JUSTICE IN ANTIQUITY
"An eye for an eye only ends up making the whole world blind." (Mahatma Gandhi)

    The study of ancient criminal justice is important for several reasons. First of all, intellectual curiosity demands knowing the origins of certain phenomena.  Scholarly debate rages over what was the first crime, the first law, the first purpose of punishment, and the extent to which religion, magic or economics influenced the first exercise of justice.  Notable sociologists such as Durkheim and Weber were strongly concerned with the sources of moral sentiment and authority.  In fact, one of the most memorable statements made by Durkheim (1912:14) is the claim that "no institution can rest on a lie."  This means that underneath all the bizarre magical rites of a strange civilization, one can uncover a kernel of truth, some reality about individual or social behavior expressible only in symbols (see, for example, Douglas 1985, who discusses purity rites and pollution taboos).  Philosophers call searching into the origins of all things the study of cosmology, and ethical theories often contain cosmological thinking.  One of the most significant cosmological questions has to do with the origins and nature of evil.  This is an area where theology and criminology are engaged in the same pursuit (Stitt 1987).

    Secondly, history can provide insight into human nature and development.  Not only is a baseline provided to see if human nature has changed, but the ontological assumptions of a theory can be supported or refuted only by historical evidence.  History has been full of violence and barbarism, and there is good reason to believe the endogenist position, that man is inherently aggressive and jealous, as opposed to the exogenist position, that man is inherently peaceful and willing to compromise (Mueller & Adler 1995).  The endogenist position appears to best characterize the evidence that killing one another was fairly common in ancient times, that is, until the emergence of state revenge which joined, and eventually replaced, all private forms of vengeance.  This lecture recounts the appearance of lex talionis, the time when the first semblance of public justice appeared.  Presumably by government adopting lex talionis (literally, the law of the claw) and basing policy on “an eye for an eye and a tooth for a tooth,” hatred, revenge and punishment in kind became respectable.  There are those who argue that state-owned revenge has made us a more merciful and compassionate society (Murphy 1995).  However, there are those who argue that baser motives have never quite been removed from human nature (Berns 1982).

    Thirdly, history often involves comparative method, the analysis of behavior across time and culture.  The definition of what is "criminal" varies to a remarkable degree across these boundaries, but there are few other constants in this world than the general agreement that certain acts, like taking another person's life, are evil in themselves, or mala in se.  Crimes classified as mala in se involve moral turpitude which means depravity or baseness of conduct (Chamelin & Evans 1991).  Defining the "evilness" of certain acts is not the same as determining the level of consensus in a society.  The study of evil is closer to the study of harm, whether inflicted directly or vicariously (Feinberg 1984), whether involving humans or animals (Singer 1979). In ancient times, people lashed out at anybody or anything that caused them harm -- another person, an animal, even a tree. Laws only happen to depict evil, and the variety of legal expressions is amazing (Wootton 1963), including such things as mala prohibita (things prohibited simply because authorities say so), mala antiqua (out-of-date laws such as not honking your horn when a horse-drawn carriage comes through town), mala nova (new laws governing strange new behaviors that involve pleasures or kicks), and mala ambigua (laws of insanity or laws that tell you one thing but let you do something similar).  Law may, in fact, be an imperfect vehicle for doing anything about evil, but the history of criminal justice is filled with attempts to do just that.  Throughout this lecture, we will see how numerous crimes were dealt with in antiquity and how evil-doing was treated.  We shall attempt to see how ancient societies infused ethics into their early systems of crime and punishment and what ethical considerations might have guided their conceptions of justice.

CRIME AS SIN: THE ANCIENT EGYPTIANS

    Historically, the concept of crime has its roots in the notion of sin. The world's earliest rulers were considered to be gods or emissaries of the gods. Therefore, whatever went against their whim was considered to be both crime and sin.  The story of how the Egyptian pharoahs laid claim to the divine right of kings tells about the ancient attitude toward evil. Legend has it that the god Osiris, ruler of the underworld, had an evil brother, Seth, who was jealous of Osiris and slew him. The family of Osiris enacted their revenge. Osiris’s wife, Isis, attempted to resurrect Osiris, and their son, Horus, avenged his father's death by killing Seth. Pharaohs claimed the right to rule in the name of Horus, and whenever any pharaoh dies, he becomes Osiris and rules the underworld. The story tells us that evil has its origins in jealousy as well as explaining how the first divine right of kings was based on a monopolization of blood vengeance.

