Ancient Legal Systems Research Articles

Evidently Not: Why Confessions Are Excluded in Jewish Criminal Jurisprudence

Abstract Of all the principles in classical Jewish law that stand out from a comparative legal perspective perhaps none is more notable than the ban on self-incrimination in criminal procedures. Contrary to the most basic evidentiary assumptions of other ancient legal systems, this principle differs fundamentally from the right to remain silent that is part of both early modern and modern legal systems. Only rabbinic jurisprudence incorporates an outright exclusion of criminal confessions. Despite receiving much scholarly attention over the centuries, this principle’s fundamental justification relating to the rule of law and the public pursuit of justice has gone unnoticed. This article explores this salient jurisprudential perspective, and sheds new light on this principle by contrasting the Jewish legal approach with the primary modes of criminal adjudication that were adopted in the West. What emerges from this comparative analysis is that this seemingly anomalous principle actually reveals much about the core commitments and values of Jewish law. These, in turn, have substantial implications for certain contemporary legal practices and dilemmas.

A New Epoch: Charting India’s Path to Global Arbitration Prominence

The practice of arbitration, in India, traces its origins back to ancient legal systems like the Mitakshara School of Law and further evolved under British colonial enactments, notably the inception of the India Arbitration Act of 1899. This historical continuum has been punctuated by significant developments marked by amendments in 1996, 2015, 2019 and 2021, indicative of India’s unwavering commitment to cultivating a robust arbitration culture. Strengthened by this historical foundation and fortified by British legal influences, India, the world’s fifth-largest economy, harbors the aspiration to firmly establish itself as a global arbitration hub. The development has been gradual and ongoing with various initiatives, reforms and pivotal judicial decisions being implemented. This paper critically scrutinizes India’s potential within the evolving legal landscape, examining its legislative foundation and contemporary ambitions in the global arbitration arena.

Tacitast melior mulier semper quam loquens (Plaut. Rud. 1114). Processo al femminile: la reità, il patrocinio giudiziale e la testimonianza

Abstract The present work is concerned with investigating the “feminine silence”, in the procedural field, trying to free it from the notion of behavior imposed on the female universe by the ancient legal system by virtue of a choice of gender, but rather envisaging it as a consequence of an “occasional non-participation in the army” following Servian’s social classification.

THE STATUS OF WOMEN BETWEEN ANCIENT LEGAL SYSTEMS AND DIVINE LAWS -COMPARATIVE STUDY

This subject highlights the status of women in some old positive legislations that were maintained throughout centuries, and in which most of them prived women of their human rights, resulting in discrimination and injustice. And it also highlights women’s legal status in religious legislations, starting with Judaism and Christianity, and its sexist regard towards women, as a result of the rewriting of Holy Books( the Torrah and the Bible), ‘til the emergence of Islamic legislation, which opposed all kinds of discrimination and injustice, honoring the woman as a human being, as a daughter, as a sister, as a wife and as a mother, and it gave her a high status that won’t be found even in modern legislations. Hence, we pose the following problem: We will try to answer this problem, through two sections: The first topic: the status of women in some ancient legal systems. The second topic: the status of women in the divine laws, including the law of Islam

LEGAL FEATURES OF RENUNCIATION OF INHERITANCE

The topic concerns the legal features of refusing to accept an in- heritance. The prototype of rejection of inheritance originates from an- cient times. Roman law occupies a special place among the ancient legal systems, which belongs to the strong values of the legal culture, emphasizing its enormous importance for the legal development of both European and other states. According to the legislation in force in Georgia, the law regulates relations related to the refusal to accept an inheritance. The heir has the right to refuse to receive the inheritance by law and by will from the circle of heirs. Refusal to accept inheritance is irreversible and requires special attention. In its content, it is clearly different from the avoidance of inheritance. It is not allowed to refuse to receive the inheritance partially, for a period or with any reservation . If the heir refuses to accept the inheritance, he must altogether refuse it within the time limits defined by the law. An inheritance that passes to a decedent's heirs is considered the total of all assets and liabilities of the decedent. Legal norms related to inheritance relations need to be adjust- ed. The central part of the legal norms regulating inheritance has not changed after the adoption of the Civil Code of Georgia. Georgian legislation and practice in this area are not without flaws, and problematic issues have accumulated that need to be understood in a new way. The work is a legal study, the purpose of which is to review the legal features of the refusal to accept the inheritance, the shortcomings, the legal norms used, and judicial and notary practices based on the comparative legal analysis of the legal literature of foreign countries, related to the refusal to accept the inheritance and the avoidance (non-acceptance) of the inheritance. Also, the work aims to present the problems, which will allow us to develop conclusions and recommendations to determine how to regulate this relationship.

