Why the ancients may not have needed a system of criminal law

Boston University Law Review

Volumn 76, Issue 1-2, 1996, Pages 29-56

  Lindgren, James ^a  

^a NONE

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EID: 0030527436     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (202)

1. Sumerian Laws Handbook of Forms ¶ viii, lines 11-15, in LAW COLLECTIONS FROM MESOPOTAMIA AND ASIA MINOR 53 (Martha T. Roth trans., 1995) [hereinafter LAW COLLECTIONS] (citing from a Sumerian Law dating from the Old Babylonian period). Where Mesopotamian law collections are cited without a reference to a particular book, they are to Roth's definitive new transliterations and translations in this book.
2. Classic explanations include: CESARE BECCARIA, AN ESSAY ON CRIMES AND PUNISHMENT (Edward D. Ingraham trans., Philadelphia 1819); JEREMY BENTHAM, THE UTILITARIANS: AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 173 (1973); CHARLES MONTESQUIEU, THE SPIRIT OF LAWS (Thomas Nugent trans., 1900); and Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
3. Classic explanations include: CESARE BECCARIA, AN ESSAY ON CRIMES AND PUNISHMENT (Edward D. Ingraham trans., Philadelphia 1819); JEREMY BENTHAM, THE UTILITARIANS: AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 173 (1973); CHARLES MONTESQUIEU, THE SPIRIT OF LAWS (Thomas Nugent trans., 1900); and Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
4. Classic explanations include: CESARE BECCARIA, AN ESSAY ON CRIMES AND PUNISHMENT (Edward D. Ingraham trans., Philadelphia 1819); JEREMY BENTHAM, THE UTILITARIANS: AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 173 (1973); CHARLES MONTESQUIEU, THE SPIRIT OF LAWS (Thomas Nugent trans., 1900); and Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
5. Classic explanations include: CESARE BECCARIA, AN ESSAY ON CRIMES AND PUNISHMENT (Edward D. Ingraham trans., Philadelphia 1819); JEREMY BENTHAM, THE UTILITARIANS: AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 173 (1973); CHARLES MONTESQUIEU, THE SPIRIT OF LAWS (Thomas Nugent trans., 1900); and Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
6. Richard A. Posner, An Economic Analysis of the Criminal Law, 85 COLUM. L. REV. 1193 (1985).
7. Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent, 85 COLUM. L. REV. 1232 (1985).
8. Posner also emphasizes, inter alia, the probability of detection, and the risk of death or injury. Posner, supra note 3, at 1202.
9. Id. at 1201-05; Shavell, supra note 4, at 1236-38.
10. Posner, supra note 3, at 1203.
11. Shavell, supra note 4, at 1236-38.
12. Id. at 1240.
13. Posner, supra note 3, at 1203-04. Posner elaborates his views on ancient and local societies in RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 119-227 (1981) [hereinafter POSNER, THE ECONOMICS OF JUSTICE].
14. Posner, supra note 3, at 1203-04. Posner elaborates his views on ancient and local societies in RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 119-227 (1981) [hereinafter POSNER, THE ECONOMICS OF JUSTICE].
15. For examples using ancient law to ask modern questions, see POSNER, THE ECONOMICS OF JUSTICE, supra note 10, at 119-227; RAPHAEL SEALEY, WOMEN AND LAW IN CLASSICAL GREECE 50-81 (1990) (discussing women in Gortyn); Saul Levmore, Rethinking Comparative Law: Variety and Uniformity in Ancient and Modern Tort Law 61 TUL. L. REV. 235 (1987); Saul Levmore, Variety and Uniformity in the Treatment of the Good-Faith Purchaser, 16 J. LEGAL STUD. 43 (1987); James Lindgren, Measuring the Value of Slaves and Free Persons in Ancient Law, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript on file with the Chicago-Kent Law Review).
16. For examples using ancient law to ask modern questions, see POSNER, THE ECONOMICS OF JUSTICE, supra note 10, at 119-227; RAPHAEL SEALEY, WOMEN AND LAW IN CLASSICAL GREECE 50-81 (1990) (discussing women in Gortyn); Saul Levmore, Rethinking Comparative Law: Variety and Uniformity in Ancient and Modern Tort Law 61 TUL. L. REV. 235 (1987); Saul Levmore, Variety and Uniformity in the Treatment of the Good-Faith Purchaser, 16 J. LEGAL STUD. 43 (1987); James Lindgren, Measuring the Value of Slaves and Free Persons in Ancient Law, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript on file with the Chicago-Kent Law Review).
