378 DERK BODDE [PROC.AMER.PHIL.SOC. its close association with religion.Not all of these lived and failed to survive the political disruption civilizations,to be sure,actually produced systems following the death of King Asoka.Since that of written law.When they did so,however,they time,therefore,we are told that the "religious commonly signalized this achievement by attribut- basis of law predominates through the rest of ing,at least initially,a divine origin to the law Indian history until modern times." they used-one resting on the belief that such law Turning from Asia to Europe,we find Plato,in had been given or revealed to mankind by a god the famous opening passage of the Laws,making or gods.1a one of his protagonists unhesitatingly attribute the This belief so obviously underlies Judaic and origin of law "to a god."17 In Rome,similarly, Islamic law that for them it requires no further despite its early secularization of law,we find elaboration.It is equally apparent,however,in Cicero purporting to quote "the opinion of the the world's earliest written law as known to us wisest men of his day'”"to the effect that“Law is from Mesopotamia.On the stele bearing the not the product of human thought,nor is it any famed laws of Hammurabi (ca.1728-1686 B.c.), enactment of peoples,but something which rules for example,a sculptured relief shows Hammurabi the whole universe....Law is the primal and receiving from Shamash,god of justice,a divine ultimate mind of God."1s Even in eighteenth- commission for his writing of the laws.And in century England,indeed,after centuries of experi- the prologue to the laws themselves Hammurabi ence with a secularly-based common law,we find a tells us:"Anum [the sky-god]and Enlil [the similar conception persisting in legal theory. storm-god]named me to promote the welfare of Thus we are told concerning Sir William Black- the people,me,Hammurabi,the devout,god- stone,author of the famous Commentaries (1765), fearing prince,to cause justice to prevail in the that he"regarded divine law as the corner-stone of land,to destroy the wicked and the evil,that the the whole [legal]edifice,""declared that divine strong might not oppress the weak."1 law had been specifically revealed to men through In Egypt,on the other hand,no written law has inspired writings,"and "sought to make secular as yet been found,apparently because the pharoah,law approximate to the dictates of God and of as a living god on earth,needed no law other than nature."1 his own spoken utterance:"He,as a god,was the The contrast of China to all this is indeed strik- state....The customary law of the land was ing,for in China,as we shall see in the next sec- conceived to be the word of the pharoah.... tion,no one at any time has ever hinted that any The authority of codified law would have competed kind of written law-even the best written law- with the personal authority of the pharoah."15 could have had a divine origin. And in India,too,no real equivalent of our idea Another point worthy of more attention than of law existed in early times.The nearest ap-can be given it here is the possible relationship of proach was the concept of dharina,a word trans-law to economic growth in certain civilizations. latable as "law."but more properly signifying "religious law,"and hence ipso facto having a 1e Daniel H.H.Ingalls,"Authority and Law in Ancient divine connotation.Only later did the idea of a India,"in Authority and Law in the Ancient Orient, Supplement 17 (1954)of Journal of the American purely secular law appear in Kautilya's Arthasastra Oriental Society,34-45 (quotation on p.43). (ca.323 B.c.),but this development was short 17 The Athenian in the book asks his companions:"Do you attribute the origin of your legal system to a god or i This theme figures prominently in the excellent a man?"To which the Cretan replies:"To a god; study by William A.Robson,Civilisation and the Growth undoubtedly we ascribe our laws to Zeus,while in Sparta, of Law (New York,Macmillan,1935). the home of our friend here,I believe Apollo is regarded 14 See translation by Theophile J.Meek in James B. as the first law-giver."Quoted in J.Walter Jones,The Pritchard,ed.,Ancient Near Eastern Texts (Princeton, Lawu and Legal Theory of the Greeks (Oxford,Clarendon N.J.,Princeton University Press,1950),p.164.The Press,1956),p.95;see also Robson,op.cit.(note 13 same idea goes back to the earliest collection of laws so above),p.32. far discovered,that of Ur-Nammu (ca.2050 B.C.),the 18 Cicero,De Legibus,II,iv;translation by Clinton fragmentary prologue of which names Nanna,tutelary Walker Keyes in Loeb Classical Library edition (Cam- deity of the city of Ur,as the god through whose guidance bridge,Mass.,Harvard University Press,and London, Ur-Nammu "established justice in the land."See Samuel William Heinemann,1948 reprint),p.381.Also para- N.Kramer,"Ur-Nammu Law Code,"Orientalia,n.s. phrased in Robson,of.cit.,p.3. 23(1954):40-51(quotation on p.46). 