    Jealousy, or envy, is peculiar to class-based societies, and the perennial problem has been for the haves to convince the have-nots about the evil of aggressive envy (wishing harm to another) and the appropriateness of benign envy (wishing to be like another). Benign envy does not direct any hostile wishes toward the better off. It is, rather, a moral sentiment of admiration and emulation that channels resentment into ambition (Smith 1759). This is the moral basis of capitalism. A system of competition with ethically endowed practices should exist with legitimate steps to the ladder of success. Society-wide acceptance of the legitimate steps; e.g., hard work and good character, produces social order, dampens social unrest, and most importantly, demarcates the line between legitimate activity and unlawful conduct. Law enactment is therefore bound up with the sublimation of evil. Whatever sublimates, lifts up, or transforms something base or evil into something moral and productive provides a basis for the criminal law as it prescribes good conduct. Runciman (1966) observed that the mere existence of envy forces a consideration of justice, since the only way to determine the difference between legitimate and illegitimate claims is by an appeal to justice which distinguishes feelings of relative deprivation from the perception of an unfulfilled right.

    But what about sinful envy?  It is probably the same as aggressive envy.  Stanford Lyman (1978) wrote that envy experienced in isolation from others, as a secret to be hidden from view, is more likely to be experienced as revenge. In this context, envy is most likely over things that a person cannot change nor even make an appeal to justice about. Such things as beauty, luck, or fate are examples. When the aggressive impulse of envy targets a particular person or their property, crime is likely to occur. If the aggressive impulse is not sublimated, the vengeful one still has resentment in their heart. This distinguishes revenge from retaliation, the former being a broader term setting no limits as to the kind or degree of suffering one wishes to inflict, whereas the latter simply wishes to make the other person suffer as much as they have. Private revenge is so bad it was the first thing outlawed by lex talionis.

    Although documentation regarding legal procedure in ancient Egypt is almost nonexistent, well known are the Proverbs of Ptah-Hotep and the Prescriptions of Ani (Bogardus 1960). The Proverbs emphasize the moral virtue of kindness, and this appeared to be the summum bonum, or highest good, in Egyptian society.  Kindness as an organizing principle of justice, exerting a strong influence on the wealthy to provide charity for the poor.  The vizier, or chief magistrate, was similarly influenced to show mercy in the courts of justice and to provide equal access to law.  It is possible the Egyptians enforced the crime of barratry, which refers to abuse of the law by filing "excessive" or "unjust" lawsuits. This prevented the wealthy from monopolizing the courts, and provided some legal protection against lying and false testimony.

    Egyptian punishment included forced labor, mutilation, and hanging, but even in death, the offender could not escape justice. The Prescriptions of Ani teach that the vizier was responsible to observe the accused for signs of regret. Drapkin (1989) regards this as the earliest example of criminal psychology, but the moral purpose of fettering out agent regret was to reaffirm a social justice that made little distinction between harm (crimes of commission) and not aiding (crimes of omission. If an offender showed no regret; i.e., did not recognize their duty to aid themselves and restrict their harm to others, they were denied burial rights, and all records of their existence were erased. Today's practice of denying ex-convicts certain rights through civil death statutes is a modern-day equivalent. One study (Burton, Cullen & Travis 1987) found that a majority of states still bar ex-offenders from public employment and licensed occupations, even after that have paid their debt to society. The U.S. Constitution prohibits "bills of attainder" where convicted felons forfeit their possessions and rights to inheritance, but ex-convicts are regularly deprived of civil service jobs, the teaching profession, and under asset forfeiture laws, their possessions.  We may not dig up and destroy the remains of ex-offenders, but we follow a scorched earth policy similar in kind to ancient Egyptian practice.

