: ‘Legislation ... became the very core of the peculiar ‘statehood’ of the polis.’; Schiedsrechter, 269-273; and ‘Arbitrators’, 77.

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vidual who had the means (or the authority, or independence) to withdraw himself from their control. Rules and institutions can be manipulated by various individuals and groups to their own advantage, and this manipulation is easiest for those who possess influence and authority in society, and who know how to make use of it to manipulate laws and rules. On the other hand, the instrumental use of institutions promotes and in the end strengthens their role and position – legitimation increases through practice -. In the early polis two things were decisive, I think, in this evolution: both mutual control (and distrust) and the mobilisation of the demos as the sustaining force of the polis. It gives a key position to public opinion, and public expressions of praise and blame. In this context legislation was an instrument of promoting and strengthening the self-awareness and confidence of those who formed the polis as a political community rather than an instrument of enforcing compliance and obedience. Its meaning was symbolic rather than immediately practical. Finally, I will try to feed these views of the evolution of law and in particular of the interaction of law-giving and state formation in archaic Greece back to the general anthropological observations from which I departed. First, I consider the incipient Greek legislation as a process of reinstitutionalisation according to Bohannan’s definition. In this way, I think, also the ancient Greek discernment of thesmos and nomos can be characterised. The actual content of the inscribed early Greek laws was a response to acutely arising problems, conflicts, and disputes. This explains why it varies considerably from place to place, and why it is, in our perception at least, unsystematic most of the time. A general theme that recurs in various places is the idea of the creation of political order, responding to common social, economic, and political tensions which manifested themselves under various forms in various places. The idea of constructing a societal and political order is not always explicitly expressed, but it certainly is implicitly present everywhere as an underlying and leading thought. I would describe my approach as essentially a procedural one. Laws, law-giving, and the administration of justice are strategic instruments in the hands of various social groupings, and not exclusively in those of the one stratum of society or exclusively the mighty and powerful. The context wherein and whereby this occurred was essential for its use and functioning, and this was the result of social-economic and political tensions. Thus I consider the approach in terms of ‘social analysis’, ‘institutional’ and ‘interactional’ according to the categorisation by Starr and Collier as the more appropriate and fruitful. This does not imply, however, an immediate causal relation between law-giving and state formation in ancient Greece. Both are the results of the same social and economic developments, but law-giving and its correlates cannot be seen as the origin of state formation, as the only means whereby a state was established. The evolution and creation of a legitimate institution with a monopoly of coercion inside the polis (and through the polis) were apart from the formulation of laws. On the other hand, however, Hölkeskamp postulates the presence of a frame of state-like institutions to give ‘teeth’ to this legislation. In his view it is an aspect of the final stage of the development of the polis as a state, and not into a state. Juridification, indeed, involves the objectivation of norms and normative rules. The law creates and establishes a neutral authority which can be referred to and which can be used, and thus also can be ma-

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nipulated. The implications of the latter, however, are often too easily overlooked. The external and, in principle, objective authority needs institutional anchoring. The presence of an institutional foundation is necessary for this legislation to have effect. According to Hölkeskamp, legislation or codification only makes sense if its ‘enforcement’ is ‘ensured’, and, consequently, the presence of the state is a ‘necessary prerequisite for the emergence of legislation’.96 But this establishment is finally the result of actions in a field of political and social tensions, including manipulation by the various parties involved. Simultaneously, the various institutions of the polis, and consequently the polis as a political authority itself, are described, defined and marked out in respect of each other through this legislation. It contributes to the establishment and creation of the polis and its institutions. Emphasizing this aspect, I see this development rather as the beginning or initiation of the institutionalisation of the polis rather than as its conclusion. Nor does the repeated practice of law-giving and of juridicial procedures presuppose the presence, from the time reflected in the Homeric epics onwards, of state-like or polis-like institutions. Yet it can be maintained that this entire practice of law-giving became a strong legitimating force, as the expression of both social values and the ideology of the polis. The ‘call for justice’ was a strong appeal and an instrument for mobilising the polis, or rather the citizens or would-be citizens of the polis, into political action. It was, however, not the only instrument thereto. Besides, the explicit definition and delineation of institutions, as a consequence of law-giving, contributed to their legitimacy and legitimation. Their use for political means further strengthened their position.

96

‘Written’, 94-98.

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An Aspect of Archaic Roman Law: Auctoritas tutoris

A.J.B. Sirks

One view on the beginning of law is that it concerns also the beginning of public authority, not the period thereafter. And, implied in this view, is law that social norm, the infraction of which is met by the application of physical force, ostracism or shame by an individual or a group possessing the privilege of acting so? That is to say: the public authority? Of course the question remains, what is to be understood by public authority. Does it have to be a king, priests, elders of tribes or phratries? All existed in Rome: the rex, flamines and pontifices, and patres of the gentes. But would it also be possible that an act between two persons acquired force regarding others, inasmuch as such third parties recognized the act? The difference would be that not only a specific group or individual, but all members of a community possessed the power of sanction and thereby the power of making a norm between individuals a legal one. This comes close to customary law, since we discern here an opinio necessitatis. The sanction is merely the non-recognition of the act towards others than the parties involved. Thus it is a group, but not one within a society, and with a privilege: all (male) members of the society possess this right. Another question is, what is to be understood by law: the law? an orderly system? This is the danger, particularly in early societies, since law may be fragmentary there in the sense that only some perhaps isolated parts of social life have legal aspects. There exists literature on archaic Roman law, although it is not abundant.1 I restrict myself to an attempt to find a situation in archaic Roman law where something non-legal is drawn into the legal sphere, insofar that something is devised which receives acknowledgment by third parties, not because of a sanction, but because it fills a felt gap in a non-legal common conviction. In such a case we might speak of

1

For example: M. Kaser, Das alt-römische Ius, Göttingen 1949 (who, however, considers auctoritas only as ‘Vormannshaftung’ and whose views are therefore irrelevant in this survey; Th. MayerMaly, ‘Studien zur Frühgeschichte der usucapio’, ( I und II), ZSS Rom.Abt. 77, 1960, 16-51 and 78, 1961, 221-276; Th. Mayer-Maly, s.v. ususcapio, RE VI A, Stuttgart 1961, 1094-1131,esp. 1098-1102; several works by G. Franciosi, such as Famiglia e persone in Roma antica: dall’età arcaica al Principato, Torino 1989; J.G. Wolf, ‘Funktion und Struktur der Mancipatio’, Mélanges A. Magdelain, s.l. 1998, 501-524; A. Magdelain, ‘Le Ius archaïque’, MEFRA 98, 1986, 265-358; S. Tondo, Aspetti simbolici e magici nella struttura giuridica della manumissio vindicta, Milano 1967, deals with the ritual of the manumission and does not enter into the requirement of auctoritas for this.

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the beginning of something legal. I take for this purpose the auctoritas, to be more precise, the auctoritas tutoris.2 In his Institutions, Gaius discusses, in a way not all too clear to us, the tutela impuberum (the guardianship over pupilli, i.e., Roman citizens no longer under the patria potestas (since their pater familias had died) but still not of puberty age) and the tutela mulierum (the guardianship over women). He first discusses the testamentary institution of a tutor (in 1.144), after which he moves on to the intestate rule, according to which the adgnatus proximus, the nearest relative in male line, is tutor (1.155). At no point does he say why an impubes needs a tutor. Regarding women, on the other hand, he says that tutela was necessary since the ancient jurists were of the opinion that women enjoyed an unstable mind (1.144; likewise in 1.190), although Gaius doubts the correctness of this view. As regards the adgnatus proximus, any change in the family relation (capitis deminutio) cut off this tie and consequently the possibility to become a tutor on this account (1.158-159, 163, 164). Only later it becomes clear, what the reason for the tutela over the pupillus is: sane patroni filius, etiamsi impubes sit, libertae efficietur tutor, quamquam in nulla re auctor fieri potest, cum ipsi nihil permissum sit sine auctoritate tutoris agere (1.179): ‘Indeed, the son of a patron, even if he is an impubes, becomes tutor of the freedwoman, although he can in no way become an auctor, since it is not permitted to him to act without a tutor’s auctoritas.’ In 1.184 it appears that the tutor mulieris had to be auctor for the woman. In 1.190 Gaius speaks of the tutor who exercizes his auctoritas in the case, but also, that he becomes auctor (auctor fieri). Further, that the testament made by a woman sine auctoritate tutoris, lacks effect (2.121-122). Impuberes and women may cause another person to oblige himself towards them without their tutor’s auctoritas, but cannot bind themselves towards somebody else without this auctoritas (3.91, 107, 119). For the formal release of an obligation (acceptilatio) a woman also needs her tutor as auctor, though in another way one may pay to her and be legally released (3.171). There is no reason why the same would not be valid for the pupil as well. Remarkable though it is, Gaius does not give a reason for the tutela impuberum (contrary to the tutela mulierum). In the Digest we further see that an impubes may possess naturaliter, but not civiliter if the auctoritas of his tutor is lacking. To possess civiliter was a requirement fur the usucapion:

2

Auctoritas has several aspects, such as the auctoritas patrum (the Senate), of which the auctoritas regarding the usucapion has attracted the main interest of Roman law scholars (see in the preceding note Mayer-Maly and A. Magdelain, ‘auctoritas rerum’ in RIDA 5 (= Mélanges F. de Visscher), 1950, 127-153). The question, whether there is a common concept behind all these aspects has been dealt with by L. Amirante, ‘Il concetto unitario dell’auctoritas’ in: Studi in honore di Siro Solazzi, Napoli 1948, 375-390, according to whom (376-377) it signifies the potestas of the pater familias as power towards extranei, in which relation it assumes the meaning of a (purely legal) guarantee. It is remarkable that we do not find a reference to it in G. Wissowa, Religion und Kultus der Römer, München 1912, but even more, after the studies of Wagenvoort, not in K. Latte, Römische Religionsgeschichte, München 1960. Auctoritas is present in a variety of contexts, which Mayer-Maly (above) I, 30-31 sums up; I restrict myself to the cases dealt with in the text.

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here too it appears that a pupil could not create a right in itself.3 I shall return to this point. It is clear that certain legal acts, in any case specific Roman acts like the mancipatio or acceptilatio, required auctoritas or that the party involved had an auctor. In the case of impuberes infantes (children who could not yet speak) only the tutor could perform those acts, while impuberes fantes (children who could speak) and female puberes could perform themselves, but without any effect if the tutor did not show his consent or was not present. Payments made to them without their tutor’s consent were valid, but any obligation they engaged without it, and the relinquishment of rights (such as property), was invalid and effectless. Tutor was, unless this was especially arranged (mainly by testament), the adgnatus proximus, the nearest male relative in the male line. I assume that this was the original rule and that only later on one could deviate from this by way of mancipatio, as in succession the intestate rule was originally the norm until mancipatio also made other arrangements possible (the mancipatio-testament).4 In the intestate law of succession the adgnatus proximus played a role as well. If there were no heredes sui et legitimi, i.e., a wife in manu and legitimate children of the de cuius, the next heir was the adgnatus proximus. It goes without saying that impuberes did not have heredes sui. A woman might have children, but these were not her legitimate heirs, lacking the agnatic connection with her (a condition, required until the introduction of the praetorian rules of succession): mulier autem familiae suae et caput et finis est.5 In my opinion it is not accidental, that the adgnatus proximus had these two positions. The idea, that he was tutor to prevent that a testament was made, by which his expectations as heir would be frustrated, is possible but rather rationalistic, better: too rationalistic for those times. It would have been mentioned then by Gaius or other jurists. Such a consideration is, however, possible for the case of the freedwoman, where the tutela was analogously introduced to place the woman under the supervision of her manumissor and, 3

4 5

D.41, 1, 11 Marcian. 3 inst. Pupillus quantum ad adquirendum non indiget tutoris auctoritate: alienare vero nullam rem potest nisi praesente tutore auctore, et ne quidem possessionem, quae est naturalis, ut Sabinianis visum est: quae sententia vera est. D.41, 2, 1, 3 Paul. 54 ad ed. Furiosus, et pupillus sine tutoris auctoritate, non potest incipere possidere, quia affectionem tenendi non habent, licet maxime corpore suo rem contingant, sicuti si quis dormienti aliquid in manu ponat. Sed pupillus tutore auctore incipiet possidere. Ofilius quidem et Nerva filius etiam sine tutoris auctoritate possidere incipere posse pupillum aiunt: eam enim rem facti, non iuris esse: quae sententia recipi potest, si eius aetatis sint, ut intellectum capiant. See below, where I discuss the usus and auctoritas necessary for usucapion. Apparently the pupillus could exercise usus, but not auctoritas. D.41, 2, 32, 2 Paul. 15 ad Sab. Infans possidere recte potest, si tutore auctore coepit, nam iudicium infantis suppletur auctoritate tutoris: utilitatis enim causa hoc receptum est, nam alioquin nullus sensus est infantis accipiendi possessionem. Pupillus tamen etiam sine tutoris auctoritate possessionem nancisci potest. Item infans peculiari nomine per servum possidere potest. D.41, 1, 53 Mod. 14 ad Q. Muc. Ea quae civiliter adquiruntur per eos, qui in potestate nostra sunt, adquirimus, veluti stipulationem: quod naturaliter adquiritur, sicuti est possessio, per quemlibet volentibus nobis possidere adquirimus. It appears that there was an original doctrine on starting possession by pupilli, with a (modern) alternative by Ofilius and Nerva filius, accepted by Paul if the child showed enough intelligence. That again was accepted by Marcian. We see here how in the Principate the basis of possession was replaced by a new theory, based on the will to possess. The old basis clearly was no longer understood or acceptable. See M. Kaser, Das römische Privatrecht, I, München 1971, 107ff. D.50, 16, 195, 5 Ulp. 46 ad ed.

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subsequently, his descendents, and where a financial interest could certainly be present.6 But this dates from a later period. Gaius’ explanation of the tutela mulierum must be the rationalisation of a phenomenon of which the nature was no longer understood. One might say, however: who else than the adgnatus proximus? That is a correct question, but there are alternatives: the cognates, as later in the law of succession. Or: why first the adgnatus proximus as next heir and not at once the entire group of the gentiles, or, as in the Lex Cincia and the Lex Papia Poppaea, the adgnates within the sixth grade as a group? Why the restriction only regarding certain formal acts relinquishing rights and engaging obligations, and not also acquiring something or receiving payments in general? This was the situation as presented to us by authors of the first and second century AD, primarily Gaius. Yet this author refers to the veteres, the jurists of the first century BC, and to the Twelve Tables Law, of 450 or 455 BC. Cicero refers to auctoritas as well as a thing of the Early Republic. We therefore have to be aware that there may be layers of meanings and interpretations. As we shall see, with auctoritas we have to assume two meanings in any case. The act par excellence to relinquish a right was the mancipatio. This act, according to Wolf’s analysis,7 was designed by the pontiffs to enable the alienation of persons and goods, belonging to the familia: those subject to the power of the pater familias (firstly: slaves), drawing and carrying animals, later on land in Italy. The familia consisted of persons and goods, forming the kernel of farming life. The formula of the act shows that originally they should not be alienated. This is also indicated by the fact that in very early times the heirs lived in a societas ercto non cito, i.e. that the inheritance was not divided but remained in undivided ownership (erus). This kind of societas was only known to the Romans.8 One might think that the mancipatio was devised to make alienation more difficult, but rather the reverse was the case, as Wolf stresses: alienation of things forming part of the familia was impossible until the mancipatio was designed. The mancipatio had several applications: as ‘Grundgeschäft’, as ‘nachgeformtes Geschäft’ (such as the mancipatio nummo uno) and as ‘zusammengesetztes Geschäft’ (such as the emancipatio), but every time its characteristic is that it aims at having a person or a thing arrive in the power (potestas, dominium, manus) of a new pater familias, and in this way, that nothing is transferred, but that the person who acquires simply claims that the thing in question is his according to the law of the Romans, while the other simply stands by and keeps silent. This, indeed, also happened in the in iure cessio (transfer of property before a magistrate) and the revindication (the claim for one’s property), but one may wonder whether we do not actually encounter a processual application of the private law mancipatio here. In both cases, namely, the procedure starts with the proposition, for example regarding a slave, hunc ego hominem ex 6 7 8

Gai. 1.165. See my ‘Informal manumission and the lex Junia’: RIDA 3e s. 28, 1981, 247-276 for the financial aspects of these ‘living shares’. See Wolf (note 1). Gai. 3.154a: Est autem aliud genus societatis proprium civium Romanorum. Olim enim mortuo patre familias, inter suos heredes quaedam erat legitima simul et naturalis societas, quae appellabatur ercto non cito, id est dominio non diviso: erctum enim dominium est, unde erus dominus dicitur; ciere autem dividere est: unde caedere et secare et dividere dicimus.

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iure Quiritium meum esse aio (Gaius 1.119, 4.16), thus: again with the claim, one owns the person. The revindication-procedure as described by Gaius in 4.16 is, actually, human law but with a high religious content. Both parties make a formalized proposition regarding the property and then challenge each other in a bet by oath (sacramentum) for 50 or 500 asses. Since the office of the praetor dates from after the Regal Period, the oath must have been made before a priest or the King (who, however, had also sacerdotal functions). In any case this procedure was closely connected with the religion. The sum forfeited fell to the people (Gaius 4.13) which indicate a public character of the oath. The false claim is not an offense to the other party, but to the gods. The mancipatio itself consisted of this. Both alienator and alienee were present, with five adult Roman citizens as witnesses and one adult Roman citizen as libripens (scale-holder). Of course alienator and alienee were Roman citizens as well. The alienee spoke the following formula (in case of a slave or filius familias): hunc ego hominem ex iure Quiritium meum esse aio isque mihi emptus esto hoc aere aeneaque libra: ‘I say, this man is mine according to the law of the Romans and he is for me as were he bought with this bronze and by this bronze scale’. The acquiring party thus stated that he considered a sale the basis for his ownership, although a sale did not have to have taken place. Were it really a sale, then the formula served as title for the acceptance of the money (otherwise, in the case of the mancipatio nummo uno, the payment was symbolic). The party accepting the money (or symbolic payment) acknowledged that what the acquirer posited, could be posited. If this were not the case, he had taken the payment without justification and thereby committed a delict. His liability was for twice the amount of the price, and such a doubling indicates a delict. The mancipatio did not constitute, according to Wolf, the liability, but the acceptance of the money and the claim were merely connected to the mancipation act.9 This liability could be invoked by the in mancipio accipiens through the actio auctoritatis. As appears from other sources, by the 2nd. century BC it was understood that the mancipatio obliged the in mancipio dans to provide the accipiens with his auctoritas during the period of usucapion. In this sense auctoritas means: liability for having transferred property, a guarantee against eviction, ‘Vormannshaftung’, and this is the usual meaning attributed to it in Romanist studies, like Mayer-Maly’s, whose article on the early history of the usucapion comprises all anterior discussion on auctoritas. This is right for this later period, but I cannot agree for the archaic period with his conclusion that it is the mancipatio which establishes this auctoritas (in the sense of a duty), firstly because of Wolf’s argument,10 but also because it is inconsistent with what Gaius says about it and the necessity of a tutor auctor standing by (it would mean that in order to take auctoritas upon oneself, one had to have already auctoritas). Wolf does not explain why the in mancipio dans is called auctor, why the claim is called the actio auctoritatis and not, for example, the actio ex mancipatione? It is further conflicting with a source cited by Mayer-Maly: Plautus’ Curculio 495-498. Here it is said of Curculio, a pimp (leno), who wants to mancipate a slave girl: (alienos mancupatis alienos manu emittitis alienisque imperatis) nec vobis auctor ullus est nec vosmet estis ulli: ‘neither is there an auctor for you nor can you be auctor.’ Being a pimp means that one is excluded from all formal acts 9 10

Wolf (note 1) 515. Wolf (note 1) 514-515.

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where auctoritas is needed, so it was a requirement.11 Certainly, in legal terms the mancipatio established formally, once the actio auctoritatis was created, the liability, but auctoritas was nevertheless, yet in another, earlier, meaning required to perform the act of mancipatio at all. The liability is a later, legal, derivation. This brings us back to the question, what precisely the function of auctoritas was. Why could an impubes or adult woman be part of a mancipatio on the acquiring side, but not on the alienating side, i.e. as auctor?12 Why, if I buy from a pupil without his tutor assisting with his auctoritas, can I not acquire ownership by way of usucapion?13 This brings us to the difference between a male pubes on one hand and the male impubes and the female on the other. It is the power (or force) of male reproduction.14 That the difference is to be found here follows from the fact that originally Roman majority began only with actual puberty; if this did not show or one was sterile (the case of a spado), there was no majority. Only later on majority was fixed at the age of 14 for normal boys and 18 for spadones.15 Thus the essential of majority was the power to reproduce and, apparently, in an ‘active’ way: that is to say, women reproduced in a ‘passive’ way. The period before puberty was a dangerous one. The impuberes wore the toga praetexta (a toga with a purple stripe) and the bulla (an amulet) around the neck, which both were relinquished at reaching puberty. Then they had auctoritas and might act as auctor. Women did not acquire these qualities at reaching puberty, although their reproductive capacity also was recognized. They might form a family on their own, but could not have a familia in the sense that they had legitimate children in their potestas. They could not act as auctor. They lacked potestas and auctoritas. As for the concept of auctoritas, I refer in this connection to Wagenvoort, who is of the opinion that auctoritas should be seen in close connection with concepts like imperium and vis genitalis. All these are emanations of power, mana.16 Imperium is the

11

12 13

14

15 16

It suffices here to observe this, but an explanation might be that the way to assist the acquirer in the eviction procedure was to prove one’s ownership and this could generally be by usucapion. For this auctoritas was necessary (see below) and if the acquirer had not yet completed the period set, the auctoritas of his predecessor was necessary too. This may have led to the claim for assistance being called the actio auctoritatis. D. 41, 1, 11 Marcian. 3 Inst: (...) Alienare vero nullam rem potest nisi praesente tutore auctore (...). D.41, 4, 2, 15 Paul. 54 ad ed. Si a pupillo emero sine tutoris auctoritate, quem puberem esse putem, dicimus usucapionem sequi, ut hic plus sit in re quam in existimatione: quod si scias pupillum esse, putes tamen pupillis licere res suas sine tutoris auctoritate administrare, non capies usu, quia iuris error nulli prodest. Of course I might overlook another, parallel distinction, which could be the real reason for the difference outcome regarding auctoritas. However, it seems to me, considering the shift with boys and the importance, attached in religion to powers and forces, particularly the reproductive force in humans, that even if there were another parallel distinction, the male reproductive force would still be decisive. D. 1, 7, 2, 1 Gai. 1 inst. Illud utriusque adoptionis commune est, quod et hi qui generare non possunt, quales sunt spadones, adoptare possunt. A.J. Miller, s.v. ‘Power’ in The Encyclopedia of Religion, gen. ed. M. Eliade, New York-London 1987, vol. 11, 467-476: The normal reaction to sacred power within a given culture can conveniently be classified under the rubrics of mana and taboo. Mana implies a positive attitude towards power within an object or symbol or person, power that can be appropriated for useful purposes (it thus concerns power that can be transferred). Taboo implies the opposite. Mana in Polynesia may best be rendered as ‘the power of being’ or ‘sacred’. This all fits well with the power which concerns us here and with Wagenvoort’s interpretations.

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power to give a drive: with a king, to give the soldiers the drive to fight and win, with farmers to give plants the impulse to grow. The result of both is felicitas, which in this context means prosperity rather than subjective happiness. As to vis genitalis, the Roman familia is part of the gens, which was founded by the ancestor, the genius.17 The Roman male wears as first name the nomen gentile, the Roman woman only this name. The gens must be perpetuated, the dead members – the divi parentes – coexist with the living members – the vivi parentes – and at funerals they first honor their descendants by attending through their personae (the masks of the deceased ancestors, carried in the funeral procession). This continuation could only happen though the male line.18 Thus the Roman familia and gens are agnatic concepts and this would explain why the agnatio was the basis of Roman intestate succession. The genius of the house, which is the genius of the gens, perpetuates itself through its descendants.19 The ancestor reproduces himself in his posterity, it is he who gives it strength, fertility and in the manifestation of the male sperm, the vis genitalis, he reveals himself again. For that reason male puberty is so important for the Romans: the genius shows his presence by causing fertility in the pubes, thus endowing him with mana.20 It is the emanation of the ancestral power and at the same time it endows the boy with power (to perpetuate), which again is a demonstration of the power of the ancestral genius to perpetuate himself. For this reason it was also important to have a son, whose first function was to be heir:21 not to inherit assets, but, as heir, to continue the gens and the family sacra.22 This power (or force), the vis genitalis, was not only important to continue the gens, it was also important for the fertility of the field and, in general, for all connected to the house (familia) if the pubes was also a pater familias. Parallel with this vis genitalis, the power to continue the gens, reveals itself another power, the auctoritas. As genius is connected with geno and gigno, increase etc., so is auctoritas with augeo, increase, expand etc.23 17

18 19 20 21 22 23

H. Wagenvoort, Roman Dynamism, Oxford 1947, 68, 69-70 (originally in Dutch: Imperium, Amsterdam 1941). The famous wallpanel from Pompeii, a phallus with the phrase ‘hic habitat felicitas’ (now Naples, National Museum, RP 22741), meant to ward off evil, must be read likewise, as the cognomen Felix with P. Cornelius Sulla. Wagenvoort’s views have, with minor criticisms, been accepted: see H.S. Versnel, Triumphus, Leiden 1970, 140 note 5. Remarkably, auctoritas is not to be found in either G. Wissowa, Religion und Kultus der Römer, München 1912, or K. Latte, Römische Religionsgeschichte, München 1960, although both underline that the archaic Roman religion connected phenomena of daily life with divine powers (Wissowa (note 3) 23-26, Latte (note 3) 8ff). Neither do they mention potestas, vis genitalis or puberty rites and rites of passage. For the special place in the house of the veneration of the genius of the pater familias, also by the slaves, see Latte (note 3) 103-104. Latte attributes this to the special place of the pater within the family, but I think this is again the result of him having the genius and thus being able to make the entire family prosper. Though mana is not discussed by Latte, I think there is no objection in applying the concept, since Latte himself describes the genius as a ‘Macht’ or ‘Kraft’, which resides in a man and represents the reproductive force. On p.104 note 1 he cites, with apparent approval, Wagenvoort on the vis genitalis (187ff). Continuation in the sense, that life begets life, not that an abstract life is passed on, as Otto thought and which is criticised by Latte (note 3) 104 note 1. Wagenvoort (note 17) 189. Wagenvoort (note 17) 189. Wagenvoort (note 17) 190-191. A duty, foremost pressing on any heir: see my ‘Sacra, Succession and the lex Voconia’, Latomus 1994, 273-296. See the Oxford Latin Dictionary, ed. P.G.W. Glare, Oxford 1982, s.v. auctoritas; Wagenvoort (note 17) 12f, 106.

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Apparently they concern various aspects of the power to increase, mana (according to Amirante auctoritas is power in its aspect towards others than the gens and familia, i.e., to extranei).24 The impubes lacks this power in general, women too. On the one hand she is the emanation of the genius of her gens too, and as such she too may form a familia; but on the other hand the genius cannot continue himself through a woman and thus the family stops with her.25 This fits with (archaic) Roman religion or, as we might perhaps better say, with other elements of archaic Roman religion. Forces which were closely connected with the daily life of an agricultural people were revered, but not in personalized form, nor were ethical concepts worshipped. They were considered incalculable and dangerous to approach. What is called a deity, is a deity of the Roman community, to which one is bound to perform certain duties in exchange for his assistance: the do ut des-principle.26 That unknown higher power,27 manifesting itself in a form, is considered sacrum, divine; divine and human are strictly separated and the respect for the realm of the divine is called religio, ‘Gewissenhaftigkeit, Beachtung des Heiligen, Rücksicht auf die Ansprüche der höheren Mächte’.28 As man is always unsure in which form the mysterious power may present itself and afraid to lack in religiosity, he is careful to designate precisely each of its manifestations. Thus Roman religion has a multiplicity of such designations, such as for the power which protects seed and let it develop, like Semones and Salus Semonia, with a clear connection with semen, Seia, Segetia, Tutulina.29 Likewise in every individual a power is present, be it in a weaker form: the reproductive power. This is called the genius and juno, the first as manifestation of the male generative power (from geno = gigno), the second representing the female side of generating, through conceiving and bearing the child.30 It is thus not alien to Roman religion to assume a similar veneration for the power of reproduction in the individual, who is both the result of this power and the carrier of it, and thereby for the chain which joins the individuals in every generation into an agnatic connection, backwards to the common ancestor, forwards to future generations. Since this power is closely connected with the frail existence of man – it stops

24 25 26 27

28 29 30

See Amirante in note 2. This may be connected to an ancient conception of reproduction, whereby the male has an active role, the female a passive. Wissowa (note 3) 23-24, Latte (note 3) 8, 38. One might distinguish between force (Kraft) and power (Macht), the latter being the possibility to actually exercise force. If this leads to a power being capable to exercise various forces, a distinction is useful, but as long as this remains restricted to forces being considered various emanations of the same power, this power being restricted to one field (for example, Jupiter as the power residing in the sky, manifesting himself as thunder or rain), the line between power and force remains rather thin. More important is that the Romans felt themselves dependent of such a power and basically unable to control it. Latte (note 3) does not distinguish between Macht and Kraft. Latte (note 3) 8ff, 38-39. Latte (note 3) 50-51. Wissowa (note 3) 25, 175-184; Latte (note 3) 103-104 : ‘die Fähigkeit zum Zeugen ... die als die spezifische Manneskraft gefaßt wird’; genius and juno stand to each other as ‘Zeugen and Gebären’, and a genius is not to be interpreted as a guardian angel (as Wagenvoort (note 17) 192 thought, apparently as a second function). Likewise Wagenvoort (note 17) 190: the genius is the ‘begetter’.

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in him when he dies31 and the dead are not thought of as individuals, but merely as a collectivity of divi parentes32 – it must have been important for (religious) Romans, I presume, to have an heir, be it natural, adoptive or even by manumission (since the manumitted carried the family name and had to carry on the sacra familiaria).33 Wissowa nor Latte discuss this point, but in view of the importance attached to the continuation of the sacra familiaria and the existence of the Parentalia,34 the institutions of arrogatio and adoptio, both meant to artificially create sons, it must have been. In my opinion these religious ideas are thus also present in the form or manifestation of power called auctoritas and it explains, why an impubes lacked it. An impubes could have actual possession of a thing, possessio naturalis, but not possessio civilis, that is, possession which would lead to ownership by way of prescription. If his tutor assisted him (tutore auctore), he could. As said, auctoritas here cannot mean liability or ‘Vormannshaftung’, since that was the consequence of a transfer by mancipatio, whereas in this case it is the requirement to acquire by usucapion. Why? Usucapion is a way in which civil ownership, i.e. ownership according to Roman law, only accessible to Romans, arises out of nothing. It is unlike appropriation of things, never owned by anyone, like shells on the seaside or wild animals. Their possession and ownership begin at the same time, ownership being, so to speak, natural, not only with the Romans, but with all ancient peoples; but of course also recognized by Roman law. Usucapion is a construction by which a possible conflict between two persons, both claiming the possession of a thing, is solved. The usucapion, once performed, deprives after a period another person of his rights. Theoretically he could claim he still had power, but he had lost usus, which in view of the connection with uti is more than mere having a thing as later understood by the equalization with possessio: usus is having a thing (or slave) in the sense that one may make use of it,35 thus wielding power over it (thus usus would also be an aspect of power, viz., the power to use a thing or person); thus he had lost the possibility of wielding power over it and because of that the question was justified, whether he still had power over it. The other person who had usus actually had power. If nobody had possession, no usus was possible and there would be no dispute: anybody could undisputedly still take the thing. Here, however, the power of the ‘former owner’ was lost because another usus was established. As Mayer-Maly observes, ususcapio means: to take usus (i.e., in my terms, to impose one’s power over it and be able to

31 32 33 34 35

Latte (note 3) 103. Latte (note 3) 98. The transfer through acceptance of the inheritance is a later device, developed by the pontiffs: see my ‘Sacra, Succession and the lex Voconia’, Latomus 1994, 276 and 276 note 18. Latte (note 3) 88-89. See the Oxford Latin Dictionary, ed. P.W. Glare, Oxford 1982, s.v. ‘usus’: [utor + -tus(3)] application (of something) to a purpose, use; s.v. ‘utor’: to use for some end or purpose, made use of, put to use, etc.

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‘move’ it)36 and once the usucapion is completed, i.e., the period after the actual usucapion has passed, the possessor has acquired dominium: the thing (or person) is incorporated into his household (domus) and acknowledged by others as belonging to his domus, house, and he is acknowledged as being its dominus, his power being called dominium.37 In modern law we would say that the state attributes this power. I think in ancient Rome the possessor himself had to establish this power (usus, leading to dominium) and he could only do so if he exercized his power to create and increase: vis genitalis, auctoritas. Perhaps we might even say: he who does not have vis genitalis (as regards his own reproduction), does not have auctoritas in other areas, cannot therefore govern a domus, cannot exercise dominium. This would explain why a pupillus (and a woman) cannot acquire through usucapion, i.e. by imposing usus and so dominium (which derives from domus, home: the area where the vis genitalis – wich they lacked – could increase) over things. An often-cited rule regarding usucapion runs: usus auctoritas fundi biennium, ceterarum rerum annus esto.38 Usually usus auctoritas is read as an asyndeton and auctoritas would refer to the duty of ‘Vormannschaft’ ( i.e. the obligation of the alienator to assist the alienee in a procedure about the ownership as long as the latter had not completed the usucapion, in a procedure the alienator had to take over and win for the alienee, on the basis of his auctoritas; which the alienee could oblige him to do by an actio auctoritatis).39 Yet this is illogical in this context, which deals with usucapion, since it is coupled with usus, which refers to the possessor and which requires auctoritas.40 So auctoritas must refer to the possessor too, and the text cannot refer to a mancipatio. I rather think the rule says: to become civil owner you have to have the thing in possession and use it (usus) and you have to have auctoritas, creative force, in you, which you may wield over it – then, after one or two years, you will be considered the exclusive possessor since the thing is considered (it is a construction!) to ‘obey’ now only you and no longer your predecessor, because any power he had may be considered to have dwindled since he did not exercise it for such a long time. As is known, the effectiveness of power is 36

37

38 39

40

Mayer-Maly (note 1) I, 29: capio des usus. He agrees with Kaser: usucapion, ‘ein den usus-Besitz begründender Zugriff bildet den rechtsdynamischen Ausgangspunkt der Ersitzung,’ only later to become an act of acquiring property. Mayer-Maly finely points out the phenomenon, that the result has become proleptic. I think the term ‘usus-Besitz’ too vague, since usus implies possession anyway. It is more: it means an active possession, more than later the taking in possession animo et corpore, because it demands a continuous use (although the ‘animo’, then ‘with the will’ might derive from that exercise of power). Which for that period (and perhaps also later) should not be indiscriminately equated to (modern) property, but rather interpreted as ‘the power of a pater familias over his people and things’, the thing having moved by that into the realm of another gens. Cic. top. 4, 23; Cic. pro Caec. 19, 54; Gai. 2.42, 47, 54, 204; Boethius Comm. Cic. top. 4, 23. In detail discussed: Mayer-Maly (note 1) II, 227ff. See the entire discussion in Mayer-Maly II (note 1). I also mention Kaser’s opinion, that the rule facilitated the proof of ownership. That too seems to me a later function. Magdelain’s ‘l’usucapion crée une auctoritas: ce titre est un titre parfait’ (Magdelain [note 1] 698) is not what the text says and puts it in terms ancient Romans had no notion of at all! The interpretation among modern Romanists apparently is, that the asyndeton refers to two, different situations: usus to usucapion and auctoritas to the ‘Vormannshaftung’ resulting from the mancipatio. In my view usucapion requires auctoritas and therefore the adage may be read, certainly for the archaic period, as referring to the usucapion solely.

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demonstrated in the exercise of it: non-exercise leads to loss of power, or in law, nonusus leads to loss of right (such as with servitudes). Thus auctoritas would not refer to the person who alienated the thing to the possessor, but to the possessor himself. Another rule in this context is: adversus hostes aeterna auctoritas – regarding non-Romans a Roman can never lose ownership.41 I would not read this as if an alienator were in this case always obliged to assist in a procedure (his duty to assist with his auctoritas – the later, legal interpretation) and thus, that a non-Roman could not acquire through usucapion,42 but read this in the sense that the auctoritas of Romans cannot be overcome by non-Romans. Their eventual power does not fit in Roman society and religion and is thus non-effective. It is different when a Roman is made captive. In accordance with antique views, also shared by the Romans, he becomes a non-person at that very moment. From the point of auctoritas: being taken captive demonstrates that he lacks power and thus auctoritas and more. He basically becomes a slave and thus also loses the power to continue a (legal) family. Only by postliminium, which proves that he possesses power again, will he become a person again and, if a pater familias, will regain this status, his possessions and family. Through his potestas the pater familias exercises but also communicates the power of himself and the genius to his dependents. If one of these is emancipated, this power is cut off and the emancipated suffers a loss of power: capitis deminutio, of which the worst case is, again, when somebody is enslaved and becomes a non-person. On the other side, a slave who is manumitted gains caput.43 With the mancipatio the situation is the same. Even if the impubes has ownership of a thing, for example because he inherited it, he cannot transfer it by mancipatio. The act of accepting the money must imply that he assures the alienee, that he has auctoritas regarding the thing, or else it is incomprehensible, why an impubes (or woman) cannot mancipate without tutor. In an eviction procedure he has to supply his auctoritas. Why? It is the auctoritas which leads to dominium over the thing. Or rather we should put it the other way around: dominium one may have over things, but it is not effective until one adds auctoritas to it. I shall return to this point. I would like to connect these ideas with the societas ercto non cito. It is assumed that originally the heirs did not divide the inheritance, but kept it in common property. The term property is probably already too modern and we should instead assume, that the familia, comprising in those times the farm, cattle, slaves and the members of the family, formed an entity which belonged to all living members/patres familias of the family and, if we see it from the religious perspective, to more: the generations past (the divi parentes), particularly the genius who was present in the living generations, and to future generations, in wich the genius would show itself. This entity must be kept together (it is the patrimonium, the inheritance of the ancestors which should be passed on to the next generations), alienations are unwanted, and donations certainly are. This is demonstrated by the Lex Cincia, a law of 204 BC 41 42 43

Cic. De off. I 12, 37. Which non-Romans could not: Gai. 2.65. Wagenvoort (note 17) 24f., 32. The caput, the head, so Wagenvoort, seems to have been considered an essential part of the person (Wagenvoort (note 17) 22: centre of power, mana?); Wagenvoort (note 17) 27: it was a magistrate with imperium who could manumit a slave by imposing on him the festuca and by this, I am inclined to infer, endowing him with power (again).

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which forbade all gifts above a low amount except to relatives within the sixth grade. In the case of the societas ercto non cito a fellow heir could perform the mancipatio for all (Gaius 3.154b), whereas with the later co-ownership (condominium) of the ‘Erbengemeinschaft’ such a thing was impossible. It demonstrates that the idea of coownership of all co-heirs is still alien to those times: this would have implied a proportional right of each heir to the entire estate. Here there is no such right. The estate does not belong, so to speak, to the heirs individually (which it would if everybody had an individual share). On the other hand, every heir is capable of acting for and with the estate, on his own. It is not a case of representing the other heirs but, as I would like to suggest, a case of being an emanation of the genius – as such one may act – not for the genius, but as the genius. Thus an impubes cannot act. On the other hand, this explains the choice of the adgnatus proximus as tutor. Lacking the presence of the genius in the pupil, it may be considered to be strongest in the nearest relative. The possibility that it is a construction, in which the death of the pupil is feigned, which leads to the adgnatus proximus as the person capable of disposing, and which allows to appoint him therefore as tutor, takes us a little off the track. Then why was the adgnatus proximus (it could be more than one person, for example, brothers) chosen as (intestate) heir in the first place? I can only give as reason that the genius, failing to have continued himself in the person of the de cuius, was supposed to have chosen the nearest or next option: in any case, the familia in the sense of the continuation of the gens went on through this adgnatus proximus, he also was the first person to continue the sacra familiaria, and therefore it would be only logical that the complex of ‘family’-property, which should stay connected with the genius, should go to that person where the genius would be closest to his emanation in the de cuius. A counterargument, or, at least, an anomalous phenomenon in this context is offered by the Vestal virgins.44 A Vestal virgin was taken out (captio) of her house and the patria potestas by the pontifex maximus at an age between 6 and 10, sine emancipatione et sine capitis deminutione. She could not be an intestate heir of her family, nor could her family inherit intestate from her: the agnatic tie was cut off. If deceased without testament (she acquired the ius testamenti faciundi), her goods went to the populus. She was sui iuris and had no tutor (Gai. 1, 145). After 30 years of service she could be exaugurated and marry.45 Does this prove that a Roman woman could indeed do without tutor and auctoritas? I think not and even, that it proofs my point. A Vestal virgin was not to be compared with an ordinary Roman woman: she was, so to speak, taken out of the ordinary current of affairs. The girl was taken out of her father’s house before puberty and could return when, normally speaking, her chances of having children were low: her reproductive power was spent, so to speak, her generation had been succeeded by a new one.46 The cult the Vestal virgins performed se-

44 45 46

On this priesthood: F. Guizzi, Aspetti giuridici del sacerdozio romano. Il sacerdozio di Vesta, Napoli 1968, which gives a detailed and thorough description and analysis of the priesthood. C. Koch, s.v. ‘Vesta’, RE 2. Reihe, 8. Bd., Stuttgart 1958, 1732-1753; Wissowa (note 3) 507-511 on the various privileges and restraints regarding the Vestal virgins. I rather prefer to see the 30 years as representing a lifetime (a generation), signifying that the virgin had devoted her life to the deity.

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cured the fertility of all Roman households.47 They were the intermediaries of Vesta, the deity of the Earth, and endowed with power.48 Their selection was by choice of the pontifex maximus; in the Principate he made up a list of eligible girls (they had to be free of deficiencies and contact with death) and then out of the list a name was decided by lot. Then the priest ‘took’ her away from her familia, no mancipatio or emancipatio was performed, no inauguration had to follow, she was a priestess by this fact alone.49 I think we may interpret the latter in the sense, that it was the deity who had made the choice.50 A young girl was chosen before puberty, her reproductive power was reserved for the service of the deity and applied for the good of all.51 It may be that the deity simply recognized this force, present already in the girl, wholly or in nuce, and therefore chose her, or endowed her with his force at that very moment. Against such a power the genius of the father and of his gens simply disappeared. This would explain why no mancipatio was performed and why she did not suffer capitis deminutio, which according to Wagenvoort could also be a loss of mana,52 while at the same time she was completely cut off from her gens: the pater familias already did not exercise power over her and the choice by the deity made this clear. Guizzi compares this to the sui becoming sui iuris without capitis deminutio at the death of the pater familias, without explaining this.53 The observation is acute, since it points to the absence of the power of the pater (his ‘caput’ disappeared with his death, leaving his sui free of his potestas): in the case of the girl the pater is still alive, thus his power must have been neutralized by a far greater power, which cannot have been but a divine power. There was no need for auctoritas here anymore, less for an adgnatus proximus as tutor, since she was in possession of a far stronger force. The girl was completely taken out of her otherwise traditional place as part of her gens and reproductive role, and only returned when her power had, presumably, been spent. It is the connection between the divine power, which annihilates or pushes aside the power of the gens and genius patris familias, and the capacity of the virgin to act in law independently, which, in my opinion, confirms my interpretation, since its underlines that the 47 48 49 50

51

52

53

Koch (note 45) 1739. On the great importance of the service of Vesta for the Roman community and state: Religions of Rome, M. Beard, J. North, S. Price (eds.), Vol. I, Cambridge 1998, 52-54. Koch (note 45) 1735, 1737. Aulus Gellius, Noctes Atticae I,12,1-5; Koch (note 45) 1744-1746. Although Wissowa (note 3) 510 submits the latter was introduced to restraint the ‘Willkür’ of the pontifex maximus, I have doubts: we do not see the same procedure introduced with the choice of the flamines or rex sacrorum. Why should his liberty of choice only have been considered troublesome with the Vestal virgins? Thus sexual intercourse by her was punished by her own death, as was as that of her lover. Her punishment, however, was not that she was killed – this again would have meant a violation of the divine force necessary for the Roman state – but that she was simply returned to the – chthonic – deity, by being buried alive with some food and drink. I think that by this as much as possible of her power was saved and returned to its source. Wagenvoort (note 17) 32-33: capitis damnare really had the meaning of making somebody lose his caput, which, if applying Wagenvoort’s interpretation of caput, would mean loss of power or impairment of it. We see indeed with the case of capitis deminutio maxima that a slave cannot have a familia, although he may reproduce: he lost his vis genitalis in the sense that the connection with the genius was cut off: vis genitalis is thus more than merely reproducing power, it is the power to reproduce the genius as well. Guizzi (note 44) 171-172.

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source of the need for auctoritas with women is lying in the genius gentis and its continuation. Where, then, is there a beginning of law? In the beginning there was the familia, a unity of things and persons, which could not be separated or split up. Those who used, for example, the farm, could not sell it. That explains why familia is used for both the group under the potestas of a pater familias and the pater himself, and for all the goods and persons, under the dominium of the pater familias. If the pater died and more than one new pater familias emerged, they lived in a societas ercto non cito: although the familia could no longer cover both concepts, the indivisibility as to the goods remained. Such a societas was an exclusive Roman institution. (It goes too far to inquire into this here, but what made it so specifically Roman?). Another such institution was the patria potestas, known only in Bithynia, as Gaius tells us. Coupled with the Roman system of nomen gentilicium, also typical Roman, I would put forward the hypothesis, that all these things were based on a simple concept: the continuous tie with the ancestor, who exercises his power in his descendants (vis genitalis), through his descendants (patria potestas) and over all, that once belonged to him and still belong to him (the societas ercto non cito): all have to honor him by the sacra familiaria. In bearing the nomen gentilicium all show that they are part of the genius and that their individual identities are only secondary. Meanwhile the pontiffs had devised a construction to make the impossible possible: the mancipatio, by which alienation of the core of the familia-assets became possible. The fiction is, that the alienator does not transfer his rights in the thing, and thus he fictionally does not do the unthinkable.54 But by accepting the price and because of the presence of witnesses he cannot claim back, in a procedure, his goods. The witnesses also guarantee an effect regarding third parties. The delictual liability (a fine of double the price) gives the alienee some guaranty, that the alienator will not alienate someting that does not belong to him. The alienator has to have auctoritas, since familia and genius are connected. An impubes has not got the latter yet. The pontiffs must have thought out something else, since it certainly was necessary sometimes that, for example, a slave was sold. Since auctoritas was the emanation of the genius, the ancestor of the gens, it was found in the other branches of the gens as well. From the point of view of the pupil the adgnatus proximus stood closest to the common ancestor (one cannot have all the members of the gens act for a pupil). Perhaps this was the reason to choose this person. A fiction, as if the pupil has died, cannot have been the reason here: first, since, as said, it does not explain his position in the intestate law of succession, secondly, there is no need for such a fiction, since the tutor must possess something already now and not fictionally: auctoritas. Yet we are here already a phase removed from the societas ercto non cito. There, there was no need of tutela: any member of the societas could perform. Here already a division of the familia may be the case, unless it concerns of course the possibility that there is but one male member of a familia left.The lacking auctoritas is not feigned, it is simply supplied by someone who possesses it. If the genius is present, the act will have effect. The construction of the tutor is what we call law, but it is archaic. It patches up a gap in the religious context, the lack of vis genitalis and thereby of auctoritas. Archaic law would then be ‘constructive religion.’ 54

See Wolf (note 1) 509-510.

An Emerging Legal System in an Embryonic State The Case of Early Medieval Ireland Doris Edel

INTRODUCTION Ireland’s position was peripheral only in the Roman perspective; for the seafaring peoples of pre-historical and historical times the country was easily accessible through a web of seaways extending from the Bay of Biscay along the Atlantic coast to the north of the British Isles and from there to Scandinavia. It was open to Roman cultural influence, but remained outside the organizational structure of the Roman Empire, and so was able to absorb the rich stimuli from that world according to its own needs. The very gradual introduction of literacy in Ireland, with the Irish themselves as agents, provides an explanation, not only for the tenacity of the oral medium (for instance, in land law and the workings of rulership), but also for the important place that was accorded to the vernacular in the written literature from the 7th century A.D. onwards. As a result, the island has left us, in addition to a very substantial Latin literature, the most extensive and diverse vernacular literature of early medieval Europe. The fact that Old Irish appears from the first texts onwards as a fairly standardized language, without any significant dialectal variation, seems to be due to the unifying influence of the hereditary class of learning in an otherwise fragmented Ireland. The oldest stratum of preserved texts consists for a substantial part of legal records.

The Old Irish law texts Three main categories can be distinguished. The first category, with its many references to fénechas ‘traditional law’,1 is usually labelled as secular law. It is a sophisticated development of Irish customary law, mostly consisting of prose tracts upon particular topics. The texts are all in the vernacular. They were written by lawyers for lawyers, mainly for scholarly and didactic reasons. The second category is formed by temporary ordinances promulgated by the authority of a synod or assembly (óenach; see below). They are also in the vernacular, using terms and procedures from secular

1

The term derives from Féni, who appear as the dominant people (or beter: alliance of peoples) of Ireland in the laws. La Féniu, lit. ‘among the Féni’, is the conventional expression for ‘according to Irish (= traditional) law’.

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law, but they were written by lawyers for rulers.2 The third category, canon law, was bookish from the start. It is in Latin and characterized by quotations of the type Augustinus dixit. I shall limit myself to the first category, which is by far the largest. The preserved corpus comprises some seventy tracts, partly incomplete, on a wide range of topics: status, the functioning of professional groups, farming, clientship, marriage, sickmaintenance, contract, suretyship, distraint, legal procedure, etc.3 They are couched in a highly technical language. The rich juridical terminology, which comprises numerous Latin loanwords and calques, but is for the greater part indigenous (both of Indo-European and non-Indo-European origin), has not yet been systematically investigated. A small part of the legal corpus is in a (semi)-poetic form, which points back to the pre-literate period. It occurs both independently, as (collections of) maxims and legal poems, and as quotations in the prose tracts. In the latter case it is usually introduced by the formula amal arindchain in fénechas ‘as sings the traditional law’. However, some of this material belongs to the same period as the prose tracts (see below). The majority of the prose tracts were composed between c.650 and c.750, the terminus ad quem being the compilation of two large collections, the Senchas Már ‘Great Tradition’, from the northern Midlands, and the Bretha Nemed, from the southern part of the island. Presumably these collections were a response to the Collectio Canonum Hibernensis, which was put together in the early decades of the 8th century. Ireland was evidently passing through a century of impressive activity in legal writing. From c.900 onwards, the main function of the Irish jurists was apparently to interpret the texts. This process of glossing and commenting went on until the replacement of Gaelic by English law at the beginning of the 17th century. As most of the manuscripts containing legal texts date from the 14th-16th centuries, the dating of the texts is mainly based on the linguistic evidence. The testimony of the archaic linguistic features is confirmed by the archaic legal features in the texts.4 The manuscripts normally use a large minuscule for the law texts proper and various smaller scripts for the glosses and commentaries. The Irish jurists adhered to the fiction that the traditional law was immutable, but this did not prevent them from adapting the rules to social change. They had two strategies for this: first, innovations were attributed to legendary jurists of the remote

2

3 4

The terms used for these texts are rechtge, cáin, or lex. Traditionally the rechtge was pledged by the king upon his people(s) at an óenach to contend with an emergency, such as war, an imminent harvest failure, or a cattle disease. (For the more permanent rechtge fénechais, see p. 64 below.) However, the only preserved examples are church edicts, of which the best-known is Cáin Adamnáin, the Lex Innocentium promulgated in 697 A.D. Written by lawyers for rulers, they are much more like the statutory decrees by individual kings through which Anglo-Saxon law is known to us. For a useful, though incomplete, survey, see Kelly 1988: 264-81. Kelly offers an excellent introduction to Irish law. On these archaic linguistic features, see for instance Binchy 1943: 204-5. As to the archaic legal features, the texts describe procedures that have left only vestigial traces in other legal systems, as e.g. the institution of sick-maintenance, according to which the culprit did not only have to nurse the victim, but also to provide a substitute to do the victim’s work (see Binchy 1938). In early Germanic law and in the Old Testament (Exodus 21: 18-19) it is only found in a modernized form.

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past5 and/or couched in an archaic form, and secondly, the old rule was maintained beside the one that replaced it.6 The oral tradition seems to have kept its authoritative status in the literate period. Significantly, the Senchas Már presents itself as essentially oral by stating in the introduction that the tradition was conserved by comchuimne da sen ‘the joint memory of the old people’, handed down tindnacul cluaise di araili ‘from one ear to the other’, and taught by dichetal filed ‘the chanting of the poets’.7 The question to which extent legal writing was the domain of ecclesiastical or lay jurists still leads to heated discussion among Irish scholars, but is not essentially relevant. First, the Irish churches were Eigenkirchen, that is, they were privately owned. When the Church was absorbed into the Irish élite, it became as much part of the political scene as the secular kingdoms. Secondly, in the 7th-8th centuries some monasteries developed into monastic towns with far more non-monks than monks, serving both religious and secular interests.8 The contemporary Bildungsideal encompassed both cultural streams, which explains the great variety of vernacular texts of a worldly character. Due to the very gradual literarization of Irish society, there are very few charters.9 While the Old Irish legal records provide valuable information on numerous aspects of life in early medieval Ireland (and, presumably, in an indirect way also for other parts of northern Europe), the law-in-action can only be guessed at. Early medieval Irish society Early Irish society was rural, small-scale, familiar, and hierarchical.10 To begin with, rural. The economy was based on arable farming and cattle-raising. Until the Viking period,11 the only settlements with urban characteristics were the monastic towns just mentioned. Even the village was unknown. The normal settlement form were the Einzelhof and the group of neighbouring farms as it came into being by, for instance, partible inheritance. It was called comaithches, from comaithech ‘joint rent payer’. Secondly, small-scale. Ireland was divided into numerous small kingdoms called túatha (sing. túath), according to modern estimates around eighty. In the law texts, the

5

6

7

8 9 10 11

For instance, Morann, the king’s teacher in the oldest speculum principum in the vernacular, Audacht Morainn ‘Morann’s Testament’, dated c. 700 (see note 19 below). Innovations favourable to women were attributed to the female jurist Bríg. A practical guideline for the beginner in the field is that the form of a procedure or institution which is treated at greatest length in a given context was almost certainly the latest to emerge, and that it superseded the forms which are treated more succinctly: see Binchy 1975: 33. The law seems to have belonged originally to the domain of the filid (sing. fili), the professional men of learning who combined the function of panegyric poet with that of custodian of the learned and literary lore; however, in time a separate branch of specialized jurists came into being, the brithemain (sing. brithem, anglicized as brehon). See Sharpe 1984, esp. 260ff. See Sharpe 1986: 170-4. For this section I am mainly indebted to Charles-Edwards 2000 and further also to Binchy 1970 (Kingship). According to Clarke 1998: 386, ‘the first examples of real urbanization in Ireland were more of a Hiberno-Norse achievement than a Viking one’, that is, they date from the late 10th century onwards.

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term rí ‘king’ usually designates the king of a túath. Rí túaithe is an old semantic unity, which also underlies Germanic Theoderic and Welsh Tudur (anglicized as Tudor). Some scholars translate túath12 with ‘tribe’ and therefore call Irish society ‘tribal’. The túath was essentially a farming community, consisting of a large number of comaithchesa, in which rank was based on landownership and cattle – and for the aristocracy on the number of clients. The material circumstances of the prosperous nonnoble freeman did not differ substantially from those of the (lower) nobility. Such differences as there were related to honour and status. The law texts quite frequently contrast túath with the Church (eclais) and occasionally also with the class of professional laymen, the áes dána ‘people with a talent’.13 Clerics and lay professionals were able to travel freely from one kingdom to another without endangering their rank, which was in their case based on their position in the Church hierarchy or the extent of their learning or skills. Thirdly, familiar. A person’s rights and duties were indissolubly bound up with his membership of the fine, the extended family of three or four generations, to which he belonged;14 conversely, the rank of the fine depended on that of (all) its legally competent members. If a person could not meet his contractual obligations, the next member of the fine group, in successive order, had to answer them for him. This gave the members the right to protest against risky contracts by fellow members and, in an extreme situation, even declare a member legally incompetent. For a contract between client and lord the consent of the whole fine was needed, and generally the whole fine chose the same lord. The hierarchical and inegalitarian character of Irish society finds expression in the system of the lóg n-enech ‘honour-price’, also known as eneclann ‘face-cleansing’ and díre ‘off-payment’. Any serious offence committed against a person had to be compensated by payment of the entire honour-price or a part of it, according to the gravity of the offence. The amount of the honour-price also determined a person’s contractual capacity. The units of value were the sét, a young heifer or half a milk cow, and the cumal ‘female slave’, the equivalent of six séts. The honour-price for the non-noble freemen ranged between three and nine séts and that for the nobles between ten and twenty, the highest amount in both categories being for the head of the fine group. The honour-price of the king of the túath, seven cumals, was also accorded to the bishop and the highest grade of the filid.15 The legal records distinguish two classes of higher kings: the ruirí ‘overking’, acknowledged as leader of the notoriously short-lived alliance of a number of ‘tribal’ kings, with an honour-price of eight cumals, and the rí ruirech ‘king over overkings’, whose honour-price was twice that of the rí túaithe, that is, fourteen cumals. To the latter category belonged the kings of 12 13 14 15

It is derived from Indo-European *teuta, which also underlies the name of the Celtic god Teutates, and the Germanic tribal name Teutoni. To the latter belonged the filid and the brithemain (see note 7 above), and further the physicians and craftsmen such as the wright and the blacksmith. I use the masculine form as the common form for both genders. According to one early lawtext, ‘a túath is not a túath without an ecclesiastical scholar, a church[man], a fili, a king who extends contracts and treaties to [other] túatha’ (CIH 1123.32-3). As Ó Corráin 1978: 9 points out, one must distinguish between the socio-legal status which was the concern of the jurists and the political authority which was exercized by the kings.

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Munster and of Tara – there being no central kingship. The relation between higher and lower king was the personal one of clientship. There were two types of clientship, called ‘base’ and ‘free’.16 The former applied to the non-noble freeman who was under the protection of a lord from whom he received a fief in the form of cattle in return for food-renders and other rents. This fief, described as a ‘fore-purchase’ of future renders, was relative in size to his status. If a base client acquired more property than was required for his class, he could use the surplus for advancing fiefs to clients himself. He could not yet join the noble grades, however, but if both his son and grandson managed to meet the required property qualifications, the latter became a noble. Free clientship was reserved for the noble grades. The lord’s retinue consisted of clients of this latter type. It was essentially an exchange of gift and counter-gift and could be terminated by either party at will by the return or recovery of the grant, while base clientship was initiated by a contract and expected to last for the lifetime of the lord. Conversely, the fief of base clientship was generally more valuable than that of free clientship, while the renders were proportionally much lower. The decisive demarcation line in early Irish society was that between, on the one hand, the noble and non-noble freemen, and, on the other, the various grades of the semi-free and unfree. The former were landowners and so had legal rights, the latter had none. The relation between king and túath has been characterized as one of beneficial interdependence: the king was supposed to derive his elevated status from the seven free grades in Irish society,17 hence his honour-price of seven cumals; the answer to this initial benefit were his obligations to the túath; which were in turn answered by the túath’s obligations to him.18 The king’s main obligations were external: he represented his túath in dealings with (the kings of) other túatha in war and peace, concluding treaties, paying tributes to higher kings (and collecting taxes from lower kings), solving interterritorial conflicts, etc. To achieve this, he was entitled to the support of his people, for instance, in the form of a hosting. Within the túath he was simply the highest of the nobles. His prime internal obligation was the fír flathemon ‘truth of kingship’, a concept much wider than the judicial function. Fír flathemon was envisaged as the fountain of prosperity (of abundant crops, plenty of fish in the waters and mast in the

16

17

18

For this and the following, see Kelly 1988: 29-33 and Charles-Edwards 1993: 344-6. The terms ‘base’ and ‘free’ appear in the glosses and commentaries, that is, in the period when the non-noble freeman suffered degradation (see p. 68 below). For a comparison of the relation between the Irish lord and his aithech with that between the lord and his colonus in 9th-century Carolingian Francia, see Charles-Edwards 2000: 71-3, 79. Frankish lordship worked through land, Irish lordship through capital (= cattle). The seven lay grades (later developed into twice seven grades) reflect the seven church grades, with which the Irish became familiar through Isidore of Seville. However, as the Irish experiments with eight or even nine grades in both sectors indicate, the two hierarchies took shape in a dialogue between the two cultures. See Charles-Edwards 1994, esp. 110-12, discussing a lawtract on status of the early 8th century which poses the question: ‘What are the contractual obligations of a king to a túath that ordains him?’ (CIH 568.39). As he argues, contracts were perceived as pairs of interdependent promises: the word used for the contractual obligations, folad, is a development of the original meaning ‘wealth, in particular exchangeable wealth as opposed to land’ via ‘property exchanged, or due to be exchanged, by contract’.

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woods), of internal peace, and victory over external enemies; while disasters were regarded as a sign that the king was not a true king.19 The interdependence between the king and his people manifested itself in many ways. For instance, the king had the right to impose an assembly (óenach) on his people, but it was actually arranged by the people.20 In case an adaptation of the traditional law, a so-called rechtge fénechais, was necessary, it was chosen (= decided) by the people, presumably at an óenach, whereupon the king confirmed the decision by taking pledges from the various fine groups for its observance.21 The relation between rí túaithe and óenach, and the correspondences with the assembly-based communities found among the Germanic peoples still need to be further investigated.22 From the 8th century onwards, a gradual concentration of power can be observed which resulted in the degradation of the rí tuaithe and the social ranks under him, in particular the non-noble freemen, and rendered the old concept of the people as contracting party obsolete. The dozen strong overkings of the 10th century were further reduced in the following centuries, but the final move towards a centralized monarchy – which took place elsewhere in Europe – was cut short in 1169 by the AngloNorman invasion, triggered off by one of the contestants in the struggle who thus hoped to defend his own position.23 Anglo-Norman Ireland never succeeded in implementing the kind of royal control that was realized in Anglo-Norman England. Around 1500 the king’s power was restricted to the Pale, that is, the region around Dublin, and the Anglo-Norman lords showed the same ‘backwardness’, as it has been called,24 as their Gaelic colleagues.

ADMINISTERING JUSTICE IN AN EMBRYONIC STATE To use an anachronistic term, the early Irish kingdoms were all civil society and no state.25 All the same Ireland had a professional legal class that was held in high esteem; an extensive corpus of legal texts on a wide range of topics, partly brought together in large compilations; numerous legal procedures whose detailed descriptions testify of a growing sophistication; and a rich juridical terminology. To this may be added that Irish law, although local in application, was envisaged as valid for all

19

20 21

22 23

24 25

The concept is accorded a prominent place in the vernacular speculum principum Audacht Morainn (ed. Kelly 1976), §§ 12-21, 24-8; see Binchy 1970: 9-11 (Kingship); Charles-Edwards 2000: 144. Sacral kingship is also the subject of narrative texts: see e.g. Draak 1959. CIH 569.2-4. CIH 569.10-11; see Ó Cróinín 1995: 79. The fine group was represented in its dealings with the king and other authorities by its head, who acted as an automatic surety for its members for the observation of their obligations: see e.g. CIH 565.20-3 and compare 567.28-9. See McLeod 1981/1982: 31ff., 39ff.; Algra 2001: 556-7. Henry II of England came to Ireland at the invitation of Dermot Mac Murrough, king of Leinster, but with rather more permanent consequences than the latter had envisaged. For the 11th-12th century- developments in Ireland up to the Anglo-Norman invasion, see Ó Corráin 1989: 40-42 and Ó Cróinín 1995: 272-92. Wormoald 1986: 170; compare p. 73 below. Charles-Edwards 2000: 80.

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the Irish.26 Apparently, what has recently been labelled as the ‘curialization of Irish law’27 was largely the work of a class of ‘independent’ professional jurists. This does not imply that the king had no judicial function. His involvement in the actual making of the law may have been small, but as the most powerful lord in the túath he could not avoid intervening in any conflict that threatened the internal peace. In order to do this, he needed the legal expertise of his brithem, who was the most indispensable member of his retinue and accompanied him even in the month of sowing, when the royal retinue was reduced to four persons: the king, his brithem and two servants.28 Brithem, derived from breth ‘judgement’, is alternatively translated as ‘judge, arbitrator’ or ‘jurist’.29 In the case of a royal involvement, the judgement was apparently either announced by the brithem, in the king’s presence and with his approval, or by the king himself. However, while the king could pronounce judgements, judging was not a royal monopoly. Neither did he have a special machinery of enforcement at his disposal. He had to use the instruments of pressure operating within society at large, such as kinship and clientship.30 In other words, he deployed the same powers as the other lords, only to a higher degree. Also, the king was not above the law. The Irish jurists had devised an ingenious method to make the king legally accountable without actually challenging his honour in a face-to-face confrontation: the plaintiff dealt with an appointed substitute, the aithech fortha (lit. ‘rent-payer of substitution’), either one of the king’s low-status relatives or one of his base clients.31 With some simplification it could be said that the law in the túath was in the hand of the free fine groups.32 Disputes within the fine group were normally solved internally, by the family council. Disputes between members of different fine groups were the domain of the (independent) brithemain who acted as arbitrators. In their verdict the compensation of the victim had a central place. It was two-fold: complete reparation of the damage, and compensation for the loss of honour suffered – most of the legal wrongs committed against a person were deemed to have that effect. In general the king did not receive a share of the compensation, as opposed to the brithem,

26 27

28

29 30

31

32

Ó Corráin 1978: 9. The term is used by Stacey 1994 for a double process: to bring the workings of law under the authority of a professional legal class, and to professionalize the discipline by elaborating and enlarging the legal tradition itself (pp. 131-40). (Did she realize that the early meaning of curia differs very little from that of óenach?) CIH 569.25-7. The brithem túaithe, who was presumably appointed by the king, may also have had a public role independent of the direct concerns of the king: see Kelly 1988: 52. Compare pp. 61-62 and 72 below on the brithem’s house. See Binchy 1941: 79 (‘learned in law’) and 1976: 29 (‘judge’). The fine groups of the common freemen were bound by ties of kinship and clientship to lords of various rank in the túath: see Patterson 1994: 335. See further Charles-Edwards 2000: ch. 13 ‘The power of kings’. Binchy 1973: 80, l. 5; see Kelly 1988: 25, 183; Patterson 1994: 193, 357. Apparently other persons of elevated status could have an aithech fortha too. The other, more drastic, manner to legally approach a high-ranking person was the ritual hunger-strike (troscad): see note 54 below. The Church claimed the right to judge the clerics.

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who was entitled to a twelfth of it. This brithem’s fee was called lóg mbérlai ‘the payment for legal language’.33 The basis of early Irish law was the oral contract, cor mbél or simply cor. Practically all important relations were regarded as contractual: that between king and túath, lord and client, husband and wife, foster parents and foster children, etc. The chief lawtract on contracts, Di Astud Chor ‘Of the Binding of Contracts’, occupies more than seventeen pages in the Corpus Iuris Hibernici, the diplomatic edition of legal records in six volumes published by D.A. Binchy in 1978.34 The law required that contracts were formally witnessed and bound by sureties: ‘Every contract without a surety is non-binding in Irish law’.35 Unlike the Roman stipulatio, the Irish contracts were reciprocal: both parties had responsibilities to which they publicly committed themselves in the contracting ritual, which had theatrical aspects – the concept of performance plays an important role in oral cultures. Robin Stacey, who explores in her book The Road to Judgment: From Custom to Court in Medieval Ireland and Wales the Irish system of contractual suretyship, finds that it rivalled even that of Rome itself in its flexibility and effectiveness, although Ireland participated only very indirectly in the legal inheritance of Rome.36 The primary aim of the Irish system was to anticipate and prevent disputes, and, if this failed, to resolve or at least contain the controversy.37

Guarantees: pledges and sureties The pledge (gell) had a prominent role in early Irish law. As we have seen, the king ensured that a decision taken by the óenach was observed by the various fine groups by taking pledges from them. In a similar way he could impose a hosting on his túath. The pledge was in general an object of great personal value to the pledgor; by handing it over, he handed over part of himself, as it were. Thus he showed his readiness to fulfill his obligations, either by meeting the claim of the person to whom he gave the pledge or, if he disputed the claim, by submitting the case for arbitration to a brithem. Pledges could be given even before any offence had taken place. The fore-pledge (tairgell) that was exchanged between neighbouring farmers in a comaithches (see 33 34

35 36

37

CIH 24.22. The Irish term for this twelfth part, aile déc, appears in English documents of the 16th century in the anglicized form oylegeag. CIH 985.24-1002.31. For this and the other lawtracts I only mention the main redaction in CIH. For an edition with translation, see McLeod, no date. The tract is in two parts, the first affirming the basically binding nature of all contractual agreements, the second dealing with the exceptional circumstances, such as fraud, error, or defective consideration, in which such agreements might have to be renegotiated or rescinded: see Stacey 1994: 30. For a general outline of Irish contract law, see Kelly 1988: 158-63. CIH 459.14. For a comparison of Irish with Roman contract law, see Stacey 1994: 29ff., 54. Compare Sharpe 1986: 169-70: ‘Even after the establishment of Latin Christianity, the Irish Church proved eclectic. There was no generation of Irish kings served by scholar-bishops trained in Roman law, and there were no Romano-Irish codes.’ See Sharpe 1986: 180ff.; Stacey 1994: 130.

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above, p. 61) warranted compensation in case of potential damage by trespassing cattle and the like. The complex system of suretyship is dealt with in the tract Berrad Airechta (lit. ‘Shearing of the Court’).38 The text, which occupies nearly nine pages in the Corpus Iuris Hibernici, gives a detailed account of the various stages through which a contract passed. The type of surety we know today is the Zahlbürge, the paying surety who warrants with his own property the performance of an obligation by the principal, that is, the person for whom he stands surety. However, this type of surety can only function satisfactorily in a society that has the means to (publicly) enforce legal claims. At the beginning of the period of literarization, Irish society needed a type of surety who could compel the defaulting principal to discharge his obligations by acting as a primitive substitute for a public administration of justice. The Old Irish term for this enforcing surety is naidm ‘contract’: he was the embodiment of the contract.39 His task was threefold: ‘holding in mind [the debt] for which he is invoked as surety, so that nothing be added to or subtracted from it; swearing to it without reservation; and enforcing it without negligence’.40 The first and second part refer to an eventual dispute regarding the existence or the content of the orally concluded contract; if the matter was submitted to a brithem, the naidm’s word, which he had to confirm under oath, was decisive. The third part refers to the enforcement of the contract. For this task the naidm was invested with far-reaching powers: he could distrain the defaulting principal’s property (see below), take him captive, and even kill him. The ‘shedding-of-blood by a naidm’ was one of the seven ‘immune bloodsheds’ in Irish law.41 Not surprisingly, an ecclesiastical legal text of the second half of the 6thcentury (or somewhat later) forbade clerics to act as naidm.42 As the naidm could only operate successfully if he commanded sufficient authority, merely high-ranking persons qualified for this function, such as the lords of the contracting parties. Besides this appointed naidm, there were also unappointed, as it were ‘involuntary’ naidms, for instance, a father for his son, a teacher for his pupil, an abbot for his manaig (monks and monastic tenants).43 These were relations in which the ‘senior’ could either expect to receive restitution where the ‘junior’ was the debtor, or had a vested interest in enforcing the rights of the ‘junior’.44

38

39

40 41 42 43 44

CIH 591.8-599.38. The title may mean ‘court summary, synopsis of court procedure’: see Kelly 1988: 278. For a partial edition and German translation, see Thurneysen 1928, for an English translation, Stacey 1986. For this and other types of suretyship, see Thurneysen 1928; Binchy 1970 (Suretyship); Stacey 1994, chapters 2-4 (‘Contractual suretyship in Irish law’, ‘The social context of personal suretyship’, ‘The hostage-sureties of Irish law’). Binchy 1970: 361 (Suretyship), quoting Thurneysen 1928: 13 § 43 (= Stacey 1986: 216 § 43). So listed in Heptad 6: CIH 9.5. The Heptads (= na sechta) contain material from many areas of law, arranged in groups of seven. It is canon nr. 8 of the collection attributed to Patrick, Auxilius, and Iserninus: see Hughes 1966: 468. Thurneysen 1928: 9 §§ 23-4; Stacey 1986: 212 §§ 23-4. See Stacey 1994: 70; Patterson 1994: 330-2. Patterson 1994: 331. For the automatic surety representing the fine group, see note 21 above.

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The naidm answered with his honour, but not with his property, that is, he did not guarantee the payment of the sum involved per se. The default of the principal was a grave offence against his honour which entitled him to a compensation equal to his entire honour-price. In the case of these high-ranking persons the latter sum was presumably often much larger than the original debt. By the 8th century Irish society had reached a measure of organization that allowed the functioning of the ‘paying surety’ (ráth), the best guarantee for the other contracting party as he answered with his own property. But even in this more advanced situation the enforcing surety continued to play a crucial role as guardian of the contract: first, the contractual parties and their respective rátha gave their solemn promises in the presence of their respective naidms,45 and secondly, the liability of the ráth only came into play when the naidm’s attempt to force his defaulting principal to discharge the contract was unsuccessful.46 For the ráth, as for the naidm, the default of his principal was a grave offence against his honour. If he had to satisfy the other party out of his own property, in his case too the original debt increased with his entire honour-price. The early period recognized, moreover, a type of surety who warranted the execution of the agreement with his own person, the hostage-surety (aitire; lit. ‘go-between’). The aitire occurred apparently mainly in ad hoc-agreements with ‘outsiders’, such as intertribal peace treaties.47 In case of a breach of obligations, the aitire of the defaulting party had to surrender himself to the other party, without the possibility to avoid captivity by satisfying the claim out of his own property. After a fixed period of ten days, during which time the defaulting party could ransom him by paying the original ‘debt’ (plus additional compensations to the ‘creditor’ and the aitire), he became ‘forfeit’, as if he were some living pledge. The result of this was that he had to ‘repurchase’ his life and liberty by paying his éraic ‘wergild’, the fixed body-fine for the homicide of a freeman. As loss of freedom implied loss of honour, the defaulting party not only had to repay the aitire his éraic, but also pay him his entire honour-price. Here too an enormous increase of the original ‘debt’ can be observed. The institution of suretyship may have undergone a process of modernization and sophistication, but the escalation of the original debt remained a permanent threat. As the obligations of an individual had eventually to be met by his next-ofkin, in a kind of serialized responsibility, the members of the fine group were pressured to act with economic and social prudence.48 The fear of insolvency, particularly strong at the middle levels of society, gave to property a strong moral value. In the absence of a centralized authority, the surety system functioned as orga45 46 47

48

Thurneysen 1928: 28-9; Stacey 1986: 225-6. Stacey 1994: 35 argues that naidms were normally jointly appointed by both parties, but I am not convinced by this. For a comparison of the ráth with the paying surety in early Roman law, see Binchy 1970: 365 (Suretyship). See Patterson 1994: 186; Stacey 1994: chapter 4 (see note 39 above), esp. 90ff., 94ff. Unlike the other type of hostage-surety, the gíall, the aitire did not warrant obligations associated with political subordination. Patterson 1994: 266. I base myself mainly on her chapters 7 ‘Rank’, 8 ‘Close kin and neighbors’, and 10 ‘The corporate fine: control of economic action’.

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nized and controlled compulsion, with the honour-price as the gauge of the pressure. In fact, contractual suretyship provided the model for the political organization on all levels. While in everyday contracts within the same túath, as for instance the sale of a cow, any legally competent person could stand surety up to the maximum of his honour-price, at the highest level of the túath we encounter a type of ‘public’ suretyship which resembles a public ‘office’, although there is no state administration to allocate it.49 Two main ‘offices’ may be distinguished: the first, to safeguard outsiders who entered the túath, such as itinerant professionals and craftsmen; the second, to deal with claims made by outsiders against the túath. In case the túath became liable for some serious breach, the holders of these offices acted as a buffer to the king, the ultimate guarantor of the túath, by compelling the various lower ranks of lords and fine heads to ensure that their troublesome underlings answered for their misdeeds. The delegation of these responsibilities was a matter of political consensus – decided at the óenach -, and it was temporary: the office-holders had to be in their political prime to act effectively in a crisis. Means of enforcement: distraint and coercive fasting In case a contracting party refused to fulfill its obligations, the law permitted the other party to enforce its claim by means of distraint, without having recourse to a court of law. The lawtract on distraint (athgabál, lit.‘taking back’) is the opening tract of the Senchas Már (excluding the introduction). It is also by far the longest, although it is incomplete, occupying more than seventy pages in the Corpus Iuris Hibernici including all the glosses and commentaries.50 Athgabál is an excellent illustration how an archaic form of self-help could develop, at the hands of an independent class of lawyers, into a sophisticated legal procedure with numerous safe-guards for the defendant, and in particular for the inmlegon (lit. ‘he who is milked out into’), the nextof-kin who, in successive order, had to answer for the relative who did not fulfill his obligations. Significantly, the text starts its detailed treatment of the procedure with the admonition that the average man must enlist the service of a professional jurist to ensure that the seizure is made in accordance with the rules.51 The first stage was known as airfócre ‘preliminary notice’ or apad ‘warning’: the plaintiff was required to give a warning of five days if the procedure was directed against the debtor himself, and of ten days if it was directed against his inmlegon.52 Airfócre was not required of

49 50

51 52

For this and the following, see Patterson 1994, chapter 12 ‘Kinship and the proto-state’. CIH 352. 25-422.36. There still is no critical edition nor a reliable translation. My outline is based on the discussion of the text by Binchy 1973, in which a number of features are omitted, e.g. the numerous exemptions and excuses the defendant could plead, or the various types of livestock that were excluded from distraint (see ibid.: 50-1). Back in 1895 the tract was discussed in detail by D’Arbois de Jubainville. Binchy 1973: 31-2. The term used is suí thengad ‘specialist of speech’ (= advocate). This is only one of the special provisions governing distraint of the inmlegon. For the rest of his outline, Binchy limited himself to the distraint of a person directly liable.

