In Ancient Civilizations
NYPD Captain (ret.)
Professor, St. John’s University (NYC)
Law and Justice Administration in Ancient Civilizations
James F. Albrecht
As civilizations developed throughout the world, a common trend was observed regardless of time and location. Customs were devised by local leaders, memorized, preached and practiced by the populace, and they were in fact the first version of law. When local communities expanded, and writing developed, the local customs were documented for all members of society; thus codes and their respective punishments were made clear to all. Four codes have been either recovered in their entirety or pieced together from historical literature or recovered artifacts. Five major versions of ancient legislation: the Code of Hammurabi, Mosaic Law, Draconian Law, the Roman Twelve Tables, and the Law Code of Gortyn will be examined and compared.
Customs and the Law
Civilizations developed as familial settlements expanded to clans and eventually to groups of clans. The need for cooperation and understanding resulted in the development of common practices for the good of the settlement. These tacit agreements were often long standing, and acknowledged community customs resulted. These early customs, conveyed verbally or through action, served as the local rules and as precedents in decision making. These societal covenants therefore served as the first laws (Goguet, 1761).
Since punishments were often meted out in arbitrary fashion, both a code of conduct and delineated penalties became necessary. It thus became the responsibility of the ruler or “sovereign” to correct the inconvenience and insufficiency of primitive society. The “positive” laws addressed the most general interests of society, the clearest being the right of property. Regulations were designed to secure for community residents the “peaceable enjoyment of his possessions.” These different rules eventually gave rise to civil law (Goguet, 1761).
One of the intentions of political society is to “secure the tranquility of all its members.” It therefore became necessary to take measures to suppress attempts to disturb the public peace. History had revealed that the support of society depended entirely on “coercive power, which by exemplary punishments intimidates the wicked and balances the allurement of pleasure, and the strength of the passions.” As a result the, penal laws evolved. Punishments often took the form of retaliation and were often severe (Goguet, 1761).
Religion and Written Law
Civilization arose 5,000 years ago
in the Near East (in
Before written codes of conduct, the earliest societies relied on religion, customs and magic to maintain order. In the religious perspective, not only could the offending individual, but the entire social group, become subject to the wrath of the gods. Responsibility was collective in nature as was punishment. It therefore was necessary for the society to punish the individual to “prevent supernatural forces from taking revenge on the tribal group” (Roth, 2005). Society was then justified in treating moral non-conformists as delinquents, criminals or victims of mental illness. It was law that allowed society to communicate the moral values to maintain the goals of that culture (Wallace, 1973). While custom emanated from the people, law was forced on the community by the decree of a master, a monarch, a ruler, or group of elders (Roth, 2005).
Preliterate societies allowed private disputes to be settled in a personal matter and revenge was the usual outcome. Victims themselves initially determined the extent of the retribution, which was often not proportional to the original offense. This “blood feud” would be better referred to as “blood revenge.” In an effort to control the magnitude of vengeance, the responsibility for punishing the perpetrator was transferred to the societal group. The introduction of writing then allowed substantive laws to pass from the oral tradition to the entire community (Roth, 2005).
A number of notable law codes were
introduced before the Common Era (B.C.E.), most significantly the Code of
The Code of Hammurabi
One of the world’s first great civilizations was founded on the plains
between the Tigris and
The earliest written law codes were produced in
The discovery of the Code of Hammurabi (1700 B.C.) was a significant
archaeological find. Uncovered by French
archaeologists in 1901 at
The Code of Hammurabi contemplated the whole population as falling into three classes. The “Amelu” was a patrician who had aristocratic privileges. The “Muskinu” was a free person who may have been landless. The “Ardu” was a slave (Johns, 1910). The significance of defining the social status of the offender and the victim was made clear in the outlined punishment. Punishments were more severe if the perpetrator was from the lower classes (Roth, 2005).