    Besides equal access to law, the Egyptians sought neutrality in law enforcement, recruiting police officers from among the Nubians (Mueller & Adler 1995), an outsider group that presumably served no special interests. Their greatest contribution, however, remains the establishment of an articulable justice built around the foundation of identifying and doing something about the worst evils.

THE CODE OF HAMMURABI: JUSTICE BY BALANCE

    Among the earliest known legal documents is the Code of Hammurabi, king of Babylon around 1750 B.C. The oldest existing code according to archeological evidence is that of Ur-Nammu, who preceded Hammurabi by about 300 years (Drapkin 1989). But Hammurabi's Code is unique, and in Wolfgang's (1995:280) words, represents "a brilliant civilizational advance with its emphasis on retribution, the call for talion, partly because it represented an attempt to keep cruelty within bounds."  In this section, we examine talionic justice in detail.

    At first glance, Hammurabi's Code appears to be rather harsh. The death penalty was the only form of corporal punishment, and Drapkin (1989) points out that "jails" were really deep cisterns in which people were thrown into, and used to confine offenders until the time of execution.  In Babylon as well as Egypt, offenders were allowed to choose their own method of execution, and the ranks of the condemned were used to recruit executioners, who received a special brand and pardon (Laurence 1983).  State executions were public events, and executioners often made extra money by selling relics and souvenirs afterwards.  The state, of course, seized all land and property of the executed.  Only the shortage of manpower, and in some cases, attempted surgical extraction (trepanation, or boring holes in the skull) of demonic influence, curtailed use of the death penalty.

    The greatness of Hammurabi's Code lies not in its harshness, but in its attempt to establish legal uniformity throughout the realm. Such efforts, called codification, take into account the premise that people are by nature unequal, and carefully spell out the appropriate penalties in a way that recognizes social ranks. Making all people equal without regard to their individual merits would be an injustice, but Hammurabi was determined to defend the helpless.  Sections 16 and 231 of the code provide protection to slaves; in the first case, by making the master of the house, not the slave, subject to penalties.  This ancient doctrine of coverture recognizes that some people, master and slave, husband and wife, parent and child, for instance, are one person under law, and the law should deal with this stratification system accordingly.  In the second case, there is clearly a preference for compensation over other punishments.  This established a system of fines, which were never intended to place a value on human life, but to simply be uncomfortable and more than what the person could easily afford.  Babylonian law made no distinction between crime and tort; both were subject to the principle of talio, that similar or equivalent sanctions be imposed in proportion to the harm done. Punishment did depend on the social class of the victim, but the thrust of lex talionis -- "an eye for an eye, a tooth for a tooth" -- is the first endeavor to establish a humane system of punishment, whether physical or monetary, that made punishment fit the crime. This had the effect of finally putting the state out of the vengeance business and into the practice of administering justice by balance.

    Hammurabi paid special attention to the problems of juveniles. Sections 185-6 of the code deal with what may be the first known instance of juvenile delinquency: sons rebelling against their father's chosen profession for them. Such juveniles are provided with foster placements along with a way for administrators to balance the efforts and needs of both natural and foster parents.

    Little is written about the administration of justice in Hammurabi's time other than his laws and the penology of lex talionis.  The king's soldiers apparently performed police duties and it is unknown who staffed the jails, perhaps soldiers also. Bribing witnesses was forbidden. A trial by ordeal existed where the accused had to survive a drowning attempt. Newman (1985) indicates that such ordeals involving water are typical of societies locked into a demonic possession viewpoint.  Mutilations were used for a variety of offenses involving striking, stealing, kissing, and slander. The prescribed mutilations involved parts of the body that were involved in the crime.  Newman (1983) lists some of the modern-day attempts to recapture this spirit of sympathetic punishment in his analysis of community restitution orders, for example, when Hollywood celebrities convicted of drug offenses are forced to make public-service, anti-drug announcements.  The principle of talio still exerts a powerful force on our popular conceptions of justice. This is especially true with arguments for the death penalty.