19 Robson,op.cit.,pp.47-48,summarizing the ideas of 15 John A.Wilson,The Burden of Egvpt (Chicago, Blackstone as expressed in the Introduction to his Com- University of Chicago Press,1951),pp.49-50. mentaries. This content downloaded by the authorized user from 192.168.82.206 on Thu,15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions378 DERK BODDE [PROC. AMER. PHIL. SOC. its close association with religion. Not all of these civilizations, to be sure, actually produced systems of written law. When they did so, however, they commonly signalized this achievement by attribut￾ing, at least initially, a divine origin to the law they used-one resting on the belief that such law had been given or revealed to mankind by a god or gods.13 This belief so obviously underlies Judaic and Islamic law that for them it requires no further elaboration. It is equally apparent, however, in the world's earliest written law as known to us from Mesopotamia. On the stele bearing the famed laws of Hammurabi (ca. 1728-1686 B.C.), for example, a sculptured relief shows Hammurabi receiving from Shamash, god of justice, a divine commission for his writing of the laws. And in the prologue to the laws themselves Hammurabi tells us: "Anum [the sky-god] and Enlil [the storm-god] named me to promote the welfare of the people, me, Hammurabi, the devout, god￾fearing prince, to cause justice to prevail in the land, to destroy the wicked and the evil, that the strong might not oppress the weak." 14 In Egypt, on the other hand, no written law has as yet been found, apparently because the pharoah, as a living god on earth, needed no law other than his own spoken utterance: "He, as a god, was the state. . The customary law of the land was conceived to be the word of the pharoah.... The authority of codified law would have competed with the personal authority of the pharoah." 15 And in India, too, no real equivalent of our idea of law existed in early times. The nearest ap￾proach was the concept of dharma, a word trans￾latable as "law" but more properly signifying 4"religious law," and hence ipso facto having a divine connotation. Only later did the idea of a purely secular law appear in Kautilya's Arthas'&stra (ca. 323 B.C.), but this development was short 13 This theme figures prominently in the excellent study by William A. Robson, Civilisation and the Growth .of Law (New York, Macmillan, 1935). 14 See translation by Theophile J. Meek in James B. Pritchard, ed., Ancient Near Eastern Texts (Princeton, N. J., Princeton University Press, 1950), p. 164. The same idea goes back to the earliest collection of laws so far discovered, that of Ur-Nammu (ca. 2050 B.C.), the fragmentary prologue of which names Nanna, tutelary deity of the city of Ur, as the god through whose guidance Ur-Nammu "established justice in the land." See Samuel N. Kramer, "Ur-Nammu Law Code," Orientalia, n.s., 23 (1954): 40-51 (quotation on p. 46). 15 John A. Wilson, The Burden of Egypt (Chicago, University of Chicago Press, 1951), pp. 49-50. lived and failed to survive the political disruption following the death of King Asoka. Since that time, therefore, we are told that the "religious basis of law predominates through the rest of Indian history until modern times." 1" Turning from Asia to Europe, we find Plato, in the famous opening passage of the Laws, making one of his protagonists unhesitatingly attribute the origin of law "to a god." 17 In Rome, similarly, despite its early secularization of law, we find Cicero purporting to quote "the opinion of the wisest men of his day" to the effect that "Law is not the product of human thought, nor is it any enactment of peoples, but something which rules the whole universe. . . . Law is the primal and ultimate mind of God." 18 Even in eighteenth￾century England, indeed, after centuries of experi￾ence with a secularly-based common law, we find a similar conception persisting in legal theory. Thus we are told concerning Sir William Black￾stone, author of the famous Commentaries (1765), that he "regarded divine law as the corner-stone of the whole [legal] edifice," "declared that divine law had been specifically revealed to men through inspired writings," and "sought to make secular law approximate to the dictates of God and of nature." 19 The contrast of China to all this is indeed strik￾ing, for in China, as we shall see in the next sec￾tion, no one at any time has ever hinted that any kind of written law-even the best written law￾could have had a divine origin. Another point worthy of more attention than can be given it here is the possible relationship of law to economic growth in certain civilizations. 16 Daniel H. H. Ingalls, "Authority and Law in Ancient India," in Authority and Law in the Ancient Orient, Supplement 17 (1954) of Journal of the American Oriental Society, 34-45 (quotation on p. 43). 17 The Athenian in the book asks his companions: "Do you attribute the origin of your legal system to a god or a man ?" To which the Cretan replies: "To a god; undoubtedly we ascribe our laws to Zeus, while in Sparta, the home of our friend here, I believe Apollo is regarded as the first law-giver." Quoted in J. Walter Jones, The Law and Legal Theory of the Greeks (Oxford, Clarendon Press, 1956), p. 95; see also Robson, op. cit. (note 13 above), p. 32. 18Cicero, De Legibus, II, iv; translation by Clinton Walker Keyes in Loeb Classical Library edition (Cam￾bridge, Mass., Harvard University Press, and London, William Heinemann, 1948 reprint), p. 381. Also para￾phrased in Robson, op. cit., p. 3. 19 Robson, op. cit., pp. 47-48, summarizing the ideas of Blackstone as expressed in the Introduction to his Com￾mentaries. This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions