Ancient Legal Thought: Equity, Justice, and Humaneness From Hammurabi and the Pharaohs to Justinian and the Talmud

Cover
Half-title
Title page
Copyright information
Table of Contents
Acknowledgments
General Introduction
	Authority
List of Maps
Part A Ancient Mesopotamia and Egypt
	Introduction for Part A
	Section I Ancient Procedural Law
		1 Ancient Legal Reasoning
			1.1 “Codes,” Edicts, and Decrees
			1.2 Primitive Legal Reasoning
			1.3 Legal Reasoning “By Example”
			1.4 The Terms for Law and Justice
			1.5 Religious and Secular Law
		2 Judging, Trials, and Assemblies
			2.1 Judges and Judging
			2.2 Judicial Decision-Making and Ancient Legal Thought
			2.3 Ancient Mesopotamian Assemblies
			2.4 Ancient Trials
			2.5 The Rule of Law in Mesopotamia
			2.6 Participation in Justice
		3 Oaths, Ordeals, and Truth
			3.1 Proof by Ordeal
			3.2 Proof by Swearing of Oaths
			3.3 The Determiner of Truth
			3.4 Religion and Proof
			3.5 Ancient Proof and Truth-Telling
	Section II Freedom, Equality, and Legal Status
		4 Debt Forgiveness and Equity
			4.1 The “Code” of Hammurabi and the Edicts of Ammisaduqa
			4.2 The Law of Replenishing Stolen Goods
			4.3 Debt Relief and Equity in Ancient Legal Thought
			4.4 Equity and Debt Relief
			4.5 Forgiveness, Equity, and Debt Restructuring
		5 Freedom and Slavery
			5.1 Types of Slavery in the Laws of the Ancient Near East
			5.2 Foreign Slaves
			5.3 Debt Slaves and Adoption Slaves
			5.4 Two Modern Conceptions of Freedom
			5.5 Assessing Ancient Conceptions of Freedom
			5.6 The Relationship of Ancient Freedom and Slavery
		6 Class, Legal Status, and Equality
			6.1 The Muskenum in Ancient Babylonia
			6.2 Protecting the Muskenum Class?
			6.3 The Weak and the Poor
			6.4 Class Inequality and Class Inequity
			6.5 Equality Before the Law
		7 Women’s Separate Sphere
			7.1 Women as Priests and Saloon-Keepers
			7.2 Marriage and Inheritance
			7.3 Adultery and Rape
			7.4 Honor and Pollution
			7.5 Patriarchy and Separate Spheres
	Section III Crime and Punishment
		8 Complicity and Conspiracy
			8.1 Conspiracy in an Egyptian Harem
			8.2 Conspiracy and the Great Tomb Robberies
			8.3 Guilt Based on Inaction and Complicity in Egypt and Mesopotamia
			8.4 Conceptualizing Complicity
		9 Crime and Lex Talionis
			9.1 Hammurabi and Lex Talionis
			9.2 Penalties and Punishments in Hammurabi’s Code and Egyptian Law
			9.3 Proportionality and Lex Talionis
			9.4 Defending Lex Talionis
			9.5 Criminal Punishment
		10 Capital Punishment
			10.1 Death for Death
			10.2 Sorcery and False Accusation
			10.3 Murder and Rape
			10.4 Punishment and Law Enforcement
			10.5 Possible Ancient Defenses of Capital Punishment
	Section IV International Justice
		11 Ancient Treaties and Trust
			11.1 Ancient Vassal Treaties
			11.2 The Hittite-Egyptian Treaty of 1285 bce
			11.3 Ancient Compliance
			11.4 Oaths and Threats
			11.5 Trust in the Ancient “International” Community
		12 Aggressive War and Necessity
			12.1 Opportunity
			12.2 Necessity
			12.3 Vengeance and Punishment
			12.4 Humanitarian Intervention
			12.5 Reconsidering National Defense and Humanitarian Intervention
			Concluding Thoughts for Part A
Part B Ancient Greece and China
	Introduction for Part B
	Section V Law, Justice, and Equity
		13 Custom and Law in Ancient Greece and China
			13.1 Antigone and Law
			13.2 Law and Democracy in Ancient Greek Legal Thought
			13.3 Ancient Chinese Legal Thought About Law
			13.4 The Critique of Written Law in China and Greece
			13.5 The Debate about the Proper Place of Law
		14 Justice and Equity
			14.1 Justice and the Rule of Law for the Greeks
			14.2 Equity and Fairness for Aristotle
			14.3 Justice and Equity in Ancient China
			14.4 Conceptualizing Ancient Equity
			14.5 DISTINGUISHING JUSTICE AND EQUITY
		15 Trials, Juries, and Democratic Assemblies
			15.1 Chinese Trials and Investigations
			15.2 Athenian Jury Trials
			15.3 Political and Legal Institutions in Greece and China
			15.4 Aristotle’s Criticisms of Democracy
			15.5 Trial Procedures in Ancient Legal Thought
	Section VI Legal Status
		16 Citizens and Aliens
			16.1 Law, Aliens, and Social Status in Ancient China
			16.2 Citizenship in Ancient Athens
			16.3 Metics and Aliens in Athens
			16.4 Metics and Greek Democracy