THE HEBREWS: JUSTICE ROLLS DOWN

    It is amazing that such a small band of semitic-speaking desert nomads (population: 100,000) known as the Hebrews would come to provide such a corpus of wisdom and ethical thought to be considered one of the three pillars of Western (Greco-Roman-Hebrew) civilization.  Around the eighth century B.C., they gave the world the concepts of agape (Kent 1917), monotheism (Becker and Barnes 1952), and collective responsibility (Bogardus 1960). But it is their refinement of the concept of justice itself that merits special attention.

    The Hebrew word for justice is mishpat, so translated in the Revised Standard Version of the Bible. In the King James Version, it is rendered as judgment.  Other senses of the term include kindness and mercy, similar to meanings among the Egyptians and Babylonians.  The sociologist, Max Weber (1952), distinguishes it from chuk, or common law precedent, seeing mishpat as more an example of rational law.  Another interpreter distinguishes it from zedak, or righteousness, seeing mishpat as equal justice under the law (Sawyer 1987).  At the very least, one can say it represents a legalistic ideal, but the Hebrews had ways of making the ideal more practical under perhaps the most difficult historical conditions imaginable.

    The Israelites, a classless society, constantly fought with the Canaanites, who practiced property-based stratification. The Israelites also were rural highland Yahweh worshipers, and battled the Amorites, lowland city dwelling Baal worshipers. The Northern Kingdom (Israel) was commercialized, and the Southern Kingdom (Judah) was not. Before the monarchy of David, the Hebrews were held together by Mosaic Law (also called the Pentateuch, or first 5 books of the Bible, containing the Ten Commandments), believing themselves to be a loose confederacy of priests on behalf of all people. During this time, clan courts developed in the rural areas to dispense justice. The plaintiff was required to give a curse, and the defendant was required to give an oath. Both curse and oath required speaking of the good deeds of one's ancestors and the evil consequences to befall oneself if any lies were spoken (Falk, 1964). Judges were selected by the people, not the King, on the basis of age, military accomplishments, or charisma. These early courts did not interfere with family blood vengeance, but generally tried to impart the idea that crime reflects a need for collective responsibility. This system eventually became established in the walled cities, where they were called courts of justice.

    During the monarchy of David, the people were heavily taxed, and a form of slavery known as debt bondage developed. Solomon also taxed the people, but used the money to build temples of justice.  Levitical assistants became the chief officials in these temples, in effect, creating a system of law schools for training in the art of cross-examination. These officials originated other reforms such as appeal, the right against self-incrimination, and the end to the public spectacle of executions.  There were two main forms of adjudication: trial by lot and trial by ordeal (Soares, 1915). In the trial by lot, two stones, named Urim and Thummim, were held in the pouch of the priest's robe.  They were cast in the name of Jehovah, and the one that came forth the most decided the trial.  In trial by ordeal, a deadly drink was given, and innocence was determined by survival.  Some of the judges were known for being corrupt, fixing cases to win popular support and selling outcomes in what was often a matter of sheer bribery. Foreigners, widows, and orphans were at a particular disadvantage since they did not have enough resources to befriend the courts.

    Since Hebrew law did not have a conception of mens rea, only behaviors could be used as trial evidence, but they did have the concept of righteousness, which included both inner disposition and outer deed.  Many people regard Job 29-31 as the highlight of the Bible for being a summary statement of what righteousness consists of.  Death by beheading was reserved for crimes where an evil inner disposition was apparent.  Women who sold their beauty and parents who failed to control their children were dealt with strictly, often by burning (Bogardus, 1960).  Kidnapping called for stoning or hanging.  Assault called for flogging, and property crimes were simply fined.  The Hebrews also developed the concept of refuge.  If a person unwillingly took the life of another (literally the claim of all murderers), they could flee to designated cities of refuge.  There, they could stay until the high priest of the original jurisdiction died. This resulted in the practice of using the church alter as a sanctuary for fugitives from justice.  Benefit of clergy, a practice that existed up till the Middle Ages, transferred the case to a church court. Although there is little mention of prisons in the Bible, it is likely that some cities of refuge were more prisons than cities.