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persons of an exalted status, so-called nemed,53 who were enforcing a claim against one of their inferiors. And if one of the latter had a claim against a nemed person, instead of giving notice he had to ‘fast against’ his debtor. This coercive fasting was called troscad, as opposed to the Christian fasting, aín, from Latin ieiunium. Whatever the earlier history of troscad, at the time of the redaction of the texts the procedure implied a ritual hungerstrike from sundown to sunrise outside the nemed’s house. If the latter held out against a justified and properly conducted fast, he was deprived of his legal rights in society or boycotted, to use a modern term.54 The five or ten days of airfócre were followed by a stay of execution called anad ‘delay, waiting’. The text enumerates five periods of delay: one, two, three, five and ten days, all except the two-days stay based on the nature of the claim involved. (The two-days delay applied exclusively to cases in which the plaintiff was a woman.55) During this second stage the animals subject to distraint remained in the possession and custody of the defendant, who could at any time hand over a pledge to show that he acknowledged the claim or, if he disputed it, that he was willing to submit the matter to arbitration, in which case the original debt was not increased and no further step taken. If he did not make any such move, anad was followed by the formal removal of the distrained animals. This third stage was known as tóchsal ‘carrying away’ or tobach ‘levying, execution’. For this the plaintiff had to be accompanied by an advocate.56 The animals were driven by the plaintiff to the forus n-athgabálae ‘pound of distraint’, whereby he was responsible for any damage to them by excessive or negligent driving. Evidently this was a private (com)pound, either on his own land or, if the value of the animals surpassed his honour-price, on the land of a person of higher rank. The pound had to be well fenced and situated in a safe part of the túath, for instance, not too near the border. Different kinds of animals had to be kept separate, and an animal that became diseased had to be segregated from the others, etc. Already at an early phase in the development of the procedure, the plaintiff was required to notify the inmlegon of the defendant of the place of the forus n-athgabála. In

53

54

55

56

For instance, the king of the túath, the bishop, or the highest of the filid... For the wide range of meaning covered by the term nemed ‘sacredness, privilege’, see Charles-Edwards & Kelly 1983: 107-9. The short section on troscad in the tract on athgabál has been edited and discussed by Thurneysen 1924; compare Binchy 1982; Kelly 1988: 182-3. Exclusion from the community as a judicial weapon is already mentioned by Caesar, The Gallic War, VI.13. The term boycott derives its name from a Captain Charles Boycott, administrator of a large English estate in the Irish West, who in the socalled Land War of 1879-82 was excluded from all transactions within the community and so had to retire from his function. Binchy 1973: 37 regarded this as an innovation, rendered necessary by the recognition of (limited) legal rights to women (compare note 57 below). This evolutionary approach, which takes the total legal incapacity of women to be the original situation, is criticized by Patterson 1994: 21-6, who attributes the ‘total incapacity’ statements in the texts to the influence of patristic and Old Testament sources. In her view, the indigenous tradition accorded women (limited) legal rights, common to other North European societies. Here the term used is aigne (‘agent, advocate’). For the various types of professional jurists, see Binchy 1976; Kelly 1988: 51-7.

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the course of time, the benefit of this fásc ‘announcement, communication’ was apparently extended to all persons whose property was seized. With the impounding of the animals began the fourth stage of the process, called díthim. The word normally means ‘lapsing, becoming forfeit’, but in this special context ‘delay in pound’. This second stay of execution had apparently the same length as the first one – with the exception of the two-days anad, when it was twice as long. During this period the defendant still had the possibility to redeem the distrained animals by giving a pledge, but now the original debt was augmented by the cost of tending and feeding them. If he still did not meet the plaintiff’s case, the final phase of the process began. Lobad ‘rotting, decay’ implied a progressive forfeiture of the animals: on the first day to the value of five séts, and then on each day three séts, until the whole was exhausted. Even in this fifth stage the defendant could redeem whatever animals remained unforfeited by paying (or giving a pledge for) the original debt plus the costs incurred during díthim. As mentioned earlier, obsolete rules were not deleted from the lawtracts, but maintained alongside the rules that replaced them, and so the tract on athgabál provides some information on the older form of ‘immediate distress’, tulathgabál, in which the animals were carried off immediately after the expiration of the preliminary notice and completely forfeited after an interval of one, three, five or ten days in pound unless the debtor had redeemed them in the interval.57 The text even seems to offer a glimpse of the archaic custom of forfeiture at the end of twenty-four hours.58 To return to the normal form of distraint in the 7th-8th centuries, the athgabál in five stages, evidently the first waiting period (anad) and the gradual forfeiture of lobad were innovations, as is testified, among others, by the semantic development of the term díthim. The increasing number of time limits was favourable to a peaceful settlement: on the one hand, the pressure on the defendant was gradually increased, without causing him any direct damage; on the other, they contributed to structuring and channelling the plaintiff’s impatience to settle the matter. Many questions regarding athgabál are still unanswered, in particular with regard to the position of the nemed persons. While the refinement of the rules rendered the procedure more effective on the middle levels of society, the gradual concentration of power mentioned earlier must have severely weakened it with regard to the élite.59 An Old-Irish wisdom text, warning of undesirable sureties, states: Let no one be a surety for a man who is too low or too high, for one is not able to constrain a person if he is too low. Any one who is too high cannot be constrained.60

57 58 59 60

Binchy 1973: 51-62, esp. 62. No two-days stay of execution is mentioned, as no case of tulathgabál involves distraint by women. Ibid.: 62-4. As Patterson 1994: 267-8 points out, on the highest échelons of society the means of control were above all military. Smith 1932: 77 § 9.

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The arena of dispute settlement While athgabál in its earliest form seems to have been directed at immediate and direct redress, the sophisticated procedure in five stages just sketched evidently aimed at arbitration by an independent brithem. Information about how this was actually realized is scarce, and the little that has reached us in various types of sources has not yet been systematically investigated. I can only touch upon the two lawtracts on procedure which form our main source material. The older of the two, Cóic Conara Fugill ‘The Five Paths of Judgement’, deals with how a suit was brought to the brithem.61 Each party would be accompanied by its legal counsel and its witnesses. The text distinguishes eight stages of the process: (1) the fixing of the time of the hearing, (2) the selection of the proper type of action by the plaintiff’s counsel, (3) the giving of security, (4) pleading, (5) rejoinder, (6) judgement (breth), (7) promulgation of the judgement, (8) conclusion.62 The discussion of the various stages shows that much importance was given to the inquiry after the facts. As to the setting of the process, at one point a casual remark occurs which suggests that it took place at the brithem’s house. To conclude from this that the procedure took place without any publicity – in chambers so-to-speak63 – seems to me a mistake. The brithem’s house was in a way an ‘official’ institution and remained so until the 14th century at least (see below). However, some matters had the potential to disrupt social relations on such a broad scale that they had to be dealt with in the full publicity of the óenach, the public assembly presided over by the king, or more precisely the airecht, for which the óenach formed the natural setting. Old Irish has no single word for a court of law, but airecht, derived from aire ‘freeman’, is commonly taken by modern scholars in this sense. The airecht, originally presumably an assembly of freemen especially devoted to the transaction of legal business, seems to have been confined later to the heads of the more important families in the túath, the so-called urraghts of the English State Papers.64 Our second text is known under the name Airecht-text, as it begins with the words ‘How many kinds of airechta are there in Irish law?’65 However, who expects to be informed by it about the workings of an Irish court system will be disappointed, for the author provides us with a theoretical construct. He seems to have envisaged not a simple court, but a court session of several days dealing with a number of cases on the highest political and social level, and so he threw in all the categories of persons he could think of in order to guarantee maximum legal expertise, maximum political authority, and maximum publicity. The different kinds of courts mentioned in the introductory question are the various subsections of this ideal court. The court proper, formed by several brithemain, is in the centre; behind it the back court, with 61

62 63 64 65

There is an early short recension (CIH 2200-2203) and a later one, which is much longer (CIH 1027.21-1041.38), both edited and translated (into German) by Thurneysen 1926. An intermediate version has been edited by Thurneysen 1933. The tract was not part of Senchas Már. It is couched in a difficult, archaic or archaizing language. Thurneysen characterized it as ‘a dead text’. See also Binchy 1976: 30-31, Sharpe 1986: 184-7. This list is only found in the late recension: CIH 1029.21-3, Thurneysen 1926: 30 § 16. See Sharpe 1986: 185. See Binchy 1941: 73, 1970: 19 (Kingship); Charles-Edwards 2000: 559. CIH 601.20-602.23. For an edition with English translation, see Kelly 1986.

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the king, the bishop and the head of the learned class;66 on its right side, the side court, with custodians of the tradition (seanchaid), overkings (!), hostages and sureties; on its left side, the court apart, with the other types of sureties and the witnesses; and finally, in front of it, the litigants with their legal counsels. The text says nothing about the location of the airecht. But as far as we know, airechts were generally held in the open air.

Some reasons for Ireland’s ‘backwardness’ As already said, the attempts to develop a strong centralized authority in Ireland, both before and after the Anglo-Norman invasion, had no lasting effect, the main reason being the low population density coupled to a low economic output of the wholly agrarian island. The scattered small-scale communities provided little stimulus for the institutionalization of power we observe elsewhere. One should not forget that the political, social and legal modernization which took place in England and in parts of the Continent responded to the needs of societies that were increasingly dominated by urban centres and densely populated regions. In Ireland, on the contrary, the market towns founded by the Anglo-Normans languished, as their attempts to introduce a market economy failed. However, similar legal systems as in Ireland, although almost certainly less sophisticated, may have functioned in smallscale societies on a subsistence level elsewhere in Europe, as, for instance, in the Alpine region. In the absence of institutionalized power, each new ruler had to build his own power network, as it were. Royal dynasties were segmentary: they had one stem, but several branches.67 To deal successfully with rival (over)kings, the current possessor of an (over)kingship needed the support of the (temporarily) subordinate branches of his dynastic lineage. One way to gain this was to allow their heads royal status, if only as his client-kings. His network could further encompass ecclesiastical ‘dynasties’ and learned families deriving from politically less successful segments of his lineage. This interdependence of functions within the Irish ‘establishment’ facilitated the delegation of responsibilities that we observe, among others, in the administration of justice. It need not come as a surprise that the so-called Brehon law was in use in many areas of Ireland alongside English Common Law until the decline of the Gaelic order at the beginning of the 17th century. In 1584 Richard Stanihurst described in his De rebus gestis in Hibernia how on a fixed day the men of the neighbourhood assembled in an elevated place to bring their complaints at law to the jurisperiti or brehons.68

66

67 68

The editor suggests that a rí ruirech ‘king over overkings’ is meant, as the side court is said to include several overkings. I am not convinced that the author worked so systematically. He may simply have peopled his back court with the three highest-ranking persons in the túath (see p. 62 above). For this and the following, see Charles-Edwards 2000: 14. Quoted after Sharpe 1986: 188.

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And the English translator of the (since lost) Annals of Clonmacnoise remarked in 1627 in an explicatory note on Irish law with regard to the year 1317: The brehons of Ireland were divided into several tribes and families, as the McKiegans (= MacEgans), O’Deorans, O’Brisleans, & McTholies, every contry had his peculiar Brehan Dwelling within itselfe, that had power to Decide the cases of that Contry & to maintaine theire controversies against their neighbor-contries ...69

The MacEgans, to which the translator belonged,70 were the most productive and influential of the post-Norman legal families, and the majority of the surviving legal manuscripts are connected with them. During the 14th-16th centuries they acted as lawyers for most of the ruling families of western and central Ireland, including some important Anglo-Norman families.71 To conclude this paper, I should like to point out that our own time provides us with an excellent example of the curialization of a branch of the law which takes place without any substantial state interference: International Criminal Law. The numerous states that have consented to the establishment of the International Criminal Court in The Hague, have acted of their own free will (to a certain extent at least), being faced with problems they are unable to solve independently. Is this so much different from the Irish situation just depicted?

ABBREVIATIONS APAW Abhandlungen der Preußischen Akademie der Wissenschaften, Phil.-Hist. Klasse CIH Binchy, D.A. (ed.), Corpus Iuris Hibernici (6 vols), Dublin 1978 DIAS Dublin Institute for Advanced Studies

BIBLIOGRAPHY Algra, N.E., ‘Grundzüge des friesischen Rechts im Mittelalter’, in H.H. Munske a.o. (eds), Handbuch des Friesischen. Handbook of Frisian Studies, Tübingen 2001, 555-70. D’Arbois de Jubainville, H., ‘Études sur le droit celtique avec la collaboration de Paul Collinet’ (2 vols; text with translation and commentary of the tract on athgabál in vol. 2), Paris 1895 (idem, Cours de littérature celtique 7-8). Binchy, D.A., ‘Sick-Maintenance in Irish Law’, Ériu 12, 1938, 78-134.

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Murphy 1896: 280 (quoted after the facsimile reprint by Llanerch Publishers, 1993). He was Conell (or Conla) Mageoghagan of Lismoyne, Co. Westmeath (see ibid.: VIII). Kelly 1988: 252-4. For the principal legal families and their employers in the 14th-16th centuries, see also the map ibid.: 255. As to the other families mentioned by Conell Mageoghagan, the legal authority of the O’Deorans, who are connected to four important legal manuscripts and were mainly active in Leinster, was recognized in 1559 by the English administration: see ibid.: 256-7. The O’Brisleans were active in Fermanagh in the 15th-16th centuries as brehons to the Maguires and erenaghs (ecclesiastical administators) of Derryvullen: see Ó Corráin 1978: 16. The McTholies are unknown. On the functioning of Brehon law up to c.1600, see further Patterson 1989.

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Binchy, D.A., Críth Gablach. Dublin, DIAS, 1941 (Mediaeval and Modern Irish Series 11; repr. 1979). Binchy, D.A., ‘The Linguistic and Historical Value of the Irish Law Tracts’, Proceedings of the British Academy 29, 1943, 195-227. Binchy, D.A., Celtic and Anglo-Saxon Kingship. Oxford 1970 (The O Donnell Lectures for 1967-8). Binchy, D.A., ‘Celtic Suretyship, an Indo-European Institution’, in G. Cardona, H.M. Hoenigswald & A. Senn (eds), Indo-European and Indo-Europeans. Papers Presented to the Third Indo-European Conference at the University of Pennsylvania, Philadelphia 1970, 355-67. Binchy, D.A., ‘Distraint in Irish Law’, Celtica 10, 1973, 22-71. Binchy, D.A., ‘Irish History and Irish Law: I’, Studia Hibernica 15, 1975, 7-36. Binchy, D.A., ‘Féchem, Fethem, Aigne’, Celtica 11, 1976, 18-33. Binchy, D.A., ‘A Pre-Christian Survival in Mediaeval Irish Hagiography’, in D. Whitelock, R. McKitterick & D. Dumville (eds), Ireland in Early Mediaeval Europe. Studies in Memory of Kathleen Hughes, Cambridge etc. 1982, 165-78. Charles-Edwards, T.M., Early Irish and Welsh Kinship, Oxford etc. 1993. Charles-Edwards, T.M., ‘A Contract Between King and People in Early Mediaeval Ireland’, Peritia. Journal of the Medieval Academy of Ireland 8, 1994, 107-19. Charles-Edwards, T.M., Early Christian Ireland, Cambridge etc. 2000. Charles-Edwards, T.M. & F. Kelly, Bechbretha, Dublin, DIAS, 1983 (Early Irish Law Series 1). Clarke, H.B., ‘Proto-Towns and Towns in Ireland and Britain in the Ninth and Tenth Centuries’, in H.B. Clarke, M. Ní Mhaonaigh & R. Ó Floinn (eds), Ireland and Scandinavia in the Early Viking Age, Dublin 1998, 331-80. Draak, A.M.E., ‘Some Aspects of Kingship in Pagan Ireland’, in The Sacral Kingship, Leiden 1959 (Studies in the History of Religions, Supplements to Numen, 4), 651-63. Kelly, F. (ed., transl.), Audacht Morainn, Dublin, DIAS, 1976. Kelly, F. (ed., transl.), ‘An Old-Irish Text on Court Procedure’, Peritia 5, 1986, 74-106. Kelly, F., A Guide to Early Irish Law, Dublin, DIAS, 1988. Hughes, K., The Church in Early Irish Society, London 1966. McLeod, N., ‘Parallel and Paradox. Compensation in the Legal Systems of Celtic Ireland and AngloSaxon England’, Studia Celtica 16/17, 1981/1982, 25-72. McLeod, N., Early Irish Contract Law, Sydney, no date (Sydney Series in Celtic Studies 1). Murphy, D. (ed.), The Annals of Clonmacnoise being Annals of Ireland From the Earliest Period to A.D. 1408, Translated into English by Conell Mageoghagan, Dublin 1896. Ó Corráin, D., ‘Nationality and Kingship in Pre-Norman Ireland’, in T.W. Moody (ed.), Nationality and the Pursuit of National Independence, Belfast 1978 (Historical Studies, Papers Read Before the Irish Conference of Historians 11), 1-35. Ó Corráin, D., ‘Prehistory and Early Christian Ireland’, in R.F. Foster (ed.), The Oxford History of Ireland, Oxford etc. 1989, 1-43. Ó Cróinín, D., Early Medieval Irland, 400-1200, London etc. 1995. Patterson, N., ‘Brehon Law in Late Medieval Ireland: ‘Antiquarian and Obsolete’ or ‘Traditional and Functional’?’, Cambridge Medieval Celtic Studies 17, 1989, 43-63. Patterson, N., Cattle Lords & Clansmen. The Social Structure of Early Ireland (2nd rev. ed.), Notre Dame, Indiana, 1994. Sharpe, R., ‘Some Problems Concerning the Organization of the Church in Early Medieval Ireland’, Peritia 3, 1984, 230-70. Sharpe, R ‘Dispute Settlement in Ireland: A Preliminary Inquiry’, in W. Davies & P. Fouracre (eds), The Settlement of Disputes in Early Medieval Europe, Cambridge etc. 1986, 169-89. Smith, R.M., ‘ The Advice to Doidin’, Ériu 11, 1932, 66-85. Stacey, R.C. (transl.), ‘Berrad Airechta: An Old Irish Tract on Suretyship’, in T.M. Charles-Edwards, M. E. Owen & D. B. Walters (eds), Lawyers and Laymen. Studies in the History of Law Presented to Professor Dafydd Jenkins on his Seventy-Fifth Birthday, Cardiff, University of Wales Press, 1986, 210-33. Stacey, R.C., The Road to Judgment. From Custom to Court in Medieval Ireland and Wales, Philadelpha, University of Pennsylvania Press, 1994. Thurneysen, R. (ed., transl.), ‘Aus dem irischen Recht II: 3. Das Fasten beim Pfändungsverfahren’, Zeitschrift für celtische Philologie 15, 1924, 260-76.

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Thurneysen, R. (ed., transl.), ‘Cóic Conara Fugill. Die fünf Wege zum Urteil. Ein altirischer Rechtstext’, APAW Jg. 1925, Nr. 7, Berlin 1926. Thurneysen, R. (ed., transl.), ‘Die Bürgschaft im irischen Recht’’, APAW Jg. 1928, No. 2, Berlin 1928. Thurneysen, R., ‘Eine neue Handschrift von ‘Cóic Conara Fugill’’, Zeitschrift für celtische Philologie 19, 1933, 165-73. Wormoald, P., ‘Celtic and Anglo-Saxon Kingship: Some Further Thoughts’, in P. Szarnach (ed.), Sources of Anglo-Saxon Culture, Kalamazoo, Mich., 1986 (Studies in Medieval Culture 20).

The Lex Frisionum The Genesis of a Legalized Life

Nikolaas E. Algra †

The quintessence of modern law is that we submit to norms, even if we disapprove of their contents. The citizen complies with the norms because they are based on statutory regulations derived from valid laws. He accepts them because they have been enacted in a formally correct way. General observance of the law prevails. Where this is not the case, the machinery of government has the power to enforce strict compliance. A precondition of a constitutional state is subordination of the subjects to the authority which imposes the rules. The legitimacy of norms is nowadays interwoven with the power of the state. The body politic enacts laws and upholds them. In this essay we shall look back on an era in which the state and its law were not yet taken for granted. The ancient Frisian law sources will be used as an example. The origins of Frisian law are not clear. Initially, rules were created by family elders or tribal chiefs. When the community expanded and outsiders were absorbed as members, e.g. through the occupation of a territory inhabited by others, the existing legal order had to be adapted. Considerations of self-preservation forced the occupiers to fit the newcomers into a revised system of law. The Frisians, inhabiting the North Sea coast, were overcome by the Franks in the eighth century and subjected to Frankish rule. This was not achieved by outright annexation followed by ethnic assimilation, or by physical annihilation through massacres and starvation. Instead, Charlemagne made use of the existing Frisian system of law and adapted it to the new circumstances. For this reason we can regard the eighth century as the beginning of a new epoch in the history of the Frisians. The Lex Frisionum (hereafter LF) or Law of the Frisians is in fact not a law but a collection of rules accumulated in preparation for a law which either was never enacted or did not survive.1 It belongs to the series of ancient Germanic laws (German: Volksrechte) known as Leges Barbarorum,2 such as the Lex Salica, the Law of the Salic Franks, between 508 and 511, Lex Ribuaria, the Law of the Ribuarian Franks, of uncertain date, 630 or after 750, Leges Saxonum, the Laws of the Saxons, 802, Ewa Chamavorum, the Law of the Franks of Hamaland, east of the IJssel, 802, Lex Thuringorum, the Law of the Thuringians, early 9th century. It would seem that at the end of the 8th century the Franks attempted to articulate the multi-ethnic character of their empire by providing for specific legislation of the laws 1 2

The standard work is H. Siems, Studien zur Lex Frisionum, Ebelsbach, 1980. v. N.E. Algra, Oudfries Recht 800-1256, Ljouwert, 200, 92-93.

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and customs of the different ethnic components.3 The Laws of the Saxons and Thuringians, however, consist predominantly of Frankish rules imposed by the king on subject nations.4

WHERE DID THE FRISIANS LIVE? The LF distinguishes three Frisian districts, following the shore line of the North Sea:5 – The western part, running from the present Dutch-Belgian border, along the river Zwin, to the river Fli (nowadays dammed up by the IJsselmeer Dam). This district was surrendered to the Franks around the year 690. – The central part, from the river Fli to the river Lauwers (the boundary river between the Dutch provinces of Friesland and Groningen) and then on to the river Ems (the boundary river between the Netherlands and Germany). This part was surrendered to the Franks in 734. – The eastern part, from the river Ems to the river Weser in Germany, surrendered to the Franks in 785. The southern and eastern borders of the Frisian territory are less clear. In the Netherlands they would be around the southern mouth of the Rhine and in the east – the west bank of the river IJssel, and in Germany the southern border runs along the rivers Jimme and Wapel and the marshland in between. There are slight differences between the rules for the three districts. This suggests that there was no central legislative mechanism and that the districts should be regarded as separate entities in this respect. For the sake of simplicity, we shall refer to the rules for the central district.

THE SIGNIFICANCE OF THE LEX FRISIONUM The LF owes it values to its incompleteness. It is not a Lex, but rather represents a card-index of the legal scholars who had to draft the LF. 6 It gives us a glimpse in the kitchen of the lawmakers. The compilation of old formulas, rules, precedents and customs must have been a demanding work, because the closing words read:7 Haec hactenus, ‘I am heartily sick of it, I am cheesed off with it’, or, in a freer translation: ‘I have attained my goal; it would take an unreasonably great effort to sift through all these outdated pagan precepts.’

3

4 5 6 7

An early example of apartheid policy? The king wanted, I suppose, a clear racial segregation between the homines franci, enjoying the king’s special protection, and the common nobles. We have to consider, however, that homo francus also denotes a high official in the Frankish realm. A count of Frisian descent could therefore be a homo francus. R. Collins, Early Medieval Europe, 200-1000, Houndmills, Basingstoke, Hampshire, 1999, 95. Algra (n.2), 96, 108-112. Algra (n.2), 95; Siems (n.1), 202-207. v. Text 1; Siems (n.1), 203-207.

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The final provision prescribes how to act in the case of profanation of a pagan temple.8 Text 1: [Desecration of a pagan sanctuary; last section Lex Frisionum, Additio XI, De honore templorum, dating from before Christianization, around 775 in Central Frisia] Qui fanum effregit, et ibi aliquid de sacris tulerit, ducitur ad mare et in sabulo, quod accessus maris operiri solet, finduntur aures eius et castratur et immolatur Diis quorum templum violavit. Hec Hactenus.

The sacrifice of the desecrator to the sea gods was not a penalty or a punishment. Criminal proceedings presuppose a public authority which institutes criminal proceedings against a suspect and attaches a specific penalty to precisely defined facts. The decision between guilty or not guilty may be assigned to an independent judge or to a panel of judges (jury). Then there should be somebody to execute the decisions of the courts.9 In this case, however, the profaner, by his theft, had deprived himself of his status as a person, he had lost his right to be handled as a human being and to stand trial; he was no longer entitled to his manhood. The measure provided was intended to protect the tribe against acts of retaliation by the gods, to avert the sea gods’ punishment of seagoing Frisian ships. It may be compared to quarantine, imposed on a person with a contagious disease. Its only purpose was to restore the disturbed relations with the gods; it was therefore a religious rite, a pious offering, such as lighting a candle in church.

THE COMPILATION OF THE COLLECTION As far as we know, some Frisian jurists were charged around 760 by Charlemagne with the collection of the existing rules. Two of them are mentioned by name in the LF: Wulmar and Saxmond.10 The aim of this measure was probably to present and enact a Lex Frisionum at the diet of Aix-la-Chapelle in 802. We do not know whether their efforts were successful. For the emperor, the outlawing of feuds was an important motive.11 The power of his armies was diminished by the absence of many Frisian nobles, engaged in bloody battles of their own. The heirs of a man who had been killed were forbidden to pursue their vengeance to the end, but were forced to accept indemnification in money instead.12 The perpetrator and his kin had to redeem the feud by paying the injured party in order to bring about reconciliation. Refusal to achieve a settlement

8 9 10 11 12

Siems (n.1), 338-350; Algra (n.2), 97. Algra (n.2), 250. Siems (n.1), 159-169; Algra (n.2), 94, 100. Siems (n.1), 169. Initially, the kin of the injured party was entitled to a part of the wergeld (meentel, daddel) for taking part actively in the feud; cf. Algra (n.2), 159.

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through the payment of monetary compensation could cost the unwilling party his patrimonial estate.13 Text 2: [Charlemagne’s policy of reconciliation; instruction given to the missi dominici, Capitulare of 802, cap. XXXII] Et hoc firmiter bannimus, ut parentes interfecti nequaquam inimicitiam super commissum malum adaugere audeant, neque pacem fieri petenti denegare, sed datam fidem paratum compositionem recipere et pacem reddere, verum autem nulla mora compositionis facere. [...] Qui autem dignam emendationem facere contempserit, hereditate privetur usque ad iudicium nostrum.

In the case of Frisia, however, this imperial instruction had little effect, because it ignored the great value which a free Frisian put on his honour. This compelled him to seek revenge in case his honour was at stake. An insult would only be redeemed if a sufficient quantity of blood had been drawn. An equivalent act of retaliation was required to maintain social standing. A fixed amount of money as compensation for the killing of close kin (wergeld) would be unacceptable. Consequently, as we shall see, the emperor was forced to confiscate many family seats. The feud, moreover, was an indispensable element of the established procedure. At the trial, no evidence was presented; verification of the facts by the hearing of witnesses was not possible. The defendant would normally enjoy the inalienable right to swear an expurgatory oath on the relics of the saints. He then would produce eleven oath-helpers who would swear that the expurgatory oath was true. The only way for the plaintiff to counter this would be a refusal to hear the expurgatory oath of the defendant. This would automatically lead either to a judicial duel by single combat or to a feud. By banning the feud, the emperor robbed the plaintiff of an essential procedural weapon.

THE THREE ESTATES OR ORDERS IN THE LEX Charlemagne forced everyone who had a claim against another person to forgo armed response and to accept monetary compensation instead. Every offence against a free man entailed defamation, therefore the redemption price for manslaughter (wergeld),14 paid in order to avoid a blood feud, was intended primarily to restore the reputation of the injured party. The amount of money was fixed according to rank. A nobleman in good standing possessed more honour than a common worker and the payment would have to be correspondingly higher than for someone of lower rank. The drafting committee

13 14

Algra (n.2), 185. The meaning of wergeld is not quite fixed; sometimes it denotes the total amount of indemnification, including the share assigned to the kin, sometimes only the share of the immediate kin, the heirs. The LF only mentions the share of the kin in its first paragraph and this is as one would expect, because the kin’s share is meant as an indemnification towards the costs of their mandatory participation in the feud and the LF was intended to abolish the latter. Cf. Algra (n.2), 188, Siems (n.1), 283-287.

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of the LF solved this problem by distinguishing between three estates or orders and relating the fixed compensation to the position of the injured party. There were two free estates, the ordinary freemen and the nobles, the third estate was formed by the liti. The litus was subject to a master (dominus), but did not belong to him. The servi (variously translated as serfs or slaves) belonged to their master and did not constitute a separate estate.15 Additionally, there were two classes, the clergy and the feudal lords, who were assigned their own, special compensation. Nobles.16 The order of the nobles consisted of free men who were able to live off the labour of others, liti and servi who were subject to them. Rich noblemen might also support groups of free vassals. They would generally participate actively in public life. A nobleman would be very sensitive where his honour was concerned, so that even a minor accusation would be taken as a great insult which could only be avenged by blood. An unavenged insult would inevitably bring about a diminution of his honour. Freemen.17 This was the most vulnerable group in society. The freedom of the freemen was based on their being members of a village community. A man would belong to such a community only when he had settled there permanently and supported himself, e.g. as an artisan, a small farmer, a miller, a carpenter or a boatman. The freemen constituted a residual group between the nobles and the liti. On the one hand, they did not (yet) have a special bond of allegiance with the king (as did the nobles), on the other, they were not unfree, i.e. they were not in the service of a lord, neither were they servi. Liti.18 The legal criterion for a litus was that he had a master or lord (dominus): he was a subordinate. Between him and his lord there was a relation of authority. In the legal system, however, he enjoyed a certain status, he was not a non-entity. The litus had the right to swear an expurgatory oath and this would also entitle him to enter into single combat or to initiate a feud. Socially speaking, liti were not necessarily inferior to freemen. A litus, for example, could employ his own liti, in his capacity as manager of his lord’s domain. The LF, moreover, did not exclude the possibility of a free woman marrying a litus, being unaware of the latter’s status, and retaining her free status. This is an indication of the fact that the social difference between freeman and litus was not necessarily visible in everyday life.19

15 16 17 18 19

Algra (n.2), 125-138. Algra (n.2), 131-133. Algra (n.2), 133-136. Algra (n.2), 136-138. Cf. LF VI: De coniugiis ignoratis. A distinguishing feature of an unfree man was that he would have to pay his dominus for a marriage license when he was marrying out his daughter.

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Text 3: [LF XI, De Lito] Si liber homo spontanea voluntate, vel forte necessitate coactus,20 nobili, seu libero, seu etiam lito, in personam et in servitium liti se subdiderit, et postea se hoc fecisse negare voluerit, dicat ille, qui eum pro lite habere visus est: Aut ego te cum coniuratoribus meis VI, vel VII, vel X, vel etiam XX sacramento meo mihi litum faciam, vel tu cum tuis coniuratoribus de mea potestate te debes excusare.

Liti were vital in a period of underpopulation. A dominus needed farm managers, because without them his vast estates would be worthless. He therefore had to depend on his farm overseers and could not arbitrarily dismiss them without serious damage to his own interests. They constituted his human capital.

SOURCES REFERRED TO BY THE PREPARATORY COMMITTEE (1) Royal decrees The LF contains a reference to a royal decree that has not come down to us.21 Text 4: [Manslaughter in the event of arson in the course of a feud gives rise to a ninefold increae of the wergeld. LF VII, 2, De Brand] Si [quis, i.e. incendiarius] autem dominum domus flammis ex ipsa domo egredi compulit, et egressum occiderit, componat eum novies, cuiscumque fuerit conditionis, sive nobilis, sive liber, sive litus sit. Haec constitutio ex edicto regis processit.

The fact that the emperor does not make any distinction between the classes of subjects may be regarded as a step in the direction of modernization. The king (emperor) stands above the classes (estates), he imposes his will on everyone. That is why the provision starts with the words: Si quis, if anyone (regardless of his status). This implies that the king has instituted a new legal relationship between himself and his subjects; he lays claim to personal jurisdiction over anybody within his realm. This new relationship supersedes the previous personal legal relationships between the domini and their dependents. Another interesting aspect is the ninefold wergeld in this particular case (feud + arson + homicide) which harks back to an earlier period.22 As explained above, the feud was originally not subject to compensation (botlos), but constituted a necessary element of a juridical procedure. It is plausible that the emperor intended to suppress this disproportionate form of revenge. The difficulty was that a (legal) feud could hardly be regarded as a breach of the peace. By raising the price of the redemption of this form of revenge to a great height, it was made virtually impossible to redeem it.

20 21 22

If a noble oppressed a free man, the latter often had no other choice than to seek protection with a more powerful nobleman. Algra (n.2), 139-140; Siems (n.1), 207-210. Siems (n.1), 210, 321-326; see also Text 9.

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If my assumption is correct then the rule in question is an attempt by the emperor to ban this form of revenge altogether by making redemption prohibitively expensive. (2) Ecclesiastical rules The LF has undergone the influence of the Christianization of Frisia. Ecclesiastical rules and jurisdiction have had a significant impact on the development of modern secular legal institutions.The church had a hierarchical structure and therefore had little problem in imposing its rules on the believers. The obedientia it demanded could be built on the foundations of the defunct pagan cult, itself based on the fear of the gods.23 During the difficult initial period of Frankish rule, the secular lawmakers could take advantage of the new Christian approach. The priests would encourage meekness and obedience towards the secular rulers as Christian virtues. The ecclesiastical rules of the LF begin in the usual fashion with the words si quis. The rank of the subject to whom the rule was addressed was generally of no relevance. Text 5: [The keeping of Sunday, LF XVIII, 2, De die dominico]24 1. Qui opus servile die dominico fecerit, ultra Laubachi solidos XII, in caeteris locis Frisiae IVsolidos culpabilis iudicetur. 2. Si servus hoc fecerit, vapuletur, aut dominus eius IVsolidos pro illo componat [nisi dominus eius IV solidis corium redimere voluerit].25

These Christian rules must be of more recent date, compared with other rules of the LF. The text provides two indications of this. In S.1.: culpabilis iudicetur, he will be found guilty. Originally, the question of guilt, in the sense of knowingly and willingly breaking the rules, was irrelevant in Old Frisian legal proceedings.26 The trial was similar to a gamble, one could either win or lose. The question of culpability did not arise until the Franks introduced a trial by a sworn jury. The jurymen had to discover the truth through the aid of local knowledge. In S.2: vapuletur, aut dominus eius IV solidos pro illo componat. A dominus was the self-governing ruler over his subordinates. He was not only their lord (executive power), but also their judge, and he would have his own judgments executed. His personal jurisdiction was absolute and he would defend it vigorously in order to maintain his status. The present rule, however, implied that the emperor penetrated into the domain of the jurisdiction of the dominus. As the supreme ruler he set penalties affecting the serfs of private lords, leaving them only the option of buying off the whipping by paying the fine.27

23 24 25 26 27

See Text 1. Siems (n.1), 340-343; Algra (n.2), 143-144. A variant found in LF III, 7. Siems (n.1), 214 (n.398); Algra (n.2), 254. Siems (n.1), 303.

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(3) Judge-made law The task of the asega. The preparatory commission has taken many rules from ancient judgments (taken as arbitral decisions). They were available because asegas (lawsayers, law-finders, doomsmen)28 were active in the Frisian districts west of the Lauwers.29 The asegas had to be familiar with all the rules in force: scire omnia iura. After having been sworn into office by the emperor, they had the duty to give their opinion as judges in a trial.30 Most likely, the above-mentioned Wulmar and Saxmond were also asegas. Text 6: [Task assigned to the asega; Third Statute, before 1080]31 Ille azega non habet quemquam iudicare nisi plebs elegit ipsum et ipse coram [...] imperatore romano iuraverit. Tunc tenetur scire omnia iura. [...] Tunc debet judicare inimicum sicut amicum, quia iuravit imperatore viduis et orphanis et omnibus advenis sicut coniunctis sibi in tertia linea consanguinitate.

An asega would draft the judgment (doom) after a plaintiff had brought an action in court.32 He would dictate the fixed formulas and oaths to the parties. Originally, all bystanders had to approve his draft.33 Later on, the bystanders were replaced by twelve ad hoc appointed jurymen. Ultimately, seven jurymen were appointed for a year-long term of office. The verdict had to be adopted unanimously. During the period that Frisia was subject to the bishop of Utrecht, a frana and later on a bailiff (skelta) represented the bishop.34 These officials ordered (banned) the asega to give his judgment (doom). Afterwards they would confirm it by putting their approval (ban) on it. Execution was left to the party who had won the case. Text 7: [van ene thiaf.35 12th century?] Thet is riucht: hwersama anne thiaf feth and ma hine brenge to ware and lattene vmbe thene warf an hene biutma to lesane and nelma hine nout lesa, sa vr delma sin hals. Therefter mei hine en mundlas meiden lesa. Jef hio hine to ena formund kiasa wele ief en meynwif mei hine lesa dar vten bodelhws is to afta sa mei hi sin hals bihalde.

Translation: Concerning a thief [caught red-handed]. This is the rule: when someone catches a thief, and takes him to court and takes him around [to show him to the bystanders] and gives the opportunity to redeem him [to buy him as a slave] and nobody wants to redeem him, he loses his neck. An unmarried woman, however, may then redeem him, if she chooses him to be her husband, or a com-

28 29 30 31 32 33 34 35

Dutch: schepenen, French: échevins, German: Schöffen. The situation east of the Lauwers is unclear, due to lack of materials. Algra (n.2), 78-79, 100, 113, 116. Algra (n.2), 78-79. Algra (n.2), 153. Algra (n.2), 113. Algra (n.2), 25, 59, 211. W.J. Buma & W. Ebel, Das Fivlgoer Recht, Göttingen, 11972, 75; B. Sjölin, Die ‘Fivelgoer’ Handschrift, Den Haag, 1970, 278.

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mon woman [widow], who is not in the undivided estate [of her late husband] anymore [who wants to marry him]; then the thief may save his neck.

Initially, no one was obliged to come to court, neither to comply with the decision of the court, not even when he had brought the case himself for arbitration by the court. But disregard of the court’s decision was rare, because it would result in serious loss of public esteem for the person concerned.36 As a rule, minor cases were only submitted to the court by mutual consent. A man in good standing could only initiate a feud or challenge to a duel, without loss of reputation, in cases of bloodshed (manslaughter, grave injuries) or serious violations of his honour. Cutting off a nose or an ear would only justify a feud if it had been done in a manner unworthy of an honourable man (e.g. not in a fair fight, or with the intention to humiliate).37 Impartial and wise judgments would command respect and would lead to the increased submission of serious disputes. In this way a more modern legal order could emerge. What was initially an arbitration tribunal could develop into something more like a present-day court, having the power to order a person’s attendance at the trial (subpoena). Once the administration of justice becomes institutionalized, even if the competence of the institutions is still limited, the road is open for the evolving of a more complete system of law, where every dispute can be settled by peaceful means. The course of the trial. The LF offers us an extensive report of a court session. It may go back to the times before Frankish rule and have been adapted subsequently to the catholic religion.38 The case concerned a man killed during a riot (a turba, probably a drunken brawl). The chosen leader of the heirs was obliged to take revenge, but in this case the identity of the killer was unclear. The leader of the feud could bring an action in court against some of the bystanders, but Old Frisian procedure required single combat, a fight between two men. One could challenge a person by getting hold of his ears, but the accused could pass on the complaint by declaring that another person was the culprit (Quod ille homo homicidii, de quo ego interpellatus sum, reus est). The latter person could point to a third and so ad infinitum. In Central Frisia, the asega came up with an ingenious plan. The leader of the feud could bring the same charge simultaneously against not more than seven men. Each of them would have to swear an expurgatory oath, supported by twelve men (duodecima manu) who would swear that he was speaking the truth. If all seven summoned would expurgate themselves in this way, then God was supposed to screen the oaths through a procedure to be carried out in church.39 Presumably, the men

36 37 38

This illustrates the role of honour in the enforcement of Old Frisian law; cf. Algra (n.2), 17, 21. Algra (n.2), 165. Algra (n.2), 150-153; Siems (n.1), 316-318.

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who had taken part in the fight did not have too clear a recollection of it and the easiest way out was to resort to a procedure which looked very much a lottery to modern eyes.40 Measures against overpopulation. As we have seen, the LF displays a certain realism. Why kill a man if he can still do a useful job? Why seek endlessly for an untraceable killer? The following rule is also an example of a pragmatic approach. A complete family in Frisian law consisted of six persons (‘hands’): two grandparents, two parents, son and daughter. This setup would protect the family against becoming impoverished by having too many children. The son could inherit the family estate, the daughter would be given away in marriage. If there were more children, the family’s prosperity would be at risk, because all the sons could claim an equal share in their father’s inheritance and the daughters would have to receive a dowry. To prevent such a situation, the mother was therefore free to have her newborn child killed, as long as it had not yet been fed. Text 9: [LF V, De hominibus, qui sine compositione occidi possunt] [1.] Campionem; et eum, qui in proelio fuerit occisus; et adulterum; et furem si in fossa, qua domum alterius effodere conatur, fuerit repertus; et eum, qui domum alterius incendere volens, facem manu tenet, ita ut ignis tectum vel parietem domus tangat; qui fanum effregit; et infans ab utero sublatus et enecatus a matre; [2.] Et si hoc quaelibet foemina fecerit, leudem suam regi componat, et si negaverit, cum V. iuret.41

(4) Borrowings from other Leges Barbarorum There are some unmistakably similar rules in other Leges Barbarorum, for instance in the Lex Alamannorum (between 710 and 730).42 There may have been direct borrow-

39

40 41 42

Text 8: [LF XIV, 1-2, De homine in turba occiso] ...Tunc ducendi sunt ad basilicam, et sortes super altare mittendae, vel si iuxta Ecclesiam fieri non potuerit, super reliquias sanctorum. Quae sortes tales esse debent: duo tali de virga praecisi, quos tenos vocant, quorum unus signo crucis innotatur, alius purus dimittitur, et lana munda obvoluti super altare seu reliquias mittuntur; et presbyter si adfuerit, vel si presbyter deest, puer quilibet innocens, unum de ipsis sortibus de altare tollere debet; et interim Deus exorandus, si illi septem qui de homicidio commisso iuraverunt, verum iurassent, evidenti signo ostendat. Si illum qui cruce signatus est sustulerit, innocentes erunt, qui iuraverunt; sin vero alterum sustulit, tunc unusquisque illorum septem faciat suam sortem, id est tenum, de virga, et signet signo suo, ut eam tam ille quam caeteri qui circumstant cognoscere possint; et obvolvantur lana munda, et altari seu reliquis imponantur, et presbyter si affuerit, si vero non ut superius puer innocens, unumquemque eorum singillatim de altari tollat, et ei qui suam sortem esse cognoverit, rogat. Cuius sortem extremam esse contigerit, ille homicidii compositionem persolvere cogater, caeteris quorum sortes prius levatae sunt absolutis. Si autem in prima duarum sortium missione, illam, quae crucis signo notata est, sustulerit, innocentes erunt, sicut praediximus, septem qui iuraverunt, et ille si velit, alios de eodem homicidio interpellet, et quicunque interpellatus fuerit sua duodecima manu perfectorio sacramento se debet excusare, et in hoc interpellatori sufficiat, nec ulterius ad sortem quenlibet compellere potest. Haec lex inter Laubachi et Flehum custoditur. The trial should not last forever: lites finiri oportet. The latter rule probably a restriction inspired by Christianity. Siems (n.1), 356-359.

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ing from the latter law, or both laws may have taken some materials from an earlier text. In the context of this paper these similarities or not of major importance.

The key role of the asegas There was probably only one asega in office at one time in Frisia. He would travel from court to court, accompanied by an apprentice. He had to be of unimpeachable conduct. The task of the asega was dom dela, to issue a doom, to formulate a judgment. Every court decision was prepared by the asega, who informed the people present of the applicable formula or rule. He was expected to know all the legal formulas and rules by heart. As no two cases are the same, the asega had to decide whether a new case came under an existing rule. He could create new law by broadening or restricting the scope of an existing rule. The principle of equality dictated that a decision would constitute a precedent for a similar case in future, because similar cases have to be treated equally. New rules acquired normative force and in this way the fossilization of the existing rules could be prevented. As a result Old Frisian law consisted primarily of judge-made law (case law). The rules were not imposed on the populace by a legislator, but the public generally accepted them. Some scholars have argued that the products of judicial law-making should be regarded as customary law and have rejected them accordingly as inflexible and obsolete. In reality, however, this law is ‘the recorded wisdom of the wise men of old that had learned the safe course or divinely approved course for human contact.’43 This method of law-making or -finding was uncommon on the European Continent, but the Frisians considered it as one of the basic Freedoms. At least four sovereigns were killed by the Frisians for not respecting the Frisian Freedoms.

RULES, DIFFERING ACCORDING TO ESTATE Medieval society was based on the division of society into several estates. As we have seen, the height of the wergeld was fixed in accordance with the estate of the injured party. An inquiry into the origins of a legal system should therefore take account of the ways in which legal developments affected the different estates. The establishment of a legal order embracing the entire population would, as a general rule, be beneficial to persons who did not belong to any estate, as one could expect that the legislator would move in the direction of greater equality before the law. The liti, who were subject to a master, could likewise look forward to an improvement of their position. Many unfree persons occupied positions of responsibility in the feudal administration as ministeriales. The freeman had little to fear from the establishment of a legal order; his permanent problem was that he could not fall back 43

R. Pound, An Introduction to the Philosophy of Law, New Haven, 1976, 26.

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on a powerful defender. Only the nobles had much to lose; their special privileges might be lost, because their quasi-sovereign position was incompatible with a general rule of law in the kingdom.

KEEPING THE NOBLES IN LINE Overcoming the resistance of the Frisian nobility presented serious problems to the central government of the emperor. Of old there were two main categories of nobility: the ancient pre-Frankish aristocracy and the feudal nobility. The nobility of the LF represented the old estate. The Frisian nobles claimed their privileges on account of their ‘high birth’, belonging to a family line of aristocrats. They had to serve in the emperor’s army as cavalrymen (caballeri). Their wergeld was set in the very first article of the LF. For the feudal nobility the LF did not regulate the wergeld, because their position was based on their relationship with the king (vassals, homines franci). A vassal would swear fealty and do homage to the king. In return for his service he would receive a benefice, usually the public revenues of a territory (pagus, German Gau, Dutch gouw) which he would hold in feudal tenure directly from the king. The vassal’s place in the hierarchical administrative structure determined his status. In a capitulary of 802, both categories of nobles come into view.44 Text 10: [ Capitulare De causis diversis, 807] (6.) De Fresonibus volumus, ut Comites et Vassali nostri, qui beneficia habere videntur, et caballari omnes generaliter ad placitum nostrum veniant bene praeparati; reliqui vero pauperiores sex septimum praeparare faciant, et sic ad condictum placitum praeparati hostiliter veniant.

As loyal followers of the king (his fideles), the vassals enjoyed his high protection; their wergeld was several times higher than that of the old nobles. Text 11: [Peace ban for an envoy; LF XVII: Hic bannus est]45 (3.) Si quis legatum regis vel ducis occiderit, similter novies illum componat, et fredam similiter novies ad partem dominicam.

The vital bond in feudalism was the personal relationship between the vassal and the lord. The bond of fealty was thought to be stronger than any other relationship, save man’s allegiance to God. The vassal owed his lord whatever good faith would demand, and in particular auxilium and consilium (Dutch: raad en daad). This would include participation in the administration of justice and in legislation. The idea of good faith between lord and vassal, together with the idea of mutual rights and obligations, contributed to the strengthening of the rule of law, personified in the king, to whom everybody was subject. 44 45

Algra (n.2), 105. Siems (n.1), 322-324.

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Charlemagne promoted the system of fidelity to the king by obliging all free men (homines) to swear fealty to the king as the dominus.46 Text 12: [Oath of fealty to Charlemagne, 802] Sacramentale qualiter repromitto ego, quod ab isto die inantea fidelis sum domo Karolo piissimo imperatori [...], pura mente, absque fraude et malo ingenio de mea parte ad suam partem et ad honorem regni suo, sicut per drictum debet esse homo domino suo.

To swear fealty implied formal submission to the emperor. The alliance between king and man (homo or homo francus) allowed the king to give instructions to his fideles (to ban them). Disobeying the ban would amount to a breach of the oath of fealty. Infidelity meant being in disgrace with the king and this would entail attainder and forfeiture on account of felony and outlawry. The outcast could, however, regain his status by paying three pounds to the king or to the nobleman who represented the latter. This sum of money was not a fine or penalty in the ususal sense of the word, but a fee for the re-establishment of fealty. Neither should it be regarded as the payment of a debt; if the fee was not paid, the king would banish the disobedient vassal for his defiance, but not for being in default of paying the fee.47

THE KING’S PEACE The king’s command (bannum) had a very important effect on the development of criminal law. In a roundabout way the king could outlaw all kinds of undesirable behaviour by bringing it within the scope of his banning orders. The most effective ban of the king was the peace ban.48 Every year, at the opening of the session of the court, the king’s representative ordered the king’s peace. Taking the law into one’s own hand was then forbidden. Everybody was obliged to submit his claims to the court. Text 13: [LF XVI, Inter Laubaci et Sincfalam de fredo] De homicidio ad partem dominicam pro freda XXX solidi componuntur, qui solidus III denariis constat.

One result of the peace ban was that the security of tenancy was strengthened. In the course of the Middle Ages the earlier labour shortage disappeared. The previous liti, who had then become freeholders, received their tenancies on the basis of a contract, under the influence of Roman laws. Consequently, the landlord could also terminate the tenancy. The annual peace ban made it possible to subject eviction to strict conditions.

46 47 48

Algra (n.2), 185. Algra (n.2), 35, 59. Algra (n2.), 230-238, 262-263.

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Text 14: [An adjudication of the asega; second half of the 13th century]49 [11. The bailiffs to the asega:] Hwet agen wi mar [to dwane]? [12. Asega:] J agen frethe to ledzane alle riuchta hwsliudum, [...] an alsadena hewm and alsadena werum to bisittane, sar biseten and bineten hede siker and sanlas, hwether sar den on kemen were mith cape sa mith wixle sa mith riuchta herwerum, hit ne se thet ti hera schele thet lond sella an cap iefta an wixile; sa is alle londa ec an cap frei. Bitigeth er him thet, thet ther hebbe misscherit, miserit, misdommat, misditset iefta hera misgulden, sa scel hine alhir onspreka. Sa is [hi] thach niar thet to betriane and sines hera hild to winnane than eng mon him is of to driwane, sa fir saret alle beteria welle.

Translation: [The bailiffs:] What else do we have to do? [The asega:] You have to lay a peace ban on all fully entitled masters of a house [...] He has to be in the unchallenged and unquestioned possession of his goods and rights and the power of using them, regardless of whether he acquired them by purchase or by exchange or by a valid lease, unless the landlord wants to alienate the land by sale or exchange – then the land is passed on unencumbered. If the landlord accuses him [the tenant] of some shortcoming in ploughing or mowing or in the maintenance of dams or dikes or of failure in the payment of rent, then he shall present his claim to the court session. He [the tenant] has a better right to make amends and regain the trust of his lord, than the latter has to evict the tenant, to the extent the tenant offers full reparation.

The freemen, on the basis of their oath of fealty to the king, were obliged to serve on juries. This involvement of the fideles in the administration of justice, introduced by Charlemagne, worked in favour of the common people. The jurors had the duty to find the whole truth and nothing but the truth; they gave a separate judgment.50 If a plaintiff had all twelve (later on seven) jurymen on his side, the defendant would lose his right to expurgate himself with the aid of oath helpers. The expurgatory oath usually worked in favour of the rich. A rich man could refuse to hear the oath of his opponent. This would result in single combat and the rich man could afford to hire a better champion.

THE SUCCESSFUL FIGHT OF LOUIS THE PIOUS AGAINST THE FEUDS Charlemagne, himself a great warrior, had attempted to suppress the feuds in which the more warlike elements of the Frisian population used to engage by making them illegal and enforcing this ban my military means. He ordered his troops into the Frisian territories to destroy the homes of nobles who defied his command and he had their estates confiscated. This policy was probably also supported by a rule which provided that succession could only take place within the ‘six hands’ (father, mother, brother, sister, son, daughter). Kinship outside these six hands was not any longer accepted as a title for joining a feud. Feuds had always been a matter which only concerned persons connected by kinship. Under the new regulation, relatives outside the circle of the six hands had neither the right, nor the duty to join an injured 49 50

W.J. Buma & W. Ebel (n.35), 174-176; B. Sjölin (n.35), 364. Between Fli and Lauwers they were called ‘the king’s attestors’; between Lauwers and Ems, wirdmonnen, Latin veridici.

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relative in seeking revenge.51 This worked two ways, because it severely limited the number of people who could and would take part in feuds on both sides, of the offender and of the injured party. Charlemagne’s son and successor, Louis the Pious, adopted another strategy. He restored the patrimonial estate to the Frisians (and Saxons). He calculated that he could bind his subjects more strongly to himself by supplying them generously with benefices (fiefs). This measure proved to be successful, although at the time his councillors were very much divided over the results to be expected.52 Text 15: [ Returning the ancestral estate; Anonymi vita Hlodowici, anno 814]53 Quo etiam tempore Saxonibus atque Frissonibus ius paternae hereditatis, quod sub patre ob perfidiam legaliter perdiderant, imperatoria restituit clementia. Quod alii liberalitati, alii adsignabant improvidentiae, eo quod hae gentes naturali adsuefactae feritati, talibus deberent habenis coherceri, ne scilicet effrenes in perduellonis ferrentur procacitatem. Imperator autem eo sibi artius vinciri ratus, quo eis beneficia largitur potiora, non est spe sua deceptus. Nam post haec easdem gentes semper sibi devotissimas habuit.54

The renewed possibility for engaging in feuds was considerably restrained by the general peace ban (as mentioned above), proclaimed at the first court session of the year. Persons who had a grudge against somebody were instructed to take their case to the court. In due time the Frisians established the right to redeem a feud through payment. They transformed the ‘obligation’ to accept money in lieu of a fight into a Frisian ‘privilege’; a Frisian who had been offended could accept money for the insult, without loss of honour.55 Text 16: [The Sixteenth Statute; fragment]56 Sexta decima petito est [et regis karoli concessio57] quod omnes frisones habent inimicitias siue feithe cum pecunia emendare.

51 52

53 54

55 56 57

Algra (n.2), 188-189. N.E. Algra, ‘The Relation Between Frisia and the Empire from 800-1500 in the Light of the Eight of the Seventeen Statutes’, Amsterdamer Beiträge zur Älteren Germanistik 49, Approaches to Old Frisian Philology, Amsterdam, 1998, 7-9. R. Rau (ed.), ‘Vita Hlodowici Pii’, Quellen zur Karolingischen Rechtsgeschichte, Darmstadt, 1987, I, 294, nr.24. We should of course not conclude from this that feuds disappeared. On 6 July 839, Louis the Pious returned to his fidelis Gerulf the latter’s former fief, situated in ducatu Frisiae, in pago Westracha, in villa Cammingehunderi et in aliis villiis circumquaque se positis (J.R.G. Schuur, ‘Een vergeten aspect van een oud probleem: de betekenis van de naam ‘Cammingehunderi’’, De Vrije Fries 56, Leeuwarden, 1976, 40). This estate had been confiscated by the king a few years earlier because of Gerulf’s disregard of the king’s command by getting involved in some violent disorders (intervenientibus quibusdam turbinibus), probably a feud. Algra n.2), 192; Algra (n.52), 9. J. Sytsema, De 17 Keuren en de 24 Landrechten in de Ommelander Rechtshandschriften, Amsterdam, 1998, 351. According to the R-version; J. Hoekstra, Die gemeinfriesischen siebzehn Küren, Assen, 1940, 114.

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SUMMARY During the early Middle Ages the Frisians inhabited the coastal area of the North Sea from the present Belgian-Dutch border to the river Weser in Germany. After having come under Frankish rule in the seventh and eighth century, they were ordered by Charlemagne to collect the existing rules. Only a written draft of this ‘law’ has survived, which has been named, somewhat inappropriately, Lex Frisionum. It had been prepared by a committee of Frisian jurisconsults and offers an insight into the methods employed by the ancient lawmakers. The LF includes decrees of Frankish kings and ecclesiastical rules, but consists predominantly of case law of the old Frisian jurists (asegas). In the Frisian court, the asega advised the congregation and formulated a proposal for a judgment. Once such a judgment was accepted, a new rule came into being. Its validity rested on the approval of all those who had been present. The rules generally had a pragmatic character. Their aim was not to regulate relations with a ruler, but to create solutions for everyday problems. The Frankish emperor, however, had to exert all his strength to enforce his new rules on the Frisians. His purpose was to establish a legal order for his realm and this would require the submission and obedience of the entire population, including the Frisians. Opposition did not come from the lower classes, for whom strengthening of the king’s position would mean more effective protection against oppression from the side of their own nobles. The latter, however, had much to lose. In particular, the imperial ban on feuds meant that their ability to influence the outcome of trials in their own favour was severely curtailed. Formerly, when they feared that they would lose their case in court, they could challenge their less affluent opponent to single combat, to be waged by a hired champion. Charlemagne’s answer was to forbid feuds and oblige would-be feuding parties to come to a reconciliation and accept a fixed amount of money. Refusal to comply could lead and did in fact lead to loss of the ancestral estate. Louis the Pious changed this policy by handing back the estates, but only conditionally. The Frisian nobleman was obliged to enter into a feudal bond, promise fealty to the emperor and do homage to him. The landowner, now a fidelis, would lose his fief if he would breach his faith. This policy proved to be successful. Louis the Pious ‘was not disappointed in his expectations. And afterwards these peoples were always very loyal to him’, as the king’s Vita relates. Honey catches more flies than vinegar and the success of legislation depends to a large extent on the acceptance of the population.

The Earliest Law of Russia and its Sources

Ferdinand Feldbrugge

INTRODUCTION The most important monument of early Russian law is the Russkaia Pravda. More than two centuries of scholarship have resulted in a vast body of studies and commentaries. The purpose of this paper is not so much to add to this, but to look at the RP and a few roughly contemporary sources from a specifically legal perspective, involving such aspects as legal theory, history, anthropology, and sociology. The underlying idea is that law, as we know it, has not existed since time immemorial, but emerged at a certain stage of societal development. Its origins, like that of history, are closely connected with writing. It would be difficult to argue that there were no history and no law before there was writing,1 but the invention of writing did so significantly improve the possibilities of communication between human beings from different places and times, that the world became a different place from that moment on. The study of the earliest written legal sources of any society is therefore of particular interest from the legal point of view, because we may witness there the birth of a number of institutions, practices, techniques, etc. which together constitute the world of modern law. But although the process of writing inaugurated a new phase in the development of the law, the new elements were not created ex nihilo; something preceded them, they had a prehistory, they were invented, cobbled together on the basis of existing institutions, practices, techniques. The latter may be hard to identify, on account of the scarcity of available information, but the effort is worth its while, even if it has to involve a certain amount of speculation. As this paper is not directed at specialists in early Russian history, some more general preliminary remarks on the RP and related documents have to be made.

THE RUSSKAIA PRAVDA: General remarks The first copy of the RP that came to light in modern times was discovered by the Russian historian V.N. Tatishchev in 1738 in the manuscript of a medieval chronicle (the so-called First Novgorod Chronicle). Subsequently many more copies were found, most of them in manuscript collections of ecclesiastical and secular laws,

1

One of the, perhaps, classic illustrations of the existence of an unwritten legal system of considerable sophistication is Llewellyn & Hoebel’s The Cheyenne Way (K.N. Llewellyn & E. A. Hoebel, The Cheyenne Way; Conflict and Case Law in Primitive Jurisprudence, Norman, Oklahoma, 1941).

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named Kormchie (lit. ‘steering-books’, Greek Nomokanon), copied and kept in Russian monasteries.2 By the middle of the 20th century more than 100 copies were known Of the many editions, the three-volume publication Pravda Russkaia of the USSR Academy of Sciences may be regarded as fundamental.3 As soon as more copies of the RP became available, it became clear that there were at least two basic versions, a shorter one, numbering about 850 words, and a longer one about four times as long. These versions are known, respectively, as the Short and the Expanded Pravda.4 The intimate relationship between the two is obvious, not only because in most manuscripts they both go under the name of Russkaia Pravda, but, more importantly, because virtually all provisions of the Short Pravda are also found, albeit in sometimes slightly different wording, in the Extended Pravda. It is also generally assumed that the Short Pravda is older than the Expanded Pravda, but we shall have to return to this question at greater length.

THE SHORT PRAVDA After art.185 of the Short Pravda there is a line which reads as a preamble: ‘The law established for the Russian land, when Iziaslav, Vsevolod, Sviatoslav, Kosniachko, Pereneg, Mikyfor the Kievan, Chudin [and] Mikula met together.’ The first three persons mentioned were the sons and successors of the Kievan grand prince Iaroslav the Wise (Iaroslav Vladimirovich, who ruled in Kiev, 1019-1054). Most copies of the Expanded Pravda are headed ‘The Law of Iaroslav Vladimirovich’, and art.2 of the Expanded Pravda repeats the preamble just quoted in slightly different words: ‘After Iaroslav, his sons Iziaslav, Sviatoslav, and Vsevolod, and their councillors: Kos-

2

3

4

5

An extensive account of the historiography of the RP may be found in M.N. Tikhomirov, Issledovanie o Russkoi Pravde. Proiskhozhdenie tekstov, Moskva/Leningrad, 1941 (hereafter: Tikhomirov, Issledovanie), ch.2, and, more recently, in A.A. Zimin, Pravda Russkaia, Moskva, 1999 (this work, hereafter quoted as: Zimin, PR, was published on the basis of a manuscript completed shortly before the author’s death in 1980). Shorter accounts in G. Vernadsky, Medieval Russian Laws, New York, 1947 (hereafter: Vernadsky, Medieval Russian Laws), 12-14, M.N. Tikhomirov, Posobie dlia izucheniia Russkoi Pravdy, Moskva, 1953 (hereafter: Tikhomirov, Posobie), 9-15, and D.H. Kaiser, The Growth of the Law in Medieval Russia, Princeton, 1980 (hereafter: Kaiser, Growth), 29-37. B.D. Grekov (ed.), Pravda Russkaia, Part I: Teksty, Moskva/Leningrad, 1940; Part II: Kommentarii, Moskva/Leningrad, 1947; Part III: Faksimil’noe vosproizvedenie tekstov, Moskva, 1963 (hereafter: Grekov, PR I, II, III). English translation in Vernadsky, Medieval Russian Laws, 26-56. French translation in M. Szeftel & A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963 (hereafter: Szeftel & Eck), 21-116. German translation in I.Ph.G. Ewers, Das älteste Recht der Russen in seiner geschichtlichen Entwickelung, Dorpat/Hamburg, 1826, and also: E.S. Tobien, Sammlung kritisch bearbeiteten Quellen der Geschichte des russischen Rechts, Bd.1. Die Prawda Russkaja und die ältesten Tractate Russlands, Dorpat, 1844. There is also a third version, numbering about 1100 words, known as the Abridged (Sokrashchennaia) Pravda. Most authors regard it, however, as a later abridgment of the Expanded Pravda. It is of no interest for the present topic. The manuscript texts of the RP do not use article numbers; they are inserted by modern commentators for easy reference. This is a matter of considerable importance, because inappropriate placing of article numbers may distort the context of individual provisions. We follow the system of the Academy of Sciences edition referred to in note 3.

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niachko, Pereneg, and Nikifor met in a conference ... and as to anything else, all that Iaroslav had decreed, his sons confirmed accordingly.’ It is primarily on the basis of these texts that it is generally recognized that the Short Pravda consists of two main parts: the first 18 articles, regarded as a law connected with the Kievan grand prince Iaroslav the Wise, and a following section, connected with his sons; the two parts are usually referred to as Iaroslav’s Pravda or the Oldest Pravda (Drevneishaia Pravda) and the Pravda of Iaroslav’s sons. Moreover, at the end of the Short Pravda, there are two provisions with their own headings, which appear to be unconnected with the immediately preceding text of the Pravda of Iaroslav’s sons: the law on the payment of bloodwite (vira), the pokon virnyi (art.42), and the bridgebuilders’ statute (the urok mostnikov), which is idenitified as ‘the law of Iaroslav’(to ti urok Iaroslavl’), art.43. More speculatively, one may discern different chronological layers in the first part of the Short Pravda, the Pravda of Iaroslav. The first ten articles are very similar in scope and terminology: they are all concerned with the payment of wergeld for homicide and other personal injuries; art.11 might belong to the same layer.6 Arts.1218 deal with a greater variety of cases concerning property claims, runaway slaves and loss of possession by the owner being the two central themes. In the second part, the Pravda of Iaroslav’s sons, the first block of provisions (arts.19-29) may very well be viewed as an addition or amendment to the wergeld provisions of the first part of the Short Pravda; arts.19-29 deal with special and increased fines for killing or harming the prince’s officials. Art.30 stands somewhat isolated,7 but the next series of provisions (arts.30-40) continues the focus on the prince’s interests, with the accent now on his property interests. As what appears to be a kind of short law code of princely domanial law, the Pravda of Iaroslav’s sons has therefore repeatedly been compared to Charlemagne’s Capitulare de Villis (dating from shortly before 800). Art.41 concerns the distribution of the money collected in fines and arts.42 and 43 have been mentioned above.

THE CHRONOLOGICAL FRAMEWORK OF THE SHORT PRAVDA It is abundantly clear from the above that the Short Pravda consists of different chronological layers which have been combined into a single document at a certain moment. The first step in achieving a more detailed understanding of this process is obviously a more precise determination of the emergence of the oldest part of the Short Pravda, the Pravda of Iaroslav. Two medieval Russian chronicles are of decisive importance in this respect, the Primary Chronicle (also known as Nestor Chronicle or the ‘Tale of Bygone Years’:

6

7

Art.11 does not deal with personal injury but with the runaway slave, but the reference to Varangians and Kolbiags connects it with art.1. Also, art.16 is devoted to the same topic, which would argue in favour of the viewpoint that the two provisions orginally belonged to separate complexes. See Tikhomirov, Issledovanie, 61. In substance, it concerns evidence: open wounds and bruises need no further corroboration by witnesses, but at the same time this rule repeats the first part of art.2 of the same document.

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Nachal’naia Letopis’, Povest’ Vremennykh Let) and the First Novgorod Chronicle.8 These chronicles relate how Iaroslav, in accordance with the prevailing practice among the descendants of Riurik, the legendary founder of the dynasty, had been appointed by his father Vladimir, grand prince of Kiev, to rule in Novgorod (Novgorod the Great, South-West of the present St.Petersburg). One of Iaroslav’s duties was the payment of an annual tribute of 2000 pounds (grivny) to Kiev. When Iaroslav, most likely at the insistence of the Novgorod population, decided to cease payment of this sum, probably around 1013 or 1014, his father summoned his troops and began to prepare an attack on Novgorod. Iaroslav thereupon reinforced his army, especially by recruiting Varangian (Viking, Russ. Variag) forces from Scandinavia (the house of Riurik was of Viking descent). These Varangians, in keeping with their reputation for violence and unruliness, created much unrest among the Novgorod population, and this culminated in riots in which many Varangians were killed. Iaroslav reacted by having a number of prominent Novgorod citizens treacherously murdered. At that moment, in 1016, he received news of the death of his father Vladimir in Kiev and the usurpation of the Kievan throne by his brother Sviatopolk, who lost no time in eliminating two other brothers, Boris and Gleb (subsequently to become two of the most popular Russian saints). In the face of this threat, Iaroslav was forced to make peace with his Novgorod subjects. He then marched with an army of Varangians and Novgorodians against Sviatopolk, overcame the latter in a battle on the banks of the Dniepr near Liubech, and ascended the throne of Kiev. Up to this point the two chronicles run closely parallel. The so-called Younger Version (Mladshii Izvod) of the Novgorod Chronicle then continues by relating how Iaroslav rewarded his troops: ... and he began to distribute pay to his troops, to the captains ten grivny each, and to the [common] soldiers one grivna each, and to all the men of Novgorod ten grivny each, and he dismissed them all to their homes; and he gave them a code (pravdu) and wrote down a law (ustav), saying to them: Live according to this charter (gramota), as I have written it for you, and observe it.

These words are followed immediately by the text of the Short Pravda. The Primary Chronicle makes no mention of a law code granted by Iaroslav, but instead goes into greater detail about the following campaign against Sviatopolk. If the story from the Novgorod Chronicle is to be believed, it can of course refer only to the first part of the Short Pravda, although the text produced by the Chronicle also includes the Pravda of Iaroslav’s sons (who perhaps were not even born at that time). The debate around this question has been going on for a very long time; most pre-revolutionary and Soviet scholars are inclined to give credence to the story of the 8

The so-called Laurentian Text of the Primary Chronicle has been published as Vol.1 Part 1 of the Russian manuscript collection Polnoe Sobranie Russkikh Letopisei (PSRL), Sankt-Peterburg, 1846, latest reprint Moscow, 1962; the Hypatian Text in PSRL, Vol.2, Sankt-Peterburg, 1843, latest reprint Leningrad, 1923. English translation by S.H. Cross & O.P. Sherbowitz-Wetzor, The Russian Primary Chronicle – Laurentian Text, Cambridge, Mas., 1953. The most important version of the Novgorod Chronicle is the so-called First Novgorod Chronicle; it has been published in PSRL, Vol.3 (1841, most recent reprint 1950); this text may also be found, together with a German translation in J. Dietze, Die Erste Novgoroder Chronik nach ihrer ältesten Redaktion (Synodalhandschrift) 1016-1333/1352, München, 1971. English translation by R. Michell & N. Forbes, The Chronicle of Novgorod 1016-1471, London, 1914 (reprint 1970).

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Novgorod Chronicle. In the context of this paper we can only refer to some of the major authors;9 following Tikhomirov,10 I would believe that only the first ten articles of the Short Pravda should be connected with Iaroslav’s charter of 1016. We must return to this question in more detail when the origins of the Russkaia Pravda are examined.

THE SHORT PRAVDA: COMPOSITION AND STATUS The Short Pravda, as argued above, consists therefore of two main parts, the Oldest Pravda or Pravda of Iaroslav, and the Pravda of Iaroslav’s sons, plus a few smaller enactments. More speculatively, both parts may be broken up in two parts each, all of these representing specific items of princely legislation.11 Eventually this entire legislative mass was united into a single document, which has come down to us through monastic manuscripts as the Short Pravda. Very little is known about the actual process of compilation. Most authors agree that it was the work of monastic scribes.12 Whether they were acting under instructions from the prince’s government, or independently, or in some intermediate position, is unclear. There are definite traces of editorial interference in the production of the final compilation known as the Short Pravda. The two principal conclusions to be drawn are that the Short Pravda, unlike its constituent parts, is not an actual piece of legislation, and, secondly, that the legislative portions it contains are not necessarily transmitted in their original form.

THE EXPANDED PRAVDA The Expanded Pravda is of less interest to the central theme of this paper and a brief overview will have to suffice.13 A great many copies exist and the problem of their classification is therefore quite prominent. The oldest copy, dated by the copyist himself, is of 1282. The Expanded Pravda appears to exist of two main parts, entitled in the text ‘The Law of Iaroslav Vladimirovich’ and ‘The Statute of Vladimir Vsevolodovich’. There is no doubt about the identity of these two princes, the first one is Iaroslav the Wise whom we met before as the legislator of the first part of the Short Pravda, and the second one is his grandson Vladimir Monomakh (his mother being a Byzantine princess of the Monomachus family), who ruled as grand prince of Kiev from 1113-1125. A closer examination of the text shows that the Expanded Pravda is by no means a sim9

10 11 12 13

A general discussion in Zimin, PR, 89-98, Tikhomirov, Issledovanie, ch.6, and I.Ia. Froianov, Drevniaia Rus’, Moskva, 1995, 97-112; see also: Pamiatniki russkogo prava (hereafter: PRP), Vol.I: A.A. Zimin (ed.), Pamiatniki prava kievskogo gosudarstva, Moskva, 1952, 74-75; Rossiiskoe zakonodatel’stvo X-XX vekov (hereafter: RZ), Vol.I: V.L. Ianin (ed.), Zakonodatel’stvo Drevnei Rusi, Moskva, 1984, 35. Tikhomirov, Issledovanie, 61. The proposed subdivisions of the Pravda of Iaroslav’s sons are of little relevance to this paper; I refer to Tikhomirov, Issledovanie, 62-70, and Zimin, PR, 99-123. Cf. Zimin, PR, 133-150, and Tikhomirov, Issledovanie, 74-78. I refer generally to Zimin, PR, 153-278 and Tikhomirov, Issledovanie, Chapters 10-20.

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ple conjunction of the Short Pravda and a later law by another Kievan prince. The Short Pravda is incorporated almost entirely into the Expanded Pravda, but not in a single block. Its provisions, edited but still recognizable, are found scattered through the entire text of the Expanded Pravda, also in the Statute of Monomakh. Moreover, most commentators agree that only a small portion of the latter part of the Expanded Pravda represents a specific law promulgated by Vladimir Monomakh at the beginning of his reign. To cut the story short, the Expanded Pravda was probably compiled at some time in the 12th century (after the death of Vladimir Monomakh in 1125) on the basis of the Short Pravda, the original statute of Vladimir Monomakh of 1113, and other Kievan princely legislation, all of these having been subject to considerable editorial reworking. As to its status, the safest course may be to follow Tikhomirov who suggests that its compilation was officially inspired, in order to be used as a practical work of reference for the courts, but that it was not officially enacted as a separate piece of legislation.14

OTHER CONTEMPORARY SOURCES The treaties of 912 and 945 The Primary Chronicle contains, under the years 907, 912, 945 and 971, what purport to be the texts of treaties between the Kievan grand prince and the Byzantine emperor. These treaties have given rise to a very extensive literature, but in the context of this paper only the treaties of 912 and 945 are of interest.15 The treaty of 912, according to its preamble, was concluded between the emperors Leo, Alexander and Constantine16 on the one hand and ‘Oleg, grand prince of Russia, and all the serene and grand princes and great boyars under his sway’ on the other. It contains fairly detailed rules about a number of subjects which we would regard as belonging to civil, commercial and criminal law, in which both Russians and Greeks were involved: homicide, assault and theft, damages for torts, inheritance and succession, redemption of prisoners, runaway slaves, etc. Some of the legal arrangements obviously reflect Russian usages and in one case (assault) this is stated explicitly: ‘he shall, according to Russian custom [po zakonu rouskomu], pay five pounds of silver’. The treaty of 945 follows the general format of the treaty of 912 (the latter clearly not being the first of its kind either); the parties mentioned are the emperors Romanus, Constantine and Stephen17 and the Russian grand prince Igor ‘and his 14 15

16 17

Tikhomirov, Issledovanie, 225. See especially A.N. Sakharov, Diplomatiia Drevnei Rusi; IX – pervaia polovina X v., Moskva, 1980, with extensive bibliography. Also PRP I, 3-70 (text, translation, commentary) and I. Sorlin, ‘Les traités de Byzance avec la Russie au Xe siècle’, Cahiers du monde russe et soviétique, II (1961), 313-360 and 447-475. The emperor Leo the Wise and his co-emperors, his brother Alexander and his son Constantine Porphyrogenitus. Romanus Lecapenus and his sons as co-emperors.

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princes and boyars and the whole people of Russia’. The topics covered are similar to those mentioned in the 912 treaty, but generally less favorable for the Russians. There are several explicit references to Russian custom (po zakonu ruskomu).18 Both treaties give the names of the envoys of the Kievan prince; in the 912 treaty all 15 envoys bear Scandinavian names; in the 945 treaty a large number of names is given as ‘the envoys and merchants from the Russian nation’. The list also indicates the persons represented by the 25 envoys, and then the names of 25 merchants follow. The overwhelming majority of these 50 persons bear Scandinavian names again. The ‘Russian custom’ of these two treaties may therefore very well be the custom of the Viking warriors who constituted the immediate entourage of the Kievan princes.

The treaty of 1229 between Smolensk and Riga The date of this treaty can be established exactly because the text indicates that it was concluded between prince Mstislav Davidovich (of Smolensk) and Riga in the year bishop Albrecht (Albert or Adalbert, the first bishop of Riga) died. The contents of the treaty are in many ways close to the Expanded Pravda, and 1229 is therefore the certain terminus ante quem of the latter. The Smolensk-Riga treaty provides a short law code for disputes arising between Smolensk citizens and the Hanseatic merchants living in Riga and Visby. It offers the earliest link between the RP and later Russian legislation, especially the important Court Charter of Pskov of the second half of the 15th century.19

THE CONTENTS OF THE SHORT PRAVDA: WERGELD AND COMPOSITION If we accept the view that the oldest layer of the RP is formed by the first eleven articles of the Short Pravda, and that it finds its origin in the tensions between prince Iaroslav, his Varangian troops and the population of Novgorod around the year 1016, then a closer look at the contents of what appears to be the most ancient legislative enactment of Russia is in order. One cannot exclude, of course, that certain written ordinances could have preceded the Oldest Pravda. The Primary Chronicle relates under the year 946 that the then ruling grand princess of Kiev, Olga, Igor’s widow, travelled through the land of the Derevlians, establishing laws (ustavy) and tribute 18

19

In arts.3, 6, 9, and 14 (according to the accepted numeration); art.6 has the formula ‘according to Greek custom and Russian law and custom’ (po zakonu Grech’skomu, po usta[v]ou i po zakonu Ruskomu, in the Laurentian ms.); two other mss. (Radziwill and Academy) have ‘according to Greek custom and Greek law, and Russian custom’ (po zakonu gretskomu i po ustavu gretskomu i po zakonu ruskomu). The latter reading seems to be correct, at least from the point of view of legal history, because it would be far-fetched to assume that the matter was regulated by (statute) law among the still largely illiterate Russians, while the sophisticated Byzantine empire would have left it to custom. Also, the other places mentioned all refer to Russian custom (zakon russkii) only. Cf. PSRL Vol.1, 49-50; Sakharov, Diplomatiia, 245, and Zimin, in PRP I, 45-46, implicitly accepting the correctness of the formula from the Laurentian ms., regard the reference as an indication of very early Russian legislation. Text in PRP II, 57-71, commentary by A.A. Zimin: 75-87.