Actio familiae erciscundae u Gortinskom zakoniku i Zakonu 12 tablica

In this paper, the author examines the relationship between Greek and Roman legal traditions through the analysis of actio familiae erciscundae - a Roman legal action seeking the partition of inheritance (division of family property), which can be found both in the Gortyn Law Code and the Law of the Twelve Tables. Several scientific research methods were used in the paper, with the comparative legal research method being the most represented one, due to the nature of the subject at hand. Using comparative legal research, the author will try to answer the question of whether the actio familiae erciscundae legal action can be marked as a kind of legal transplant and whether it is possible to come to some more general conclusions about the degree of legal transplantation between the two great ancient legal systems from this relationship. To provide the most comprehensive answer to this question, the historical method (historical approach to legal research) was also used in the paper to better understand the socio-political context of the given time, along with the linguistic method to correctly interpret the true sense and meaning of the actio familiae erciscundae action. Although, at first glance, the existence of this particular legal action in these two large ancient legal systems indicates certain similarities, a deeper analysis of the nature of family union and property in Roman and Greek society reveals some key differences presented in the paper, based on which the author concludes that the degree of Greek influence on Roman law is somewhat overrated and overemphasized

Application of Factoring in Business Operations

Assignment of receivables as an institution of current civil law is rooted in ancient legal systems. The abovementioned institution was introduced to the Polish legal system under the Code of Obligations of 27 October 1933. This solution occurs in various specific forms serving various legal and economic goals, beginning with the satisfaction of claims of individuals, to securing a claim, to improvement of financial liquidity of the assignor. Thanks to the constant development of the above legal institution it functions in numerous legal systems and constitutes a real support in securing business transactions and making them more efficient.

Uticaj Srpske pravoslavne crkve na kamatu u srpskom srednjevekovnom pravu

The loan agreement is a contract with a long and most turbulent history. Friendly loans is existed in every civilization, from the first communities to the present day. Loans with interest, however, are closely scrutinized by almost every legal system. Because these loans are very much open to abuse, governments have almost always had tendencies to prevent such outcomes by limiting interest rates. There are two extreme solutions: allowing high interest rates, as in some ancient legal systems, or as in some modern capitalist systems. On the other side of the spectrum is the suppression of interest as a „root of evil”, i.e. its complete prohibition, as suggested by the Roman Catholic Church or Islam, as well as in the formal socialist states. The Serbian Orthodox Church, as one of the local orthodox Churches, finds itself between these two extreme beliefs. Medieval Serbian states, mostly rooted in the Byzantine version of Roman law, started practicing usurious loans early. Serbian Church, mainly because of Saint Sava (Nemanjić) took a conservative attitude towards interest rates. As the economy grew, the prohibitions seemed to be less and less effective. From the time of emperor Dušan, according to the theory of symphony between the Church and State, middle ground solution was found by: prohibiting the clergy to charge interest; allowing civilians to charge interest, while limiting interest rates.The Serbian Orthodox Church would hold fast to this attitude throughout the Middle Ages, all the way to the present day. Although the Republic of Serbia is a secular state, the clergy obeys the same canonic rules. Interest rates are accordingly regulated and usurious contracts are prohibited.