    Mosaic law held that God's law was incorruptible.  People were beginning to see that no human institution could be anything like Yahweh's justice.  The composition of the Deuteronomic Code paved the way for prophets who would play a key role in the shaping of just institutions (Wallis 1912). The concept of mishpat as justice is tied up with evolution of the idea of Jehovah, or Jahweh, at first a tribal god, then a national god, and finally, a universal God.  The shift from a conception of Yahweh as petulant ruler of a chosen people to a just God of all people is profound.  The prophets acted as the eyes and ears of Yahweh to transmit and interpret His laws.  They faced two practical problems: what anthropologists call the corporate personality of the Hebrews (Lang 1985), and the growing separation of civil institutions from religious ones.

    Corporate personality denotes the idea of collective responsibility as a mode of personal behavior.  Acting together in unison as a sort of psychic community, the Hebrews were reluctant but obligated to extend their ideas about righteousness outside their social group to ensure the aversion of God's punishment, e.g. famines, drought, blight, plague, earthquakes, foreign invasions, and the fulfillment of creation until the day of final judgment, i.e. historical linearism, a teleology of progressive and gradual improvement.  This conception of worldly brotherliness divided the responsibility for evil equally among all. If any member of the group sinned, the whole group was considered to have sinned.  Belief in Yahweh demanded non-individualism.

    Separation of church and state is relatively unknown in a theocracy, but the monarchy period was a time when the Hebrews had the resources to invade other lands.  Spiritually, however, they were compelled to love their neighbors.  Ploger (1968) addressed how this dilemma was resolved by shifting from a historical to messianic eschatology.  In the former, a vengeful God destroys one's enemies. In the latter, one turns the other cheek to cause enemies greater humiliation, and offer them love and mutual salvation.  The theodicy of the prophets, the attempt to justify the ways of God to men, was that innocent people could suffer because of the sins of Hebrew society.  Disasters could be averted if Israel would seek social justice in all human arrangements, not just blindly follow its own divine destiny.  This shift directed attention to legalistic idealism and the practical ways that law can reflect love and the just ordering of social life.

    First and foremost on the list for the Hebrew prophets were laws intended to shape human behavior through imitation, what they called redemptive laws.  Imitation of God was to be the basis for ethical behavior (Birch 1991). Officials were required to be more virtuous in public life.  Matters dealing with property were to follow the principle of stewardship, leaving things as they were originally.  The principle of talio would be followed in principle since it served as the best deterrent for the rich.  Justice based on redemption would also mean no more disenfranchisement after a person paid for their crime.  The influence of a bad environment upon character was to be considered along with excuses and justifications for crime.  Excuses, such as insanity, infancy, and intoxication were exceptions to the actus reus requirement; justifications, such as self-defense and duress, were exceptions to the mens rea requirement.  For every new law considered, the socioethical injunctions of the prophets were consulted, and Yahweh's will was often "a compromise" between the King's law and what the poorest people in society wanted (Weber 1952:88).  Given that the Hebrews had an intricate trial system, these "compromises" may have resembled the modern plea-bargaining practice, but with the prophet as outside consultant.

    In strong, stable times, prophecy was forbidden and avoided as magic, or nabi. To touch the Pentateuch rendered the hands unclean, and to touch a prophet was considered dangerous.  Prophets, like Amos, rejected the nabi role because too many people demanded proof of spiritual gifts.  They also distanced themselves from priestly intellectuals who held that ritualism, sacrifice, and scholarship were the way to salvation. They were doomsayers, unallowed to teach disciples, unable to receive payments or fees for their services.  Weber (1963) provides a typology of the many prophets, and some did take money for their services, but most substituted prestige for material advantage.  The condemnation of magic was the main source of prophetic credibility (Berger 1963).

