The long-acknowledged ancestor of the two great modern legal systems - the common law and the civil law systems - is ancient Roman law. Early Greek law, too, played an important role. It is becoming increasingly apparent, however, that the Greco-Roman systems have their ancestors to some degree in the Ancient Near East. This points to the Ancient Near East as the source ofat least some ofthe legal ideas and customs that have accompanied human civilizations throughout much of history. Although scholars can now trace many of the legal connections between the societies of the Ancient Near East and those of the Greco-Roman only in outline, identifying these connections is a crucial step toward understanding the historical development of law in general.
Both early Greek and Roman law seem to have been the beneficiary of what was the primary method of legal reasoning in the Ancient Near East. This mode of reasoning
Is perhaps best characterized as the case law method. Most of the individual provisions in the Ancient Near Eastern law collections are formulated as conditional clauses beginning with a term equivalent to ‘‘if.’’ A scenario is presented in the protasis (an ‘‘if’’ clause); the resolution to that scenario comes in the apodosis or conclusion. This type of formulation prevails in the Greek Code of Gortyn from Crete (Willetts 1967) and in many works recording early Roman law, including the Twelve Tables (Crawford 1996: 578-83; Wolff 1951: 98-9).
More specific connections between the legal systems of the Ancient Near East and Roman law include issues related to flood damage to agricultural fields (see LH paragraphs 53-6 and the Roman legal texts cited in Watson 2001: 138-47), penalties for assaulting free citizens and slaves (see HL paragraphs 1-4, 7-8, 11-16; LH paragraphs 196-205; and the Twelve Tables I 14, Crawford 1996), and the distinction between theft at night, theft in the daytime, and the different levels of liability of one who defends against such theft (see LE paragraphs 12-13; Exodus 22: 1-2; and the Twelve Tables I 17-18, Crawford 1996).
Another possible point of connection between Ancient Near Eastern and early Greek law has to do with oaths in court. There is no question that the judicial oath originated in the Ancient Near East, the earliest evidence stemming from Mesopotamia in the late third millennium. Throughout much of Ancient Near Eastern history, trial courts frequently required one of the parties at trial to take an oath in the name of one or more gods. By taking the oath, parties would swear to the veracity of their claims and thereby subject themselves to divine punishment if in fact they were lying (Lafont 1997). If the party required to swear went through with the oath, that party automatically won the case.
A notable development occurred, however, in Mesopotamia during the mid-first millennium, the Neo-Babylonian period. The number of instances when a court required someone to take an oath dropped dramatically. Instead, courts much more frequently demanded further evidence from parties, primarily in the form of witness statements. The jurisprudential scene became one in which the courts demonstrated a preference for testimonial evidence over oath-taking as a means of deciding a trial. This is similar to an attitude reflected in the Greek Code of Gortyn, which dates to the mid-fifth century. There, reference is made to several different types of disputes about which the text instructs judges to make their decisions based on witness testimony. Only if there are no witnesses, or if there are conflicting witness statements, might the judge, according to the code, decide the case by taking an oath himself and then rendering a verdict.5 Thus, a tendency to prefer witness statements over the use of an oath appears in early Greek law as well. Whether a connection in fact exists and what the nature of that connection might be are issues that warrant further investigation.
Similarities between Ancient Near Eastern and early Greek law occur in other areas as well, primarily in family law. Issues related to inheritance (LL paragraph 2; Numbers 27:8, 36:8; Gortyn VII 15-24), divorce (LH paragraphs 138-41; Gortyn II 45-55), the handling of a wife’s dowry (LH paragraph 163; Gortyn III 30-5), and adoption (LH paragraph 191; Gortyn XI 9-17), reveal a number of striking resemblances between the two.
All in all, there can be little doubt that the Ancient Near East was home not only to the world’s earliest legal records but also to principles and practices which spread to other civilizations. The few connections outlined above between the legal systems of the Ancient Near East and the Greco-Roman world mark the beginning of a long period of transmission. While the current debates within legal scholarship of the Ancient Near East will continue, some of the most important work in the future may relate to the task of describing the role that Ancient Near Eastern law played in the overall development of law and in the formation of modern legal systems.
World History