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(uroki). Ustav, in the language of Kievan Russia, refers to what has been ordered from above, as opposed to zakon or pokon, which refer to tradition and custom. An ustav, in later times, would always be in the form of writing and would then have the meaning which is still has: a statute. It is, however, more likely that Olga’s ustavy were simply oral directives. The existence of Russian customary law is well documented in the treaties with Byzantium of 912 and 945. They both mention repeatedly that certain matters should be conducted according to the law (ustav) and custom (zakon) of the Greeks and the custom (zakon) of the Russians. There is no indication of any written Russian law in these treaties, nor in the text of the last known Russian-Byzantine treaty of 971, where the Russian side swears by its gods Perun and Volos. Moreover, the RP, including its oldest fragments, continued to exercise its influence over the development of the entire Russian legal system during the next few centuries, without any competition from older or contemporary Russian legislation. The significance of the legislation of 1016 may best be illustrated by considering its first provision, which deals with homicide: If a man kills a man [the following relatives of the murdered man may avenge him]: the brother is to avenge his brother; the son, his father; or the father, his son; and the son of the brother [of the murdered man] or the son of his sister, [their respective uncle]. If there is no avenger, [the murderer pays] 40 grivna wergeld. Be [the murdered man] a [Kievan] Russian – a palace guard, a merchant, an agent, or a sheriff – be he an izgoi, or a [Novgorodian] Slav, his wergeld is 40 grivna.20

Blood vengeance by relatives (blizhnye) as the normal sanction against homicide, with the alternative of financial compensation, was also the system followed in the foregoing century, according to the treaties of 912 and 945. The innovation of the Pravda of Iaroslav is that it restricts the right of blood vengeance to male relatives up to the third degree.21 If none of these are available, the 40 grivna wergeld is the only sanction. It would almost go without saying that the wergeld is paid to the family of the victim; this is quite clear in the treaties, and also from the following provisions of the Short Pravda, which mention several times explicitly that the compensation for injuries goes to the victim. Nevertheless, the matter has not been given the attention it deserves in the studies of most Russian and Soviet legal historians. Some of them

20

21

In Vernadsky’s translation; Vernadsky refrains from translating izgoi. Szeftel & Eck (31) translate this term as ‘déclassé’. It is a much debated question, but it would be safe to say that the izgoi is at least some kind of outsider or stranger. The exact meaning of some of the other terms is also difficult to establish: gridin – palace guard, iabetnik – agent, mechnik – sheriff. For an extensive discussion of these questions see Grekov, PR II, 32-57. See e.g. Tikhomirov, Issledovanie, 75; Zimin, PRP I, 86, who suggests that female relatives of the same degree are also included. The view that this provision was actually aimed at limiting the participants in blood vengeance is rejected by V.I. Sergeevich, Lektsii i issledovaniia po drevnei istorii russkago prava, 4th ed., Sankt-Peterburg 1910 (hereafter: Sergeevich, Lektsii), 387. An overview of the older literature in Grekov PR II, 16-27. Sergeevich and other opponents of the position taken here usually refer to the entry for the year 1071 in the Primary Chronicle, where the magicians are killed in revenge for having killed the mothers and sisters of the avengers.

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seem to presume, without much consideration, that the sums mentioned were fines, payable to the prince.22 The other major point of the provision is the establishment of a regime of equal compensation for all free men, whatever their origin. In this respect the RP closely echoes the provisions of the treaties of 912 and 945 which explicitly stipulate that in cases of homicide the same rules applies to Greeks and Russians. It would therefore be correct to say that the Pravda of Iaroslav was by and large a confirmation of the existing legal order, based on custom, with a minor adjustment to tip the balance in favour of wergeld at the expense of blood vengeance – an entirely understandable development in view of the dangers posed by inter-ethnic violence. The second half of the Short Pravda, the Pravda of Iaroslav’s sons, especially arts.19-27, heralds a new and more active approach of the legislator.23 The general system of dealing with homicide as described in art.1 is not mentioned and presumably left in place, but a special regime is introduced to deal with the killing of various officials and servants of the prince: the stewards of his domains (ognishchane), his messengers (pod’ezdnye), sheriffs (tivuny), assistant sheriffs (tivuntsy), the stable master (koniukh staryi), farm managers (sel’skie starosty), contract labourers (riadovnitsy), field overseers (ratainie), peasants (smerdy), herdsmen (kholopy), and slave tutors and nurses (kormilitsy and kormilichitsy). The killing of any of these persons leads to the imposition of a fine, ranging from 80 grivna (i.e. twice the amount of the wergeld of a free man) for the most important servants to 5 grivna for the smerdy and kholopy. The name of this fine is vira and it is to be paid to the prince; this is obvious from the following provisions and from the entire context. The rule concerning the stable master (koniukh staryi) is of special interest, because it throws light on the development of the legislative process: ‘And for the master of the stable 80 grivna, as constituted by Iziaslav in the case of his master of the stable whom the Dorogobuzhians killed.’ (art.23). The 80 grivna fine for killing the stable master returns in art.12 of the Expanded Pravda, but then the reference to its origin is omitted. The further evolution of the law of homicide is illustrated by the reworking of the basic provisions of art.1 of the Short Pravda and the preamble to the Pravda of Iaroslav’s sons in arts.1 and 2 of the Expanded Pravda: 1. If a man kills a man [the following relatives of the murdered man may avenge him]: the brother is to avenge his brother, or the father, [his son], or the son, [his father]; or the son of the brother, or the son of the sister, [their respective uncle]. If there is no avenger, the wergeld is set to the amount of 80 grivna in case [the murdered man] was a prince’s councilloror a prince’s steward; if he was a [Kievan] Russian – a palace guard, a merchant, or a boyar’s steward, or a sheriff – or if was an izgoi, or a [Novgorodian] Slav, [the wergeld is] 40 grivna.

22

23

The strongest advocate of this view is S.V. Iushkov, whose vast erudition is flawed by the ideological conceptualization of Kievan Russia as an early feudal state (in the Marxist sense), which would imply the existence of regular legislative institutions and a formalized court system. Zimin, PRP I, 94, advances the intriguing hypothesis that the ‘domanial’ law contained in the first nine provisions of this part of the Short Pravda could perhaps be based on the directives for the management of her estates given by the grand princess Olga, a little more than a century earlier.

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2. And after Iaroslav his sons: Iziaslav, Sviatoslav, and Vsevolod, and their councillors: Kosniachko, Pereneg, and Nikifor met in a conference and cancelled the [custom of] bloodrevenge, and [instead ordered] composition [of the crime] by money. And as to anything else, all that Iaroslav had decreed, his sons confirmed accordingly.

To a modern lawyer the cancellation in the second provision of what has been ordained in the first may look bizarre, but this should be explained by the complicated genesis of the text. The three-stage development of the law of homicide is quite clear: first, blood vengeance with the possibility of its replacement by payment of wergeld in the pre-Christian era of customary law; secondly, restriction of the right to blood vengeance to a circle of close relatives, in the earliest phase of written law; thirdly, abolition of blood vengeance altogether. The appearance of princely servants in the Pravda of Iaroslav’s sons also heralds the disappearance of the wergeld. The various texts of the RP do not indicate, as a rule, to whom the amounts of money connected with various offences were to be paid. In the otherwise very extensive literature on the RP this question is usually neglected. The wergeld, replacing blood vengeance, is paid to the relatives of the victim; both versions of the RP use the term za golovu (‘for the head’) and the Extended Pravda also has golovnichestvo (‘head money’) as the equivalent of wergeld. The payments for lesser injuries, which follow in the text of the Short Pravda immediately after the provision on homicide, are made to the victim; arts.2 and 3 are explicit on this point. The situation changes in the case of the princely servants, enumerated in arts.19-27, beginning with the prince’s steward (ognishchanin) and ending with the unfree peasant (smerd). One has to assume that payment in compensation of their killing would go to the prince; this is rather obvious in case of the smerd, and from the uniform structure of the list it would follow that the same would apply to all those mentioned; otherwise, there would have to be a break somewhere in the middle of the list. The composition paid to the prince is called vira (or virnoe), usually translated as ‘bloodwite’; the term appears more frequently in the Extended Pravda. Art.41 of the Short Pravda, without using the term, provides that of 12 grivna collected, 70 kuna were to be paid to the sheriff, two grivna as tithes to the church, and ten grivna to the prince.24 Art.5 of the Expanded Pravda differentiates quite clearly between the wergeld (golovnichestvo), to be paid by the killer to the victim’s family, and the bloodwite (vira), for which the killer’s community is also liable. The point to be made here is that the insertion of the list of the prince’s servants in the Pravda of Iaroslav’s sons represents the transition from wergeld (in this case to be paid to the master of the victim) to bloodwite (a fine for killing another person, payable to the ruler). The wergeld survived for a long time, but eventually the state monopolized the legal reaction to homicide.25 If one takes a closer look at the oldest rules concerning wergeld, it is not hard to see that the original character of the wergeld is not compensation for material loss,

24 25

This would imply that 70 kuna would be a very insignificant part of the entire sum; for more detail on the complicated monetary system of Kievan Russia, see Vernadsky, Medieval Russian Laws, 24-25. Curiously, the modern extension of the law concerning damages, especially the emergence of the concept of immaterial damages, implies a return to some extent to ancient practices.

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but reparation of honour and status.26 The various tariffs provide a clear indication. Striking a man with the hilt or the sheath of a sword results in a penalty of 12 grivna, and the same applies to pulling out or shaving off somebody’s beard or moustache (arts.4 and 8). Cutting off somebody’s finger on the other hand comes at 3 grivna (art.7). When imposing sanctions, the Short Pravda often adds the words ‘for the insult’ (za obidu); in the Expanded Pravda the expression is used only twice (in arts.23 and 34, which correspond to arts.4 and 13 of the Short Pravda), against ten times in the Short Pravda.

PROCEDURE Procedural arrangements form the second main cluster of rules which make up the Pravda of Iaroslav. The precise meaning of the provisions concerned is still much contested, but certain points are clear. There is a procedure referred to as svod in art.14, and a procedure called izvod in art.15. Some authors regard the terms as synonyms, others stress the differences,27 but there is little doubt that in both cases one has to assume, not the involvement of the prince’s court, but of an older, jury-type agency, consisting of twelve men.28 Arts.13 and 14 describe two instances of the classical law school problem, the professors’ delight and the students’ despair, of the retrieval of assets which, independent of or against the will of the owner, have come into the possession of another. If this happens within the community (mir) of the owner, a simple retaking is allowed (art.13). Outside the mir, the svod procedure is required (art.14): ‘If somebody recognizes [his property with somebody else], he must not take it, and do not say to him [the persons holding the property]: ‘it is mine’, but speak to him thus: ‘come to the meeting [svod], [and explain] where you got it’; if he [the person summoned] does not come [immediately], then [he must produce] a bail [to ensure that he will come] within five days.’ The provision returns in more elaborate form in the Expanded Pravda (art.35), where it is followed by a few more detailed rules about the svod (arts.36-39). Art.16 of the Short Pravda supplements art.14, in that it deals with the recuperation of a lost slave. It makes of course good sense to devote a separate rule to this eventuality, because the slave can speak for himself and explain how he was 26

27

28

See, e.g., Zimin, PRP I, 88-89; L.V. Cherepnin, Russkie feodal’nye arkhivy XIV-XV vekov, Part I, Moskva/Leningrad, 1948, 245 (Part II: Moskva, 1952); S.L. Levitsky, ‘Protection of Individual Honour and Dignity in Pre-Petrine Russian Law’, Tijdschrift voor Rechtsgeschiedenis/Revue d’histoire du droit, 1972, 341-436, at 342-346, does not specifically argue this point, but it is implicit in his entire treatment of the question; this article also contains abundant references to older Russian literature. Zimin, PRP I, 82, 90-91, considers both svod and izvod as a survival of a kind of judicial council of the community; most authors, however, remaining close to the text of art.14, regard svod as a form of confrontation, leaving unanswered the question before whom this confrontation takes place; Tikhomirov, Issledovanie, 78-79; Vernadsky, Medieval Russian Laws, 28-29; Szeftel & Eck, 33. Such a body also turns up in the earliest known treaty between Novgorod and the Hanseatic League, of 1189/1199; see S.N. Valk (ed.), Gramoty Velikogo Novgoroda i Pskova, Moskva/Leningrad, 1949 (hereafter GVNP), 56 (No.28). Vernadsky points to the similarity between the svod and possessorial proceedings in Germanic law; see K. v. Amira, Grundriss des Germanischen Rechts, Strassburg (3rd ed.), 1913, 210-211.

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transferred from one master to another. Art.16 requires the original master of the slave to go to the predecessor of the last master and then to the next predecessor, to whom he must say: ‘Hand me back my slave and look for your money with [the help of] witnesses.’ The rule implies that the chain of transactions is reversed, that the last master gets his money back and hands the slave back to his predecessor, and the latter does the same. The procedure of reversing three steps is maintained in the more detailed rules of the Expanded Pravda. The svod, so much is made clear by these provisions, is a procedure in which the person who is in possession of the property has to explain the origin of his possession by identifying the person from whom he acquired. By retracing the chain of legal events one should, ideally, reach the point where the original owner was unlawfully deprived of his property. The more detailed rules of the Expanded Pravda obviously reflect a situation of greater commercial complexity and of increased prominence of market transactions. They do not offer the opportunity anymore of not immediately coming to the svod (Vernadsky translates it not inappropriately as ‘confrontment’) and offering a bail instead. The svod as mentioned in the Short Pravda may therefore be a more simple and informal procedure, not requiring the involvement of a proper court.29 The izvod of twelve men (art.15) deals with claims where one party demands the payment of a debt (in money or kind); the exact meaning of the first words of the provision are difficult to establish, but the legal consequences are fairly clearly spelled out: ‘If somebody demands the remainder from another, and he [the latter] begins to resist, then he must go before an izvod of 12 men, and if it turns out that he [the debtor] maliciously refused to give [or pay], he [the creditor] should have his due and three pounds for the offence.’ The corresponding provision in the Expanded Pravda is art.47, but instead of presenting the claim to the 12 men, the creditor mus produce witnesses who will swear that the claim is true (rota, judicial oath). The last two provisions of the Oldest Pravda, arts.17 and 18, also emphasize procedure. Art.17 deals with the slave who has struck somebody and who then hides in his master’s house. If the master refuses to hand him over to the offended person (for punishment), he must pay 12 grivny and the victim retains his rights to chastize the slave.30 Art.18, concerning damage done to another person’s weapons, is closely connected with the ‘Court Law for the People’, and will be discussed briefly below.

THE ORIGINS OF THE RUSSKAIA PRAVDA The question of the origins of the oldest nucleus of the RP may be looked at from at least three different perspectives. There are first of all the concrete political and his-

29 30

Zimin, who tends to equate svod and izvod, regards the former therefore as consisting originally of 12 men; see PRP I, 91. Arts.16 and 17 use different terms to denote a slave, cheliadin and kholop. There are several theories to explain this difference, but the dominant opinion is that cheliadin (related to terms denoting children, offspring, and comparable to Latin filius) is the older term. Cf. A.A. Zimin, Kholopy na Rusi (s drevneishikh vremen do kontsa XV v.), Moskva, 1973.

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torical conditions in which the law code was created. They elucidate the legal character of the code – it may be anything ranging from the actual text of an official legislative enactment to a purely private collection of observations concerning legal matters. We have considered this matter briefly above and tentatively accepted the version offered by the Novgorod Chronicle. Then there is the closely related, but still to be distinguished question of the underlying causes; what were the problems the code was supposed to deal with, and why was it considered necessary to create new solutions – as provided by the code – to these problems? Finally, what were the origins of the new solutions? Were they original inventions, or based on the experience of the society concerned, or taken over from others? To recall the perspective adopted in the beginning of this paper: our attention is directed primarily at law in statu nascendi, the moment of metamorphosis when custom and traditional social arrangements are transformed in a fixed order of rules which at the same time institutionalized a central societal authority. In this perspective it is especially the oldest part of the Russkaia Pravda, the so-called Pravda of Iaroslav, and more particularly the first half of the latter document, that claim our attention. The debate about the origins of the RP has gone on for a long time and is very complex. It is obvious that the first part of the Short Pravda, the Pravda of Iaroslav, is the oldest component. But the Short Pravda itself is the result of an editorial reworking of several texts, including an early text of the Pravda of Iaroslav, while the same can be said of the Expanded Pravda, compiled a century or so later. It is possible therefore that certain elements of the Pravda of Iaroslav have been retained in more pristine form in the later text of the Expanded Pravda. This, however, is still a collateral issue (where do we find the best text of what was actually the original Pravda of Iaroslav?). The fact is that we only have the text which the Short Pravda offers (possibly to be corrected then by a comparison with the corresponding provisions of the Expanded Pravda). Was this text, or at least its original version, a statute granted to Novgorod by Iaroslav, as narrated in the Novgorod Chronicle? Or was the oldest part of the RP a piece of early legislation by the Kievan grand prince, applying to the whole of Kievan Rus’, and only interpolated at a later date by a monastic scribe in the Novgorod Chronicle?31 Or was there a specific connection with Novgorod, but not with the events of 1016? These are only some of the hypotheses which have been discussed among the leading Russian and Soviet medievalists. During the Soviet era the debate was further complicated by the necessity to insert class struggle into every kind of historical investigation. It was considered axiomatic that the common people of Novgorod (or Kiev) were being exploited by their own aristocracy, by the wealthy merchants, but also perhaps by the Viking retinue of the prince (his druzhina). For lack of a better option I would be inclined to accept, provisionally, the theory that the origins of the oldest part of the RP are to be connected with the Novgorod events of 1016, as related in the Novgorod Chronicle. If the opponents of this theory 31

The formula in the Novgorod Chronicle, quoted above (‘and he gave them a law code and wrote them a statute’), can be read so that it would refer only to the Novgorodians, or to all the Russian troops being sent home.

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point to the defectiveness of the arguments in favour of it, one can answer that there are even fewer arguments for other theories. There is, after all, the clear indication given by the Novgorod Chronicle. Then there is the argument of internal consistency: the theory of the Novgorod Chronicle is able to explain much more about the contents of the Oldest Pravda than any other theory.32 One may also give some weight to the authority of the majority of scholarly opinion, favouring the Novgorod theory.33 It should be stressed again that this theory does not necessarily lead to the conclusion that the Oldest Pravda should therefore be regarded as a specifically Novgorodian enactment, applying to Novgorod only. On the contrary, the entire following history of the RP suggests that it applied in the whole of the Kievan empire, as the second part of the Short Pravda, the Pravda of Iaroslav’s Sons undoubtedly did.34 If the leading opinion is followed and the connection recognized between the events in Novgorod in 1016 and the promulgation of the Russkaia Pravda, then the enactment resulting from the hostilities between the Novgorodians and Iaroslav’s Vikings must be reflected in the first ten provisions of Iaroslav’s Pravda and possibly also in the remaining provisions of Iaroslav’s Pravda. Allowing for the possibility or rather likelihood of some later editorial reworking, the extant text may therefore be regarded as the oldest Russian legislation. The question of the underlying causes: what was the political and socio-economic context of this legislation?, is not too hard to answer if the Novgorod Chronicle version is adopted. Obviously, both Novgorodians and Vikings possessed their own traditional systems of dealing with behaviour as described in the Pravda of Iaroslav. Where homicide and interpersonal violence were concerned, vengeance and its replacement – composition – were the main instruments. Enforcement was embedded in the still dominant system of the large patriarchal family or the clan. The essential element of the kind of violence the Short Pravda dealt with was not the suffering of the victim, nor the economic losses caused by his death or injuries, but the violation of his family honour. The presence of a considerable number of foreigners in Novgorod, under the command of the prince of Novgorod, required an adaptation of the traditional systems of both ethnic groups involved, in order to deal effectively with interethnic violence. The vital threat to all concerned, Iaroslav, the Novgorodians and the Vikings, posed by the imminent war with the Kievan prince, Iaroslav’s brother Sviatopolk, was the catalyst for articulating this adaptation in the new form of legislation. At the same time, it should be remembered, this legislation was a pact between the three parties, as is very often the case with incipient legislation.

32

33

34

One could point to the references to Scandinavians (Variagi and Kolbiagi) in the text of the Oldest Pravda (arts.10 and 11), where the law takes account of their limited possibilities in presenting evidence; some of the officials mentioned in art.1 (the gridin, the iabetnik, the mechnik) are also often regarded as belonging to the Viking population. I.Ia. Froianov, the leading post-Soviet specialist in the field of early medieval Russian history, has again attacked the proponents of the Novgorod Chronicle theory in his Drevniaia Rus’, Moskva/Sankt-Peterburg, 1995, 97-112, but it seems that his criticism is directed actually at the theory that the oldest Pravda was a law for Novgorod; he does not deny that the events of 1016 were probably very much connected with the origin of the Pravda of Iaroslav. Cf. PRP I, 94.

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THE SOURCES OF THE OLDEST PRAVDA When explicit legislation appears for the first time one can usually distinguish between three kinds of sources. Domestic unwritten law is generally the most important contributing factor, supplemented by borrowings from other systems and by pure innovation, the invention of entirely new solutions. This last approach is difficult to demonstrate in the case of legal documents of great antiquity, because of the modest amount of information at our disposal. By a process of deduction one may merely express the presumption that if something was apparently not present in the past and has also not been taken over from elsewhere, it was probably invented then and there. This leaves us with the need to examine the question of Russian law before the Russkaia Pravda and the search for possible external (non-Russian) sources.

THE ‘RUSSIAN LAW’ (ZAKON RUSSKII) We have referred above to the zakon russkii, Russian custom, or customary law, which is mentioned several times in the 10th century treaties with Byzantium. One could expect that such unwritten law would be among the most important building blocks of the first Russian attempt at legislation. The problem is of course that what is known about such unwritten law is derived almost entirely from subsequent written law. If one contemplates the chronological layers of the RP, as they can be observed without too much trouble in the texts of the Short and Expanded Pravda, one may establish that blood feuds were apparently the rule at an earlier stage, that they were still being practised at the time of the Oldest Pravda, abolished under the sons of Iaroslav, and that they had disappeared in the 12th century. In this way, by extrapolation backwards, a very rough picture may be constructed of what Russian customary law may have looked like in the 9th and 10th centuries. It adds little to the understanding of the RP, because all the information comes from the RP itself.35 It is different with the treaties of 912 and 945, the texts of which have been reproduced in the Primary Chronicle (see above). Both of them contain provisions which are reasonably close to provisions of the RP. It concerns arts.4, 5 and 6 of the 912 treaty and 3, 4, 13 and 14 of the 945 treaty (in the numeration of PRP I). The corresponding provisions in the Short Pravda are 1 (homicide), 3 (hitting someone with a stick, a cup, the flat of a sword, etc.), 4 (hitting someone with an unsheathed sword or with a sword handle), 11 (hiding someone else’s slave) and 38 (killing a thief caught in the act). In most of these cases the treaties use the formula ‘according to Russian custom [or law]’ (po zakonu ruskomu). All this strongly suggests that customary law was indeed the main source for the compilers of the earliest phase of the RP. Moreover, the similarity of the formulas used suggests that customary law was to a considerable extent fixed in an oral tradition. 35

Zimin devotes a section to the Zakon russkii, in his posthumous work on the Pravda Russkaia (6569), but does indeed not get much further than paraphrasing and elaborating some of the provisions of the Oldest Pravda.

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Whether there was any genuine legislation preceding the RP is mostly a matter of speculation. There are only a few vague indications in this direction. One is the reference under the year 946 in the Primary Chronicle to Olga, who ruled in Kiev after her husband the grand prince Igor had been killed by the Derevlians. After defeating and punishing the latter, she established ustavy i uroki, usually translated as ‘laws and tribute’.36 Then there is the very ambiguous reference in the 945 treaty (discussed above) to ‘Russian law and custom’ (po ustavu i po zakonu ruskomu), where, as argued, ‘law’ most likely refers to Greek law. Other pointers are even more vague.37 The existence of genuine princely legislation preceding the RP can of course not be excluded. The series of treaties between Novgorod and the Hanseatic League offer a useful parallel. The oldest known treaty (referred to above), of 1189/1199, explicitly confirms ‘the old treaty’ (of which nothing is known, except what can be derived from the text of the 1189/1199 treaty). It is entirely conceivable that the text of the Oldest Pravda as it has come down to us as a part of the Short Pravda is based on earlier legislation of grand prince Iaroslav or his father Vladimir. The latter, after all, is generally supposed to be the legislator of the so-called Church Statute of Vladimir Sviatoslavich, a short statute regulating church-state relationships of the recently baptized Kievan Rus’.38 On the other hand, the RP appears without any doubt as the basic legislative document from the earliest times and subsequent medieval Russian legislation continues to build on its foundation. There has never been any mention of other legislation which could in any way be regarded as a competitor in this respect.

OTHER CONTEMPORARY SLAVIC LEGISLATION The only piece of Slavic legislation which is relevant in a study concerning the origins of the RP is the ‘Court Law for the People’ (Zakon Sudnyi Liudem, hereafter: ZSL), dating from the 9th century. Whether this law originated in Moravia or in Bulgaria is a question which can be left aside here. There is general agreement that its contents are derived mainly from the 17th title of the Byzantine Ekloga, itself dating from 726. Additionally, it contains elements which reflect Slavic customary law. The ZSL reached Kievan Rus’ after it had accepted Christianity and was incorporated in monastic collections of legal and ecclesiastical texts. All extant texts of the ZSL belong to Russian collections; neither in Czech nor in Bulgarian legal history has the ZSL left any significant traces.39

36 37 38

39

Cf. Zimin, PR, 81-85. Cf. Zimin, PR, 71-80. On the Church Statute of Vladimir, see PRP I, 235-254; and by Ia.N. Shchapov: Kniazheskie ustavy i tserkov’ v drevnei Rusi XI-XIV vv., Moskva, 1972, and Drevnerusskie kniazheskie ustavy XI-XV vv., Moskva, 1976. On the ZSL: V. Ganev, Zakon Soudnyi Liud’em, Sofia, 1959; M.N. Tikhomirov (ed.), Zakon sudnyi liudem Kratkoi Redaktsii, Moskva, 1961; M.N. Tikhomirov (ed.), Zakon sudnyi liudem Prostrannoi i Svodnoi Redaktsii, Moskva, 1961; H.W. Dewey & A.M. Kleimola, Zakon Sudnyj Ljudem (Court Law for the People), Ann Arbor, 1977.

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There are two clear parallels between the ZSL and the RP, in the rules of art.12 of the Short Pravda (art.33 of the Expanded Pravda): riding another person’s horse without the latter’s permission (art.27 of the Expanded Version of the ZSL), and art.18 of the Short Pravda. The rule of art.12 is absent in the older Short Version of the ZSL; it is itself most probably of Slavic origin and has been inserted in later versions of the ZSL following a related rule about the use of another person’s horse.40 The rule of art.18 of the Short Pravda deals with damage done to another person’s spear, shield or clothing (port, lit. ‘trousers’). An almost identical rule is found in some of the mss. of the ZSL. It is not to be found in the Short Version of the ZSL or the Ekloga, and is also most likely of Slavic origin.41 In later times a few provisions of the ZSL have been taken over in some mss. of the Expanded Pravda.42 The RP antedates the earliest codifications of other Slavic peoples, with the exception of the ZSL. Closest to the RP, in time, place and general tenor, is the nameless Polish law book, written in the 13th century in German.43 Another comparable source is the Statute of Vinodol of 1288, an early medieval law code from the Dalmatian coast.44

40

41

42 43

44

The latter rule is based on art.7 title 17 of the Ekloga, and the latter provision derives from Roman law (D. 13, 6, 5, 7). It concerns the superficially similar case of the borrowed horse which was lost while being used for another purpose than the one for which it had been borrowed. It goes back to Ulpianus’ discussion of the contract of commodatum, as included in the appropriate part of the Digests. The Ekloga then takes over this rule, somewhat differently worded, placing it in a chapter devoted to various unlawful acts and offences. This chapter subsequently formed the main source of the ZSL (the so-called Expanded Version), but the editors of this version inserted a few extra provisions taken over from Slavic law. That is how the rule about riding another person’s horse without his permission ended up next to the rule about unlawful use of a borrowed horse. The Slavic rule, in its turn, has a close parallel in Germanic law, in art.23 of the Pactus Legis Salicae (art.25 of the Lex Salica), art.40 of the Lex Ribuaria. This is again a complicated story. First of all, art.18 of the Short Pravda is the only provision of this text which does not return (even in amended form) in the Expanded Pravda. This suggests that it was attached separately at some stage to the text of the Short Pravda, and should perhaps not be considered a part of the Oldest Pravda (the Pravda of Iaroslav), of which it appears as the last provision, right before the Preamble of the Pravda of Iaroslav’s Sons. In the so-called Pushkin ms. the provision about damaging another person’s weapons is placed at the end of the text of the Expanded Pravda, immediately preceding the text of the ZSL; it is therefore difficult to say to which text it belongs (as stated, it does not occur in other mss. of the Expanded Pravda). In the so-called Sofia mss. of the ZSL the provision about damaging weaponry is included in the text of the ZSL. Instead of port, these texts have topor (axe), which seems to make more sense than ‘trousers’. Tikhomirov believes that the ZSL has taken over the rule from the RP and not vice versa; cf. M.N. Tikhomirov (ed.), Zakon Sudnyi liudem, Moskva, 1961, 7, and Tikhomirov, Issledovanie, 58-59. Cf. PRP I, 206-219. Cf. B.D. Grekov, ‘Pol’skaia Pravda. Opyt izucheniia obshchestvennogo i politicheskogo stroia Pol’shi XIII v. po Pol’skoi Pravde (‘Knige Prava’)’, B.D. Grekov, Izbrannye trudy, T.I, Moskva , 1957, 267-442 (includes German text and Russian translation). Cf. B.D. Grekov, ‘Vinodol’skii Statut ob obshchestvennom i politicheskom stroe Vinodola’, B.D. Grekov, Izbrannye trudy, T.I, Moskva, 1957, 33-110; Russian translation by V.V. Iagich, Zakon Vinodol’skii, Sankt-Peterburg, 1880.

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GERMANIC CONTACTS The relationship between early Slavic (Russian) and early Germanic law has long been a politically sensitive subject, especially during the Soviet era. These feelings apart, two major considerations remain: there is a considerable amount of similarity between the RP and the early Germanic laws of the type of the leges barbarorum; and, secondly, historical conditions would suggest at least a certain amount of Germanic, particularly Scandinavian influence on the development of early Russian law. The similarity is most obvious if one looks at the batch of Germanic laws adopted or approved at the imperial diet of 802/803 in Aachen: the laws of the Saxons, the Frisians, the Thuringians and the Chamavian Franks (Lex Saxonum, Lex Frisionum, Lex Thuringorum or Lex Angliorum et Werinorum, and the Ewa ad Amorem or Lex Francorum Chamavorum).45 Disregarding linguistic differences (the old English laws were written in Anglo-Saxon, the Germanic laws in a somewhat corrupt Latin, and the RP in Old Russian), the RP would fit effortlessly within the otherwise purely Germanic collection. A tripartite class structure (nobles, freemen, and unfree persons) is dominant in the Germanic laws, and less prominent in the RP; in the Oldest Pravda the focus is on the freeman, the boyar appears only in chronologically younger layers of the Extended Pravda. Similarity can always be explained in three ways: common origin, borrowing, or accident. The latter becomes more unlikely as similarity becomes more striking. The idea of borrowing takes us to the second point mentioned above: the alleged legislator of the RP, the Kievan grand prince Iaroslav Vladimirovich, was still surrounded by many Scandinavian elements. He was himself the descendant of Viking chiefs, his mother was probably also of Viking descent46 and his wife Ingigerd was the daughter of the king of Sweden. His great-grandparents Igor and Olga, according to the preamble to the treaty of 945, were accompanied by a large number of magnates and merchants, during their raid on Byzantium, all of whom bore Scandinavian names. Iaroslav (‘Jaritsleif’) and his father Vladimir (‘Waldamar’) figure prominently as rulers of Novgorod (‘Holmgard’) in several Scandinavian sagas, especially the ones about Olaf Tryggvason and Eymund, and contacts with Viking leaders from Scandinavia were obviously close and frequent.47 When political and military problems arose for Iaroslav as ruling prince in Novgorod in 1015-1016, calling in help from his friends and relatives in Scandinavia must have been an easily available option. And

45

46 47

Cf. H. Conrad, Deutsche Rechtsgeschichte, I, Karlsruhe, 1962, 131-134; R. Schröder, Lehrbuch der deutschen Rechtsgeschichte, 3rd ed., Leipzig, 1898, 243-248. The earliest Anglo-Saxon laws, the laws of the Kentish kings, beginning with the Law of Aethelberht of around 600, belong to the same general type. The actual shape of the laws of Germanic nations belonging to the Frankish empire also owed a lot to the particular circumstances of their fixation in a written document. The Law of the Saxons, for instance, bears the traces of the recent war with the Franks and the violent establishment of Frankish supremacy; for the Law of the Frisians, a draft rather than a law, see the paper by Algra in this volume. Rogneda, daughter of prince Rogvolod or Rognvald of Polotsk. See E.A. Rydzevskaia, Drevniaia Rus’ i Skandinaviia v IX-XIV vv.; Drevneishie gosudarstva na territorii SSSR; Materialy i issledovaniia 1978 g., Moskva, 1978.

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when, somewhat later, there was a need to negotiate a settlement between the population of Novgorod and his Viking soldiery, would it then not have been equally obvious to fall back on Scandinavian customary law, with which Iaroslav would certainly have been familiar? This would by itself explain the strong similarity with North-West European Germanic law, as we know it from two centuries earlier. In this connection an old argument in favour of the presence of vigourous Scandinavian traditions in the court of the early Russian rulers has recently re-emerged. According to the Primary Chronicle, the half-legendary ancestor of the Kievan ruling house was a certain Rurik (Riurik), who had come to Novgorod from Scandinavia in 860/862. His son or close relative Oleg was the direct ancestor of Iaroslav (through Igor, Sviatoslav and then Vladimir). 19th century authors and several Russian emigré historians identified this Rurik with his namesake known from early European history, a member of the Viking dynasty of the Ynglinger. Rurik’s branch was mostly active in Jutland and Northern Germany on the fringes of the Carolingian empire. This Rurik appears as a liegeman of the emperors Louis the Pious and Lotharius in the period between 830 and 850, operating from his base in Jutland. During the Soviet era the argument was politically sensitive, but recently E.V. Pchelov has reviewed the evidence in detail and reached the conclusion that, although the identity of the two Ruriks cannot be considered proven, there are strong arguments in favour of it.48 If this would be the case, one could even advance the hypothesis that the early Russian rulers brought the law of their Scandinavian homeland with them to Russia. Then the zakon russkii of the 10th century treaties with the Greeks would in fact have been Scandinavian law, and at least parts of the Oldest Pravda, less than a century later, also. A practical illustration of this idea might be seen in the importance of the number 12. We have already come across the 12-men jury, which appears in both Russian and Germanic sources. The number is also very prominent in the calculation of fines and other amounts, again, both in the RP and in early Germanic laws.49 Another close parallel is the point mentioned in the preceding section, concerning the riding of another person’s horse without the latter’s permission, a matter which is covered by several Germanic law codes. The formula used in the different Frankish laws is quite similar to the formula of art.12 of the Short Pravda. The fact that it turns up repreatedly in Germanic laws of older date than the RP would suggest that the Russian rule is part of a borrowed complex.50 There are, however, several arguments which would undermine this scenario. One is that Old Russian customary law may have been quite similar to Old Germanic law; then there would be no way of telling what would be Slavic and what Germanic in the earliest known Russian legislation. Then we have noticed that the earliest law of other Slavic peoples, where there is no reason to assume the influence of Old Germanic law, appears to be quite similar, in general, to the arrangements of the RP. Thirdly, Old Russian law, as reflected in the RP, was not a local Novgorod phe-

48 49

50

E.V. Pchelov, Genealogiia drevnerusskikh kniazei IX-XI vv., Moskva, 2001, 68-98. The argument loses much of its force if one considers that the number 12 also occurs prominently in other legal systems, such as in the Old Testament, the Babylonian Code of Hammurabi, or the early medieval law of Georgia. So also several Russian authors; see Grekov, PR II, 95-98.

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nomenon, but embraced the entire vast empire of Kievan Rus’. If the RP, at least the Oldest Pravda, was essentially Viking law, then it would be difficult to explain how it served as the basis of the development of law over such an enormous territory. And finally, there are a number of indications that the Viking infusion, although it was politically important at a certain stage of Russian history, was so insignificant in quantitative terms, that it was very soon absorbed in the Slavic ocean.51

BY WAY OF A CONCLUSION: WHAT DOES THE OLDEST PRAVDA REPRESENT? At a certain moment in the history of the Eastern Slavs law came to be written down in a document which can more or less be identified as the Oldest Pravda (the first half of the Short Version of the RP), or which at least formed the basis for the Oldest Pravda. So much can safely be assumed. Before this, customary law had ruled and learned opinion would generally agree that most of the provisions of the Oldest Pravda reproduced, either directly or in some amended form, the old customary law. The question then is, why was the transition made, from customary to written law? The answer suggested by modern experience, by similar events in the history of other legal systems, and also by what is known about the conditions surrounding the genesis of the Oldest Pravda is that a change of circumstances, the occurring of a new situation, produced a conviction that some of the old arrangements were not adequate anymore, that new ones were required. The customary laws of the Russians and the Vikings were probably not too divergent, as argued above, but together they were presumably unable to cope fully with the new problems arising from the forced symbiosis of the two groups. The simple fact already that the Varangian warriors were away from home meant that they lacked the protective shell of the extended family, which was so important in defending the legal interests of the individual. Those customary arrangements that were inadequate (concerning mostly interethnic violence and trade disputes) had to be replaced, or rather amended. to restore peace and order. This also explains why the coverage of the Oldest Pravda is quite limited. It is very likely, almost inevitable, that in areas not mentioned the old customary law remained in force. As the new arrangements aimed to restore peace and order between antagonistic groups, they should preferably be based on an agreement between them; early laws are often both legislation and pact or treaty. The new system should be advantageous to both sides. The prince, initially, is a broker rather than a legislator. Iaroslav, faced with an immediate military threat from the side of his brother Sviatopolk, grand prince of Kiev, was forced to raise quickly an army of suitable size, and he needed both the military prowess of his Viking mercenaries and the numbers of the Novgorod militia. The recent bloodshed between these two groups could be over-

51

The Russian signatories of the 945 treaty, although Vikings, judging by their names, did not swear by Thor, but by Perun, the Slavic god of thunder. This may have been a later addition to the story, inserted by the monastic scribe, but it may also indicate that the Varangian retinue of the Kievan prince had already adopted the religion and culture of its Slavic surroundings.

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come by the common danger which they all faced, but some kind of pacificatory instrument was needed. The Oldest Pravda (or an older document which formed the basis of it) fulfilled this function. The independent legislative input of the prince was probably small, although of decisive importance with a view towards the future. Because already Iaroslav’s sons appear as explicit legislators, where the Expanded Pravda names them in art.2 as the princes who abolished the blood feud. In the second half of the Short Pravda (the Pravda of Iaroslav’s sons) there are also other indications of the legislative activities of the prince.52 The entire history of the RP in its subsequent chronological layers illustrates the complexity which the process of emerging law may display. In the beginning there was a system of unwritten law, the zakon russkii, as Russian tradition calls it, probably of considerable extent and fixed through mnemonic devices, as witnessed by the stability of the formulas which appeared later on in written texts. When this system turned out to be inadequate to deal with new challenges during a crisis, new arrangements were created. This probably had happened many times in the past – the creation of new customary law. But the availability of writing after the baptism of Russia changed the nature of this procedure. Those who caused the new arrangement to be written down, and who already enjoyed a power to command, soon discovered that simple registration could easily be expanded to the issuing of written orders, and that such orders were generally more effective than oral ones. In the first centuries of Russian law there still was considerable confusion about who did the writing. The Oldest Pravda is regarded by most as real legislation albeit embryonic – a pact brokered by prince Iaroslav between Novgorod and his Varangian soldiery. The Pravda of Iaroslav’s sons also has the appearance of legislation or rather of a collection of acts of legislation of these princes. The combination of the two texts (plus a few smaller fragments) into the document known as the Short Pravda was probably the result of the work of monastic scribes. The genesis of the Expanded Pravda was even more complicated, but does not belong to the phase of early law anymore.

52

See the episode, discussed above about the stable master of Iziaslav, killed by the men from Dorogobuzh, and for whom art.23 of the Short Pravda established the amount of 80 grivny.

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Glimpses of Indo-European Law

Stefan Zimmer

1

INTRODUCTION

The origin of Law is one of the basic questions in the history of humanity. Many disciplines are able to contribute to attempts at answering it, amongst them historical linguistics, especially comparative grammar. Only two major language families in the world have documented histories long enough to allow extrapolations into prehistory far-reaching enough for the subject, viz. Semitic1 and Indo-European.2 A sketch of the methods of Indo-European cultural studies, i.e. the part of Indo-European studies which aims at elucidating the cultural and historical background hidden in the results of strictly linguistic investigations, may be helpful for lawyers and historians in order to assess the possible input from a seemingly far-away discipline. Among the oldest experiences of mankind is the curious fact that people do not speak the same language everywhere. The discovery that human language differs in time also may belong to later times, after the invention of writing. The obvious differences not only in language but also in behaviour and customs have always been felt as irritating, and evoked many explanations. These were usually mythical or based on religious ideas. Serious study (in a modern sense) could only begin about two hundred years ago when, nearly simultaneously, three language families were not only discovered but could be scientifically established: the Finno-Ugrian one and the two already mentioned, Semitic and Indo-European. The new discipline of comparative grammar was able to show that recurrent structural similarities within the respective families were neither trivial nor accidental but due to genetic affiliation.

1 2

Or Hamito-Semitic, recently also called ‘Afro-Asiatic’ which is inappropriate, as the languages included are only spoken in less than half of Africa, and small parts of Western Asia. This again, though being the current term in English, French and other languages today, is not the best possible term. More appropriate would in fact be ‘Indo-Germanic’, the older name, coined by the Danish geographer Conrad Malte-Brun in 1810. He wrote in French and used ‘indo-germanique’ as short form of a compound adjective enumerating all the members of the family (something like ‘indo-irano-graeco-slavo-balto-italo-germanique’ – note that the the affiliation of Armenian and Celtic had not yet been established at the time, with Hittite and Tocharian still awaiting discovery) in a geographical perspective, seen from South-East (Ceylon) to North-West (Iceland), referring to the distribution of languages as found before modern colonization processes started. In contrast to that, ‘Indo-European’ (first used by Th. Young in 1813) has the serious disadvantage that – as many languages of India but also of Europe do not belong to the family – a large number of people may take offense in being ‘included’ in a category they do not fall into. The term clearly smacks of European imperialism whereas ‘Indo-Germanic’ is a sober geographical descriptive. All the more absurd were attacks against the latter’s use from various poorly informed or politically biased sides because it allegedly expressed a kind of German racism.

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The various systems could be reconstructed with more or less certainty, the families further classified into branches. It is important to understand that it is not the similarity of words which constitutes affiliation but grammatical structures such as the declension of nouns and the conjugations of verbs. Only when the genetic relations of languages are proven by the demonstration of common grammatical structures and their respective developments, etymology i.e. the history of words gains importance as a source of information for prehistorical times. One assumes that all words have been created once deliberately, and that older meanings can sometimes be detected by formal analysis and comparison with related forms in other languages of the same branch or family. Etymological research has built up a system of sound laws which provide a safe guide into unattested periods. One has to keep in mind, however, the other main factor of development viz. analogy working simultaneously, and often blurring the effect of sound laws. It is one of the tenets of historical-comparative linguistics that only those features can be counted as common heritage which show precise correspondence (not necessarily surface similarity, though) and which are found in not-adjacent languages. Correspondences which are not due to heritage but to borrowing can usually be detected with the help of phonological criteria; they have of course to be excluded from the reconstruction of unattested earlier common ancestor languages. The possibility of correspondence by pure chance or accidence is minimal and can practically be disregarded. Word creation is, after all, arbitrary (cf. F. de Saussure’s catchword l’arbitraire du signe). This gives a high grade of probability to the formal side of linguistic reconstruction. Less obligatory is the semantic side, as there are no strict laws governing the development of semantic units, only tendencies. Given that human thinking nearly exclusively3 operates within language, language gives major clues to both the physical and intellectual world of its speakers. This obviously holds true also – with due reserves – for reconstructed languages. Here, one immediately sees the importance of comparative grammar for historical investigations of all sorts. Correspondences detected in material or intellectual cultures can therefore be regarded as inherited from common prehistory if they not only manifest themselves in common features (objects, practices or institutions) but are also named with the same or similar terms. As a linguist, I give a certain preponderance to the reconstructed term because every word necessarily presupposes an idea of the feature it is used for. Of course, naive inference from a given word to the factual existence of the idea expressed is impossible. Similarly, the absence of a common term is no argument at all for the non-existence of an item. When some cultural feature is found in two Indo-European languages but a common term cannot be reconstructed, we have to consider at least two possibilities. The item can have been borrowed, together with its name, after the common period; or the common term has been lost in one (or two, or all) languages and replaced by another word. But even in the ideal case that both the feature is historically attested and the term in question can be reconstructed with certainty, two possible interpretations remain: 1 The feature may be shared by Indo-Europeans with other peoples, or 2 The feature is specifically Indo-European, and not found elsewhere. 3

Some artists are said to think (or to have thought) in sounds or colours.

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Mostly, however, a decision between these alternatives is impossible because historical reports about non-Indo-European cultures old enough to be compared do not exist. In the course of nearly 200 years of research, many cultural details have been investigated by studying the oldest texts in the respective languages, and by comparing terms, facts and ideas attested in the early Indo-European world. The present state of Indo-European cultural studies as e.g. summarized in the Encyclopedia edited by Mallory & Adams shows, however, that Indo-European comparative law remains an underdeveloped field. Greek and Roman laws have been studied thoroughly since antiquity; traditional Hindu law became known in Europe through the effects of the British occupation of the subcontinent; the various medieval law codes of Germanic origin became objects of study in the early 19th century. Other indigenous traditions came within reach of modern scholarship somewhat later, such as the Celtic, Slavonic, Iranian, Albanian, and most recently, Hittite law texts. All this abundant material has, more or less, been kept for a very long time within its own field either by tradition, or by circumstances such as the non-availability of reliable editions and/or translations. Maine (1861) and Leist (1884, 1889=1978, 1892) have, unfortunately, found no successors. The progress of philology and comparative linguistics has, however, permitted a number of modern attempts to reconstruct legal ideas and procedures which could be ascribed to common heritage i.e. the society who spoke the reconstructed language, viz. Proto-Indo-European. Some authors have aimed at structures covering the whole field (e.g. Benveniste), others have singled out small ideas and institutions (e.g. Puhvel, Watkins) or studied etymologically related families of words, some of which bear juridical meanings (e.g. Klingenschmitt, Willi). It is impossible to give full details here. Instead, after a short overview about the social setting of the postulated group, by way of example two legal institutions are presented. The first, marriage, is certainly not specifically Indo-European; the second, sick-maintenance, most probably is. In the following chapter, a number of what might be called4 Indogermanische Rechtswörter i.e. roots and words bearing juridical meanings which could shed some light on the legal conditions or thinking of unattested periods have been collected.

2

PROTO-INDO-EUROPEAN SOCIETY

2.1

Where and when

It is impossible to determine the time and place of the speakers of Proto-Indo-European. We have only one terminus ante quem, the attestation of obviously Indo-European Anatolian proper names in Akkadian documents from 19th c.5 BC. Since calcu-

4 5

Following the title phrase of K. von See (1964). It is hardly accidental that among the earliest traces of Indo-European language, legal terms figure prominently. Assyrian texts from Kanesh (19th c. BC) use, besides proper names, two appellatives of Indo-European Anatolian origin, viz. isˇhiuli- (contract) and ispatalu (night watch). Among the Aryan gods figuring in the Mitanni treaty, Mi-it-ra- i.e. God ‘Contract’ is named first. Cf. Watkins (1970).

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lation of the speed of language change is impossible (glottochronology, lexicostatistics, and the like having failed to stand the test of history), learned guesses should be as cautious as possible. It is hardly sensible to date Proto-Indo-European earlier than say 3500 BC, and perhaps 3000 would be a more reasonable estimate.6 The nature of the reconstructed vocabulary and of the remnants of the common poetical language suggest that these people lived somewhere at the edges of highly developed civilizations, perhaps in the forests and steppes of what later became Southern Russia.

2.2

Life style

There were no towns, and probably no villages. A large part of the population must have practised a semi-nomadic life-style, with cattle being their most valuable possession. Agriculture also existed, perhaps practised by other sections of the speech community. The social hierarchy was not very sophisticated. On local scale, the family was governed by the ‘father’, probably the father of an extended family. Several families may have made up a clan (to be understood loosely, not in strictly defined present-day ethnological sense). The clan-chief was the only political person: he represented his small community against neighbouring ones. The clan-chiefs may have chosen a king; whether for special occasions only, for a given period, or for life, we do not know. Women had no share in public life but seem to have been held in high esteem as instrumental in strengthening already existing, or creating new, social bonds by exchanging them for marriage in another kin, clan, or even tribe. Sons were kept under paternal control at least till they married. Warfare must have played a considerable role, be it as more or less periodical skirmishes between neighbouring clans, be it as raids into the outside, non-Indo-European world. The success of such expeditions may have been the reason for the possibly rather quick, but anyhow extremely successful, spread of the Indo-European language family over large parts of the Ancient world. The expansion must have been favoured considerably on one hand by the fact, that obviously, inclusion and absorption of foreign elements presented no great social problem, and on the other by the high attractiveness of IndoEuropean life-style for surrounding peoples.

2.3

Hospitality

Greatest among the qualities of the Proto-Indo-European society must have been a degree of personal freedom which compared very favourably with what was usual in neighbouring civilizations such as e.g. in Mesopotamian centralized states; a remarkably greater measure of religious freedom may also have played a role. Two other very attractive basic values of Proto-Indo-European society were hospitality and truth. The first is of course not a specific Indo-European quality: in all pre-modern societies, members of the same family, group, or tribe can and do rely on mutual 6

Even 2500 BC cannot be excluded, if Proto-Indo-European came into being by a Pidgin-Creole process, as has been proposed in Zimmer (1990).

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support, and rituals extending the same right to foreigners as well are practised nearly everywhere. After all, the Proto-Indo-European nucleus itself had come into being as a colluvies gentium, a union of fugitives, adventurers and uprooted persons coming from elsewhere.7 Such groups are physically weak at the outset, but mentally strong and, of course, quite interested in becoming larger and stronger. This is sufficient to explain a certain openness of mind, and both the ability and the willingness to attract new members. Whoever wants to join is invited to do so under condition that he and his followers adopt the local rules of behaviour and the social norms defining the social entity. Under favourable conditions, a kind of ‘snowball effect’8 can create mass migration or quick conquests (cf. historically well attested cases such as the children of Israel in the desert, the Franks and Alamans, or the Arab conquest). Hospitality is one of the roots of law: it requires certain rules of conduct; and if extended to originally foreign elements, rituals able to surmount the dangerous strangeness come into effect. It also touches on marriage law, for social ties are usually strengthened by reciprocal marriages. If a clan chief gains more influence and power, his ambitions are likely to grow too: this is the beginning of politics in proper sense. History shows how the institution of hospitality, originally fully unpolitical, became an instrument of foreign policy (cf. the Greek
, the Roman hospitium publicum).

2.4

Truth

One of the basic convictions of Proto-Indo-European man is that the order of nature was based on truth. Ideally, every word and every action should fully agree with truth: otherwise, disorder and chaos threatens to destroy the world.9 He who knows the truth is powerful even if he is poor and stands against a rich man;10 whoever acts against truth is despicable and must be ejected.11 The rules of human behaviour are measured by their relationship to truth. When it is necessary to formulate laws, these are either age-old and god-given and therefore already true (ε’µ, fas),12 or else fixed by men in accordance with truth (  , ius).13 It is, of course, impossible to distinguish the spheres of law and religion in early times. Any attempt to do so would be futile. Processes of how to find the truth have been formalized at a very early stage; 7 8 9

10 11 12

13

For details, see Zimmer (1990 and 2002) with references to the ethnological literature. The term is borrowed from W. Mühlmann who coined it after Tacitus and Hieronymus. The expressive term is due to Schlerath (1973: 20). This explains the Persian education ideals related by Herodotus (Hist. I 126): the noble boys were taught ‘riding, archery, and to speak the truth’. For a Greek, the latter must have been hard to understand: cf. Odysseus‘ admired ability to tell tall tales. Maha-tma Gandhi’s practice of satyagraha (fasting against unlawful authorities, lit. ‘grasping of truth’) is strongly based in this tradition. Aquae et ignis interdictio (to use the Roman term) was the severest punishment. Cf. further Cohen (2002: 23-25) who pleads for Hittite a-ra : natta a-ra ‘it is permitted / not permitted’ to be a close functional, syntactical and semantic correspondence to Latin fas [est] : nefas (< ne fas [est]). Etymologically, Hitt a-ra belongs to the family of OInd ·r tá- ‘truth’, from the root *h1ar- ‘to join’. The sharp distinction goes back, as far as i see, to Émile Benveniste (cf. Benveniste 1969). As all the rigid structuralist schemes of this author, it has to be understood cum grano salis.

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among them, ordeals and oaths14 play important roles: in both, the gods are involved. This may have been one of starting points for the combination of priestly and juridical functions as found later e.g. among the Indians (brahmins), Iranians (magi), and Celts (druids). The strive for all-pervading truth has also to early deliberations about justice, and paved the way for both the development of philosophical and juridical thought and the rise of a body of specialists. The latter rapidly fixed rules for all aspects of daily life. In this way, marriage law came into being, as well as criminal law and law of property. Needless to say, all this remained unwritten for a long time. According to the high standards of Proto-Indo-European poetical diction, law texts must have been highly formalized. Formalization and formulaic diction preserved many words and phrases which had become obsolete in all other forms of speech – a feature observable to the present day in lawyers’ language everywhere in the world. Due to these linguistic archaisms, historical linguistics is in fact an indispensable tool in the history of law.

3

MARRIAGE LAW15

3.1

Marriage by purchase = tutelary marriage

In patriarchal societies, women have no legal status independent from a tutor. They are always under guardianship (Latin manus, Middle High German munt) of a man: their father, brother, husband, or son. The patria potestas of the chief extends over all possessions of the extended family, including the free women and children. Consequently, the basic form of marriage was manus marriage, concluded by purchase of the bride (G Kaufehe).16 This does not mean that a woman was sold like chattel but that the procedures of marriage were governed by legal rules similar to those of selling and buying. Therefore recent literature (in German) seems to prefer the term Brautgüterehe.17 The purchase of a bride is no purchase in an economical sense. Details cannot be reconstructed for the Proto-Indo-European period but only for subsequent specific legal traditions. Moreover, a kind of solemnization was most probably also required in concluding a lawful marriage. Many features found are strikingly similar, but as no common vocabulary is used, and many parallels from non-Indo-European peoples can be adduced, Indo-European marriage law is hardly specifically IndoEuropean, but rather characteristic for the socio-economic situation of its period. Comparison of Greek, Roman and Indian sources allow to distinguish two formal steps in the contraction of marriage, traditionally called betrothal and marriage 14 15

16

17

It has been suggested that originally, oaths were not demanded from members of the higher classes because men of honour could not but speak the truth (Watkins 1987: 307). This chapter is mainly based on Koschaker (1937). For the ‘more violent past’ of some practices, see Puhvel (1998), with references. To avoid misunderstandings, please note that a full description of Greek, Roman, etc. marriage legislation cannot be considered here. The earliest actual attestation of the relevant term is to be found in a Mitanni document (14th c. ˘ ˘ BC): Hurrian uadura-nni ‚‘bride price‘ is borrowed from Early Indian * uadhu--ra-- gift‘ (given) for the bride‘, with the usual addition of the Hurrian suffix -nni to the foreign word (Mayrhofer 1996). Cf. Wagner-Hasel (1997).

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proper (the actual wedding). The first, betrothal (espousal), was a kind of engagement with account (G Arrhalverlöbnis). Both sides, the future bridegroom as well as the father of the bride, pay to the other a kind of pledge as security for their mutual promises, viz. to give the bride, and to take her in matrimony. Such a promise already constitutes a legal right of the bridegroom over the bride. If he dies before marriage proper, the bride can only be remarried in form of a widow’s marriage. Breach of betrothal from the side of the bride is regarded as adultery, but if the bridegroom breaches his promise, he only loses the bride price. On the other hand, a betrothal can be rather simply dissolved by both sides: by the bridegroom through surrender of the bride price, by the bride’s father through abandonment of the pledge (perhaps plus an additional fee). The honour of the bride remains, at least theoretically, untouched. During the intermediate period between betrothal and marriage proper i.e. the handing-over of the bride into the bridegroom’s care (L traditio, Gr ε’’ ), the young woman stands in a state of double ownership.

3.2

The female heir (G Erbtochter)

Principles of proprietary right also govern the status of children and the rules of inheritance. Children, including illegitimate ones, belong to the husband of their mother. Daughters do not inherit anything, except a kind of dowry which they take with them into matrimony, thus leaving the paternal family. Nearly everywhere, special regulations are provided for the case of a man who does not have sons. Without sons, not only the family property is in danger of being dissolved. More important, perhaps, is that afterlife in the Otherworld (‘the world of the fathers’, as the Veda says) is possible only through the regular performance of ceremonies (cult of the dead) by a son. If there is no son produced in natural way, law must provide a solution. Various forms of levirate are known among Indo-European peoples, especially the Hittites18 and Iranians.19 In Indian Law, the sonless widow comes under niyoga, an ‘obligation’ to produce, with the aid of a helping begetter (G Zeugungshelfer), a posthumous son for the defunct husband.20 Basically, a widow is part of the inheritance, and as such immediately comes under the guardianship of her nearest male relative. In some systems, this implies marital duties or rights which supersede the general ban on incest.21 A man without sons could arrange things already in his lifetime. First, he had to declare his daughter (or one of his daughters) to be his heiress (G Erbtochter22, Gr

18

19 20 21

22

Cf. Hittite Laws § 193: If a man has a wife and the man dies, his wife is taken by his brother, then [if there is no brother, or when the brother dies] by his father. If then his father dies also, and the wife he had [now] takes his [the father’s] brother, it is not objectionable (after Haase 1984: 46). Cf. Macuch (1981: 7) and Klingenschmitt (1971: 114-125). For details, see Jolly (1896: 70-74). Two paragraphs of the Hittite Laws seem to allude to a kind of in-law marriage: § 190: When stepson and stepmother have intercourse after the death the father, this is no incest. Similarly § 193: When father and daughter-in-law have intercourse after the death of the son, this is no incest. Also called ‘female heir’, and ‘appointed daughter’.

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ε’  23, OIr banchomarba24). Then, various legal possibilities could be used: he could give her into marriage to a young man and adopt the bridegroom at the same time (then called antiyant- , lit. ‘going in front’, in Hittite).25 He could let her marry in a special (non-tutelary) form of marriage (Old Irish lánamas for bantinchur). In India, he could give this daughter (putrika-, lit. ‘she-son’) into marriage under condition that her (first) son (to be called putrika--putra- ‘the she-son’s son’) is reckoned as his own son, implying that the marriage of his daughter was, at least for the first time, a free (non-tutelary) one. In all these cases, the bridegroom moved into the household of his father-in-law, contrary to the rules of normal marriage which was characterized by the going-over of the bride to the bridegroom’s house (cf. the technical uses of the ˘ root *uedh-, Old Indian vadhu- ‘wife’, etc., or Latin in matrimonium ducere). Fortunately, we find traces of this special custom both in Homer and in Latin tradition. In Iliad XI 221f we are told that Iphidamas marries Theano, daughter of Kisses, and remains to stay there. According to Festus relating the founding legend of the family of Numerii, a certain Fabius (c. 300 BC) married the daughter of the Samnite Numerius Otacilius, and called his first son Numerius.26 This is understood to suggest that Fabius was included into his father-in-law’s family.

3.3

Free (non-tutelary) marriage27

Free (non-tutelary) marriage (G muntfreie Ehe), apart from being a special marriage form for inheriting daughters (heiresses, G Erbtöchter), was also important, and obviously much more practised, in quite different circumstances. It was the only possible form of marriage with a stranger who had no rights at all, or for poor men who could not afford to pay a bride price. Such free marriages also allowed the crossing of other social barriers such as class boundaries or differences of rank (Anglo-Saxon law sometimes uses the term ‘mixed marriage’ in this sense). Furthermore, it was a solution for lovers whose families did not agree with their intentions (this is the Friedelehe of Germanic law).28 The basic characteristic of all these free marriages is that no bride price is paid, and that the young woman remains in the family or clan of her father. One of the free marriages has become especially important in history, viz. the ‘house community’, attested in Hittite, Roman and Germanic. Here, man and wife lived together in a common household without being formally married. The Romans

23 24 25 26 27 28

From ´  ‘bequest’. For details and references, see Thür (1997). Lit. ‘female heir’; also used in scholary literature are the translations ‘heiress’ and ‘appointed daughter’. Cf. Haase (2001). Cf. RE VI 1747; XVIII/1, 1858; Kleiner Pauly II 490 Nr. 9. Anglo-Norman law had a term feme sole for such independent women, mostly widows, however, as against every other woman being a feme covert. Cf. the ‘Scotch marriage’, concluded by the mere mutual agreement of the parties in the presence of witnesses, and regarded as lawful by older Scottish law. This, by the way, is the only accepted form of marriage in modern Western societies.

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called this a marriage by usus. Later on, continuing usus was regarded as constituting a formal marriage, and even creating a tutelary relation. This is made evident by the history of the L term usurpatio. Originally, this meant ‘breaking of the usus’; therefore, the classical meaning of the denominative verb usurpare ‘to take into usage’ is clearly secondary and has even supplanted the older sense of the term. Note that the term is exclusively Latin. Nevertheless, it sheds light on prehistorical conditions. L usurpatio is a derivative of an older root noun *usu-rup- ‘the breaking of usus’ (cf. the nasal present ru-m-pere, perfect rup-i, past participle rup-tus). Gaius explains that this is a term from marriage law: If a woman spends three days and three nights, once a year, outside the house (of her husband), the usus of her husband is broken, and no manus (guardianship) can come into being. Allegedly, the rule was already included in the laws of the (only fragmentarily transmitted) XII tables. The difference between a free marriage and simple concubinage is in the former’s publicity. Some kind of public declaration is afforded so that the community can take notice. No family agreement is, however, necessary. Originally, children sprung from free marriages could not have been in the patria potestas because the husband has not been the formal owner of his only informally constituted family. The details are already difficult enough to discover in the history of the various national traditions. The study of various legal forms of marriage among Indo-European peoples has at least one secure result, viz. that marriage by purchase (G Kaufehe, Brautgüterehe) and free marriage stood side by side, right form the beginning, as socially accepted alternatives. None can be shown to be older than the other.

3.4

Own choice of husband

In exceptional cases only, the young woman herself had in say in the choice of her future husband. In accordance with all other provisions of traditional marriage law, whether for tutelary or non-tutelary marriage, the bride’s father (or the person taking his place) was responsible for the decision to whom she was to be given. There may have been many objections to, and numerous breaches of that rule: Abduction of women (G Raubehe) was no doubt widely practised, especially in warrior circles. All the more remarkable is the so-called ‘self-choice’, a rarely mentioned marriage ritual in which the decision is formally left to the young woman herself. The resulting marriage was, basically, a non-tutelary (free) one. We have one pseudo-historical account from the West in the founding legend of Massalia29 (present-day Marseille), and literary attestations, adorned with fairy-tale motives, in India, usually regarding kings’ daughters.30 Mere parental liberality and generosity can, of course, never be excluded if a girl receives permission to choose for herself. But one suspects that in many cases, this procedure is based on political considerations, as e.g. bluntly ex29 30

Preserved in Athenaios’ Deipnosophistai 13 (36), 576 A, in a citation from (pseudo-?)Aristotle’s ‘State of the Massilians’. Best-known is the story of how DamayantT votes for Nala in the Mahabha-rata (chapter 3.53.5) whom she recognizes among the gods who haven taken on Nala’s appearance because the latter neither sweat nor throw shadows. On svayam.vara ‘own choice‘ in India see Schmidt (1987) and Jamison (2001), with further references.

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pressed by a clever king in the East Tocharian S.ad.d.anata-Ja-taka31 (A 66a3): S.oma- p la-nt em kuprene cu, -alyek yäslus. ta-ke-n˜i / s‘men˜c s‘twar-wäkna- ratkas‘s‘äl ... ‘If I give you to one king [in marriage], the others will become my enemies / they will come with their four-fould armies ...’. Though the text is, unfortunately, fragmentary, the idea is clear enough.

3.5

Legally recognized forms of marriage: three sample lists

3.5.1

India32

The law texts (most prominently the so-called Laws of Manu, the mythical ancestor of mankind), indicate various numbers of marriage types, usually arranged according to the status of gods or demons used for the respective terms. There are many discussions about the problem of bride purchase, widely regard as unworthy, but nearly universally practised. One can distinguish three main classes of marriage, and two supplementary forms: First, the bra-hma33 viva-ha34 is regarded as most noble form of marriage (Manu III 21.27). In it, the bride is given by her father to a brahmin without payment of a brideprice in recognition of the latter’s qualities;35 to this form belong the sub-groups of daiva36 viva-ha, a marriage into which the bride has been given to a sacrificial priest as payment for ritual fees, and a- rs.a viva- ha, a marriage based on mock purchase (the bride is given in exchange for a present of two or one hundred cows, vel sim., but this is given back to the bride as a kind of morning gift).37 According to some sources, praja-patya38 viva-ha, a marriage after handing over of the bride at the simple request of the bridegroom, is also one of the types of marriage suitable for brahmins. Second, the marriage forms practised among the warrior caste, therefore called

31 32 33

34

35 36 37 38

The text belongs to Indian traditions. The episode is only attested in the Tocharian version (probably a translation or a free adaption of a lost original in some Middle Indic language or Sanskrit). The presentation here is based on Jolly (1896), still the fundamental reference. Cf. also Heesterman (2001). Brahman is the highest all-pervading numen; also the name of a high-ranking god. A bra-man.a is a member of the highest, the priestly, class. Note that the terms for marriage forms are built (with the exception of praja-patya-, a simple adjectival derivative) in the same fashion, viz. by inner derivation involving vowel lengthening (vr.ddhi is the grammatical term). This points to a systematic, more or less theoretical, classification made by lawyers. This is the term for marriage, lit. ‘transport’, from the same root as seen in Latin vehi, etc., basically meaning ‘to drive (by wheeled vehicle)’. It clearly refers to the practice of ceremonial transport of the bride from her father’s house to the young couple’s new home. Cf. also Puhvel (1998 = 2002). Cf. further Leist (1895: 137). Deva is the common word for ‘god’; the adjective daiva refers to everything pertaining to the gods, and especially the sacrifice. The designation hints to former practise among the wise, the seers (r.s. i’s). Cf. further Leist (1895: 132-3). Praja-pati is the name of a god, the ‘Lord of Creatures’.

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ks.a-tra or, by brahmin critics, ra-ks.asa39 viva-ha. This is marriage by abduction, regarded as particularly suitable for a warrior. One has to assume that the abduction was often arranged with the agreement of the girl to overcome parental refusal, or even practised with mutual consent just for the sake of formality.40 Some texts distinguish between two types of abduction, covert (pais‘a-ca viva-ha) or by force. The first is also said to be suitable for the third and fourth castes (roughly corresponding to craftsmen and farmers) but this seems to reflect later thinking, or deliberate downgrading. The third main type is ma-nus. a viva-ha41, or a-sura42 viva-ha, the marriage for ordinary people, effected by the purchase of the bride. This, in spite of all brahmin snobbery, seems to have been the standard form at all levels of society. Quite apart from all schemes, two special forms of marriage were obviously regarded as exceptional, but nevertheless legally accepted, viz. svayam.vara, the ‘own choice’ of a husband by the bride (see preceding paragraph), and ga-ndharva43 viva-ha, the only non-tutelary (free) marriage, based on mutual consent, in other words, the classical love match (often combined with abduction). It is impossible to say to what extent these were actually practised. Most attestations may be purely literary fictions. Their existence and recognition as legal forms of marriage allow, nevertheless, the assumption that they, too, are inherited forms strong enough not to be abandoned in spite of later social developments. Similarly, the constant heavy brahmin objection against abduction of the bride could not root out age-old warrior customs. The law-texts further provide for supplementary regulations permitting the nontutelary (free) marriage of a woman who lived alone, but this may have been a rather theoretical construct than actually reflect social reality. 3.5.2

Iran44

Nothing is known about Old Iranian marriage laws. The Achaemenid practice of marriage among close relatives may have been taken over from earlier local i.e. nonIndo-European dynasties (cf. similar practices in Ancient Egypt). Sassanid law distinguished between three basic marriage forms (given here first); the Modern Persian Riva-yats add two further special cases. – pa-dixsˇa-y marriage is the common marriage by purchase. The woman remains under the guardianship (Middle Persian sarda-rı-h) of the husband, the children have full hereditary rights.45 – ˇcagar marriage is a non-tutelary (free) marriage of widows without sons. The

39 40 41 42 43 44 45

The term raks.asa designs a class of demons who are reputed (among others) for stealing young women. Marriage folklore of nearly all people preserve traces of similar practices. The name means ‘marriage for (ordinary) men’. Asura originally designates a class of gods; later it is used as a term for demons. The law term hardly refers to the latter lexical meaning. The gandharva’s are a class of minor deities, invoked in love affairs and in marriage ceremonies. For further references, see Macuch (1981). MPers pa-dixsˇa-y (attested in different spellings, also ideographical) means ‘ruler; powerful; authoritative, authority’ (MacKenzie 1971: 63). Cf. further Klingenschmitt (1971: 122).

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children of such a marriage are reckoned to be legal heirs of her mothers first husband.46 xwasra-yu-n marriage is one entered into by a woman without consent of her guardian.47 This is a free marriage: the woman does not fall under the guardianship of her husband, but remains in that of her father, brother, or other relative. Under certain conditions, she can become completely free of guardianship. The laws explicitly provide for the possibility to conclude such a marriage for a limited period only. No prescriptions about inheritance are given. ayo-gen marriage (unclear)48 stur marriage: this is a special case of a ˇcagar marriage.49 If a man dies without leaving neither wife nor son, a female slave is bought from the money he left and given into a non-tutelary (free) marriage. The children of this union are reckoned to be the dead man’s so that the ritually and economically requested progeny is secured.

3.5.3

Ireland

Irish Law has a special code for marriages, called Cáin Lánamna ‘Law of Couples’.50 One version lists ten, the other nine ‘sexual unions’.51 The following sketch is taken from Kelly (1988: 70)52 who summarizes the shorter version:

46 47

48

49

50 51

52

MPers {ckl} ‘wife (of the second degree)’ (MacKenzie 1971: 21). Cf. further Klingenschmitt (1971: 114-125) who pleads for a meaning ‘begetting help’ ( G Zeugungshilfe). The term seems to be the MPers form of an unknown Avestan technical word (W. Sundermann, p.c.). Klingenschmitt (1971: 168 Anm. 8) reconstructs an earlier *xva-sarae-nı- ‘having own guardianship’, implying a reading xwas(a)ra-ye- n instead of the traditional xwasa-yu-n (cf. also ibid. 124). Both reading and meaning are under disputed. Again, this may well be a pseudo-Avestan word from technical language. Klingenschmitt (1971: 124, 168) proposes *aiiuae- nı- or *aiiaoae- nı-, comparing Skt. ayogu-, ayugu- ‘without companion’: this would imply a reading ayo-ge-n. Highly improbably is Shaki’s proposal (1975: 227-228) to regard the word as standing for the Avestan phrase yo- he(pascae- ta) ‘he to whom (afterwards)’. – The son born in such a marriage is called duxtda-t ‘given by the daughter’, which reminds of Greek  ˜ and Indian putrika-putra-. Was this form the marriage of an ‘heiress’? Details in Macuch (1981:8-10, etc.) The form satar found in older literature is wrong. MPers {stwl} means ‘trustee, curator, guardian’ (MacKenzie 1971: 78). Perikhanian (1970: 353-357) translates the term with ‘attendant, helper’ < Avestan *stu/u-ra- : PIE *steh2- ‘to stand, to place oneself’. Cf. further Klingenschmitt (1971: 136-142). The fundamental edition is due to Thurneysen (1936). The volume also contains other important studies on the status of women in Irish Law. The basic meaning of lánamnas is ‘partnership, social or legal relationship between two parties’; the word is not restricted to ‘marriage’. It is the abstract (‘pairing, state of being paired’) to lánamain ‘married couple’, a compound of the adjective lán ‘full’ with emain / emuin ‘twins’, i.e. literally a ‘full pair’. Further details on the usage of these words are given by Thurneysen (1936: 4-13). For every comparative study of the history of Law in Europe, this is the first secondary literature on the subject of Celtic Law. Moreover, it makes fascinating reading for anyone interested in history. Unfortunately, the Welsh ‘Laws of Women’ are much less systematic. Nevertheless, they also treat various forms of marriage, and show a keen interest in the various economic transactions inplied in marriage and divorce. Accessible information about Welsh Law is to be found in Jenkins (1986).

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127

At the top of the list the author places the ‘union of joint property’ (lánamnas comthinchuir) to which both partners contribute movable goods (tinchor). The woman in such a union is called a ‘wife of joint authority’ (bé cuitchernsa). Next come the ‘union of woman on man-property’ (lánamnas mná for fertinchuir) to which the woman contributes little or nothing, and the ‘union of a man on woman-property’ (lánamnas fir for bantinchur) to which the man contributes little or nothing. The fourth category is the ‘union of a man visiting’ (lánamnas fir thathigtheo) – a less formal union in which the man visits the woman at her home with her kin’s consent. In the fifth union, the woman goes away openly with the man, but is not given by her kin. In the sixth union she allows herself to be abducted (lánamnas foxail) and in the seventh she is secretly visited (lánmanas táidi) – in both cases without her kin’s consent. The eighth and ninth unions can in no sense be described as marriage, as they are union by rape and the union of two insane persons.

This description allows a clear view of the Irish jurists’ categories. Remarkable is the sober economic patterning on the one hand, and the relatively strong position of the woman on the other. In spite of being codified in a Christian society (the texts are dated to the 7th and 8th c.), which has already been markedly influenced by Christian morals and Church Law, a strong pre-Christian tradition is felt. Note that a man is allowed to have several wives, usually married according to different forms. Even if these wives have different status, their sons have equal rights of inheritance.

4

SICK-MAINTENANCE

Special provision is made in two Indo-European legal traditions, viz. in Hittite and in Irish, regarding the duties of a person who has caused another’s severe wounding. This is widely regarded as inherited and specifically Indo-European as none of the two can have been influenced by the other (the Hittite corpus is dated ca. 1500 BC; the Old Irish legal texts have been fixed in the 7th or 8th c. AD), and as no parallels have yet been found elsewhere outside the Indo-European world. Whereas all other law codes, Indo-European or non-Indo-European, prescribe payments for compensation and punishment, more is requested here: Hittite Laws, § 10 says: If somebody hurts a man and makes him sick, he nurses him; at his (the wounded man’s) place, he gives a man, and this one works in his (the wounded man’s) house until he be restored to health. When he has recovered, he (the slayer) gives him (the victim) 6 sekel silver. For the leech too that man (the slayer) gives the fee (after Friedrich 1959: 19).

The Irish Bretha Crólige ‘Judgements of blood-lying’ prescribe in full detail similar compensations, with special rules for the exchange of pledges and sureties, and medical evidence.53 Furthermore, the quality of the boarding to be provided is fixed according to the rank, status and age of the victim. Typically Irish is the obligation to nurse not only the victim but also to feed the retinue (OIr dám) he is entitled to. A

53

For details, see Kelly 1988: 129-131, with full references to the texts.

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member of the lowest grade of nobility may already bring with him six followers. There are special rules for women and children.54 The differences between the two codes are as important as the parallels. On the one hand, in the Hittite empire, there is royal authority which guarantees that laws are obeyed. It is therefore sufficient to give only the basic outlines in the law code. In Early Ireland, on the other hand, only modest and fragile structures of governing exist. There is no central power to enforce law. Families and clans rely on each other’s goodwill and ability to respect the rules. This is why they bind themselves by mutual pledges and securities. Disputes about the interpretation of the laws are avoided – at least on paper – by full casuistics providing for all possible circumstances, and the fixing of adequate rules. Unfortunately, there is only one rather weak linguistic basis for the reconstruction of a Proto-Indo-European rule of sick-maintenance. Hitt ˇsakta-izzi‘performs sick-maintenance’ is a derivative verb from a noun *sˇakta- < Proto-Indo-European *sokto- ‘illness’: This is also attested in OIr socht ‘silence’, older ‘stiffness, numbness’.55 The word belongs to the root *sek- ‘to (get) dry’ (well attested in Greek, Indian, Baltic, Slavic, Latin, Germanic). For ‘sick-maintenance’, Irish uses a different term folog nothrusa, lit. ‘maintenance of sickness’, later a simple othrus ( -s-stem, m).56 Nevertheless, the Proto-Indo-European age of the institution usually is not doubted; this seems reasonable.

5

‘INDOGERMANISCHE RECHTSWÖRTER’

Philological investigation of legal terms is of the greatest value for the history of law. An excellent example studying the language of medieval Scandinavian law books is von See (1964).57 The author is very sceptical with regard to the possibility of ProtoGermanic or even Proto-Indo-European forerunners for any legal term. In this respect, he is certainly right. In the following choice of examples,58 I should like to show that, nevertheless, it is possible to elucidate the process of terminology building – which nearly always went on separately in the respective legal traditions – by etymological studies. Terms are not chosen in a haphazard way, and inherited meanings of roots or given words usually included legal aspects which could be made use of. The nature of the material displayed here precludes, however, any cogent argumentation. But certain caveats having been made, the shades of a common ancient way of legal thinking emerges. Thus, historical grammar is able to contribute to the history of law, and to give some sort of support in the search for the origins of law. 54 55 56 57 58

Kelly 84. There is another Indo-Celtic parallel formation from the same root: OInd ví-s.akta- ‘dry cow’ (cf. Avestan hisˇku- ‘dry’ = Ir sesc, W hysb ‘dry’) : OIr samaisc ‘young cow, heifer’ < ‘dry (in summer)’. There is also a basic othar ‘suffering, ill[ness]’, perhaps an old adjective ‘decomposing, stinking’ < *pu-t-ro-, if this is from the root *pu-- (cf. L pu-s, E foul, etc.) Cf. also the short article by Beck (1974), with useful bibliographical references. The older literature is easily accessible through the references given in Buck (1949: 1419-1461).