    Ethical monotheism spread among the people. As early as Moses, the whoredom of temple prostitution was attacked as an improper way to salvation. Orgies of sexual ecstasy, music, dance, drinking, and smoking were condemned as extravagances of the idle rich and inappropriate ways to achieve divine revelation.  Baal worship was distinguished from the transcendental character of Yahweh worship.  Prophets admonished pleasures of the flesh, and compared idleness and self indulgence with the realm of condemned spirits.  Officials and those better off were enjoined to become active, to spend more time doing well-placed acts of kindness and charity.  The prophets proclaimed that mishpat required social activism.  To be idle or indecisive was as evil as doing harm. The concept of social justice denotes just such activism.

    The Hebrew prophets wanted to create institutions that reflected Yahweh's justice.  Their goal was nothing other than peace on earth.  The prophets ventured into the cities and sought audiences with politically important persons.  There, they would demonstrate a technique known as divine revelation, involving an ecstatic seizure, facial contortions, breathlessness, paralysis, unconsciousness, or waking dreams.  There was little speaking in tongues as the prophets tried to make their revelations communicable.  Only as a last resort did they use divine speech and then only in metaphor, e.g. an almond bough or basket of fruit.  The prophets insisted that ordinary people could communicate with Yahweh too, in fact, that this God was the only one who would talk with you about His plan if you would listen.  This reminded leaders of how pure, simple, direct, and non-bureaucratic Yahweh wanted social institutions to be.  Of the many prophets, six can truly be called the great prophets, in chronological order, Amos, Hosea, Micah, Isaiah, Jeremiah, and Ezekiel. Only four lived during the eighth century, Amos, Micah, Isaiah, and Hosea. Jeremiah and Ezekiel are sixth century prophets during the Babylonian exile period. Deutero-Isaiah, who is not to be confused with the earlier Isaiah, also lived during and after the exile period. It is worth noting their individual contributions.

    Amos the Unafraid was a modest sheepherder who spoke for Yahweh and warned that the people had defaulted on their covenant. He prophesized the doom of Israel at the hand of foreign invaders. He saw injustice everywhere, corruption, unfair business practice, mistreatment of the poor, and a general lack of humility. He is most often remembered as saying that those in power trample on the heads of the poor, and to let justice roll down (Amos 5:24).
Hosea the Long-Suffering was commanded by Yahweh to marry a temple prostitute who later deserted him. Hosea paralleled this to Israel's unfaithfulness to Yahweh. He also foresaw a period when Israel would be overcome by foreign invaders, but if the whole society repented, a whirlwind disaster (Hosea 8:7) could be averted. He advocated an attitude of pity toward offenders, emphasizing harmony and love at all costs. Bogardus (1960) regarded Hosea as an early activist for women's rights.

    Micah, Foe of the Cities, preached simplicity and a return to rural life where everyone would have their own fig tree. His three virtues are justice, kindness, and humility (Micah 6:8). He is often remembered for his pacifism, his notion of turning swords into plowshares. He established a free speech precedent for other prophets by forecasting total annihilation. Micah had an intense interest in criminal law, calling for expanded sanctions on those who stretch but not technically break the law. Bogardus (1960) labeled Micah as the first criminologist for his ability to describe the inner dispositions of the typical criminal.

    Isaiah of Jerusalem was a statesman and orator who had easy access to the courts. During times of political crisis, Isaiah took on the role of the prophet as a neutral figure in public affairs. He proclaimed that Israel will survive foreign invasion because of the coming of the Messiah. He attacked bribery and favoritism, and had a special advocacy for widows and orphans. His most famous passage (Isaiah 1:17) suggests that the state should take responsibility for children almost as a father of the people, or parens patriae.

    Jeremiah, Foe of Idolatry, moved to Jerusalem to find great men that could understand his prophecy. He foresaw inevitable doom, and preached a new covenant of restoration, reminding the powerful that it is their duty to see justice is done, especially for the fatherless, widows, and strangers. He advocated social service to resocialize offenders about their collective responsibility, calling this work the gathering of the remnant of the flock, which he also said would involve being fruitful and increasing (Jeremiah 23:3). 