17. For examples using ancient law to ask modern questions, see POSNER, THE ECONOMICS OF JUSTICE, supra note 10, at 119-227; RAPHAEL SEALEY, WOMEN AND LAW IN CLASSICAL GREECE 50-81 (1990) (discussing women in Gortyn); Saul Levmore, Rethinking Comparative Law: Variety and Uniformity in Ancient and Modern Tort Law 61 TUL. L. REV. 235 (1987); Saul Levmore, Variety and Uniformity in the Treatment of the Good-Faith Purchaser, 16 J. LEGAL STUD. 43 (1987); James Lindgren, Measuring the Value of Slaves and Free Persons in Ancient Law, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript on file with the Chicago-Kent Law Review).
18. For examples using ancient law to ask modern questions, see POSNER, THE ECONOMICS OF JUSTICE, supra note 10, at 119-227; RAPHAEL SEALEY, WOMEN AND LAW IN CLASSICAL GREECE 50-81 (1990) (discussing women in Gortyn); Saul Levmore, Rethinking Comparative Law: Variety and Uniformity in Ancient and Modern Tort Law 61 TUL. L. REV. 235 (1987); Saul Levmore, Variety and Uniformity in the Treatment of the Good-Faith Purchaser, 16 J. LEGAL STUD. 43 (1987); James Lindgren, Measuring the Value of Slaves and Free Persons in Ancient Law, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript on file with the Chicago-Kent Law Review).
19. For examples using ancient law to ask modern questions, see POSNER, THE ECONOMICS OF JUSTICE, supra note 10, at 119-227; RAPHAEL SEALEY, WOMEN AND LAW IN CLASSICAL GREECE 50-81 (1990) (discussing women in Gortyn); Saul Levmore, Rethinking Comparative Law: Variety and Uniformity in Ancient and Modern Tort Law 61 TUL. L. REV. 235 (1987); Saul Levmore, Variety and Uniformity in the Treatment of the Good-Faith Purchaser, 16 J. LEGAL STUD. 43 (1987); James Lindgren, Measuring the Value of Slaves and Free Persons in Ancient Law, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript on file with the Chicago-Kent Law Review).
20. See generally JOHN BRAITHWAITE, CRIME, SHAME, AND REINTEGRATION (1992).
21. See THE T'ANG CODE: VOLUME 1, GENERAL PRINCIPLES (Wallace Johnson trans., 1979) [hereinafter THE T'ANG CODE] (translating 57 of the 502 articles of the T'ang Code of 653). Johnson has a massive draft of the bulk of the Code, but there is not a circulating copy yet.
22. See 1 DAVID J. LU, SOURCES OF JAPANESE HISTORY 26-32 (1974) (providing excerpts from the Yoro Code of A.D. 718); NIHONGI: CHRONICLES OF JAPAN FROM THE EARLIEST TIMES TO A.D. 697 (W.G. Aston trans., 1972) (describing the Nihongi as the first great break away from Chinese culture); RYUSAKU TSUNODA ET AL., SOURCES OF JAPANESE TRADITION 68-80 (1958) (providing excerpts from the Yoro Code); Richard J. Miller, Japan's First Bureaucracy: A Study of Eighth-Century Government, in 19 CORNELL U. E. ASIA PAPERS 22-25 (1978) (discussing the origins and context of the Yoro Code).
23. See 1 DAVID J. LU, SOURCES OF JAPANESE HISTORY 26-32 (1974) (providing excerpts from the Yoro Code of A.D. 718); NIHONGI: CHRONICLES OF JAPAN FROM THE EARLIEST TIMES TO A.D. 697 (W.G. Aston trans., 1972) (describing the Nihongi as the first great break away from Chinese culture); RYUSAKU TSUNODA ET AL., SOURCES OF JAPANESE TRADITION 68-80 (1958) (providing excerpts from the Yoro Code); Richard J. Miller, Japan's First Bureaucracy: A Study of Eighth-Century Government, in 19 CORNELL U. E. ASIA PAPERS 22-25 (1978) (discussing the origins and context of the Yoro Code).
24. See 1 DAVID J. LU, SOURCES OF JAPANESE HISTORY 26-32 (1974) (providing excerpts from the Yoro Code of A.D. 718); NIHONGI: CHRONICLES OF JAPAN FROM THE EARLIEST TIMES TO A.D. 697 (W.G. Aston trans., 1972) (describing the Nihongi as the first great break away from Chinese culture); RYUSAKU TSUNODA ET AL., SOURCES OF JAPANESE TRADITION 68-80 (1958) (providing excerpts from the Yoro Code); Richard J. Miller, Japan's First Bureaucracy: A Study of Eighth-Century Government, in 19 CORNELL U. E. ASIA PAPERS 22-25 (1978) (discussing the origins and context of the Yoro Code).
