The ethical dimension of ancient laws
Due to the inclusion of unwritten laws, surviving from the Stone Age, the (pre-Hammurabi) Sumerian legal system was surprisingly liberal. We can still learn from it, now that our system has caused the ethical dimension to wither – with dire consequences.
Recently I came across an interesting book: Ancient Laws & Modern Problems by John Sassoon, published in 2001, which I read with great pleasure. Although Sassoon considers himself ‘the textbook outsider: outside the community that studies ancient Mesopotamia, outside any community that studies law’, he thinks this might be the very reason why he could write this kind of book that ‘does not seem to have been written before’. While reading it, I was happy to realise that his findings agree with the viewpoint that I had expressed in my blog about ‘the law that everyone should know’. But more importantly, they also help to give meaning to some major events in our society which happened after he wrote his book. To connect his ideas to these, I will highlight some essential elements from his book (hopefully without doing too much harm to the whole of his comprehensive message.)
Correcting wrong assumptions
Sassoon thinks that a few wrong assumptions with regard to the historical development of law have seriously blocked our understanding of it (and must be done away with): too often we still tend to look at ancient laws from a modern perspective; we also tend to limit our conception of law to the written laws and exclude the unwritten laws from the law field by (dis)qualifying them as mere ‘customs’; and we still tend to think that the law field has developed from simple laws to the complex legal system of the modern world. According to Sassoon, however, the Sumerian legal system was also complex, but in a different way: it expressed a conception of law that included and expressed an oral law tradition which had existed since the Stone Age.
From restoring a balance to cruel penalties
Sassoon believes that since the Stone Age there have been laws that were transmitted by word of mouth and memorized from an early age: ‘We have no direct evidence for laws in the Stone Age, but laws there must have been because Stone Age society endured.’ (p. 24-26) He also believes that a continuance existed between these oral laws and the first Sumerian written laws, which attempted to restore a balance and ‘were often surprisingly liberal, but by the time of Hammurabi, while the laws were much the same, many of the penalties had become almost inexplicably cruel.’(p. 38). The principle of Talion (‘an eye for an eye’) was part of these new harsher penalties which, according to Sassoon, originated ‘among the people of the desert whose life-style suits a justice that comes swiftly and cheap.’(p. 143) He is convinced that it was introduced into Sumerian culture from the outside, by the nomadic tribes that lived in the surrounding deserts and managed to take control of the town of Babylon. Hammurabi himself was part of this new elite.
The paradox of freedom and individual justice
According to Sassoon the original Sumerian legal system was very flexible: judges were not bound by written laws and could freely consult individual circumstances. Although it was a very social world with strong family ties and much less freedom than our modern world, there was an ethical dimension included in its legal system which nevertheless enabled judges to achieve individual justice. In our modern society, which of course is on a much larger scale, individual freedom has gained enormous importance. Yet due to the extensive body of written laws which tries to cover all possible circumstances, the laws have become very abstract and generalized. Particular cases have to fit into the general descriptions of laws, thereby leaving little space for individual justice. And because of the exclusive focus on written law, the ethical dimension has gradually withered. It has given people a conviction that they can do anything as long as it is not forbidden by law.
Banks and other modern institutions
We have seen how this conviction - anything is allowed when no law forbids it - led to the financial crisis of 2008, only seven years after Sassoon published his book. The Dutch anthropologist and journalist Joris Luyendijk has argued that bankers might live a moral life at home, but they generally don’t apply this morality at work. (See my previous blog on this theme.) Then the existing written laws completely determine their behaviour, and they do not care about the resulting social and environmental damage. The financial crisis has shown how much damage the absence of the ethical dimension can do. In his talks, and also in a little book published in 2017, Luyendijk has argued that this attitude is not limited to the financial world and also exists in many other sectors. It affirms Sassoon’s view on the withering of the ethical dimension due to the nature of the modern legal system.
More ‘ethical injustice’
Recently I came across more examples of how we often assume that we are allowed to do anything as long it is not legally forbidden. In one news item, a Dutch builder argued that he was allowed to plan and build houses in the countryside simply because there were no laws or regulations preventing it. The further reduction and destruction of the – already sparse – countryside in the densely populated western half of the Netherlands apparently did not bother him at all. Another news item reported that a Dutch woman, who fled from her violent Australian husband with an 18-month-old child, will probably be forced by a Dutch court decision* to hand over her child to him, even though it was clear he had been mistreating her regularly and had also been convicted for violence in Australia. Another, ongoing item: many food producers have no problem spraying their vegetables with dangerous toxins just because they are not (yet) forbidden by law. Or what about the recent revelations of the Paradise Papers…?
Perhaps it is high time to acknowledge the value of the ethical dimension once again, and in this respect to restore our trust in human nature. Who would have guessed that ancient Sumerian culture can serve as an example?
*Initially I referred here to an Australian court decision, but as was rightly pointed out in one of the comments below, it actually is a Dutch court decision.