    Ezekiel, Denier of Solidarity, preached an individualistic doctrine for the exiles in Babylonia. He denied worship ceremonies of mass ritual, saying Yahweh wanted people to transform themselves. He spoke of universal brotherhood, judging people equally before the law, and the possibility of true justice (Ezekiel 18:7). He believed more in free will than determinism as a cause of behavior.

    The Hebrew prophets were able carriers of Yahweh's ideal of social justice.  They exposed and helped change unethical practices in the administration of justice.  They softened penalties, eliminated corruption, and advocated social service in the name of universal brotherhood.  Their concerns for personal virtue, duty in public life, compromise in lawmaking, and righteousness go far beyond a mere characterization of them as moralists.  They were social activists, to be sure, because social justice meant being active.  But most importantly, they were astute observers, pronouncing on the practical ways in which social institutions can be improved to shape human behavior and administrators held to higher standards of accountability.  As Hoebel (1967) has said, the mantle of religion buttresses the law.  Social justice among the Hebrews demonstrates that while the law must be practical, the origin of good and just institutions can be found in a transcendent realm beyond experience, involving an imitation of God or response to the presence of God.

THE PROBLEM OF EUROCENTRIC BIAS

    While this lecture has been concerned with much historical detail, the influence of early civilizations, and the impact of the Bible, other perspectives must not be overlooked.  It is hoped enough particulars have been presented to enable an appreciation for ancient cultures and their ethical contributions to Western civilization.  Many of the sources referenced at the end of this lecture go into more exacting detail for the interested reader.  A good introduction to the essentials of history as applied to criminal justice is Johnson and Wolfe (1995), particularly on how the practices of the civilizations discussed here evolved through the Middle Ages.  Our knowledge of ancient criminal justice is, unfortunately, based on fragmentary evidence and conjecture.  In Mueller and Adler's (1995:70) words, "such societies had no institution which we could liken to modern criminal justice."  As an area of study sadly neglected by scholars, perhaps criminal justice history can be resurrected by the study of criminal justice ethics. 

    It is important the reader understand we have only covered ancient societies believed to be of some importance to the legacy of Western civilization.  Other societies, of equal or greater importance because of their inquiries into the origins of good and evil, are not discussed in this book.  Recommended is Hunt, Crotty & Crotty (1991) for a comprehensive overview of non-Western civilizations, and Hoebel (1967) for as good a starting place as any for the study of Native American and African contributions.  Case studies of these "other" societies would go far at overcoming what critics call the androcentric and eurocentric bias of a "westernized" approach.  However, study of the Western approach is not without its value.  It is the opinion presented here that before students tackle integrated perspectives, such as peacemaking criminology (Lozoff & Braswell 1989; Pepinsky & Quinney 1991), which attempt to unite both Eastern and Western philosophy and draw inspiration from Jesus, Buddha and Mohammed, they should have a solid foundation in Western thought and the classic Western contributions to world civilization.

    Actually, the question of whether there is a common morality across cultures is a matter of debate.  Cultural relativism would hold that there is no moral standard applicable to all societies.  To use one's own society as a standard to judge others would be to make the mistake of ethnocentrism.  In contrast, cultural universalism would posit that there are certain patterns of behavior, norms and values common to all social systems.  Neither approach should be taken as synonymous with conflict or consensus models of society (Leavitt 1990), and cross-cultural studies (which include ancient civilizations) should be distinguished from cross-national studies (which look at modern nation-states).  The route followed here has tried to be a middle route of historical particularism, looking for specific beliefs and practices that could be called criminal justice.  The following generalizations can be made.