			16.5 Learning from the Athenian Metics
		17 Women
			17.1 Women and Citizenship in Ancient Athens
			17.2 Marriage and Adultery Laws in Ancient Greece
			17.3 The Status of Women in Plato’s Laws
			17.4 Private Property and the Family
			17.5 The Status of Women in Democracies
		18 Slavery and Democracy
			18.1 Early Greek Laws on Slavery
			18.2 Aristotle’s Defense of Slavery in Athens
			18.3 Other Athenian Views of Slavery
			18.4 Law and Freedom in Ancient Athens AND CHINA
			18.5 Thinking About Law and Freedom
	Section VII Responsibility and Punishment
		19 Causation and Responsibility
			19.1 The Javelin Thrower in the Second Tetralogy of Antiphon
			19.2 Plato and Aristotle on Causation
			19.3 Contemporary Philosophical DiscussionS of the Second Tetralogy
			19.4 Proximate Causation and Contributory Causation
			19.5 The Second Tetralogy’s Lessons
		20 Homicide and Pollution
			20.1 Ancient Greek Legal Thought and Criminal Law
			20.2 Draco’s Homicide Law
			20.3 Pollution in Antiphon, Aeschylus, and Plato
			20.4 Pollution Problems
			20.5 Legal Pollution in Athens
			20.6 Dangerousness and Pollution
			20.7 Redressing Harm to Society
		21 Justification, Excuse, and Mitigation
			21.1 Ajax and Oedipus
			21.2 Antiphon’s Third Tetralogy
			21.3 Aristotle on Justification and Proportionality
			21.4 Lack of Virtue and Mitigation of Punishment in Ancient China
			21.5 Justification and Excuse in Legal Thought
		22 Hubris and Impiety
			22.1 Ancient Greek Conceptions of Hubris
			22.2 Two Cases of Hubris from Demosthenes
			22.3 Impiety in Ancient Greece and China
			22.4 Impiety and Hubris as Ancient Honor-based Crimes
			22.5 Dishonor and Hubris in Legal Thought
	Section VIII War and Amnesty
		23 Amnesty, Sanctuary, and Exile
			23.1 The Athenian Amnesty of 403 bce
			23.2 Sanctuary in Ancient Greece
			23.3 Exile and Ostracism
			23.4 Equity and Extraordinary Practices in China and Greece
			23.5 Why Amnesty and Sanctuary Are Important
		24 Justified War and the Law of Nations
			24.1 Ancient Chinese Ideas of the Justification for War
			24.2 Ancient Greek Ideas About Aggressive War
			24.3 Ancient Greece and the Law of Nations
			24.4 The Obligation to Keep Treaties
			24.5 Treaty Enforcement in International Law
			Concluding Thoughts for Part B
Part C India and the Roman Republic
	Introduction for Part C
	Section IX Law, Justice, and Equity
		25 Law and Its Sources in Ancient Roman and Indian Law
			25.1 Sources of Ancient Roman and Indian Law
			25.2 The Twelve Tables and Cicero on the Nature of Law
			25.3 Ancient Indian Conceptions of Law in the Sutras and Code of Manu
			25.4 The Nature and Sources of Law
		26 Legal Procedures and Trials
			26.1 Procedure in the Law of the Kings and the Twelve Tables
			26.2 Ancient Indian Procedural Law
			26.3 Trials in Ancient India and the Roman Republic
			26.4 Witnesses and Proof
			26.5 Why Legal Procedure Matters
		27 Equity and Justice
			27.1 Cicero on Equity and Justice
			27.2 Equity in Ancient Indian Legal Thought
			27.3 Equity in Roman Legal Thought and Practice
			27.4 From Jus Gentium to Jus Naturale
			27.5 Equity’s Promise and Problems
			27.6 Law and Its Relation to Morality
	Section X Legal Status and Social Class
		28 Legal Status of Women
			28.1 The Early Roman Laws on Women
			28.2 The Early Indian Laws on Women
			28.3 Alternative Accounts of the Legal Status of Women in Rome and India
			28.4 The Legal Status of Women in Theory and Practice
			28.5 Legal Status of Women and the Social Control of Marriage
		29 Social Class and Slavery
			29.1 Class and Law in Ancient India and Rome
			29.2 The Sudra in Ancient Indian Law
			29.3 Slavery in the Roman Republic
			29.4 Comparing the Lowest Classes in Ancient Rome and India
			29.5 Law and the Worst Off
	Section XI Responsibility and Punishment
		30 Political and Moral Crimes
			30.1 Poisoning in the Roman Republic
			30.2 Poison and Treason in Ancient India
			30.3 Hierarchy and Crime
			30.4 Ancient Roman and Indian Criminal Procedure
			30.5 The Moral and Political Aims of Ancient Criminal Law
		31 Punishment, Cruelty, and Humaneness
			31.1 Punishment in the Twelve Tables
			31.2 Punishment in the Code of Manu in Ancient India
			31.3 Exile, Banishment, and Outcasting as Alternatives to Capital Punishment