Although it is now recognized that the Code of Hammurabi was not the first law code, it is apparent that Hammurabi “borrowed extensively from earlier rulers,” as archaeologists have uncovered law related clay tablets in Iraq that pre-dated those found in Susa by several hundred years (Roth, 2005). However, the comprehensiveness of the Hammurabi slab is to date without comparison. As such, it is acknowledged that the Code of Hammurabi introduced the world to the concept of “lex talionis,” or an eye for an eye and a tooth for a tooth, which clearly resulted in a severe and literal view of accountability (Roth, 2005). The death penalty was also commonly imposed for such infractions as theft, for poor architecture that lead to death, for maternal incest, for adultery, for rape, for false accusation, and many other specific acts. Exile and corporal punishment were also imposed, but probably the most interesting were those dealing with penal retaliation, such as the cutting off the hand of a son who struck his father, the loss of an eye that “pried into forbidden secrets,” and the loss of a surgeon’s hand that caused the loss of life or limb. However, the most common penalty was a fine, particularly if the offender was from the upper class. In addition, the concepts of culpability and suspicion were addressed, as penalties were less severe if the offense was conducted unintentionally, and the offender could often only be prosecuted if caught in the act or in possession of stolen goods. The Code of Hammurabi was so complete that it outlined a method of appeal that would first be heard by a superior court and ultimately by the king himself (Johns, 1910).
The Hebrews originated in
Mesopotamia and migrated to Canaan (later called
Under Hebrew law, the religious nature of crime was apparent as crime was equated to sin, since every criminal offense could be considered a crime against God. Once again the concept of penal retaliation or “an eye for an eye” was outlined in the Biblical section Exodus. The Torah also outlined the proper legal procedure for filing a formal complaint against an offender, which involved both the plaintiff and the defendant appearing before an authority figure, often an elder, at the main gate of the city. Issues such as the number of witnesses, the level of culpability and self defense were taken into consideration, however there was no distinction between social classes, so every person could be equally tried and punished (Roth, 2005). Actually, specific efforts were made to protect the poor, widows, orphans, migrants and slaves (Perry, 1993). The sentence of capital punishment was limited in comparison to the older Code of Hammurabi, and many property offenses were settled through the payment of fines or restitution (Roth, 2005).
It appears that many of the laws and punishments outlined in the Torah are similar to that of earlier regional practices, but the more humane repercussions and the applicability to all members of Hebrew society provided a higher degree of religious influence than the Code of Hammurabi.
The Laws of Draco and Solon in
Prior to the introduction of writing
in Greece, the law of Athens and the administration of justice remained in the
hands of the oligarchy, with societal laws being passed down to the next
generation orally. The non-aristocrats
eventually demanded that the societal regulations be recorded so that all
classes could benefit from their enforcement.
In 621 B.C., Draco was asked by the rulers of
It was written that the laws created by Draco were recorded on pillars of wood for religious matters and on bronze for other aspects of law. However, no fragments of Draco’s law have survived and we must rely on the writings of early Greek historians for insight into this important legislation (Roth, 2005).
Draco’s legislation did have a
negative impact on the lower classes, and severe financial penalties often
placed them in economic distress. This
feeling of inequality brought the city of
The Twelve Decemviral Tables of
In 509 B.C., the Romans were able to
free themselves from the clutches of absolute power and attempted to develop a republican
form of government. In 455 B.C., the
While significant in legal history, the laws outlined on the twelve tablets dealt mainly with private disputes between individuals. The concept of “lex talionis” was also emphasized as it related to criminal matters, but this could often be avoided with payment of a fine of 300 pounds of copper. As per the twelve tablets, capital punishment was an appropriate penalty for murder, treason, nocturnal meetings, arson, judicial perjury, libel and slander, vandalism to a farm, and magical incantation. However, again the sentence of death could routinely be evaded by payment of a fine (Gibbon, 1999). It would therefore appear that the outlined aim of equalizing the social classes may not have been attained.