25. See 1 DAVID J. LU, SOURCES OF JAPANESE HISTORY 26-32 (1974) (providing excerpts from the Yoro Code of A.D. 718); NIHONGI: CHRONICLES OF JAPAN FROM THE EARLIEST TIMES TO A.D. 697 (W.G. Aston trans., 1972) (describing the Nihongi as the first great break away from Chinese culture); RYUSAKU TSUNODA ET AL., SOURCES OF JAPANESE TRADITION 68-80 (1958) (providing excerpts from the Yoro Code); Richard J. Miller, Japan's First Bureaucracy: A Study of Eighth-Century Government, in 19 CORNELL U. E. ASIA PAPERS 22-25 (1978) (discussing the origins and context of the Yoro Code).
26. The only later code included is the Law of Hywel Dda (Wales, ca. A.D. 928-1200), because of its interesting expression of family responsibility. See generally THE LAW OF HYWEL DDA (1986) (Dafydd Jenkins ed. & trans., 1986).
27. Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 YALE L.J. 1795, 1798 (1992).
28. THE LAWS OF THE SALIAN FRANKS 33-34 (Katherine F. Drew trans., 1991).
29. THE LOMBARD LAWS 27 (Katherine F. Drew trans., 1973).
30. SEALEY, supra note 11, at 71.
31. THE HITTITE LAWS 116 (E. Neufeld trans., 1951).
32. P.D. KING, LAW AND SOCIETY IN THE VISIGOTHIC KINGDOM 87 (1972). King goes on to describe much of the Visigothic Code as covering "private crimes," because the Code used the words crimen or crimina to describe actions for private wrongs, which I would interpret as essentially torts.
33. A.S. DIAMOND, PRIMITIVE LAW, PAST AND PRESENT 55-103 (1971).
34. Id. at 61.
35. THE LOMBARD LAWS, supra note 18, at 28.
36. DIAMOND, supra note 22, at 67.
37. Id. at 397.
38. Id. at 74.
39. Id. at 85.
40. Id. at 121.
41. The Edict of Harmab from ancient Egypt (Nineteenth Dynasty) is also a criminal statute, but its concerns are almost exclusively misconduct by the Pharaoh's officers, not theft or robbery by subjects. 3 JAMES H. BREASTED, ANCIENT RECORDS OF EGYPT 22-32 (1906).
42. A related common modern theoretical argument (crime prohibits, tort law sets a price) finds few adherents among scholars of ancient law. This is partially because so many ancient laws set prices and use if/then statements to state what are understood (at least partially) as prohibitions.
43. See Ernest J. Weinrib, Causation and Wrongdoing, 63 CHI.-KENT L. REV. 407, 410 (1987) (discussing the need for wrongdoing plus causation in order for compensation to be appropriate in tort law).
44. See infra Part II.C.
45. See infra note 41 and accompanying text.
46. Modern theorists may try to wriggle out of my grasp by arguing that it is not the wrongdoing that is important, it is the public condemnation and blaming that is crucial. Briefly, I think that this is really a hybrid of the wrongdoing/compensation approach with the public/private approach, with the public/private approach doing the real distinguishing work.
47. Although the Fascists were not the first to reject the public/private distinction, their rejection was the most vigorous. For example, consider Mussolini's famous theoretical maxim: "Everything is in the state; nothing human or spiritual exists outside the state." MAX GALLO, MUSSOLINI'S ITALY 219 (1973).
48. For example, almost no concept can meet the impossibly high standards set for the public/private distinction. An idea does not have to be perfect to be good, nor does it have to resolve borderline cases.
49. Note that I dodge a justification here.
50. DIAMOND, supra note 22, at 167 (describing modem "primitive," i.e., local, societies).
51. The Twelve Tables are an early restatement of Roman law from around 450 B.C. They exist onty in fragments quoted by later writers. E.g., JUSTINIAN'S INSTITUTES 156 (Peter Birks & Grant McLeod trans., 1987).
52. Certainly there were public and private offenses in the classical era of Gaius. Rather, Gaius does not draw the usual theoretical distinction or say much of public offenses - indeed, theft, robbery, and beating were torts (delicts). See THE INSTITUTES OF GAIUS 373-401 (W.M. Gordon & O.F. Robinson trans., 1988).
53. JUSTINIAN'S INSTITUTES, supra note 40, at 121.
54. Id. at 121-47. Book IV is about 13 pages in Latin and the same in English.
55. Id. at 144-45.
56. Id. at 145-47.
57. Justinian suggests looking at the Digests and Pandects. Id. at 147.
58. See generally G.E.M. DE STE. CROIX, THE CLASS STRUGGLE IN THE ANCIENT GREEK WORLD 456-62 (1981).
59. JUSTINIAN'S INSTITUTES, supra note 40, at 8.
60. How public actions must be to qualify as a crime is too difficult a question for me to try to sort out in this Paper.