			31.4 A Few Words from Seneca
			31.5 Thinking About Punishment Humanely
		32 Crimes Concerning Political and Legal Abuse
			32.1 Ancient India’s Protections of Political and Legal Process
			32.2 The Roman Crimes of Majestas and Ambitus
			32.3 Infamia and Calumnia
			32.4 Ancient Laws Concerning Punishment of Legal or Political Officials
			32.5 The Importance of Protecting Legal and Political Processes
	Section XII War and Treaties
		33 Treaties, Hostages, and Keeping Faith
			33.1 Treaties in Ancient India and the Roman Republic
			33.2 Keeping Faith
			33.3 The Role of Hostages
			33.4 Conquest by Morality
			33.5 Treaties in Emerging ANCIENT Empires
		34 The Rules of War and the Law of Peoples
			34.1 The Law of Nature and the Law of Peoples
			34.2 Roman Ideas of the Law of War
			34.3 Ancient Indian Ideas on the Law of War
			34.4 Prisoners of War
			34.5 International Law in Ancient India and Rome
			Concluding Thoughts for Part C
Part D Rabbinic Law and the Roman Empire
	Introduction for Part D
	Section XIII Justice, Equity, and Conflict of Laws
		35 Law, Morality, and Religion
			35.1 Justice and Equity in Rabbinic and Late Roman Legal Thought
			35.2 Religion and Law in Ancient Rabbinic Thought
			35.3 Morality and Law in the Roman Empire
			35.4 The Religious Aspects of Law
			35.5 Morality and the Domain of Law
		36 Dual Legal Regimes
			36.1 Overlapping Legal Domains
			36.2 Circumcision and Conversion
			36.3 Roman Interference with Jewish Religious Life
			36.4 Conflict of Laws for Jews in the Roman Empire
			36.5 Autonomy and Tolerance of States Within States
		37 The Law and Ancient Legal Scholars
			37.1 Rabbis and Ancient Rabbinic Law
			37.2 The Legal Scholars of the Roman Empire
			37.3 Why Did Legal Scholars and Rabbis Come to Make Law?
			37.4 Professional Legal Scholars and Lawyers
			37.5 Did Professional Legal Scholars Make the Law more Humane?
	Section XIV Differential Status
		38 Women in Jewish and Roman Thought
			38.1 The Status of Women in Rabbinic and Imperial Roman Times
			38.2 Religion and the Status of Women in Rabbinic and Roman Law
			38.3 Marriage and Divorce
			38.4 Rape and Sexual Violence
			38.5 Lack of Advances for Women at the End of the Ancient Period
		39 Slaves in Jewish and Roman Legal Thought
			39.1 Slaves as both Persons and Things in Late Roman Thought
			39.2 Slaves in Rabbinic Law
			39.3 The Quandary Over Slavery Revisited
			39.4 The Few Critics of Slavery During Later Ancient Times
			39.5 Reconsidering the Idea of Moral Progress in Light of Slavery
	Section XV Responsibility
		40 Intention and Causation in Criminal Law
			40.1 Causation and Crime in Rabbinic Legal Thought
			40.2 Causation and Crime in the Legal Thought of the Roman Empire
			40.3 Intention in Ancient Rabbinic Legal Thought
			40.4 Intention in the Legal Thought of the Roman Empire
			40.5 Conceptualizing Criminal Responsibility
		41 Injury and Murder
			41.1 Injuria in the Roman Empire
			41.2 Injury and Assault in the Talmud
			41.3 Murder in the Roman Empire
			41.4 Homicide in the Talmud
			41.5 Why Crime is Understood as Outrageous in Ancient Legal Thought
		42 Public Punishment, Penal Prisons, and Police
			42.1 Public Punishment
			42.2 Penal Prisons
			42.3 Police Enforcement
			42.4 Public Institutions and Criminal Law
			42.5 Assessing the Expanding Domains of Organized Religion and the State
	Section XVI Universal Law at the End of Ancient Times
		43 Universal Law and Human Rights
			43.1 Roman Conceptions of Natural Law
			43.2 Ancient Rabbinic Conceptions of Divine Law
			43.3 Universal Law, Divine or Natural
			43.4 Universal Law, Universal Jurisdiction, and Human Rights
			43.5 The Idea of Human Rights
		44 The Origins of the Just War Doctrine
			44.1 Pacifism in the Early Christianized Roman Empire
			44.2 Augustine’s Defense of the Just War
			44.3 Ancient Rabbinic Ideas of a Just War
			44.4 Universal Law and Limitations on War
			44.5 Some Remaining Worries About War’s Inhumaneness
			Concluding Thoughts for Part D
Part E Final Thoughts
	45 Final Thoughts on Equity, Justice, and Humaneness
		45.1 Ancient Conceptions of Equity and Justice
		45.2 Some Cases of Equity
		45.3 Mercy and Equity
		45.4 Humaneness, Discretion, and Equity
Bibliography
Index