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The Origin of Civil Law

Author: WeiQiong
Tutor: HeQinHua
School: East China University of Politics and Law
Course: Legal History
Keywords: Ancient Near East Civil Norm Origin of Civil Law Oriental Law
CLC: D913
Type: PhD thesis
Year: 2006
Downloads: 1038
Quote: 2
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Abstract


Civil Law has a long history. The world’s oldest system of writing appeared in the ancient Near East at the end of the fourth millennium B.C. The Sumerians are believed to have invented the cuneiform system of writing. A few hundred years later, the earliest written legal records appeared, which makes the ancient Near East the birthplace of the world’s oldest known law. Meanwhile, it predated other ancient civilizations, such as India or China, to a great extend. The Near Eastern law collections (codes) were written in cuneiform, which are referred to as“the cuneiform laws”today. There are the most of civil norms in these law codes. In the ancient Near East, these civil norms were enacted by the Sumerians together with the Old Babylonian, the Assyrian, the Hittite and the Hebrew. Their influence has left few visible traces apart from the Hebrew Bible. The relics of the ancient Near East civil law that survived to hold on the minds of Western lawmakers continues to these days. Rather, the connection is indirect, through the intermediary of the classical systems of Jewish, Greek, and Roman law.Without a doubt, the civil law in ancient Near East originated from customary law, and centered on the cuneiform laws. The history of Near East is particularly rich in sources of civil law, both in quantity and type, such as law codes, edicts, administrative orders, private legal documents, private letters and scholastic documents. In the context of a history of the civil law, the term“source”has two meanings. In an historical sense, it refers to written records form which historians obtain evidence of legal rules and institutions. In a legal sense, it is those norms, written or unwritten, from which the courts drew authority for their decisions. From an historical point of view, the test of validity for a source is its credibility; from a jurisprudential point of view, the test is its authoritativeness. It is therefore necessary to consider the source in turn from each of these two viewpoints----as historical records and as legal authority, which to explore these civil norms.Under the control of the common value viewpoints, these norms of the civil law had given play to standard function without being contradictory to themselves, deducted various of legal rules from the ancient civil law in Near East, such as agreement, valuable consideration, good faith, change of circumstance and compensation liability. Therefore, these norms in Near East are genuine civil law, the origin of civil law in the whole history of the human beings.During ca. 2100 B.C.-ca.1700 B.C., the Sumerian cities had promulgated Laws of Ur-Namma, Laws of Lipit-Ishtar, Laws of X, Laws about Rented Oxen, and a Sumerian Laws Exercise Tablet, Sumerian Laws Handbook of Forms in the southern Mesopotamia. The“law codes”are a particular genre of literature, consisting of collections of legal rules. They are recognizable by similarities of style and content, although as physical records they are preserved in a number of different forms. The“law codes”frame the body of legal provisions with a historical-literary prologue and epilogue, dealing with these free person, which includes the wife, the widow, and probably also the male and female slave, dealing with their personal status and property rights, involve marriage, family, property and inheritance, contract and tort. These norms of private law are very lively, the print views of civil law are full natural, the systems of civil law are quite a success. Nonetheless, they originates form the Sumerian laws.The bulk of the civil law in the Babylonian period would have been customary, and it is here the law codes, either in the written forms of clay tablets or as a larger decrees, trial records, private legal documents. Three law codes have been preserved. The earliest is the Laws of Eshnunna, named after the northern Mesopotamian kingdoms of Eshnunna and is probably datable to the reign of Dadusha. It has been divided by scholars into sixty paragraphs. The greatest is the Laws of Hammurabi, promulgated by King Hammurabi of Babylon towards the end of his reign. It comprises a prologue, an epilogue, and a body of provisions divided by scholars into 282 paragraphs. The latest is the Laws of Neo-Babylonian Laws, made during the Neo-Babylonian dynasty by the old Babylonian laws successors, and is preserved fifteen law provisions. These cuneiform laws concentrated on private things, are statute civil law. The nature of its private law is beyond comparison among the