61. Martha T. Roth, Homicide in the Neo-Assyrian Period, in LANGUAGE, LITERATURE, AND HISTORY: FILOLOGICAL AND HISTORICAL STUDIES PRESENTED TO ERICA REINER 351, 356 (Francesca Rochberg-Halton ed., 1987).
62. Middle Assyrian Laws ¶ A 10, in LAW COLLECTIONS, supra note 1, at 157. I have used Roth's date. Klaas R. Veenhof places manuscript A at 1175 B.C. and notes that the laws may go back to the thirteenth and fourteenth centuries B.C. Klaas R. Veenhof, "In Accordance with the Words of the Stele": Evidence for Old Assyrian Legislation, 70 CHI.-KENT L. REV. (forthcoming 1995) (manuscript on file with the Chicago-Kent Law Review).
63. Middle Assyrian Laws ¶ A 10, in LAW COLLECTIONS, supra note 1, at 157. I have used Roth's date. Klaas R. Veenhof places manuscript A at 1175 B.C. and notes that the laws may go back to the thirteenth and fourteenth centuries B.C. Klaas R. Veenhof, "In Accordance with the Words of the Stele": Evidence for Old Assyrian Legislation, 70 CHI.-KENT L. REV. (forthcoming 1995) (manuscript on file with the Chicago-Kent Law Review).
64. Raymond Westbrook, Slave and Master in Ancient Near Eastern Law, 70 CHI.-KENT L. REV. (forthcoming 1995) (manuscript at 20-21, on file with the Chicago-Kent Law Review).
65. Id. (manuscript at 21).
66. Id. I.J. Gelb also mentions criminals as a source of slaves in ancient Mesopotamia around 2000 B.C. I.J. GELB, FROM FREEDOM TO SLAVERY 84-85 (1972); see also I.J. GELB, DEFINITION AND DISCUSSION OF SLAVERY AND SERFDOM 283-97 (1979).
67. Id. I.J. Gelb also mentions criminals as a source of slaves in ancient Mesopotamia around 2000 B.C. I.J. GELB, FROM FREEDOM TO SLAVERY 84-85 (1972); see also I.J. GELB, DEFINITION AND DISCUSSION OF SLAVERY AND SERFDOM 283-97 (1979).
68. Westbrook, supra note 52 (manuscript at 20).
69. Laws of Hammurabi ¶¶ 53-54, in LAW COLLECTIONS, supra note 1, at 91-92. The Laws of Hammurabi are the most famous ancient code outside the Bible. The collection was compiled near the end of Hammurabi's reign (r. 1792-1750 B.C.). Hammurabi, the sixth king in the First Dynasty of Babylon, expanded the empire and organized its complex government. The Laws were copied many times over the succeeding centuries. Roth, LAW COLLECTIONS, supra note 1, at 71.
70. Laws of Hammurabi ¶¶ 53-54, in LAW COLLECTIONS, supra note 1, at 91-92. The Laws of Hammurabi are the most famous ancient code outside the Bible. The collection was compiled near the end of Hammurabi's reign (r. 1792-1750 B.C.). Hammurabi, the sixth king in the First Dynasty of Babylon, expanded the empire and organized its complex government. The Laws were copied many times over the succeeding centuries. Roth, LAW COLLECTIONS, supra note 1, at 71.
71. THE LOMBARD LAWS, supra note 18, at 28.
72. THE LAWS OF THE SALIAN FRANKS, supra note 17, at 50.
73. THE VISIGOTHIC CODE (S.P. Scott ed. & trans., 1910).
74. Id. bk. V, tit. IV, ¶ XI, at 163.
75. Id.
76. S.P. Scott, Preface to id. at xxxvi.
77. Id. bk. VII, tit. III, ¶ 3, at 248.
78. Roth, supra note 50, at 351-56.
79. Id.
80. THE LAWS OF THE SALIAN FRANKS, supra note 17, at 37.
81. Westbrook, supra note 52 (manuscript at 11).
82. Laws of Hammurabi ¶ 117, in LAW COLLECTIONS, supra note 1, at 103.
83. Westbrook, supra note 52 (manuscript at 19).
84. Chattel slavery was also imposed by some systems. In the Sumerian Laws Exercise Tablet, the penalty for an adopted son declaring that his adoptive parents were not his parents was that his parents could sell him into chattel slavery. Sumerian Laws Exercise Tablet ¶ 4, in LAW COLLECTIONS, supra note 1, at 44. The Middle Assyrian Palace Decrees (1273-1244 B.C.) also provide for slavery for sons of a wrongdoer. Middle Assyrian Laws ¶ 5, in LAW COLLECTIONS, supra note 1, at 199.