Some historians have concluded that this legislation was not intended to
be a comprehensive law code, but rather a compilation of laws that could be
abused by unethical judges if the plaintiffs were not properly versed in the
law. However, to the common citizen, these
laws did appear to neutralize the two competing social classes as far as
justice administration was concerned, and set the tone for future democratic
legal practices throughout the western world for thousands of years,
particularly those regions directly affected by the subsequent Roman conquests
of Europe and the
The Law Code of Gortyn in
The Evolution of Law and Jurisprudence
When examining the evolution of ancient law codes, there appears to be a number of common trends. Law codes seem to appear at the same time in the history of respective civilizations, which is clearly not to say that this occurred at the same time in chronological history, but rather at similar stages in the development of each particular society. What started as customary practices in small clans, eventually evolved into community norms as the size of each settlement increased. Once these communities enlarged to the stage that not all members were known to each other, the customs of the tribe were left in the hands of the leader, elder or priest. These norms and rules were passed from one generation to the next, but often lead to arbitrary decision making on behalf of the group ruler. As these societies grew to extremely large sizes, the imposition of rules and the punishments imposed were left in the hands of a select few, namely the privileged minority. Differential social classes and treatment often resulted.
In order to ensure compliance, community leaders often invoked religion to enhance their authority. By portraying themselves as gods or the chosen of the gods, rulers were able to institute customs and practices that at times were detrimental to society members or certain classes of the community. With the invention of writing, the local directives of the ruler could be codified and displayed for all members of his empire. Legal history thus evolved from customary to codified law. Through time, legislation that benefited the ruler or the traditional gods was replaced by laws that benefited all members of that society and whose emphasis was on public order and democratic governance. While these stages did not occur at the same rate, nor to the same extent in every civilization, some generalizations about the evolution of law can be said of most societies. One can also conclude that perhaps, due to their proximity, neighboring empires borrowed many aspects of their customs and codified law from each other. Does that mean that perhaps all laws were based on one ancient set of traditional customs? I tend not to agree, as some civilizations that had little or no contact with each other often developed similarly delineated legal and penal practices. While the legal codes outlined above may have been influenced by continental and regional contact, similar civil, criminal and penal practices were also codified in distant regions. One clear example involves the legislative clauses of the Chinese emperors that essentially mirrored the codified directives of the Middle Eastern civilizations. The civil and criminal code of Li Kuei in the fourth century B.C.E. provided the basis for the Ta Ching Lu Li, the Chinese criminal and penal codes that have remained in force through 1912 (Diamond, 1973). It would appear that both writing and codified criminal and penal practices are a stage in the evolution of all, or at least most, developing civilizations.
Arkenberg, J.S. The Law Code of Gortyn (
DeBurgh, W.G. The Legacy of the Ancient World.
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Gibbon, E. “The Idea of Roman Jurisprudence” in The Decline and Fall of the Roman Empire, 1999 located in the Ancient History Sourcebook at:
Goguet, A.Y. The origins of laws, arts, and sciences
and their progress among the most ancient nations (original in 1761).
Reprinted by Donaldson and Reid. AMS Press,
The History of
Johns, C.H.W. “Babylonian Law – The Code of Hammurabi,” in The Encyclopedia Britannica. 11th Edition, 1910 located at:
Keathley, J.H. The Mosaic Law: Its Function and Purpose in the New Testament, 2004 located at: www.bible.org
Perry, M. Western Civilization: A Brief History, Volume 1: To 1789. Houghton Mifflin,
Roth, M. Crime and Punishment: A History of the Criminal Justice System.
Wallace, A.F.C. “Schools and Revolutionary and Coservatice Societies,” in Cultural Relevance and Educational Issues. Edited by Ianni and Storey. Little, Brown and Company, pp. 230-249, 1973.
JAMES F. ALBRECHT
F. Albrecht is a 20-year veteran of the NYPD who retired as the Commanding
Officer of NYPD Transit Bureau District 20, responsible for the supervision and
deployment of over 300 police officers tasked with the prevention of crime in
the subway and rapid transit system in the borough of
James Albrecht received two Bachelor’s Degrees in Biology and German Language and Culture from New York University in 1983; a Master’s Degree in Criminal Justice from the State University of New York at Albany in 1990; a Master’s Degree in Human Physiology from the City University of New York at Queens College in 1992; and is presently pursuing a PhD in History at Queens College (CUNY).
James Albrecht is presently
a Professor and Graduate Coordinator of the Criminal Justice Leadership Masters
Degree Program at