legal sources of the other early countries in the same period. Through research and study on the Babylonian statute civil law, we will be able to compare a given legal institution with the different systems and periods among three law codes, to reveal the objective laws governing the development of the civil norms in ancient Near East during the Babylonian period. Justice and humanity are two main characteristics of the Babylonian civil law, which the Babylonian civil law greatly contributed to the human’s civil law.The Assyrian civil law, on the other hand, was even more complicated, which had been making from the Old Assyrian period, the Middle Assyrian period to the Assyrian Empire period. The norms scattered over a period of nearly six hundred years in the Old Assyrian kingdom. The great majority of private legal documents recorded a variety of legal transactions in the framework of the overland trade, originating from Kültepe tablets in the Anatolian inhabitants of Kanish. A number of the civil customs were different from the Babylonian civil law, such as the polygamy, adoption, inheritance, contract and commercial treaty. By the eleventh century B.C., Assyria had established as the unrivaled political power in the region, but made no development in legal civilization, Middle Assyrian Laws crudely made a lot of civil norms, somewhat changed qualitatively. Thus, the law codes were divided into three tablets: Tablet A set out laws relating to women; Tablet B principally with landed property, and Tablet C+G with movable property. These tablets mainly regulated civil relationship together and greatly met the needs of Assyrian social development. The characteristics of the Assyrian civil law are: some civil rules are simple while some vague in civil spirit, some are advanced while some quite backward.The Hittite civil law had made great achievement. Its basic features had undergone no radical changes for the next three hundreds, nor did their social or economic structure. The Hittite Laws, from Anatolia, was written in cuneiform script in the early Old Hittite. Dating between the sixteenth and the twelfth centuries B.C., the texts were formulated in what is known as“case law”that served originally as precedents. The rules of civil law were on a large scale scattered over the texts. The whole of the texts had a pronounced tendency to individual laws, underlying principles of merciful law and justice. A common legal culture was, however, also discernable at a deeper level, that of structures and concepts. They were independent; they had rules peculiar to themselves and their own internal dynamic. Hittite Laws were changed and developed with individual systems, so the ancient Near Eastern civil law would be carried forward. Technologically, the Hittite civil law is little more advanced than the Laws of Hammuarabi, but it is true of intellectual development that to advocate private right and to enlarge contract obligation in the ancient Near East. It could be famous for a model of the ancient Near Eastern civil law.The law codes of Hebrew were deeply embedded by the cuneiform law code tradition from the first millennium B.C. Part of their dependency may be attributed to the conquest of the region by Mesopotamian powers, Babylonia and Assyria. Consequently, the Hebrew civil law had been identified in the Hebrew Bible, originating from the customs law and religious law. A great deal of the legal material is in the Pentateuch (Torah), succeeding and enhancing the spirit of civil law in the ancient Near East. The Ten Commandments is the most essential civil prescriptions in the Hebrew Law, recorded in Exodus 20﹕2-17 and Deuteronomy 5﹕6-21. The Pentateuch either contains a set of little stories that declare the origin of the law and provide divine authority, or contains a lot of commandments, statutes, rites, rules, decrees, systems. The Torah considers Hebrew members of the congregation, bound to each other and to God by a covenant that establishes their responsibilities to God and each other. The ideal is a social order in which each person lives on his own land. The Hebrew civil law sets up a suit of practical private norms, such as the land and other properties, marriage, family, inheritance, various contracts, in order to advocate these clear conceptions of contract/covenant, equality, humanity, kindheartedness.Indeed, the archaic civil norms are quite trivial, owing to the limitation of the ancient Near Eastern era and society. They are still apart from modern civil law, and the senses, right or justice of the civil law, are fairly superficial view. It fully proves that the oldest legal rules will be extended. These civil norms or standards made by various nations in the ancient Near East are the original civil law in the human history.Civil law begins in the ancient Near East.

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