85. Chattel slavery was also imposed by some systems. In the Sumerian Laws Exercise Tablet, the penalty for an adopted son declaring that his adoptive parents were not his parents was that his parents could sell him into chattel slavery. Sumerian Laws Exercise Tablet ¶ 4, in LAW COLLECTIONS, supra note 1, at 44. The Middle Assyrian Palace Decrees (1273-1244 B.C.) also provide for slavery for sons of a wrongdoer. Middle Assyrian Laws ¶ 5, in LAW COLLECTIONS, supra note 1, at 199.
86. The earliest recorded law collections are from ancient Mesopotamia: the Laws of Ur-Namma (ca. 2100 B.C.) and the Laws of Lipit-Ishtar (ca. 1930 B.C.). Roth, Introduction to LAW COLLECTIONS, supra note 1, at 2. All the dates of the Mesopotamian law collections are from Roth. Both of the surviving texts are in Sumerian. The Laws of Ur-Namma (often called Ur-Nammu) come from the city of Ur in southern Mesopotamia. They are attributed to King Ur-Namma (r. 2112-2095) or his son, King Shulgi (r. 2094-2047). Id.; see S.N. Kramer, The Ur-Nammu Law Code: Who Was its Author?, 52 ORIENTALIA NS 453 (1983); Piotr Steinkeller, The Administrative and Economic Organization of the Ur III State: The Core and the Periphery, in MCGUIRE GIBSON & ROBERT D. BIGGS, THE ORGANIZATION OF POWER, ASPECTS OF BUREAUCRACY IN THE ANCIENT NEAR EAST 19-41 (1987).
87. The earliest recorded law collections are from ancient Mesopotamia: the Laws of Ur-Namma (ca. 2100 B.C.) and the Laws of Lipit-Ishtar (ca. 1930 B.C.). Roth, Introduction to LAW COLLECTIONS, supra note 1, at 2. All the dates of the Mesopotamian law collections are from Roth. Both of the surviving texts are in Sumerian. The Laws of Ur-Namma (often called Ur-Nammu) come from the city of Ur in southern Mesopotamia. They are attributed to King Ur-Namma (r. 2112-2095) or his son, King Shulgi (r. 2094-2047). Id.; see S.N. Kramer, The Ur-Nammu Law Code: Who Was its Author?, 52 ORIENTALIA NS 453 (1983); Piotr Steinkeller, The Administrative and Economic Organization of the Ur III State: The Core and the Periphery, in MCGUIRE GIBSON & ROBERT D. BIGGS, THE ORGANIZATION OF POWER, ASPECTS OF BUREAUCRACY IN THE ANCIENT NEAR EAST 19-41 (1987).
88. The earliest recorded law collections are from ancient Mesopotamia: the Laws of Ur-Namma (ca. 2100 B.C.) and the Laws of Lipit-Ishtar (ca. 1930 B.C.). Roth, Introduction to LAW COLLECTIONS, supra note 1, at 2. All the dates of the Mesopotamian law collections are from Roth. Both of the surviving texts are in Sumerian. The Laws of Ur-Namma (often called Ur-Nammu) come from the city of Ur in southern Mesopotamia. They are attributed to King Ur-Namma (r. 2112-2095) or his son, King Shulgi (r. 2094-2047). Id.; see S.N. Kramer, The Ur-Nammu Law Code: Who Was its Author?, 52 ORIENTALIA NS 453 (1983); Piotr Steinkeller, The Administrative and Economic Organization of the Ur III State: The Core and the Periphery, in MCGUIRE GIBSON & ROBERT D. BIGGS, THE ORGANIZATION OF POWER, ASPECTS OF BUREAUCRACY IN THE ANCIENT NEAR EAST 19-41 (1987).
89. Laws of Ur-Namma ¶ 6, in LAW COLLECTIONS, supra note 1, at 17 (stating that deflowering a man's virgin wife results in death of the offending male).
90. Id. ¶ 8, at 18 (stating that deflowering a man's virgin female slave results in payment of five shekels by the wrongdoer to the slave owner).
91. The Old Babylonian Laws of Eshnunna come from the city of the same name in northern Babylonia. Often unattributed, these rules may have been promulgated by a ruler named Dadusha. Roth, supra note 1, at 57. They are written in Akkadian.
92. Laws of Eshunna ¶ 23, in LAW COLLECTIONS, supra note 1, at 62.
93. Id. ¶ 24.
94. As Raymond Westbrook has noted about the Covenant Code, "It is impossible to date this code with any certainty, but it is one of the earliest strata of biblical literature, probably from the beginning of the first millennium or even the end of the second millennium [B.C.]." Westbrook, supra note 52 (manuscript at 85).