Glimpses of Indo-European law

5.1

General terms

5.1.1

Latin ius, etc.59

129

˘ Latin iu-s is from Proto-Indo-European *Hi˘ euos, a neuter abstract noun meaning ‘what is straight, right, just’ > ‘right, justice’. The Latin denominal verb iurare ‘to swear an oath’ received its technical meaning from the phrase ius iurandum ‘oath formula’, lit. ‘the right which is to be declared right’, vel sim. The root is attested verbal˘ h- could ly in extended form only, with an additional ‘determinative’ *-dh-: *Hi˘ eu-d ˘ ˘ have meant ‘to be in or to adapt to the state of *Hieu-os, i.e. to be or become straight, ˘ h- ‘to fight’60 might be either a right, just’. If this is true, the traditional root *Hi˘ eud homonym, or rather, a semantically specialized variant. From this verbal base, the ˘ h following nominal derivatives were formed: 1. an adjective *Hi(e)u-d -ú- ‘straight, 61 right, straightening, alining’, attested in Greek ’ ’  ; 2. a noun (originally a hete~ ˘ h roclitic -r/n stem?) *Hi(e)u-d -r. ‘straight line’, attested in Greek ’ ‘immediately’ ˘ h ˘ (and perhaps Latin iubar ‘the light of day, morning star’62); 3. *Hiou-d -éie- ‘to bring ˘ ˘ into the state of *Hieu-os’, to straighten’: Latin i(o)ubere (Old Latin iousit CIL I.614: 189 ˘ BC; iousisent SCons. de Bacch. 186 BC); and perhaps 4. an intransitive present *Hiu˘ ˘ dh-e-- ‘to be in the state of *Hieu-os’, according to Hodot 1978. The basic ius then denoting a state of conformity with the social rights and rules, the -to- derivative iustus ‘just’ (≈ Old Irish uisse < *iusti˘ os), Old Latin iouestod adverb ‘justly’, belongs to the type of honestus, barbatus. The (probably collective) plural iura meant ‘(the corpus of) legal sentences, judgements, etc.’63 Remarkable is the nomen agentis iu-dex‚ ‘speaker of law‘ which follows an inherited pattern, cf. Oscan med-dix, Greek  -  ´ , Old Saxon eo-sago, Old Icelandic lο
g-sο
gu-mar denoting similar offices.64 

5.1.2

Latin lex

is a formation from the root of legere, lego ‘to pick up, to read’; for the original meaning, Greek ε˘’ ‘to pick up, reckon, speak’ must be considered too (Proto-IndoEuropean *leg-). For the basic meaning of lex, many proposals have been made (see the handbooks). It must have lain somewhere in the sphere of ‘fixed (decision)’. Since

59 60 61 62 63

64

This follows in some statements Willi (2001), with slight modifications. LIV2, 225 postulates (unnecessarily, I think) a rather pale ‘in Bewegung geraten (ohne Ortsveränderung)’. But cf. de Lamberterie (1990: 270-301) with a completely different etymology. This is highly disputed, see the etymological dictionaries. The most recent proposal by Dunkel (1997: 27-36) is quite different (and seems very attractive). Watkins, (2000: xxxii) postulates the basic meaning of ius to have been ‘religious law’, because of Avestan yaosˇ- ‘id.’; ius then might have stood in opposition to lex ‘non-religious law’ (?). This in unlikely, first because no separation of ‘religious’ vs. ‘profane’ law is conceivable for early times, see above; secondly, because the meaning of the Avestan term most probably is secondary, and due to technical use in ritualistic texts. Watkins also suggests to solve the old riddle presented by the homonym ius ‘broth’ by thinking of an earlier meaning ‘legal food’ for the latter; this cannot be substantiated. On these words see below in 5.1.3

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the earliest attestation, it is used as the term for ‘law’, perhaps in the sense of manmade law as against ius, the eternal or god-given law. This has been elaborately discussed (Dumézil and Benveniste, and many others). Latin fas, with no other etymological link than to fari ‘to speak’, but without a technical meaning, denotes the ‘divine law’ which remains unformulated by human legal practice, but is orally transmitted. The three words mentioned suffice to demonstrate that the Roman legal terminology came into being in the course of a long history, and has not been constrained by a logical system right from the beginning. Benveniste’s sharp dichotomies as far as I see are highly improbable. 5.1.3

Greek  , etc.

5.1.4

‘theft, thief’

˘ ˘   is a feminine a-stem, i.e. an old collective, derived from the root deik- ‘to show, to point to‘,65 meaning ‘law’. The semantic content of   is guidance of the people towards the right procedure. As Latin dicere makes clear, this is done orally:   is law as expressed in formulaic language (Benveniste). The  -  ´ 66‘judge’ (= L iu-dex, Oscan med-dix67) announces justice,   ’î. From  , the adjective    ‘just’ is derived: ‘just’ means ‘law-abiding’. In Latin, some legal formulas preserve the technical meaning: dicis causa‘for the (legal) form’ (dicis gen.sg. of *dix = OInd dis‘- ‘(cardinal) direction’); the formula do, dico, addico used by the Praetor in legal procedure; diem dicere‘fixing the day for trial or hearing’, multam dicere ‘to impose a fine’. Germanic, especially West Germanic, shows a similar special usage of the verb. Germanic *teiha- means, first of all, ‘to accuse‘, and this is reflected in Gothic ga-teihan ‘to denounce‘, Old English teon, Old Frisian tia, Old High German zîhan, Middle High German zîhen, Modern German zeihen, all ‘to accuse‘ (cf. Modern German Ver-zeih-ung ‘pardon, forgiveness‘), Old Saxon af-tihan, Old English of-teon, Old Frisian for-tia ‘to refuse‘. There is further the variant with -g- instead of -h-, reflecting another levelling of the formerly movable accent, in Old Frisian tigia, Middle Low German68 and Middle Dutch tigen ‘to accuse‘, Old Frisian ur-tigia ‘to refuse‘. Modern Dutch uses a secondary formation betichten ‘to accuse‘ (cf. Old English tiht, Old High German bi-ziht, Modern German Bezichtigung ‘accusation‘).

Theft is regarded as dishonourable, in distinction to robbery which remained a socially deplored, but – under certain conditions – honourable activity until recent times. Theft is defined by surreptitiousness. This is clear from the vocabulary used: 65 66 67 68

The proposal that it originally may have meant‘boundary marker’ (Watkins) is unlikely to hit the truth.‘Sign post’ would be more to the point, were it not anachronistic. But see above. Comparison with the parallel terms (see above) exclude the alternative explication as a compound of acc.pl. *dikas + kuel- ‘to turn, etc.’. First member is medos ‘law’. It belong to the root *med- ‘to measure’. OE meto ‘Lord, God’ shows a different semantic ˘ specialization. Old High German zeigôn etc. simply means ‘to show, indicate’. Similarly, the Scandinavian verbs have a general meaning: Old Norse tjá (1st sg té), Modern Icelandic tjá, Norwegian, Swedish, Danish te ‘to indicate’.

Glimpses of Indo-European law

131

Old Indian and Avestan ta-yú-, Lydian teju- < Proto-Anatolian *ta-yu-, Hitt. ta-a-iiz-zi ‘steals’ tayazilasˇ (formally a genitive)69 lit.‘he / that of the theft’ > 1. ‘thief’, 2. ‘penalty’; OIr táid, Old Church Slavonic tatÍ< *ta--ti-. The root has a s-mobile which appears in some formations: OInd sta- yát (adverb)‘secretly, furtively’ (vs. Avestan taiia- ‘secret’), sta-yú- ‘thief’, stená- ‘id.’, etc. The only Latin attestation, ambiguous because of scriptio continua,70 is found in the Old Latin Duenos-inscription (6th c. BC) ne med malos (s)tatod, ‘a bad one shall not steal me’. 5.1.5

˘

˘ k uei-‘to pay compensation for injury’

˘ This is attested in the noun *k uoi˘ na- transmitted as Greek  - (Attic  ´) ‘fine, penalty, price’ borrowed into Latin as poena, Avestan kae-na- ‘punishment, retribution’; more general usage is reflected by Lithuanian káina ‘value, price’ and OCSl ceˇna ‘honour, price’. There are many other derivatives from the root, some with legal connotations, e.g. Greek   ‘recompense, retribution’, ´ ‘honour’, etc.

5.2

Some terms from the law of obligations71

5.2.1

˘ h- ‘to make compensation for’ *uad

The meaning of the root shows a double development: on the one hand to ‘to serve as substitute’ > ‘to step in for someone’, on the other hand to ‘to make compensation’ >‘to ransom, to redeem’. The word is attested in Lith vadúoti ‘to free, redeem, save, substitute, replace’, Latin vas, vadis ‘surety’(G Gestellungsbürge) and praes, praedis ‘pledge or guarantor in monetary affairs’(G Bürge in Geldsachen) < *prai-vad-s, lit. ˘ h-iio-, ˘ lit. ‘what is to be ‘who substitutes in advance’, praedium ‘bail (land)’ < *prai-uad substituted in advance’; equally in Germanic *wadja- ‘pledge’ in Gothic wadi n, G Wette < ‘stake (in betting)’, and Lith vãdas ‘pledge (in money, property, or person)’. 5.2.2

*h1/3er- ‘to owe’

Hitt arnu- ‘to pay penance, to compensate’ < *h1/3r-nu- ‘to owe something or someone’; Old Indian r.n. á- n ‘debt, criminal act’, m ‘debtor’ (formerly an adjective); Iranian *arna- ‘debt’ in Avestan ar nat.cae-ˇsa- ‘retributing a guilt’. ˜ e

69 70

71

Cf. recently Neumann StBoT 45.2001. 449/50. ˘ After Rix MSS 46 1985: 205-207 = Kl.Schr. 2001, 165-7. Cf. also LIV2 616: root (s)teh2(i )- . A slightly different formal analysis of the form is proposed by Eichner (1991: 238 n. 104). Greek -   means ‘in vain, failed‘; Rix explains this as ‘robbed of success‘. After Klingenschmitt (1980).

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*(s)kel- ‘to come under obligation’

This root is found in Germanic and Baltic: In Germanic, we have the verb Gothic skal, OE gescola, E shall, and an abstract noun *skul /‘ Äi- f ‘debt, penal offence’ in G Schuld, etc. Baltic shows a greater variety of formations: Old Prussian skellants ‘guilty’, skallisnan (acc) ‘obligation, duty’, Lith skele.´ti ‘to owe, to be guilty’, skìlti ‘to run into ~ debts’, kaltas ‘responsible, guilty, owing money’, kalt~e. and skolà ‘debt’. If Latin culpa ‘fault, blame’ (unspecific) is from *kl -peh2, it also belongs to the word family. ˚

5.2.4

h

*h3b el- ‘to be obliged to‘

, Greek 
~ ‘to be obliged to‘, Albanian ble(n)j ‘to buy’ < ‘to cause someone to be obliged’. 5.2.5

*dhlegh- ‘to be entitled to‘72

Gothic dulgs ‘debt’; OCSl dlÍgÍ‘id.’, etc.; OIr dligid ‘has a right to‘, dliged ‘law’ = Welsh dyled ‘law, right, debt, priviledge’, dylyu ‘to be entitled to, to be obliged to‘. According to Vendryes, Latin indulgeo ‘give in’ (< ‘have to cede to someone’s title’) and flexuntes (< *dhlegh-s-) ‘knights on duty’ (< *‘being entitled to a horse’) also belong to the word family. There is an old proposal to regard the Germanic word as a borrowing from Celtic, but this cannot be substantiated. Note that it is only attested in Gothic. The Slavic terms may, however, be borrowings from Germanic, but again, this cannot be proven. 5.2.6

*kusH-í- ‘hire (for living beings)’

Germanic *hu-ri-, with a denominal verb *hu-rjan, in Old English hy- r, hy- ran in the Laws of Ine (West Saxon king) cap. 60B about the hiring of plough oxen. This has a neat ˘ ‘to hire’. The Hittite Laws say that parallel in Hittite kusˇˇsan- n ‘hire, wage’, kusˇˇsaniiain cap. II 40 that the hire for a plough ox is 6 sekel silver a month; II 41 speaks about hiring mules and asses, I 42 about hiring men. The corresponding word to OE hy- r in NHG, Heuer ‘wages of seamen’, is a loan from LG , cf. Dutch huren ‘to hire (a ship, a house, etc.)’.73

72

73

Klingenschmitt (1980: 149) suggests that there may have been two distinct terms for ‘to owe’: the root *skel-, ‘to be under obligation’, focussing on the obligation of the debtor, and *dhlegh-, ‘to be entitled to‘, referring to the claim of the creditor. In spite of popular ideas, E whore (with unetymological w-), G Hure (a loan from Dutch hoer), etc., have nothing to do with ‘to hire’: as shown by OE hóre, Old and Middle High German huora, and the corresponding masculine Gothic hors, the Proto-Indo-European stem vowel was *-a--, and consequently, the word belongs to the family of Latin carus ‘dear’, OInd ka-ma- ‘love’, OIr carae ‘friend’, etc.

Glimpses of Indo-European law

5.3

133

A term from the field of the law of succession?

˘ Besides the well attested *orbho- ‘bereft, orphan, poor’, etc., a more specialized term ˘ seems to have been * kei-ú- ‘under age and without father’. It is attested in OCSl sirÍ, Russian siryj ‘orphaned’; the special meaning appears in OInd s‘ayú- (e.g. RV 4,18,12: ‘Who has made your mother a widow? Who wanted to kill you, the erring s‘ayú-?’). Similarly in Avestan: YAv sae- FiO (mutilated form) is explained by the Pahlavi commentary as a child under age whose father is dead. All other derivatives are less specific: Khotanese syu-ta- and Parthian sywg ‘orphan’, Lith ˇseir ~ ys ‘widower’. This latter must be a later, secondary development, for according to the Proto-Indo-European family structure (polygyny, etc.), the notion of ‘widower’ could not exist; equally, there is no term for ‘motherless child’ because only paternity counts legally.

5.4

Procedure

There are two roots which seem to contain information of how legal procedure went on in Proto-Indo-European society. 5.4.1

*bheudh-

has the general meaning ‘to awake, to wake up’, in both physical and intellectual senses (‘to pay attention, to understand’). It is attested as such in Indo-Iranian (cf. the title Buddha, ‘Awoken’), Baltic and Slavic. In addition to that, a legally specialized meaning ‘to bring formally to notice’ is found in Greek, Germanic and Celtic. Cf. Doric (Cretan) Greek   ‘accuser’,   ‘one who is summoned to court’, the Germanic family of *beud-a-, OE beodan, boda, by- del, G ge-bieten, an-bieten, Bote, Büttel, etc. In Old Irish, the verb ad-boind means ‘announces distraint’, and as-boind ‘refuses’. 5.4.2

˘ ‘to cry (esp. for help)’74 *kreuK-

probably is but an onomatopoetic word. In Indian and Germanic, it is used for de˘ a legal term, viz. ‘hue and cry’ (older G Gerüft(e) ˘ riving / Gerücht(e))75: OInd kros‘a- < ˘ ˘ *krouk-o-, OE hréam < Germanic *hraugma < *krouk-mó-. The rules for ‘hue and cry’ are identical in Indian and Germanic law, and similar in Roman law. The outcry has two functions: first it puts all who can hear it under obligation to instant help; and it is the formal annunciation that one is the victim of a criminal act (the special importance in cases of rape has been living on until present times), thus fending off any suspicion of unlawful behaviour. In later times, when formal legal procedures where enforced by public power, the legal proceedings replaced the former recourse to self-help. But the older terms

74 75

With -K- because of Lith krau˜kti ‘to croak’ (of ravens, etc.). After W. Schulze (1918 = 1933).

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tend to remain in usage: G Gerüft takes the meaning ‘accusation’, Sanskrit kros‘a- is used as a measure for (originally: hearing) distance. Often, the old term has been replaced, e.g. in E by Norman French ‘hue and cry’ (cf. Fr hue, huer; cri, crier). Latin uses clamor from the root kleh1- ‘to call’ (LIV2 361). Similarly Greek  ´ or Latin (im)plorare (cf. XII tab. endoplorato), all from sound symbolic roots.

6

CONCLUSION

It is obvious that questions such as those concerning the origin(s) of law can only be answered in close cooperation of various scholarly disciplines. The foregoing outline only serves as an illustration of the huge possible input of Indo-European Studies into the common endeavour. 1. The first and most important contribution is certainly to edit and comment (linguistically and philologically) the sources for the history of law. Some are provided by major disciplines such as Classical Philology, Indology, Anglo-Saxon Philology, Germanic studies, etc. A number of languages, dead and alive, are still without their own discipline in most countries, and therefore to be studied only within Indo-European, such as e.g. Iranian, Celtic, Baltic and Albanian. It is important to realize that not only law codes or similar legal literature are sources to be investigated; many if not most literary and folkloristic texts contain features relevant for the study of the history of law. Not only the rules themselves or ideas about legal principles and values, but also all hints concerning truth-finding practices or the fixing of justice, or the execution of procedures, and law enforcement should be examined. All this requires the availability of reliable editions, adequate commentaries, and correct translations. 2. It is possible to develop, in close cooperation with historical Indo-European Linguistics reconstructing the common protolanguage, a kind of comparative IndoEuropean literature, based on formal and semantic concordances found in surviving fragments of Indo-European lore: formulas, poetic forms, typical expressions, common subjects. Among these matters, many are relevant for the history of law. 3. Indo-European Cultural Studies aim at reconstructing the inner and outer world of the postulated people who spoke the reconstructed Proto-Indo-European language. This raises the questions concerning the origin of this population, their social and economic conditions of life, their contacts with the world around them. Even if all possible answers are bound to remain hypothetical because of the lack of hard evidence such as archaeological findings, they might be of interest for the main problem which has been the focus of this volume. Certain legal features may be typically linked to certain socio-economic structures, and vice versa. 4. And lastly, the very results of historical linguistics, the etymologies, can have an important bearing on the interpretation of law texts or any other legally relevant text. Legal terminology and phraseology are hard to understand if addressed with only a knowledge of the common literary language. To this day, as in the past, lawyers are notoriously conservative in the use of language. In many cases, the elucidation of the semantic motivation for a given formation, as reconstructible through

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etymology and by comparison with genetically related or similarly derived words in other languages and other literary genres, can offer valuable clues for the legal historian. To sum up: Indo-European Studies is a partner of prime importance for the history of law. References: É. Benveniste, Le vocabulaire des institutions indo-européennes. Paris 1969 [tome 2, livre 2: Le droit (chapitres 1-8), pp. 99-175] [= pp. 379-442 of the English translation, London 1973; pp. 369-432 of the German translation, ed. by St. Zimmer, Frankfurt am Main 1993]. C.D. Buck, A Dictionary of Selected Synonyms in the Principal Indo-European Languages. Chicago 1949 [chapter 21: Law]. Y. Cohen, Taboos and Prohibitions in Hittite Society. A Study of the Expression natta a-ra (‘not permitted’). Heidelberg 2002. G.E. Dunkel, ‘Latin iubar and fas: sound-law and analogy’, in: Sound Law and Analogy, Papers in honor of R.S.P. Beekes..., ed. by A. Lubotsky. Amsterdam-Atlanta 1997. R. Haase, Texte zum hethitischen Recht. Eine Auswahl. Wiesbaden 1984. id., ‘Der Paragraph 36 der hethitischen Rechtssatzung.’ Zeitschrift für Altorientalische und biblische Rechtsgeschichte 7, 2001, 392-7. E. Hermann, ‘Die Eheformen der Urindogermanen’. Nachrichten der Gesellschaft der Wissenschaften zu Göttingen. NF 12, Göttingen 1937. D. Jenkins, The Law of Hywel Dda. Llandysul 1986. Der Kleine Pauly. Lexikon der Antike, hrg. v. K. Ziegler & W. Sontheimer. München 1979. G. Klingenschmitt, ‘Neue Avesta-Fragmente (FrA.)’, in: Münchener Studien zur Sprachwissenschaft 29, 1971, 111-174. id., ‘Zu den Rechtsverhältnissen in der indogermanischen Frühzeit’. Studien zur Indologie und Iranistik 5/6.1980 (= Festschrift P. Thieme), 137-152. P. Koschaker, ‘Die Eheformen bei den Indogermanen’. Deutsche Landesreferate zum II. Int. Kongreß für Rechtsvergleichung, ed. Ernst Heymann, den Haag-Berlin 1937, 77-140b W.B. Leist, Graeco-Italische Rechtsgeschichte. Jena 1884. id., Alt-arisches Ius civile, Jena 1892, repr. ed. by B. Schlerath, Innsbruck 1973. id., Alt-arisches Ius gentium, Jena 1895. LIV2 = Lexikon der indogermanischen Verben. 2. Aufl. bearb. v. M. Kümmel & H. Rix. Wiesbaden 2001. D.N. MacKenzie, A Concise Pahlavi Dictionary. London 1971. M. Macuch. Das sasanidische Rechtsbuch ‘Ma-takda-n i hazar da-tista-n’ (Teil II). Wiesbaden 1981. H.S. Maine, Ancient Law, its Connection with the Early History of Society and its Relation to Modern Ideas. London 1861. J.P. Mallory & D.Q. Adams (eds.), Encyclopedia of Indo-European Culture. London-Chicago 1997. Der Neue Pauly. Enzyklopädie der Antike, hrg. v. H. Cancik & H. Schneider. Stuttgart-Weimar 1996A.G. Perikhanian, ‘On Some Pahlavi Legal Terms’, in: W.B. Henning Memorial Volume, ed. by M. Boyce & I. Gershevitch. London 1970, 349-357. E.C. Polomé & J.P. Mallory, ‘Law’, in: Mallory & Adams 1997, 345-6. J. Puhvel, Analecta Indoeuropaea. Innsbruck 1981. id., ‘Remarks on Indo-European Wedding Terminology’, in: Orpheus 8, 1998, 97-98. id., Epilecta Indoeuropaea. Innsbruck 2002. RE = Pauly’sche Realencyclopädie der classischen Altertumswissenschaften, begonnen von Georg Wissowa. Stuttgart 1890-1980. B. Schlerath, ‘Indogermanisches Recht’, in: Handwörterbuch zur deutschen Rechtsgeschichte, eds. A. Erler & E. Kaufmann, Berlin 1971-1998, Bd. 2, 1978, Sp. 343-346. W. Schulze, ‘Beiträge zur indogermanischen Wort- und Sittengeschichte II [Gerüfte]’. Sitzungsberichte der Preußischen Akademie der Wissenschaften 1918, 481-511 (= Kleine Schriften, hrg. v. Indogermanischen Seminar der Universität Berlin. Göttingen 1933, 160-89). Cl. v. Schwerin, Die Formen der Haussuchung in den indogermanischen. Rechten. Mannheim/Berlin/Leipzig 1924.

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M. Shaki, ‘The concept of obligated successorship in the Ma-diya-n -ı haza-r da-dista-n.’ Acta Iranica 5, 1975, 227-242. G. Thür, ‘Epikleros’, Der Neue Pauly 3, 1997, 1117-8. R. Thurneysen, ‘Cáin Lánamna’, in: Studies in Early Irish Law, by R. Thurneysen et al. Dublin-London 1936, 1-80. B. Wagner-Hasel, ‘Ehe’. Der Neue Pauly 3, 1997, 894. C. Watkins, ‘Studies in Indo-European legal language, institutions, and mythology’, in: Indo-European & Indo-Europeans, ed. G. Cardona & al. Philadelphia 1970, 321-354 (= 1994, 2, 422-455). id., ‘Sick-Maintenance in Indo-European’. Ériu 27, 1974, 21-25 (= 1994, 2, 560-564). id., ‘In the interstices of procedure: Indo-European legal language and comparative law’, in: Studien zum indogermanischen Wortschatz, ed. W. Meid. Innsbruck 1987, 305-314 (= 1994, 2, 718-727). id., Selected Writings, ed. by L. Olivier. 2 vols. Innsbruck 1994. id., The American Heritage Dictionary of Indo-European Roots. 2nd ed., revised. Boston – New York 2000. A. Willi, ‘Lateinisch iube-re, griechisch ’ ’ und ein indogermanisches Rechtskonzept.’ [Kuhn’s] Zeitschrift für vergleichende Sprachforschung 114.2001, 117-146. K. von See, Altnordische Rechtswörter. Philologische Studien zur Rechtsauffassung und Rechtsgesinnung der Germanen. Tübingen 1964. St. Zimmer, Urvolk, Ursprache und Indogermanisierung. Zur Methode der Indogermanischen Altertumskunde. Innsbruck 1990. id., ‘The Problem of Proto-Indo-European Glottogenesis’. General Linguistics 39, 2003, 25-55.

Before Hammurabi of Babylon Law and the Laws in Early Mesopotamia

Klaas R. Veenhof

1

INTRODUCTION

Since Mesopotamia, the cradle of the civilizations of Sumerians and Babylonians, has yielded the oldest legal sources known today, one might expect them to figure prominently in the study of ‘early law’. But what is ‘old’ or even ‘oldest’ in chronological terms is not necessarily ‘early’ in the sense of reflecting the very beginnings, the first stages of law, as described in the programme of this symposium. The chronological notion implied by the use of ‘early’ is less an absolute one, translatable into data of world history, than an internal and relative one, used to characterize a stage in the development of law in a particular society, irrespective of its absolute date. This does not mean, of course, that the oldest law and legal documents are without interest for the study of early law. Its data may help to define it, also by casting historical light on its development and the processes which led to the emergence of the first legal records. This is particularly true of ancient Mesopotamia, where developments, starting soon after 3000 B.C., can be followed over many centuries, down to the stage of fully grown law and formal legislation. But we have to realize that Mesopotamian civilization, notwithstanding the survival of some of its elements, including legal traditions, in neighbouring and later cultures, is a completely dead one. In the absence of a continuous oral tradition, written documents, recorded in cuneiform script, are our only source of knowledge. Consequently, the study of ‘early’ law has to be based on the careful analysis of the oldest legal records, their emergence, nature and function within the framework of what we know about the society; of their structure, subject matter, formulary and terminology; and of their gradual evolution, spread and coverage, also in relation to other sources relevant for legal history, such as official inscriptions, legislative texts, and documents from the schools. Records imply the availability of a script, which was invented in Mesopotamia shortly before 3000 B.C., to serve the bureaucratic and managerial needs of a rapidly expanding, sophisticated, urbanizing culture in a densely populated country. But this invention and the subsequent appearance of the first legal documents do not coincide with the birth, the very beginning of law. Attempts to maintain a social order and to regulate important events by rules for securing fair transactions, upholding justice, and arbitrating conflicts must have preceded the use of writing, when unwritten customary law based on wisdom, experience and oral tradition ruled. Moreover, however rich and varied, the written documentation, not surprisingly, is less abundant and informative for the early phases in which we are interested here. Not only because the oldest strata of important ruins which might yield early records are generally less accessible, but also because the use of writing for other than bureaucratic pur-

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poses was a gradual process. Apart from a few welcome exceptions, the slowly growing stream of legal documents only begins around the middle of the third millennium B.C. Moreover, the oldest texts, notably the so-called ‘archaic kudurrus’ (see below) still offer many problems of interpretation. My title mentions king Hammurabi of Babylon (ca. 1792-1750 B.C.), in the first place because his name is linked with the largest and most impressive collection of ancient Mesopotamian laws, the so-called ’Codex Hammurabi’, which became known to legal historians hundred years ago.1 But he is also mentioned because his times and in general the so-called Old-Babylonian period (ca. 2000-1600 B.C.) for which he stands, may serve as a lower chronological boundary and as a frame of reference. By the end of the third millennium B.C. the stage of early law was certainly past. This does not mean that the development of law and legal insights came to an end, but that my observations on ‘early law’ will focus on the third millennium B.C. It is not easy to fix the time when in a particular culture ‘early law’ started and when it reached the phase of fully developed law. Its origins are usually badly recorded and difficult to capture, certainly for a dead culture, and its end depends to some extent on our definitions and the availability of adequate documentation. For coming to grips with early Mesopotamian law it is helpful to look back from the Old Babylonian (and the contemporary Old Assyrian) period, because by that time and already at the end of the third millennium B.C. (the Third Dynasty of Ur, which covers the 21st century B.C.), by common agreement, law was fully developed. The juridification of the social order and the way of solving conflicts was well established by then and professionally, at times extensively, recorded, both in collections of laws and royal decrees and in a great variety of legal records. The latter comprised both private contracts dealing with a great variety of transactions and liabilities2 and documents from the administration of justice issued by courts of law (which consisted of local judges, but at times also comprised ‘judges of the king’), such as formal judgments, records of court proceedings and various depositions.3 Moreover, we have ample evidence that by then the education of professional scribes in the schools paid 1

2

3

Editio princeps by V. Scheil, in Textes élamites-sémitiques, deuxième série; Mémoires de la Délégation en Perse, t.4, Paris 1902. The impressive stele with the text (now in the Louvre, in Paris, see fig.5) was discovered in 1901 by the French excavators of the Elamite capital Susa, where it had been taken as spoil of war by an Elamite king in the 12th century B.C., some six hundred years after it had been erected in Babylon. See for the Ur period e.g. P. Steinkeller, Sale Documents of the UR-III Period, Stuttgart 1989, and H. Lutzmann, Die Neusumerischen Schuldurkunden I, Heidelberg 1976. For the Old Babylonian period the sample collected in M. Schorr, Urkunden des Altbabylonischen Zivil- und Prozessrecht, Leipzig 1913, and special investigations, such as G. Mauer, Das Formular der altbabylonischen Bodenverpachtverträge, München 1980 (dissertation, Selbstverlag); R. Westbrook, Old Babylonian Marriage Law, Horn 1988; A. Skaist, The Old Babylonian Loan Contract, Ramat Gan 1994; and R. Westbrook & R. Jasnow, Security for Debt in Ancient Near Eastern Law, Leiden 2001, 63-160 (the Old Babylonian and Old Assyrian periods.) See for the Ur III period, A. Falkenstein, Die neusumerischen Gerechtsurkunden I-III, München 195657, and for Old Babylonian data, E. Dombradi, Die Darstellung des Rechtsaustrags in den altbabylonischen Prozessurkunden, I-II, Freiburger Altorientalische Studien 20/1-2, Stuttgart 1996. A recent selection of judicial records of all periods translated into French is now available in F. Joannès (ed.), Rendre la justice en Mésopotamie. Archives judiciaires du Proche-Orient ancien (IIIe-Ier millénaires avant J.C.), Saint-Denis 2000.

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serious attention to law and legal phraseology and used selections of legal rules, model contracts, and records of exemplary verdicts as teaching tools.4 This must have resulted in increased knowledge of the law and growing standardization of legal terminology and the formulary of contracts and judicial records,5 though it did not mean that in Hammurabi’s empire all regional and local differences in terminology and substance of law had by then disappeared. Hammurabi’s time provides a good frame of reference also because his extensive collection of laws is usually considered the culmination of early Mesopotamian legislative activity.6 In Mesopotamia itself his laws must have had a lasting influence, since they were copied and studied through the centuries, down to the middle of the first millennium B.C.7 From the time of his dynasty, moreover, we have evidence concerning a substantial number of royal decrees, issued to maintain or restore ‘equity’ for the benefit of weak and indebted citizens or to supplement the laws by adapting and specifying rules for contractual liabilities and penalties.8 Finally, the abundance and variety of contracts and judicial records from the Old Babylonian period allow a comparison between the laws and regulations and current legal practice. This comparison, in conjunction with some of Hammurabi’s programmatic statements in the prologue and epilogue of his laws, is important for the question of the nature of the laws and the motives for recording them in writing, an issue which is relevant for the study of ‘early law’, if only because it may be considered to mark the end of that phase.

4

5

6

7 8

There is no comprehensive study of scribal education in general and of training in legal matters in particular. An important tool was a (partially preserved) handbook on seven tablets (with ca. 1600 lines in writing), which acquaints the scribe with the bilingual (Sumerian and Akkadian) terminology for drawing up all kinds of contracts and judgments (in Babylonian fashion named after its opening line), edited by B. Landsberger, Die Serie ana ittis˘u. Materialen zum Sumerischen Lexikon. Vokabulare und Formularbücher 1, Roma 1937. Only a few model contracts and court records have been published thus far. A short survey of the latter, as far as known, is offered by M.T. Roth in Journal of the American Oriental Society 103, 1983, 279 ff. Elsewhere she has published three texts used in the schools, a collection of ‘Laws About Rented Oxen’, a ‘Sumerian Laws Exercise tablet’, and a ‘Sumerian Laws Handbook of Forms’, see M.T. Roth, Law Collections from Mesopotamia and Asia Minor, Writings from the Ancient World 6, Atlanta 1995, 440-54. The same holds true for the Old Assyrian period (ca. 2000-1750 B.C.), where our knowledge of legal history is based primarily on the extensive archives of Old Assyrian traders, which comprise a wide range of contracts and judicial documents and also evidence of legislation. See for the latter K.R. Veenhof, ‘’In Accordance with the Words of the Stele’: Evidence for Old Assyrian Legislation’, Chicago-Kent Law Review 70, 1995, 1717-1744. A subsequent culmination was the so-called ‘Middle Assyrian Laws’, collected and recorded during the 12th century B.C. on a series of (originally presumably four or five) very large tablets, each with ca. 800 lines of writing and dealing with specific subjects. Of this series one complete and one rather damaged tablet and a series of fragments are preserved. See for this and all other collections of laws from Mesopotamia and their bibliography Roth, Law Collections (note 4). See for this feature, M.T. Roth, ‘Mesopotamian Legal Tradition and the Laws of Hammurabi’, Chicago-Kent Law Review 71, 1995, 13-37, esp. 19-21. See for the royal decrees aimed at restoring equity, F.R. Kraus, Königliche Verfügungen in altbabylonischer Zeit, Leiden 1984, and for decrees on other legal issues, K.R. Veenhof, ‘The Relation Between Royal Decrees and ‘Law Codes’ of the Old Babylonian Period’, Jaarbericht Ex Oriente Lux 3536, 1997-2000, 49-83.

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2

THE RELEVANT CUNEIFORM SOURCES

2.1

Survey of the sources

Written documents in early Mesopotamia, ca. 3200-1600 B.C. ca. 3200-3000 ca. 2900-2550 ca. 2650 ca. 2600-2500 ca. 2500-2350

ca. 2500 ca. 2500-2375 ca. 2430 ca. 2400 ca. 2350-2200 ca. 2110-2000 ca. 2100 ca. 2000-1600

ca. 1930 ca. 1800 ca. 1760 ca. 1740 ca. 1650

Late Uruk Period, levels IV-III earliest administrative documents, school texts, and kudurrus Early Dynastic Period I-II administrative texts, ancient kudurrus earliest royal inscription Early Dynastic Period IIIa Early Dynastic period IIIb royal inscriptions, administrative archives ancient kudurrus, earliest contracts Texts from Shuruppak: First Dynasty of Lagash archives, contracts, royal inscriptions Emetena Uruinimgina Old Akkadian Empire increasing variety of contracts, earliest judicial records Third Dynasty of Ur III administrative archives, contracts, judicial records, legislation Laws of Urnamma Old Babylonian Period contracts, judicial records, school texts, legislation, royal decrees Laws of Lipit-Ishtar (Isin) Laws of Eshnunna Laws of Hammurabi decree of Samsuiluna of Babylon decree of Ammisaduqa of Babylon

A short survey of the main sources from the third millennium B.C. is necessary, because their nature, relative frequency, first appearance, availability or absence play a role in what follows. In general we may distinguish between four different types of written sources: (a) Contracts, that is records of completed transactions of various kinds. The oldest, from the very beginning of the third millennium B.C., are a small number of inscriptions on stone (some are named after their first owner or the city where they were kept), frequently difficult to read and to understand and occasionally provided with a pictorial relief, which probably documented some kind of transfer of land (figs.1 and 2). Assyriologists call them ‘ancient kudurrus’ (kudurru is the term much later used for sculptured and inscribed ‘boundary stones’ which record land grants and

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Fig. 1.‘Blau plaque’, ca. 3000 B.C., greenish stone, ca. 16 x 7cm. Possibly recording the conveyance of a field, with a representation of the seller (left figure) holding an object which may symbolize the transfer of the property (ELTS no.11).

Fig. 2. Hoffman-tablet’, ca. 3000 B.C., inscribed black stone, ca. 9 x 9cm. Record of the acquisition of in all ca. 350 hectares (left column, top: 5 x 10 bùr + 5 x 1 bùr = 55 bùr of 6.5 hectare each; the sum of the figure in the other two columns) against payment (ELTS no.1).

similar donations) and they are accessible in a recent edition, with full comparative analysis, in two impressive volumes, published in 1991.9 They were perhaps (only a few stem from official excavations) deposited in temples, presumably not because the land (originally) belonged to that institution, but out of the wish to place these 9

I.J. Gelb, P. Steinkeller & R.M. Whiting, Earliest Lands Tenure Systems in the Near East: Ancient Kudurrus I, text, II, plates, Oriental Institute Publications 104, Chicago 1991 (hereafter ELTS). Note also the extensive review article by C. Wilcke, ‘Neue Rechtsurkunden der Altsumerischen Zeit’, Zeitschrift für Assyriologie 86, 1996, 1-67.

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records, made of stone in order to secure their durability, under divine protection. Around 2500 B.C. they are followed by the oldest recognizable contracts, at first in part still on stone, but soon mainly on clay tablets, which record that fields and houses (a little later also slaves) had been acquired from their owners by individuals against payment (in silver or copper), in the presence of witnesses.10 The largest group of tablets comprises nearly fifty contracts excavated in the ancient city of Shuruppak (the name of the modern ruin is Tell Fara, in middle Babylonia, which is responsible for the designation ‘Fara texts’), which have received much attention in recent years.11 Some sizable documents (on stone and clay) are not the primary records of transfer, but (excerpted) compilations of a series of such transactions by the same buyer. Most are deeds of sale, but there is also some evidence of exchange, donation, and perhaps acquisition of pledged real estate. In the 24th century B.C., along with these records of conveyance of real estate (among which still several very large stone documents),12 the first records of liabilities resulting from debt and guaranty appear, together with records on hereditary divisions and, again somewhat later, on transactions relating to marriage and a variety of other subjects. (b) The earliest judicial records stem from the 24th century B.C., from the Old Akkadian Period. They are court judgments in conflicts of various nature, dealing with debts, disputed sales, fugitive slaves, compensation for damage, an unproved accusation, a broken marriage promise, etc. In addition, short narrative records of proceedings, separate depositions by witnesses, and records of statements under oath and of the application of the water ordeal (a form of divine judgment)13 appear for the first time. Certain documents, recording a series of cases dealt with by the same judge or dated to the same period, apparently served as memoranda preserved in a judicial archive, to be available for future reference, presumably if the same or similar cases came up again. They probably are the precursors of a few large archives of short records of ‘concluded cases’, ‘final verdicts’ (in Sumerian di.til.la), known from the period of the Third Dynasty of Ur (21st century B.C.).14

10

11

12

13 14

The most important editions of these early legal documents are D.O. Ezard, Sumerische Rechtsurkunden des III. Jahrtausend aus der Zeit vor der III. Dynastie von Ur, München 1968 (several of which were re-edited in ELTS, see previous note), supplemented by L. Krecher, ‘Neue Sumerische Rechtsurkunden des 3. Jahrtausend’, Zeitschrift für Assyriologie 63, 1974, 145-271 (edition of 27 new records). Note G. Visicato, The Bureaucracy of S˘uruppak, Münster 1995; G. Visicato & A. Westenholz, ‘Some Unpublished Sale Contracts from Fara’, in S. Graziani (ed.), Studi sul Vicino Oriente Antico Dedicata alla Memoria di Luigi Cagni, vol.I, Napoli 2000, 1107-1133, and H.P. Martin a.o., The Fara Tablets in the University of Pennsylvania Museum of Archaeology and Anthropology, Bethesda 2001. The largest and most famous is the so-called ‘Obelisk of Manishtusu’ (an Old Akkadian king), edited and analyzed in ELTS I, 116-140, as no.40, which records in no less than 24 columns of writing the acquisition by the king of eight parcels of land, in all ca. 3420 hectares, each from several sellers of the same kinship group. Many are found in Ezard, Sumerische Rechtsurkunden (note 10). The basic edition (to which dozens of new records can now be added) still is Falkenstein, Neusumerische Rechtsurkunden (note 3).

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(c) The first official inscription in which a king records his concern with justice dates from ca. 2425 B.C. Enmetena of the state of Lagash is the first ruler of whom measures for the benefit of the impoverished, indebted and exploited (sold into debt-slavery) citizens are mentioned: He cancelled obligations for Lagash, having mother restored to child and child restored to mother. He cancelled obligations regarding interest-bearing grain loans.15

His second successor, called Urukagina or Uruinimgima, is better known for what are called his ‘Reform Edicts’, a long, fascinating, difficult and highly ideological text, in which he claims to have abolished a number of current evil practices and restored the conventions of former times, presented as the traditional values of the ancient temple community. As such he mentions a.o. the economic power of the palace over property (land and animals) of the temple and the abuse of power and exploitation of common citizens by officials and mighty men. From the cities of Lagash we wiped out the imprisonment caused by sitting in debts ... Uruinimgina solemnly promised [the god] Ningirsu that he would not subjugate the waif and the widow to the powerful.16

By these measures – certainly also meant to strengthen his position as usurper of the throne and less reformist than he would like his readers to believe – this ruler gained himself the reputation of the first ‘social reformer’. (d) The first truly legislative text finally appeared around 2100 B.C., the so-called ‘Laws of Urnamma’, the founder of the empire of Ur III, an early forerunner of Hammurabi’s Code. In a long prologue he boasts of what he has accomplished for the security and prosperity of the land and of his measures in the interest of the citizens. Among those measures he mentions putting an end to the exploitation by superiors, liberation from slavery under foreign domination, standardization of weights and measures, and protection of the weak and poor: The orphan is not delivered to the rich man, the widow not to the mighty. The man of one shekel [of silver] is not delivered to the man of one pound, the man of one sheep not to the man of one ox.

15

16

See J.S. Cooper, Presargonic Inscriptions, Sumerian and Akkadian Royal Inscriptions I, New Haven 1986, 58, La 5.4, col.IV. The expression ‘to restore/return to the mother’, in Sumerian amargi, soon became the technical term for restoring the original, good situation, in Akkadian andurarum, which is usually, but not quite accurately, translated as ‘freedom’. Latest translation in H. Steibe, Die altsumerischen Bau- und Weihinschriften, Freiburger Altorientalischen Studien 5, Wiesbaden 1982, 288 ff. Ukg. 4-5. See for a recent evaluation, P. Steinkeller, ‘LandTenure Conditions in Third Millennium Babylonia’, in M. Hudson & B.A. Levine (eds.), Urbanization and Land Ownership in the Ancient Near East, Cambridge MA 1999, 298.

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After a concluding sentence, ‘I made evil, violence, and the cry for justice disappear’, there follow the laws, introduced by ‘At that time (¶1) If a man kills, that man will be killed’, etc.17

2.2

Nature and background of the sources

Using written sources of Mesopotamian law, especially those from the early periods, we have to realize a few things. The first is that their availability depends on ‘the luck of the spade’, since every document has been excavated, professionally or not, and that they are usable only after decipherment and publication. Their availability and spread are therefore capricious, conditioned by such factors as the preference of excavators, the political climate (excavation permits; the inaccessibility of Iraq since 1990 has resulted in a massive increase of archaeological work in Syria) and the choices and chances of epigraphists. Many records still lie inaccessible and unstudied in public and private collections. Most written documents from the early period, i.e. of most of the third millennium B.C., originate from the area south of Baghdad, the region of the early Sumerian city-states. Early legal documents from other areas are rare and also those from the Sumerian core area before ca. 2500 B.C. are limited in number. Disregarding archaeological factors, this is mainly due to the fact that the recording of legal transactions in writing, apart from some exceptions, apparently started only around 2500 B.B. and remained selective during the following centuries. Filling this gap by retroprojection from later periods is risky. Notwithstanding the power of (legal) traditions, there was evolution, due to social and political developments, changes in the form and substance of law, and progressive juridification and growing professionalism of administrators and scribes. Moreover, regional differences, the legacy of the system of independent Sumerian city-states which dominated the so-called Early Dynastic Period (ca. 2900-2400 B.C.), persisted to some extent, even into the second millennium B.C. Finally, we have to live with the fact that Mesopotamian scholarship, which certainly included law, did not produce legal treatises or juridical literature. The only written sources the Babylonian schools produced and used were lexical listst (such as the series ana ittis˘u, see note 4) and model texts. Instruction and explanation of legal texts and matters apparently were an oral business, which we cannot recover. Even though schools and scribes kept and used earlier documents (e.g. precursors of Hammurabi’s Laws), there is no evidence of a historical or comparative interest, such as attested with the Hittites, where later editions of their laws record (for some revised provisions) how it had been before. Our knowledge of early Mesopotamian law and its development has to be derived from numerous practice documents with only some help from a few, rather late legislative texts, whose status as valid, binding law is still disputed.

17

See for this (incompletely) preserved corpus of laws, Roth, Law Collections (note 4), 13-22, and for a recent new edition C. Wilcke, ‘Der Kodex Urnamma (CU): Versuch einer Rekonstruktion’, in T. Abusch (ed.), Riches Hidden in Secret Places. Ancient Near Eastern Studies in Memory of Thorkild Jacobsen, Winona Lake 2002, 291-333.

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Observations on the sources

What is recorded in the earliest texts is not the beginning of law. Growing prosperity, population increase and urbanization shortly before 3000 B.C. in southern Mesopotamia led to the invention of writing as an instrument for managerial and administrative purposes, both as external memory and as a device for checking transactions and storage.18 This was the culmination of a development of several centuries, what Assyriologists call the ‘Late Uruk Period’ (ca. 3500-3000 B.C.), a period in which law cannot have been absent and must have developed, but a prehistoric phase about which we have no written information. Our knowledge of the next period, the so-called Early Dynastic Period (ca. 29002400 B.C.), is limited. The number of documents from the first centuries is small and the interpretation of the oldest ones frought with difficulties. It is only from ca. 2500 B.C. onwards that we have groups of intelligible legal documents, with a recognizable structure and formulary. But, however important, they deal with a very small range of subjects, the transfer of fields, houses, and somewhat later also of slaves. It takes another century before the variety of subjects increases and judicial records make their first appearance. But during this half millennium Mesopotamian society, as we know from the oldest administrative documents and from the list of professions and titles used in the earliest schools, was already complex and stratified. Temples, and somewhat later also palaces, had considerable bureaucratic and administrative expertise at their disposal. Many legal transactions must have taken place, rules must have been applied, adapted or developed to meet the needs of this developing society, but they escape us when not recorded in writing. To be honest, we must admit that Mesopotamia during the first half of the third millennium B.C., from the point of view of legal history is to a large extent still terra incognita. Recording the outcome of judicial procedures in writing, as mentioned above, only started slowly during the 24th century B.C. and was at first apparently restricted to specific cases, presumably conditioned by the status of the parties or the nature of the goods at stake. Such records primarily served evidentiary purposes and reflected the wish to obtain written, durable proof (which would outlast human memory) of rights acquired or vindicated by the winner of the case, in whose archive such records are usually found. But some records may have been kept in the archive of the judge(s) for future reference. Although a few of these early documents mention sanctions for breach of contract, written proof of penal laws is still missing, since verdicts were only rarely written down. The earliest legal texts, as mentioned above, are records of the transfer of real estate, fields and houses. 19 They may contain dozens of lines of writing (fig.3), most of which list the names of the seller(s) and buyer, their relatives and neighbours, and the witnesses to the transaction. But of course also the essential data of the item sold, its location and measurements, and the payment made, which usually consisted of a

18

19

See for this use of the script the fascinating book by H.J. Nissen, P. Damerow & R.K. Englund, Frühe Schrift und Techniken der Wirtschaftsverwaltung im alten Vorderen Orient. Informationsspeicherung und -verarbeitung vor 5000 Jahren, Berlin 1990. See the editions listed in notes 9 and 10.

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Fig.3. Clay tablet recording the sale of a field, ca. 10 x 10cm, Shuruppak, ca. 2500 B.C., obverse (M.P. Martin a.o., The Fara Tablets (note 11) no.97).

number of different transfers. First comes the purchase price proper (in copper or silver), next an ‘additional payment’, presumably a compensation for what has been invested in the property, and finally a ‘gift’ or ‘allotment’, usually consisting of naturalia, such as articles of food, oil, clothes, and wool. The latter are meant for the seller(s), his relatives and relations, called ‘witnesses’, but most probably to be identified as a kind of ‘secondary sellers’, who had certain links with the property and its seller(s) and had to be compensated when (part of) a family property was alienated. Next there appear three, occasionally four ‘professionals’, in house sales a ‘master house surveyor’ and a ‘street herald’, in field sales a ‘field scribe’ and a ‘manager of arable land’ (called engar.us˘ ), in whose stead a few times a ‘field recorder’ and a ‘field assessor’ occur.20 Finally there follows a group of (real) witnesses, who receive nothing, and a date.

3

REASONS FOR THE APPEARANCE OF THE OLDEST LEGAL RECORDS

3.1

Buyers, scribal expertise and evidentiary purposes

The earliest documents record economically and socially important transactions in real estate and somewhat later in persons. The fields sold (especially in the oldest records at times vast areas of land) frequently were family property, which was surrendered to others or perhaps parcelled up; the persons sold were or became slaves. 20

See for their occurrences and functions ELTS I, 237 ff.

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The always individual buyers, as far as they can be identified, frequently were wealthy persons, belonging to the local elites, such as governors, temple officials, functionaries of the palace, also scribes and traders, men but occasionally also women.21 The just mentioned professionals may have functioned as ‘neutral’ participants, presumably also in order to serve as publicity witnesses. A variety of factors may explain the existence of such texts. Apart from the importance of the transaction and the status of the buyer, the new owner of the property, and also the availability of scribal expertise must have played a role. The big temple households had practised from the very beginning a system of book-keeping for the registration of goods and persons passing through their administrative channels. It is hardly surprising that this bureaucratic expertise was in due time used also for the recording of important transactions with legal implications, presumably first and primarily by and for persons who belonged to or had links with these institutions and hence access to scribal expertise.This link and stimulus are also indicated by the fact that the earliest legal records do not yet use transactional verbs. They register, like book-keeping records, only facts: the location, size (and name) of the field, the name of the seller, the price paid, the name of the persons who received (lit. ‘consumed’) the price, the witnesses, the actions of the professionals and what they received. The oldest deeds of sale are therefore, from a formal point of view, a kind of administrative documents, memoranda; verbs which describe the transactions and sealings only appear somewhat later. But the testimony of the parties and witnesses mentioned is able to ‘activate’ these documents, whose mere existence probably already inspired trust in the facts recorded. Such a document, in particular if it was made of valuable stone, provided the person who had acquired the property with detailed and durable evidence of his title.

3.2

Public interest and the role of the government

That certain ‘professionals’ played a role in many sale transactions has been interpreted as proof of public interest, of the wish of the authorities to check and register them. Some of the officials, apart from their specific tasks (such as surveying the property, weighing out the price, or writing the official record), may also have served as publicity witnesses. The implications of their presence, however, are not very clear. If they indeed were in the service of, or represented a public institution – in Shuruppak both ‘the palace’ and ‘the city’, which comprised also the temples, are attested as such – the fact remains that, as recorded in the contract, they were paid by the buyer. This could mean that they acted at his request, but it is perhaps possible that he had to pay for the services of persons he was obliged to engage, as is still the case today with public notaries. Anyhow, their expertise guaranteed the quality of

21

See for a survey of the prosopography, Martin a.o., The Fara Tablets (note 11) 118 ff., who conclude: ‘we infer that in Fara the possibility of participating in purchase contracts was limited to a small circle of people. The occurrence in the sale contracts of officials who are mentioned in various capacities in the institutional hierarchy indicate that these elite families also wielded political power’.

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the transaction and the resulting record, which must have been in the interest of the buyer as the new owner. One may assume that the ‘master house surveyor’ and the ‘(field) scribe’ were ‘clearly responsible for the surveying, and probably also for the registration, of real estate’ (ELTS I, 237),22 but, unfortunately, nothing is known about obligatory registration and deposition of such records and the (admittedly rather meagre) evidence on their find spots does not point to a central, public depository. The fact that many buyers belonged to the urban elite, presumably with links with the temple and the palace, may indicate a connection with these public institutions with their scribal expertise and the existence of these early records. But we lack good evidence for attributing their existence to stimuli by these authorities or a growing involvement of the government in legal transactions. What is clear, however, is that such real estate transactions were made public. To quote ELTS (I, 237): ‘We can assume, therefore, that, in the context of sales, the ‘street herald’, and similarly the ‘chief herald’, were responsible for the publicity of concluded transactions, more specifically transactions which involved estate located within the city limits, i.e. houses.’ A ‘(town) herald’ with the same function also occurs in a slightly younger house sale contract from Lagash. The task of the herald or town crier was to drive into the wall of the house sold a wooden peg, which passed through a hole in the cone-shaped clay record (see fig.4), and to ‘apply its [i.e. of the transaction] oil on the side’. This publicity act may have served to ceremonially finalize the transaction and was probably accompanied (never mentioned in the records, but suggested by the name of the official in question) by a public announcement of the transfer. Such duties of a ‘town crier’ are known from various cultures, especially in an illiterate environment and in the absence of other publication media. In the ancient city of Assur, around 1200 B.C., a law still prescribed that the intended purchase of a house within the city or a field in its commons had to be publicly announced by the town herald three times within one month. Only after three city officials had made a deposition about it and confirmed that no rightful claimant had presented himself, was the sale considered valid and final.23 Driving a peg or nail into the foundations of a building was a very old custom in Mesopotamia, especially when kings dedicated a temple, which symbolized that the soil and the building were formally transferred and had become the property of the god who lived there.24 The originally uninscribed pegs were soon provided with an inscription, later also fixed into or combined with an inscribed tablet. It does not surprise that the earliest recording of the sale and transfer of houses uses the same symbolism. But it is equally interesting that while the ‘foundation-pegs’ of temples remained invisible in their foundations, the ‘peg-records’ of house sales were publicly applied and remained visible, together with the clay cone with the details of the property and the transfer. One might compare them with the Greek horoi, inscribed slabs of stone

22 23 24

This is also assumed for scribes qualified as ‘field surveyors’, appearing in slightly younger field sales from Lagash, see ELTS I, 238 under 7.11.2. See fot his law, Roth, Law Collections (note 4) 177, MAL B ¶ 6. See for this custom, R.S. Ellis, Foundation Deposits in Ancient Mesopotamia; Yale Near Eastern Researches 2, New Haven CN 1968, esp. ch.3, ‘Peg Deposits’.

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Fig. 4. Cone-shaped, sealed (middle or bottom) clay record of the sale of a house on a wooden peg, to be driven into the wall of the house sold. Girsu-Lagash, ca. 2400 B.C.

which originally served to mark off the boundaries of agricultural property, but later on were also used to identify it (and in due course also houses) as legally unencumbered (mortgaged or pledged). Finley calls it ‘a very rude way of achieving some of the purposes of the modern register of titles and deeds’.25 Similarly, while the action of the ‘town herald’ in early Sumerian cities reveals a clear interest of the authorities in who owned houses and fields in and around their city and who therefore lived in the city, his very action and the use of the peg-plus-inscribed-cone do not support the idea of a public registration of records, because the peg ritual looks rather like its archaic precursor. But this publicity act, patterned after the inscribed foundation deposits of temples, may have stimulated the recording in writing of the transfer, which was necessary to reveal data which a peg alone could not communicate or preserve for posterity.

25

M.I. Finley, Economy and Society in Ancient Greece, Penguin Books, Harmondsworth 1983, 63 f.

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4

THE DEVELOPMENT OF LEGAL DOCUMENTATION

4.1

The evolution of the legal record

Even though these records are not the very beginning of law, they do document early law. While, as pointed out above, the oldest contracts still reflect patterns of institutional book-keeping practices, they soon develop their own character and formulary, to go beyond the purely administrative desiderata. Apart from carefully recording all the facts and actions, some of the oldest records already include short ‘final clauses’. They concern the liability of the seller for undisputed ownership by the buyer and stipulate sanctions if a third party ‘retains’ the item sold, i.e. is able to assert prior rights to it at the expense of the buyer.26 That the earliest records belong to the phase of ‘early law’ is borne out by the mention of various details of the transaction and of formal or symbolic actions which accompanied it, such as the surveying of the property, the weighing out of the purchase price, the application of the peg with the clay record, the libation of water, etc. The careful enumeration of all persons who were involved and the handing over of naturalia as gifts to all those who had some relation with the property and the main seller – what we call the ‘secondary sellers’, i.e. relatives and various categories of neighbours, designated as ‘the brothers of the land who live there’ and neighbouring farmers – means that they were paid or compensated for relinquishing their rights and approving the transaction. But (part of) the goods were at the same time used for and consumed by them during a ceremonial meal which the buyer arranged for the seller and his companions. In this way he created a relation of guest-friendship, a bond which made the transfer of essential (family) property possible. The clothes and oil, as suggested by Wilcke, were perhaps meant to clothe the party of the sellers anew and to anoint them in a rite of passage.27 All this shows that these records were meant to be a faithful reflection of what happened, of what was ancient customary law, and qualifies them as evidence of ‘early law’. That these documents, notwithstanding a basic similarity, exhibit a fair measure of variation in terminology,28 is most probably evidence of local variation and perhaps also of some individual scribal idiosyncrasy. But, whatever the variation, no written record can, or intends to, give a complete report of what happened at such an occasion. And indeed, the early specimens already make a selection, because the solemn words, which no doubt were spoken on such occasions, are not reported and 26

27

28

See Krecher, ‘Neue Rechtsurkunden’ (note 10) 188 ff., ‘Die Erklärung des Verkaufers zur Haftung’, and ELTS I, 247 f., 7.12.7.1, ‘dù-clause’. In such a case the seller has to pay double compensation or offer something valuable in exchange. In house sales the fraudulent seller suffers an exemplary punishment, meant as a deterrent: the wooden peg, to which the cone-shaped clay deed of sale was attached, was now driven into his mouth, obviously because he had lied (which imply that he had declared at the transfer that the property was indeed his and was unencumbered). See Wilcke, ‘Neue Rechtsurkunden’ (note 9) 16 f., and for similar symbolic actions accompanying legal transactions, E. Cassin, ‘Symboles de cession immobilière dans l’ancien droit mésopotamien’, Année sociologique 1952, 107 ff., and M. Malul, Studies in Mesopotamian Legal Symbolism, Neukirchen-Vluyn 1988. See the survey by Wilcke, ‘Neue Rechtsurkunden’ (note 9), 37 ff., ‘Zu den Formularen’, and ELTS I, chapters 6 and 7.

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there is a concentration on facts and actions. This selection is the beginning of a gradual evolution of the written record, characterized by a concentration on what from the legal point of view is essential and leads to a simplification of the narrative account. The various categories gradually develop their own format, style and terminology and get more standardized. Many of the details and the ceremonial or symbolic actions, mentioned above, gradually disappear from the formulary, though this does not necessarily mean that they no longer took place, as is clear from the fact that some may turn up later on in ‘unusual’ or ‘provincial’ documents.29 The result, already reached towards the end of the third millennium B.C., is a record in the form of a short, objective, narrative account in the third person, in deeds of sale usually formulated with the buyer as subject (ex latere emptoris). It reports a dated transaction which has taken place, the correctness of which is acknowledged by witnesses who impress their seals on the (envelope) of the cuneiform tablet.

4.2

The role of the scribal craft

This whole process is inconceivable without the professional scribe, who was responsible for the document and who, according to the early records, was paid for his work. The evolution of the documents he produced bears witness to two complementary trends: a gradual simplification and standardization of the narrative report of the transaction and an increase in the number and variety of so-called ‘final clauses’. The latter reflect the wish to provide buyers, creditors, lessors, depositors, etc. with better and more sophisticated securities, also by stipulating fines and compensations for breach of contract, stipulations which should prevent or restrict the number of legal disputes or at least make their solution easier. Such adaptations of the written contracts, of course, were not simply scribal inventions, but must reflect the experience of litigation, whereby lessons of judicial practice and precedents were translated into new stipulations and ‘final clauses’. This may also have been the case with the ‘law collections’, which have a clear preference for difficult cases and potential conflicts, as it certainly was with the more realistic decrees and regulations of the later Old Babylonian period.30 All these legal sources document a link between judicial practice and scribal expertise, a combination of the experience and insights of the well-qualified judges and administrators of the courts of law with the know29

30

An ‘archaic’ sale from the city of Mari, perhaps from the 19th century B.C., still mentions six ‘surveyors who drove in the pegs’ (to stake out the field sold) and reports that seller and buyer ‘ate bread, drank beer, and anointed each other in the house of the buyer’ (see J.-M. Durand, MARI 1, 1982, 79 ff.). In slave sales, the ceremonial ‘bringing across the wooden staff/pestle’ of the person sold is still mentioned during the Old Babylonian period and the manumission of slaves was still accompanied (effectuated?) by anointing their foreheads, which explains why the verb ‘to purify’ (the forehead) acquired the meaning ‘to manumit’. That certain symbolic actions were continued in later times is clear from certain court records, where witnesses, interrogated whether a transaction really had taken place, may mention such actions as proof, even though they are not included in the standard formulary of a contract (e.g. the ceremonial cutting of the hems of garments of groom and bride, knotted together at a marriage ceremony, and cut on divorce). See Veenhof, ‘Royal Decrees’ (note 8), and in general for ‘final clauses’ during the Old Babylonian period, particularly rich in conveyances of property, M. San Nicolò, Die Schlussklauseln der altbabylonischen Kauf- und Tauschverträge (2nd ed.) München 1974.

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how of scribes trained in Babylonian schools in the handling of legal terminology and concepts. This development is clear proof of progressive juridification, which had reached maturity by the end of the third millennium B.C., when we are clearly beyond the phase of ‘early law’. The link between scribal education and the production of legal records is already probable for ancient Shuruppak, which yielded impressive evidence of early scribal training around 2500 B.C.31 The large corpus of ‘school texts’ discovered in this city, however, – and this is also true of comparable finds in other cities – did not contain legal texts, nor a precursor of the later legal vocabulary (ana ittis˘u, see note 4). This is not surprising, because the early scribe was primarily trained in writing and reading the difficult cuneiform script, also by acquainting himself with a number of literary compositions in his native Sumerian language. Having done that, the reading and writing of contemporary legal records cannot have presented serious problems, because at this early stage there was still hardly question of a professional legal jargon. All this changed after ca. 2000 B.C., when the Sumerian language had to give way to the Semitic Akkadian as spoken language, but traditional texts, such as legal records, continued to use also Sumerian terminology which had established itself.32 The Semitic Babylonian scribe now had to be trained in the dead Sumerian language, which entailed the study of the professional terminology and of instructive sample texts. We assume that this training in writing and reading Sumerian texts was accompanied by oral comments and instruction, also in elementary legal matters, but we have no written proof of this.

5

EARLY LAW AND LEGISLATION

Judicial experience in combination with scribal expertise in due time might also lead to legislation, at least if those wielding power or invested with authority wished to do so for practical or ideological motives. Legislation requires not only authority and wisdom, but usually also sources from which the law-giver (and his professional scribes) can draw. Judgments as precedents and contract law, both of which may include sanctions and penalties, are the most obvious sources as manifestations and applications of unwritten customary law, familiar to judges, wise men, and to those who were regularly involved in legal transactions. In Mesopotamia, as we have seen above, written contracts only became available ca. 2500 B.C. and were at first limited to conveyances; other types of contracts and judicial records only started to appear a good century later, at first in small numbers. Written records from which a potential law-giver could draw were therefore at first rather rare, limited in scope and hardly an adequate source or inspiration for legislation, in the sense of codification of prevailing customary law. But even if they could be used and supplemented by oral common law and judgments, there must have been a good reason for legislation, cer-

31 32

See for the role of the early scribes in Mesopotamian civilization, G. Viscato, The Power and the Writing. The Early Scribes of Mesopotamia, Bethesda 2000. The status of Sumerian may be compared with that of Latin as the language of traditional scholarship in the Middle Ages.

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tainly when this happened for the first time. Both factors may help to explain why there is no trace of legislation in early Mesopotamia before the end of the third millennium, even though common law must have been well developed by 3000 B.C.

5.1

The role of the city (assembly)

If we look for power, authority and judicial experience as a condition for legislation, there are two candidates in early Mesopotamia: the ruler or king and ‘the city’, that is the city assembly. The city assembly was either a plenary body consisting of (all?) free citizens or, more likely, a council which comprised the city elders, i.e. the heads of families and senior and influential citizens. Originally, in a city-state, this assembly may have functioned as an instrument of civil administration, but we know very little of its composition, authority and tasks, although ‘city elders’ occur in various ancient sources. Some rulers mention it as a platform for deliberation, but we have no formal descriptions nor texts issued by a city, and when the evidence becomes clearer (after 2000 B.C.) it serves almost exclusively as a local court of law. Regularly involved in litigation, judicial deliberation and in passing judgments (excerpts of some of which may have been kept in a judicial archive), such a city assembly must have been a mine of judicial wisdom and experience and a possible source of legislation. But while there are few indications that it took decisions, legislation by a city assembly is not attested for early Mesopotamia or later Babylonia. Only for Assur (early second millennium B.C.) do we have evidence of an important role of its city assembly (actually simply called ‘the city’), as the highest administrative body and court of law. It operated in conjunction with the ruler, who did not bear the title of king (the city god was the real king, as whose steward the ruler was counted) and who seemed to have served as its chairman and main executive officer, although in official letters and judgments he is always mentioned after the city (‘The city and the ruler passed the following judgment ...’).33 The well-documented judicial activity of this city also resulted in legislation, in the form of binding regulations engraved (=published) on a stone stele which we do not know, but to which judgments and letters refer.34 The regulations fixed by Assyrian legislation were apparently considered necessary in order to cope with recurrent legal problems arising within the framework of Assur’s sophisticated commercial activities. As such they are evidence of legal evolution and juridification in the context of international trade, but their date and substance set them apart from ‘early law’,35 while also this example of legislation by a city (assembly) is thus far unique. 33 34 35

See for the political institutions of ancient Assur and the roles of city and ruler, M.T. Larsen, The Old Assyrian City-State and its Colonies, Copenhagen 1976, 109-191. See K.R. Veenhof, ‘Old Assyrian Legislation’ (note 5). There is some older evidence for regulating trade by means of treaties, but Assur provides the earliest evidence for laws dealing with commercial activities and trade. The need for such laws arose in the period after ca. 2000 B.C., when trade became more and more an entrepreneurial activity of private merchants, working with funds of the state and private investors. In Babylonia proper Hammurabi’s Laws are the first to deal with trade and commercial credit, as a true reflection of social reality.

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The role of the king

In the city-states of Early Dynastic Sumer power and authority were increasingly vested in the local ruler, considered the appointee and regent of the main god of the city. After ca. 2500 B.C. we occasionally meet kings of larger territorial states, and still later even a kind of emperors, such as the (eventually deified) kings of the powerful Old Akkadian Empire (24th-23rd centuries B.C.) and the Third Dynasty of Ur (21st century B.C.).36 Perhaps surprisingly, none of these early rulers is known for legislation, which makes its first appearance only with Urnamma, the founder of the last mentioned dynasty of Ur, towards the end of the third millennium. This is not because these ancient rulers were not concerned with justice. They were considered supreme judges and had the god-given task of caring for the well-being of their – actually their gods’ – subjects, also by maintaining justice and equity, but for many centuries this duty did not lead to legislative activity. Apparently, early royal involvement in legal matters was of old of two kinds. First the less spectacular administration of justice by the king as supreme judge, which must have been rather natural in a small city-state with a hierarchical administrative structure. In territorial empires the administration of justice basically remained a regional or local affair, with local judges and courts, but presumably (the written evidence is rather meagre) with the possibility of appeal to the king, by whom oaths were sworn. This role of the king as supreme judge is not a prominent feature in early royal inscriptions, which usually only speak in general terms of his concern for justice. Moreover, statements that he ‘established justice in the land’ refer primarily to actions which concern the second kind of involvement, to be mentioned in the next paragraph. An exception is the inscription of Irishum, an early ruler of Assur (20th century B.C.), which dwells on judicial procedure, the curses which will befall those who give false testimony, and the help which the ruler would offer bona fide plaintiffs by granting them the authorization to hire an attorney.37 In the second place the king, appointed by the gods to take care of his subjects, would feel himself particularly responsible for maintaining equity, i.e. preventing abuse and exploitation of which the ordinary citizens would become the victim. This duty implied preventing abuse of power by officials of the state and powerful citizens, and was epitomized in statements (quoted above, in 2.1.c and d) that the king wished to protect the widow and the orphan, the poor and weak against the mighty, to establish (which apparently meant to restore) equity by redressing what was unfair and bringing back the good situation of the past. Because proclaiming the king’s will and efforts to meet this sacred duty obviously had an ideological and propagandistic value and served his legitimation, it became a favourite topic of royal

36

37

The designation of ‘emperor’ is suggested by the enormous power and almost superhuman status of some of these rulers of large, centralized empires, who were extolled in royal hymns, deified in iconography and cult and by whom oaths were sworn. See for Erishum and his inscription, Larsen, Old Assyrian City-State (note 33), 56 ff. and 184. The attention paid to the administration of justice is probably due to the fact that this inscription was placed in a monumental stone, called ‘the Stepgate’, where the court of law convened in the presence of (the statues of) the ‘seven divine judges’, who are enumerated in the inscription.

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hymns and public inscriptions. Such statements were no hollow phrases and resulted in specific measures and decrees, proclaimed with some ceremonial and recorded in the king’s year-names. While some of them may have had a somewhat more lasting effect (abolition of prerogatives and curbing the power of officials, reduction of service duties and taxes), many, and in the course of time more and more, were essentially ad hoc measures with only retroactive effect, such as the cancellation of existing consumptive debts and of arrears payable to the state, the liberation of debtslaves, and the restoration of lost property (pledged and sold to meet debt liabilities). This is quite different from legislation in the sense of creation of a collection of laws which was a rather late royal initiative. The first collection which deserves that name is the one of king Urnamma, the founder and first king of the powerful empire of Ur III (ca. 2100 B.C.), already mentioned above (2.1.d). Its late appearance and contents indicate that it was the result of a long development and may be considered to mark the end of the period of early law. Urnamma’s innovative example proved to be inspiring and during the following centuries at least three kings emulated it: LipitIshtar, a king of the dynasty Isin (ca. 1930 B.C.), which followed that of Ur III and was very keen on proving itself its worthy successor, which purpose also Isin’s collection may have served; a king (Dadusha?) of the state of Eshnunna (ca. 1800 B.C.), who produced a small corpus of nearly 60 provisions, and Hammurabi of Babylon (ca. 1760 B.C.), the first two producing laws in Sumerian, the latter two in the Semitic Akkadian. The question what these laws really represented is still being discussed, but it is clear, if only from the selective treatment of legal issues, that they were not a codification in the sense that all earlier written or oral law was brought together and codified for public use in a systematic and positive form, covering all legal phenomena. Nor did it mean that all pre-code law was repealed and replaced by a new comprehensive code. In a recent study M.T. Roth38 is inclined to assume a process of reorganization and systematization of existing law (which could result in what has been called a ‘perpetual index codification’), but hesitates to do so because of the lack of convincing evidence. And again, this does not fit the rather selective treatment of the law, the application of which is attested by contemporary contractual stipulations. While it is true that these legislative texts do not reveal how the law-givers worked and are silent on their sources, it is clear that the collection used earlier law compilations, precedents in the form of actual royal pronouncements,39 and expanded what was supplied by tradition or precedent by extrapolation and variation. But the lawgivers must also have made new regulations (which of course could have been based on existing contractual law or separate royal decrees), which were required by social and economic developments, such as (in Hammurabi’s collection of laws) provisions on servants of the crown who held palace land, on issues connected with trade, commercial borrowing, credit and partnerships, and on the status and rights of a class of well-to-do religious women (called naditum), who had to remain unmarried and

38 39

M.T. Roth, ‘The Law Collection of King Hammurabi: Toward an Understanding of Codification and Text’, in Ed, Lévy (ed,), La Codification des lois dans l’Antiquité, Paris 2000, 9-31. Which had to be abstracted and reformulated as casuistic rules to fit the format and style of the laws.

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were forbidden to bear children. Finally, we may discern a number of laws which clearly had the goal of protecting and helping those who were weak and vulnerable, either by their status or due to economic problems or natural disasters. The last category of laws, which fits the explicit goal of protecting the weak, formulated in the epilogue, obviously links up with the substance of the royal decrees which aim at ‘restoring justice’, mentioned above. Experience with such measures and an awareness of their limited effects may have lead to the making of legal rulings with a lasting effect, the implementation of which, however, is not well documented. Still, the legislative process as such, which for Hammurabi’s law collection to all appearances must have included ‘a deliberate collecting, revising, and responding to prior law’ (Roth), for lack of hard evidence remains basically unknown. And this even more the case with the earliest collection, that of Urnamma, more than 300 years older. While his legislative activity, as the programmatic statements in the prologue of his laws (see 2.1.d) show, clearly stands in the old tradition of the king’s duty of maintaining equity and protecting the poor and weak, he did not have any legislative predecessors, as as far as we know. We also know very little about the school (perhaps we should say school and state chancery) of his times as a possible source or instrument of legal recording, But he certainly could have drawn on the by then well-developed common law incorporated in the written contracts, while also his own judicial activity, especially in his capital Ur, must have supplied judgments as precedents, perhaps available in a judicial archive which is attested for other cities (provincial capitals) whose governors functioned as highest judges.40 In his case the fact that he was the energetic and successful founder of a new, centralized empire, which again (as had already been the case during the hey-day of the Old Akkadian empire) incorporated the originally independent city-states, with their legal traditions, may have provided an added stimulus. His legislation would serve the wish to prove himself the right and righteous king, by establishing and publishing a collection of legal rules which henceforth would obtain in his entire empire. If this was the case his example may have inspired Hammurabi, who published his collection of laws rather late in his reign, at a time (as the enumeration in the prologue of all the cities he then ruled proves) when he had finally established his sovereignty over the whole of Sumer and Akkad. It is not impossible that the words in his epilogue (col. xlvii: 70 ff.) that his collection of laws was published ‘in order to render judgments of the land and to make decisions of the land’, meant that ‘land’ implied the whole of the realm which the king then governed, which might suggest a link between political success and legislation. On the other hand, as mentioned above, this obviously did not mean that Hammurabi’s legislative activity made all differences in law disappear. In the realm of family law for instance, common law concerning marriage and divorce, or the share of the inheritance of the eldest son had not become uniform.41 And if absence of uniformity in combination with local/re-

40 41

Se Falkenstein, Gerichtsurkunden (note 3). It was either a double share, or a single one plus 10 percent, or simply one share, perhaps with first choice. See for these differences, F.R. Kraus in J. Brugman a.o., Essays on Oriental Laws of Succession. Studia et Documenta ad Iura Orientis Antiqui Pertinentia IX, Leiden 1969, 11 f., to which we can now add that a double share is also attested for Eshnunna. See also below, note 44.

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gional variation is considered typical for early law, then even the Old Babylonian period still exhibits traits of that phase. This lack of uniformity, finally, is related to the difficult question of the status and legal force of these early royal law collections, which is still a matter of controversy. The law collections themselves nowhere explicitly state that the rules they contain will henceforth be binding and valid and will have to be applied by judges and courts. As pointed out above (2.1.d), from a formal point of view the text is not prescriptive, but descriptive. After mentioning the accomplishments of Urnamma, the laws are introduced by ‘At that time’, followed by the first ruling, an example which is copied in Hammurabi’s collection. The rules are therefore not imposed, but stated to be in force, applied, which obviously fits the ideological goal of the text, which has to prove that during its reign justice and righteousness did indeed prevail. Two categories of persons are directly addressed in the epilogue of Hammurabi’s laws, a) (col.xlviii: 59 ff.) future kings, who are warned not to abolish or change anything and to respect the inscribed stele, and b) (col.xlviii: 3 ff.) people who consider themselves wronged. The latter are invited to listen to what the text says, followed by ‘let my stele reveal to him his lawsuit, so that he sees his case/judgment and he may calm his (troubled) heart’, and praise the king for what he did. There is therefore no order or invitation to the judges and the courts to apply these laws, which would be necessary if they were to be effective. And it has also repeatedly been observed that none of the hundreds of judgments and judicial records of this period explicitly referred to or quoted a law from this collection. Several scholars deny the laws therefore legal force and the character of a binding law promulgated by the king, and stress its primarily scholarly, literary character and its mainly persuasive and moral authority, based on the respect for the king and his wisdom.42 On the other hand, it is possible, as Roth suggests,43 that the wronged citizen who was to derive relief from reading the stele, was also the victim of the judicial system and felt that he had wrongly lost his case in court. In that case Hammurabi’s invitation to him would amount to an indirect appeal and warning to judges to apply Hammurabi’s just regulations. The much earlier ‘Codex Urnamma’, of course, could be appreciated in the same way. But its latest editor, Wilcke, considers them laws ‘die ‘an diesem Tage’ Gültigkeit erhielten und zweifellos auch behalten sollten’. He links this dating with the ceremonial dedication of the law stele (with sacrifices in the whole country), which would be its official, dated promulgation (hence his use of ‘codex’). He assumes that the same was the case with the ‘Codex Hammurabi’, which also introduced the laws proper by the formula ‘At that time’. That the words immediately following this collection, ‘the righteous judgments which Hammurabi ... established ...’ 42

43

There is an ongoing discussion of these issues which is beyond the scope of this contribution. But see e.g. R. Westbrook, i.a. in ‘Cuneiform Law Codes and the origins of Legislation’, Zeitschrift für Assyriologie 79 (1989) 201-222, and ‘Codex Hammurabi and the Ends of the Earth’, in L. Milano a.o. (eds.), Landscapes, Frontiers and Horizons in the Ancient Near East III, Padova 2000, 101-106; Roth, ‘Law Collection’ (note 38) 21 ff., ‘The effect and effectiveness of the text’; S. Lafont, ‘Les actes législatifs des rois mésopotamiens’, in S. Dauchy a.o. (eds.), Auctoritates. Xenia R.C. van Caneghem Oblata. Iuris Scripta Historica XIII, Bruxelles 1997, 3-27; and also the remarks in Veenhof, ‘Royal Decrees’ (note 8), 78-82. ‘The Law Collection’ (note 38) 20 f.