A Note on the Quantitative Analysis of Hadith

Hiroyuki Yanagihashi observes how recent developments make the quantitative analysis of ḥadīths a “promising” endeavor. The question then becomes: why and how the text of certain ḥadīths, taken literally, appear to contradict established Sunnī legal doctrine? The logical presumption is that either traditionists transmitted the jurisprudence of ancient legal systems that were eventually replaced by later-derived fiqh rulings or they reformulated the ḥadīths in the process of transmission to develop the rulings underlying those later legal systems. By way of example, and to investigate these possibilities, Yanagihashi proposes quantitative analysis to trace variations within the texts of two prominent ḥadīths over the course of more than a century. His analysis yields conclusions that corroborate other work in ḥadīth­­-related studies from recent years (e.g., those of Behnam Sadeghi on a larger scale in his “Traveling Tradition Test,” and Intisar Rabb with respect to a select ḥadīth in her evaluation of the doubt canon, and others): an increase in textual variation does not necessarily correspond to a change in legal doctrine; the number of variants can increase over time, even after the compilation of Sunnī Islam’s six canonical ḥadīth collections. His methods represent and propose new directions for quantitative analysis at the intersection of ḥadīth and law in early Islamic history.

The economics and ethics of Celtic Ireland

For thousands of years the Gaelic speaking territories of north-western Europe were home to a polycentric legal order that has been of great interest to Austro-libertarian theorists in the field of free-market legal reform (Rothbard, For a New Liberty, 1970). This ancient legal system, known as «Brehon law» after the caste of professional judges called Brehons who wrote and upheld the laws, was best preserved on the island of Ireland where it remained in place from pre-history up until the 17th century.
 To understand the economics and ethics of this early Irish legal system one must first detach oneself from the modern setting of ultra-individualistic liberal-socialist Europe. It is impossible to explain Brehon law without simultaneously introducing the reader to the social, political and cultural set-up within which the system of Brehon law existed or what Prof von Mises would have called its thymology.2 For example, there were multiple competing legal schools co-existing in ancient Ireland, a point that might instantly confuse many readers unless one explains how such institutions were radically different in both theory and practice from their modern counterparts. The Brehon legal system also advanced a scholarly oral tradition and a unique legal language of its own which took over seven years to master. As a result there are few surviving legal texts so I shall be drawing heavily upon manuscripts from the 14th-16th centuries detailing the period from the 7th-8th centuries. These texts include wisdom texts, sagas, praise-poetry, saints’ lives, and monastic rules which were recorded and preserved by a class of professional poets who held the most powerful position in Irish society at the time.
 Let me first introduce the political setting of the period in question. The basic territorial area in ancient Ireland was the túath which may best be understood as the tribal lands of an extended family. There was on average approximately 150 kings or chieftains who ruled their respective túatha. Some kings were the subjects of other kings in a system of over-lordship but many kingdoms formed trade and, as we shall see, rights granting treaties with each other. Although there were at times powerful kings who held whole provinces under their authority, no king ever became the Ard Rí or «high king» of all Ireland. During this time the Irish population hovered around 400,000 inhabitants and the size of each kingdom was typically 3,000 people. Ireland was densely forested until after the English conquest of Ireland and the on-set of the industrial revolution and the population during the reign of Brehon law was largely rural with exceptions for the many monasteries and the occasional Viking settlements in later periods.

QUALITY OF MODERN LEGISLATION OF UKRAINE, THAT REGULATES PRIVATE RELATIONSHIPS

Legislation of Ukraine, that regulates private relations, has Romanic basis. Historically, the civil law dates to 451-450 B. C. the traditional date when Rome adopted its Twelve Tables (a code of laws applicable to Romans). However, the most significant event in the development of the civil law historically, was the compilation and codification (that is, the selection, arrangement, and simplification) of all Roman law done under the direction of Byzantsne Emperor Justinian (483-483 A. D.). This code, known as the Corpus Juris Civilis, was compiled between 528 and 534 A. D. It was important, because it preserved in written from the ancient legal system. When Roman overran the Western Empire, they law was displaced to some extent was by the rules of the Germanik tribes. Besides, Germanik tribal law, recognized the principle of personal law, so the former Roman subjects and their descendants were allowed to follow the Roman law.The article analyzes questions of quality of sources of modern legislation of Ukraine. Quality of modern legislation is enacted for reasonably solve related civil disputes and safeguard the legal rights and interests of parties.Paid attention to concept of quality civil legislation and legislation that regulates private relationships with a foreign element. The decision of quality of legislation is offered. Some criteria of quality of legislation are determined. The conclusions of the article are sent to the improvement of legislation of Ukraine. Undoubtedly, the result of law-making process must be a quality legislation. Texts of legal acts must be reliable. The language of legal acts must answer principle of scientific character. Terminology must be popular.

