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Springborg, Patricia --- "Constitutionalism ancient and oriental" [2019] ELECD 2424; in Landau, David; Lerner, Hanna (eds), "Comparative Constitution Making" (Edward Elgar Publishing, 2019) 363

Book Title: Comparative Constitution Making

Editor(s): Landau, David; Lerner, Hanna

Publisher: Edward Elgar Publishing

Section: Chapter 17

Section Title: Constitutionalism ancient and oriental

Author(s): Springborg, Patricia

Number of pages: 21

Abstract/Description:

Constitutionalism in ancient and Near Eastern society is more richly documented than for any period before the modern era. It is instructive that the original impetus for constitutionalism seems to have been economic, to standardize laws of contract, around the Mediterranean Lake, and along the Steppe and Silk trading roads, which operated as conveyors not only of goods, but also of concepts and technologies, giving rise to opportunities for mutual influence. The Akkadian empires of Sargon and Naramsin of third millennium Mesopotamia were already based on the caravan trade, due to the lack in the Fertile Crescent of metals and even basic building materials such as stone and wood. The great codifications of the common law of Mesopotamia, the laws of Bililama of c. 2250 BC, the laws of Lipit Ishtar, King of Isin of c. 2217-7 BC, the laws of Eshnunna, c. 2000 BC, the Hammurabi Code, c.1850 BC, and the Assyrian Laws, c.1400 BC, all grew out of the need to establish laws of contract and exchange that were uniform throughout the trading area. These law codes, often in many copies, records of court procedures, and voluminous litigation against contractual default, malfeasance, etc., are testimony to the vigour of the commercial societies that framed them. They are accompanied by schedules of rights and duties that are also testimony to thriving concepts of freedom and justice that foreshadow modern constitutionalism, if they do not in fact inform it. Moreover, they have served to falsify nineteenth-century evolutionary historical schemas formulated in Gemeinschaft-Gesellschaft, or status to contract terms, which still constitute the sociological canon, underpinning theories of modernization and development in the contemporary social sciences. As in the case of Roman Law, it was essentially private and economic law that the Near Eastern law codices codified, and there are important continuities between the Near Eastern cities and the Greek and Roman city-states in terms of family structures and institutions of governance that they presuppose.