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(xlvii: 1 ff.), are the only ones to speak of the king in the third person, he takes as proof that the whole complex beginning with ‘At that time’ and ending with ‘which Hammurabi established’, are quoted from the different official inscription which would have commemorated the actual promulgation of the laws, apparently a number of years before the erection of the well-known stele.44 However that may be, irrespective of our judgment on the formal validity and binding force of the law collections, they clearly are the culmination of a long development and gradual evolution of unwritten law. It becomes tangible for us in the earliest records of conveyance, in the course of the centuries followed by more and more formal ones and by an ever increasing variety of written contracts and judicial records. They imply a growing and gradually more sophisticated expertise both of legal specialists and professional writers, which led to a gradual increase of written records, both for private persons, institutions and presumably also courts of law. This process was stimulated by the need to meet the demands of a society which was becoming more complex, in particular because alongside and at times at the expense of the ‘large institutions’, private citizens with their property, public and private liabilities, personnel, entrepreneurial activities and public offices had become more prominent and, for evidentiary reasons, wished to have their transactions, rights and the outcome of their legal disputes duly recorded in writing. This social evolution, probably in combination with the effects of a diminishing institutional protection, growing economic problems and exploitation also due to the effect of political conflicts and natural disasters, called for more legal intervention, which presented a challenge to rulers who had the duty of maintaining justice and equity and to protect the poor. The need to make people ‘follow the right course’ and to meet socio-economic problems by ‘restoring equity’ led to the promulgation of both more traditional collections of legal rules and more specific ‘decrees of equity’. And the latter, which continued the old tradition of royal measures to redress wrongs, probably also paved the way for formulating laws of equity (which may have incorporated elements of earlier decrees) with a more lasting effect. This legislative activity has been triggered or stimulated in some cases (Urnamma, Hammurabi) by the creation of new territorial states, which meant a challenge to their kings, who were probably aware of local differences in law and keen to win over or reassure their new subjects by demonstrating their concern for justice and equity. The knowledge accumulated, in oral or written form, in royal and local courts of law, in combination with the juridical expertise of professional writers of legal records and of scholars attached to the chancery45 or schools by the end of the third millennium B.C., if not earlier, clearly was sufficient for compiling substantial and 44

45

Wilcke, ‘Kodex Urnamma’ (note 17) 298 f. In note 26 he also connects the legislative activity of Hammurabi and Urnamma with the desire to promote unity of law in their newly established territorial states (irrespective of the question whether, or to what extent they succeeded in doing so.) Especially clear from the letters emanating from the chancery of King Hammurabi, many of which deal with legal issues, in particular those of sorting out, after his conquest of southern Babylonia, problems concerning the allotment and redistribution of land and the offices, status and holdings of old and new servants of the crown. More than 200 of such letters are available in translation in the series edited by F.R. Kraus, Altbabylonische Briefe in Umschrift und Übersetzung, vols.2, 4, 9, 11 and 13, Leiden 1966-1994.

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well-organized law collections. Unfortunately, the scholars and scribes, without whom the kings would not have been able to accomplish this task, and consequently also their education and how they went to work, remain unknown, since they did not describe their work and their personalities are overshadowed by the royal lawgivers in whose service they worked and whose reputation they had to promote.

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Aspects of Law and Order in Early State Societies

Henri J.M. Claessen

1

INTRODUCTION

The state is a phenomenon which first appeared only several thousand years ago. Among the oldest of these are Ancient Egypt, the origins of which go back to about 3000 BC, and Ancient China, of which the oldest sources indicate an origin about 2500 BC.1 A state is a specific kind of social organization, expressing a specific type of social order in a society. It gives expression to the existing social, economical, and political relations in that society, and to ideas pertaining to power, authority, force, justice, and property.2 The emphasis in this chapter will be on early states, the earliest forms in which the state manifested itself. Early states are not connected with a specific period of time, nor with a specific region. Early states have been documented from all over the world, and were found in widely differing periods of time. It is the structure of the organization which makes them ‘early’, and not the period of time in which they functioned. To the most recent early states belong several African cases, such as, for example, East African Buganda, the origins of which go back to the fifteenth century, and which was discovered in full bloom by the British travelers Speke and Grant in 1862.3 An early state may be defined as: A three-tier (national, regional, local level) socio-political organization for the regulation of social relations in a complex stratified society, divided into at least two basic strata, or emergent social classes – viz., the rulers and the ruled – whose relations are characterized by political dominance of the former and the obligation to pay tax (in whatever form) of the latter, legitimized by a common ideology of which reciprocity is the basic principle.4

With regard to this definition some comments are necessary. In the first place, the reciprocal obligations between rulers and ruled have, of course, an asymmetrical character. Put in a simple way, it is an exchange of goods for ‘Good’. The existence of a common ideology does not necessarily mean that ruler and rulers have an identical ideology. As long as there is found to exist a certain overlap between the views of both categories, small differences in ideology will not endanger the legitimacy (and 1 2 3

4

On Egypt and China: H.J.M. Claessen & P. Skalník (eds.), The Early State, The Hague 1978, chapters 9 and 10. Claessen & Skalník, Early State, 1978, 4. On the origins of Buganda: D.L. Schoenbrun, ‘The (In)visible roots of Bunyoro-Kitara and Buganda in the Lakes Region: AD 800-1300,’ in S. Keech McIntosh (ed.), Beyond Chiefdoms; Pathways to Complexity in Africa, 1999, 136-150; on its discovery: J.H. Speke, Journal of the Discovery of the Source of the Nile, Edinburgh 1863. Definition (with some minor modifications) based on Claessen & Skalník, Early State, 1978, 640.

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thus the stability) of an early state.5 Secondly, a sound economy does contribute greatly to the acceptance of the rulers. As long as there are available sufficient food and goods for all, the legitimacy of the government will be easily accepted and maintained.6 Thirdly, prosperity or no prosperity, great inequality is always found in (early) states. Some people, the happy few, are rich and powerful and all others, the great majority, are poor and powerless.7 In the course of time some early states developed into more mature types of state; the great majority, however, never evolved into higher or more complex forms of organization, but fell apart, collapsed, or were conquered.8 Among the main differences between early and mature states belong such characteristics as a managerial type of bureaucracy; a legal system that transcends specific office holders; appointment of officials instead of positions being hereditary; the development of a money economy (which makes salaried officials possible) , and forms of codified law and punishment.9 In this chapter the discussion will be limited to matters of law and order in early states. This formulation immediately poses the question to what extent it is useful, or possible, to employ West European legal concepts, such as ‘law’ to the ways in which the rules and measures in early states were formulated and enforced ? Would it not be better to employ the participants’ or natives’ concepts to describe and analyze these systems in their own terms ?10 This would certainly be advisable if this chapter aimed at the analysis of only one such system. But because its aim is to compare a number of early state legal systems, a broader, intercultural frame of thought is needed. This requires that the categories and concepts will be formulated in such a way that different systems of lawgiving can be brought under its headings. To what extent can we speak of ‘laws’ in early states? In legal anthropology law is usually connected with those regulations, the disregard or infraction of which is counteracted by the central government.11 In theory laws hold for all inhabitants of the state. Also, in

5 6 7

8

9 10

For differences in worldview beztween nobility and commoners in medieval Europe: G. Duby, Les trois ordres ou l’imaginaire du féodalisme, Paris 1978. D.V. Kurtz, ‘Strategies of Legitimation and the Aztec State’, Ethnology 23, 1984, 329-354. B.G. Trigger, ‘Generalized Coercion and Inequality: The Basis of State Power in Early Civilizations’, in H.J.M. Claessen, P. van de Velde & M.E. Smith (eds.), Development and Decline. The Evolution of Sociopolitical Organization ,South Hadley 1985, 46-61. Characteristics of early states summarized from H.J.M. Claessen, ‘Was the State Inevitable?’, Social Evolution and History 2002, 107-110. On problems of decline and fall: J.A. Tainter, The Collapse of Complex Societies, Cambridge 1988; N. Yoffee & G.L. Cowgill (eds.), The Collapse of Ancient States and Civilizations, Tucson 1988; M. Tymowski, ‘The Early State and After in Precolonial West Sudan. Problems of the Stability of Political Organizations and the Obstacles to their Development’ in H.J.M. Claessen & P. van de Velde (eds.), Early State Dynamics, Leiden 1987, 54-69; J.D. Toland, ‘Discrepancies and Dissolution; Breakdown of the Early Inca State’ in Claessen & van de Velde, Dynamics, 1987, 138-153. On the emergence of mature types of state: B. Guenée, States and Rulers in Later Medieval Europe, Oxford 1988; Ch. Tilley, Coercion, Capital, and European States, AD 990-1990. Oxford 1990. H.J.M. Claessen, ‘From the Franks to France’ in Claessen, Van de Velde & Smith (eds.), Development and Decline, 1985, 196-218; J. Wisseman Christie, ‘State Formation in Early Maritime Southeast Asia; A Consideration of Theories and Data’, Bijdragen tot de Taal-, Land- en Volkenkunde 151, 1995, 235-288. Claessen & Skalník, Early State, 1978, 589-593;Claessen & van de Velde, Dynamics, 1987, 4-5. P.E. de Josselin de Jong, ‘The Participant’s View of their Culture’, in P.E. de Josselin de Jong (ed.), Structural Anthropology in the Netherlands, The Hague, 1977, 233-252.

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theory, it is the ruler who lays down the laws and maintains law and order. According to a comparative study of twenty-one early states, in all cases ‘the ruler is the formal law giver’, and the same study concluded that the ‘sovereign is the supreme judge in early states’.12 Both statements need elaboration, which will be provided in the next section. Data will be presented there on questions such as how in a number of early states rules and regulations – laws – were established; in what ways such rules and regulations were brought to the attention of the people; in what ways such rules and regulations were sanctioned; and how people were made to do what was ordered. Finally I will look for similarities and differences in the systems discussed.13 First, however, some indications will be given about the way in which such rather elaborate systems of justice and legislation emerged. Every society has norms and values according to which people are supposed to behave. This is true, even though Malinowski pointed out that people do not obey the rules and regulations automatically; they often seek to escape obligations, or try to interpret the rules to their own advantage.14 As a consequence of this habit, most societies also have developed mechanisms to cope with deviant behavior. In huntergatherer societies such mechanisms are but limited. Some older men or women or the leader of the band, try to mediate in quarrels or disputes, and when their efforts have no success, one of the contending parties usually leaves the group, in the expectation to be welcome in another band.15 In practice this means that people have to redress eventual wrongs themselves, for there are no means available to exercise social control. In slightly more complex societies disputes are mainly solved by what Gulliver calls negotiation.16. Here the disputants, each assisted by socially relevant supporters, try to reach a settlement. Redress of the wrong only depends upon the skill of the negotiators. Such methods become necessary in horticultural societies. ‘While crops have to be seen to, it is no longer possible to move away for a change of scene simply because a quarrel threatens. A dispute has to be solved where it arises, in the context of continuing face to face relations, without the ready solution of im11

12 13 14 15

16

Summarized from the definition given by E.A. Hoebel, The Law of Primitive Man, Harvard 1964, 28; cf. also S. Roberts, Order and Dispute; An Introduction to Legal Anthropology, Harmondsworth 1979, 196. H.J.M. Claessen, ‘The Early State; A Structural Approach’ in Claessen & Skalník, Early State, 1978, 560. H.J.M. Claessen, ‘Justice and Legislation in Early States’, Global Bioethics 13, 2000, 45. Cf. Roberts, Order and Dispute, 1979, 25-29. B. Malinowski, Crime and Custom in Savage Society. London 1926. E.R. Service, The Hunters, Englewood Cliffs, N.J., 1966; J. Stauder, The Majangir; Ecology and Society of a Southwest Ethiopian People. Cambridge, 1971. Among Inuit the measures against notorious troublemakers are often quite drastic; G. van den Steenhoven, Leadership and Law among the Eskimos of the Keewatin District (Northwest Territory), diss. Leiden 1962, 77-90, states that among the Inuit, differences of opinion, lust for the wife of another man, jealousy, etc., will often lead to murder. The Bolivian Siriono often quarrel about food and women, but there are no mechanisms to maintain social order, as stated by A.R. Holmberg, Nomads of the Long Bow; The Siriono of Eastern Bolivia, Garden City N.Y. 1969, 150-157. Neither in the African cases, nor in those of the Inuit or the Siriono mechanisms are found to channel social tensions. For a general discussion of leadership among hunter-gatherers: H.J.M. Claessen, Structural Change; Evolution and Evolutionism in Cultural Anthropology, Leiden 2000, 85-89. P.H. Gulliver, ‘Introduction’ in L. Nader (ed.), Law in Culture and Society, Chicago 1972, 11-24.

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mediate changes in group composition’.17 A more ‘advanced’ method of settlement is found where, according to Gulliver, adjudication plays a role. Here a binding decision is given by a third party with some degree of authority. Such a decision ‘is in some way coercive in that the adjudicator has not only both the right and the obligation to reach and enunciate a decision, but also the power to enforce it’.18 Such enforcement may vary from agreement by the audience to support of an armed force. A good example of adjudication is found in Homer’s Illiad, analyzed by both Tamayo y Salmoran, and Van der Vliet19 Here a small group of elders was required to pronounce each in turn a judgment, and he who, according to the sentiments of the people, pronounced the most fair decision was rewarded. This type of dispute settlement is found to be dominant in chiefdoms, where chiefs seek a solution in disputes, and in villages, where the village head is entrusted with the settlement of the majority of disputes and transgressions of the rules.20 Thus the difference between negotiation and adjudication is the presence or absence of an overriding authority. Where adjudication is the dominant way of dispute settlement, acknowledged standards exist that can be interpreted to meet particular cases. ‘This does not mean, of course, that standards are inevitably clearly defined, or that they lack a degree of flexibility, under adjudication; but definition and rigidity tend to be greater’ than where negotiation is the dominant form.21 This implies the existence of a set of rules with which a number of people is familiar. Such rules and convictions are usually inculcated during the education of the young. Parents and family heads see to it that a general knowledge of such notions is achieved. The next ‘higher’ form of administered justice comes when an official or specialist hears the case and pronounces a judgment that eventually is enforced by his assistants. This development is characteristic of early states. Where increasing numbers of people live together on a permanent basis, the necessity arises to develop more and more rules and regulations. Studies by Gregory Johnson show that either more permanent rules and regulations develop, or the larger community breaks apart into smaller units.22 Similarly, the description by Kottak of the development of an early state among the Betsileo of Eastern Madagascar, demonstrates that when groups of people are forced by reasons of safety to stay together on a permanent basis, new forms of organization evolve, and new rules and regulations are needed to make the society work.23 In early states, where large numbers of people lived together on a permanent basis, the ruler – the central govern17 18 19

20 21 22 23

Roberts, Order and Dispute, 1979, 110. Gulliver, ‘Introduction’ 1972, 17. R. Tamayo y Salmoran, ‘The Judicial System of Litigation in Early States and the Evolution of the Legal Process’ in Claessen, van de Velde & Smith (eds.) Development and Decline 1985:311-320; E.Ch.L. van der Vliet, ‘De Wet is Koning’, in H.J.M. Claessen (ed.), Wetgeving en Rechtspraak in Vroege Staten, Leiden 1993, 9-20. I. Schapera, Government and Politics in Tribal Society, London 1956, 78 ff.; M.J. Herskovits, Dahomey, an Ancient West African Kingdom, New York 1938, vol. II, 5-10. Gulliver, ‘Introduction’ 1972, 17. G.A. Johnson, ‘Organizational Structure and Scalar Stress’ in C. Renfrew et al. (eds.) Theory and Explanation in Archaeology, New York 1982. C.P. Kottak, The Past in the Present; History, Ecology and Cultural Variation in Highland Madagascar. Ann Arbor 1980.

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ment – had the task of developing the necessary rules and directives for the regulation of social relations.

2

FOUR CASE STUDIES

In this section four cases of lawgiving and the administration of justice will be presented. The cases selected are the Polynesian island of Tahiti, where in the end of the eighteenth century several early states flourished; East African Buganda, where the situation of about 1862 – the year of discovery – will be presented, West African Dahomey, an early state known by European visitors since the end of the eighteenth century, and the realm of the Incas, that existed between roughly 1440 and 1530, when the Spanish conquistadors under Pizarro put an end to it. Ironically, it is mainly through the chronicles of the Spaniards that many data on the Inca civilization have been preserved.

2.1

Tahiti 24

At the end of the eighteenth century there existed several chiefdoms and early states on the Polynesian island of Tahiti. As the socio-political organization of these entities were to a high degree similar, it will not be attempted here to distinguish between them. The Tahitian early states belonged to the simplest type, the incipient ones, and as a consequence the judicial system was relatively underdeveloped. General ideas about norms, values, religion, and authority were inculcated upon the youth by parents and family heads. The norms and values regarded ideas relative to property, marriage, labor, rank, and privileges. The majority by far of such rules and regulations were connected with family and household matters. Lack of respect for, or the neglect of these rules, was corrected or punished by the family head, or eventually by the local leader (the head of the highest ranking family group in the settlement). Tahitians are said to be easy going people, but they seem to have reacted severely against theft and adultery, especially when the culprit was caught in the act. When in such a case the thief, or the adulterer was killed by the wronged party, this was considered to have been a correct reaction. That such killings happened frequently is rather doubtful; the British surgeon Andersen, who accompanied Cook on his third voyage, informs us that so severe a punishment is seldom inflicted, unless the articles that are stolen be reckoned very valuable; such as breastplates and plaited hair. If only cloth, or even hogs be stolen, and the thief escape, upon his being afterward discovered, if he promise to return the same number of pieces of

24

There is a wealth of literature about Tahiti. The most important work on the subject is D. Oliver, Ancient Tahitian Society, Honolulu 1974, 3 vols. Extended surveys : H.J.M. Claessen, ‘Early State in Tahiti’ in Claessen & Skalník Early State 1978, 441-468. id. ‘Ideology and the Formation of Early States; Data from Polynesia’ in H.J.M. Claessen & J.G. Oosten (eds.), Ideology and the Formation of Early States, Leiden 1996, 339-358. Claessen, Structural Change, 2000.

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cloth, or of hogs, no farther punishment is inflicted. Sometimes, after keeping out of the way for a few days, he is forgiven, or at most, gets a slight beating.25

This behavior seems more in line with the Polynesian life style than a violent reaction, but other visitors are very outspoken about killing thieves – though they never were eye-witness to such a punishment. Chiefs hardly ever interfered with the quarrels of their subjects; it was up to the wronged party to act. In case, however, of lesemajesty, or when the interests of the chiefs were involved, they acted immediately and fiercely. The most radical solution to get rid of an offender was to have him appointed a human sacrifice to the god Oro. He was then killed, and his dead body was presented to the god. Several European visitors witnessed such offerings26 In other cases the culprit got a beating. When somebody neglected, or refused, to pay taxes, he could be banished. The ruler, however, could not confiscate his land; this belonged to the family and was inalienable.27 Sometimes the rulers of the Tahitian early states also issued decisions regarding the whole population of their polity. The observance of such regulations was enforced. Armed servants of the ruler patrolled the district or state, and punished eventual wrongdoers by beating them, or by taking away their belongings. There is no doubt that these were cases in which compliance with regulations issued by the ruler was enforced. As, moreover, such decisions were issued only after lengthy consultations with advisers, members of the family, and a number of notables, and were proclaimed all over the polity by special messengers, there is no objection to speak here of laws, the most important of which were the so called rahui.28 Rahuis were proclaimed when major activities were planned, such as the building of a new temple or a number of large canoes, and sometimes for completely different reasons. For example, William Bligh relates that A stop was put to the sale of hogs in the district of Tettaha [= Fa’a’a, HC]. Teppahoo, the earee [= ari’i, HC] of that district told me that they had very few hogs left there, and that it was necessary for a certain time to prohibit every person from killing or selling, that they might have time to breed.29

Also Cook suffered from such a prohibition, during his second visit to Tahiti.30 In view of the above, it can be concluded that on certain occasions laws were issued by the ruler; that such laws had been discussed beforehand with advisers, and 25 26

27 28

29

30

Anderson, quoted in Oliver, Ancient Tahitian Society 1974, vol. II, 1058. To give some examples: James Cook reports offerings in the journal of his third voyage. In: J.C. Beaglehole (ed.) The Journals of Captain James Cook, 1967, 204, 217, 218-220; 1969, 233-234, 238. William Andersen, in J.C. Beaglehole, Journals of Cook, 1967, 978-984. William Bligh, in D. Oliver, Return to Tahiti; Bligh’s second Bread Fruit Voyage, Honolulu 1988, 123, 124, 150, 207, 231. J.A. Moerenhout, Voyages aux îles du Grand Océan, Paris 1837, 2 vols, vol.II, 8-10. Claessen, ’Early State in Tahiti’ 1978, 460-462. See on rahui: Mémoires de Marau Taaroa, dernière reine de Tahiti, Paris 1971, 60-62. On messengers: Moerenhout, Voyages, vol.II, 23, 32; W. Ellis, Polynesian Researches, during a Residence of nearly six Years in the South Sea Islands, London 1831,4 vols., vol.III, 99, 117, 122. W. Bligh, ‘A Voyage to the South Sea, undertaken by Command of His Majesty, for the Purpose of Conveying the Bread-fruit Tree to the West Indies, in His Majesty’s Ship The Bounty’ in G. Mackaness (ed.), A Book of the Bounty, London 1952, 97. Beaglehole, The Journals, 1969, 212, 213.

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were proclaimed by special messengers; that the rulers hardly ever interfered with the quarrels and problems of their subjects; redressing of wrongs was left to the parties concerned; only when the interests of the rulers were at stake did the state organization react. All in all a rather rudimentary judicial system.

2.2

Buganda

The East African early state of Buganda was first visited by European travelers in 1862 and numerous books and articles have been published on this polity since.31 At the time of discovery the population was estimated at about half a million people, and if only for this, a complex societal organization was necessary.32 At a first glance the judicial system of Buganda shows mainly disorder and uncertainties, and the impression is given that people were sentenced according to the ruler’s momentary whims, as the many incidents mentioned in Speke’s journal give reason to believe.33 On the other hand, a careful analysis of the sources makes clear that, apart from the many apparently thoughtless sentences by the kabaka (the ruler), the country had a well-structured political organization in which the Royal Council, the lukiiko, formulated laws and decisions, which, in theory, also bound the kabaka.34 It was the ruler, who in the end formally proclaimed the decisions of the lukiiko. The decisions, or laws, covered all aspects of life: adultery, appointment of functionaries, the establishment of new positions, regulations for trade and markets, prescriptions with regard of houses, clothes, and adornments. The missionary Ashe relates that at one time it was decided that every man should wear a red bead at his wrist, and every woman a string of beads around the middle.35 Neglect of this rule would be punished by death. The missionary Mackay, who lived in Buganda in the same period, mentions the same rule.36 New laws and regulations were made public by messengers who went to the district chiefs, who in their turn informed the local chiefs.37 Though the penalties in Buganda were draconic, the Baganda were fond of lawsuits and never hesitated to take legal actions against their fellow citizens.38 In all

31

32 33 34

35 36 37

38

Still unsurpassed is: J. Roscoe, The Baganda, London 1911. Important are: W. Rusch, Klassen und Staat in Buganda vor der Kolonialzeit, Berlin 1975; B.C. Ray, Myth, Ritual and Kingship in Buganda, Oxford 1991. Summary in : H.J.M. Claessen, ‘Kings, Chiefs, and Officials; The Political Organization of Dahomey and Buganda Compared’, Journal of Legal Pluralism and Unofficial Law 25/26, 1987, 203-241. Speke, Journal of Discovery, 1863, 358, 388, 412, 434, 450. Emin Pascha, Die Tagebücher, Hamburg, 4 vols, vol. I, 139; R.P. Ashe, Two Kings of Uganda, or Life by the Shores of Victoria Nyanza, London 1889, 86; F. Stuhlmann, Mit Emin Pascha ins Herz von Afrika, Berlin 1894, 189. Ashe, Two Kings, 1889, 82. A.M. Mackay, A.M. Mackay, Pioneer Missionary of the Church Missionary Society to Uganda, London 1890, 180. J.A. Grant, A Walk Across Africa, Edinburgh 1864, 244; E. Linant de Bellefonds, ‘Itinéraire et Notes d’un Voyage en Service fait entre le Poste Militaire de Fatiko et le Capitale de M’tésa, Roi d’Ugande’, Bulletin Trimestriel de la Société Khédiviale de Géographie de Caire, 1876, 73. Ashe, Two Kings, 1889, 293, 294.

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cases, whether mediations, adjudications, or law cases, the Baganda always tried to influence the judges. Especially in the court of the prime minister, the katikkiro, bribery was common: If a man thought that he was losing his case, he would endeavour to bribe the judge; if he proposed to give him a slave, he would place his hand flat on the top of his head as if rubbing it, when no one but the judge was looking; this signified that he would give the latter a man to carry his loads. If he proposed to give him a woman or a girl, he would double up his fist and placed it to his breast, to represent a woman’s breast; if he proposed to give him a cow, he would place his fist to the side of his head to represent a horn; if it was a load of barkcloths, he would tug at his own cloth. The signs were made secretly; if a judge accepted the bribe, he pronounced sentence in the man’s favour.39

To complicate matters, a distinction should be made between ‘civil’ crimes, and crimes against sacred rules. Especially in the latter case the punishments were very severe. Ashe mentions in this connection burning alive, cutting into pieces, maiming, the cutting out of the eyes, and heavy fines. In the ‘civil’ sphere he mentions heavy punishments for theft; if a thief was caught and killed, the killer would not be punished. To prevent thieving, it was the subjects of the kabaka not allowed to roam around after dark.40 Once a sentence had been pronounced, the execution was usually postponed for some time. This was intended to enable the condemned person to try to buy himself free. Friends and members of his family offered cattle and women to the judge, in the hope that the sentence would be changed, and the sentenced persons let free. It was even possible that a condemned person was paroled in order to bring together the redemption money himself.41 Evidently, redemption money was a considerable source of income for ruler and officials. Finally, a person could appeal to a higher court of justice – at least, if one was rich enough to offer sufficient bribes. As a last resort one could ask for a trial by ordeal – the outcome of which was rather unpredictable.42 The main problem in the research of the judicial system of Buganda is that it is difficult to distinguish ‘ordinary’ law cases from ‘ritual’ cases. The kabaka repeatedly condemned people to severe punishments for – in our eyes – minor transgressions. Courtiers, concubines, peasants, or nobles, nobody in the neighborhood of the ruler was safe from his whims. For seeming trivialities people were killed, maimed, or flogged. Especially the early visitors to Buganda reported on the arbitrary behavior of the kabaka.43 I am inclined to consider every violation of the rules in connection with the kabaka as ritual misconduct and as the ruler was sacred, such misconduct demanded the strictest punishments. The many killings ordered by the kabaka are explained by Ray, as ‘symbolic expressions of the king’s unique authority: the right to kill on behalf of the throne’. The king was supposed not ‘only to exercise justice and to put down re-

39 40 41 42 43

Roscoe, The Baganda, 261. Ashe, Two Kings, 1889, 293; Emin Pascha, Tagebücher, I, 137. Speke, Journal of the Discovery, 1864, 258, 386, 399; Roscoe, The Baganda, 261, 264. Stuhlmann, Mit Emin Pascha, 1894, 191; Roscoe. The Baganda, 235, 241, 341. Speke, Journal of the Discovery 1863, many places; Grant, Walk, 1864, 223, 232, 337; C. Chaillé-Long, Central Africa; Naked Truths about Naked People, London 1876, 106, 117.

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bellion, but also to kill whoever despised him’.44 It seems that in later years the excesses became less – at least later visitors do not report cases of such behavior45. This change may have been connected with a growing influence of ideas from Christianity and Islam in these years. Abuse of power was not only reported on the part of the ruler. Courtiers sent out by the king to welcome visitors behaved in a most insolent way to the villagers they met. Plunder and devastation in the villages were their normal conduct, leaving it to the European visitors to take care of themselves.46 From the above it can be concluded that in Buganda rules, regulations and laws were issued by a council, and that in minor matters the ruler decided. Laws and regulations were, if need be, enforced. Minor cases were usually dealt with by village heads, who mediated between parties. A complex judicial apparatus existed in Buganda, and adjudication, as well as law cases played a role here. Punishments often were severe. Bribery was common, and formed an important source of income for the officials. Appeal was possible. Ritual sentences and killings should be considered apart from the judicial system, however.

2.3

Dahomey

Though in some respects Dahomey and Buganda were similar – both were early African states with sacred rulers, originating in the sixteenth century, and counting about half a million inhabitants – on the whole both early states were rather different in organization, as well as in ideology.47 One of the contrasts with Buganda was the relative safety of the country, and none of the many visitors failed to notice this.48 The sacred ruler, the akhosu, was the pivot of the governmental system. He was assisted in the government by a complex organization in which numerous officials, usually called by the Portuguese name of caboceers, executed the royal commands. The first group of officials to be mentioned were the bonugan. These were appointed officials who fulfilled all kinds of administrative tasks outside the palace. They were divided, as every organization in Dahomey, into two groups closely watching each other and

44 45 46

47

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Ray, Myth, Ritual, and Kingship, 1991, 171. Linant de Bellefonds, Ititnéraire 1876, 49; H.M. Stanley, Durch den dunkeln Welttheil, oder die Quellen des Nils, Leipzig 1891, 2 vols. gives a positive view of Buganda. Speke, Journal of the Discovery, 1863, 272, 275, 280; Grant, Walk, 1864, 191, 202, 208; ChailléLong,Central Africa, 1876, 146; Linant de Bellefonds, Itinéraire, 1876, 22, 27, 38; Stanley, Dunkeln Welttheil, 1891, vol.I, 186 ff. Claessen, ‘Kings, Chiefs and Officials’ 1987 compares both state organizations. See on Dahomey: W.J. Argyle, The Fon of Dahomey; A History and Ethnography of the Old Kingdom, Oxford 1966; E.G. Bay, Wives of the Leopard; Gender, Politics, and Culture in the Kingdom of Dahomey, Charlottesville, VI, 1998; J. Lombard, ‘The Kingdom of Dahomey’ in D. Forde & P.M. Kaberry (eds.), West African Kingdoms in the Nineteenth Century, Oxford 1967, 70-92. R. Norris, ‘Reize naar het Hof van Bossa Ahadee, Koning van Dahomey’, in A. Dalzel (ed.), De Geschiedenis van Dahomy, Een Binnenlands Koningrijk van Afrika, Haarlem 1800, 184-208 (orig. 1772). J. Duncan, Travels in Western Africa in 1845 and 1846, London 1847, 2 vols.; F. Forbes, Dahomey and the Dahomans, Being the Journal of Two Visits to the King of Dahomey and Residence at his Capital in the Years 1849 and 1850. London 1851, 2 vols.; R.F. Burton, A Mission to Glele, King of Dahomey, London 1864, 2 vols.

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each headed by one of the royal ministers. Next came the owutunun, the functionaries inside the palace, who were all eunuchs.Between the bonugan and the owutunun a fierce competition existed.The third group consisted of the male military leaders, the ahwangan, who were also divided into two competing sections. Moreover, the ahwangan were closely watched by their female counterparts, the leaders of the socalled amazons, the regiments of female soldiers. These female soldiers were considered to be wives of the ruler. Because of this competitive structure the akhosu of Dahomey could easily maintain his pivotal position by playing off one group against the other. To complicate the situation, every official was moreover controlled by a ‘mother’, one of the numerous wives or concubines of the ruler.49 The relations between an official and his ‘mother’ often were tense. All categories of functionaries competed continually for the favor of the akhosu.50 The formulation of laws and regulations were a time consuming activity, during which heated discussions took place between various groups of functionaries, and between the functionaries and their ‘mothers’. Finally, the ruler decided, after having heard the arguments.51 The laws regulated a variety of matters. For example, the inhabitants of the province of Whydah were forbidden to grow coffee, sugarcane, and peanuts; other laws forbade to add a new floor to a house without royal permission, or to install wooden doors.52 Once a law was formulated, its contents had to be brought to the attention of the population. There were two methods to achieve this. One was by sending royal messengers to inform regional and local chiefs; the other was their proclamation during the yearly ritual festivals in the capital.53 As a consequence of the many laws, the repeated changes and additions to these laws, and the issuing of new ones, countless lawsuits were inevitable. As in Buganda, fines and bribes formed an important part of the income of officials and the crown.54 The majority of the offences regarded minor violations. These were judged in principle by the village head, who tried to find a solution through mediation or adjudication. In case he did not succeed, a higher official, the agorigan, came to the village, and with his verdict the case usually ended.55 Serious crimes were judged by the akhosu, or one of the higher caboceers. This usually happened in the capital; only the ruler could sentence to death.56 As during the yearly rituals in the capital a great

49

50

51 52 53 54 55 56

Claessen, ‘Kings, Chiefs and Officials’, 1987, 210-217; id., ‘The Balance of Power in Primitive States’ in S.L. Seaton & H.J.M. Claessen (eds.), Political Anthropology; The State of the Art, The Hague 1979, 183-196. Forbes, Dahomey and the Dahomans, 1851, vol., 83; vol.II, 91-107; 108-120; Burton, A Mission, 1864, vol.I, 263 ff.; J.A. Skertchly, Dahomey as it is; Being a Narrative of Eight Months in that Country, London 1874, 443. Herskovits, Dahomey, 1938, vol.II, 43. Burton, A Mission, 1864, vol.I, 181; Norris, Reize, 1800, 172. Skertchly, Dahomey as it is, 1874, 180. Dalzel, Geschiedenis, 1800, 19; P. Bouche, Sept Ans en Afrique Occidentale; La Côte des Esclaves et le Dahomey, Paris 1884, 345; A. le Herissé, L’Ancien Royaume du Dahomey, Paris 1911, 83. Herskovits,Dahomey, 1938, vol. II, 10 ff. Burton, A Mission, 1864,vol.I, 267; Skertchly Dahomey as it is, 1874, 282, 288; Le Herissé, L’Ancien Royaume, 1911, 75 ff.

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number of human sacrifices had to be brought, it was customary to keep people that were sentenced to death, till the days of the festival.57 Once a sentence pronounced, appeal was possible. In view of the limited income of the officials, efforts to change the sentence into a fine, or efforts to bribery, often succeeded.58 The punishments varied from death to confinement, while also heavy fines or corporal punishments were quite common. Neither commoners, nor high officials did escape justice. Dalzel reports several military leaders who were executed after a lost battle, and Norris mentions a rebellious minister who was sentenced to death.59 The same happened to several governors of Whydah, the harbor of the country. In cases concerning women of the akhosu, the ruler himself conducted the process, and the culprits were usually sentenced to death. In the course of the nineteenth century many death penalties were not executed, but the condemned were instead sold as slaves – which was more advantageous for the royal treasury. Summarizing, there existed in Dahomey rather formal procedures to formulate and proclaim laws. The majority of transgressions were handled by the village heads; only crimes were judged by high officials, or the ruler himself. Only the ruler could sentence to death. Appeal was possible, and bribery was quite common. In some cases people could ask for a trial by ordeal. The difference with the bloodthirsty and arbitrary customs of Buganda is striking.

2.4

The Incas

The realm of the Incas was created in a relatively short time. Between 1440 and 1490 successive sapa incas conquered a considerable part of the west coast of South America, and with the city of Cuzco as their ceremonial and governmental center, established the pax incaica over a large territory.60 The greater part of our knowledge about the Inca is based on data from the chronicles, written by Spanish conquistadors, soldiers, priests, and officials.61 The capital was connected with all the cities of the state by an extended net of highways. Along these roads traveled soldiers, great quantities of goods and food, Inca officials, and merchants. The Inca ideology was also transmitted along the

57 58 59 60

61

Burton, A Mission, 1864, I, 20; Skertchly, Dahomey as it is, 1874, 192-193, 242. Burton, A Mission, 1864, I, 277. Dalzel, Geschiedenis, 1800, 106; Norris, Reize, 1800, 123. Publications on Inca culture and history are numerous. Useful are: B.C. Brundage, Empire of the Inca, Norman 1963; Th. C. Patterson, The Inca Empire; The Formation and Disintegration of a Pre-Capitalist State, New York 1991; a substantial summary: R.P. Schaedel, ‘Early State of the Incas’ in Claessen & Skalník 1978, 93-118. Well-known, but out-of-date: L. Baudin, Zo leefden de Inca’s voor de ondergang van hun rijk, Baarn 1958. Many of the chronicles have been translated into English. To mention a few: P. de Cieza de León, The Incas, ed. by V. von Hagen, (orig. 1533). Norman 1960; B. Cobo, History of the Inca Empire, ed. by R. Hamilton (orig. 1653), Austin 1979; Garcilaso de la Vega, The Royal Commentaries, ed. by A. Gheerbrant, (orig. 1609), London 1963.

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roads.62 The main components of the ideology were in fact quite simple: the sapa inca informed his conquered subjects that he was the Son of the Sungod, and because of that he could guarantee peace, fertility, and prosperity. In return for these blessings the people had to deliver food, goods, women, and work – especially work.63 In order to enable the villagers to cope with the heavy burdens the Inca system laid upon them, they were entitled to a piece of land. This land belonged to the family, the ayllu. When a man married he received a tupu of land. When a son was born to him he received an additional tupu; the birth of a daughter brought an additional half tupu. When the son married he received his ‘own’ tupu. The half tupu of the daughter returned to the ayllu when she married. The land of the village was of old divided into three parts and the Incas maintained this custom. One part was for the ruler (the state), one part was for the Sun God (the priests), and one part was for the ayllus. It is stated that the part of the villagers was the largest one.64 Gradually the demands of the central government increased. Greatly detested was the obligation to surrender a number of young women to the Incas – the Chosen Women – to work in the accla huasi. The accla huasi were no ‘cloisters’ as many chroniclers thought65, but rather workshops, where textiles were woven and beer was brewed; moreover, some of these young women soon found themselves in the harem of an Inca noble.66 Capable young men were summoned to work for the Incas as yanacuna, a kind of national labor force, though some of the yanas made a career in the service of their overlords.67 But just as the Chosen Women, these young men were also lost to their village communities forever. With the help of quipu’s (cords in different colors in which by the aid of various knots data were recorded) all activities of the Indians were registered.68 This became especially important when the Incas made the taxpayer – the married man between twenty-five and fifty years – the basic unit of a decimal organization. Ten taxpayers were placed under a foreman, a hundred men were headed by a higher functionary, and so on. Four groups of ten thousand formed a hunu, and was headed by a tucricuc

62

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64

65 66 67 68

On the road system C. Morris, ‘The Infrastructure of Inka Control in the Peruvian Highlands’ in G.A. Collier, R. Rosaldo & J.D. Wirth (eds.), The Inca and Aztec States, 1400-1800.New York 1982, 153-172. On the transport of ideology: Morris, ‘Infrastructure’, 1982, 154 ff.; G.W. Conrad, ‘Inca Imperialism; The Great Simplification and the Accident of Empire’ in A.A. Demarest & G.W. Conrad, Ideology and Precolumbian Civilizations, Santa Fe 1992, 159-174. J.D. Toland, ‘Discrepancies and Dissolution. Breakdown of the Early Inca State’ in Claessen & van de Velde, Dynamics, 1987, 138-153. Conrad, Inca Imperialism, 1992. D. de Ortega Morejon & Chr. de Castro, ‘ Bericht und Erklärung über die Regierung des Tales von Chincha und der angrenzenden Täler vor und unter der Herrschaft des Inkas’ in H. Trimborn (ed.), Quellen zur Kulturgeschichte des präkolumbischen Amerikas, Stuttgart 1936, 247-257 (orig, 1558). J. Polo de Ondegardo ‘On the Lineage of the Yncas and how they Extended their Conquests’ in C.R...Markham (ed.) Narrative of the Rites and Laws of the Yncas, London 1873, 151-171 (orig. 1560). Garcilaso, Royal Commentaries 1963, 115-117. Cobo, History, 1979, 211-214. E.g., Cobo, History, 1979, 236-237. Patterson, Inca Empire, 1991, 81-82; cf. Garcilaso, Royal Commentaries, 1963, 85 ff.; Cieza, The Incas,1960, 146; Polo, Lineage, 1873, 116. Schaedel, ‘Early State’, 1978, 300; Cieza, The Incas, 1960, 246 ff.. Cieza, The Incas, 1960, 174-175; Ortega & Castro, ‘Bericht’, 1936, 252; C. Julien,’How Inca Decimal Administration Worked.’ Ethnohistory 1988, vol. 35, 257-297.

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cuna. This functionary thus headed 40.000 families, plus the elderly people, widows and orphans, who did not pay tax and were thus not counted.69 Maintaining the decimal system was not easy: people died, children were born, and diseases, disaster or war sometimes greatly disturbed the countings. Yet the Incas succeeded reasonably well in making the system work. Repeatedly there were new counts and divisions, and groups of people were easily changed from one group to another.70 The purpose of these efforts was of course the standardization of the taxation system. In order to be ensured of the necessary large quantities of goods and labor, the Incas prescribed that all men should marry (which made them taxpayers). Therefore, Inca officials regularly visited the villages and married the unwed young people to each other in one big ceremony.71 To be sure, the great majority of the Indians did not wait for these ceremonies, and they found partners themselves. The foregoing makes clear that the Inca state was a complex one, and that the central government tried to keep everything under control. In order to achieve this there existed two parallel bureaucratic organizations. The one might be called the governmental organization, the other the controlling apparatus. Both systems were headed by the sapa inca, who ruled the country with a small group of advisers. The governmental machinery made laws, declared war, reshuffled the population etc., the other one controlled the execution of the laws and rules, administered justice, and punished wrongdoers. The Inca laws were manifold, and often formulated in great detail. Father Cobo presents an extensive list – though certainly not exhaustive – of such laws. To give one example: The cacique [chief, HC] that killed one of his subjects without permission from the Inca was punished in public by being given certain blows on the back with a stone (this was called the stone punishment, and it was a great insult). It was done even though the Indian may have been guilty of some act of disobedience against the cacique in question. If after the cacique was reprehended and punished, he repeated the same offense, he died for it; and if this punishment was not executed due to pleas and intercessions, the Inca took the offender’s cacicazgo [his chieftaincy, HC] away from him and gave it to another.72

As also in the other case studies, the great majority of cases, and the administration of justice escape our notice. Minor cases were dealt with by lower functionaries, such as the foremen, the village heads, and ended usually in some form of mediation or slight punishment. When more serious crimes were committed, such as murder, arson, adultery with an accla, or the neglect of tax obligations, a special judge, the hucha camayoc, took over the case. These judges were feared for the harshness of their sentences.73 Not much is known about the procedures. The accused was interrogated, and in cases of doubt or recalcitrance torture could be applied. The hucha could sentence to death. Some special crimes were judged by the tucricuc cuna, the governor of the province. He judged cases such as witchcraft, crimes against the ruler, and negli69 70 71 72 73

Polo, ‘Lineage’. 1873, 155; I. De Acosta, The Naturall and Morall Historie of the East and West Indies, ed. by C.R. Markham, London 1880, 414 ff., orig. 1590. Julien, ‘How’ 1988; Ortega & Castro, ‘Bericht’, 1936, 248,252. Ortega & Castro, ‘Bericht’ 1936, 251; Garcilaso, Royal Commentaries, 1963, 22. Cobo, History, 1979, 203-207, quotation on p.204. Castro & Ortega, ‘Bericht’, 1936, 252 ff., Cieza, The Incas, 1960, 77, 165, 171.

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gence of the state warehouses, where all kinds of food and goods were stored.74 Especially the punishment of sorcerers was severe. He (she) was executed, as related by Father Cobo, ‘with much publicity, bringing together the people of the surrounding towns so that they would be present at the execution, and likewise all of his household and family were killed because it was assumed that they all knew that craft’.75 Summarizing, it can be said that the Incas had a complex judicial system. Laws and regulations were issued by the sapa inca, assisted by his council. The laws were detailed and carefully formulated. A controlling apparatus saw to correct compliance with the rules. There existed also a complex judicial organization, in which the jurisdiction of the various functionaries was precisely established. The system was strict, but reasonable

3

GENERAL ASPECTS OF LAW-GIVING

As was stated in section 1, the ruler of an early state is the formal legislator. The data of the case studies in section 2 tend to support this statement. Law-giving, however, is a complex process. To begin with, not every decree by a ruler is a ‘law’. There are decrees meant to arrange temporary matters only, or applying to just a few people. For example when a ruler states that new women should be added to his harem, this is not a law, but an order to his servants. The same holds for the directive that certain people should be invited for the next feast. Speaking more generally, incidental regulations, or regulations meant for specific people only, should not be considered laws, even if the decrees may have serious consequences for the individuals concerned.76 Laws are regulations holding for the whole population, or at least for broad categories of it.77 Various people and institutions may influence the preparation of laws; illustrations of this practice can be found in the case studies in section 2. Speaking more generally, one always finds councillors and councils, personal advisers, brothers, friends, cousins, ministers, and in a number of cases, the queen.78 In most cases of a comparative study of twenty one early states, it was established that apart from the formal advisers, numerous informal influences also played a role in the process of law-giving. In most cases, relatives of the ruler were mentioned as informal advisers, but administrative functionaries, priests, friends and the like were also mentioned in this capacity. In the case studies presented the same situation was found.79

74

75 76 77 78 79

Storage: T.N. D’Altroy & T.K. Earle, ‘Staple Finance, Wealth Finance, and Storage in the Inka Political Economy’, Current Anthropology 1985, vol.26, 187-206. Cieza, The Incas, 1960, 20, 45, 55, 112, 235, 305. Garcilaso, Royal Commentaries, 1963, 116. Cobo, History, 1979, 203. Claessen, ‘Justice and Legislation’ 2000, 47. P. Wormald, ‘Les Scripta and Verbum Regis: Legislation in Germanic Kingdoms from Eric to Cnut’ in P.H. Sawyer & I.N. Wood (eds.), Early Medieval Kingship, Leeds 1977. Claessen, ’Structural Approach’ 1978, 561. For a correct understanding, Dahomey and Buganda were not included in the comparative analysis; these states, with Tahiti, Tonga and the Incas, were included in another comparative study, H.J.M. Claessen, Van Vorsten en Volken. Ph.D. Thesis, Amsterdam 1970.

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In East African early states, such as Buganda, Rwanda, Burundi, Bunyoro, and others, the role of the queen-mother in governmental matters was great. She acted as a kind of regent as long as the ruler was young and inexperienced.80 A great influence of queens on governmental matters can also be seen in medieval Western Europe, where dominant women, such as Aliénor of Aquitaine, and the Merovingian queens Brunhild and Fredegond greatly influenced the administration of their states.81 Even in the strongly male-dominated Islamic societies queens have ruled and made laws, as appears from Mernissi’s detailed account.82 Such new laws and regulations could cover a great variety of matters. It is evident that the more an early state developed, the more the corpus of laws became complex. This can easily be seen, when comparing the cases of Tahiti and the state of the Incas. The Tahitian states were relatively simple, and the rules and regulations there were neither a coherent whole, nor systematized. The corpus of Inca laws was rather complex, covered a wide range of topics, was well organized, and carefully registered and maintained. It is an intriguing question to what extent the rulers of early states issued really new laws. It is not easy to answer this question in a general way. Quite often ‘new’ laws were not new at all, but only reformulations of already existing directives. Moreover, it would be rather impractical to change an existing corpus of laws and regulations thoroughly; complete chaos would be the result, as Hagesteijn remarks.83 Even the so-called new legal systems introduced by Visigothic or Carolingian rulers were no more than collections of existing rules and customs to which only some new, incidental regulations were added.84 On the other hand, a changing situation might make it necessary that ensuing problems would be regulated. This then was the task of the law-giver. As long as a ruler by his issuing of new laws remained within the limits of the norms and values of his society, his/her subjects would accept the new laws, because such a ruler acted in a legitimate way.85 A ruler who did not live up to the norms and values and who issued laws that were impractical or went against the prevailing morality would disqualify himself as a god-given ruler and seriously endanger his/her position.86

80 81

82 83 84 85 86

H.J.M. Claessen, ‘Specific Features of the African Early State’ in H.J.M. Claessen & P. Skalník (eds.), The Study of the State, The Hague 1981, 59-86. Claessen, ‘Kings, Chiefs, and Officials’ 1987. On Aliénor: R. Pernoud, Aliénor d’Aquitaine, Paris 1981; On Brunhild and Fredegond: I.N. Wood, The Merovingian Kingdoms, London 1994. See also: J.C. Parsons (ed.), Medieval Queenship. Phoenix Mill, Stroud, 1994. F. Mernissi, The Forgotten Queens of Islam, Cambridge 1993. R.R. Hagesteijn, Circles of Kings; Political Dynamics in Early Continental Southeast Asia, Dordrecht 1989. P. Wormald, ‘Lex Scripta’ 1979, 108. On legitimacy, see Claessen & Oosten , Legitimacy, 1996. Also: D. Beetham, The Legitimation of Power, London 1991. See for example: J.M. Gray, ‘The Year of the Three Kings of Buganda’, Uganda Journal 1950, vol.14, 15-53. A. Coissy, ‘Un règne de femme dans l’ancien royaume d’Abomey’. Etudes Dahoméennes 1949, 5-7. On the Merovingian queen Brunhilde, Wood, Merovingian Kingdoms, 1994, 170-174.

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THE MULTI-ETHNIC STATE

The fact that the majority of early states consisted of different ethnic groups added to the already complex issue of law-giving. In most cases various ethnic groups were conquered and added to the state’s existing population. This in itself did not necessarily endanger the development of a well-functioning early state, because in many cases the conquered groups had rather similar cultures, norms and values. This was the case, for example, with the subjugation of the Chincha Indians by the Incas, the conquest of the islands of the Tonga Archipelago by the rulers of Tongatapu, the main island, or the early extensions of the Asante state in West Africa; only when the Asante subjugated societies with quite different cultures did tensions become pronounced.87 Several scholars have addressed the problems early states faced with populations of a different ethnicity. Khazanov distinguishes between mono-ethnic, monolingual, and poly-ethnic early states.88 States of the first type have no problems in this respect. When similar linguistic and cultural populations are brought together into one political unit, political problems may arise, but not cultural problems. However, many early states consisted of peoples of different cultural backgrounds. This often created a paradox: As a rule, only one ethnic group in these states was occupying the dominating positions. Its upper stratum had become the ruling class of a whole state but, naturally, tended to rely on its own relations. At the same time, to strengthen the state and its power base it had to give a stake in this state to members of other ethnic groups, thus undermining their own privileged positions.89

Among the best known examples of conquerors who tried to cope with the multi ethnic society they ruled belong the Incas. They incorporated a number of Quetchuaspeaking groups from regions adjacent to Cuzco, and made them ‘Incas-by-Privilege’. They enjoyed almost the same rights as the Incas-by-Blood, and this situation facilitated their merging with the latter. At the same time, the Incas pursued a policy aimed at segregating themselves from other ethnic groups.90 The necessity for the rulers of multi-ethnic (early) states to develop means to integrate somehow the various groups is also discussed by Cohen,who points out that early states were organizations that seriously tried to constrain fission, a policy that could succeed only ‘when technology and /or material resources were sufficient to sustain large populations’, and he adds:

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89 90

On the Chincha: Ortega & Castro, ‘Bericht’ 1936, 247-257; H.J.M. Claessen, ‘Centralisatie en Decentralisatie in het Incarijk’, Yumtzilob, Tijdschrift over de Americas 1996, vol.8, 149-163. On Tonga: I.C. Campbell, Island Kingdom; Tonga Ancient and Modern, Christchurch 1992. On Asante: N. Chazan, ‘The Early State in Africa: The Asante Case’, in S.N. Eisenstadt, M. Abitbol & N. Chazan (eds.) The Early State in African Perspective, Leiden 1988, 60-97. A.M. Khazanov, ‘Ethnicity and Ethnic Groups in Early States’ in M.A. van Bakel, R. Hagesteijn & P. van de Velde (eds.), Pivot Politics; Changing Cultural Identities in Early State Formation Processes, Amsterdam 1994, 67-87. Khazanov, ‘Ethnicity’ 1994, 74. Schaedel, ‘Early State’, 1978.

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All of this implies that the state itself, once it emerges, provides the means for supra-ethnic belief systems, rules, ideology and even search for cause/effect relations or science. The state, being multi-ethnic but ordered, is dependent upon the development of supra-ethnic or universalistic rules, ideology, religion and even knowledge seeking.91

Though Cohen is certainly right, the development of such ideologies, etc. was no easy task. The discussions summarized above, suggest that the ruler of such an early state initially needed to strive to attain legitimacy in the eyes of his subjects. This, however, requires him to rule according to different systems of norms and values so that subjects of different backgrounds can identify with him. This requires a good deal of ingenuity and propaganda. It is here that religious beliefs often play a decisive role. The Frankish conqueror Clovis became legitimized in the eyes of the GalloRoman inhabitants of France once he was baptized into Christianity; this, however, damaged the traditional legitimizing concept of being descended from a supernatural being, which was held in awe by his tribal adherents.92 Jeanne d’Arc succeeded in making ‘her’ king of France legitimate by having him crowned in the cathedral of Rheims.93 Hagesteijn describes at length the decisive advantages for Southeast Asian rulers when they succeeded in introducing the legitimizing ideas for kingship, as developed in Hinduism and Buddhism.94

5

THE ADMINISTRATION OF JUSTICE

In the opinion of Roberts, the development of state organization introduced ‘the potential for making enforceable decisions from a third-party standpoint’95 In other words, governmental laws and decisions were enforced by representatives of the central government on the local, the regional, and the national level. These functionaries had the authority of their office to impose a decision on the disputants from a thirdparty standpoint. They also had the military or police power to enforce their judgments. This does not necessarily imply that these judges always used force. In the majority of the cases disputes were solved by mediatory procedures. An analysis of the data from the Early State Sample, to which are added here the African cases of Dahomey and Buganda, shows that in the great majority of cases (18 out of 23), the administration of justice was the responsibility of various kinds of general functionaries, such as village heads, and district chiefs. Only is some cases did professional judges play a role (Angkor, Aztecs, Incas, Kuba, Maurya), while in another five cases general functionaries as well as professional judges operated side by side (Capetian France, Incas, Jimma, Kachari, and Yoruba).96 As was demonstrated already in the

91 92 93 94 95 96

R. Cohen, ‘State and Ethnicity; The Dialectics of Culture and Policy’ in Van Bakel, Hagesteijn & van de Velde, Pivot Politics, 1994, 47-66. Wood, The Merovingian Kingdoms, 1994. J. Calmette, Jeanne d’Arc, Paris 1950. Hagestein, Circles of Kings, 1989; Wisseman Christie, ‘Early Maritime Southeast Asia’, 1995; cf. A. Vickers, Bali, een gecreëerd paradijs, Nieuwegein 1997. Roberts, Order and Dispute, 1979, 140. Claessen, ‘’Structural Approach’, 1978, 561.

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case studies, the majority by far of the cases regarded minor offences, and these were handled by officials at the local level. Only some types of misconduct, such as murder, arson, sorcery, or treason, were reserved for judgment by higher administrators. Usually three different kinds of misconduct were distinguished here: crimes against the state (e.g., murder, treason, failure to pay taxes, etc.), crimes against religion (violating rules surrounding the sacred king; violating temples, insulting priests, etc.), and the more ‘normal’ offenses, such as theft, adultery, or cheating with border stones. Usually different types of officials handled these types of cases. A serious problem in the administration of justice in early states was the lack of a coherent body of laws In no less than 15 out of 23 cases (again Dahomey and Buganda added to the E.S. Sample) no such body existed. This situation inevitably caused differences in judgement and punishment. It must be added that we should not overestimate the value of the supposed cases of codified laws in early states. They were often incomplete, or rather impractical, being mainly philosophical or ethical treatises.97 Wormoald, who thoroughly studied the codification of law in early medieval European states, concludes: On the whole, in spite of efforts by Carolingian kings, custom seems to have remained primary. My conclusion for Europe as a whole is thus not surprising, but nonetheless suggestive. In those areas where the use of lex scripta was not only ordained but made easy, lex scripta was indeed used. In the areas where we find similar ambitions, but more marginal assistance to the judge, there are signs of a move in this direction, but no more. In the part of Europe where both instructions on, and manuscripts of, the law are rare, there is scarcely a trace of the use of the written word in actual cases.98

In most early states people could resort to courts of appeal. This, however, was usually a risky procedure, and the chance that the quality of the administration of justice would improve was but slight. In some early states, such as those in Tahiti or in the Hawai’i Islands no possibility of appeal was mentioned at all. The rather loose, and often ad hoc formulations of the law, the lack of qualified judges, and the often heavy penalties encouraged many people to attempt to bribe officials. The case study of Buganda in section 2 contains a detailed description of customary forms of bribery. Interestingly, the custom of bribery is not mentioned for the state of the Incas. Lawgiving and the administration of justice apparently were considered here to be wellorganized and correctly applied. This is not to imply, of course, that cases of corruption or deceit were wholly unknown among the Incas. Regional administrators are known who cheated with the number of inhabitants of their regions, in order to be better able to meet the heavy taxations of the central government.99 The vast majority of offenses and disputes in early states, however, was handled by heads of families, trying to find a solution through negotiation or adjudication. When their efforts were unsuccessful, the village head, or one of his assistants, took

97 98 99

R.R. Hagesteijn, ‘Wetgeving en rechtspraak in de vroege staten van Zuidoost Azië’ in Claessen, Wetgeving en Rechtspraak, 1993, 61-63. P. Wormoald, ‘Lex Scripta’, 1977, 122-123. Julien, ‘How’, 1988. See also section 2.4 above.

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over the case. Normally matters ended there. Only when serious crimes, such as murder or treason, were committed did higher judges enter the field.

6

CONCLUSION

On the basis of the data presented, it can be concluded that in early states attempts were made to develop and maintain systems of law; law here understood as those rules and regulations issued by the central government and backed by physical force. Laws were binding on the population as a whole, though differing interpretations were possible when the transgressor held high status. Several groups and persons were usually involved in the process of preparing laws, but it was the ruler who formally decreed the laws. The promulgation of laws based on existing norms and values was not so difficult; the introduction of really new laws was. To be legitimate in the eyes of the population, laws had to be based on the prevalent norms and values. When this was not the case the central government experienced resistance. It needed to convince or indoctrinate the people to achieve voluntary compliance. Legitimacy became even more difficult to achieve when early states conquered peoples of differing cultural backgrounds. Another problem was the codification of the laws into a coherent whole. As the law was not written, control of the judicial system was difficult. Arbitrariness and efforts at bribery were therefore common. Minor judicial problems were usually solved by family heads through negotiation or adjudication. Village heads also tried to solve minor judicial problems through these methods. As state functionaries, however, they could apply force. Only more serious crimes came to the attention of higher administrative officials. It is not always clear why some forms of misconduct were consider serious crimes, and others were not, but matters with sacred aspects usually were taken very seriously. Whatever the weaknesses and defects, in early states the foundations were laid for future constitutional states, however shaky these beginnings may have been sometimes.

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A New Beginning of Law among Indigenous Peoples Observations by a Legal Anthropologist André J. Hoekema

INTRODUCTION Any study about the beginning of law needs a concept of law to understand what it is that is beginning. Obviously, legal theory and legal anthropology will use different concepts, as their formal objects of study differ markedly. In legal theory one might opt for ‘law’ as a complex of written rules, identified, enacted, applied and changed by specialized authorities according to institutionalised, rule-led practices.1 In almost any social or anthropological concept of law, however, law in this double rule-oriented sense represents a very specific type of law that, as a social institution, is connected with the world of highly organized2 societies. It is the ‘codes-and-judges’ type of law often equated with ‘Western modern law’ with its (relative) objectivity, systematic character and (semi-)autonomy against all other normative orderings of society. This type of law sits more at the end than at the beginning of law (if ever these diachronic terms make sense at all). Codes and judges, however, abound also outside the confines of this modern law. Less formal concepts of law have been developed in legal theory, e.g. those in which legal and religious/moral rules and principles are not differentiated yet often also imply a written form, like in the old Irish, Frisian, Indian, etc. law presented in this volume (a ‘code’, more of wisdoms than of statutory rules), and special authorities, not legal professionals, but perhaps priest-like ‘judges’ (M. Alliot 1980: 94 ff.). Again, to what extent does it makes sense, in an anthropological perspective, to call the social practices embodying this concept beginning law? We may skip the codesand-judges features, then, and look anew for beginning law. For example, in indigenous societies, rules in any fixed or detailed sense or even in the sense of a statement of wise sayings usually are – or rather were – absent. The same applies to ‘judges’ of any specific kind. There, however, we encounter notions about meaningful life, about regular as well as minimally acceptable conduct, about ‘our ways of doing things’, about moral attitudes of (dis)regard vis-à-vis the well-being of all. This means normative no-

1 2

Modulation on H.L.A. Hart’s concept of law in general jurisprudence. Instead of ‘highly organized’ one could name these societies ‘densely structured’ as proposed by some anthropologists (see M. Moerman 1965.) The terminology in the text stems from Fikentscher 1980: 73. On the other end of the continuum, we find ‘fragmented’ or ‘loosely structured’ societies, like segmented societies are.

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tions,3 and these are usually coupled with sanctions and with some person or group, or sometimes just the community at large, with the authority to administer the sanctions on behalf of the community. In contrast to evolutionary views, it is acknowledged now that in these loosely structured societies, religion, morals, ‘law’, etc. did not form one indistinguishable whole in which, moreover, authority was supposed not to exist. Such views were discarded many years ago, as were views of ‘primitive societies’ as in some original position, as not yet mature or complete, and of ‘law’ as a late evolutionary product (Alliot 1980, Pospis˘il 1980).4 The common view now is that some separable phenomenon to be called ‘law’ does exist from the very beginning of mankind onwards. Obviously, this view implies a broad concept of law. Fikentscher (1980: 94ff) rehearses the well-known debate over an anthropological concept of law and points to three elements: the normative, the sanction and the authorisation of some person, group or the community as a whole to administer the sanctions.5 The three elements return e.g. in the concept of law developed in recent debates among the Gitksan-Wet’suwet’en people, an indigenous people living in British Columbia, Canada: a social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force, ostracism or shame by an individual or group possessing a socially recognized privilege of so acting (Grant, 1988: 260).6 This concept of law is tied to a community or society as a whole; the privilege involved relates to a privilege to act on behalf of the community. It does not necessarily imply centralized authorities, and certainly not authorities who in Western style

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Often one encounters these notions in the form of very general wisdoms, proverbs or admonitions, like the saying among the Quechua people of Ecuador: ‘Do not be lazy, do not lie, do not steal’ (ama quilla, ama llulla, ama shua), a formula also contained in the recently revised Ecuadorian Constitution (art. 97). Although one may write down these ceremonial wise sayings like Moses did with the Ten Commandments, or as was done in 13th-century Spain (Las siete partidas; see Zion 2002: 77), they hardly give us any clue as to what conduct is perceived as irregular. To find such clues, one has to inspect social life in the day-to-day practices of the people themselves as well as the practices of some local authority, who rhetorically resorts to these wisdoms to persuade the audience to accept the imposed view as to the way disorder might be defined and reacted to. It needs caution to distill more or less general norms from these practices, let alone relatively detailed rules: ‘to describe the usual practice in this fashion, as if they were laws, is itself a distortion. ‘Customs are better understood as a living, negotiated tissue of practices which are continually being adapted to new ecological and social circumstances – including, of course, power relations’ (Scott 1998: 34). M. Alliot (1980: 197 and passim) convincingly sketches the choice – as he calls it in opposition to theories that declare social development as a blind unfolding of events – made by such societies not to allow their ‘legal’ practices to get out of hand, viz. to keep them on a low institutional profile so as to minimize chances for enduring power to take hold of that society, and to ward off centralizing tendencies. He also stresses the element of method in the way law (in this sense) is administered, as well as a notion of time. This concept widens Hoebel’s anthropological notion of law, in that it stresses also ostracism and shame as mechanisms that provide for the maintenance of local order. As to the famous notion of the individual or group having the acknowledged privilege of so acting, derived from Weber, it covers a very wide field, certainly not only of those groups (‘staff’ as Weber has it) that in a Western style are legal specialists. Neither does it refer only to some other kind of distinct personal and more or less specialized authority. Even where, in case of a disturbance of the order, the tacit knowledge exists that a group or (small) society as a whole has the ‘privilege’ of bringing force to correct

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possess a durable mandate to rule. Authorities of indigenous societies, if present at all, usually execute their job through a constant process of actively searching for support from the people and/or ‘the elders’ or heads of subgroups. Their care for the well-being of the community is continually tested. Also, much of the task of keeping order is ‘delegated’ (sometimes even in written form7) to the (extended) family acting as a kind of first instance. Law, in this broad sense, is around everywhere and has been since time immemorial. We do not even dimly catch sight of any beginning, unless I choose to define a beginning of law of my own making, suitable for this article about some tendencies in indigenous law today. Let me therefore define a beginning of law as the arrival of a more formalized and specialized social structure of law and its administration: the rules-and-judges kind I referred to earlier.8 With regard to the element of ‘formal’, a multi-layered concept, I want to refer to a manner of organizing decisionmaking in which a ‘higher authority’ issues rules that other authorities are supposed to follow as loyal to the letter and spirit as possible. So I stress some form of division of labour, a division which implies an attempt to lay down the rules in a relatively unambiguous way. Such a legal order detaches itself somewhat from other ordering devices of that society and obtains a somewhat more autonomous, objective and perhaps even systematic character. Indeed, indigenous societies and their law have been passing precisely this threshold for about 20 years. It is true that already for a century or so many oral or at least less differentiated societies or communities have been changing into more differentiated and literate ones (Roberts 1984: 2), but this tendency has shifted now into high gear. Retrieving and writing down its proper law

7

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the wrongdoer, Weber’s concept would apply (Kronman 1983:30). Fikentscher (1980: 105) also warns not to perceive of ‘authority’ only as a person or group. In borderline cases, the community as such can possess the authority to act upon wrongdoers. An intermediate case is that of a segmented society like the Wayu in Colombia, who do not know standing authorities but deal with serious disturbances by way of more or less fixed schemes of compensation to be paid between clans, negotiated with the help, if need be, of special go-betweens (see Perafán 1995). In this latter type of society, a complex of institutionalised rules does exist along the lines of which some disturbances of the peace are dealt with authoritatively on behalf of the community. This adapted Hoebel concept of law therefore covers widely different societies, including loosely structured ones. In a recently drafted ‘code’ of the Aguaruna-Huambisa people of the north of Peru, divided into a large number of communities, it says in the first title, first article: every member has the right to solve upcoming problems in the family. Should he not be satisfied with the solution found there, he may resort to the chief of his village. As a last resort, he may turn to the general assembly of all the community members. (Espinosa 1995: 251. Espinosa gives the full text of the reglamento interno aguaruna-huambisa). See Rendon Escobar (1996) for an analysis of this code and its social context. ‘Rules and judges’ are to be interpreted broadly, including the formulation of principles and wisdoms and judges whose task is not necessarily separated socially from many other matters of public authority. In the case of principles and non-specialized judges the concept of ‘formal’ is less of a logical kind and more of a material kind. In choosing my concept of beginning law, I follow the steps of some of the authors of the important volume edited by Fikentscher, Franke and Köhler (1980): Entstehung und Wandel Rechtlicher Traditionen (The Rise and Change of Legal Traditions), who define the beginning of law as the rise of a more formal, more authoritarian structure of law and its administration (op cit: 26). In the conference from which the present volume originates, the convener, Feldbrugge, used a similar concept of beginning law with elements like written rules, professionals, law-makers and the like.

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and its system of various specific authorities – law of governance – is rapidly gaining ground in these societies. And so is a more specialized and bureaucratised way of administering justice.9 It is this new beginning, mentioned in my title, that I want to make the theme of my article. Among the various circumstances that make for this new beginning, some of a long-term nature, others rather ad hoc or short-lived, stress will be put on one specific development: the incorporation or – which is not the same – the recognition of indigenous law as part of a national legal order that rests on quite different views of a good and just society. In a way and to different degrees, indigenous law and its way of dispensing justice are now taken more seriously than 20 years ago. But the very incorporation and – to a lesser degree – recognition – or the fight for it – produce a mighty drive towards some form of codification, thereby reinforcing long-term tendencies towards the formalization of indigenous law and justice. Assies (2001) is one of the few authors to have tackled this point recently. There is something of a paradox here: the moment indigenous law finally is legally (and politically) respected in its distinctiveness, that same indigenous law and justice are pushed towards the dominant (Western) state model of law and justice. It remains to be seen whether or not these peoples manage to control this process themselves and whether or not they come up with a synthesis of their own making between the outside system and their own. This paradoxical possibility is the theme of my following notes, ordered in four sections. The present position of indigenous peoples, the ‘Fourth World’, is alluded to in part 1. The differences between incorporation and recognition of indigenous law in the national legal order are sketched in part 2, and different forms of codification in part 3. Part 4 is dedicated to a possible new beginning of local law as the paradoxical result of its new ‘partnership’ in the national legal order.

1

INDIGENOUS SOCIETIES AND THEIR CAUSE

In the last 20 years, an internationally oriented indigenous movement has sprung up, probably as a reaction to an almost unbearable pressure leading to a literal or figurative wiping out of the distinct features of these peoples. Many indigenous peoples in the world mounted strong rallies, political action and marches. They occasionally toppled governments (Ecuador) and stood up for their right to be different, to be respected as such, and to be protected in their means of survival. Slowly, in various states around the world, at least on the legal and rhetorical levels, the usual marginalisation as well as policies of assimilation have given way to forms of recognition of the legitimate presence of an indigenous people as such and their rights to ancestral territory. In several instances, recognition has also extended to the right to enjoy some degree of self-rule and to develop and maintain proper institutions of law and justice. This latter form of recognition goes further as it implements a right of self-de-

9

We should not forget the fact that these processes of formalizing of tribal administration of justice, sometimes mimicking colonial and post-colonial state institutions, were reported already some time ago, e.g. by Holleman (1979: 119-120) regarding Shona courts in the 1930s in what is now Zimbabwe (at the time Southern Rhodesia).

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termination, albeit invariably in the restricted sense of only within the confines of the dominant state. Notably but not exclusively, this process of formal recognition has happened in Latin America. Bolivia, Colombia, Ecuador, Guatemala, Nicaragua, Panama and Paraguay come to mind first. We are witnessing the same tendencies in Peru after the fall of president Fujimori. In other parts of the world, like Norway (Sámi), Canada (Inuit and Indian peoples), the USA, Denmark (the Inuit of Greenland), and the Philippines, similar tendencies can be observed. It stands to reason that having constitutionally supported rights and some political leverage do not necessarily change a lot on the ground. Experts on the constitutional reforms in favour of indigenous peoples in Latin American countries are very reserved about the pace and depth of the implementation of the ambitious schemes (Assies, Van der Haar & Hoekema, 1999). Van de Sandt (2002) recently verified in how many ways regional and national bureaucrats and elites are effectively thwarting any progress in consolidating indigenous self-rule in Colombia.10 Nevertheless, the new national legal structures – much less so the political ones – offer some opportunities for these indigenous peoples to bolster their claims, try to solve some of their internal problems and redefine their distinct identity. Some scholars interpret this process as giving new impetus to ethnic (re)organization, a concept developed in the footsteps of Frederic Barth (1969) and destined to show how ethnic groups are not isolated cultural entities but products of processes of identification by the members through which they generate and maintain boundaries with other groups. This process of formal recognition is gaining support from international law in the making. The UN-based working group on indigenous populations11 has produced a draft declaration on indigenous rights – the fruit of 10 years of debate and haggling among indigenous and state representatives. Although we have to wait for its official approval by the UN general assembly and its status almost surely will not be one of binding law, the declaration has a bearing for our theme as it reinforces considerably the indigenous quest for – inter alia – recognition of their proper system of law and justice.12 It is to this formal process of recognition that I shall turn shortly (part 2). Not all societies struggling for recognition as such can boast the political and legal label of indigenous populations. They therefore lack the international legal backing of their cause. Such is the case for many other ethnically, culturally and so-

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He comes (op cit. 14) to the following conclusion: ‘it must be concluded that in Colombia the adoption of the 1991 constitution thus far has not produced a structural transformation of relations between indigenous peoples, the state and non-indigenous society – at least not in the sphere of property, economy and development. The prevailing political regime (...) has retained basically its imbalanced and exclusionary characteristics (...).’ The term peoples is carefully avoided to prevent taking sides in the fierce political struggle whether or not indigenous populations are peoples in the sense of – inter alia – the New York 1966 treaties providing that all peoples have the right to self-determination, which could involve statehood. In the Organization of American States (OAS), a similar draft is in the making with better chances for politico-legal success. The well-known ILO (International Labour Office) convention 169 also provides for the formal recognition of indigenous law and justice and is binding national law in about 20 states, including many Latin American ones.

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cially different societies within the territory and political organization of some dominant society, ranging from the Roma in some European countries to pastoral or agropastoral societies in many African and Asian countries. Normally, these groups keep suffering a distinctly subordinate position. In some instances, however, national constitutions like the one of federal Ethiopia provide, at least on paper, a strong case for minority nations, nationalities and peoples13 to acquire some form of self-rule. These peoples are not excluded in my essay, but there is not much of incorporation and even less of recognition of their law in a national system, while the beginning of law in the sense of this article is hardly to be observed there, let alone linked to a process of official legal supporting of its law.

2

FORMAL INCORPORATION AND RECOGNITION OF INDIGENOUS LAW AND JUSTICE

Formal recognition of indigenous law and justice comes in many forms, nicely discussed in Morse (1988). Following Woodman (1999) as well as Svensson (1999 and 2000), I would like to distinguish: – Incorporation of some specific practice into national law, and – Recognition of the social and formal-legal existence of a complete body of distinct law and procedure.14 As a special case I will deal with co-management, an indirect form of incorporation of indigenous institutions in the set-up of the state and administrative practice. Incorporation refers to a re-statement within the dominant state law of a specific indigenous institution like communal land or resource tenure, or of a specific conflict-resolving institution like the ‘traditional chief’.15 Usually, state law in my cases refers to a Western-style law, either European-continental or the Anglo-American common law type, and therefore incorporating aboriginal institutions means redefining them in Western legal terms. For instance, in communal tenure, the collective subject holding rights is translated into alien forms like a cooperation, group ranches (Fratkin 1997) or common land associations as provided for in the Uganda Land Act of 1998 (Mwebaza 1999; see also Okoth-Ogendo 2001: 3). This is often done without much concern for the nature of local institutions, and in this sense this process of incorporation is not much different from, e.g., Dutch colonial schemes in the former Dutch Indies to encapsulate and codify Indonesian adat into Western legal concepts, a policy discarded completely in 1928 in favour of a dual system (Strijbosch 1980: 33; Griffiths 1986; Fasseur 1992). And even when it is done more carefully and open-mindedly, this process inevitably transforms local law deeply, as e.g.

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The three terms are used concurrently in the Ethiopian Constitution every time a clause refers to the legal position of minority groups. (Minority is a misleading term as some of these peoples are rather numerous in population.) Woodman (1999: 24) by the way prefers a different terminology. He calls the first category recognition and the second self-determination for the non-state population. See a special issue of the Journal of Legal Pluralism and Unofficial Law 1996 dedicated to the future of the institution of African chiefs and other traditional leaders.

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Schreiner (1998: 72-75) shows for Australian aboriginal concepts of their relation to land and territory as well as concepts of aboriginal procedure.16 As incorporation, I also qualify those systems in which the national judiciary applies customary law on the basis of an official rule, as in the case when some official law says that in civil cases between indigenous persons, judges shall apply indigenous custom without specifying it further.17 Or take the example Woodman (1999: 27) gives for Ghana where the 1986 Land Title Registration Law provides for the conversion of customary rights in land into registered state secured rights without, however, forcing these customary rights into the categories of the English common law of land. In this type of incorporation, there is no direct transformation of local legal sensibility into Western categories. Indirectly, however, in my view the courts or the registrars keep thinking in categories and rules that mimic those of the West. Often, the authorities in charge cannot conceive of any other approach or even deliberately favour forms of transformation of local law into national law. More so than in the case of recognition, a strong test is applied by the judges, the law-makers, or the registrars as to the acceptability and understandability of local norms and procedure. By using old (colonial) and nowadays new repugnancy clauses and under the almost automatic urge to make this alien law understandable for the Western ear, not much is left of the specific features of local law. In these examples of incorporation, local indigenous law does not have legal existence or validity in and of itself. It stands in need of being validated by national courts or legislators. This again opens the door for forms of test or control on the content and form of local law. The same goes for decisions taken by indigenous public authorities if these decision-making institutions have been incorporated into the national order of public administration, e.g. as a distinct level of conflict resolution. These decisions do not have automatic standing as producing legally binding orders; they need to be scrutinized and affirmed (homologated) by national legal or administrative officials. As to the potential effects of incorporation on local law and society, it seems highly likely, therefore, that any incorporation entails a mighty push towards specific rule-making and codification of those rules as part of the dominant legal order. This is not necessarily the case in the other category to which I turn now. Recognition usually takes the form of a far more general grant of jurisdiction as has been made in Colombia and to a lesser extent in some other Latin American countries. A complete complex of law, law-making and administering institutions is recognized as part of the national legal and political order. This grant almost by definition is part of a far broader process of political recognition which leads to forms of self-rule. In Colombia by order of the Constitution as implemented by the Colom16 17

See also Woodman’s (1999: 26-27) account of the fundamental misunderstandings between Aboriginal legal sensibilities and the Australian Western one. This by the way has been the usual way for colonial powers to accept some parts of tribal law as the official law of the land. In the Southern Rhodesian African Law and Courts Act of 1937, it was provided that courts will be set up to decide civil cases between Africans in accordance with African law and custom and in conformity with its traditional practice, procedure and law of evidence. (Holleman 1979: 117)

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bian Constitutional Court, indigenous communities enjoy autonomy (self-rule) in the development and administration of their own law. Decisions of local authorities have the same legal force and standing as those of, say, municipal or other official authorities. Decisions in matters of (ir)regular conduct, following the standard local procedures, are automatically valid in national law, too.18 This system entails enormous consequences for legal theory. Indigenous practices as restated by their officials either in law-making sessions or in the form of resolving disputes are an official legal source in national law. This manoeuvre to accept indigenous law more or less wholesale as an integral part of national law is a risky one in the view of many members of the national elites. Not only in the quiet realm of legal theory but more importantly in the turmoil of politics and social relations, the matter is hotly contested. As Morse (1988: 110) observes: ‘ it may (...) be viewed as very threatening by significant segments of the general society – not to mention the legal profession.’ One may appreciate the tensions Morse signals by contemplating some fiercely contested judgments by the Colombian Constitutional Court. A key point in any such scheme of parallel jurisdictions is the matter of personal competence. The Colombian Constitutional Court bravely ruled that an indigenous person cannot opt not to be judged by ‘his own’ indigenous court, a point that opens the door to the difficult question of who can be qualified as indigenous. But far more significant is the modern ‘repugnancy’ test, which not only haunts systems of incorporation but also those of recognition. Normally in constitutions like the one in Colombia that officially authorize indigenous jurisdiction, it is said that these local decisions must not contradict ‘the constitution and the laws of the Republic’ or similar phrases (see the overview of the Ecuadorian and Bolivian drafts in the appendix).19 The Colombian Constitutional Court just interpreted this clause almost away in a very courageous step.20 It said that taking this clause literally would amount to wiping out any space for a distinct local legal jurisdiction. In a bold move of interpretation, they did away with the part referring to ‘the laws of the Republic’, stating that the constitutional formula ‘cannot include all constitutional and legal rules. If this were the case, recognition of cultural diversity would only be rhetorical.’ The court then went on to restrict the scope of the ‘not contradicting’ formula even more. It referred to a principle of maximal autonomy for indigenous peoples as enshrined in the various constitutional clauses about these peoples and the respect that

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This requirement of homologation is absent in schemes of recognition as may be appreciated also by inspecting the examples of the two draft laws with which recognition of indigenous jurisdiction will be regulated in Bolivia and Ecuador. See the appendix at the end of this article. Article 246 of the Colombian Constitution reads: ‘The authorities of indigenous peoples can exercise judicial functions within their territory in conformity with their own norms and procedures provided these do not contradict the constitution and the laws of the republic. (...)’(my translation, ajh) I should mention here briefly the fact that in this country a special constitutional court deals with complaints about the unconstitutionality of any act or decision by public authorities. This system is based on an action called the tutela. In recent times Carlos Gaviria Díaz acted as president of this Court and promoted many of the most important sentences. See Assies 2002a & b for an incisive analysis of the relevant judgments of the Court..