IMPACT OF RELIGIOUS PRACTICES ON HEALTH AND HYGIENE: A CRITICAL OBSERVATIONAL STUDY WITH SPECIAL REFERENCE TO ARTICLE 25 OF THE CONSTITUTION OF INDIA

Since the beginning of human civilization, hygiene, health, medicine religious practices and law, are found to be interwoven around each other. On one hand, ancient legal system or religion preaches us about an ideal way of living life, on the other hand, the health care providers, try to identify and observe the religious practices and faith of the patient for providing better treatment. These practices may include prayer, meditation, bathing and cleanliness, dietary needs and astrological beliefs of patient. The history of alliance of law in the religious preaching and religious practices, medicine, and healthcare is very interesting to look at. Since ages, to make people take up cleanliness as a habit, it has been linked to Godliness, for example in Hinduism it is often said that “Swachchta hi Prabhuta hai”. Also, for hundreds of years, religious institutions were responsible for licensing physicians to practice medicine. Thus, religious practices are external activities or functions of human civilizations which works as code of conduct for them. The present piece of work is an attempt to identify the relevance of Article 25 of Indian Constitution for the medical practitioners while treating patients with orthodox patients with deep rooted religious practices which may create hindrances in the treatment too.

Civil Legal Regulation Features in the States Who Inhabited the Ancient Territory of Kazakhstan

This article discusses the features of the regulation of civil legal in the states, who inhabited the ancient territory of Kazakhstan. The authors also noted the development of a legal framework for regulation of civil relations in these countries. The nomads who inhabited the territory of present-day Kazakhstan, anciently engage in economic, cultural and political relations with other nations, and in accordance with the provisions of the laws protecting the rights of individuals, and sometimes even the whole country, when there was a threat to its interests, thereby protecting the political system, the legal system of nomadic state. Ancient legal system, to regulate relations in the tribal society, giving rise to the modern civil law.

Preliminary Data of Life and Health Insurance in the Roman Law

With the explosion of insurance contracts in the last two hundred years both in Europe and around the rest of the world, there is a temptation to think that the financing and insuring on projects on limited or non-recourse terms is a relatively novel concept. This is, however, far from being true. Indeed, there is an early evidence of project financing techniques and insurance contracts being actively used during the ancient times. The first examples come from the Roman law but there are similar legal institutions even in the ancient Greek legal system. The essay analyses the legal history of assurances on lives and health in the Roman law, especially the question of the collegium tenuiorum and the collegium funeraticium . In the centre of the studies are the analyses of their legal personality, the changes in the regulation concerning their foundation, the purpose and the internal organisation. The treatment of the main topics begins with fragments from the material of the Corpus Iuris Civilis by Justinian. After that the views of the most important authors and the contemporary investigations in the Roman law found the statements of the paper. As a result of these analyses we can see the process of development in the ancient legal systems, especially in the Roman law. And although these results have no immediate influence on the present legal regulation, it can demonstrate original tendencies in the field of insurances. This way we can prove that the Roman law is a still existing basis for the development in contractual law.

