Primitive Law, Past and Present

A.S. Diamond

• Verlag: Routledge
• Jahr: 2013
• ISBN:
  9781136549564
• Auflage: 1
• Thema: Social Sciences
• Thema: Anthropology

This book is a study of the beginnings of law and the 'primitive' stages of its development, from the first rudimentary rules of conduct to the codes of the legal systems. Its scope extends to both cultures and legal systems from the ancient and medieval past: those of the Babylonians and Assyrians, Hittites, Hebrews, Romans, Hindus, English and other German peoples, and those of Africa, Australia and America. Correlating early economic and legal development, the book illustrates how laws change with the development of material culture.
Originally published in 1971.

PART I

CHAPTER 1

Introduction

The purpose of this book is to attempt an account of the general course of development of law from its beginnings until maturity. In some part or other of the world all stages of this development can be seen either in history or in recent times. In some parts of the world the beginnings can still, or could recently, be witnessed; in others law can be observed in a mid-course of development and part of the story is hidden in an unrecorded past; in others the whole story, except its closing stages, belongs to an age before the dawn of history.

But a pre-history, like a history, requires some kind of time-scale if it is to have meaning and value, even though at any moment the clock of pre-history may show a different hour in different lands. It is not to be supposed that if law can be divided into two periods, a primitive and a mature, there is no development and no change in the primitive law as, to our knowledge, there is, and must be, in the mature. If we can recognize certain general differences between a primitive and a mature law, this is only a beginning of any knowledge of either. The English law of today is remotely different from what it was only a thousand years ago, and the law cannot, in its beginnings, have sprung complete like Pallas from the head of Zeus. We may look at a distant range of mountains and seem to see a line of peaks; as we approach, the line disappears and we begin to learn the nature of the country. There is great depth between the foreground and the distance, and a progression of heights of which we had no knowledge, and there are valleys previously hidden from sight. So with the law: it is distance and lack of knowledge that create the apparent oneness in the nature of primitive law.

But how can a time-scale be discovered or imagined? We have good reason to believe that the development of civilization has moved ever more quickly since the beginning of history, so that the acceleration has been plain to see in our own lifetime; likewise changes that took place over millennia in the Near East of five thousand years ago took only a century or two in England and Western Europe of a thousand years ago and take only decades in peoples of today. We also seem to see periods of quiescence interspersed, here and there, with great strides forward in inspired ages, such as the third dynasty of Egypt, or the fifth century B.C. in Athens, or the Renaissance in Italian cities, and again we know nothing directly of events in the growth of law before history and even less of the dates of such events.

There is only one time-scale, to call it so, that can be attempted, and that is the economic, using the word in its widest sense — the progression of development of visible, measurable, material culture. We know from archaeology, as well as history, the main steps in that development in the past and they can be seen in the present. They are relevant to our study because we can see in history a correlation between the economic development and the legal, and we are entitled to expect that there was such a correlation in pre-history. Employing, then, such a time-scale, our purpose is to find the changes in the growing law that appear at every step in the scale.

We must not expect to find by this means a unilinear course of legal development. In detail it is too much to expect always to find that each step was reached from the same step in the scale. The scale is not a ladder but a tree with branches, or perhaps a forest. It is not to be expected that at each step the law of all peoples will be found to be the same. It must be rarely, if ever, that the economies of two peoples are identical, and it is not common that any rule of law of one people is the same as any rule of another. But where economies are less complex and the laws fewer and simpler, we may expect to find greater resemblances, or to find resemblances more easily. It is important to note, so far as possible, differences in economy and law, as well as resemblances, to obtain a true picture. But resemblances are more significant than differences, for differences are in the nature of things: if there is no reason to the contrary the economies and laws of two peoples can be expected to be different, and if they are similar the question arises whether this is by reason of copying or similar circumstances of origin.

There are a number of considerations by which our conclusions as to the law or economy of a particular people can be tested and confirmed. For reasons of convenience our story ends at the stage of development of law represented by that greatest of legal monuments, the Code of Hammurabi (1752 B.C.), which almost begins the history of the world's law, and at the economy of his day, and therefore similarly ends at the parallel degrees of development of law and economy in England about A.D. 1250 and at other dates in several civilizations of the past, and in a few places in modern Africa; and we can observe in the present and in the records of the past most of the stages, which constitute our story, being approached and reached and passed in the same people. We can also see large culture areas in the past and present sharing similar law and economies, and on their outskirts descending gradations of law and economy as we move towards more backward areas.

But it must be made clear that there is no necessary implication of moral progress from the expression ‘stages of development of law'. It can merely mean that law has changed with a new economic system. There are some horrors in early civilization, as in modern civilization, that exceed what went before.

Although this is primarily a study in the field of historical and not analytical jurisprudence, and the concentration is on description rather than analysis, here are materials which may help in some degree to answer a number of difficult questions of legal and sociological importance. What are the factors that cause change in the law? To what extent are they the result of original invention by rulers or legislators, and to what extent learned from other peoples or brought about by economic or other changes? If they are the result of invention or learning, are they only adopted if the economy is appropriate? What is meant by the common phrase of the influence of one system of law upon another? Can law be recognized as existing where there are no courts, and is it sufficient if there are rules of conduct considered by a community to be binding? What, in the course of pre-history and in historical times, are the forces, other than of law, which effect social control? And what rules of conduct preceded the rise of law and what sanctions enforced them?

The book begins, then, with a brief account¹ of the legal legacy of the past — an outline history, by date, of the Codes and other legal documents that survive. After a discussion of the nature of Codes and their relation to early literature,² there follow descriptions, in the order of our economic time-scale, of the law of the Codes of past peoples in different lands and ages — the Early Codes³ (that is to say, the most primitive), the Central Codes,⁴ and the Late Codes⁵ (which end with the Code of Hammurabi and parallel Codes). There follow more detailed discussions of the Code of Manu,⁶ the Roman XII Tables,⁷ and the Hebrew Law,⁸ all belonging to the stage of the Late Codes. This then,⁹ is a brief legal history of the literate peoples of the past, from the stage of the Early Codes onwards, in the order not only of our economic time-scale but also of date, in that our Early Codes represent the law (inter alios) of the English from A.D. 600 to 900, our Central Codes the English of A.D. 900 to 1100, and our Late Codes the English of 1100 to 1250, and corresponding dates in eac...