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was due to them.21 ‘The principle of maximization of autonomy is entirely relevant to this point. We are talking about purely internal relations, the regulation of which, to a large extent, is the foundation of cultural identity and group cohesion. The limits which are placed on the way in which internal control is exercised shall therefore be the minimum. They shall apply to what really is intolerable for putting man’s most precious possessions into jeopardy’ (cited after Roldan 2000: 122, from sentence T 349/96, Aug. 8, 1996).22 The Court delivered a sermon to Colombia professing that ‘in a nation where cultural diversity is recognized, no world view can prevail over the other, let alone attempt to dominate’ (T 496, Sept. 26, 1996), thereby sweeping away the usual politicoliberal view that e.g. the full catalogue of human rights in its current interpretation automatically has precedence over any indigenous practice. But the Court also rejected a fully relativist position as to ethical standards embodied in the standard human rights (T 254/94, May 30, 1994). Four basic principles of universal human rights are left as the yardstick by which the Court tests the constitutionality of local decisions (see also sentence T 523 from October 15, 1997): the right to life, the right not to be enslaved, the right not to be tortured, and finally, the right not to be judged according to rules or criteria that are completely new and unforeseeable for a defendant. The Court called this last one the criterion of the legality (legalidad) of the local decision: could the party or parties foresee the main thrust or tendency of the decision or, as the case may be, the type and amount of punishment that the indigenous authority meted out? One may draw a parallel here with some form of ‘due process’ clause. The condemnation of someone who committed homicide to 10 years’ imprisonment in a ‘white’ prison was struck down by the Constitutional Court on the ground that normally such events are punished with about 3 years of community labour. The Court invited (read: ordered) the indigenous authority to try the case once more, or to leave it to the national justice system. Obviously under this generous system, local decisions and procedures are upheld that in some quarters of the Colombian society arouse mixed feelings, such as corporal punishment (whipping) or banishment from the territory with expropriation of possessions, both punishments forbidden in the human rights catalogue of the Colombian Constitution (as well as in binding treaties) but upheld in a tutela procedure by the Court. This article is not the place to discuss the merits of this jurisprudence (see Roldan 2000, Assies 1999 and 2002a & b, Hoekema 2001 and Sanchez & Jaramillo 2000). Suffice it to show what demarcation problems confront any society opting for legal recognition of indigenous law.23

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The Court also constructed an indigenous people as a collective subject of its own kind, and not just as an aggregate of subjects who share the same rights or interests. On this basis a collective right of these communities is recognized, viz. the right to maintain and be protected and respected in their singularity. Easy access to this jurisprudence has been secured by the efforts of Willem Assies and Rosa Guillèn from the Colegio de Michoacan, Zamora, Mich, Mexico, to compile the relevant judgments. They can be obtained through [email protected] This not the place either to elaborate on the view of many indigenous leaders who vehemently reject any such attempt from society at large to dictate the way they are to conduct their own business.

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Conflict rules Many of the Colombian examples refer directly to a new category of formal legal rules to be developed either by the national legislator or by courts: conflict rules. Although the recognition of local law implies the recognition of a right to self-rule, state interference in local law and justice is not absent at all. On the contrary, these decision-making powers as a matter of observable fact used to be hedged in by a plethora of what I would call conflict rules, taking the analogy from international private law. Such rules are part of national law and define the scope and limits, the personal and material competence of the indigenous jurisdiction as well as the procedures to solve problems of ‘mixed’ cases24 and conflicts over jurisdiction. Among these conflict rules, those providing for a test of the constitutionality of indigenous law and decision-making are a moot point, as is amply illustrated by the Colombian example. In Appendix I provide a full comparison regarding possible conflict rules which are in the making in Bolivia and Ecuador. (More about these drafts in Hoekema 2000, Assies 2002b and Trujillo, Grijalva & Endara 2001.) In these two countries a scheme of formally installing autonomous indigenous jurisdiction is well under way (with more chances of being effectuated in Ecuador than in Bolivia). Draft laws are circulating as to ways in which local jurisdiction can or should be integrated into the national legal order and justice system. This Appendix serves as a lesson about the breadth of legal reform and legal regulation which forces itself upon any state that takes indigenous law seriously and wants to recognise it. Politically speaking, this is a delicate affair. Therefore, through the instalment of strict tests and restrictions, political pressure from the state’s elites is put to rest. It should be stressed, however, that conflict rules mainly regulate sensitive matters of ‘criminal procedure’, punishments, and (other) individual human rights. To a lesser extent, we encounter such rules in matters of a ‘civil law’ nature, e.g. matters of land tenure and the practices with which local communities regulate matters in this respect. The impact of conflict rules on the local society might therefore differ regarding specific domains of activity. As we shall see below, these modern repugnancy clauses in schemes of recognition force local law and justice to open themselves up to scrutiny from a constitutional court as well as from scholars of all kinds. In self-ruling indigenous legal systems, there is no such thing as jurisprudential sovereignty.25 Before entering into the various ways of codification, yet another way of ac-

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Mixed cases usually arouse marked tension, e.g. in cases where non-indigenous persons are tried by indigenous courts. USA jurisprudence is complicated in this respect, but as a rule we perceive a strong reticence as to officially accepting such ‘subordination’ of non-indigenous Americans under Indian jurisdiction. Paul Spruhan shows this e.g. in the matter of the personal jurisdiction by Navajo courts over nonNavajos, in the case at hand a non-member Indian. Although the Navajo Supreme Court developed its own criterion, based on Navajo custom, including this person within its jurisdiction, it is highly likely that this contradicts federal decisions. As federal courts have the final decision, this is clearly an example of a lack of ultimate sovereignty. See his case note on Means versus District Court of the Chinle Judicial District, in The Journal of Tribal Law, volume 1, fall 2000.

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knowledging if not incorporating indigenous and local institutions has to be mentioned: co-management of resources. Co-management of resources Even in cases where indigenous claims for full control over ancestral lands have failed, forms of power-sharing between national governments and indigenous authorities abound. Particularly in Canada and the USA, schemes of co-management of natural resources like forests, wildlife, wetland and dryland grazing areas run into the hundreds. Elsewhere, they are also fashionable, e.g. when a state is not willing to let go of control over these resources – often so-called common pool resources26 – but is prepared to share some powers with local users (stakeholders). The typical structure of these schemes allows the local people to officially recommend (in rare cases to co-decide about) management policies about specific rules to prevent over-exploitation of a resource and other conservation measures, usually with some form of priority for local users. If such a priority is well established in law and practice, coupled with, say, a provision that in normal times no state interference in the resource will be permitted, local tenure institutions are in fact controlling the majority of the ways the resource is used and managed. Such institutions belong to the general category of communal or preferably community-based resource tenure: institutions that regulate access to, use, management and control as well as ways of acquisition and transfer of resources like land, water, territory. These institutions derive their social efficacy and legitimacy from their embeddedness in the ongoing life of a specific distinct people or community. They manifest a specific mixture of individual rights, extended family rights, clan and supraclan rights. For instance, the Cree nation (an Indian people in Quebec, Canada) knows such tenure institutions. This people is participating now in a formal agreement, the James Bay and Northern Quebec Agreement (1975), through which some (admittedly weak) channels of influence are opened for the Cree to participate in the management of the resources in the vast territories where they use(d) to hunt for a living.27 After having been dispossessed from their territory, there is now a glimpse of hope to win back a little bit of the lost space for survival and obtain some official legal backing for self-control of these resources. Indirectly, then, community-based resource tenure obtains some status within the political and legal set-up of a state, e.g. the Canadian province of Quebec. (See Feit 1985 and 1989 and Scott 2001.) Self-regulation is linked to state regulation and is seen as a vital part of it. But this is a far cry from official incorporation (not to speak of recognition) of such institutions as part of the law of the land. Moreover, on the ladder of participation, usually these schemes of co-management do not climb high. The abundant literature on systems of co-management contains some successes in terms 26

27

Common pool resources are those resources which are by their nature difficult to be partitioned and individualized for management (streams, fish, wildlife), or where it would be too costly to individualize tenure, as in the case of grazing land and forest areas. This gives these resources the character of a common (Bruce 1999: 4). The James Bay and Northern Quebec Agreement and complementary agreements are published by Les Publications du Quebec, 1500D, rue Jean Talon Nord, Sainte Foye (Quebec), Case postal 1005, Quebec (Quebec) G1K 7B5. I consulted the 1998 edition.

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of fostering mutual respect and really co-deciding on issues, but on the whole the tone is rather pessimistic. These agreements only slightly change existing relations of power between that people and the central state. Nevertheless, some indigenous peoples jump at the opportunity and know how to conquer a bit more terrain. Systems of co-management, however, are rising stars and I expect the power differences to be offset in the future somewhat more than at present. Sooner or later, local rights and local management rules will gain some ground. This in its turn produces yet another push towards forms of research into and, later on, explicit formulation and perhaps codification of such community-based resource tenure institutions and their rules.28 This might propel a more formal way of administering traditional practices. Also, the generally Western style definition, production and use of relevant knowledge for the development of sound management policies forces an indigenous people to change their habits and adapt to another frame of mind. Usually, this leads to the rise of an educated elite well versed in bureaucratic procedure and thinking and pushing for the formulation of rules. To a lesser extent, the same development can be expected in the familiar case of a conservation-driven national policy in (sustainable) land management and in other policies of nature conservation. It is commonplace now for governments, say in Africa, but more so for international and foreign donors as well as for non-governmental organisations (forthwith NGOs) to acknowledge the fact that efficient and sustainable management of land, particularly but not only, arid and semi-arid land, is produced by local (pastoral) peoples’ institutions and not by state interventions. The earlier state interventions used to weaken local institutions, not only in (semi)arid areas but generally, while what the state puts in place is not very effective indeed and/or lends itself to corruption.29 Such state interventions riding rough-shod over local tenure or property institutions have not completely died out. A recent case in the Philippines and its disastrous effect are well documented by J. Prill-Brett (2002: 16): The indiscriminate intervention of state laws on the management of indigenous property regimes has also been responsible for the unintended effects leading to the breakdown of common property institutional arrangements, but at the same time the State has been unable to manage these resources effectively.

This breakdown has caused a specific forest area to be perceived as one without clear rules of access, converting it into one with a ‘regime’ of open access instead. 28

29

This codification is precisely what the Gitksan and Wet’suwet’en clans did, with the aim of forcing the Canadian government to incorporate their traditional fishing and harvesting practices as the official rules for the official management of these resources. At the time it aroused a lot of resistance from the Canadian government, partly because the relevant authorities administrating these rules, the hereditary chiefs, had not been acknowledged as such in the official Indian Act and had been replaced by a newly invented band council. This story told by Peter Grant was presented a while ago (1988), and therefore it would be interesting to learn what happened, both as to the process of incorporation and its internal effects on those clans and their law. But as yet I have not been able to obtain more information. See a confirmation of his view in the recent state-of-the-art volume The Drama of the Commons by Dietz et al, particularly the Introduction by Dietz et al, 2002: 11.

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Such a deeply negative result of producing an ‘open access’ regime, where the resource in question is up for grabs, is countered now by a growing conviction among policymakers and activists alike that only by acknowledging the territorial rights of these local groups and incorporating their tenure institutions does the state have any chance of success in land management.30 International agencies and donors now acknowledge the need to affirm the rights of local populations to control resources lest any development fail. (Compare UNSO 1994: 13, quoted in Lund 2000: 4.) Obviously, this is a course that cannot be followed everywhere, particularly not in those territories where the social order of the people or communities practising communal tenure has changed considerably, perhaps disintegrated. The point is, however, that in many places local practices still carry a robustness that qualify them for such new role. This policy might lead to some form of legal incorporation of indigenous management practices. The same goes for ambitious schemes of nature conservation which persistently fail without granting decision-making powers to the local communities and recognizing their proper tenure institutions, at least in the phase of implementation of the policies or even on the policy-making level as such. All these tendencies point in the same direction: the usual contempt for communal resource tenure is giving way to a more favourable view of the social as well as economic potential connected with these communal forms. The time is past in which the one and only policy for (particularly economic) development was defined as eradicating traditional forms of tenure and stripping these tenures from the community-based social mortgages and constraints. Okoth-Ogendo (2001), the well-known expert in land matters in sub-Saharan Africa, even predicts that only by a complete reversal of the trends and a restoration of communal tenure institutions as the dominant way of managing and using the resources can the appalling trend of degradation of land and deepening of the food crisis be solved. This reappraisal of local tenure institutions and therefore of legal pluralism is not an exercise in appreciating let alone recognizing the diversity of cultures. Public administrative strategic reasons drive it primarily. In many instances of legally according some role to local tenure institutions, for instance, the space opened up for these institutions is still very restricted, as in cases where the ‘sovereignty’ to use and administer resources is tied to ‘traditional use’, meaning traditional subsistence practices only. An indigenous people who wants to commercially exploit resources like forest or fish resources then finds itself as powerless as ever. State authorities like some national forest authority determine and control local initiatives to a high degree. Moreover, in matters of setting up commercial enterprises, national legal schemes usually prevail, such as legal schemes of organizing legal personality and regulating, say, the accountability of the various actors forming such a legal body. This is one of the bigger problems dealt with in Bruce’s (1999) highly informative report on ‘The Legal Bases for the Management of Forest Resources as Common Property’. But the change to elevating local tenure institutions and therefore local law to a more serious option in administrative policy and even national law is unmistake30

With regard to pastoralist people in Ethiopia, see a FAO/World Bank-sponsored Issues Paper : Pastoral Community Development in Ethiopia 2001: 35.

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able31 and could bring forms of official appreciation of differences in cognitive and normative world views and cultures per se. Before long, research into, writing down of and codification of communal resource tenure rules and the territorial rights of local farmer, pastoral and other user groups or peoples will be a booming business for anthropologists and consultants alike. It is about time to turn to codification and its many faces.

3

CODIFICATION, ITS FORMS AND WHAT IT IS NOT

What might codification entail? What are the current opinions about how it can or should be done in cases of indigenous law? These two questions will be dealt with now (3b and 3c, respectively). But firstly a distinction has to be made between an anthropological study of local law on the one hand and the legal activity of codification on the other (3.a).

3.1

Description versus codification

The distinction between documentation and codification of local law has been discussed extensively because of restatement proposals, both in the Dutch Indies in the 1920s and 1930s and in former English colonies after World War II (Strijbosch 1980: 144 ff.). Much of what follows is taken from Strijbosch’s account. (See also Griffiths 1986 and Fasseur 1992.) In Dutch legal anthropology, Van Vollenhoven, Ter Haar and others vehemently opposed colonial plans to codify the manifold local legal institutions called adat and particularly the plan to organize adat along the lines of Western (Dutch) legal concepts during the time of Dutch colonial policy in the then Dutch Indies (which is now Indonesia). They saw it as a thorough distortion of adat. They were the forerunners of the view that one had to understand local law and practices in their own right instead of seeing them as a backward stage in an evolution towards Western law. Also, more pragmatically, they very much doubted whether the intended effect of unifying the pluralistic legal life of the Indonesian archipelago would advance at all.32 This battle was won, the Dutch colonial policy changed in 1928, and an era of what was called enlightened dualism started. Instead of codification, these scholars strongly proposed anthropological fieldwork aiming at a reliable description of local law. In31

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In the volume Evolving Land Rights, Policy and Tenure in Africa (Toulmin & Quan 2000) Lavigne Delville (2000: 107) writes: ‘Codification follows earlier colonial attempts to classify customary rights and seeks to provide legal definitions to land-use rules applied in practice. The aim is to integrate customary systems into formal law, with rules clearly spelled out’, like e.g. the Rural Code of Niger. They were quite right. A running theme in present-day studies of the relation between statutory law and customary law is precisely the production caused by almost all state-led unification attempts of a very confused bric-à-brac of statutory, customary and yet other elements of rules, authorities, competences, sanctions that as a matter of fact regulate life (Dubois 1997: 2 & 15).

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deed, they earned their lasting scholarly reputation by doing so themselves and/or promoting such work by other scholars.33 All this aimed at description, which has nothing to do with codification.34 The one may easily slide into the other, though. Particularly Ter Haar35 with his daring but uneasy combination of being a legal scholar and an anthropologist knew the difference very well but also conflated the two. He emphasised the difference between mere description and taking sides. Now, the description of such a moving target as local law (full of ambiguities, unresolved points, exceptions upon exceptions) asks for short cuts, and from there the distance to prescribing rules is not far. In his zeal to provide reliable knowledge as to adat to the often Dutch or Dutch-educated local judges and even the indigenous members and thereby improve local justice and prevent the making of Westernised customary law, he dared to cross the line. To justify this, he invented the notion of ‘the system of adat’, meaning not the logical but the social consistency of the various adat practices. They got their spirit from daily life, he reasoned, and therefore they formed a coherent whole. Someone seriously studying this living law, that is the underlying institutional practice, cannot but come up with something which is sound description on the one hand and a good legal clue to how a judge should deal with adat problems on the other. In modern terms the Dutch adat school very much strove to prevent the so-called ‘making of customary law’ (Chanock 1985, Woodman 1988b, F.von Benda-Beckmann 1984) or ‘judicial customary law’ (Allott 1970: 278), expressions with which present scholars indicate and indict the common practice of colonial state courts to invent customary law as they saw fit, while at the same time claiming they just found it as it was practised out there. ‘A tendentious montage,’ Roberts (1984:3) calls the way customary law was made by colonial courts. Vincent (1989: 163) has a more scathing qualification.36 Ironically, what Ter Haar eventually propagated also amounts to a form of judicial making of customary law, and he even frankly said so (Strijbosch 1980: 162). It is his notion of the presumed presence of a system underlying adat – coupled with the conviction that a good scholar can get hold of it objectively – which makes him say so. In present terms, he can be called an ‘ethnojurist’ (after Zion 1988: 139). I do not think that today such views on the social foundations of indigenous law and of its (functional) coherence still hold, nor the connected epistemological 33

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Many methodological problems were thrown up, too, like the question of whether or not to use as sources mainly local official decision-making, panels of experts, and other selected companies. With good reason they favoured the far better method of participant observation. It is good to reproduce once more the anecdote of what Soepomo, the first author to describe adat civil law (for West Java) in 1933, had printed at the foot of each page: ‘This is a description. It is not a codification. Any comments, amendments, and corrections are to be sent to the Department of Justice in Batavia’ (as the Indonesian capital was called then, now Jakarta). See the English translation, Ter Haar 1948. She says about Ugandan legal history: ‘As Read (1972, ajh) has suggested, the prominence that colonial governments gave to customary law should not be viewed as a matter of altruism – that is, of giving the Africans the form of justice they appreciated and understood – but as recognition that customary law was increasingly more convenient as administrative authority developed; in particular, the imprecision and adaptability of the rules of customary law made them useful instruments for preserving administrative control and buttressing recognized African authorities.’

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naivety. But this history is relevant today in view of the recent upsurge of attempts at mere description of indigenous law, as done by e.g. Perafán (1995 and 2000) for the Colombian indigenous peoples. For instance, it is still a most relevant question of whether or not it makes sense to try to document such law which by its nature is flexible, manifests a thousand exceptions or refinements on each presumably hard rule, and will be administered in situations where officials are looking more for reconciliation and mediation than following a concept of applying a rule. (Assies 1999: 155)

3.2

Codification

The distinction elaborated on before between incorporation and recognition is crucial in pondering matters of codification, its nature and its impact on indigenous life. It stands to reason that in almost any scheme of incorporation of local law into a (Western style) legal order, the relevant normative concepts and principles have to be and will be reformulated and transformed into a different legal order. It is the national state authorities and the legal profession which will dictate this process of transformation. Let us give an example. Incorporation and codification are a process that can be followed in complete detail in the case of the Sámi people in Norway, as reported by Svensson (1999 and 2002). Here the usual struggle to regain control over ancestral lands pitted the Sámi against the Norwegian state. Eventually, this long political, social and partly also legal battle resulted in a change. In a series of verdicts by the Norwegian Supreme Court, the original Sámi territorial rights were recognized, e.g. the right to hold ancestral land and to manage these in traditional ways. This is only incorporation of a specific legal institution and not the granting of self-rule. The consequences of such a relatively modest step are far-reaching in terms of its impact on Sámi law and justice. As usual, part of the struggle took place via the route of documentation of local law. The specific Sámi ways of regulating access and use of the steppe for reindeer herding, hunting areas, fishing grounds, etc. were documented clearly.37 The legal decision to incorporate these practices in national law sparked a drive towards codification – or at least: writing down – of customary law as such practices are now considered a right instead of only custom or usage. These rights, then, press for further clarification within the confines of the formal legal order of the land. Also, a specific court well versed in Sámi custom was established recently. Such a court will need to have guidance from written rules whether Sámi legal experts like it or not. Not necessarily but quite probably, the codification connected with incorporation of any kind will have the character of specifying rather precise rules. Although it is possible to just specify that some area will be governed, say, by Sámi cus-

37

Svensson (2002: 8) who provided me with these data points to comparable processes in the Nisga‘a nation in British Colombia (Canada) where after a victory in the Canadian Supreme Court (the Calder case) and ensuing (22 years) negotiations over a land claims settlement, a Land Use and Occupancy study was done, ‘to make the complicated body of traditional knowledge comprehensible for the other negotiating parties’. In this case even a local legislative body sprang up and has started to enact laws that correspond to the so-called traditional knowledge and wisdom.

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tom to be administered by a Sámi body38 and also resist any pressure to demonstrate these customs in full, I feel that the dominant role of the national state in any incorporation process will tend to press for Western-style codification.39 Sheleff (2000: 378), in a bold move, feels that once custom is incorporated in national law, even if only through judicial action, ‘it could possibly lose its characteristic of responsiveness to changing social reality. However (...) this is the inevitable price that must be paid for (...) the willingness of the state to allow for customary practices to be incorporated into an official judicial system.’ This observer cherishes hopes in the final analysis that an official judge will be ‘performing in a manner not too different from traditional practices’ (op. cit.: 379). I am a bit more sceptical here. Even if reference to local law is done in a most general way, the professional style, legal technicalities, world view and tacit knowledge of the court as well as possible disdain for the local group combine to press for assimilation. Recognition, on the other hand, refers to a wholesale adoption of the full complex of local law and administration of justice without directly pressing local authorities to come up with a code, at least not a Western code. In such cases, some form of self-rule is awarded, whereby the state legally restricts itself to leaving matters in the hands of the local community. Hence, recognition means empowering a local community, at least on the legal level40, to ponder the choice of how to develop further or perhaps formalize its law and procedure. Chances are that a product more of their own making will result, either no ‘code’ at all, a code of principles or a more detailed codification. Nevertheless, recognition in the forms in which it takes place inevitably exerts an enormous pressure to write up the traditional law and procedures, which in my view tends to start a chain reaction towards ever more precise rules. This I will try to show on the basis of two different consequences of any scheme of recognition of indigenous law: – the need for national courts to have full information about prevailing practices ‘down there’, as well as – the inevitable legal production of conflict rules. Information Once a local jurisdiction obtains some form of legal standing, it has to open itself to outsiders. Solid knowledge is needed, e.g. for a constitutional court to be able to grasp the point of local decisions. Usually, some legal structure of appeal from an indigenous court to a national one will be provided for. Not only do local courts there38 39 40

This is the case in which incorporation takes the form of expressis verbis, leaving a matter to be decided ‘according to local custom’, local ‘usos y costumbres’ and similar phrases. ‘It is not possible for state law to recognise customary law without some degree of reformulation’ (Woodman 1999:27). It is obvious that matters will not be decided in the legal realm alone. On the contrary, it is more the complex of power relations – including economic ones – between a people and the state which matters regarding the question of how far a grant of self-rule offers real space for self-determination.

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fore have to produce written sentences, but also the basis for their decisions has to be evident. As there is no code or book of rules, there is a need for some form of description. Can this be given orally? Yes it can, local experts can step forward, but it is not likely that the matter will rest there. Not necessarily but quite probably, the local authorities will eventually produce some form of description of practices which then slowly changes and becomes the law of the territory, like in the former Dutch (and English) colonial restatement exercises. The whole process of gathering expert knowledge on the highly variegated and changing ‘customs’ could be conducted exclusively under the control of the indigenous leadership itself, but the pressures to adapt any appeal to ‘custom’ to the kind of criteria known in Western jurisdictions exerted by the surrounding (political and) legal system will be formidable. These jurisdictions accept unwritten principles, it is true, but in many cases such as criminal cases, ones involving questions of membership and others where human rights are at stake, far more emphasis rests on legal security and predictability. This point is even more strongly emphasized in the second phenomenon, conflict rules. Conflict rules and forms of codification In all the conflict rules the Colombian Constitutional Court has developed, the Court has based its decisions on a thorough knowledge of the norms of the community. An example could be the kind of ‘due process clause’ (legalidad) already referred to, as one of the tests the Court applies to gauge the constitutionality of the procedure and decision of the indigenous jurisdiction. To be able to apply this clause (as well as for reasons mentioned in the paragraph above), the Court needs knowledge of the usual practices, the local norm. It is only natural that they chose an anthropological study of some of the many systems of indigenous law in Colombia. Perafán et al. (1995 and 2000) came forward with his series of descriptions and analyses. While making such an inventory, it is almost unavoidable to cut through some difficult points of ambiguity and to leave aside many of the finer points of local debate. Otherwise, the books would not serve the Court. Here we slide from description into unacknowledged legal policy-making. The role of the anthropological expert witness is riddled with dilemmas anyway (Rosen 1992, Simpson 1994). The anthropologist Esther Sanchez has functioned and still functions as a special expert to the Court. Her intensive relations with indigenous peoples and their leaders and her great sensitivity to other cultures make her an excellent source of information. In many cases the Court followed her views, like in the whipping case. Obviously, this happy marriage between her and the Court does not solve the fundamental dilemma of how a national entity like a constitutional court might obtain reliable knowledge about such an elusive topic as indigenous culture, which is not homogeneous, and about institutional practices, which are in constant change and debate. Behind these more or less surmountable problems looms large the epistemological problem of whether or not it is possible by way of participant observation to objectively determine what social norms do exist in some society or community. There are good reasons to answer this question in the negative. Norms as such are not lying there waiting for objective description. Any scholar as a matter of fact uses his or her power of definition to

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come to a conclusion, while others can come to another conclusion as to the presence of a norm, and often will. As a basis for a legal judgment that wants to elevate a local, supposedly general norm to the ranks of official law, this will not do.41 We see the making of yet another layer of customary law: the ‘anthropologists’ customary law’. Moreover, the results of these modern repugnancy tests not only reduce local discretion, but the whole procedure is a written one and urges the indigenous authorities to come up with written statements of their practices. In almost any case concerning an appeal for the sake of protection of a human right, an enormous number of letters and written documents is exchanged. It is obvious that some peoples and/or their leaders strongly reject and resent these tests as an inroad on tribal sovereignty, but it is as obvious (to me) that in daily practice the tests will go on as a regular feature of any regime of recognition. So, the tendency to codify local law even to the point of producing (quasi) hard and detailed rules will grow increasingly stronger even in the apparently generous regimes of recognition. As I said before, this tendency will show itself more in matters of criminal jurisdictions and human rights than in matters of land use and land tenure, which are matters that do not interest political elites much (unless strategic resources are at stake). On the whole, Assies (2002b) is right in stating that: ‘ (...) the recognition of indigenous jurisdiction may well imply that indigenous authorities are held increasingly accountable for their actions, both by outsiders and inside their jurisdictions.’ There is not much that local leaders can do about it or, for that matter, against it. But now I want to present the voices of indigenous leaders and their experts themselves.

3.3

The indigenous view of codification

Forms of codification are sometimes strongly fostered by the indigenous authorities themselves. Answering the ever stronger pressure from the surrounding society and its state, indigenous peoples now stand up to counter their encapsulation, even annihilation as a distinct people, by re-interpreting their past, restating their specific institutions, including the legal ones, and even (re-)inventing their traditions (Hobsbawm & Ranger 1983) or linking new elements to traditional ones while suggesting that the latter somehow fit into the former (Roberts 1984: 4-5). As part of the struggle to maintain or reconstruct a distinct identity in the face of the assimilative policies of the dominant government, the presence of a proper and specific type of law is proclaimed. To bolster this position, local authorities want to show some proof, therefore often some codified version of their law. They produce some kind of a code, which up to recently was always considered an alien element.42 Sometimes the proposals to codify the law are turned down by the elders or other recognized influential mem-

41 42

This particular problem was brought to my attention by my colleague Liesbeth Huppes (2002: 8082). The Guaraní case to be presented below is a case in point. The Guaraní from the Alto y Bajo Izozog area in Bolivia are fighting for more space to determine their own future within the Bolivian State and intentionally dedicate a lot of energy to putting their rules and system of authority in writing. They try to conciliate ‘new’ and ‘traditional’ values, norms and institutions. (CEJIS 1997)

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bers as not conforming to ‘the way we are’.43 But in many places some form of writing down the law and procedure – and thereby contributing to a formalization of those practices – can be observed. The codification or perhaps better restatement movement was led by the First Nations in the USA and Canada. Particularly among the USA Indian nations, the import of Western codes and court practices has gone on for many decades already as part of the order strenuously imposed on these peoples.44 In these countries local elements of law and procedure are more overgrown by Western state law notions than in the case of those indigenous peoples, e.g. in Latin America, who up to recently lived far more in the margin of the dominant society and its state law. So I was not surprised to come across a relevant debate in a recent issue of the Newsletter XXXV (February 2002) of the Commission of Folk Law and Legal Pluralism (of the International Union of Anthropological and Ethnological Sciences). James Zion (2002), a well-known official and expert on Navajo law and procedure, reports on a recent debate in the Navajo nation council about whether or not to codify Navajo common law (the orally transmitted but partly lost wisdoms, values, customs, styles of solving problems, etc.). This common law has slowly been rediscovered in the last 20 years during which the officially recognized indigenous court system, modelled after Western examples, had been functioning with a mix of USA federal as well as state law, some more specific Navaho codified rules and only a small portion of unwritten Navajo common law. Not only here but also elsewhere in native America, there is resentment that tribal law and its administration are mostly just carbon copies of dominant Western state law and justice. Efforts are under way to remedy this situation by instilling the local systems with tribal principles, norms, world views and (peace-making) procedures. This means reflecting upon the past, recuperating traditional values and almost certainly restating them, formulating these values and using them to educate people, the (tribal) judges and the law-makers. In a sense it is a codification movement. A special journal, the Tribal Law Journal, has been set up recently at the New Mexico University School of Law to support this movement. But it is a codification of sorts, or at least it might be: a codification that sticks to a formulation of very general principles or, as Zion (2002: 77) has it, of traditional wisdom, a ‘statement of culture’(op. cit.: 78). Here we enter the debate Zion summarizes: codifying local common law is not a question of ‘if’ but ‘how’ to do it. As to the ‘how’, there is a world of difference between codifying general principles only or writing down specific practices as if they were the complete parallel of USA federal or state legal rules, the form of codification in statutory rules after continental (European) style. Usually, this latter approach is rejected. Nevertheless, in many tribal codifications one comes across good candi-

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Van de Sandt, a colleague of mine, reports this from the indigenous territory of Jambaló in Colombia (personal communication). See also Zuni 2000 who reports about the rejection to write down traditional law by a Pueblo community. Skibine (2000: part II) tells us that the 1934 Indian Reorganization Act in the USA permitted the Indian tribes to develop their own courts, but that both their laws and procedure had to be approved by the Bureau of Indian Affairs, a paternalistically operating federal agency. Usually, wholesale adoption of Western codes and procedure followed.

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dates for Western-style rules. Take the format of an adoption codification: ‘A person who, for whatever reason, is exiled from his village may be adopted by a house in another village which is of the same clan as he originally belonged to’ (Gitksan-Wes’suwet’en, Grant 1988: 262). Or take an example from Navajo law itself. In 1993 the Navajo council issued a marriage code in which we find this rule: ‘Parties who are Navajo Nation members, or who are eligible for enrollment, may not be of the same maternal clan or biological paternal clan.’45 Clauses of a similar degree of precision can be found in the Aguaruna-Huambisa codification (see below). But these rules are usually perceived as the exception, whereas writing down rather general principles is the preferred way. The Guaraní people in the Chaco area of low land Bolivia (near the Paraguayan border) codified their law in an attempt to impress the Bolivian state authorities and apply pressure to grant them territorial rights as well as the right to self-rule. This codification proceeds in a double way. We find a rather precise indication of competent authorities and the order between them, say, a law of governance and procedure, but far less precise substantive ‘rules’. The material paragraphs codify general principles only, a course deliberately opted for. The Guaraní law makers apparently share the notion C. Zuni (2000) reports when describing the approach of the Saddle Lake First Nation (Province of Alberta, Canada). This nation did not want to reduce their traditional law to codified rules but tried to recapture their general traditional principles and values and revise existing (mostly transferred or rather imposed state) law in the light of them. This kind of restatement possibly serves more as a general educative device to promote the discussion about tribal identity and values than as the first step in a process of detailed code-making.46 In the USA and Canada with their history of imposing codes on tribal jurisdictions, this codification of principles and bringing them to bear on existing or pending tribal law form more of an exercise in saving local law from imposed state law than a transformation of open tribal legal principles into Western-style fixed rules. Nevertheless, the question remains as to what the end-product of this operation will look like: will tribal family law, or the law of personal responsibility or that of the duties of the trial members, and so on, be drafted like detailed rules or, rather, like general and open clauses referring to the dynamic common law ‘behind it’? Perhaps there is nothing wrong with the production of some precise and specific rules, e.g. in matters of family and marriage relations, as long as communication between these more detailed rules and the underlying general principles goes on. After all, in many Western common law jurisdictions and also in the supposedly more formal European continental jurisdictions, this is precisely what happens all the time. The question, then, is: Will a marriage rule like the one quoted from a Navajo code be applied by the Navajo court system formally or will it be treated as the formulation of a principle that may also support different decisions according to the circumstances of the case? In the latter case,

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I took this example from the informative ‘profile of the law of the Navajo Nation’, compiled by Bidtah. N. Becker and Paul Spruhan. See . See also . Such formulations of the sociocultural foundations of a people might be put to use in an educative campaign targeting unruly youth, or in public meetings destined to redefine the indigenous identity generally (Zion 2002: 78). Such formulations, hence, serve the cause of ethnic reorganization.

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the next question is whether general Navajo values will be brought to bear on the reasoning? As these values may be and usually will be contested, or will be different in different corners of the tribal territory, and moreover unclear in their precise consequences, local courts cannot claim just to apply ‘our traditional wisdom’. They are making customary law. As long as this process of defining local law rests firmly in the hands of tribal authorities and experts, this making of the law is controlled by this society itself instead of imposed from outside (although certainly contributing to forms of putting the law in writing). It is interesting to see whether or not, in such cases, anything like detailed code-making is favoured or completely rejected instead. The lessons of Saddle Lake can be used by Latin American peoples notwithstanding the differences between North and Latin America: codification might steer free from the idea of a more or less complete code of hard rules and formulate general principles instead. Connected with this more prudent form of codification is an open participative way of recapturing tribal principles. In the Saddle Lake area, a drawn-out process of local consultation and deliberation has taken place to prevent a hasty copying of alien structures. The Bolivian Guaraní proudly refer to a similar process of popular dialogue (CEJIS 1997: 106). In Jambaló, a Colombian resguardo of the Paez people, studied by Van de Sandt47, the elderly people, storekeepers of the wisdom of this people, opposed a move of writing down the traditional law proposed by the young leaders who wanted to revive discussion of, e.g., the legitimacy of whipping as a punishment, the present content of forgotten ‘customs’, or what to do in cases where no traditional guidelines exist at all. In a way this seems to be a battle between old participatory procedures – restricted to the elders – and new participatory ones among the members at large. These elders rightly sensed the demise of their position as a traditional authority, couching their protest in terms of a presumed loss of the old ways. The young leaders’ move marks the start of a process of reflection and eventually the formulation of Jambaló law on a broader basis. The form this takes could be a restatement of principles. I suspect that in another example of codification, by the people of the Aguaruna in the Peruvian north near the Ecuadorian border, the authorities had the same approach in mind.48 It is true that they produced something like a complete battery of codes, civil, administrative and penal codes, divided into various chapters very similar to the familiar outlook of, say, the Dutch codes, only very much shorter. There are some hard rules particularly in matters of marriage, adoption and the like, as well as in ‘criminal matters’, but other paragraphs read more like a statement of general

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Results will be published in 2003 in a book possibly with the same title as Van de Sandt 2002. The Aguaruna combined with the Huambisa, and their Reglamento interno carries this double name. They number about 50,000 and form about 250 villages or communites. Eventually because of conflicts between the two fractions this codification did not make it into official local law. It is, however, the most ambitious attempt so far in Latin America. (See about this case Rendón 1995 and about Aguaruna law in general: Urteaga 1993).

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principle, or frame the matter in broad moral terms. Let me quote an example of each (my translation, ajh): Chapter XVII of Title V Customs and norms, reads ‘Threats’, and it contains just two articles, the first part of the first one (art. 115) holds: Those who threaten another with a naked weapon or a fire arm will be punished as follows: The first time with 24 hours of confinement; The second time ( etc.)

This is a relatively precise rule. Under Title III Rights and obligations of the members, obviously we find very general provisions, which, by the way, are not unlike such clauses in many Western constitutions. Somewhere in between but rather general is this one (Title V, art 32): Each member will use the territory of the community rationally for the benefit of himself and the community. It is forbidden to appropriate common land.

In view of the rather general character of the majority of the clauses, one can expect the usual Aguaruna style of conflict resolution to continue. At least, possible changes in what quite probably still is a broad deliberative style (about such a style, see below part 4) can hardly be contributed to the contents of this ‘codification’ as such; although it is a clear break with the past, nevertheless it is quite weak in terms of controlling (the authorities’) behaviour. More impact is to be expected from a general trend in which local authorities start thinking in terms of rules, in terms of law-making versus application of law, and behaving along ever more standardized rules of competence and procedure. These matters are the topic of the final part 4. Up till now I have hardly mentioned the notorious debate among anthropologists about the merits (or lack of) of any restatement movement. Okoth-Ogendo (2001), while discussing the need for a formal (re)introduction of the institutions of communal land tenure in sub-Saharan Africa, hit upon the thesis that any codification of (African) tribal law necessarily distorts it and results in the outside-controlled ‘making of customary law’ discussed above (for the standard view, see e.g. Bennett & Vermeulen 1980). It might be that this discussion only targets the continental codification variant. Okoth-Ogendo appears less wary of codification. However, he says, one should not lock these institutions up in the usual Western legal categories, which would amount to a simple erasing of these institutions instead of endorsing them in their proper social shape. Apparently, he sees space for a kind of restatement of principles which, in local courts and perhaps even in national ones, keeps the floor open for a non-formalized communicative process. I personally have doubts about the fate of indigenous principles – even if not squeezed into the mould of detailed rules – as applied or used in non-indigenous courts.49

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In an earlier publication Okoth-Ogendo (2000: 134), although mentioning the risk of ‘freezing’, did not even raise specific doubts as to the impact of codification of customary land tenure institutions and their integration in statutory law.

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CHANGES IN THE STRUCTURE AND CULTURE OF INDIGENOUS LAW AND ADMINISTRATION OF JUSTICE

The central theme of this essay concerns a new beginning of law in the sense of a change from what went before, a communicative institution, to a more bureaucratised institution. Regarding the driving forces behind this new beginning, I am especially interested in the impact of incorporation on the one hand and of recognition of local law on the other. To tackle this theme, I have to generalize to come up with some features of indigenous law before its change into a more formalized institution (see 4.a). Afterwards, I want to give an example of the changes that can be observed nowadays, again generalizing (4.b). Then in 4.c I shall point to some general (!) tendencies provoking such a shift. Finally, 4.d is dedicated to the way indigenous leaders try to gain or consolidate a foothold in state law and politics and to the local impact of the ensuing incorporation and/or recognition of their law.

4.1

The original position

They have been described many times: the participative, informal and conciliatory features of institutions for keeping order in loosely structured societies. Take the participatory side of it. This usual audience participation is documented vividly by Holleman (1979: 119) who writes about Shona tribal courts in 1947 as follows: After a more or less formal start of the proceedings follows a much less formal performance in which members of the attending public get to their feet one after the other to interrogate, volunteer information, voice opinions based on intimate knowledge of local relations and specific circumstances, and generally contribute to a searching inquiry into the cause of the dispute before them. Crucial indeed, for this would usually go on until sufficient ‘clarity’ had been reached, not merely as regards the bare facts of the case, but also concerning the possible existence of any hidden grudge between the parties which needed clearing up before they could be trusted to resume their normal social relationship....

I quote in full from these 1947 experiences of Holleman to stress the participatory style of the proceedings, but also the orientation towards the relational aspect of the conflict and finally, the overall conciliatory approach. A point to emphasize is the close relation between the procedural and the participative aspect of such a style and the substantive content of the outcome. ‘In adat thinking, a substantively just decision, as an interpretation of general adat rules and principles with respect to a concrete problematic situation (...), must be arrived at through a process of joint deliberation leading to consensus.’ (F. von Benda-Beckmann 1992: 312) This means that severing this participative element from the substantive outcome, as is done in some jurisdictions dealt with below, impacts strongly on the character of local law. Codification, perhaps, impacts more on local law and justice through this process than through the perhaps statutory rule-like form of any code of law itself. In the year 2002, precisely the same features can still be detected in many village

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level or regional indigenous ‘courts’ as studied e.g. by a Bolivian scholar René Orellana in the Andes region of Bolivia near Cochabamba (Quechua people). These sessions are structured according to the importance given to interaction with the audience. The audience speaks its mind too – and is often appealed to. Sometimes, the secretario asks the audience to suggest punishment.50 Then, a decision is reached which may reconcile the disputing parties by saving or reinforcing the good relations in that society. This emphasis on the relational part of the conflict is clearly evident in many indigenous cases. An official, the secretario de justicias in the jurisdiction Orellana studied, kept an assembly dealing with a marriage problem in session until the parties eventually solemnly reconciled themselves in front of the full assembly after much haggling. McDonnell (1992), while describing the Cree institutions of justice, came up with examples of official cases in which long past wrongs between people pop up after years and are fully taken into account. This very much contrasts with Western-style fixation on specific types of misbehaviour and the practice of sticking carefully to ‘the relevant facts’. These features can still be observed in many indigenous courts, sessions, etc. Authorities are not eager to follow a book of rules and forget about any so-called rule the moment they perceive an overall satisfactory outcome. They still try to perform a communicative role, suggesting a solution in interaction with the audience rather than imposing one. This rhetorical style (de Sousa Santos 1995: 112) fits the way some people perceive ‘our law’, not unlike the Ten Commandments of the Christians. I already quoted an instance from Ecuador. What ‘our law’ entails is often put in very broad categories referring to a beginning of time, to a creator, to evil and good spirits, to continuity, harmony, reciprocity, healthy life and so on. Notions about regular conduct are to be found within this broad view of the world, but they lack precision. For example, in an Indian society (the Cree in Quebec), it is considered improper to kill animals just for the fun of it or to show how good a hunter you are, and definitely to kill more than the needs of the community. But there is no rule specifying that a hunter must not kill more than x caribou. In a specific situation according to a multitude of clues, an uneasiness may arise as to the right attitude of some hunter, although on the face of it he acts like anybody else. At some point in time, some indirect action is taken. There is no rule involved (McDonnell 1992: 77-78). Present Cree members discuss the possibility of introducing rules for hunters, now that the common life of collective hunting has broken apart, and many people, even elders, seem to go shooting just for the fun of it. Such a rule is a world apart from the non-rule I just sketched. Geertz’s (1983) investigation of legal sensibilities centering around multifaceted concepts like adat, dharma and haqq also reminds us of the ‘interpretation of the world’ character of these legal sensibilities, whether formulated or not. This view of what law amounts to is still rather common.

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Van den Bergh (1986: 73) refers to European legal history and shows how precisely this way of finding the appropriate punishment as part of a dialogue between the audience and the authority still prevailed in 12th-century France. It might be that the newly established cacaca tribunals, a reinvention of folk law courts in Rwanda which are supposed to judge the lesser offences of the genocide period in Rwanda, will adopt this rhetorical approach.

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An example from my home country offers us the same picture. Another colleague of mine, a Dutch scholar, Van Rossum (2002), studied a Turkish minority in the Netherlands following a liberal Islamic creed, the Alevites, who also define their fundamental ‘law’ in terms of such proverbial sayings such as: one has to control one’s tongue, one’s arms and one’s loins, meaning: don’t lie, don’t beat people up, and don’t engage in inappropriate sex. He observed sessions presided over by a nonhierarchical religious leader with full audience participation in which these wisdoms were brought to bear on various conflicts people had with one another (these sessions are called cem). It is easy to see how far it is from such law and such sessions to judicial operations on the basis of relatively precise written rules and professional and hierarchical authorities.

4.2

The change of local law into a more formalized institution

But matters are changing as we have seen, although certainly not everywhere. For example, the Bolivian scholar Orellana finds powerful tendencies away from this deliberative or rhetorical style towards a more bureaucratised performance. In another recent case in the Andean district he studied, he observed the processing of a very high-handed and vindictive person, accused of physical abuse and assault on a passer-by and other aggressive behaviour. The case had got out of hand at the village level, where the local official was not quite up to the format of the aggressor. Now the case was being tried on the highest, regional level, an indigenous organisational level covering several villages. The accused even repeatedly showed contempt of the court and challenged it by saying that he would go to the town, meaning the state justice. The authority in charge used an amazing mixture of state law elements and proper elements. He more than once urged the session to follow the ‘correct procedure’, viz. to hear witnesses, but dropped this later on. He also suggested that the accused had to be condemned simply because his behaviour infringed a recently enacted rule, officially recorded and sent to all villages (el acta). This demeanour is not exceptional. It has also been observed on many occasions that indigenous authorities in conflict-solving assemblies on the village level embellish their speech with Western-style legal jargon and cling to new procedural rules and the extensive use of written registrations. Earlier research had already pointed to this tendency (Westermark 1986, see Merry 1988: 881). I do not want to suggest that in this Andean district all local court sessions on all levels are formalized and bureaucratised to a high degree. It is more a matter of assembling bits and pieces from the oral, relational and participatory style on the one hand, and mixing these with elements of the written, specific case-oriented and authoritative style on the other. Perhaps one might call this blend ‘interlegality’. This syncretism might be stronger on higher levels of indigenous jurisdiction. The production of interlegality is not just the consequence of scattered and haphazard influences and tendencies. It is deliberately sought after by those authorities who have a keen eye on the conditions for indigenous survival. The authority in charge introduced above made another interesting move. Rather harshly, he taught the lower village ranking official a lesson as he had failed

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to deal with the case in a satisfactory way. The way, he said, for us to dispense justice is to look both into state law and into local law and then come up with some form of combination. Just sticking to local norms could only lead into a trap.51 What trap could that be? One could interpret this as a realistic stance towards the future.52 Nothing good is to be expected from stubbornly clinging to old forms which only will annoy the (Bolivian) political elite. Many sceptical outsiders point to corporal punishment, to the sometimes very harsh treatment of witchcraft (even today sometimes death penalties are given53) and other ‘barbaric’ features, to discredit any scheme of recognition of indigenous justice. It is crucial for these peoples to manifest themselves as people who are learning, eager to pay heed to human rights, eager to follow some form of correct procedure, eager to show themselves fully, shall we say civilised? But we need not interpret this as a strategic move only. It might be the sincere wish of many indigenous leaders to come up with systems of law and justice that borrow extensively from Western ones – like the stress on some concepts of individual human rights including procedural ones – while at the same time preserving core features of their own. Assies (2002a) provides us with some concrete examples of these deliberate attempts.

4.3

General tendencies towards such a change

This blending of indigenous law and life with state law and life of the greater society is not new. In a far more haphazard way, such a mixing of elements has been produced in these societies for a long time already, partly because of the choices made by the local people themselves. More and more the walls around indigenous societies are crumbling. Even back in the 1930s one could not anymore nurture the view that such societies were more or less closed, static, culturally homogeneous, producing norms organically linked to the social fabric either by the quiet force of a common collective consciousness or ties of mutual interdependence, or both. All this, if ever correct, is definitely gone now (F. Barth 1969 is one of the executioners of this old view). There is a constant interaction between these societies and the wider society 51

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Literally, he said to his village colleague (el corregidor): ‘What is the corregidor who knows the political structure well, doing, comrades, while administering justice? It is clear that in that task it cannot be a matter of just doing what comes to your mind, comrades. You have to analyse the legal [= state law, ajh] side of it, you have to analyse our own norms, and then you have to combine the two parts. If you don’t pay attention to the national laws and completely go for our own ways, you are going to fall.’ (From Orellana’s fieldnotes. These materials will be elaborated in a book Combinaciones y Mixturas. Discurso jurídico e interlegalidad en la justicia indígena (Combinations and mixtures. Legal discourse and interlegality in indigenous justice). The Guaraní leaders explicitly follow the same lead and go for a specific blend of the modern and the traditional. (CEJIS 1997: 107 ff.) Often, one might assume, this policy connects well with the more personal interest of authorities to consolidate their powerful position in their society. Recently in the Andean region of Perú, I had a long conversation with police officers who had just saved a presumed witch from being condemned to death by a cunning rhetorical performance in the village assembly.

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they live in. In the internal make-up of these indigenous societies, moreover, we find a division of labor, specialization, stratification and strife. The selective use of the available legal systems (Tanner (1970), later called: forum-shopping), already ‘discovered’ in the 1930s, is now a notorious feature in many indigenous villages. Local people routinely resort to the dominant state’s judicial system if they think that to be in their interest (good case studies by K. von Benda-Beckmann 1984, and Sierra 1995). Therefore, alien elements penetrate the local administration of justice, not necessarily nor only by way of imposition of state power, but also as the product of the ways local people choose to deal with conflicts. Generalizing here, however, is even more risky than in my other paragraphs. Although the authors just cited, as well as Orellana, encountered such a situation as a matter of routine behaviour, it is quite possible that either for logistic reasons or for social reasons, some local societies don’t (dare to) go elsewhere even in severe conflicts. ‘Porosity’ of the walls between local and national ‘fields’ is a current theme today.54 In its turn, this trend is obviously part of a far more general process of transformation of oral cultures into literate ones, and of loosely coupled societies into more organized ones. For example, McDonnell (1992), in a comprehensive study of the Cree society in Quebec, Canada (James Bay territory), convincingly shows how an old order, based on particularistic moral relations between unequal partners, a strong oral tradition, and a very responsive type of temporary authority, changes into a far more differentiated and organized order. In this case it is not only the sheer pressure exerted by the dominant state that is responsible. More favourable national policies also further this change. The Cree were granted an early (1972) and very restricted degree of self-rule with important financial support. The struggle for survival and the arrival of an agreement as well as the new opportunities won by it provoked new types of relations between the members of this people, fostered new moral notions of abstract equality between persons, and caused traditional moral concepts to lose their hold on people. Also, new concepts of authority emerged or were simply imposed, and slowly the social fabric changed into something dominated by formal education, Western-style government, writing and rule-making and professional specialization. This in turn heavily affected the common ways of dealing with conflicts and strife. The search is now going on for new ways of reconciling principles of white justice with principles of Cree communitarian justice. It is a well-known fact that, generally, local institutions of authority in many parts of the Fourth World already show mixtures of alien or modern and homegrown elements. Indigenous peoples used to appropriate alien, imposed forms and transform these into institutions of their own making, like the many high-level councils or federations that have sprung up recently as an answer to the oppression from 54

This porosity of the walls works the other way round as well. The same Orellana (1999: 45) reports a case in which a low-level state magistrate shops for indigenous concepts and methods of proof and accepts proof of a fact through a statement by a shaman. Sierra (1995) reports the same phenomenon. So, there is syncretism both ways, although state law penetrates and transforms local law far more than the other way round. Ardito (2000: 768) reports about a Justice of the Peace in the Peruvian Andes, an official position in the national Peruvian system of administration of justice, who personally applied ‘indigenous’ punishments like the whipping of an adulterous woman..

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the state on the one hand and as a means to address opportunities inherent in the changing socio-political climate on the other. But for the present, one might question whether political conditions offer enough space for such a slow process of mixing the new and the old. Depew (1994: 27-28) points to the fact that in Canada political control over the First Nations by non-aboriginal governments is strong. Particularly the financial dependency on the state often leads to dependency on non-aboriginal concepts and models of governance ‘since these have become the generally accepted terms of reference for institutional development.’ This dependency relation may also affect the way local law and the dispensation of justice are established. In this light, the formalization of local law and bureaucratisation of justice seem to be outside products. The new beginning of local law marks the inevitable ‘modernization’ of these societies, as this process is conventionally called.55

4.4

The role of incorporation and recognition in producing the change

Within the general tendencies just alluded to, the role of the various forms of accepting indigenous law as part or as partner in the national legal arena in formalizing local law and justice seems to be of minor importance. It is not. Its impact is strong. Such formalization is imposed by the sheer legal technicalities of the Western state and its law and by the action by indigenous leaders themselves who perceive of codification or at least formalization of law and justice as a weapon in the struggle for autonomy. I shall start with this latter element. I showed earlier how local indigenous members tend to choose their forum, sometimes resorting to their own authorities and sometimes to low-level national ones and often to both together. There are indications that this behaviour is frowned upon by present-day leaders. Let us take again the authority in charge of the contempt of court case Orellana observed. At some point in the proceedings, this authority pathetically urged both the accused, the audience and particularly his village colleague to follow ‘regular conduct’, meaning resorting to indigenous justice and not to the state police or the state judge. Here rules of competence, boundaries of jurisdiction are invented, defined and therefore also prepared for some form of codification. This codification move is already visible in the communities Orellana studied. The regional centre defines itself as standing at the apex of a structure of local instances (sindicato) and the next higher one (subcentral). It has already used the regional assembly to lay down this rule: ‘claims and denouncements have to be dealt with by the sindicatos, then pass to the subcentrales, and finally to the regional centre (...). In no way one can call directly on the higher instance. Everyone should behave in the regular manner.’ Similar clauses urge people not to resort to outside

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And criticised for its evolutionary ring as if all societies pass through the same stages of development. Also, the qualities of this modernisation process in itself are hotly debated among indigenous and similar peoples. Some claim self-rule perhaps to get the opportunity (also economically) to forge their own amalgam of ‘modern’ and ‘traditional’ elements.

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(state) authorities.56 I venture to say that part of the tendency to appeal to fixed and clear (procedural) rules as well as the more bureaucratic demeanour is explained by the political desire to close the many avenues through which indigenous members leave the ranks of the community. It is part of a process of ethnic reorganization as a stage in the struggle for autonomy and recognition of its proper institutions. Forumshopping indeed furthers the blending of the two legal systems, but seen from an indigenous point of view, it is uncontrollable. Today, leaders want to be in control of the ways Western and indigenous institutions will be mixed. They want to do the mixing themselves. Of course, it remains to be seen to what degree the attempts to close the ranks really have any effect at all. But my point is only that such moves do take place and certainly have some impact in the sense that a body of rules (acta) is growing as well as a set of rules organizing the local administration of justice. The double rule-oriented character of law referred to in the introduction as an example of law in the legal sense is dimly visible already. Apart from this attempt at sealing off the exit option for members, the local leadership may want to create space for more autonomy by writing down their law as proof of being a serious distinct community, as I suggested earlier. The Guaraní perceive of their codification as a strategic product of their own choice and making, although they are under the pressure of their struggle with the Bolivian state authorities. It is, so to speak, a manifestation of their will to exercise what they would see as their right of self-determination.57 They choose to go ahead with putting their law in writing but refrain from making their code very detailed and precise. As to the Sámi in Norway, Svensson (2000: 961), who acts as one of their experts, writes: ‘Sámi customary rights ought to be recognized: they should also be specified in written form so their existence cannot be denied in various legal procedures.’ It might well be the case that doing this will have perverse effects, in that such specification in written form starts a chain reaction to the production of ever more detailed rules, especially so if Sámi law is only incorporated and not recognized in the sense I accord to this term. It is true that Svensson (op. cit. : 961) carefully distinguishes the writing up of principles (as part of a process of recognition of Sámi legal institutions as a whole) from forms of codification that come with incorporation. I sincerely doubt whether state agencies will be satisfied by having a written document stating only rather general principles. And apart from this strategic matter, if incorporation ever succeeds, it will inevitably lead to an appropriation of indigenous concepts and principles by Western legal categories. Is there any choice for the indigenous communities themselves, one is finally tempted to ask? Suppose an indigenous people perceives real chances of either incorporation or recognition of local law and considers this an opportunity? To what degree can the community itself keep control over its own law and administration of

56

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Indigenous authorities cannot be too outspoken here, because it is violating everyone’s right as a citizen to deny them access to the national judicial authorities. Usually, members of indigenous societies turn a blind eye to outside state authorities deemed totally corrupt or incapable, but occasionally and sometimes quite often they nevertheless go there. Zuni (2000: part IV and Conclusion) also sees these attempts as an exercise in self-determination.

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justice, even if they dearly want to? It seems that they are more of a victim to an unfolding of events than an actor making its own history. The incorporation of local law and/or local authority as I have defined it almost inevitably dictates hard rules. Through the sheer pressure of the whole complex of state interests, legal technicalities plus professional influences, not only the typical form but also the underlying conceptual and normative structure of indigenous law will be cast into an iron mould. But even the recognition – in these terms more promising – has an iron fist of ‘modernity’. Living under circumstances in which you have to demonstrate your law and procedure and to live up to conflict rules produced by ‘the other side’ means producing a constant stream of written (re)statements, which increases the ever-growing stream of written communication between the officials of the white and the local society. There will be constant pressure to specify with ever more precision. Couple this with the way financial streams flow. No doubt, local leadership nurtures the thought that helping white society by giving information about local law and justice and coming up with written reasons and statements of policies of development – like a plan de vida – will somehow help to alleviate the poor economic situation a people usually is in. This is part of the mounting pressure to show a Western face and adhere to Western ways of thinking. I have already had occasion to point to the same tendency while referring to the effects of co-management schemes and, generally, the effects of programs of cooperation between the state and local communities (Depew 1994). The term ‘partnership’, a term often used to indicate a new relation between these peoples and the state, tends to have a hollow ring. In addition, a whole army of NGO personnel is swarming out to help indigenous communities formulate their claims and defend their interests. The way Western NGOs penetrate the life of these communities reinforces the tendencies already provoked by the necessities of fighting the dominant society by means of paperwork, statements, diplomatic and other literate productions and similar behaviour. I had a report from a Dutch student (Eric Deibel) with knowledge of some NGO practices in the Bolivian Chaco region who observed NGO personnel ‘teaching the indigenous representatives to make official notes, complete with votes, registration and decisions on common positions, (which) might serve as a basis for claiming some rights to customary law and traditional decision-making procedures’. And finally, we saw internal interests at work to produce precise rules. However, once you start writing down your rules, a self-fulfilling prophecy begins working. Local judges or secretarios de justicia, particularly the young and educated, tend to use the new regulation as a yardstick for the cases that come next. In the Guaraní case the CEJIS team saw this happen (CEJIS 1997: 10958). Authorities tend to cling to the ‘acta’ and go for more of these official enactments. Unwritten practices and principles come under pressure to be codified, too.

58

In the report it says: ‘The fact that there exists a document that can be consulted in the resolution of conflicts will impact on the practices of solving problems as it will probably establish a tendency to consolidate fixed and general procedures and to change a big part of the oral norms into written ones.’

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The willful attempt at keeping this process at bay and restricting the whole process to a formulation of principles only, as we saw in the USA cases, might have some success, however. I can certainly imagine some flow of written documents, some professionalization of ‘judges’, somewhat more reliance on hard rules, particularly procedural ones as well as the ones of governance, without losing out on the relational, participatory and conciliatory character of the local administration of justice. But to get there, a very firm view has to be maintained and a most determined stand taken towards all the odds against it.

5

CONCLUSION

In many quarters the writing up of local law and a more formal way of administering justice are taken up wittingly by local leaders as a move of ethnic reorganization. Specifically in cases of incorporation of local law into the national legal order, we can foretell the withering away of the rhetorical and participatory features of indigenous law and justice and the coming of a more formal, if you wish bureaucratic, style with a fixed structure of specialized roles. A new beginning in this sense would mean the end of indigenous law. In cases of recognition, matters are not that clear. Pressures to develop a high degree of a Westernized system of rules and judges are strong. But it is also possible that some unique blend of the two (‘ interlegality’59) is developing. In an area of a farreaching Westernization of tribal law, the USA First Nations are retracing their steps, bringing in traditional elements. Latin American peoples are moving in the opposite direction. Perhaps these are two ways to come to interlegality, creating a specific and probably locally bound mixture of oral and written law, of professionalism and audience participation, of conciliatory and rule-applying approaches. Might we not call this a genuine new beginning of tribal law?

59

This term is used by De Sousa Santos (1995: 473) to indicate the intersecting of different legal orders.

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Appendix Conflict rules regarding the legal co-existence of autonomous indigenous jurisdiction and the national system of administration of justice in two draft laws in Bolivia and Ecuador. I shall now offer a quick comparison between the ways the main points of debate as to the harmonization of two different jurisdictions are solved in the Bolivian and the Ecuadorian draft laws. The relevant points are numbered, the respective solutions summarized, and occasionally some commentary is added. Where discrepancies between the draft law and the relevant Constitution appear, they are pointed out. More commentary is to be found in Assies (2002b), Hoekema (2000) and Trujillo et al. (2001). General observations about the legal ways to perform such harmonization can be found in Yriquoyen (1999). 1

Who is the holder of the right to administer indigenous justice? Bolivia: local authorities (draft), natural authorities (constitution). Ecuador: indigenous authorities.

2

Are these officials recognized as official public authorities? Bolivia.: yes. Ecuador: yes (far more explicitly).

3

How does one determine who the local authorities are? Bolivia: those who by tradition, customs and cultural practices are perceived as legitimate by the members of the community or the people involved. Ecuador: recognized by the collectivity.

4

Is there a definition of the distinct social entity possessing the right of exercising its own justice? Bolivia: yes. Ecuador: yes (summarily).

5

Are the local authority´s decisions binding in national law (like any other judicial decision)? Bolivia: yes. Ecuador: yes.

6

Competence. (a) material: Bolivia: all cases. Ecuador: no mention is made of any restriction. (b) personal: Bolivia: all indigenous members. Ecuador: between indigenous persons (for both drafts: see below #8 and #9 about non-indigenous persons).

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(c) territorial: Bolivia: only cases in the indigenous territory. Ecuador: only inside the collectivity. In the Bolivian draft no definition of indigenous territory is given; in the Ecuadorian one we do encounter such a definition albeit, inevitably, rather vague. This is done by defining ‘a collectivity’ and then providing that any such collectivity should come up with a territorial delimitation. I could not find a rule indicating what decisions would be based on, should those territorial delimitations be contested either by state officials or other indigenous groups. Ecuador: in a case outside the collectivity, where an indigenous and a non-indigenous party have a conflict, the case will be dealt with by a special court, composed of indigenous and non-indigenous members or, alternatively, will be judged by the state courts (under some restrictive provisions). (The draft leaves the two options open for later debate.) 7

Jurisdiction obligatory for members? Bolivia: Yes. Ecuador: (implicitly) yes. The Ecuadorian draft includes a provision of how to determine whether a person is a member or not if this person denies being an indigenous person.

8

Obligatory for third parties living in the territory: non-indigenous residents? Bolivia.: no (only voluntary submission). Ecuador: In this draft, residence or non-residence is not a relevant criterion. Instead, it is said that non-indigenous persons violating norms in an indigenous territory will be judged by the indigenous authority, then brought to a state judge to receive the penalty. This seems to be a very complicated provision. From what follows in the draft, we may conclude that ‘violation’ (‘infracción’) means: only violations of state law. The non-indigenous perpetrator may submit his case to the indigenous authority if he so wishes. The relation of this provision to one about non-indigenous farmers is not quite clear: In this draft, reference is made to non-indigenous farmers, who may submit their case to the indigenous authorities if they wish to. This, presumably, refers to resident non-indigenous persons. There is a next provision in the Ecuadorian draft which says that in the case of non-indigenous persons, violations of indigenous law which have no counterpart in state law, if committed in an indigenous territory, will be dealt with as follows:

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(a) a non-indigenous resident falls under the jurisdiction of the indigenous authority (!) (and risks expulsion from the territory and loss of his land should he not comply with the decisions of this authority. The land has to be compensated for in money). (b) a non-resident (non-indigenous) is under indigenous jurisdiction in case of a violation inside the territory only as far as damages are concerned. Provided damages are paid, this person will not be punished according to local indigenous law. 9

Obligatory for non-indigenous non-residents? Bolivia.: no. Ecuador: see above. NB: In cases of contracts between an indigenous person on the one hand and a non-indigenous person on the other, Ecuador provides a special ruling which states that the indigenous authority is competent and shall apply the law (indigenous or state law) which is the most favorable option for the indigenous party.

10 Limits (a) ‘internal’ Bolivia: ‘regulated by their proper norms’ , ‘following their customary proceedings’, ‘excercising their proper customary law’Ecuador: ‘In conformity with its customs or customary law’ (innovations in these matters shall not be construed as violation of this provision). (b) ‘external’ Bolivia: The draft says local justice has to pay heed to the Constitution and to international treaties in matters of human rights. The Bolivian Constitution (art. 171) refers more generally to not violating the Constitution and the laws of the land. (There is a wide discrepancy here.) Moreover, the draft article seems to refer to the Constitution as a whole, not restricted to human rights. Nor is there mention of only a hard core of human rights to be respected in all cases. The death penalty, it is added, is never allowed (this provision is superfluous in terms of what went before). Ecuador: Constitution – as long as these (the customs and customary law) ‘are not contrary to the Constitution and the laws’. This clause, as restrictive as the one in the Bolivian Constitution, is not repeated nor widened or limited in the draft (should this be legally acceptable) as is done in the Bolivian draft. In the draft, mention is only made of the need to deal carefully with matters of compatibility of indigenous law with rights enshrined in the Constitution and international treaties: these questions have to be dealt with in such a way that human dignity is safeguarded and the facts will be interpreted in an intercultural way (!).

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11 Can local jurisdiction set aside national law, or can it only supplement it? This matter has to be discussed in conjunction with the topic of limits (#10) Obviously, in view of the very restrictive constitutional clauses, the drafters of the two constitutions were thinking of only supplementary rules. The Bolivian draft, however, interprets this restriction out of existence (but one can doubt if this tactic is effective). So in this draft one can imagine the sanctioning or application of norms that differ from national norms. The Bolivian constitution uses the formula of alternative means of problem-solving, which also suggests a very restrictive scope of indigenous justice. In the Ecuadorian draft, there is no attempt at interpreting away the restrictive constitutional clause. Cases are treated in which there is a norm to be sanctioned in indigenous law without a parallel norm in state law, as well as the reverse case: a state law norm which finds no counterpart in indigenous law. But not a word is said about local norms that contradict state norms. The constant reference, however, to ‘their own law’ suggests that the draft acknowledges cases in which the procedures and/or material norms differ from (contradict) the laws of the land. Without accepting this (and limiting the test of constitutionality only to breaches of – a hard core of – human rights, etc.), recognition of indigenous jurisdiction does not make sense. The recognition of the distinctiveness of indigenous cultures as a legitimate part of the national cultures and institutions (art. 1 of the Ecuadorian Constitution) points towards acceptance of deviant indigenous norms as (a source of) official law in Ecuador. The authors of a commentary on the Ecuadorian situation – the same who proposed this draft – (Trujillo et al 2001: 22) do discuss this problem of the fatally restricted constitutional scope of local jurisdiction, and apparently expect a constitutional interpretation from the national judges and legal scholars that softens this debilitating clause considerably, not unlike what the Colombian Constitutional Court did with a similar constitutional restriction. 12 Appeal to a higher and national court to test the constitutionality of local decisions? Bolivia: yes. Ecuador: yes. 13 Does this higher national court in such cases have a special composition? Bolivia: No, these appeals just go to the constitutional court. Ecuador: yes, a Tribunal with (for these cases) a special composition. Ecuador also includes experts, like an anthropologist, in such Tribunal cases.

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Law’s Beginning

Willem J. Witteveen

1

SURROUNDING LAW’S BEGINNING

The question of law’s beginning is a complicated one. Logically speaking, there must be some origin, some moment in time at which the law came into being. After a certain date it must have started functioning, and then law was socially recognized for what it is. But for no established legal culture can we say in retrospect exactly when this origin occurred, at what time it must be dated. We do not know much about the actual functioning of early law and we must guess at the social perceptions that accompanied its beginning. We can at best reconstruct law’s beginning using the sources available for historical research, but this effort at reconstruction never leads to unambiguous results. This is so because in all likelihood there was already some form of law in oral cultures that have left no written records and there certainly were legal systems in early writing cultures of which we have very limited materials available.1 Scientific reconstructions circle around the origin, but are destined never to reach it. On the other hand, the resources of fiction do provide the possibility of imagining the origins of law. The writer of fiction can be highly specific about them, situating his tale (or myth) in a precisely circumscribed time, and placing it in a clearly demarcated space. Though this can never be a historically true account (except by some stroke of luck), these stories about law’s beginning may yet be illuminating and may even provide the conviction that there is some definite origin, some moment at which valuable or important features of the law came into being in a meaningful way. The imagined account, fictional as it is, stimulates a hermeneutical response that makes the readers of this account into members of an ‘imagined community’ and in this way the story of law’s beginning can even be a meaningful element in a legal tradition.2 Can the literary imagination, in giving us a mythical account of the origin of ‘our’ law, do more than this and be even of some value to the historians of law? Can the hidden centre at least be glimpsed? The juxtaposition of historical reconstruction and literary imagination acquires another dimension still when we realize that the notion of a ‘beginning’ law, of a historical origin, has different but related meanings. The law does not only have a beginning in the sense of an origin that is hidden deep in time, but also in the sense of a start of a radical nature that is experienced as a break with the law of the past. Revolutions lead to new legal systems. The gradual breakdown of a system of governance 1 2

J. Goody, The Logic of Writing and the Organization of Society, Cambridge 1988. B. Anderson, Imagined Communities, London 1983/1991.

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also can be the starting point of a new regime and of new law. Whether with a bang or with a whisper, the end of one particular legal order or organisation can be the beginning of a new legal order, of a new organisation of law. It is likely that the beginning of law in this second sense takes a variety of forms. Perhaps literature and historical knowledge are both needed to gain a clearer understanding of these socially important phenomena. So, the question of law’s beginning can already be interpreted in two ways: as the question of the (historical or mythical) origin of the legal system and as the question of the fresh start, of the new beginning. But this does not exhaust all possibilities. The beginning of law can also be conceived as its spontaneity, as socially effective impulse to use certain rules. The great sociologist of law Ehrlich speaks here of the ‘living law’, the law that is coming from below and without which the law of the state is powerless.3 Anthropologists of law in a similar vein speak of ‘semi-autonomous social fields’, social systems in which the law is continually given shape, even though these social systems are unable to completely alter or abolish the official rules.4 ‘Living law’ is not a mere descriptive category, it spills over into the normative. Living law is supposedly better than state law because it is based in social interactions; it has some of the aura of customary law. Law only begins to be meaningful when the perspective of those using the laws has been taken into account.5 And the law that is useful from the point of view of participants in legal practices is the real, the true law, the law that is ‘living’ as opposed to ‘dead’. Since there is bound to be a perpetual struggle between the forces that use the law of the state, the official law, as a medium for control and those who ignore, evade or resist these efforts, new law does not make a decisive start (‘its proclamation’) but undergoes many unofficial transformations in all kinds of formal and informal negotiations; it makes new beginnings at all levels of organization and in the remotest corners of social life. And then there is another sense in which law can be said to be ‘beginning’. The notion of law is intimately related to the expectation that justice will be done and, particularly, that injustice is avoided in the application of law.6 This expectation can take many forms in different social systems, depending upon how injustice and justice are conceptualized, but it is deeply engrained and can survive longstanding manipulation and propaganda efforts by the powers that be. The beginning of law is in this sense the demand that certain minimal requirements are met, such as the impartial administration of justice and the equal protection of the laws. This sense of beginning law is most acute when social life makes it (almost) impossible. In situations of war, of civil war, of ethnic cleansing, of anarchy, of extreme poverty and hardship the demand for minimal law and justice is most intense and the activities of the people who perform professional duties as jurists are scrutinized with this in mind. The promise of law and justice in difficult conditions: this is also a way in which law is beginning.

3 4 5 6

E. Ehrlich, ‘Die Erforschung des lebenden Rechts’, in E. Ehrlich, Recht und Leben; Gesammelte Schriften zur Rechtstatsachenforschung und zur Freirechtslehre, Berlin 1911, 11-27. S.F. Moore, Law as Process; An Anthropological Approach, London 1978. M. Hertogh, De levende rechtsstaat; Een ander perspectief op recht en openbaar bestuur, Utrecht 2002, 103-118. J.N. Shklar, The Faces of Injustice, New Haven 1990.

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The historical origin, the spontaneous order of ‘living law’, the minimal justice requirement: these are the three senses of laws beginning I want to explore in this paper. These are in no way mere academic topics. The idea of the origin continues to attract people to speculate about the foundations, the fundamental values and principles, that should continue to inform legal institutions. The concept of ‘living law’ reflects actual concerns with the viability and effectiveness of legal arrangements. And minimal justice is an acute problem in many countries of the world where the rule of law is not a reality. Each type of beginning has characteristic problems and dilemmas which have stimulated critical reflection by legal theorists; and in each case we can also turn to literary sources to further stimulate the understanding of what is at stake. The three senses of law’s beginning are often studied separately by different research disciplines. The question of the historical origin has occupied historians and anthropologists; the issue of spontaneous living law is a central theme in the sociology of law; the requirements of minimal law and justice have engaged philosophers. It is my contention that through an exploration of the literary imagination (which has dealt with all three senses of laws beginning) we can reconnect the issues that from the beginning surrounded law’s beginning.

2

THE ORIGIN AS THE FOUNDATION: FREUD AND FITZPATRICK

The historical origins of a legal system are not only a factual phenomenon that can be investigated and (up to a point) reconstructed. The origin is also an idea that holds a special attraction for reflective practitioners of law, because in the accounts of the historical origin they seek a story about law’s foundations. The term ‘foundations’ is a normative and theoretical term, suggestive of the continued relevance of what transpired at the time of the origination of law. This foundational story – which is often acknowledged to be a story, a myth even – is supposed to reveal to later generations what the benefits of legal institutions for the community are and it is supposed to shed light on the values and principles that have been established in the past and that continue to be the ‘cornerstones’ of existing legal institutions. The account of the origin is thought to articulate the major principles that still ‘govern’ the operation of law. If this may sound like a highly ideological undertaking, it is also often born of genuine curiosity and critical concern with the point and proper functioning of established institutions. The concern with the origin in the sense of the foundations of a legal system indicates the existence of a legal tradition, with the members trying to make sense of what they have inherited from earlier generations. Of course, what makes foundational stories of the origin of law poignant is the circumstance that the beginning of law is in these accounts never a completely rational process but the outcome of intense conflicts of a tragic nature. Even a rationalist like Thomas Hobbes supports his arguments for a sovereign and absolute central authority with an emotionally charged interpretation of the horrors of civil war, captured in his famous phrase that the social contract is needed to avert the ‘war of all against all’. We will see that for Freud irrational forces and violent impulses, in conjunction with rational considerations, are at the origin of law. The stories may differ

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markedly, but they agree on the painful, often tragic nature of the foundational events. When trying to imagine the ‘original situation’ (to borrow and take out of context a term from Rawls), interpreters are struck with the complexity of the problem of how deeply opposing forces could be brought in agreement, how the new order could take shape in such a way as to keep open possibilities for peaceful change, how it had to grapple with the problem of interinstitutional relations (is the legislative assembly or the judge awarded primacy?). These are problems that still beset existing legal systems and the foundational stories are meant to contribute to ‘our’ understanding of these present-day dilemma’s. Surprisingly perhaps, the contribution of contemporary legal theory to reflections about the issues raised by the historical foundation of law is marginal at best. The major approaches in jurisprudence do not seem to have much to contribute. Legal positivism takes the existence and the genesis of the legal system for granted in its search for criteria of valid law; natural law posits some kind of critical discourse in which actual legal systems are compared with idealised conceptions of justice and likewise focusses on the legal materials of already functioning legal systems. Even interactionism, as a third and much smaller stream in legal theory, can provide little illumination since it needs empirical data as a basis for generalizations about the way law emerges from human interactions. Positivism, natural law and interactionism each presuppose some account of the genesis of law (it can even be the same account), but they are for their rationality not dependent on historical accuracy. Positivism supposes some established source of normative authority but is indifferent as to the way this normative authority comes into being. Natural law thinking emphasizes the rationality of principles of law, regardless of the historical events which have led to the (always imperfect) articulation of these principles in a legal order. Interactionism recognizes a vast variety, recorded in anthropology, of possible ways in which a social order can become established, not needing to choose between them since its work of elaborating the normative force of established interaction patterns begins when these patterns have indeed been established. How to proceed? An alternative line of reasoning looks at myths of the origin of law and takes these seriously as normative stories about the conditions of possibility for the emergence of law. Analysis of these myths is then taken to reveal the ‘grounds’ for the continuing functioning of law in modern circumstances. Sigmund Freud’s Totem and Taboo is such a classic myth of the origins of modern law. In his Modernism and the Grounds of Law, Peter Fitzpatrick interprets the Freudian myth in order to shed light on the foundational characteristics of law in our own time. While faithful to Freud, Fitzpatrick interestingly extends the argument and incorporates theoretical insights from post-modern philosophy in his interpretation. How does Freud imagine laws beginning? Before the ‘origin’ of law, there are small groups of savages living under the absolute and unlimited authority of the Father. The Father enjoys the monopoly on sexual acts with all the women in this primal horde. The sons, grudging under this authority and envying his sexual prerogatives, at some moment realize that their combined physical power exceeds his. They collectively overcome, slay and eat the Father. This ‘great event’, this primordial parricide, leads to guilt and this guilt founds an internalized authority which censors all

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actions and motivations. The sons revoke their deed by forbidding murder and incest; so establishing the first taboos and the most elementary principles of law. These two prohibitions of law correspond to the two repressed wishes of the Oedipus complex (getting rid of the father and taking the mother to wife). The sons re-enact the original deed in the rituals relating to the totem animal, which may not be killed and eaten by individual members of the group but is collectively killed and eaten in a prescribed ritual way. The rituals surrounding totemism are re-enactments on a symbolical level of the origin of the social order. Totemism, which is exemplary for the dynamics of law formation, is both a civilizing thrust and a continuation of savagery: each expression of the collective identity of the society requires new violent acts. Freud sees man as driven by savage instincts, not only prior to but within civilization. As Fitzpatrick puts it: ‘Savagery is not simply opposed to civilization but inhabits civilization, its law and ‘our’ very selves.’7 There is always a dark side, a discontent to civilization. Reading Freud, Fitzpatrick brings out elementary contradictions or tensions in the scenario of the origins of law and he also sees these at work in the actual functioning of modern law. The ritual killing of the totem animal for Fitzpatrick stands for ‘law’s deathly claim to determine finally, to fix and hold life, denying its protean possibility’, but in the process the totem animal disappears and so ‘clears the ground of existing determinations and invites newness into the world.’8 Likewise, all manifestations of modern law (from legislative acts to judicial decisions) are simultaneously determinations, forms of closure, and acts of responsiveness to new occurrences and possibilities. For Fitzpatrick, the ideal of the rule of law ‘with its avowal of assured stability and ultimacy of determination’ is reminiscent of the authoritative, stifling order of the Father. This ideal has to give way to an implied ideal of responsiveness, ‘capable of extending to the infinite variety which constantly confronts it’. ‘And so law can be seen as matching that double demand of modernity which ‘Totem and Taboo’ serves to identify: the demand for assured position integrated with a responsiveness to all that is beyond position.’9 In recognizing this contradiction or tension inherent in the forms of modern law, Fitzpatrick takes issue both with positivists who err on the side of law’s fixity and stability and with interactionists who let law dissipate in a pure responsiveness. ‘Law appears only in the failure, the ineffectiveness of pre-existent determination or lapidary anticipation, for if these ever were fully and effectively, we would simply and utterly be without any ’call’ for prescription or decision.’10 Two illustrations serve to show the need for combining fixity and responsiveness. The whole array of the rule of law aims at fixity, but in order to be effective it must also be open to new facts or unaccounted for developments. When law achieves determination in the legal decision – of the subject, the judge, the legislator – likewise the decision has to be ever responsive. Law becomes the combination of determination with what is beyond determination. ‘It cannot be simply or solely the principle of calculation, that which

7 8 9 10

P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge 2001, 16. Fitzpatrick (note 6), 3. Fitzpatrick (note 6), 2. Fitzpatrick (note 6), 6.