Elemér Balogh (1881-1955) The Forgotten Great Scholar of Roman Law and Comparative Law

The oeuvre of Elemér Balogh, who played an essential role in founding the Académie Internationale de Droit Comparé (International Academy of Comparative Law), is almost unknown by generations of lawyers nowadays. In spite of the fact that regarding his scientific motivation and the greater part of his publications Professor Balogh (who had to emigrate from his homeland, Hungary) was a scholar of Roman law, the parts of his scientific career dealing with Roman law and other ancient legal systems are also unknown for many legal scholars. In the following, we will present the most important stages of his life and then his scientific oeuvre dealing with Roman law and comparative law. The mere fact that he was invited to attend the fourteenth centenary celebration of the promulgation of Justinian's Digest - where he delivered a lecture titled La procédure civile sous Justinien - is an evidence of his high reputation as a Romanist.

Preliminary data of life and health insurance in the Roman Law (The collegium funeraticium and the collegium tenuiorum)

With the explosion of insurance contracts in the last two hundred years both in Europe and around the rest of the world, there is a temptation to think that the financing and insuring on projects on limited or non-recourse terms is a relatively novel concept. This is, however, far from being true. Indeed, there is an early evidence of project financing techniques and insurance contracts being actively used during the ancient times. The first examples come from the Roman law but there are similar legal institutions even in the ancient Greek legal system. - The essay analyses the legal history of assurances on lives and health in the Roman law, especially the question of the collegium tenuiorum and the collegium funeraticium. In the centre of the studies are the analyses of their legal personality, the changes in the regulation concerning their foundation, the purpose and the internal organisation. The treatment of the main topics begins with fragments from the material of the Corpus Iuris Civilis by Justinian. After that the views of the most important authors and the contemporary investigations in the Roman law found the statements of the paper. As a result of these analyses we can see the process of development in the ancient legal systems, especially in the Roman law. And although these results have no immediate influence on the present legal regulation, it can demonstrate original tendencies in the field of insurances. This way we can prove that the Roman law is a still existing basis for the development in contractual law.

The genesis of liability in ancient law

This article considers the emergence and evolution of punitive and compensatory remedies in ancient law. I describe how ancient practices of retaliation gradually evolved, through four general phases, into rules requiring victim's compensation. I suggest that the Biblical lex talionis (eye for an eye . . . life for a life) and similar rules that emerged in other ancient legal systems triggered an important change in the ancient law of wrongs, marking the end of a system of retaliatory justice and the emergence of a system based on victim's compensation. The paper addresses four related questions. (1) Why was a single limit of 1:1 to talionic penalties introduced across all categories of wrongdoing, replacing older customary practices that had different multipliers according to the circumstances of the case? (2) In the presence of imperfect enforcement, did the 1:1 limit to retaliation result in underdeterrence? (3) Why did the practices of literal talionis rapidly fall into disuse after written formalization? (4) Were the kofer and blood-money payments made under a threat of literal retaliation likely to generate overextraction from the wrongdoer and excessive deterrence?

The Genesis of Liability in Ancient Law

This paper considers the emergence and evolution of punitive and compensatory remedies in ancient law. I describe how ancient practices of retaliation gradually evolved, through four general phases, into rules requiring victim's compensation. I suggest that the Biblical lex talionis (eye for an eye ... life for a life) and similar rules that emerged in other ancient legal systems triggered an important change in the ancient law of wrongs, marking the end of a system of retaliatory justice and the emergence of a system based on victim's compensation. The paper addresses four related questions: (1) Why was a single limit of 1:1 to talionic penalties introduced across all categories of wrongdoing, replacing older customary practices which had different multipliers according to the circumstances of the case? (2) In the presence of imperfect enforcement, did the 1:1 limit to retaliation result in under-deterrence? (3) Why did the practices of literal talionis rapidly fall into disuse after their written formalization? and (4) Were the kofer and blood-money payments made under a threat of literal retaliation likely to generate over-extraction from the wrongdoer and excessive deterrence?