95. Exodus 21:32.
96. Id. 21:29.
97. THE LAWS OF MANU (Wendy Doniger trans., 1991). The Laws of Manu are usually dated about 200 years on either side of the beginning of the Common Era. The Hindu caste system that has continued into modern times is set out in a rudimentary form in the Laws of Manu. For a careful, one might even say sympathetic, description of the Hindu caste system, see LOUIS DUMONT, HOMO HIERARCHICUS: AN ESSAY ON THE CASTE SYSTEM (1966). Although the laws are mostly religious, there are many sections on wrongs of various kinds. In the provisions on sex with women of different classes, there are different punishments depending on the social class of the "victim." But the pattern shows that it is not the class of the victim that matters. Rather, the Laws of Manu are concerned with the pollution of the wrongdoer.
98. THE LAWS OF MANU (Wendy Doniger trans., 1991). The Laws of Manu are usually dated about 200 years on either side of the beginning of the Common Era. The Hindu caste system that has continued into modern times is set out in a rudimentary form in the Laws of Manu. For a careful, one might even say sympathetic, description of the Hindu caste system, see LOUIS DUMONT, HOMO HIERARCHICUS: AN ESSAY ON THE CASTE SYSTEM (1966). Although the laws are mostly religious, there are many sections on wrongs of various kinds. In the provisions on sex with women of different classes, there are different punishments depending on the social class of the "victim." But the pattern shows that it is not the class of the victim that matters. Rather, the Laws of Manu are concerned with the pollution of the wrongdoer.
99. THE LAWS OF MANU ¶ 377, supra note 80, at 192. The alternative punishment is to be treated like a servant. Id. The meaning of this punishment is obscure, since punishments for servants are not set out in the text. It may mean being beaten, or it may mean that the commoner is reduced to the lower caste of a servant.
100. Id, ¶¶ 376, 382-83, at 192-93.
101. Scott, supra note 59, at xix. The Visigoths, who settled in Spain, may have been the first Germanic tribe to write a code of laws. The first code dates back to A.D. 476, but it survives only in the revised version promulgated about A.D. 654.
102. THE VISIGOTHIC CODE bk. VII, tit. III, ¶ III, id. at 248.
103. Hittite Laws ¶ 170, in LAW COLLECTIONS, supra note 1, at 234 (Harry A. Hoffner trans., 1995).
104. Id. ¶ 173.
105. O.R. GURNEY, THE HITTITES 95 (2d ed. 1954).
106. THE LAW OF HYWEL DDA, supra note 15, at 146.
107. Id.
108. Laws of Hammurabi ¶ 116, in LAW COLLECTIONS, supra note 1, at 103.
109. Id.
110. Id. ¶¶ 209-10, at 122.
111. Id. ¶ 211.
112. Id. ¶ 214, at 123.
113. Id. ¶¶ 229-31, at 125.
114. Id. ¶ 229.
115. Id. ¶ 230.
116. Id. ¶ 231.
117. See generally DOUGLAS MACDOWELL, SPARTAN LAW 149 (1986) (indicating that prison was not a penalty, but rather a means to hold men pending trial or execution).
118. DIAMOND, supra note 22, at 79.
119. Id. at 85.
120. WILLIAM C. HAYES, A PAPYRUS OF THE LATE MIDDLE KINGDOM IN THE BROOKLYN MUSEUM 39-42 (1955).
121. Miguel Civil, On Mesopotamian Jails and Their Lady Warden, in THE TABLET AND THE SCROLL 72-78 (Mark E. Cohen et al. eds., 1993).
122. The prison was part of the Ekur complex in the town of Nippur. See Tikva S. Frymer, The Nungal-Hymn and the Ejur-Prison, 20 J. ECON. & SOCIAL HIST. ORIENT 78 (1978).
123. See STE. CROIX, supra note 47, at 488.
124. KING, supra note 21, at 90.
125. See Wallace Johnson, Status & Liability for Punishment in the T'ang Code, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript at 4, on file with the Chicago-Kent Law Review).
126. Katherine F. Drew, Introduction to THE LAWS OF THE SALIAN FRANKS, supra note 17, at 40. Westbrook, supra note 52 (manuscript at 12), uses similar language to describe the ancient Near East: "Foreigners in the ancient Near East were in a precarious situation. Outside their own country or ethnic group, they had no legal rights, unless they fell under the local rulers' protection."
127. Katherine F. Drew, Introduction to THE LAWS OF THE SALIAN FRANKS, supra note 17, at 40. Westbrook, supra note 52 (manuscript at 12), uses similar language to describe the ancient Near East: "Foreigners in the ancient Near East were in a precarious situation. Outside their own country or ethnic group, they had no legal rights, unless they fell under the local rulers' protection."