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cuts into and renders the responsiveness of justice operative. Justice, responsiveness, responsibility – responsibility, returning to the archaic usage – also render law operative.’11 Fitzpatrick agrees with Derrida that the legal decision must be ‘both regulated and without regulation’, that it must ‘conserve the law and also destroy it or suspend it enough to have to reinvent it in each case.’ Bringing order, law also enacts violence (following the logic of totemism) but in intervening violently, law also has to be non-violent, passive, open to new developments; it has to be sociable both and authoritative. Returning to the Freudian myth of the origins of modern law, Fitzpatrick situates law precisely at the ambivalent, uncertain, historically elusive origins. ‘Law occupies the place of the origin’,12 contrasting with the entities supposedly originating in the original parricide (society, the individual, the Oedipus complex) and also contrasting with these elements in the shape they take after the originating act. Law, taking the place of the origin, is the power that is able to relate all the elements integrally to each other. Individuality, for instance, was there before the Deed (as impotent submission to authority or as enabling power of resistance) and it is also present in the social conditions of modern law, but differently, now it is bound by the power of the law as surrogate for the Father. The individual belongs to society without being totally subordinated to it and it is this state of affairs which is expressed symbolically by law. Instead of distancing the origin, law’s beginning, from the actuality of law, Fitzpatrick claims the origin is in some sense always present, providing all the rules, all the decisions, the whole panoply of legal arrangements with the potency they need to have their impact in society. Law is always in the making, even when it is the instrument used for fixing things. ‘This incessant and irreducible making of law, its being ever ‘in place of’ the origin, is something quite opposed to the standard subordination of law to an origin apart from it.’13 Rejecting this standard account, Fitzpatrick builds on Derrida’s considerations on the Declaration of Independence of the United States. This is often claimed to be an origin apart from (subsequent) law. Incorrectly so, because the founding document is itself the product of a history of making, which reflects and recirculates familiar legal materials from the legal traditions preceding American law. The signatories to the Declaration can better be seen as ‘defenders of a history accomplished’ (namely, the history of the American Revolution up to that point) than as ‘producers of a sudden and extraordinary birth outside the processes of time’.14 All in all, the Declaration is a constitution that is derived from earlier examples and that reformulates laws and legal ideals developed in Europe, even if it takes some of these a step further. When later law refers to the Declaration as an ‘origin’, as the supreme expression of the will of the people, it is not distinct from the origin but shares in its authority. And ‘the people’ is not a historical actor, but ‘an enormous complexity created and continually recreated by the law’.15

11 12 13 14 15

Fitzpatrick (note 6), 76. Fitzpatrick (note 6), 34. Fitzpatrick (note 6), 79. Fitzpatrick (note 6), 81. Fitzpatrick (note 6), 82.

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In his interpretation and extension of the Freudian myth of the origins and the grounds of modern law, Fitzpatrick uses a vocabulary that is highly theoretical, full of paradox and open to all kinds of tensions and ambiguities. The vision he derives from Freud takes shape in abstract and general declarations (the word recurring most often is the general processword ‘ever’), that do not seem to allow for empirical variation, implying that all legal phenomena – from rules and regulations in diverse areas of law to decisions made in a great variety of legal fora – obey the same fundamental laws that make them share in the originary scenario of the genesis of law, that makes them bearers of potentiality while simultaneously turning them into instruments for the fixation of meanings. It is easy to be sceptical, certainly from historical or sociological perspectives, and to remember the positivist criticisms levelled against psychoanalysis concerning the infalsifiability of its central theses. But in pursuing this line of criticism, something of importance would be lost. The idea of an original quality of law that is present in at least a number of actual attempts at making or interpreting law, remains intriguing. It appeals to our imagination. How can the origin be present, how can it be repeated when new law is made, how can law ‘ever take the place of the origin’? It is at this point fruitful to turn to another literary source of ‘our’ understandings of law’s beginning.

3

THE ORESTEIA: ENDURING ORIGINATION

The three tragedies comprising Aeschylus’ Oresteia relate the demise of the House of Atreus. A cycle of killing and revenge within the ruling family threatens to prolong itself indefinitely and to make civil life in the larger society impossible. Agamemnon, one of the later heroes of the Trojan war, murders his daughter Iphigeneia as a sacrifice in order to have a successful military campaign. After his victorious return from the Trojan war, Agamemnon is murdered brutally by his wife Clytemnestra and her lover Aegisthus in revenge for the murder of Iphigeneia. Agamemnon’s son Orestes had been banished but returns from his exile, discovers the tragic events and is ordered by the god Apollo to revenge his father which he eventually does: he murders his mother. The third play, Eumenides, begins with Orestes fleeing the furies (Erinyes), female gods of the underworld, who have as their task the persecution of the murderer and the revenge of women killed by their sons. At the beginning of the play, the cycle of violence has escalated from conflicts between humans to conflicts between superhuman beings: the furies confront Apollo; war wages between these spiritual forces as well. Both sides have strong claims in terms of justice (natural law). The furies claim that the murder of a mother by her child must always be revenged, that such revenge is the oldest and deepest justice there is, that this revenge is a law of nature. When Apollo ordered Orestes to kill his mother he has himself broken ‘the oldest laws that destiny wove into the brains and bodies of men’. The work of the furies is likewise part of the fabric of the universe:

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Law is everlasting And we are the everlasting Enforcers of the law. We are hated. But the law cannot bend or renounce its course.16

Apollo counters that this is selective justice indeed because only the killer of mothers is persecuted and the killer of fathers is let free (the furies do not concern themselves with Clytemnestra’s killing of Agamemnon). Is then the act of murderously breaking the holy contract of marriage, instituted by Zeus himself when he married Hera, not a sacrilege? Apollo asks rhetorically. And he concludes: This may be the law of the earth But it is not human justice.17

These lines give a succinct summary of the conflict and they indicate the hardest of hard cases, one in which claims of natural, even divine law, invoked by gods, oppose one another. At his point Athene, goddess of wisdom, awakens to the conflict and she is asked by the furies to intervene and give her judgment. But their request is a conditional one: FURIES Try him. Hear the facts. Then give judgment. ATHENE But will you accept my decision? FURIES We trust your Father’s name and his great wisdom.18

The furies want judgment, but only accept the ‘right answer’ and they are unshakeable in their conviction what this right answer is. Orestes, on the other hand, unconditionally submits to the authority of Athene and points out to her that he has already performed the purifying rituals so that he is again a clean person, who is by law legitimated to speak on his own behalf. When the furies and Orestes have stated their case, it is immediately clear that this conflict requires special measures. ATHENE This case is too deep for a man. Nor should I let the law, like an axe, Fall mechanically on a murderer. Especially since you came to my temple As a supplicant Fully cleansed of your crime. But your accusers have to be heard And if their case fails – what happens to their anger? It whirls up into the air, it blackens heaven, It falls like a plague on Athens.

16 17 18

Aeschylus, The Oresteia, trans. Ted Hughes, New York 1999, 151-198, at 169. Aeschylus/Hughes (note 15), 162. Aeschylus/Hughes (note 15), 171.

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Falls like a curse on Athens. How am I to deal with the dilemma? Let me select a jury of the wisest Among the citizens of this city. Let them be the first of a permanent court Passing judgement on murder. They shall be sworn in To integrity and truth. They shall have the full use of my wisdom.19

In this passage, we see the originating moment of the judicial office imagined. It comes already with some of the most important expectations and understandings that are still part of the institution of the judicial power: the requirement that both parties be heard, the demand of wisdom on the part of the judges, the recognition of complexity exceeding the powers of one person alone, the values of integrity and truth. And it also clearly contains the recognition of the disaster that will befall the community when the case cannot be solved in such a way as to convince both parties to the conflict of its justice. Truly, a dilemma has presented itself. Is this the way out? The furies immediately voice their doubts about Athene’s invention of the jury; they say it is an evil day on which ‘true and false exchange faces’; they are worried that the jury, by a willful act of juggling, will exculpate the killer and so provide a dangerous precedent for other potential murderers. The furies are strongly in favour of strict and harsh laws, saying that ‘man cannot do good without fear of the consequences of doing evil.’ Only when all people fear the law, will there be social peace. ‘Lawless freedom is evil.’ Family life and hospitality are only possible when nobody can escape the harsh justice of the laws.20 When the jury has been installed, the debate shifts from a debate between the furies and Orestes to a debate between the furies and Apollo. The god is now taking upon himself the role of the advocate, referring to his sacred protection of Orestes and deriving from this the right to speak in his defence. Athene announces a number of elementary rules of procedural law, ordering the plaintiffs to speak first and to present a charge which must be heard in full, and in all detail, by the whole court. The instability of these rules, or their lack of entrenchment in this imagined early law scene, manifests itself when the furies limit their charge to the simple claim that Orestes has killed his mother, after which they start to question him. Their questioning relapses into repeated accusations, however, made with such violent force that Orestes turns to Apollo (his advocate) to help him defend himself. Apollo, in his turn, obviously has not yet had time to internalize the procedural rules and expectations that belong with the institution of a court, because when he starts speaking he claims to speak not as a lawyer presenting his partisan point of view but as the god of prophecy, whose words ‘are just and true’. This rhetorical claim is not acceptable to the furies who keep interrupting his argument with counter arguments. In the ensuing impasse, Athene takes upon herself the procedural responsibility of deciding that the arguments have now all been heard and that the jurors must go on to ‘consult their conscience and cast their vote’.

19 20

Aeschylus/Hughes (note 15), 172-173. Aeschylus/Hughes (note 15), 173-174.

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There follows an important passage, in which Athene speaks with all the authority of a legislator, explaining to all concerned what the responsibilities and the duties are of the jurors, not only in this case but in all subsequent cases of murder that will be brought to justice; she uses here the general voice that is so distinctive of the legislative process. Athene also makes the novel claim that the laws which have to be applied in this case are laws of wisdom, and so laws of her own making (Athene being the goddess of wisdom) – ‘I open on this rock the pure spring of my laws’ – but that they will have to be strictly applied so that people will fear the laws. ‘It is fear that crowns the law with a halo of sanctity’, thus implying that the sanctity is not (only) inhering in the laws themselves but a product of social interaction.21 While the jury starts deliberating, the verbal battle between the furies and Apollo continues, both parties making barely veiled threats to the jurors about the dire consequences of the ‘wrong’ outcome. The furies threaten to curse the land and the city of Athens, Apollo invokes the wrath of Zeus who as a newer God is supposedly on his side. Facing this turmoil, Athene again intervenes. She reclaims the power of final judgment for herself, so filling a gap in the procedural rules. When, as seems suddenly likely, the jury will be evenly divided between the two equally strong positions, Athene will have to decide the stalemate; the law cannot be undetermined. And she announces beforehand where her sympathies lie: she will vote for Orestes in the case that the jury is equally divided. When the vote is counted, this is indeed what happens and Athene, in conformity with her own lawmaking, concludes that her vote decides the matter and that Orestes is acquitted. Is this the end of the matter? Apollo and Orestes are content and promise their support for the people of Athens. The furies, however, proclaim their unmitigated horror: The earth is overthrown. Our laws are obsolete. You younger gods Who argue us out of court And rob us of what is ours You violate creation! You dishonour the voice Of the blood and the earth. Now that voice Shall burst through this land like a mass madness, It shall fall, as if from heaven, In a deadly rain On plant and beast and child. (...) The voices of blood and the earth Take their revenge.22

Athene seems to have succeeded merely in initiating a new cycle of violence, now on the level of cosmic disharmony, threatening the future welfare of the city of Athens. Athene now abandons her exalted position as divine judge, or divine legislator, and instead takes on the position of the advocate; but truly this time, unlike Apollo, as a

21 22

Aeschylus/Hughes (note 15), 182-183. Aeschylus/Hughes (note 15), 187.

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partisan lawyer arguing a worthy case. She makes use of the resources of the art of rhetoric, pleading with the furies to give up their drive for revenge and see reason. Take for instance these metaphors: Let your rage pass into understanding As into the coloured clouds of a sunset, Promising a fair tomorrow. Do not let it fall As a rain of sterility and anguish On Attica.23

But the furies only repeat their angered cry for justice: Our old laws are crushed under the new. Our justice is buried, like the ashes of Troy.24

Athene’s response is inspired. She digresses from her argument for conciliation between the opposing forces in order to sing the praise of the art of persuasion, which in her vision is a gift of the gods that will bring the possibility to solve conflicts in a less bloody and violent way and so be productive of peace and prosperity. Athene opens her plea with an authority argument, reminding the furies of her own superior position as daughter of Zeus, and immediately after that she uses the authority argument to plead for argumentation instead of brute force and so, as it were, revokes or mitigates her exalted position again. You call for justice. But God speaks through me. Only I, Pallas Athene, Possess the key That unlocks the thunderbolt of Zeus. But the time of brute force Is past. The day of reasoned persuasion With its long vision, With its mercy, its forgiveness, Has arrived.25

Only the soft and civilizing power of rhetoric, Athene argues, can make an end to the bloody cycle of violence. The furies themselves will acquire a better, more exalted status: they will be honoured by the people of Athens, they will receive offerings, they will be witnesses to the holy sacraments of marriage and childbirth. The furies at first do not give up their anger, but when Athene continues her rhetorical strategy of submission from a position of superiority, and flatters them, saying that she ‘bows’ before their great age and wisdom, they begin to soften and after some more argument from Athene they give in to her.

23 24 25

Aeschylus/Hughes (note 15), 188. Aeschylus/Hughes (note 15), 188. Aeschylus/Hughes (note 15), 189.

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Your words have stirred us. They have melted our anger.26

In this way, the origination of the law court brings in its wake the birth of persuasion as the art and technique of conflict management. And the social organization of courts as institutions for dispensing justice – and that clearly includes revenge, it is a harsh kind of justice – simultaneously means the conversion of terrible powers of destruction into constructive powers that will make Athens into a flourishing city. The furies (erinyes) have turned into well-wishers (eumenides). They promise to do yet more than bless marriages and childbirths, they will also ‘bring health to flocks and herds’; welfare will go together with a regime of justice. In the conclusion of the play, Athene famously declares that ‘in the gentle combat of persuasion good wins over good with goodness and none lose’.27 Avoiding civil war, ‘the most malignant of misunderstandings’, Athens will prosper because it has found the right balance between opposing forces.28 This reading of Aeschylus’ Oresteia suggests the idea that the mythical account of the origin of the court as a legal institution is itself an act of rhetoric in more than one sense. It is, on one level, a celebration of persuasion as the social art at the basis of legal institutions which contribute to peace and prosperity by controlling the violence of conflict. It is, on another level altogether, a forceful reminder that the establishment of law and its actual operation are themselves not free from conflict and that all of the constitutive expectations about law and lawyers have to be argued for, have to be made real in difficult conditions, under pressure of dilemmas that make argument and decision at times almost impossible. Aeschylus certainly speaks to his contemporary audience, perhaps extolling the virtues of the Athenian polity and that would make his a rhetorical performance of an epideictic nature; we cannot know exactly what the audience would have found the meaning of the play. But he also holds a message for our modern law: that in making law productive, it has to confront and make use of powers which are violent and disruptive. There is no perfected legal institution, no complete legal system, no law that is only socially useful, no law working itself pure. Law is a difficult and precarious achievement, today no less than in the past. So, in this sense, Fitzpatrick is right in saying that ‘law ever takes the place of the origin’.

4

ILLUSTRATION: THE CLASH BETWEEN TRIBAL AND NATIONAL JUSTICE

The presence of originary motives in actual conflict resolution practices is illustrated by the clash between tribal and national justice. An interesting case, exhibiting the cycle of revenge and the potential for disruption of civil life, recently occurred in Pakistan. A tribal court (panchayat or jirga) in a village in the Punjab convicted a woman

26 27 28

Aeschylus/Hughes (note 15), 192. Aeschylus/Hughes (note 15), 195. N. Loraux, The Divided City; On Memory and Forgetting in Ancient Athens, New York 2002, 15-39, 93, 122.

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who was a sister of a boy who had an illicit affair with a woman from another clan (the Mastoi), to undergo the punishment of group rape by members of this powerful clan. The tribal court found that the illicit relationship was an ‘insult’ to the Mastoi clan and that the best way to redress this insult was to order the group rape of the sister of the perpetrator of the crime. This violent punishment was executed but it was not accepted by the punished clan, nor by the local imam who condemned the punishment as contrary to Islamic law. The local police (who had been informed beforehand of the announced punishment) had refrained from taking action but under pressure of the national media who brought the scandal to the attention of the national authorities, the perpetrators of the rape and the members of the tribal court were arrested and prosecuted. A special antiterrorism court convicted a number of these men to death. At the writing of this paper, appeal of this decision had been announced.29 This is clearly a case of partial, and unsuccessful origination. National jurisdiction is claimed in a forceful way, taking the place of the tribal jurisdiction of the panchayat. But the application of national law and the elimination of tribal authority over the matter does not lead to a conciliation of the opposing forces. The cycle of revenge is for the moment interrupted, but when the national decision will be executed, the cycle is likely to start again and with a vengeance. The Mastoi clan has already announced that for every member of their clan who is killed they will kill two members of the competing clan. It is doubtful that the national government will be able to prevent this and uncertain whether the perpetrators of these announced killings will be brought to (national) justice. The difficulty in this case is the limited power and the limited legitimacy of the national government in these parts of the Punjab which are effectively ruled by a small number of economically powerful families. The tribal courts are instruments in the hands of these clans; their jurisdiction is usually accepted by the inhabitants but is not based on a national statutory provision. It is unlikely that the national court system will be able to assert its authority in such a convincing way that the powers of destruction (erinyes) can be turned into forces that further the good of the community (eumenides). The socially useful art of persuasion is not in common possession here; the underlying common morality that makes the art of rhetoric effective as an instrument for non-violent conflict resolution, is likewise absent. In this case we can also see reflected an anticipation of the second meaning of law’s beginning: the emergence of living law. Because this seems to be a situation in which the authority of the nominal and national government is not fully vested and in its shadow an altogether different power structure and legal regime assert themselves. Weakening the position of the national legal system is the circumstance that in Pakistan both western and Islamic law are valid sources of law, even when they are in conflict (such as in this case over the death penalty on rape). The paradigm of ‘living law’ lays the origin of new law with the regulative forces of the social systems that partially obey and partially ignore, evade or resist official law and in the process effect its transformation. But the tribal court is surely a negative instance of this

29

Maarten Barends, ‘Tribale rechtspraak instrument clans’, NRC Handelsblad, 2 September 2002.

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process. Under what conditions can law that originates from society and not from the state be a constructive force? This question leads to our second excursion into law’s beginning.

5

LIVING LAW: SOCIOLOGICAL AND ANTHROPOLOGICAL JURISPRUDENCE

The appeal of ‘living law’ rests on a double change of perspective. Positivism focuses on ‘valid’ law and this always means the law that has been promulgated in the correct manner by organs of the state. For this point of view the adherents of living law substitute a view from the standpoint of society: state law can only be effective, they claim, in as far as it is accepted in society and to the extent that socially powerful actors have transformed it into instruments that are useful to them. The law is then not seen from the top down, as in positivism with its Stufenbau (Kelsen), but from the bottom up, in an inverted Stufenbau.30 Natural law studies the universal characteristics of law, the principles and concepts that right reason establishes everywhere, even contrary to posited laws that offend these universal and rationally defensible norms. The advocates of living law reject this perspective as far too rigid: universal dictates of reason always only take shape in local interpretations and variants, they say, and it is not clear why an absolute value should be assigned to principles thought out by theorists of law using their right reason; on the contrary, the reasonableness of law resides in the numberless activities aiming at shaping and interpreting the law, engaged in by a great variety of participants in the legal practices of the societies they live in; if there is justice to aspire for in law, it has to be local justice.31 The law is then not seen as a general phenomenon with local variations, but as a local phenomenon – or field of forces – that may or may not extend to other fields under its influence and that always obeys a bounded rationality. In taking a different point of view from both positivism and natural law, the adherents of living law are interactionists who value the reasonable expectations people have of their law and their legal institutions in the circumstances of their lives, but they give this interactionist approach a normative direction: the living law, emerging from social interactions, is considered to be useful and good. Customary law and the law generated by contracts are in principle superior to legislation and mediation is seen as an attractive alternative for the court system.32 There are also branches of interactionism which do not go so far as to privilege one institutional form over another and rather try to understand the possible interactions between them.33 The living law perspective provides critical distance from official and universal law and its adherents are united in their critique. They all object to the lack of responsiveness and flexibility found in official law; they all deplore the lack of vision

30 31 32 33

D.J. Elzinga, De staat van het recht, Zwolle 1990, 20-37. J. Elster, Local Justice, Cambridge 1992. R.C. Ellickson, Order without Law; How Neighbors Settle Disputes, Cambridge Mass. 1991. L.L. Fuller, The Principles of Social Order, Durham 1981; W.J. Witteveen and W. van der Burg (eds.), Rediscovering Fuller; Essays on Implicit Law and Institutional Design, Amsterdam 1998.

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that goes with the belief in the virtues of centralized and bureaucratic problem-solving. When it comes to describing and understanding the subversive and constructive potential of living law as ‘beginning’ law, there are important differences, however. These differences manifest themselves in the generative metaphors for social life these authors prefer: the machine metaphor of organized social control (Pound), the organic metaphor of group solidarity (Ehrlich) and the network metaphor of chains of interacting individuals (Moore).34

5.1

Pound

The sociological jurisprudence of Roscoe Pound centers on the recognition that there is always, and principally, a difference between official law and law that is actually put into practice, between the ‘law in the books’ and the ‘law in action’. There are always tensions between the rules that purport to govern the relations between men and the rules that actually govern them. One reason for this is that the accepted ideas of the jurists continually lag behind the newest development of the economy, the society, the technology, the culture which would require new ideas. Legislators and judges enforce their ‘pictures of an ideal social order’ but, as Pound puts it, ‘these are not photographs of the social order of the time and place. They are instead much more idealized pictures of the social order of the past, undergoing a gradual process of retouching with reference to details of the social order of the present.’35 Another reason for the differential between the law in the books and the law in action is that social actors, in trying to achieve their interests are driven by their own conceptions of values and that this mix of motives can be very different from the mix of motives recognized by law. The socially supported interests and values are usually the stronger ones and – at this point the argument becomes clearly normative – they should provide orientation for the continual adaptation of official law to the social needs as expressed through interests and values. Social science is needed to provide evidence of the latest developments in both the material conditions of life and the normative orientations of people. In light of this information the jurists, especially the legislators and the judges, must then attempt to adapt the law to the needs expressed in practices of law. While Pound always rejected an overly mechanical way of envisioning this process, he does assume that social cooperation leads to an almost machine like adaptation of all the involved actors vis-à-vis each other. Social control is the task of an adaptive legal system; the job of adaptation is expressed as one of social engineering: society as a machine we must know and value in order to be able to steer it towards the better realization of its interests and values. Social control is not a one-directional process originating from the top of society, but a cyclical process of political organization.

34 35

D.A. Schön, ‘Generative Metaphor’, in: A. Ortony (ed.), Metaphor and Thought, Cambridge 1979, 254. R. Pound, Social Control through Law, New Haven 1942, 1997, 118.

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Social control makes it possible to do the most for the most people. As the saying is, we all want the earth. We all have a multiplicity of desires and demands which we seek to satisfy. There are very many of us but there is only one earth. The desires of each continually conflict with or overlap those of his neighbours. So there is, as one might say, a great task of social engineering.36

The legal system must not and cannot accommodate all conflicting desires, only those that are recognized as legitimate interests. Pound compiles an enormous inventory of social interests that, in his view, deserve recognition in law and that open up the spectre of continual processes of social engineering. His system comprises six main categories: 1 The social interest in general security 2 The social interest in security of social institutions 3 The social interest in general morals 4 The social interest in conservation of social resources 5 The social interest in general progress 6 The social interest in individual life There are many subcategories as well. Pound’s view of ‘living law’ is one in which the established legal institutions show themselves responsive to changing social priorities expressed through this vast repertoire of social interests. Only as a result of pressures and counter pressures from society can the aspiration of social engineering be productive of welfare. The vitality of a legal system depends upon this ongoing process of social renewal.

5.2

Ehrlich

The sociology of law developed by Eugen Ehrlich is in many respects comparable to Pound’s sociological jurisprudence. (And it is Pound who introduced Ehrlich’s work in the United States.) The expression ‘the living law’ is Ehrlich’s and it is reminiscent of Pound’s idea of ‘the law in action’. But Ehrlich in fact makes a different distinction than Pound.37 He opposes the legal proposition – as the precise, universally binding formulation of the legal precept in a book of statutes (and so the ’law in the books’) – to the legal norm. This is ‘the legal command, reduced to practice, as it obtains in a definite association (...) even without any formulation in words.’38 So, the legal norm may be independent from any legal proposition; it may within the confines of the association even be their ‘law in the books’, their own internal code. The ‘action’ need not be the action contrasted with the law in the books, but a normativity generated within the practices of a well-ordered group. In fact, for Ehrlich social control is not an important ambition; he is even very sceptical of the possibility to achieve social control through legislation or by other legal means in the hands of the state. From legal history we can learn that ‘even at a

36 37 38

Pound (note 34), 64. Hertogh (note 4), 50. E. Ehrlich, Fundamental Principles of the Sociology of Law, New York 1936, 1975, 38.

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time when the state had already gained control over legislation, great changes were always taking place in the law that were not brought about by legislation.’39 And he believes that the contemporary belief in the omnipotence of legislation is ill-founded and leads to a ‘naïve dilettantism’ which supposes it can abolish an existing evil by forbidding it.40 In the foreword of his Fundamental Principles of the Sociology of Law, Ehrlich sums sup his thinking in one sentence: ‘At the present as well as at any other time, the center of gravity of legal development lies not in legislation, not in judicial decisions, but in society itself.’41 In elaboration of this thesis, Ehrlich makes clear what this ‘center of gravity’ is: the social association. Individuals always organize in groups of various kinds and then have to conform to the legal and non-legal norms that obtain in these groups. A social association is ‘a plurality of human beings who, in their relations with one another, recognize certain rules of conduct as binding, and, generally at least, actually regulate their conduct according to them.’42 Here we see the organic metaphor come to the fore. ‘The inner order of the associations of human beings is not only the original, but also, down to the present time, the basic form of law.’ ‘In all legal associations the legal norm constitutes the backbone of the inner order.’43 Ehrlich here builds on the work of Gierke who placed the law of the corporation (Gemeinschaft) at the centre and contrasted this legal regime with more individualized regimes such as those of private law. But for Ehrlich, the antithesis between social and individual law is unwarranted, as this interesting passage makes clear. All law is social law. Life knows not man as an utterly detached, individual, and isolated being, nor does the law know such a being. The law always sees in man solely a member of one of the countless associations in which life has placed him. These associations, inasmuch as they bear a legal stamp, are being ordered and regulated by law and by other social norms; it is the norms that assign to each individual his position of domination or of subjection and his function. It is true, membership in the association occasionally, but by no means always, gives rise to individual rights and duties, but this is not its purpose, is not its essential content.44

What is in the context of this organic theory of social life the ‘living law’? ‘The living law is the law which dominates life itself even though it has not been posited in legal’, Ehrlich writes, so it accordingly consists of the legal norms people live by.45 Ehrlich recommended the study of many sources, from legal documents to interviews with people about their motivations, from which the legal norms of the living law can be inferred or reconstructed; this is his contribution to sociological method. Empirical knowledge is not only valuable in its own right, however, it must be sought because ‘the knowledge of the living law has an independent value, and this consists in the fact that it constitutes the foundation of the legal order of human society.’46 We have returned to the theme of laws beginning in the sense of law’s foundations; but for 39 40 41 42 43 44 45 46

Ehrlich (note 37), 391. Ehrlich (note 37), 411. Ehrlich (note 37), xv. Ehrlich (note 37), 39. Ehrlich (note 37), 37-40. Ehrlich (note 37), 42-43. Ehrlich (note 37), 493. Ehrlich (note 37), 502.

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Ehrlich these are not a set of normative principles or an originary event that is ritually repeated, but the reasonableness and practicality of legal norms actually being used in social associations.

5.3

Moore

Pound and Ehrlich are by now classic figures in the research tradition of socio-legal studies;47 but it is perhaps useful to recall the normative intent of their activities. Their concern with the social conditions for a vital legal system finds support from more recent studies in the anthropology of law. Sally Falk Moore developed the idea of ‘semi-autonomous social fields’ on the basis of fieldwork among the Chagga in Tanzania, as well as upon a study of the functioning of the dress industry in New York. For her no theoretical distinctions between the law in the books and the law in action or between legal propositions and legal norms; her unit of attention is the social field constituted by chains of interacting individuals (forming networks) and it includes all of the normative activities going on in this field.48 But like her predecessors, Moore also concludes that state law is not automatically effective and that it is effective, if at all, on the terms defined by the participants in the social fields; by their power relations, by the patterns of acceptable interaction, and especially by demands of reciprocity developed in social and economic exchange. Unlike Pound, she conceives of the state, of the official system of politically guided social control, not as a particularly responsive or adaptive system but as a semi-autonomous field itself that sometimes actively impinges upon other functioning semi-autonomous fields and sometimes remains at a distance, providing participants in semi-autonomous social fields with a normative source of authority they can use to further their own ends or with an alternative to internal mechanisms of conflict resolution. Unlike Ehrlich, Moore does not take the social association as an organic whole but observes crisscrossing patterns of interaction within and between associations and organized activities; she does not suppose that reasonableness or practicality ordinarily are the natural results of the workings of these systems. All kinds of imbalances and injustices may occur. The social fields are not fully autonomous; they are semi-autonomous and this means that the field under study ‘can generate rules and customs and symbols internally, but that it is also vulnerable to rules and decisions and other forces emanating from the larger world by which it is surrounded.’49 The case studies lead to Moore to hypothesize that the ubiquitousness of semiautonomous social fields severely limits the possibilities for regulation available to central governments and that legislation is at best a very limited instrument of social control. ‘Innovative legislation or other attempts to direct change often fail to achieve their intended purposes; and even when they succeed wholly or partially, they frequently carry with them unplanned and unexpected consequences. This is partly be-

47 48 49

B.Z. Tamanaha, Realistic Socio-Legal Theory, Oxford 1999, 91-128. Moore (note 3), 57. Moore (note 3), 55.

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cause new law is thrust upon going social arrangements in which there are complexes of binding obligations already in existence.’50 The vitality of law clearly is on the side of the social arrangements rather than on the side of the central government. Like Ehrlich, Moore stresses the ability of social actors to turn the precepts of official law into rules that are used for practical purposes (for instance as tools to gain a better bargaining position). ‘A court or legislature can make custom law. A semi-autonomous social field can make law its custom.’51

6

A POLIS FOR THE BLIND

How does law begin to be socially meaningful in ‘action’ (Pound), in ‘human associations’ (Ehrlich), or in the ‘semi-autonomous social field’ (Moore)? Is it due to succesful social engineering, responding to the articulated interests of a politically wellorganized society, as Pound suggests? Is it a matter of the solidarity that is natural to human associations if left to develop according to their own internal dynamics, as Erlich hopes? Or is it an accidental phenomenon obeying economic and social laws governing the interactions between participants in a network, as Moore implies? That these are not the only scenarios, is born out by Saramago’s novel The City of the Blind, a powerful evocation of what happens when the official state order with its laws and regulations breaks down and living law starts to assert itself. In an unnamed city, people are suddenly going blind in what turns out to be an unexplainable epidemic of blindness (one of the first victims is an eye doctor). The authorities immediately decide to fight the epidemic by isolating the blind, by locking them up in an abandoned mental asylum. There they will have to fend for themselves, coming to terms with their blindness, in a building that soon becomes overcrowded. The book traces the adventures of the first few people who became blind: the first blind man, the girl wearing sunglasses, the small boy who lost his mother, the old man, the eye doctor and his wife. As a result of the state’s method of isolation they form an elemental group, a human association of some kind, interacting with many other persons and nascent groups. While they try to organize themselves in order to survive, helped by the wife of the eye doctor who did not want to leave her husband and is only pretending to be blind, they are confronted by another primitive group, consisting of thieves and rogues who, aided by the possession of a gun, violently take control of the situation. In the institution a desperate struggle for survival takes place. The outside authorities police the building and shoot everyone who threatens to escape, failing to provide sufficient food and medicine, leaving the distribution of these scarce resources into the hands of the people gathered in the building. The band of thugs monopolizes the food and manipulates the other inhabitants, stealing all valuables and raping the women. After many tribulations, the woman who can still see kills the chief criminal holding the gun. Chaos ensues. The group of first inhabitants, still led by the seeing woman, manages to escape the building; they

50 51

Moore (note 3), 58. Moore (note 3), 79.

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discover that the military have by now disappeared. In fact, the blindness epidemic has continued all this while and it has totally eliminated all the official institutions of the state and it has completely upset the economy. The city is now inhabited only by blind people desperately looking for food and shelter, in appalling hygienic conditions. In this city of the blind, the group starts to build up some kind of an ordered life, gradually learning how to manage this. The book ends with the return to a normality that can never be ordinary any more: as suddenly as the epidemic started, it also subsides. Saramago’s book is one vast meditation on the proverb ‘In the kingdom of the blind, the one-eyed man is king’. Be it that here a very modest woman is in the role of the king and the blind do not form a kingdom, a term which suggests a hierarchical order, but an association desperately in search of a viable social contract. Saramago’s interpretation of the proverb nicely comes out in this passage, a dialogue in the primary group after they have discovered that the city is in disarray and that they will have to organize themselves. In a way, they have to begin a city within the city, so reenacting the old Greek (Aristotelian) ideal of the polis as an organized form of social life based on friendship among equals. We’re going back to being primitive hordes, said the old man with the black eyepatch, with the difference that we are not a few thousand men and women in an immense, unspoiled nature, but thousands of millions in an uprooted, exhausted world, And blind, added the doctor’s wife, When it starts to become difficult to find water and food, these groups will almost certainly disband, each person will think they have a better chance of surviving on their own, they will not have to share anything with others, whatever they can grab belongs to them and to no one else, The groups going around must have leaders, someone who gives orders and organizes things, the first blind man reminded them, Perhaps, but in this case those who give the orders are just as blind as those who receive them, You’re not blind, said the girl with dark glasses, that’s why you were the obvious person to give orders and organize the rest of us, I don’t give orders, I organize things as best I can, I am simply the eyes that the rest of you no longer possess, A kind of natural leader, a king with eyes in the land of the blind, said the old man with the eyepatch, If this is so, then allow yourselves to be guided by my eyes so long as they last, therefore what I propose is that instead of dispersing (...) let us continue to live together.52

This is a rich text indeed, reminiscent of the tradition of social contract discourse (Hobbes, Locke, Rousseau), but also showing an almost Aristotelian spirit of friendship that at this point in the novel already informs the relationships between the participants to the dialogue. The imaginative effort to make a new beginning, to create one’s own living law, is also clearly present throughout the story. And this raises other questions. How does Saramago’s vision relate to the central tenets of sociological and anthropological thinking about living law we have just discussed? How does his metaphor of the polis of the blind compare to the metaphors of social organization espoused by these approaches?

52

José Saramago, Blindness, London 1997, 242-243.

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Saramago and Pound

Pound opposes the law in the books to the law in action. In the city of the blind, the law in the books effectively comes to an end and there is no parallel law in action that is a modification or a transformation or a variation on the official rules. At the moment of separating the blind from the seeing, the official legal system manifests itself in a very forceful way, however. When the blind people have been deported to their new abode, a loudspeaker pronounces the state’s orders for their stay. The Government is fully aware of its responsibilities and hopes that those to whom this message is directed will, as the upright citizens they doubtless are, also assume their responsibilities, bearing in mind that the isolation in which they now find themselves will represent above any personal considerations, an act of solidarity with the rest of the nation’s community. That said, we ask everyone to listen attentively to the following instructions, first, the lights will be kept on at all times, any attempt to tamper with the switches will be useless, they don’t work, second, leaving the building without authorisation will mean instant death, third, in each ward there is a telephone that can only be used to requisition from outside fresh supplies of hygiene and cleanliness, fourth, the internees will be responsible for washing their own clothes by hand, fifth, it is recommended that ward representatives should be elected, this is a recommendation rather than an order, the internees must organise themselves as they see fit, provided they comply with the aforesaid rules and those we are about to announce...53

The futility of these commands and those that are still to follow will soon become evident. The rules are as unresponsive and unimaginative as they are insufficient to meet the needs of the internees; they offer no useful guidelines to the blind and only the prohibition on leaving without authorisation (but this can in no way be obtained) will be enforced violently. It is particularly striking that the official legal voice foresees the necessity for the blind people of establishing their own organization, of making their own law. At this point they suggest the election of representatives, but this not an order, just a recommendation. The internees are in fact told that they are free to do as they like to further their own interests as long as they do abide by the state’s orders. We cannot even call the implied authorization to achieve some kind of organization useful to the blind in their dark city a subsequent ‘law in action’ following the ‘law from the loudspeaker’ because it is in no way related to it and because there is no rational mechanism of control from the official legal system on the informal one (if we can call it that). The authorities do not even know what goes on inside the building and they clearly do not seem to care very much, showing on their part a condition of moral decline. The official legal system has, in fact, long ago collapsed into a bureaucracy that is unresponsive, does not aim to adapt to changing demands from society, does not base itself on socially articulated interests and does not aim to be successful in the art of social engineering. Pound’s implicit metaphor of the machine in which all the parts are adapted to each other is not apt here; rather the officials are metaphorically in the dark as to how the blind people function and the blind are literally in the dark about the way they must organize in order to survive.

53

Saramago (note 52), 41-42.

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Saramago and Ehrlich

For Ehrlich, the locus of living law is the human association. In the city of the blind the internees make faltering efforts to turn a chance gathering of individuals into some kind of civilized human association, but these efforts are thwarted by individuals seeking their own gain. The most successful initiative is a criminal association managing to subdue and exploit the blind individuals. There is a ferocious struggle to survive going on in which the positive effects of human association are discernible only momentarily, while the threat of an all-out war of all against all is always present. Chance events and blind injustice disturb rational strategies of peaceful cooperation. Living law is at most a memory or a wish, not the reality of social life. ‘The blind will turn into animals, worse into blind animals’, the woman who can still see considers in the midst of the struggle and another voice adds: fighting has always been a kind of blindness.54 Yet, in the midst of the intensifying struggle there are scenes in which the first gathering of blind people enters into a dialogue creating a common bond between them and producing a common stance in the face of injust demands. While Ehrlich assumes there are always already associations in place to which people belong and which possess normative force, Saramago shows how a social contract is emerging (but how fragmentarily and precariously) between people who are ready to cooperate. When the band of thieves demands valuables in exchange for food, this dialogue ensues: I refuse to hand over my belongings to these sons of a blind bitch, someone remarked, Nor I, joined in another, That’s it, either we all hand over everything, or nobody gives anything, said the doctor, We have no alternative, said his wife, besides, the régime in here must be the same as the one they imposed outside, anyone who doesn’t want to pay can suit himself, that’s his privilege, but he’ll get nothing to eat and he cannot expect to be fed at the expense of the rest of us, We shall all give up what we’ve got and hand over everything, said the doctor, And what about those who have nothing to give, asked the pharmacist’s assistant, They will eat what the others decide to give them, As the saying rightly goes, from each according to his abilities, to each according to his needs.55

In this remarkable dialogue the specter of righteous but useless resistance is quickly turned into a proposal for social cooperation and for internal solidarity among the exploited. Norms of reciprocity and benevolence are asserted. There are more passages which show how human association is forged in hardship and how an elementary law is beginning in the process. But these are always fragments in an ongoing struggle and the proposed maxims for behaviour are immediately threatened again by new developments. Saramago envisions the difficulty of social organization when the support for human association from an established public order is forcibly removed. The living law of the human association, far from dominating all official expressions of law, is actually seen to depend upon at least a minimally effective state organization. The metaphor of the social organism is rather misplaced here and it is perhaps more illuminating to see the unregulated city of Saramago’s book as a model for the struggles from which law and justice sometimes do and sometimes do not emerge.

54 55

Saramago (note 52), 126-127. Saramago (note 52), 134.

Law’s beginning

6.3

243

Saramago and Moore

When Moore, reversing more orthodox wisdom, states that a semi-autonomous social field can make law its custom, the city of the blind makes clear that while this is a theoretical possibility, there is no guarantee that the interactions between the people who take part in the process will lead to rational adaptation to mutual advantage and to the acceptance of an arrangement as its law. The scene in the beginning of the book where the blind listen to the commands of the state finds an interesting counterpart in a scene at the end of the book where the blind, now at loose in the city that is without any government, through speeches try to convince each other of the advantages of various forms of social, legal and political organization. As the official commands will turn out to be unworkable and unenforceable, so the speeches propose normative models that can in the new situation no more be realized. They crossed a square where groups of blind people entertained themselves by listening to speeches from other blind people, at first sight neither group seemed to be blind, the speakers turned their heads excitedly towards the listeners and the listeners turned their heads attentively to the speakers. They were extolling the virtues of the fundamental principles of the great systems, private property, a free currency market, the market economy, the stock exchange, taxation, interest, expropriation and appropriation, production, distribution, consumption, supply and demand, poverty and wealth, communication, repression and delinquency, lotteries, prisons, the penal code, the civil code, the highway code, dictionaries, the telephone directory, networks of prostitution, armaments factories, the armed forces, cemeteries, the police, smuggling, drugs, permitted illegal traffic, pharmaceutical research, gambling, the price of priests and funerals, justice, borrowing, political parties, elections, parliaments, governments, convex, concave, horizontal, vertical, slanted, concentrated, diffuse, fleeting thoughts, the fraying of the vocal cords, the death of the word. Here they are talking about organisation, said the doctor’s wife to her husband, I noticed, he answered, and said no more.56

If these are ‘dead words’, according to the text of the novel, where is the living law? The network metaphor stresses that norms which are really accepted and effective in a field must emerge from interactions, and so from a social process, but this metaphor does not capture the way moral considerations enter into this ongoing stream. Saramago shows one of the moral resources people have when their ‘field’ is in upheaval (and has lost the quality of being semi-autonomous): the maxims and folk wisdoms of one’s cultural heritage because these are a kind of natural law people fall back on. If we cannot live entirely like human beings, at least let us do everything in our power not to live entirely like animals, words she repeated so often that the rest of the ward ended up by transforming her advice into a maxim, a dictum into a doctrine, a rule of life, words which were deep down so simple and elementary, probably it was just that state of mind, propitious to any understanding of needs and circumstances ...57

56 57

Saramago (note 52), 294-295. Saramago (note 52), 111.

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In conclusion, it can be said that reading Saramago about law’s beginning after the collapse of official law yields important corrections to all three sociological and anthropological approaches stressing the vitality of living law. The novel makes clear that the law in the books can become meaningless when social order breaks down and that instead of a law of action there can also be an uncertain struggle for survival; it also shows that what happens in human associations is not necessarily decisive nor legitimate and that networks of interacting people do not automatically develop effective processes to arrive at rational arrangements but need to be fed on moral considerations reminiscent of the maxims of natural law. All in all, Saramago’s thrust is less constructivist than the metaphors of the three approaches allow for; in his story the new city is only hinted at, it is not actually built. When the illness suddenly disappears it is more than likely that the old, bureaucratic and corrupt regime will be installed again. Only those individuals who have gone through hell and learned from this are any the wiser; symbolically they have come to see their own blindness. Like Socrates who knew he did not know.

7

ILLUSTRATION: THE GOLDEN RULES OF THE CITY OF GOUDA

The relevance of living law is greatest when law is, metaphorically speaking, dead. This can be said to be the case when the official legal norms are not only ineffective and inoperable but they are also not experienced as legal norms one should live by; dead law is law that has lost its meaning among those who are supposedly following its dictates. When this happens on a grand scale, anarchy and civil war are presumably not far off, but the same process of loss of meaning can also occur in miniature within the context of an otherwise well-organized society. In many inner cities of the modern world there are areas in which the public domain is in disarray: not only are many legal rules of the official legal world here disobeyed (especially criminal law prohibitions), but also there is a vacuum in living law, a lack of socially shared and accepted norms for the informal regulation of disruptive, troublesome or dangerous behaviour. There is no full-scale anarchy or civil war (though there can be a lot of violence), but a lack of public safety, of socially acceptable mores and of social control among citizens. The urgent question then is how in the absence of locally effective legal meaning a living law can be created to civilize the unruly elements that disturb public order. The governors of the Dutch city of Gouda – located between Amsterdam, Utrecht and Rotterdam and sharing many of the inner city problems of these larger neighbours – grappled with this question and found an original response. They would try to stimulate the emergence of living law as a way of unburdening the police and other authorities charged with the maintenance of law and order. But this could only be done if the rules that were to be promoted would not be decided upon unilaterally by the democratic organs of the city of Gouda (and they were well aware, of course, that under Dutch law most relevant official legal rules would have to be decided by other legislative authorities anyway). Moreover, the rules themselves were less of a problem than their interpretation and their adaptation into practical codes of conduct in the streets. Also, socialization into codes of conduct was a

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problem; in a multicultural population there was no guarantee that all young people would learn the same rules and would learn to abide by them, developing into responsible citizens. The solution in Gouda consisted in the development of a code of 10 golden rules, based on a carefully crafted dialogue with many organisations and individual citizens. In the first phase of the dialogue, the city sponsored talks with active citizens who participated in the many associations in the city: schools, clubs, social work, welfare organizations, the police. The civil society of Gouda was mobilized. The question in all of these sessions was: what are the rules that are to be practiced in order to make the city cleaner, safer and more pleasant to live in. As a result of these talks a list of 35 ‘city rules’ was made up. Avoiding legal and governmental jargon, all of these rules point at some concrete behaviour that is desirable or on the contrary prohibited. These rules were grouped into six categories: – mutual respect – living safely together – living space for everybody – clean and tidy – everyone is responsible – open talks In the second phase of the dialogue process, there followed a publicity campaign in which the citizens of Gouda were asked to vote for the rules they thought were needed most. In this informal city referendum – in which 12 % of the population participated – the ten golden rules of Gouda were decided upon. This is the list, ranging the priorities from top to bottom: 1 You have to pay for all the damage you do 2 Do not use violence 3 Clean up your own dirt 4 Hanging around and intimidation is anti-social 5 Speak Dutch and we can understand each other 6 Always show respect 7 Fast driving is flipping dangerous, so don’t be silly 8 Parents teach their own children 9 Don’t pester, don’t bully and don’t discriminate 10 The police is there for all of us, please show respect. As the wording of these ‘golden rules’ shows, an effort has been made to speak the language of the street rather than the language of the law. This is deliberate. The idea is to find simple maxims that can easily be memorized and that have the attractiveness of folk wisdom. The ten golden rules will in the third phase of this project be part of publicity campaigns, they will be used by the police and by other authority figures (like teachers) in their dealings with people who do not follow the code and the discussion about the golden rules will be prolonged further. Perhaps more importantly, there are already a number of projects started to teach young people in all kinds of situation (schools, clubs, entertainment) the importance of living by the golden rules.

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In the Gouda strategy, we can easily discern many of the elements of living law that were discussed before. An attempt is made to diminish the gap between the law in the books and the law in action (Pound); mutual adaptiveness is declared a virtue and the idea of social engineering is transplanted into a new communicative format. The normative potential of associations is mobilized (Ehrlich) and a public space is created for the articulation of the norms that are developed in them. Where associational life does not reach, efforts are made to extend the dialogue and to base practices of social control on them. The moral maxims of ordinary life, the natural law of the city of the blind (Saramago), also get a prominent place in this strategy. If there is one thing lacking, it would seem to be the insight offered by Moore’s anthropology of the semi-autonomous social fields; there is no attention to the way the established networks may actually adapt and change but also subvert the themes of the officially sponsored dialogue. Anyway, there is never a guarantee that official efforts to mobilize the forces of living law will be a successful strategy. When living law is to revitalize a legal regime that is metaphorically dead, the spontaneity paradox is never far off: as one cannot will someone to be spontaneous (because this requires the absence of premeditation), it is equally hard to enjoin someone to be respectful (because respect must be spontaneously awarded to count as true respect).58 Living law as a moral force is hard to mobilize; when the law of the streets is turned into the law of the books, there is bound to be a new law of the streets, escaping from (and being subvertive of) the officialized version. What living law can do to make a new start in disrupted situations, can only be glimpsed at, it cannot be legislated. In Saramago’s book such a moment of insight occurs when the group of blind people have finally found an empty house they can safely live in; a house, moreover, that still has some essential supplies for living (such as clean water). When the exhausted blind sit down on the comfortable sofa’s, the woman who is not blind and who takes responsibility for the management of the new place, almost apologetically reminds the others of the golden rules. ‘Don’t ask me what good and what evil are, we knew what it was each time we had to act (...), what is right and what is wrong are simply different ways of understanding our relationships with the others...’59

8

MINIMAL JUSTICE AND THE PRINCIPLES OF SOCIAL ORDER

The third sense of law’s beginning is the minimal justice requirement. People expect justice to be done and, even more, they expect the avoidance of injustice in the application of the laws. This general expectation can take diverse social and cultural forms and it can find more or less adequate expression in the legal institutions of a society. It is a big and controversial issue what the contents of this minimal justice requirement are and to what degree it can be achieved. Here I will leave this issue to the philosophers and focus only on the way minimal justice figures in the other two

58 59

P. Watzlawick et al., Het kan anders, Deventer 1973, 83-94. Saramago (note 52), 260.

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senses of laws beginning distinguished in this paper: how it is necessary for the fresh start and the living law. Minimal justice demands of legal institutions that they satisfy certain criteria for institutional quality, such as the impartial administration of justice and the equal protection of the laws. This means that the legal professionals who make institutions work must answer to corresponding normative characteristics; they must, for instance, possess the virtue of integrity. Both in the design of new institutions and in the interactions that translate the precepts of law into normative practices, it is important to pose the question how minimal justice can be achieved in them. In the literary sources about law’s beginning we have studied, these questions of the criteria for minimal justice figure rather largely. In the Oresteia, the goddess Athene articulates some of the major constitutive criteria relative to the judicial process, to wit: a permanent court, guaranteed impartiality of the judges, procedures geared to finding the truth, equal opportunities for both sides to the dispute. In The city of the blind, the figure of the woman who merely pretends to be blind but who can in fact see, personifies throughout the story some of the virtues that a wise leader should possess, such as: reflectiveness, modesty, courage, compassion, integrity. But how do these two sets of criteria, for minimally just institutions and for minimally just office-holders, match? Is there a necessary connection between them? An interesting combination can be read in Lon Fuller’s thesis of the internal morality of law. Contrary to legal positivists (Kelsen, Hart) Fuller rejects a clear demarcation line between law and morality as separate domains, but rather holds that within legal practices there will always be the necessity for moral choices to be made by the legal professionals in the performance of their duties and that among these moral choices there are some that relate to the conditions of possibility and of proper functioning of legal institutions such as contracting, adjudication, or legislation. He calls the lawyer the ‘architect of social structure’, stressing the constructive work that lawyers do in order to support human interactions. By the necessity of his profession the lawyer is frequently called upon to become the architect of social structure. This is true not only when great affairs of state are involved and constitutions or international treaties are brought into existence, but in the most commonplace arrangements, like working out a contract for a two years’ supply of paper towels for the rest rooms of a chain of service stations. In a sense, every contract, every testament, every lease – in short, every legal instrument is a kind of constitution establishing a framework for the future dealings of the affected parties.60

This constructive work, which has to be oriented to the practical needs of the parties for whom the legal arrangement or the institution is functioning, requires that certain quality criteria are met, minimally at least. There are contracts and judicial decisions and laws that do not conform to the relevant quality requirements and thus fail to function properly. In order to shape a workable contract or to provide effective adjudication or to create practically useful rules, the institution has to function in a certain way and the lawyers operating the institution must perform accordingly with 60

L. L. Fuller, The Principles of Social Order, Selected Essays, edited by K.I. Winston, Durham 1981, 265.

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requisite skill and a certain practical wisdom. The quality requirements for each type of legal institution comprise its ‘internal morality’; the skill and the practical wisdom are needed to bring this internal morality into fruition. The most famous example of an internal morality is the set of criteria Fuller developed for judging the minimum quality of legislation. Negatively defined, they point at the failure to establish useable rules. Legislative failure means: – not achieving rules at all, so that every issue must be decided on an ad hoc basis – not making the rules known – making retroactive rules – enacting contradictory rules – making rules requiring conduct beyond the powers of the affected party – changing the rules so frequently that stable orientations are impossible – not following the rules as announced in the actual practice of administration61 Legislative success is not the exact opposite (since it does not aim at perfection) but it does entail a conscious and constructive use of all these interrelated criteria of the art of lawmaking. Fuller also speaks in relation to these demands of the internal morality of legislation about ‘laws of lawmaking’. While Fuller is not as explicit about the criteria constituting the internal morality of other legal institutions, he does clearly have in mind a whole set of institutions that together provide ‘principles of social order’. Apart from legislation, the other primary legal processes are adjudication, mediation, contract, and managerial direction. In each of these processes the lawyer participates in a particular way, and in doing so has to make use of a particular set of constructive criteria for the successful use of the institution. Fuller also thinks that all of the institutions have their own conditions of effective application (what types of problems they are suited for) and also have inherent limits (what they cannot achieve).62 He does not envision the mechanical application of these sets of criteria, of these internal moralities, however. In all institutions a crucial role is played by the craft, the competence and the wisdom of the lawyer. The human element can of course fail (...) for lack of a sense of institutional role and a failure to perceive the true nature of the problems involved in constructing and administering a legal system. But if the human element is a possible source of failure, it is also an indispensable ingredient in any just and humane legal system. The complex undertaking we call ‘law’ requires at every turn the exercise of judgement, and that judgement must be exercised by human beings for human beings. It cannot be built into a computer.63

It is my contention that when minimal justice is taken to be the ‘equal’ protection of the laws, the eight elements of the internal morality of legislation together form a useful way of conceptualizing this ideal of minimal justice. Similarly, for the expectation of minimal justice concerning the impartial administration of justice, we can search for a comparable set of elements that together would constitute an internal 61 62 63

L.L. Fuller, The Morality of Law, Revised Edition, New Haven 1969, 39. For an overview, see Winstons Introduction to Fuller (note 60), at 34. L.L. Fuller, Anatomy of the Law, Harmondsworth 1969, 59.

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morality of adjudication. A Fullerian would for instance point at the requirement of independence from outside influences, at the impartiality rule itself, at the conditions for a proper and balanced hearing of both sides to the dispute; and further conditions could well include the ideal of the judicial decision as a faithful interpretation of rules and principles which are already part of the legal system and of the desirability of making this interpretation fit all the facts and circumstances of the case; the demand to adequately reflect the development of legal thinking in society generally; and the requirement of adequate motivation of the decision. Judges orienting themselves on such an internal morality of adjudication would be in a better position to successfully perform their role as ‘architects of social structure’ than judges who systematically violate one or more of these demands. Their professional capability and integrity in dealing with these understood institutional demands make all the difference.

9

FRAGMENTARY MINIMAL JUSTICE

Fuller developed his ideas about the internal morality of law and about the lawyer as architect of social structure in a large number of separate essays, articulating again and again in response to numerous practical problems what are the conditions under which forms of order can be effective, but he did not manage to achieve a systematic synthesis of this interactional approach to the law. Maybe this explains why legal philosophers have so often overlooked these insights. An advantage of the gradual development of ideas through essays has been the freshness and originality of Fullers analyses. Fuller also engages in interesting thought experiments. In some of his best essays, he invents some story in which the ordinary assumptions about law are temporarily suspended and in which law, as it were, begins anew. And these stories are stories about the origins of law. The famous Case of the Speluncean Explorers, for example, places a party of amateurs interested in the exploration of caves into a cave of which the entrance is blocked by a landslide; while the rescue party is under way these people decide to eat one of their number in order to stay alive, being afterwards charged with murder. The Case consists of the dialogue of the judges. It turns out that the process of decision about what transpires in this ‘original position’ reflects important philosophical controversies about judge-made law.64 Fullers account of the internal morality of law opens with the story of the hapless King Rex who, faced with the task of ruling his country by creating rules, fails miserably in this ambition. In the Speluncean Case, the ordinary world is physically removed so that a legal regime has to be forcibly established, in the case of King Rex the legal world is supposedly not yet existent, presenting the challenge of creating a functional legal system ex nihilo. While Fullers mythopoetic devices are developed from within the field of jurisprudence, stories about people who are forced by external circumstances to create some kind of legal institutional life are also found outside of this domain. Abel

64

J. Allan, The Speluncean Case; Making Jurisprudence Seriously Enjoyable, Chichester 1998.

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Herzberg’s story Under the linden tree, articulating his own experiences in the concentration camp Bergen-Belsen, offers a large contrast to the concerns of jurisprudence in even its most imaginative form.65 This is a story about the conscientious efforts of a number of Jewish jurists, detained in the concentration camp and destined to be exterminated by the nazis, to establish a functional court within the closed world of the camp. The Jewish prisoners feel forced to organize their own court, especially in order to deal with the theft of food (in the camp, this crime is a threat to survival). They establish a secret court, comprised of a number of eminent jurists in their midst, meeting in the middle of the night by the light of a candle. The camp commander finds out what is happening and interrogating the jurists about their motives, he is immediately enthusiastic about the whole idea. He understands that where thousands of people are in close quarters, there must be thefts and other crimes. He proposes a public court, as it were under the linden tree (that old German symbol of the administration of justice). The judges do not trust the commander, seeing that he just wants to exert control over what happens, but the commander actually respects their judicial independence. But Herzberg immediately notes that this promise and even the respecting of this promise do not amount to much; outside of the sessions of the court the commander could commit all the excesses he wanted to. ‘And so the justice of the court remained what it ought never be: fragmentary.’ With the word ‘fragment’, we have met the key word of Herzberg’s story. He elaborates a sociological understanding of the fragmentary nature of life in the camp. There is, to begin with, some sense of solidarity among the prisoners, a feeling of mutual responsibility. While there are egocentric people who ‘have the misfortune not to be able to step outside their own situation’, there are also many people who are able to imagine the suffering of others and who care for and help others, even some rare persons who ‘are like a melody’. Within the confines of the imposed order of the camp, there is only very limited space for this kind of solidarity, however. Even families are prone to a kind of group egoism. Social order is fragile. Everything in the camp is under the curse of persecution, Herzberg writes. ‘There are many people together but the lack of society that develops out of its own resources makes them lonely, turns all they do – whether of a high or a low moral stature – into a fragment.’ The fragmentary nature of camp life produces terrible psychic suffering and it effects unreasonable demands, it stimulates a resentment `which is nothing but the unbearable experience of loneliness’. In these circumstances, people do not only steal because they are hungry, but also as a result of loneliness and melancholy, of a ‘mixture of reactions and afflictions for which one’s language has no words and one’s mind has no concepts.’ Such is the tyranny of the fragment. The organisation of the court is an act of resistance against this very tyranny. Maybe this is why it is made to conform to the highest standards of judicial excellence. The principle of fair hearing of both parties is honoured by providing the suspect with a lawyer who used to be the top criminal lawyer in Germany before the

65

A.J. Herzberg, Verzameld Werk 2, Amsterdam 1993, 30-39. All citations are translated by the author of this paper.

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war – a lawyer no ordinary thief could have ever afforded himself. The prosecutor and the judge are similarly prominent jurists who are noted for their integrity. As Herzberg writes in a later note: ‘In the first place there is this principle: the court must under all circumstances demand of itself and its members absolute honesty and integrity. The judges may not bend for any pressure, they must be truly independent, at the penalty of immediate removal from the court.’ Here is envisaged an organization of the court in painful contrast to the enforced order of the camp, where unreasonableness is the norm and integrity on the side of the camp officials is totally lacking. But what can a fair trial do in circumstances that are inhuman to the extreme? How can judges perform all the actions that are needed to let the court function as a court should and how can they possess the virtue of integrity ‘when there is no end to the depths of human humiliation?’ Is minimal justice still in some sense possible in a concentration camp? Herzberg, the narrator of the story, turns out to be also one of its protagonists: he is in fact the prosecutor. In his exploits we can see the struggle to act according to the norms of the ‘internal morality of adjudication’ and we can follow his tragic fight with all the threats to his integrity as a professional jurist. Reading Herzberg in this vein, we can see that the virtues of a good jurist are not only objectivity, honesty and integrity, but that there is also a professional virtue of perspectivism. At the root of the work of a jurist there lies the capability to look with the eyes of the other party, to switch perspectives, in order to incorporate the knowledge thus acquired into one’s judgments and actions. This perspectivism is the foundation of a legal ethics deriving from the age-long traditions of rhetoric and interpretation. The narrator continually changes perspective. Sometimes his voice is a sociological ‘we’, sometimes he is speaking as a prosecutor does, sometimes his meditations are spoken only as an I. He at times even tries to understand the position of the nazis, rejecting this position immediately again. But, tragically, the ethics of perspectivism – which is based on sympathy and identification with the other and also on subsequent distancing and reflection – is in the circumstances of the camp an ethics one cannot lived by. Perspectivist looking, feeling and reasoning in these circumstances undermine the ethical values perspectivism cherishes, and it makes them into a fragment also. A man is convicted for a theft that has been proven without a doubt but he keeps denying the fact. A second delict follows, again there is no doubt the man did it. The prosecutor now steps outside of his role of prosecutor and talks to him as a person, thinking that when a confession is made the cycle of punishment and forgiveness and acceptance into the community can follow. Initially this attempt to speak as himself fails, but after a few days the man comes back and, in tears, admits his guilt; he is bothered not so much by his misdeeds but by the lies he has committed in court and he wants to see his wife who is not in the camp. This experience in the first person singular, so to speak, makes Herzberg doubt the value of what he has done in his official capacity as a prosecutor. I despise him and I detest this, our life. Where is the man who bends over this wretch and lifts him up and says something that can redeem him? How can one bear with the fragment, how can such a fragment bear to live with itself? ‘That I stole you could forgive, so you said, but now I have lied there is no common ground between us any more. That is what you have said to me.’ And the prosecutor begins to understand what his own misdeed is. But am I a priest or a psychologist?

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In this passage we clearly see Herzberg switch perspectives, introducing within his own thinking the voice of the other man, reflecting then on his role as prosecutor. He is made to doubt his role morality. Would it not have been better to act as a person, as a priest, as a psychologist, as one of those helpful souls who even in the horror of the camp were ‘like a melody?’ In the next sentence these doubts are suppressed in the prosecutorial voice. ‘I am the prosecutor and I will bring him to court again and I will again demand his punishment.’ Herzberg has withdrawn into his appointed role as a jurist. Next case? It concerns his hesitation to prosecute a woman who took three rations of bread belonging to her neighbour at table and is caught in the act. The prisoners demand her trial and her punishment; they expect the equal application of the laws. So does the president of the court and he raises a legal complaint against the prosecutor for failing to perform his duties. A fair trial about this complaint follows, now held in the bosom of the court. The prosecutor shows his human persona: the woman was merely mistaken, she did not mean to steal. The president refers the woman to a psychiatrist (also a prisoner, of course) who talks with the woman and concludes she acted driven by hunger and that this is what is called, in German psychoanalytic language, a Fehlhandlung. The prosecutor decides not to prosecute the woman. But the incident is repeated (the woman now takes soup from another prisoner) and again there is pressure to bring charges against her. The prosecutor understands he has been fooled, or perhaps he has not been fooled, and while he doubts and ponders and does not prosecute word comes that the woman has died. This time Herzberg behaved more like a person but at the price of failing to be a good prosecutor. Next case? There is always a new case, and one is still more heartbreaking than the other. As conditions in the camp worsen, there are more thefts. A backward boy who is not taken care of by his parents because his father and his mother have to work elsewhere, steals food to keep alive. Punishment does not help. So the court appoints a mentor. But the mentor is put on a transport and gassed and then the boy does not have a mentor anymore and steals food and lies in his bed, crying. The court appoints another mentor. This mentor dies of hunger. The law is at an end, but history continues: the parents die in the distance, the boy does not roam through the camp but lies on his bed, ill apparently. While the legal system is not troubled any more by the boy’s behaviour, the narrator does not choose for his professional role but for his moral duties as a person. Or rather, he manifests the professional virtue that is closest to ordinary morality: perspectivism. He visits the boy, finding him in a remote corner, dying. This last vestige of legal and ordinary morality is of no use. The final phase has come, everybody starts dying, except for the few souls who will survive the camp and who will later testify. The judge dies and the lawyers die and also those rare persons who walked over the camp ground ‘like a melody’, even they ‘stopped being a fragment’ and died. Is there something we can learn by juxtaposing Fuller and Herzberg on the internal morality of law and on the importance of the human element for keeping legal institutions alive? It would perhaps be tempting to say that the main lesson is that the institutions of the law can only function in situations that are not as oppressive as this,

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that a human and humane society is a prerequisite for living law. But his would be to trivialize the contrast. While the extreme circumstances of the concentration camp – where there is no longer a human bond between those in command and those in subjection – surely are not conducive to even minimal justice, there are many less extreme situations raising the same questions about how law can be possible in them. Is it possible to be a good judge, adhering to the internal morality of law and acting with all the judicial virtues when the legal system is that of the South African apartheid regime? There are some who say that the integrity of judges made a difference and that at some moments minimal justice was still present, and others who deny this and say that the judges acted always with a bad conscience, maybe not unlike the troubled conscience manifested in Herzberg’s story, and that their contributions did not matter much. And surely there are situations where the injustice of the political and social order is less apparent and where legal professionals, on a smaller scale and less existentially, have to grapple with the conditions that make law possible. How can the integrity of legal professionals and the minimally just functioning of the institutions of the law be ensured when there is widespread corruption, as is the case in so many countries of the world? And to take an even less dramatic but still problematic example, how can judges sustain the ideal of minimal justice with its concomitant norms of an internal morality of law when there are large budget cuts, as a result of which there are simply not enough personnel and material resources available for adjudication of a sufficient quality?

10

IN CONCLUSION

In this paper we have explored three different senses of laws beginning: the historical origin, the spontaneous order of ‘living law’, and the requirements of minimal justice. Searching for the insights of legal theory in a broad sense, we have found additional illumination in literary texts. The juxtaposition of theory and literature turned out to be an exercise in correction of one-sided visions, and it led to the rediscovery of neglected questions. These seemingly different senses of law’s beginning can now be seen to be connected: in all three cases an exploration of the issues demands a willingness to go back to the origin, to get at the bottom of things.

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Law’s Beginnings Some Concluding Observations

Ferdinand Feldbrugge

The Foreword explained how this project did not focus on a specific problem, but was intended to investigate a range of questions connected by a general theme, this being ‘early law’-a phase in the legal histories of various cultures where one could supposedly discern the emergence of law ‘as we know it’. With a few exceptions the participants were scholars with expertise in the early history of various specific cultures. The whole exercise therefore bore some resemblance to Maine’s magnum opus, of which J.H. Morgan wrote in his Introduction: ‘he [Maine] demonstrated that our legal conceptions ... are as much the product of historical development as biological organisms are the outcome of evolution.’ Morgan then goes on to contrast Maine’s method, revolutionary at the time, with the efforts of jurists, such as Bentham and Austin, and political philosophers, such as Hobbes and Locke, who ‘had approached the study of law and political society entirely from an unhistoric point of view and had substituted dogmatism for historical investigation.’1 Morgan may have been somewhat unkind to legal philosophers and theoristssome were in fact invited to take part in the present project,2 but we can at least agree with him that the origins of law constitute a problem which should not be left to them alone; it should also be tackled in concrete historical terms. In this connection the Foreword posed the following questions (they were by no means intended to be exhaustive): ‘What are the conditions for the [earliest phase of] juridification indicated above? To what extent can one identify general lines or laws of development?’ After reading the individual papers in this collection, one has to conclude that a number of relevant answers to these questions have been given, but that at the same time it would be difficult to speak of a general or even dominant consensus concerning the historical emergence of law. The most one can do, in my opinion, is to identify specific lines of development, recurring themes, common topics, without, as yet, being able to weld them together in an unassailable general theory of the origin of law in a historical perspective. Below we shall look in more detail at some of these.

1

2

I use the edition of Everyman’s Library: H.S. Maine [Sir Henry Sumner Maine], Ancient Law, with an Introduction by J.H. Morgan, London/New York, 1917 (1965 Reprint); Morgan’s Introduction on pp.v-xiii. Witteveen’s paper in this volume does indeed demonstrate that the problem can be approached from a completely different angle and it stands therefore apart from the others, more so than the other paper by a legal philosopher (Cliteur), which can be read as a prolegomenon.

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THE QUESTION OF DEFINITION A discussion of, and investigation into the beginnings, the origins, of law presupposes an understanding of what it is that is beginning. Is a definition of law therefore required? Significantly, most of the authors who deal with the question of ‘early law’ in specific cultures briefly touch upon this question, without providing an elaborate answer. They quickly move on to other matters, which seems to suggest that if a problem exists in this respect, it is not considered to be very relevant in the context of the present project. We generally do not explain terminology which we regard as understood in more or less the same way by the members of the audience. Any other procedure would make human communication a very cumbersome process. An author explaining how law ‘begins’ in a specific culture apparently expects his readers to share a more or less identical concept of law, in the same way as other terms used (e.g. ‘state’, ‘authorities’, ‘force’) are considered to have a sufficiently clear and generally understood meaning. It is only once one starts to look at the problem of the beginnings of law from a more general point of view that the question of definition reasserts itself. Hoekema, in the early part of his paper, refers to a definition of law (or rather of a legal norm), current in legal anthropology,3 and then observes correctly that ‘Law, in this broad sense, is around everywhere and has been since time immemorial.’ The definition he quotes is in fact so broad as to embrace even social norms operating within animal groups, such as primates. This makes it, in my view, also rather useless, at least for the present purposes. Hoekema then refers to the approach adopted by several authors in the Fikentscher volume, quoted in the Preface,4 who define the beginning of law as the rise of a more formal, more authoritarian structure of law and its administration. This is a formula which is far from impeccable, but I would admit that I have an idea what these authors have in mind and I could agree with them, more or less. But, of course, for somebody who does not have any understanding of law this ‘definition’ is hardly of any help. Legal philosophy may offer some further elucidation. Cliteur makes the very useful observation that law is not something that exists in reality (‘outside and independent of ourselves’, I would add), but that it is a matter of what we wish to regard as law, a man-made construction. This leads him to the conclusion, at the end of his paper, ‘that the question is not so much where does law start but rather where do we think that law should start [author’s italics].’ The problem becomes a normative one in this way. From somewhere (religion, ideology, etc.) we derive a certain idea of what law should be and we begin to construct law, first in our minds and then in the reality of social life. This may be an acceptable and productive approach when dealing with presentday law, but I fail to see how it could help us in studying ‘early law’ and ‘law’s be-

3

4

‘... a social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force, ostracism or shame by an individual or group posessing a socially recognized privilege of so acting’. W. Fikentscher, H. Franke & O. Köhler (eds.), Entstehung und Wandel rechtlicher Traditionen, Freiburg/München 1980.

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ginnings’. We could, for instance, agree that certain family matters should be brought within the sphere of law, while others should remain outside law’s reach. The sum of all such choices produces a complete catalogue of the contents of a legal system and by the same token a certain kind of definition of law. But it would be very difficult to apply such a definition in a very different cultural setting, which is what would have to be done when we try to identify the beginnings of law in such a situation. The comparative ease with which most of the authors dealing with the beginnings of law in specific cultures pass over the question of definition provides a clue about the direction in which we must look for a solution. Again, it would seem that people generally feel that there is a sufficiently general consensus about what is meant by ‘law’, so that a definition is regarded as superfluous, and that such a concept of law is also adequate to deal with law occurring in civilizations which are very different from our own. Such a concept is constructed by mutual agreement and need not be based on shared underlying philosophies. (This, I suppose, makes my approach different from Cliteur’s.) The request to be more specific about the contents of this supposed mutual agreement is justified. Without explicitly embracing any particular school of legal philosophy, I cannot deny that I would select a position which has much in common with at least some of the representatives of the American realist school. Almost nobody, irrespective of his/her philosophical orientation, would deny that law, in any cultural setting or historical phase, is characterized by the occurrence of peculiar institutions, practices, procedures. They need not all be there, and some of them may also occur outside law, but a sufficient number of them present, with sufficient intensity, and in particular constellations, leads us to recognize the presence of law. The following examples could be mentioned: – dispute settlement by a third party – fixed procedures for dispute settlement – acceptance and enforcement of third party dispute settlement – recognition of the validity of precedents in dispute settlement These may be considered as part of the bedrock upon which a legal system may eventually be built. By themselves they do not yet constitute such a system, or at least only an embryonic one. When a second layer develops, we may more confidently speak of ‘early law’; this would involve, for instance: – specialization and then professionalization of dispute settlement: courts – verbal fixation, orally or in writing, of procedural and substantive rules concerning dispute settlement – monopolization of rule enunciation by specific persons or agencies In a third phase the legal system reaches its first maturity when at least – a central authority acquires the power to enunciate rules – and then also to create new rules – and increasingly monopolizes enforcement of the rules In the latter phase law becomes an essential element of the power structure of the society concerned and co-defines the emerging state.

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The definition of law which takes shape in this way could be called enumerative, in that it is constructed through the enumeration of various elements. To put it in very concrete terms: law is courts deciding disputes, bailiffs executing judgments, lawyers arguing precedents, and of course also the rules they apply-laws, government decrees, all kinds of regulations, etc. The enumeration should also not be regarded as complete or exhaustive-other elements could be added. It is implicit in this approach that law is not something that is there, or not. It emerges gradually; many authors have used the term ‘juridification’ and thereby indicate that certain practices or institutions may acquire a legal character incrementally, by stages. Finally, and this point has also been made by Hoekema, the emergence of law in the sense explained above is not only a phenomenon from the distant past, but is still occurring in the present in various parts of the globe. Moreover, juridification of particular corners of our own Western society is something which we can observe ourselves and in which we are often ourselves involved. In modern Western civilization the volume of law has grown almost explosively during the last half-century; many sectors of life which were left to informal procedures and custom before World War II are now covered by a dense network of officially issued laws and regulations. Phenomena from prehistory and proto-history, the study of which requires great effort, can also be observed in our own societies, but usually at a lower organizational level.

THE INDO-EUROPEAN ASPECT Background If, in Ranke’s famous words, the basic task of the historian is to find out how it actually was (wie es eigentlich gewesen ist), then every bit of the past is fair game. But an understanding of any situation in the past is improved by knowing what preceded it. This will always lead us further back, to the border area between history and prehistory, when written sources are getting ever scarcer, until in the end only mute objects allow some kind of reconstruction of the distant past. Legal history is particularly vulnerable in this respect, because knowledge of law depends heavily on what has been written down. Even in the present it is often difficult to establish the contents of unwritten law, although few would doubt its existence. It is possible to construct theories about the emergence of law, and it certainly has been done, and such theories can be tested to some extent by looking at phenomena that can be observed in the present, legal developments in our own modern Western society, or in very different existing cultures. But this would only lead, as a rule, to an abstract conceptualization of the origins of law: at some time and place in the distant past, in primitive communities, social devices evolved which provided the fertile soil for the genesis of law, first in unwritten form, and ultimately fixed in writing. The preferred approach in this volume has been to work backwards, in the traditional way of the historian, by asking the question of ‘what was before it’. In today’s globalized world, Western law has become completely dominant, and its impact is inescapable (this is one of the central themes of Hoekema’s paper). The study or definition of ‘Western law’ is outside the scope of this volume; it will be suf-

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ficient to point out that Western law itself consists of a vast compact of very different legal systems, themselves highly complicated. Its traditional division into codified systems and common law systems has some convenience value, but nowadays needs many corrections.5 When we go back in history, however, the paths of development of the various Western legal systems converge.This is not exclusively, but to a large extent, connected with the preponderance of Roman law. The Romans constructed a legal system of great sophistication, which was so vastly superior to the systems of the nations with whom they were in contact, that rejection or disregard of the Roman model simply stopped being an option in the course of time. But Roman law did not influence its neighbouring systems all in the same way. It was digested (the ‘reception’ of Roman law) over a long period, in legal systems which were often sharply different among themselves. The main other component, in most European countries, was a system of Germanic origin. This was not only the case in the countries of NorthWestern Europe, predominantly populated by Germanic tribes, but also in several Latin countries, where kingdoms of Germanic invaders, bringing their own laws, were established in the early middle ages (e.g. the Langobards in Northern Italy and the Visigoths in Spain).6 The resulting legal variety became even richer when the European cultural space came to include also the nations of Central and Eastern Europe. But the continuing presence of Roman law, albeit with differing intensity, guaranteed a degree of intellectual unity of legal thought. Modern thinking about basic legal concepts, such as contract, obligation, property, etc., is fundamentally indebted to Roman law and in this way legal discourse across the borders of different legal regimes has been greatly facilitated. This ineffaceable preponderance of Roman law in legal history tends to obscure the fact that there also has been a time when the archaic law of the Romans (see the paper by Sirks) was in many ways comparable to the legal systems of other European cultures at a similar level of development. When the obvious question is then asked: ‘What preceded this stage?’, the numerous parallels and similarities suggest a search for certain common origins.