Law and Legality in China: The Testament of a China-watcher (review)

164 China Review International: Vol. ?, No. ?, Spring 1994 Laszlo Ladany, S. J. Edited by Marie-Luise Näth. Law and Legality in China: The Testament ofa China-watcher Honolulu: University ofHawai'i Press, 1992. xii, 179 pp. $36.00. copyright1994 by University of Hawai'i Press This is a curious, quirky volume—rich in information and irritating in its inconsistencies —resembling nothing so much as the idiosyncratic weekly newsletter China News Analysis, which its author founded and published in Hong Kong for almost thirty years. Unfortunately, Fr. Ladany, the Hungarian-born Jesuit who forsook careers as a violinist and a lawyer for a religious vocation and (after being forced to leave mainland China in 1949) a career as a China-watcher, died leaving uncompleted the manuscripts from which this book was formed. Two younger China scholars, Dr. Jürgen Domes and Dr. Marie-Luise Näth, edited the manuscripts, which a Publisher's Note tells the reader were originally intended to be published as two separate volumes—one on China's governance and the other on the role oflaw in the People's Republic of China (PRC). From these manuscripts , the editors produced a work which combines flashes of genuine insight and much useful information about law in the PRC with half-truths, gross errors , and relentlessly right-wing rhetoric. Regular readers of Fr. Ladany's newsletter will be on somewhat familiar ground here and may be able to discern what was his contribution; others must decide for themselves whether the sporadic rewards are worth the labor ofwading through the chaff. To begin on a positive note, the valuable aspects of this posthumous work must be recognized. In four chapters of slightly more than one hundred pages (chapters 3-6), the legal history ofthe PRC is outlined and discussed by a Sinologist who not only was a keen observer of contemporary China but also had a firm grasp of Chinese history and traditional culture. Thus, along with the basic periodization and recounting oflegal developments, some perspective for evaluating the impact of law on modern Chinese society is also provided. Importantly , Fr. Ladany's early legal education comes through as his text takes pains to separate what Roscoe Pound called the "law in action" from the "law in the books." The actual implementation oflaws after their promulgation (or, more often , their nonobservance by Chinese leaders) is probed; nothing is taken at face value. Unlike some more recent observers of Chinese legalization without his extensive background, Fr. Ladany follows through with his analysis. His skeptical eye, when turned to (as the Chinese locution has it) "so-called" (suoweide) law- Reviews 165 yers, courts, and judges, reveals their fundamental nature and the incongruence ofthose terms—as used in the PRC—with their Western counterparts. A European trained in the civil law, he knows how far the Chinese reality diverges from the formal model on which it was based. All this is good; to have it so succinctly stated in one handyvolume is even better. On the other hand, this book has a number of faults. Ironically, the first two chapters combine some of the worst elements of stereotypical, "sound-bite" Pekinology and misinformation with some quite profound reflections on a lifetime of China-watching. His brief account ofWestern attraction to, and repulsion from, China is wide-ranging and wise; yet his synopsis of Chinese history and geography in the same chapter suffers from both myopia and cliché. An excursion on "Chineseness" would have been better edited out of this book—it describes only a narrow range ofthe Chinese elite in the ideal conception of premodern China. The self-restrained Confucian gentleman (junzi) was hardly the norm for China's population over the millennia. The idea that all the virtues of Chinese tradition were eliminated by the Communists' accession to national political power (minimizing the impact ofa previous century ofWestern imperialism , Japanese occupation, and spotty Westernization) is risible. Similarly, a chapter on "China's Ancient Legal System and Its End" provides only a few tantalizing glimpses of the author's brilliance (such as his concise pairing of two late Qing legal reformers,Wu Tingfang and Shen Jiaben) buried in a shoddy analysis of China...

The Traditionality of Statutes*

Abstract. The author begins by sketching the characteristics or elements of every tradition. Some reasons are then suggested for the propensity of so many authors to contrast statutes with other, allegedly more traditional kinds of law. However, it is argued that statutes are deeply embedded, along with customary and judge‐made law, in the highly traditional practices of law and that this matters much more than is commonly suspected. The thesis being defended here is not merely that law includes traditions along with rules, principles, maxims, and so on, but rather that legal systems should be understood as traditions, albeit highly complex ones. Not only are ancient legal systems (the Talmudic, for example) held to be traditional; modem legal positive orders are viewed as being traditional too. Finally, the concept of “communities of interpretation” is applied to the contemporary posited statutes which are believed by many to be a distinguishing feature of modem legal systems.