128. Drew, supra note 17, at 40.
129. In Gaul the Germanic King Clovis consolidated the Salian and the Ripuanan Franks into a single kingdom. See id. at 4-9; see also THEODORE J. RIVERS LAWS OF THE SALIAN AND RIPUARIAN FRANKS 2-3 (1986). He then issued a code of laws for the combined kingdom in about A.D. 507-511, usually called the Pactus Legis Salicae (Pact of Salic Law). This Pact was originally set out in Latin in 65 titles. My analysis is based on this earliest version of the code, without later Christian revisions and additions.
130. Assigning a value of one to punishments for wrongs committed against free persons, Romans are valued at 45% of free persons, while freed slaves and the half-free are valued at 50% and 56% of free. See Lindgren, supra note 11 (manuscript at 44.47)
131. Laws of Hammurabi ¶ 154, in LAW COLLECTIONS, supra note 1, at 110.
132. RONALD S. STROUD, DRAKON'S LAW ON HOMICIDE 66-70 (1968) (discussing dates).
133. Id. at 6.
134. THE LAW OF HYWEL DDA, supra note 15, at 157-59.
135. MACDOWELL, supra note 99, at 148-49.
136. DOUGLAS MACDOWELL, ATHENIAN HOMICIDE LAW IN THE AGE OF THE ORATORS 110, 113 (1963) (quoting Demosthenes).
137. THE T'ANG CODE, supra note 13.
138. Johnson, supra note 107, at 3.
139. Id.
140. The collection was compiled near the end of Hammurabi's reign (r. 1792-1750 B.C.).
141. Laws of Hammurabi ¶¶ 196-97, 200, in LAW COLLECTIONS, supra note 1, at 121.
142. Id. ¶ 205, at 122.
143. Id. ¶¶ 192-97, at 120-21; id. ¶ 256, at 129.
144. Id. ¶¶ 4, 8, 9, & 15, at 156-58.
145. THE LAWS OF THE SALIAN FRANKS tit. XIV, ¶ 2, supra note 17, at 79.
146. THE VISIGOTHIC CODE bk. III, tit. III, ¶ VIII, supra note 59, at 92; id. bk. V, tit. IV, ¶ X, at 162-63.
147. Scott, supra note 59, at xxxv.
148. THE LAWS OF MANU ¶ 384, supra note 80, at 193.
149. THE VISIGOTHIC CODE bk. III, tit. III, ¶ 8, supra note 59, at 92; id. bk. V, tit. IV, ¶ 10, at 163.
150. Id. ¶ 11.
151. Laws of Hammurabi ¶ 125, in LAW COLLECTIONS, supra note 1, at 105.
152. Id. ¶ 202 at 121. Roth has an excellent discussion of ancient Mesopotamian face-slapping provisions in Martha T. Roth, Mesopotamian Legal Traditions and the Laws of Hammurabi, 70 CHI.-KENT L. REV. (forthcoming 1995) (manuscript on file with the Chicago-Kent Law Review).
153. THE LAWS OF MANU ch. 8, ¶¶ 375-77, supra note 80, at 192.
154. King Gundobad promulgated the Lex Gundobada in Latin about A.D. 483. Additions were made through about A.D. 532. Like many of the Germanic codes, the laws were written in Latin. Although a subject of long dispute, most commentators believe that the Germanic codes are made up of a large dose of traditional Germanic customary law, mixed with Roman-influenced law. The closer the proximity to Rome, the greater the supposed influence of Roman law.
155. See THE BURGUNDIAN LAWS tit. xxxiii, ¶ 1, at 45 (Katherine F. Drew trans., 1949).
156. Id.
157. Id.
158. THE VISIGOTHIC CODE bk. VII, tit. III, ¶ II, supra note 59, at 247-48.
159. Scott, supra note 59, at xxxv.
160. See STE. CROIX, supra note 47, at 458-59.
161. MACDOWELL, supra note 99, at 149.
162. See, e.g., Johnson, supra note 107 (manuscript at 3).
163. Id.
164. Laws of Ur-Namma ¶ 25, in LAW COLLECTIONS, supra note 1, at 20.
165. Middle Assyrian Laws ¶ 55, in LAW COLLECTIONS, supra note 1, at 174-75. The text ambiguously implies that the wife of the rapist stays with the victim's father. Id.
166. POSNER, THE ECONOMICS OF JUSTICE, supra note 10, at 193-96.
167. See ZE'EV W. FALK, HEBREW LAW IN BIBLICAL TIMES 73 (1964); David Daube, Two Notes on Communal Responsibility, 36 Soc. REV. 24 (1944); Saul Levmore, Rethinking Group Responsibility and Strategic Threats in Biblical Texts and Modern Law, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript at 1, on file with the Chicago-Kent Law Review).