Indo-Europeans? The basic and most obvious parallels are of a linguistic nature. In this volume there are papers dealing with the earliest law of India, Greece, Rome, Ireland, Germanic Europe (represented by the Frisians), and Russia. The texts of the earliest laws have been written in the languages of the peoples concerned,7 and these languages all belong to the 5

6 7

Judge-made law is important, and in some areas dominant, in many codified systems, while on the other hand systematic legislation, which might come close to real codification, is widely practised in common-law systems. I believe that the value of the distinction between the two legal worlds is not so much in the antithesis codification/judge-made law, but in the importance assigned to the concept of ‘legal system’. The latter concept is more prominent in legal thinking and discourse in the civil law countries, it seems to me, and this may be connected with different views concerning the role of the state. A brief survey of the main leges barbarorum of the Germanic nations of early medieval Europe is given in the paper by N. Algra in this volume. The Lex Frisionum is in simple Latin, but contains many Frisian expressions.

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linguistic family known as Indo-European. In Zimmer’s paper an attempt is made to identify certain legal institutions as having their roots in the Indo-European past. This of course implies the assumption that at a certain moment in the past there existed an ethno-linguistic community of people possessing a common language (or at least a series of related dialects) which may be regarded as the ancestor of the subsequently evolving Indo-European languages, and a set of societal institutions (the question whether such institutions should already be termed ‘legal’ may be left aside for the moment) which were at the source of legal institutions encountered later on among various Indo-European peoples and displaying a sufficient degree of similarity. Although this volume is about early legal history and not about Indo-European studies, I fully agree with Zimmer’s conclusion that the latter should be a partner of great importance in the study of the former. A few tentative considerations may therefore be à propos. The first of these could be that the existence of the Indo-Europeans (as a relatively undivided entity) should itself be placed in a chronological perspective. That is to say, the Indo-European ethno-linguistic entity came into being, developed, and then broke up into the ancestral blocs of Indo-Iranians, Slavs, Celts, Italic and Germanic peoples, etc., out of which the peoples, nations, states and legal systems of the historical era developed. That such an ethno-linguistic entity has in fact existed during a certain period is not seriously doubted by modern linguistic and archaeological scholarship. Although time and place of this existence has been the subject of intense debate for several centuries, the dominant view nowadays is that one should look at the 5th3rd millennium B.C.8 in the Pontic-Caspian area.9 8

In his paper, Zimmer takes the position that Proto-Indo-European (the reconstructed language of the as yet ‘undivided’ Indo-Europeans) cannot be dated earlier than 3500 B.C., and that 3000 or even 2500 would be a more likely date. The latter date is more amply adstructed in the author’s Ursprache, Urvolk und Indogermanisierung. Zur Methode der Indogermanischen Altertumskunde, Innsbruck 1990. The hypothesis presented in this work is that the emergence of Proto-Indo-European (and of the people speaking it) was the result of amalgamation processes of ethnic elements (individuals and small groups) of different origins, who had been ejected or had emigrated from their own homelands. Such processes, resulting in the comparatively rapid and sudden formation of new cultures and ethnic entities, are known from history and anthropology, and can be accompanied by very fast language change by means of so-called creolisation. The congeries of migrants, vagrants, adventurers, robbers, etc. who were the carriers of this development is characterized as a colluvies gentium by the proponents of this theory (itself, incidentally, the term for mésalliance in Roman law). As the theory would also involve the occurrence of several of such amalgamation processes, it could explain the considerable differences between various Indo-European language groups at a very early stage. It would also allow the denial of the existence of an Urvolk and an Ursprache for the Indo-Europeans, in other words, it would be perfectly possible that an ethno-linguistic entity speaking the-theoretically reconstructible-Proto-Indo-European language never existed as such, and neither an ethnos that could be identified as ‘the Indo-Europeans’. On the other hand, although this theory may be able to explain certain phenomena, it also evokes numerous questions to which it does not provide answers. If Proto-Indo-European was such a recent phenomenon, what were its constitutive elements? The history and archaeology of the Near East and the Western part of Eurasia around the middle of the third millennium B.C are sufficiently well-known to suggest a number of candidates. How can the Indo-European acquis be explained by the languages and cultures of these civilizations? Can the theory be supported by evidence or at least indications from non-linguistic sources?

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The examination of the earliest known law of various Indo-European peoples easily leads to the hypothesis of a ‘common core’ of legal institutions, which would take us back to these times and places. In his paper Zimmer has identified a number of such institutions, of which marriage law and sick-maintenance10 are discussed in greater detail, together with a survey of terms having significant legal connotations and a common Indo-European origin. A comparison of the results of some of the other papers suggests certain other possibilities. A general caveat should precede such an investigation: the occurrence of similar institutions in the legal systems of several or even all historical cultures of peoples of Indo-European origin does not constitute absolute proof of the existence of a similar institution in the prehistoric Proto-Indo-European phase and, even if we could assume such an existence, of a genetic link between the earlier and later phenomena. But the progress of science requires a combination of common sense, imagination, intuition and good luck.

Indo-European patriarchy Patriarchy is not so much a legal institution, as a fundamental principle underlying the organization of Indo-European society, and therefore also its law. It affects first of all the legal status of individuals, then marriage law, property law, and also public law. In a general sense, patriarchy appears to be a dominant aspect of social organization at a certain level of development and as such occurs in a great variety of cultures. The peculiarities of Indo-European patriarchy come to the fore most prominent-

9

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The archaeological evidence certainly points in a different direction. This can no longer be countered by the nostrum that pots have no language. The main lines of the scenario of cultural development in the Pontic-Caspian area since the fifth millennium B.C. are quite clear by now. Starting with the earliest and most primitive pit-grave culture in the North Caspian area this development and its gradual differentiation can be traced in considerable detail until the first historical ethnic entities of undoubtedly Indo-European origin appear. This area, or to be more precise, the steppe area to the north of the Caspian Sea and westwards to the river Dniepr, had often been singled out in the past as the most likely staging area from where the Indo-Europeans spread out in several directions. The subsequent accumulation of archaeological data made it possible to draw a more detailed map in time and space of the expansion and transformations of the South-Russian kurgan grave cultures. This map fits so well what is known about the spreading and variegation of the Indo-European languages, that it would be very hard toproduce another explanatory model of comparable persuasive power. Although definitive proof is difficult in such matters, the thesis about the South-Russian kurgan cultures and their link with the diffusion of Indo-European languages is now widely, although not universally, accepted. See generally: J.P. Mallory, In Search of the Indo-Europeans. Language, Archaeology and Myth, London 1989. For older fundamental Russian (Soviet) archaeological literature see my The South Russian Pit-Grave Culture and the Problem of the Homeland of the Indo-Europeans, (published as manuscript) Leiden 1964. Zimmer points to the occurrence of the institution of sick-maintenance in Old Irish and in Hittite law (separated by thousands of kilometers and years). One might add very brief references to something similar in Germanic and Slavic law: the Salic law allows the costs of medicatura, on top of the composition for injuries (Lex Salica 19-6, Pactus legis salicae, 17-4); the Russkaia Pravda (Short Version art.2) grants the doctor’s fee (lettsiu m’zda), also on top of the composition for injuries.

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ly in the paper on archaic Roman law by Sirks. Roman patriarchy is of exceptional historical importance, because its elaboration in the form of patria potestas was of enormous influence in the development of European and Western law and thereby on the legal status and relationships of the sexes. The Sirks paper argues that it is not male dominance as such which determines Roman patriarchy, but the idea of the unity of the gens and its genius, manifesting itself in the vis genitalis of the sexually mature male members of the gens.11 As the mana of the father or grandfather is obviously superior to that of his offspring, the status of his sons and grandsons remains very considerably reduced while he is alive. Once the father dies, his sons move into his place as fully empowered representatives of the genius, each becoming a paterfamilias in his own right. Similar arrangements occur with other Indo-European peoples, although the power of the paterfamilias is generally not as exclusive as it is in Rome (a point already made by Maine12). The dynastic histories of Germanic and Slavic peoples indicate that it was not so much the ruler, but rather the ruling house which was regarded as decisive. Among the Merovingian and Carolingian kings of the Franks, the realm was usually divided among the surviving sons of the deceased ruler. The idea of power belonging, not to individuals, but to the ruling house was particularly strong among the Russian Rurikids. An informal hierarchy among the male members of the house was based, first on generation, then on age. The most senior prince would rule in the nominal capital Kiev, the other princes in the provincial capitals (also ranged in order of importance). The death of an important ruling prince would occasion a kind of game of musical chairs, all lower ranking princes moving up a step. The underlying idea was very clearly that every adult male member of the house had a right, according to his position in the family hierarchy, to a share in the family ‘estate’-the government of the country. Primogeniture and substitution (of predeceased fathers by their sons) appear only later on in medieval Germanic and Slavic legal systems.13 A similar institution seems to have existed among the Celts, where the four generations descended from one great-grandfather, the derbfine, were all entitled to a certain share.14 The ideological background of Indo-European patriarchy is unquestionably of a religious nature. For ancient Rome this has been argued convincingly by Wagenvoort in his seminal works (see the Sirks paper). The ancestors live on in the following generations and continue to be part of the gens. The performance of certain rituals was essential in this respect and this explains the need to secure the continuation of male offspring, because the vis genitalis is transmitted by them only. A very similar view seems to have been taken in Old Indian society (see the Kolff paper). The religious foundation of patriarchy has faded among other Indo-European peoples, but 11

12 13

14

Sirks refers to H. Wagenvoort, whose original studies have been prominent in expounding these views: H. Wagenvoort, Imperium. Studiën over het ‘Mana’-begrip in zede en taal der Romeinen. Amsterdam 1941, English edition: Roman Dynamism, Oxford 1947. Maine, op.cit. (note 1), 85. I have discussed this matter in greater detail in ‘The Elder Brother in Russia. Seniority in Russian Politico-Legal Discourse’, in G. Brunner a.o. (eds.), Sowjetsystem und Ostrecht. Festschrift für Boris Meissner zum 70. Geburtstag, Berlin 1985, 211-226. N. Chadwick, The Celts, London 1970, 113-114; and also the Edel paper in this volume.

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less obvious indications remain. Germanic and Celtic rulers of pagan times regularly traced their descent back to tribal deities.15 In marxist and neo-marxist historiography the perspective is reversed, because religious views are regarded as part of the superstructure. The male half of the population is then seen as a kind of exploiting class, controlling the means of production and creating an ideology to legitimate its dominance. One need not deny the relevance of material and economic factors to reject this approach as too simplistic. In its schematic approach to historical development marxism also assigns a special place to a matriarchal ordering of society. Much has been written about matriarchal survivals in the cultures and attitudes of several Indo-European peoples. Some of these may obviously be connected with cultures which flourished before the arrival of the Indo-Europeans. Whether Proto-Indo-European culture also contained matriarchal elements is a question which cannot be answered here. Particularly among the Germanic peoples there are a few indications.16

Chieftaincy and kingship It would not be wildly speculative to assume that the Indo-European patriarchal principle was also at the basis of the development of social leadership forms such as chieftaincy and later on kingship. Ancient Irish society, as described in the Edel paper, appears to represent a comparatively early stage where the numerous kings of various rank were in fact not much more than tribal chiefs. The Germanic tribes, at the threshold of history, were already amalgamating into larger, nation-like units, but Gregory of Tours, in his Historia Francorum, relates how the early Frankish kings, such as Clovis and his ancestors, were engaged in the elimination of petty kings among the Salic Franks.17 The same thing happened in Russia, as related in the Primary Chronicle.18 If we could asume that there was an original idea of vis genitalis, life-giving force, by which the life of the ancestors perpetuated itself in posterity, transmitted by males but present in females as well, then a living paterfamilias could evolve into the leader of a large family group, and then achieve the chieftaincy of a tribe. This could be accompanied by the elaboration of the religious/ideological dimension connecting the welfare of the community with the recognition of the divine framework in which the social relationships were anchored. 15 16

17 18

This is especially well documented for Scandinavian rulers of the earliest historical periods. One of the clearest and best known is Tacitus’ communication (Germania 20): ‘Sons of sisters enjoy the same honour with their maternal uncle as with their father. Some [nations] consider this blood relationship as more sacred and closer, and demand preferably [sons of sisters] as hostages, because [in this way] they would have a better control of the minds and a broader grip on the family.’ It is also worthy of note that in the oldest version of the Russkaia Pravda, among the relatives entitled to the blood feud, along with close male relatives on the paternal side (son, father, brother, sons of brothers), the sons of sisters are included (see my paper on the RP in this volume). Gregory of Tours, The History of the Franks, translated with an Introduction by Lewis Thorpe, London 1974. Under the first Christian ruler of Kiev, Vladimir, and his immediate ancestors, all tribal princes not belonging to the house of Rurik were eliminated; see S.H. Cross & O.P. Sherbowitz-Wetzor (transl. & eds.), The Russian Primary Chronicle. Laurentian Text, Cambridge MA 1974.

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A series of small steps would then lead to the transition from tribal chieftain to tribal king and then to king of an entire people. After the baptism of Europe many elements of divine kingship were retained in a christianized form: the divine right of kings, the elaborate religious ceremony around the beginning of kingship (anointing, coronation), the king as healer, etc.

The professionalization of law Professionalization of law, in the sense of the emergence of a class of persons who are more or less exclusively engaged in legal business, is an important aspect of the processes around the origins of law, as argued at the beginning of this paper. ‘Exclusively’, in this context, refers both to the fact that such persons do little else but law, as to the fact that others have little concern with legal matters (except as occasional parties in legal disputes). Law becomes ‘lawyers’ business’. Among the different early Indo-European legal systems reviewed in this volume, professionalization of the law is most prominent in ancient Irish law (cf. the Edel paper). In India (cf. the Kolff paper) a profession of legal councillors seems to have detached itself gradually from the learned brahmin class, while also the administration of justice in the royal courts must have produced its own specialized personnel. The legal profession of ancient Ireland, the brithemain, should also be regarded as the result of specialization within the general class of learned men, the filid. Legal professionalization is not as prominent among the Germanic peoples, but still well attested. The Old Frisian asega (cf. the Algra paper) was expected to know the law by heart; he was, one might say, the mouthpiece of an oral code of law. The laws of the Salic and Ripuarian Franks describe the task of the rachineburgi as the enunciation of the law.19 Both the Frisians and the Franks left the actual judgment to the popular assembly (the ‘thing’). German legal historians generally regard the institution of the ‘law-sayer’ (asega, iuridicus) as an innovation, assuming that originally the statement of the applicable law and the judgment based on it belonged to the competence of the assembly.20 The main foundation for this view seems to be Tacitus’ brief description of Germanic procedure in his Germania, where he states that at the trial first the king or a princeps would express his opinion (possessing authority but no decisive force) and propose a judgment, which then would be either rejected by general grumbling, or accepted by the bystanders’ beating their spears together.21 In a more circumstantial way some adstruction for the more recent character of the ‘law-sayer’ in Germanic procedure could be derived from provisions in the

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Pactus legis salicae 57, Lex salica 60, Lex Ribuaria 55. H. Brunner, Grundzüge der deutschen Rechtsgeschichte (2nd ed.), Leipzig 1903, 17; R. Schröder, Lehrbuch der deutschen Rechtsgeschichte (3rd ed.), Leipzig 1898, 43-44; K. von Amira, Grundriss des germanischen Rechts (3rd ed.), Strassburg 1913, 255; H. Conrad, Deutsche Rechtsgeschichte. Band I: Frühzeit und Mittelalter (2nd ed.), Karlsruhe 1962, 28. Tacitus, Germania 12: ‘mox rex vel princeps ...audiuntur, auctoritate suadendi magis quam iubendi potestate. Si displicuit sententia, fremitu aspernantur; sin placuit, frameas concutiunt ...’.

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Frankish laws which speak about the appointment of rachineburgi by the gravio (roughly: the presiding judge).22 The weakness of these arguments is obvious. Tacitus’ statement is brief and refers to all kinds of decisions made by the assembly (including political ones). It does not at all exclude that in specifically legal disputes the exposition of the case and the applicable law would be referred to an ‘expert’. The provision about the appointment of rachineburgi by the judge refers to a very specific situation during the execution of a claim; also, it appears that the judge did not in fact appoint a few citizens as rachineburgi, but collected seven suitable officials from an available reservoir of rachineburgi.23 The length and level of complication of some of the Germanic leges, especially the Salic Law, would be hard to explain if there were no persons possessing extensive specialized legal knowledge. Some of them are in fact mentioned by name in the prologue of the versions of the Salic Law known as the Pactus legis salicae.24 In the oldest law of Russia, the Russkaia Pravda, various princely officials are mentioned,25 and some of them may have served as judges or as court officials (bailiff, sheriff, etc.), but there is no evidence whatsoever of legal professionals in the sense outlined above. Professional administrative expertise, which would include knowledge of the law, develops in the later middle ages among the clerical servants in the chanceries of the princes, but compared to the situation in Western Europe the rise of a professional class of lawyers is a late phenomenon in Russia. On the basis of what is known about the existence of a legal profession in the early Irish, Indian and Germanic cultures, and about its genetic connection with a more general class of learned men in these cultures, the hypothesis could be advanced that at an earlier stage of the evolution of Indo-European peoples there existed a class of people who served as a repository of knowledge about what was right and proper in the fields of religion, ritual, ethics, social mores and law (if it would be possible to speak of law as a separate entity at this stage).

The penalty catalogue One of the most striking features of the earliest legislative layers is the prominence of catalogues of penalties, or rather: private fines (Germ. Busskatalog). The Germanic leges barbarorum, at least those in which not Roman law but Germanic law is dominant,26 consist almost completely or at least for the greater part of such catalogues.

22 23 24 25

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Pactus legis salicae 60, Lex Salica 52. ‘Tunc grafio congreget secum VII rachimburgiis idoneos et cum ipsos ad casa illius fideiussoris veniat ...’, Lex Salica 52, Pactus legis salicae 60. Visogast, Bodogast (Arogast), Salegast and Vidogast. The iabetnik (agent, sergeant?), mechnik (lit. ‘sword-man’, sheriff?), ognishchanin ( lit. ‘hearth-person’, domesticus; steward, bailiff?), tiun (steward), virnik (the collector of the vira, the fine replacing the wergeld). Most clearly the laws of the Salic, Ripuarian and Chamavian (the Ewa ad Amorem) Franks, of the Saxons, Frisians and Thuringians, and of the Langobards; somewhat less the laws of the Visigoths, Burgundians, Alamans and Bavarians.

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The same goes for the oldest layer of the Russkaia Pravda. The oldest laws of other Slavic peoples are mostly of a somewhat later era, but still display the same pattern.27 In Old Irish law the situation is more complex, mainly on account of the wealth of sources. There can be no doubt, however, that Old Irish law also knew an elaborate scale of fines (usually called ‘honour-price’, lóg n-enech or díre) for offences against persons (see the Edel paper).28 The Hittite laws, to be dated roughly about 1500 B.C., i.e. about two millennia earlier than the first comparable European sources, also consist to a considerable extent of catalogues of fines for various personal injuries.29 Although no such catalogue is known from archaic Greece, there are a few indications in the Iliad that the relatives of a murdered man had to be placated by the payment of fixed amounts.30 According to all these sources the fine is paid to the injured person, or to his close kin in the case of homicide, but in some instances (such as the Russian law) subsequent legislation diverts the payment to the public authority (the prince or another ruler), reflecting increased assertion of public power. A close comparison of the rates set for various injuries often suggests that the personal fine did not primarily aim at repairing the material damage caused by the injury, but at restoring the victim’s status, diminished by the offence. There are also indication that the catalogues of injuries and the appropriate fines contain a considerable element of case law, in other words, much of it is based on precedent. This suggests the hypothesis that, if there was a common Indo-European core in these different systems, it was probably of limited extent. In the oldest layer of the Russkaia Pravda (see my own paper in this volume) the catalogue was quite short and listed only the most basic offences (homicide, serious bodily harm, light bodily harm, physical violence, insults). This may have been close to the original situation. Case law would then produce further refinements. In some of the Germanic laws the catalogues go into ludicrous detail (listing fines for separate parts of the individual fingers).

27 28

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See my paper on the Russkaia Pravda in this volume. I might refer to note 17 of my Het oudste Russische recht. Gedachten naar aanleiding van de Russkaia Pravda, Leiden 1998, and the works cited there, especially de texts Bretha Crólige en Bretha Checht, D.A. Binchy (English transl.), ‘Bretha Crólige’, Eriu vol.12 (1938),1-77; ‘Bretha Déin Checht’, Eriu vol.20 (1966), 1-66; I repeat my thanks to professor Edel who directed my attention to these sources. I have used the German translation by J. Friedrich, Die Hethitischen Gesetze, Leiden 1959; English translation by A. Goetze in J.B. Pritchard, Ancient Near Eastern Texts relating to the Old Testament, Princeton 1950. I 632-636, payment of poinè for the murder of a brother or son; Ó 497 ff., the famous description of the court scene on Achilles’ shield, where two men submit the dispute about the poinè for a murdered man to the city court.

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Collective liability The connection with the previous subject is obvious if one takes into consideration that reparation of the offence by paying a sum of money was itself a substitute for revenge (this is very clearly illustrated by the first provision of the oldest version of the Russkaia Pravda). Revenge was a family or clan matter (see also the Algra paper). Originally, one would presume, the offence would be regarded as an insult of the family or clan to which the actual victim belonged. Conversely, the offender’s family or clan could be held responsible for the misdeeds of one of their members. Several systems reviewed in this volume retain traces of such collective responsibility or liability. The Germanic laws are the most clear in this respect. The Lex Saxonum (XIX) provides that in cases of homicide one third of the wergeld is to be paid by the close relatives (proximi) of the perpetrator and two thirds by himself. The other side of the coin is that on the ‘creditor’s’ side the wergeld also has to be divided and several Germanic laws contain pertinent rules.31 In the Expanded Version of the Russkaia Pravda the verv’ bears collective responsibility for the payment of the wergeld of a person killed within its territory, if the murderer remains unknown. The exact meaning of verv’ has been the subject of endless debates; it has obvious territorial connotations, i.e. it covers a group of people living on a particular territory, but it is uncertain whether it would embrace everybody or consist of a voluntary associations. Moreover, the question has been asked whether, beyond its territorial aspect, an element of consanguinity was also included.32 In the Hittite Law Code (art.173) there is a single provision which appears to point to collective liability: ‘If anyone oppose the judgement of the king, his house shall become a ruin.’33 But this rule could very well refer to the situation which may occur in any legal system, where a penalty entailing material consequences inevitably affects not only the offender himself, but also his close relatives. The collective liability discussed in this section is a much more specific institution, connected with a particular type of patriarchal social system. If the unity of the patriarchal clan is considered to be based on a common origin and a common vital force, then an attack against a single member may be regarded as an attack against all. A similar thought process may make the entire clan or family group of the attacker responsible for the attack. The wergeld or composition, which emerged at a certain stage as a substitute for the original revenge, would then be due by the entire group, with the victim and his family as a collective creditor. The evidence suggests that this stage did not last long in most cultures, because the consolidation of a central authority soon brought about the elimination of private individuals and groups from the process of reaction against breaches of the peace. As soon as kings appear they tend to forbid feuds and monopolize the punishment of offenders; the wergeld then disappears.

31 32 33

E.g. Lex Salica 65 (Pactus legis salicae 62). An extensive review of the various viewpoints advanced since the 19th century on the meaning of the verv’ in B.D. Grekov (ed.), Pravda Russkaia II (Kommentarii), Moskva/Leningrad 1947, 261-274. See O.R. Gurney, The Hittites (revised ed.), London 1961, 93, 99.

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Some preliminary conclusions Indo-European scholarship is a vast field. All I have tried to do in the preceding sections, in addition to what the individual papers in this volume have already offered, is to identify a few common strands in early legal systems of Indo-European peoples, in order to pose the question whether the similarities established may perhaps be based on a common origin. The painstaking reconstruction of what one might call the proto-legal system of the Proto-Indo-Europeans could be somewhat advanced in this way, an exercise which is worthwhile on its own merits, as well as for the light it might shed on the processes surrounding the origins of law. Of the many aspects that have not been discussed above, two should at least be mentioned briefly. One is the importance of procedure, a point noted in particular in the papers of Algra and van der Vliet. The emergence of law is nearly always closely connected with the solidification of procedures. A famous saying of American legal realism is: procedure is the heart of the law. Several terms suggesting articulate procedural institutions are identified in Zimmer’s review of a possible Indo-European legal terminology. The earliest documented phases of the legal systems of various Indo-European peoples show already the existence of fixed procedural institutions. One example (surviving to this day in the jury of Anglo-American law) is the occurrence of the group of twelve men to whom certain duties are entrusted.34 The second aspect is the religious one. In the ‘early law’ phase which is the centre of attention in this volume, the religious ‘dimension’ of the law has already faded in most of the systems which have been investigated. There is a number of indications, however, that in the phase of the prehistory of law (before we have any written sources) the links between law and religion, and between the entire complex of what was considered divinely ordained, proper, right, ethical, common practice, socially beneficial, and legally binding, were much narrower. As this complex became more elaborate and the knowledge of it more fixed and formalized, a class of experts arose, people who knew how things should be and how they should be done, and who transmitted their knowledge to new generations of experts.

LOOKING BEYOND THE INDO-EUROPEANS A simple logical device leads us to the next step. Certain legal systems possess common or at least similar institutions; they also belong to Indo-European peoples. If such institutions do not occur anywhere else, then there is good reason to assume an Indo-European origin. It would therefore be appropriate now to have a brief look at some other legal systems. In this volume Claessen has discussed several non-Western legal systems, most of them fully or almost fully illiterate. They are of major interest in studying the

34

The ‘twelve’ occur in nearly all Germanic laws; see the Algra paper or, e.g., the Lex Saxonum XVI. For Russian law, see art.15 of the Short Russkaia Pravda. Alkinoos, king of the Phaeacians, rules his country as the leader of twelve chieftains, in Homer’s Odyssee, è 390.

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process of state formation in connection with the formation of a legal system. Because of the lack of written materials they are less suited for a comparison with the Indo-European systems reviewed above. What we need is early codifications which may help in identifying the peculiarities of the Indo-European systems. Such codifications produce a general image, limited of course and possibly one-sided, of societies which are roughly at the same level of socio-economic development, no matter how different their cultures and world-views may have been. The choice of suitable candidates is wide and a selection is inevitable. The nature and accessibility of the materials also suggest to let pragmatic considerations play a prominent role in their selection.35 This leads me to the Code of Hammurabi (ca. 1760 B.C.), which could be regarded as the capping-stone of the developments in Mesopotamia as described in Veenhof’s paper; the law code of Bagrat Kuropalates, ruler of Southern Georgia in the middle of the 9th century A.D.; and the Great Statute (Ikh Tsaaz) of the Oirat Mongols of 1640.

The Code of Hammurabi As behooves the legal historian, we shall concentrate our attention on the contents of the Code.36 The history leading up to it, its genesis, socio-economic context, and general tenor have been explained admirably in Veenhof’s paper in this volume. The overall picture produced by the Code is of a society considerably more complex and sophisticated than those of the tribal societies and incipient principalities of early medieval Europe, from Ireland to Russia. The legal culture in particular is much more advanced: the Code is preceded by centuries of legislation on specific topics and a even a few earlier attempts at codification; the courts possess records of earlier decisions; written contracts concerning land, houses and slaves are a long-established practice, etc. Although the Code is based, to a great extent, on earlier precedents or on case law, in other words, its level of systematization is respectable. Its first hundred or so articles offer a broad view of the commercial relations in a developed agricultural society with a clear and strong central authority residing in its urban centre. The next (about) hundred provisions are mainly devoted to relationships within the family, which includes personnel and slaves. The last third of the Code displays more similarity, as to contents, with the early European laws. It deals mostly with homicide and all kinds of personal injuries. A major difference with the European laws lies in the dominance of the retributive principle ‘an eye for an eye’, as known also from the Old Testament. Only less significant offences entail monetary sanctions, fines to be paid to the victim. A large number of offences are punished by death, while capital punishment was absent or rare in early European law.

35 36

To put it into more down-to-earth terms, the author must be able to find the materials and to read them. I have used a German translation by H. Winckler, published immediately after the text mentioned in Veenhof’s note 1 became available: Die Gesetze Hammurabis, Leipzig 1902.

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The conclusion must be that we are dealing with a legal system which is quite different from the early Indo-European systems reviewed above. Occasionally, however, curious parallels appear. When a person has been robbed and the identity of the robbers cannot be established, the community living in the locality where the robbery took place must make good the losses (art.23). This is very much like the case discussed above concerning the Old Russian verv’, except that in the latter case it concerns the composition in a case of homicide. Another example is art.9, the classical case of first-year law exams: acquisition by and revindication from a third owner. The new owner is then required to produce his predecessor(s), to prove that he acquired the thing in the proper manner. A quite similar procedure occurs in the Russkaia Pravda (art.16 Short version, art.38 Expanded Version). In Babylon the first seller, if he had pocketed the price twice, is killed as a thief, a consequence which the Old Russian law does not mention. The latter case suggests a marginal remark which is, however, of considerable significance in comparing legal institutions from very different legal systems. The similarity between legal institutions may actually be caused, not by any sort of genetic connection, but by the simple fact that the underlying situations are similar.37 A similar legal solution may then be dictated by the situations themselves. If I find something belonging to me (either originally, or because I had bought it but it had not yet been delivered to me) in the hands of a third person, it rather stands to reason that I demand this person to produce the person who had sold or given it to him, and to repeat this procedure until I can finally confront the person who sold it to me (without delivering it) or who came to possess something I owned without my intention of making him the owner (e.g. through a loan, or by theft). Many legal systems, once they proceed to regulate such matters, will achieve a solution like the one described.

The law of Bagrat Kuropalates In the context of this paper, the medieval law of Georgia is of special interest for two reasons: it reflects the legal system of a non-Indo-European people which retained its own character in a cultural and geographical context which was not too different from early medieval Europe, and Georgian law has been extraordinarily conservative through the ages. Armenian medieval law, its geographical neighbour, has been strongly influenced by Byzantine law and is, after all, the law of an Indo-European people (of sorts). The dominant opinion is that the ruler to whom this law is ascribed was Bagrat I, who ruled in Southern Georgia from 826 to 876, and who had been given the title

37

For this reason I would not include debt slavery, common in Babylonian law and encountered in many early Indo-European legal systems (Greece, Rome, among the Slavs), among the list of interesting parallels.

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of Kuropalates38 by the Byzantine emperor. His descendants later on became rulers and kings of Georgia, where the Bagratid dynasty lasted until 1801. It has survived in later medieval legal collections and was ultimately included in the law collection of king Vakhtang (Vaxtang in the official Georgian transliteration) VI, compiled between 1703 and 1709.39 It consists of 62 provisions, of which the first third part is devoted to rules protecting the church and its dignitaries. The reason for this is presumably that the church and all clerical personnel would lack the protection which lay persons enjoyed, who could fall back on their own family or clan. The remaining part of the law is generally similar to the Germanic (and Slavic) laws, in providing a catalogue of fines, to be paid to victims (or their heirs) of offences. Social stratification was also comparable to that prevailing among early European peoples: the ruler or king at the summit and the bishops at more or less the same level, then the grandees (didebuli), the noblemen (aznauri), the ordinary peasants (glexi). In the later middle ages this system became much more complicated. The fine to be paid (called sisxli-blood) was dependent on the rank of the victim and on the seriousness of the injury. The full sisxli was due in cases of homicide, a fraction thereof (usually half) in cases of injuries or insults.40 The sisxli is usually in amounts of 12 or multiples of 12, which again is very much like the Germanic or Slavic system. The similarity is even more striking in the case of certain oaths, to be sworn with the aid of twelve or twenty-four helpers, a procedure well-known in Germanic law (see the Algra paper). An explanation of this phenomenon is not easy to give. Direct borrowing from Slavic or Germanic models is practically excluded in view of the geopolitical circumstances of the period, although one can speculate about borrowing in an earlier period from neighbouring Indo-European populations. Two other explanations also present themselves. There may have been common roots in a more distant past. As little is known about the ethnic origins of the Georgians, this road leads nowhere for the time being. Another explanation might be what is called convergence: without direct connections or genetic links, the different legal systems have developed along similar paths, presumably because of similar socio-economic conditions, and thus reached stages of development which at a certain moment were quite similar (but this explanation would not help much with something as specific as the number ‘twelve’).

38

39

40

A title usually reserved for members of the Byzantine imperial family. It had first been given to Bagrat’s father, Ashot Bagrationi, the founder of the dynasty, and was used by Bagrat’s successors as a secondary title once they had assumed the title of king (mepe, Russ. tsar’) of Kartlia. See M.D. Lordkipanidze & D.L. Muskhelishvili (eds.), Ocherki istorii Gruzii. Tom II: Gruziia v IV-X vekakh, Tbilisi 1988, 314-315. The principal edition is in the collection of sources of Georgian legal history edited by I.S. Dolidze, Kartuli samartlis dzeglebi (3 vols.), Tbilisi 1963 (I), 1965 (II), 1970 (III). Russian translation in D.L Purtseladze, ‘Iz natsional’nogo zakonodatel’stva korpusa Vakhtanga VI’, Macne 1985 no.4, 84-98. On Georgian legal history generally: I.I. Surguladze, Istoriia gosudarstva i prava Gruzii, Tbilis 1968 (in Russian); I.A. Javaxis˘vili, Kartuli samartlis ist¸oria, Tbilisi 1928 (I), 1928-1929 (II 1-2) (in Georgian); brief surveys by B. Soidse [Zoidze] & R. Kandelhard, ‘Geschichtliche Grundlagen der Zivilrechtsreform in Georgien’, Recht in Ost und West 1997, 41-46, and F. Feldbrugge, ‘A History of Georgian Law. A Survey of Eleven Centuries’, Georgica no.3 (1998), 2-5. The system also applied to desecration of icons: twice the amount for the icon of Christ (art.23).

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The law of Bagrat does not refer to courts or professional judges. It simply states the penalties (or rather private fines) to be paid for various types of behaviour injurious or harmful to others. The short preamble (art.1) sheds some light on the way justice was to be administered. It exhorts those who will sit in justice to act justly and fairly, and then adds that a person who knows the law or whom the king considers to be educated and experienced, or a well-to-do merchant, or a good family chief in the country, should act as a judge, ‘he will be sensible and will well understand the work of a judge, and will not say anything that is unjudicious.’

The Great Statute of the Oirat Mongols of 1640 Mongol law is not as exotic as one might think in the framework of comparative legal history. Favoured by harsh geographical conditions, the Mongols have succeeded in maintaining their independence while surrounded by powerful cultures and empires: China and Japan in the East, India and the successive Islamic empires in the South and South-West, and Russia and the whole of Europe in the West. For a while they even achieved political and military superiority in the entire Eurasian area in the 12th and 13th century under Chingis-Khan and his successors.41 During the reign of Chingis-Khan, a short code was compiled, known as the Iasa of Chingis-Khan.42 It contained legal norms, along with moral adhortations and ritual prescriptions. The text has not survived, but an extensive summary has been given by the Egyptian historian Makrizi, writing in the 15th century. Smaller excerpts in other sources confirm the reliability of Makrizi’s communications.43 The legal part of the Iasa consisted mainly of what we would consider as criminal law provisions, intended to maintain discipline in the vast and militarized empire, and ordaining the death penalty in most cases. In later centuries the Mongol empire broke up in many parts and the central Mongolian part of it reverted more or less to the old order, or rather disorder, of strife and warfare between nomadic tribes of herdsmen. In the meantime the Mongols had 41 42

43

Cf. A.M. Khazanov, ‘The Early State Among the Eurasian Nomads’, in H.J.M. Claessen & P. Skalník (eds.), The Study of the State, The Hague, 1981, 155-175. This at least is the dominant view nowadays. The two main commentators are V.A. Riasanovsky (Riazanovskii) and G.V. Vernadsky (Vernadskii). The first author published a long study in Russian (‘Velikaia Iasa Chingiz-Khana’) in the émigré journal Izvestiia iuridicheskogo fakul’teta v Kharbine Vo.10 (1933) and then a monograph: Fundamental Principles of Mongol Law, Tientsin 1937 (1st ed.), Bloomington/The Hague 1965 (2nd ed.). Vernadsky also published in Russian and English: ‘The Scope and Content of Chingis-Khan’s Yasa’, Harvard Journal of Asiatic Studies Vol.3 (1938), 337-360; Istoriia Rossii. Mongoly i Rus’, Moskva/Tver’ 1997, 106-115 (chapter on the Iasa), and the same in English in The Mongols and Russia (vol.3 of M. Karpovich & G. Vernadsky, A History of Russia), New Haven 1953, 99-110. Vernadsky suggests that the unavailability of the Iasa may perhaps be explained by the sacred and magical character attributed to it, on account of which only very few people were allowed access to the actual text. The concept of secret laws is odd and even repugnant to the Western legal mind, but it was, for instance, quite popular with rulers such as Joseph Stalin. Medieval Mongol legal sources in Russia do refer to the Iasa; e.g. the charter (iarlyk) of khan Mengu-Timur of 1279 to the Russian metropolitan (L.V. Cherepnin (ed.), Pamiatniki russkogo prava III, Moskva 1955, 467-468).

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adopted a Tibetan form of Buddhism, which caused a complete metamorphosis of Mongol culture. The Great Statute of the Oirat Mongols was agreed upon in 1640 at a conference of all the important leaders of the Oirat and Khalkha Mongols (the Mongol population from Eastern and Southern Mongolia, under the sway of the Manchurian emperors, was not represented).44 The fairly extensive text (almost 200 articles) offers a detailed picture of the nomadic Mongolian society of the period. Social stratification is quite outspoken: higher princes, lower princes, nobles, freemen of various levels, serfs and slaves. From the point of view of legislative technique, the Great Statute is comparable to the early European codes: it is basically a long list of offences and misdemeanors and the penalties entailed. As in the early European codes, the penalties are usually not of a public nature, i.e. they are paid to the injured party. A peculiar feature of the Statute is, however, that it also deals frequently with entirely lawful behaviour, where it then sets a fixed award. This may perhaps reflect the harshness of conditions in the steppe, where it is common to be in great danger and dependent on the help of a passer-by. Many provisions set awards for saving persons and animals, dealing with stray cattle, extinguishing fires, salvaging booty, etc. The existence of courts is mentioned only twice and in passing. It would agree with the general character of the statute if there were no regular courts and the administration of justice would be one of the tasks of the appropriate leaders, from princes to village elders. The semi-military character of Mongol society is still very noticeable in the many provisions devoted to military discipline, behaviour in battle, treatment of equipment, etc. An obvious, but not entirely succesful effort has been made to present the material in a systematized manner; the statute consists of blocks of provisions on specific topics, but many items such as theft, insults, homicide, etc. are regulated in two or three places. The former severity of Mongol law has been replaced completely by a system of material compensation. In only one case (petty theft) the cutting off of the thief’s finger is ordained, but the provision adds: ‘if he does not want to miss his finger, then he pays [so much]’. The basic unit of compensation was the ‘nine’: four cows and five sheep, but in special cases the compensation could rise to one hundred cuirasses, one hundred camels and one thousand horses (e.g. a leading prince who failed to defend his territory against an invader; in this case the penalty would obviously become close to a genuine public fine, because the entire population is victimized).

44

S.D. Dylykov (ed.), Ikh Tsaaz (‘Velikoe ulozhenie’). Pamiatnik mongol’skogo feodal’nogo prava XVII v., Moskva 1981 (Mongolian text and Russian translation and commentary). There is ample evidence that the Great Statute was not the first of its kind, but its predecessors have been lost.

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LAW AND STATE The relationship between law and state, both in an early form, is inevitably a central issue in many of the papers in this volume. A reasonably sophisticated legal system may function in a still embryonic state (Old Ireland), the opposite may also occur (early African states), the emergence of the two may be more or less synchronous (early Germanic and Slavic states), the expression of early law in the form of codification may actually be connected with the loss of statehood, or at least political independence (the ancient Frisians and Saxons, for instance, and, in a different setting, the fixation of the previously unwritten law of modern minority peoples). If we use the term ‘state’ in this section, it should be remembered that in most early states the king appears as the personal manifestation of the state. A very considerable volume of literature exists on the subject of early kingship, with obvious connections with the subject of the early state, but also with connections to ideology and religion. Some reference has been made to these questions in preceding sections on Indo-European patriarchy, and kingship and chieftaincy. As with early law, the concept of emerging statehood may be considered to require some sort of definition. Much work on the ‘early state’ has been done by Claessen and some of his colleagues.45 In the context of this volume, the central question would be to clarify the relationship between early law and the early state. A first observation could be that law and state are often used to define each other. One of the authors of the Claessen-Skalník volume on ‘The Study of the State’, Tamayo y Salmorán, reaches the conclusion that We have considerable evidence that shows that the state is nothing other than a complex of legal acts, a set of legal rules sufficiently centralized and having the monopoly of the use of force. Now, if the state is only a specific legal system, the problem of how the state comes into being, how it functions, how it changes, turns into the problem of how legal rules comes into being, how they function, and how they change.46

In this view a state cannot exist without law and outside law. This is itself a debatable proposition. Both in the past and in modern times there have been ‘lawless’ states, or at least organizations which pretended to be states, acted as states and were treated as states by others. Such states did not rest on legitimizing rules, but on the acquisition and retention of paramount power; this power was exercized, not according to a system of rules, and not through the imposition of rules of behaviour, but through administrative commands. Although the Soviet Union at the heyday of Stalinist terror still displayed some legal attributes of statehood ( a constitution, codes of law, courts), it functioned predominantly through centrally issued and mostly secret bureaucratic instructions.

45

46

Cf. H.J.M. Claessen & P. Skalník (eds.), The Early State, The Hague, 1978; H.J.M. Claessen & P. Skalník (eds.), The Study of the State, The Hague, 1981 (hereafter: Claessen-Skalník); H.J.M. Claessen & J.G. Oosten (eds.), Ideology and the Formation of Early States, Leiden, 1996 (hereafter: Claessen-Oosten). R. Tamayo y Salmorán, ‘The State as a Problem of Jurisprudence’, Claessen-Skalník, 387-407, at 405-406.

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On the other hand, modern law is usually (and generally satisfactorily) defined by reference to the state: law are those rules of behaviour which are issued by the state and backed and enforced by the power monopoly of the state. One thing this volume would show is of course that such an approach is inappropriate to deal with early law. It is often unclear whether we can speak of a state at this stage; if we assume the presence of law, it is often not enforced by the state or a state-like agency. Claessen & Skalník employ a definition of the early state of which the central core is: ‘the centralized socio-political organization for the regulation of social relations’.47 This definition is descriptive, in the sense that it was based on the study of a large number of early states and then attempted to summarize what these states had in common. It implies that the authors, in selecting their sample, had a preconceived idea of what constituted an ‘early state’. An interesting aspect is added by R. Cohen, who argues that the existence and effectiveness of anti-fission devices provide the decisive criterion for distinguishing between early states and early centralized societies.48 Surely, an early society that lacks coherence will most likely not manage to transform itself into an early state, and an early state, the more it consolidates itself, shows that it possesses the instruments to sustain itself as an organization. But does the criterion do what it is supposed to do: help us to distinguish between states and non-states? Only afterwards, I am afraid, once a society has transformed itself into a state, or not, as the case may be, and we can establish that it had or did not have the potential to become a state. What one might discern behind this complicated definitional debate is a difference in approach to the question of definition in the social sciences and in jurisprudence. Laws are full of definitions – instruments, tools, to delimit, to demarcate, to define, the applicability of rules. If the law grants certain rights or imposes certain duties on e.g. policemen, parents, buyers, etc., one has to know exactly who is included and who is not. A definition which provides maximum precision is required. Much of the actual work of lawyers concerns the precise establishment of the limits, the fines, of such definitions. Such definitions are partly descriptive, in that they usually refer to and attempt to describe collections of entities that are known in a general fashion (such as policemen, parents and buyers). But they are also prescriptive, or, in other words, they reflect political choices, because they contain explicit or implicit choices about including or excluding specific sub-collections (Do parents include adoptive and/or foster parents? Do policemen include military policemen, or special police forces? Does purchase and sale include the contract of barter?). The prescriptive character of the definition derives from the authority of the agency who pro47

48

H.J.M. Claessen & P. Skalník (eds.), The Early State, The Hague, 1978, 640. The full definition is: ‘the centralized socio-political organization for the regulation of social relations in a complex, stratified society divided into at least two basic strata, or emergent social classes – viz. the rules and the ruled -, whose relations are characterized by political dominance of the former and tributary obligation of the latter, legitimized by a common ideology of which reciprocity is the basic principle’. This definition then played an important role in the following volume on ‘The Study of the State’, edited by the same authors. R. Cohen, ‘Evolution, fission, and the early state’, in Claessen & Skalník, The Study of the State, 87115.

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duces the definition (in a modern legal system: the legislator or the court). The definition may be regarded as politically undesirable, or legally unfortunate, or socially ineffective by the community to whom it is addressed, but there can be no question of it being wrong, or faulty or invalid (provided it has been expressed in the proper manner). When we speak of early law, or rather an early legal system, or the early state, we do have a general idea of what is meant. We may then attempt to describe more precisely what we have in mind. The description may be more or less successful, i.e. it may succeed in expressing completely or adequately what we had in mind. But it is not prescriptive in the sense that it can decide for ourselves, and a fortiori for others, whether a legal system or a state is or is not early. Such a judgment could always be overridden, also by ourselves. In such a case we would have to admit that our definition was faulty, or, perhaps more correctly: inadequate, ineffective. I would therefore prefer to look differently at the question of the relationship between early law and the early state. Since no authoritative definition of these entities can be given, all we can do is look for a more or less general consensus on various aspects of them. Then the problem becomes much more manageable. The fact that law and state (both with regard to their early manifestations and with regard to the present) usually participate in each other’s definition is not a logical handicap, but a pointer to the solution. If early law and the early state would be tied to prescriptive definitions (‘this is early law’, ‘this is an early state’), then they would appear suddenly, the moment all the elements of the definition are present. In fact we know that they both emerge gradually, by a process of consolidation, of coalescence, of incremental change. We have discussed the question of the definition of law in the beginning of this paper and proposed three phases in the genesis of law: – the emergence of dispute settlement by a third party – further elaboration of this function – monopolization of rule creation, dispute settlement, and enforcement The third phase obviously requires the presence of something like a state. The emergence of the state occurs in similar fashion. The enlargement of the scale of social organization requires more formal arrangements, including clear relations of power and authority. At a certain stage the patterns of relationships will acquire a degree of rigidity that produces reliable rights and duties. Law and the state arise in tandem; in more developed situations they will always be found together (barring exceptional circumstances); they contribute to each other’s definition; the more effective the legal system, the more successful the state. And conversely, a well-organized state will be in a better position to maintain an effective legal system. At the earliest stages of their development, however, law and the state may still be separate. Professionalization of dispute settlement with all it entails (judges, precedents, fixation of rules, etc.) will produce a law-like phenomenon, may in fact be called law, but it can occur (as has been shown in several papers in this volume) in the absence of clear state-like formations. On the other hand, there have been well-

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organized, stable and lasting (non-fissile in Cohen’s terminology) societies where law-like structures were almost absent or seriously underdeveloped.

THE ORIGINS OF LEGISLATION At the beginning of this paper a three-stage development of law was suggested. At the first stage, which might be called pre-legal, the most basic institutions on which any legal system rests are formed. Where human beings live together, differences of opinion, clashes of interests, will occur. If these cannot be settled by mutual agreement, resorting to violence will appear as the first option.49 For the group at large, but often also for the person who prevails, violence will in the end turn out to be an expensive solution. Other members of the group may therefore involve themselves in trying to avoid violence; a third party begins to take part in dispute settlement. This may be in the form of independent mediation, on the basis of persuasion, or in a more authoritative form, where the mediator uses not only persuasion but also his status, and the authority and power derived from it. All this is simple everyday stuff: schoolboys sorting out their differences among themselves, parents interfering when children are fighting. Claessen describes in his paper how agricultural societies first attempt to settle disputes between their members through negotation and mediation; and then how adjudication by a third party develops in several stages. In this process, inevitably, some kind of regularity will assert itself. When certain disputes occur more frequently and are solved more or less satisfactorily, one will be inclined to stick to the same mediators or arbitrators, they will adhere to a certain manner of operation (a procedure), everybody involved in the dispute will refer to similar disputes in the past (the power of precedent). The capping-stone of this development is the acceptance of the solution of the dispute, produced in this way. The entire phase can be called pre-legal, because on the one hand it concerns situations and relationships which could only be regarded as legal by stretching the concept way beyond its accepted usage, but on the other hand the emergence of law would not be possible without the institutions, values and attitudes developed at this stage. The actual emergence of law, in the shape of ‘early law’, can be observed at the next stage. Third party dispute settlement is then becoming professionalized, to a degree. Certain individuals are regularly involved and thereby develop certain professional skills. Precedents develop into rules, although that is not the whole story. As several authors in this volume have observed (e.g. Algra, Hoekema), and has often been observed in the past, the modern era of legislation (centrally issued written law) is not simply preceded by an era of custom and then customary law (based on precedent). At the stage of early law, as nowadays, new situations and problems crop up which require new solutions. Inevitably therefore, anybody exercizing a judicial function will occasionally be called upon to propose or impose such a solution 49

See Genesis, Ch.4, the story of Cain and Abel.

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which then, if it is accepted, may acquire the power of precedent.50 This is also one of the central ideas of that classic description of early law, Llewellyn and Hoebel’s The Cheyenne Way.51 Unwritten law is therefore a more precise term; it may occur in the shape of customary law or of ‘created’, ‘judge-made’ law. The professionalization of dispute settlement, both by the utilization of precedent and the creation of new precedents, involves the articulation of law, its fixation in formulas. There are many and various manifestations of this phenomenon in early law. The Frisian asega, who is expected to know the law by heart; the extensive formulary of older Roman law, where certain sentences must be pronounced exactly in a certain way; the extraordinary similarity between a number of basic provisions in the Germanic leges barbarorum; also in the Russkaia Pravda there are traces of ancient fixed formulas. Before the law comes to be written down, it has already been fixed in the minds of the professionals of the law. If the first stage of the development of early law can be called pre-legal, than the second stage can be called pre-legislative therefore. The professionalization of law is thus intimately connected with the articulation, the enunciation of the legal rules, both old and new. Once this rule enunciation also becomes a monopoly, the second phase of the development of early law attains its conclusion. The stage is then set for the last phase. When the law can only be expressed authoritatively by certain persons or agencies, such as judges and courts, then the next step is to take this power and extend it to include also the power to create new rules without waiting for disputes to arise. Once such a power has asserted itself, the existence of a state cannot be doubted any longer. The older judicial monopoly, when only certain designated persons or agencies were considered to have the power to express the law, is then transferred to the state, which claims the exclusive power, the monopoly, to dictate new legal rules. This phase is then concluded by the acquisition, by the state, of the monopoly to enforce the law. The period of early law, of the emergence of law, is over once this point has been reached. As can be expected, the latter the stage of development, the more abundant the information about it. This is directly connected with the introduction of writing, in two ways. The availability of writing allowed a much more reliable and permanent fixation of texts. On the other hand, the perceived need to preserve information, including legal knowledge, for a longer period led to the invention of writing. Another aspect of writing is that it allowed knowledge to become depersonalized. Previously, law was the possession of persons who were trained in it, who had experience in the legal profession, whether specialized brahmins, Homeric themistes, Irish brithemain or Frisian asegas. Once law was written down, it became accessible to anyone who could read, and control over the law passed from those who ‘possessed’ the knowledge of it to those who wrote it down or had the power to have it written

50

51

Perhaps the famous scene to which van der Vliet refers, described in Homer’s Iliad ∑497-509, involved such a case. In a difficult dispute the city elders had to decide, they sat together on the polished seats of honour, wearing judge’s staffs, and in their midst lay two talents of gold, to be given to the one who would give the best judgment. K.N. Llewelly & A. Hoebel, The Cheyenne Way. Conflict and Case Law in Primitive Jurisprudence, Norman, Oklahoma, 1941.

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down. Legislation, the purposeful creation of new rules, is therefore the most important corollary of writing in the sphere of law. There are, to be sure, indications that legislation was not unknown in oral cultures, alongside the prevalence of custom and judge-made law, but it could only take off once its preservation was not bound any longer to the mnemonic capacity of individuals. In modern times legislation is the monopoly of the state, in its various emanations (central and subordinate local and specialized authorities). The manner of creating and recording legislation are themselves regulated by law. Lawyers will argue about the exact meaning of the words of the law, but not, as a rule, whether a certain text deserves to be regarded as law.One of the fascinating aspects of early law is that it requires answers to questions which need not be asked anymore in a modern legal system. Most of the authors in this volume, when discussing ancient texts relevant to their subjects, had to address first of all the question: what does this text represent? The authentic texts of early legislation have only rarely come down to us. They have been copied again and again and in the course of time variant versions have emerged. A careful comparison of what is available should then lead to a text which would be as close as possible to the original. But uncertainty about the text also occurs along another axis. Even if we would have an authentic text, it still would not always be clear who was the author. An ostensibly legislative text (a more or less systematic listing of legal rules) could be (but very rarely is) the official recording of a genuine act of legislation, comparable to the publication of a law adopted by a modern parliament in its official gazette; or it could be a semi-official directive to courts, or a private registration of an official act, or the official fixation in writing of customary law, or a private registration of what the author considered to be the law, or a scholarly systematization of various pieces of legislation, and so on. The background of all this is that in the early legislative period there was still some confusion about the scope of legislation and manner of recording it. The main lines of development appear to be that at a certain stage the judicial function-enunciation of the law-, the emergence of central authority-the state- and the introduction of writing come together. The law, hitherto the exclusive possession of knowledgeable individuals, is caused to be written down by the newly emerging central power. The realization that writing down the law as it is can easily be extended to writing down the law as the ruler would like it to be, is then the next step. The process is observable in considerable detail in the subsequent phases of the oldest Russian law, the Russkaia Pravda. Once this step is made, the relatively passive registration of customary law soon disappears and is replaced by purposeful legislation as an instrument of government policy. The decisive factor, the catalyst which ushers in the era of genuine legislation, is usually the occurrence of social friction which requires major adaptations of the traditional (mainly oral and customary) order. Van der Vliet observes how early Greek legislation appears first in new colonies. The Frisian Law, and some of the other of the Germanic leges barbarorum arose soon after the imposition of Frankish overlordship. Several phases of the Russkaia Pravda can be connected with major social and political upheavals in Kievan Russia. And for a much earlier period Zimmer notes that the emergence of law can be connected with a mixing of social groups.

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This illustrates an aspect of early legislation which has perhaps been left underexposed until now: its contractual character. Many of the important monuments of early law were also the result of a negotiated settlement. One of the main versions of the Law of the Salic Franks bears the name of Pactus Legis Salicae. Occasionally the texts inform us about the circumstances accompanying the adoption of an ancient law and then it is often related that the ruler, together with members of the elite and (representatives of) the populace had reached an agreement beforehand. This thought takes us back to Maine, with whom we started this paper; at the end of the central chapter V (‘Primitive Society and Ancient Law’) of his Ancient Law, he summarizes his findings as ‘from Status to Contract’.52

52

The question of the role of contract in early law is among the many themes which lend themselves to further investigation; see the Edel paper on the importance of contract in early Celtic law.

Contributors

Nikolaas E. Algra († 18 October 2002) was Emeritus Professor of Legal History and Dutch Law at Utrecht University. He is the author of numerous works on the history of Frisian law and on various aspects of modern Dutch law. Henri J.M. Claessen is Emeritus Professor of Cultural Anthropology at Leiden University. Paul B. Cliteur is Professor of Jurisprudence at Leiden University and Professor of Philosophy at the Technical University Delft. Doris Edel is Emeritus Professor of Celtic Languages and Civilization at Utrecht University. Ferdinand Feldbrugge is Emeritus Professor of East European Law at Leiden University. André J. Hoekema is Professor of Legal Anthropology at Amsterdam University. Dirk H.A. Kolff is Emeritus Professor of Southern Asian History at Leiden University. A.J.B. Sirks is Professor of Legal History at the Johann Wolfgang Goethe University in Frankfurt am Main. Klaas R. Veenhof is Emeritus Professor of the Languages and History of Babylonia and Assyria at Leiden University. Edward Ch. L. van der Vliet is Associate Professor of Ancient History at Groningen University. Willem J. Witteveen is Professor of Jurisprudence at Tilburg University. Stefan Zimmer is Professor of Indo-European Linguistics at the University of Bonn.

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INDEX

Aachen, 802/803 diet of 79, 110 acceptilatio 46 ff. achara, 13 adat 194 ff. Aeschylus, 227 ff. airecht 67, 72-73 Alliott, M. 181 ff. American realism 3, 6, 257 asega 84 ff., 264, 278 ashrama 14 athgabál 69 ff. auctoritas 45 ff. Austin, J. 2, 4, 7 bannum 89 ff. Bagrat Kuropalates, Law of 270 ff. Barth, F. 185, 207 Bentham, J. 2 Binchy, D.A. 66 Blau plaque 141, Bligh, W. 166 bloodwite 102 ff., 95, 102-103 Bodin, J. 6 Bohannan, P. 23-25, 42 Bork, R. 4 brahmins 14 ff., 124-125, 264 Bretha Nemed 60 brithem (brehon) 65, 67, 72 ff., 264, 278 Buganda 167 ff. Byzantium 98 ff., 271 Cáin Lánmana, 126-127 capitis deminutio 46, 55 Capitulare de Villis 95 Charlemagne 77, 79 ff., 89 ff., 95 Cheyenne 23, 278

Chingis-Khan 272 Claessen, H.J.M. 274-275 Clovis 177, 263 Cohen, R. 176-177, 275 Collectio Canonum Hibernensis 60 collective liability 267, 270 comaithches 61, 66-67 conflict rules 190 ff. Corpus Iuris Hibernici 66-67, 69 Cree 205, 208 Dahomey 169 ff. Declaration of Independence, 226 definition of law 6 ff., 256 ff., 276 Derrida 226 dharma, dharma-sutra, dharma-shastra 11 ff. dikè, 37 ff., 119, 130 dominium 54 ff. Drakon 34 duels 85 Dworkin, R. 4-5 Ehrlich, 235 ff., 242 Ekloga 108-109 eunomia 37 ff. fénechas 59 feudalism 88 ff. feuds 79 ff., 90 ff., 100 ff., 267 Fikentscher, W. xi, 256 filid 62, 264 fine 62, 65, 68 Fitzpatrick, P. 224 ff., 232 Franke, H. xi Freud, S. 223 ff. Fuller, L.L. 4-6, 247 ff.

284

Index

Gagarin, M. 25 Gaius 46 ff. gell 66 ff. gens, genius 51 ff. Georgian law 270 ff. Gluckman, M. 25 Goncourt brothers 3 Gray, J. 6-7 Greek polis 26 ff. Gregory of Tours 263 Gulliver, P.H. 163 Haar, B. ter 194 ff. Hagesteijn, R.R. 175, 177 Hammurabi 137 ff., 269-270 Hart, H.L.A. 2, 4 Hayek, F. 6-7 Herodotos 37, 39 Herzberg, A.J. 250 ff. Hesiod 27, 29-30 Hobbes, Th. 2, 6, 223 Hoebel, E.A. 23-24, 278 Hoffman-tablet 141 Hohfeld 24 Holleman, J.F., 204 Holmes, O.W. 3, 6 Homer 27, 29-30, 38, 122, 164, 266 hospitality 118-119 Iaroslav the Wise 94 ff., 105, 110 ff. Incas 171 ff., 176 Indo-European origins 115-136, 259268 ius 119, 129 izvod 103-104

legal positivism, 2, 4, 6, 234 ff. legal utopianism, 2 leges barbarorum 77, 86 ff., 278-279 lex 129-130 Lex Cincia 48, 55 Lex Papia Poppaea 48 litus, liti 81 ff., 87, 89 Llewellyn, K. 278 Lotharius 111 Louis the Pious 90 ff., 111 Mahabharata 12, 20 Maine, H. xi, 117, 255, 262, 280 Makrizi 272 Malinowski, B. 163 mana 50 ff. mancipatio 47 ff. Manu, Laws of 20, 124 marriage 15, 118, 120 ff. Marshall, J. 8 Mayer-Maly 46, 49 ff., 53-54 McDonnell, R. 205, 208 minimal justice 246 ff. mir 103 Mongol law 272-273 Moore S.F. 24-25, 238 ff., 243-244 Morse, B.W. 188 naidm 67 ff. natural law 8, 234 Navajo law 200-202 Nomokanon 94 nomos 23, 37 Novgorod Chronicle, First Okoth-Ogendo, H.W.O.

Johnson, G.A.

90, 96

193, 203

164

Kane, P.V. 21 Kelsen, H. 6, 234 Khazanov, A.M. 176 Köhler, O. xi Kottak, C.P. 164 Kshatrya 14, 19 kudurrus 138, 140

patriarchy 46 ff., 261 ff. Pchelov, E.V. 111 Plato 28, 39 Pospísˇ il, L. 23, 25, 182 Pound, R. 5, 235 ff. Primary Chronicle (Nestor Chronicle) 95 ff. queen-mother

175

Index

285

rachineburgi 264-265 Ramayana 12, 20 Riurik (Rurik) 111, 262 Roman law 45-58, 109, 259 Roth, M.T. 154 Ruschenbusch, E. 35 Salic Law (Lex Salica, Pactus Legis Salicae) 265, 280 Sámi 196-197, 210 Saramago, J. 239 ff. Saussure, F. de 116 Savigny, F.K. von 3-5 Senchas Már 60-61 Shudra 14-15 sick-maintenance 127 ff. sisxli 271 Skalník 274-275 smrti 12 ff. societas ercto non cito 58 sociological jurisprudence 235 ff. Solon 27, 32 ff., 38-39 sruti 12 ff. Stacey, R. 66 Stanihurst, R. 73 stasis 36, 39 state and law 26 ff., 64 ff., 160 ff., 274 ff. Strijbosch, F. 194 sutra 12 ff. svod 103-104 Tacitus 264 Tahiti 165 ff. Tamayo y Salmorán, R. Tatishchev, V.N. 93 taxis 26 thesmos 37

164, 274

túath 61 ff., 69 tutela 45 ff. treaties 5 Tyrtaios 27, 38 Urnamma, Laws of 140, 143-144, 155, 157-158 Urukagina (=Uruinimgima), Reform Edicts of 140, 143 usucapio 53 ff. usurpatio 123 Vaishya 14-15 Vakhtang VI of Georgia 271 varna 14 ff. Veda 11 ff. Vedic schools 12 ff. Vestal virgins 56 ff. Vikings 96, 99, 105 ff., 110 ff. Vinodol Statute 109 vira 95, 102-103 vis genitalis 50 ff., 262 Vladimir of Kiev 96, 110-111 Vladimir Monomakh 97 ff. Vliet, E.Ch.L. van der 164 Vollenhoven, C. van 194 Wagenvoort, H. 57, 262 wergeld 17-18, 68, 80 ff., 99 ff., 267, 271, 273 Wolf, J.G. 46 ff. Wolff, H.J. 27 Wormoald, P. 178 zakon russkii 107-108, 113 Zakon Sudnyi Liudem 108-109 Zion, J. 200 ff.

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In de boekenreeks van het E.M. Meijers Instituut voor Rechtswetenschappelijk onderzoek van de Faculteit der Rechtsgeleerdheid, Universiteit Leiden, zijn verschenen: MI-1 MI-2 MI-3 MI-4 MI-5 MI-6 MI-7 MI-8 MI-9

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T. Barkhuysen, Artikel 13 EVRM: effectieve nationale rechtsbescherming bij schending van mensenrechten (diss. Leiden), Lelystad: Koninklijke Vermande 1998, ISBN 90 5458 530 7. E.E.V. Lenos, Bestuurlijke sanctietoepassing en strafrechtelijke waarborgen in de sociale zekerheid (diss. Leiden), Lelystad: Koninklijke Vermande 1998, ISBN 90 5458 558 7. M.V. Polak (red.), Geschillenbeslechting naar behoren. Algemene beginselen van behoorlijke geschillenbeslechting in traditionele en alternatieve procesvormen, Deventer: Kluwer 1998, ISBN 90 2683 298 2. C.E. Smith, Feit en rechtsnorm (diss. Leiden), Maastricht: Shaker 1998, ISBN 90 4230 045 0. S.D. Lindenbergh, Smartengeld (diss. Leiden), Deventer: Kluwer 1998, ISBN 90 2683 324 5. P.B. Cliteur, G.J.J. Heerma van Voss, H.M.T. Holtmaat & A.H.J. Schmidt (red.), Sociale cohesie en het recht, Lelystad: Koninklijke Vermande 1998, ISBN 90 5458 618 4. M.H. Elferink, Verwijzingen in wetgeving. Over de publiekrechtelijke en auteursrechtelijke status van normalisatienormen (diss. Leiden), Deventer: Kluwer 1998, ISBN 90 2683 352 0. P.T.C. van Kampen, Expert Evidence Compared. Rules and Practices in the Dutch and American Criminal Justice System (diss. Leiden), Antwerpen/Groningen: Intersentia 1998, ISBN 90 5095 049 3. N.C. van Steijn, Mobil Oil III, een uitvinding of een ontdekking? Een onderzoek naar de gevolgen van de Mobil Oil III-beschikking van het Europees Octrooi Bureau van Nederland, Den Haag: Jongbloed 1999, ISBN 90 7006 221 6. R.A. Lawson, Het EVRM en de Europese Gemeenschappen; bouwstenen voor een aansprakelijkheidsregime voor het optreden van internationale organisaties (diss. Leiden), Deventer: Kluwer 1999, ISBN 90 2683 463 2. J. Junger-Tas & J.N. van Kesteren, Bullying and Delinquency in a Dutch School Population, New York: Kugler Publications 1999 (or PB 97747, 2509 GC Den Haag), ISBN 90 6299 171 8. T. Hartlief & C.J.J.M. Stolker (red.), Contractvrijheid, Deventer: Kluwer 1999, ISBN 90 2683 511 6. P.W. Brouwer, M.M. Henket, A.M. Hol & H. Kloosterhuis (red.), Drie dimensies van recht: rechtstheorie, rechtsgeleerdheid, rechtspraktijk, Den Haag: Boom Juridische uitgevers 1999, ISBN 90 5454 026 5. T. Hartlief, De vrijheid beschermd, Deventer: Kluwer 1999, ISBN 90 2683 567 1. H.B. Krans, Schadevergoeding bij wanprestatie, Deventer: Kluwer 1999, ISBN 90 2683 557 4. H.I. Sagel-Grande & M.V. Polak (eds.), Models of conflict resolution, Antwerpen: Maklu 1999, ISBN 90 6215 651 7. H.J.Th.M. Van Roosmalen, The King can do no wrong. Overheidsaansprakelijkheid naar Engels recht onder invloed van de jurisprudentie van het Hof van Justitie van de Europese Gemeenschappen, Den Haag: Jongbloed 2000, ISBN 90 7006 223 2. R.A. Lawson & E. Myjer, 50 jaar EVRM, Leiden: Stichting NJCM-Boekerij 2000, ISBN 90 6750 038 0. C.B. van der Net, Grenzen stellen op het Internet. Aansprakelijkheid van Internet-providers en rechtsmacht, Deventer: Gouda Quint 2000, ISBN 90 2683 622 8. R.P. Raas, Het Benelux Merkenrecht en de Eerste Merkenrichtlijn: overeenstemming over verwarring?, Den Haag: Boom Juridische uitgevers 2000, ISBN 90 5454 028 1. R.H. Haveman, P. Ölçer, Th.A. de Roos & A.L.J. van Strien (red.), Seks, zeden en strafrecht, Deventer: Gouda Quint 2000, ISBN 90 3870 798 3. W.J. Zwalve, Qui solvit alii. Beschouwingen over betaling aan inningsonbevoegden, Den Haag: Boom Juridische uitgevers 2000, ISBN 90 5454 033 8. Hans Krabbendam & Hans Martien ten Napel (eds.), Regulating Morality. A Comparison of the Role of the State in Mastering the Mores in the Netherlands and the United States, Antwerpen: Maklu 2000, ISBN 90 6215 736 X. Jan-Peter Loof, Hendrik Ploeger & Arine van der Steur, The right to property. The influence of Article 1 Protocol no. 1 ECHR on several fields of domestic law, Maastricht: Shaker Publishing 2000, ISBN 90 4230 103 1. D.L.M.T. Dankers-Hagenaars, Op het spoor van de concessie. Een onderzoek naar het rechtskarakter van de concessie in Nederland en in Frankrijk, Den Haag: Boom Juridische uitgevers 2000, ISBN 90 5454 042 7.

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MI-28 MI-29 MI-31 MI-32 MI-33 MI-34 MI-35 MI-36

MI-37 MI-38 MI-39 MI-40 MI-41 MI-42 MI-43 MI-44 MI-45

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MI-48 MI-49 MI-50

T. Hartlief & M.M. Mendel (red.), Verzekering en maatschappij. Juridische beschouwingen over de maatschappelijke rol van verzekeringen en verzekeringsmaatschappijen, Deventer: Kluwer 2000, ISBN 90 2683 713 5. J.E.M. Polak, Effectieve bestuursrechtspraak. Enkele beschouwingen over het vermogen van de bestuursrechtspraak geschillen materieel te beslechten, (oratie Leiden), Deventer: Kluwer 2000, ISBN 90 2715 268 3. H.F. Munneke, Recht en samenleving in de Nederlandse Antillen, Aruba en Suriname. Opstellen over recht en sociale cohesie, Nijmegen: Wolf Legal Productions 2001, ISBN 90 5850 011 X. C.P.M. Cleiren, Geding buiten geding. Een confrontatie van het geding voor de strafrechter met strafrechtelijke ADR-vormen en mediation, (oratie Leiden), Deventer: Kluwer 2001 ISBN 90 3870 833 5. M.H. Wissink, Richtlijnconforme interpretatie van burgerlijk recht, Deventer: Kluwer 2001, ISBN 90 2683 763 1. X.E. Kramer, Het kort geding in internationaal perspectief. Een rechtsvergelijkende studie naar de voorlopige voorziening in het internationaal privaatrecht, Deventer: Kluwer 2001, ISBN 90 2683 784 4. P.B. Cliteur & V. Van Den Eeckhout, Multiculturalisme, cultuurrelativisme en sociale cohesie, Den Haag: Boom Juridische uitgevers 2001, ISBN 90 5454 093 1. C.P.M. Cleiren & G.K. Schoep (red.), Rechterlijke samenwerking, Deventer: Gouda Quint 2001, ISBN 90 3870 848 3. A.C. ’t Hart, Hier gelden wetten! Over strafrecht, openbaar ministerie en multiculturalisme, Deventer: Gouda Quint 2001, ISBN 90 3870 847 5. U Drobnig, H.I. Sagel-Grande & H.J. Snijders, Neue Entwicklungen im deutschen und niederländischen Involvenzrecht sowie Kreditsicherheiten an Mobilien, Amsterdam: Rozenberg Publishers 2001, ISBN 90 6170 546 8. E.R. Muller & C.J.J.M. Stolker, Ramp en recht. Beschouwingen over rampen, verantwoordelijkheid en aansprakelijkheid, Den Haag: Boom Juridische uitgevers 2001, ISBN 90 5454 113 X. P.B. Cliteur, H.J. van den Herik, N.J.H. Huls & A.H.J. Schmidt (red.), It ain’t necessarily so, Deventer: Kluwer 2001, ISBN 90 2683 854 9. E.R. Muller, Conflictbeslechting: Kruisbestuiving van rechtswetenschap en bestuurskunde, (oratie Leiden), Alphen aan den Rijn: Kluwer 2001, ISBN 90 1408 204 5. H.C. Wiersinga, Nuance in benadering. Culturele factoren in het strafproces, Den Haag: Boom Juridische uitgevers 2002, ISBN 90 5454 155 5. W. den Ouden, De subsidieverplichting; wie betaalt bepaalt? Een onderzoek naar de rechtmatigheid van subsidieverplichtingen, Deventer: Kluwer 2002, ISBN 90 2683 887 5. I. Sagel-Grande, In the best interest of the child. Conflict resolution for and by children and Juveniles, Amsterdam: Rozenberg Publishers 2001, ISBN 90 5170 572 7. W.M. Visser ’t Hooft, Japanese Contract and Anti-Trust Law. Sociological and Comparative Study, Richmond Surrey: Curzon Press 2002, ISBN 07 0071 577 0. M. Dekker, Het water meester. Het recht rond de overheidszorg voor de beveiliging tegen overstroming, Den Haag: Boom Juridische uitgevers 2002, ISBN 90 5454 188 1. M. Lurks, W. Den Ouden, J.E.M. Polak & A.E. Schilder, De grootste gemene deler. Opstellen aangeboden aan prof. mr. Th.G. Drupsteen ter gelegenheid van zijn afscheid van de Universiteit Leiden op 31 mei 2002, Deventer: Kluwer 2002, ISBN 90 2684 004 7. S.C. Huisjes, Over dode lijnen en een heuvel recht. De privaatrechtelijke aansprakelijkheid voor schade als gevolg van falende telecommunicatiedienstverlening, Deventer: Kluwer 2002, ISBN 90 2684 003 9. M. Hallers, C. Joubert & J. Sjöcrona (eds.), The Position of the Defence at the International Criminal Court and the Role of the Netherlands as the Host State, Amsterdam: Rozenberg Publishers 2002, ISBN 90 5170 625 1. K.Teuben, Rechtersregelingen als ‘recht’ in de zin van art. 79 Wet RO, Den Haag: Jongbloed 2002, ISBN 90 7006 2313. M. Hallers, A.J. Mauritz, E.R. Muller & C.J.J.M. Stolker, Beginselen van behoorlijk rampenonderzoek, Den Haag: Boom Juridische uitgevers 2002, ISBN 90 5454 251 9. J.C. van der Steur, Grenzen van rechtsobjecten. Een onderzoek naar de grenzen van objecten van eigendomsrechten en intellectuele eigendomsrechten (diss. Leiden), Deventer: Kluwer (te verschijnen febr. 2003).

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Y.L.L.A.M. Delfos-Roy, C. de Groot, P.A.C.E. van der Kooij, S.J.A. Mulder (red.), Zekerheidshalve. Opstellen aangeboden aan Prof. mr. M.M. Mendel, Deventer: Kluwer 2003, ISBN 90 268 40837. Barend Barentsen, Arbeidsongeschiktheid. Aansprakelijkheid, bescherming en compensatie, (diss. Leiden), Deventer: Kluwer 2003, ISBN 90 9000 061. A.F.M. Brenninkmeijer (red.), De taakopvatting van de rechter, Den Haag: Boom Juridische uitgevers 2003, ISBN 90 56454 279 9. H. Snijders & S. Weatherill, E-commerce Law. National and transnational topics and perspectives, Londen: Kluwer International 2003. F.B. Ronkes Agerbeek, Zeg ik dat goed? EU-ambtenaren en hun vrijheid van meningsuiting, Den Haag: Jongbloed 2003 ISBN 90 70062 33X A.C. Damsteegt, De aansluiting van de Werkloosheidswet op het ontslagrecht, Den Haag: Boom Juridische uitgevers 2003, ISBN 90 5454 312 4. P.Vos, Kredietopvraging en insolventierisico. Overlevingskansen van bedrijven in financiële moeilijkheden en de Faillissementswet, Deventer: Kluwer 2003, ISBN 90 1300 580 2. P.B. Cliteur & H.-M.Th.D. Ten Napel (red.), Rechten, plichten, deugden, Nijmegen: Ars aequi libri 2003, ISBN 90 6916 485 X. F.J.M. Feldbrugge (red.), Law’s Beginnings. Leiden: Martinus Nijhoff Publishers 2003, ISBN 90 0413705 X. A.F.M. Brenninkmeijer, Effectieve conflictoplossing bij individuele arbeidsconflicten, en L.C.J. Sprengers, Collectieve belangen – uiteenlopende geschillen (oraties Leiden), Den Haag: Sdu 2003. A.H. Scheltema, De goederenrechtelijke werking van de ontbindende voorwaarde, Deventer: Kluwer 2003, ISBN 90 13 00744 9. W.H. Pokorny´-Versteeg, Milieu-effectrapportage in Nederland en de direct aangrenzende EU-lidstaten. Een rechtsvergelijkend onderzoek, Deventer: Kluwer 2003, ISBN 90 13 00946 8. A.P.A. Broeders, Op zoek naar de bron. Over de grondslagen van de criminalistiek en de waardering van het forensisch bewijs, Deventer: Kluwer 2003 ISBN 90 130 0964 6. C.L.J. Caminada & K.P. Goudswaard, Verdeelde zekerheid. De verdeling van baten en lasten van sociale zekerheid en pensioenen, Den Haag: Sdu 2003, ISBN 90 1210 006 2.

Overige publicaties van het E.M. Meijers Instituut: H.D. Ploeger, Privaatrechtelijke aspecten van de aanleg van boortunnels, Kluwer Rechtswetenschappelijke publicaties, Deventer: Kluwer 1997, ISBN 90 2683 122 6. T. Heukels, N. Blokker & M. Brus (eds.), The European Union after Amsterdam; A Legal Analysis, The Hague: Kluwer Law International 1998, ISBN 90 411 1131 X. (together with the Europa Instituut, Universiteit Leiden) T. Barkhuysen, M.L. van Emmerik & P.H.P.H.M.C. van Kempen (eds.), The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order, The Hague: Kluwer Law International 1999, ISBN 90 411 1152 2. (together with Van Asbeck Centrum, Universiteit Leiden) H. Peter van Fenema, The International Trade in Launch Services, The Effects of US Laws, Policies and Practices on its Development, Leiden 1999 ISBN 90 901 3064 0. (together with International Institute of Air and Space Law) E.C. Nieuwenhuys & M.M.T.A. Brus, Multilateral Regulation of Investment, Den Haag: Kluwer Law International 2001 ISBN 90 411 9844 X. E. Nieuwenhuys, A. Toussaint & M. Valstar, Verslag van het symposium Internationale Dimensies van Maatschappelijk Verantwoord Ondernemen, Leiden: E.M. Meijers Instituut 2002, ISBN 90 9016 080 9. E.R. Muller & J.P. Coenen, Parlementair onderzoek in Nederland, Den Haag: Sdu Uitgevers 2002, ISBN 90 1209 700 2