    From the earliest times, societies tried to endow their practice of criminal justice with ethical considerations and infuse their laws with a sense of morality.  Law enactment appeared to originate from the need to express mercy, kindness, love and consistency.  Law enforcement attempted to seek neutrality, equality, or compromise.  The administration of justice sought to rectify, inspire, or redeem.  Corruption existed and external controls were experimented with.  Oath-taking (see Sorensen 1956 for a review of this practice) and other witness credibility procedures were implemented along with various other reforms in accordance with theology (Hoekema 1986).  Social justice was sought as a way of sanctioning sympathy for the underprivileged and achieving universalism.  Justice in antiquity often involved a brand of "soft" retributivism (Brien 1990) that brought about a fair and responsible sense of balance, more open and all-encompassing than leaving "an eye for an eye" in the hands of private parties.  Most importantly, the development of lex talionis was an exercise in leniency, not harshness, and it is perhaps better to characterize it as "just an eye for an eye, just a tooth for a tooth."

    Two themes appear to polarize the ethics of ancient criminal justice: mercy and cruelty.  The historical particulars do not constitute enough material to provide an in-depth analysis of these concepts, and certainly there are no formulaic approaches that can be developed.  The steps to ethical decision making by including God in your deliberations are found in a later lecture on Scholasticism.  It may be possible, however, to elaborate on mercy as an example of "soft" retributivism (Brien 1990) and cruelty as a comparative concept (Collins 1974).  It may also be possible to make some Biblical distinctions between mercy and justice.

THE CONCEPT OF MERCY

    Various institutional practices have existed regarding mercy and cruelty.  The criteria for inclusion under mercy would be any practice where there is no requirement to act (Brien 1990), thus, any temperate act which was part of the regular procedure would be excluded, such as pardons for executioners and allowing offenders to choose their own method of execution.  The criteria for inclusion under cruelty would be acts intended to prolong agony or humiliation more than death (Collins 1974), thus excluding hanging, burning, beheading and other forms of execution. It is obvious that ancient societies were driven by the twin poles of mercy and cruelty.  Some acts of mercy, like observing the offender and trepanation, would seem to be driven by scientific advances in criminal psychology and medicine; others appear driven by theology and a concern for the underprivileged.  Acts of cruelty appear driven by the need for the state to demonstrate power; others appear to tap into a transcendental realm of luck or fortune, e.g., trials by ordeal or lot.  The question of which is more like justice, mercy or cruelty, is difficult to answer.  The scarcity of evidence precludes our knowing the answer because there are many unknowns, but that doesn't mean we shouldn't try.

    In Hebrews 8:12, where Paul (the alleged author) recounts that famous line about God's law being written on the hearts of men, a Biblical distinction is made between mercy and justice.  From this view, mercy is something that a person must be deserving of.  Mercy requires some act which is known to be wholly or partially guilty, and that act is in need of forgiveness.  Justice, on the other hand, seems to reflect action needed for some act which is questionable; i.e., which may be wholly or partially innocent.  After all, that is what justice is supposed to be for -- deciding over the relative merits of equally plausible claims.  Mercy is reserved for implausible claims which have no hope of being judged on their merits. 

    Therefore, mercy may very well be the master concept of justice for the ancients.  It is not the same as their conception of social justice, but it is their bipolar opposite to cruelty and represents the quest for doing something about evil.  Mercy is variable; cruelty is constant.  There likely would have been various tests to determine "how much" mercy was sufficient or not, much in the same way our modern societies try to determine if a punishment is "humane" or not.  In deciphering what modern "cruelty" consists of, our courts have explicitly indicated that any step backwards is a step in the wrong direction, but we may have made a mistake by gradating punishments instead of rewards.  All that is really clear is our need to understand what has been passed through the ages, to not repeat mistakes and to emulate the good.  It is important to at least think about what went on in ancient times, to make best use of the available evidence, and to speculate when appropriate.  Unlocking the mysteries behind the origins of justice would greatly augment the study of criminal justice ethics.

INTERNET RESOURCES
14 Ways to Define Mercy
Ancient Egyptian Law and Jurisprudence
Ancient Egyptian Law and Legal System
Encyclopedia Article on Religious Ethics
Law Buzz Story Chapters on The Code of Hammurabi
The Hebrew Religion Prophetic Revolution
The Internet Sacred Text Archive
The Online Bible Gateway
The Social Visions of the Hebrew Bible
What Jesus and the Bible Said about Crime and Sin

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