168. See ZE'EV W. FALK, HEBREW LAW IN BIBLICAL TIMES 73 (1964); David Daube, Two Notes on Communal Responsibility, 36 Soc. REV. 24 (1944); Saul Levmore, Rethinking Group Responsibility and Strategic Threats in Biblical Texts and Modern Law, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript at 1, on file with the Chicago-Kent Law Review).
169. See ZE'EV W. FALK, HEBREW LAW IN BIBLICAL TIMES 73 (1964); David Daube, Two Notes on Communal Responsibility, 36 Soc. REV. 24 (1944); Saul Levmore, Rethinking Group Responsibility and Strategic Threats in Biblical Texts and Modern Law, 71 CHI.-KENT L. REV. (forthcoming 1995) (manuscript at 1, on file with the Chicago-Kent Law Review).
170. THE LAW OF HYWEL DDA, supra note 15, at 146-47.
171. Id. at 147; ARTHUR W. WADE-EVANS, WELSH MEDIEVAL LAW 185 (1979).
172. THE HITTITE LAWS, supra note 20, at 116.
173. See GURNEY, supra note 87, at 93, 99 (discussing ¶ 173 of the Hittite Laws).
174. THE LAWS OF THE SALIAN FRANKS, supra note 17, at 40.
175. Id.
176. Johnson, supra note 107, at 4.
177. Id.
178. Roth, supra note 50, at 357-58.
179. Middle Assyrian Laws ¶ 55, in LAW COLLECTIONS, supra note 1, at 174-75. The text ambiguously implies that the wife of the rapist stays with the victim's father. Id.
180. See Westbrook, supra note 52 (manuscript at 20-21).
181. Roth, supra note 50, at 352.
182. Laws of Hammurabi ¶ 23, in LAW COLLECTIONS, supra note 1, at 85.
183. Deuteronomy 21:1-10.
184. GURNEY, supra note 87, at 97-98 (discussing Hittite Laws ¶ IV).
185. MACDOWELL, supra note 117, at 123.
186. STROUD, supra note 113, at 6.
187. See Katherine F. Drew, Public vs. Private Enforcement of the Law in the Early Middle Ages (5th-12th Centuries), 70 CHI.-KENT L. REV. (forthcoming 1995) (manuscript at 5, on file with the Chicago-Kent Law Review); James Q. Whitman, At the Origins of Law and the State: Supervision of Violence, Mutilation of Bodies, or Fixing of Prices?, 71 CHI.-KENT L. REV. (forthcoming) (manuscript at 1-3, on file with the Chicago-Kent Law Review).
188. See Katherine F. Drew, Public vs. Private Enforcement of the Law in the Early Middle Ages (5th-12th Centuries), 70 CHI.-KENT L. REV. (forthcoming 1995) (manuscript at 5, on file with the Chicago-Kent Law Review); James Q. Whitman, At the Origins of Law and the State: Supervision of Violence, Mutilation of Bodies, or Fixing of Prices?, 71 CHI.-KENT L. REV. (forthcoming) (manuscript at 1-3, on file with the Chicago-Kent Law Review).
189. Drew, supra note 166 (manuscript at 5).
190. RIVERS, supra note 110, at 15 (emphasis added).
191. I would call them delicts or torts because of how they were handled. Here Rivers is speaking, I believe, as an essentialist. For him, they are crimes because they are mostly acts of violence. Following Drew's analysis, I take the predominate view, that the Frankish system was primarily a civil one, based mainly on private actions for tort damages.
192. GURNEY, supra note 87, at 98.
193. Roth, supra note 50.
194. Id.
195. See GURNEY, supra note 87, at 97-98.
196. Id at 94-95
197. The Lombard Laws were promulgated by King Rothair in A.D. 643 in a code usually called Rothair's Edict. See Drew, supra note 17, at 14-17. The Lombards had moved from central Europe at the end of the fifth century to Italy in 568 under the leadership of Alboin, replacing the Byzantines. By 584, most of Italy had been conquered. Rothair, Duke of Brescia, promulgated his code in A.D. 643. Id. Like almost all of the Germanic codes, the Lombard Laws were written in Latin. The Lombard Laws have the most extensive price schedule of any of the codes examined in this Paper This code breaks down the loss of each finger and each toe, with different prices for a free man, an aldius (half-free man), a household slave, and a free slave.
198. THE LOMBARD LAWS ¶ 45, supra note 18, at 61; id. ¶ 74, at 64 (discussing the blood-feud).
199. THE LAW OF HYWEL DDA, supra note 15, at 146.
200. But prisons can be found, for example, in Mesopotamia, Rome, Visigothic Spain, and, particularly, Egypt.
201. Posner suggests collective responsibility and a lack of privacy as possible explanations. Posner, supra note 3, at 1203-04. See supra text accompanying note 10.
202. After all, they had many serious wrongs and many people too poor to pay damages.