Civil Collaborative Law: The Road Less Travelled

By Sherrie Abney

Collaborative Law began with a family lawyer who was disenchanted with the negative effects of litigation on clients and their lawyers. Out of his frustration, a new dispute resolution process was born. Lawyers soon realized that there are many reasons that the benefits of the collaborative process should be extended beyond family cases. Collaborative lawyers discovered that disputes could be settled quickly at a fraction of the cost of ordinary litigation due to a completely different approach to negotiations. In addition, the process offers a confidential forum away from the courthouse, and scheduling is at the discretion of the parties rather than court dockets.
Knowing that the majority of classes in law schools emphasize an adversarial approach to dispute resolution, this author set out to compile materials to teach law and business students about this new non-adversarial form of dispute resolution which focuses on the clients and their interests and concerns rather than the lawyers and the legal system. Beginning with a history of the law and continuing through a review of several forms of dispute resolution, the text then addresses the collaborative process and provides questions and exercises for readers to use in developing collaborative skills of their own.

• Language: English
• Publisher: Trafford Publishing
• Release date: Sep 12, 2011
• ISBN: 9781426972591

Sherrie Abney

Sherrie R. Abney is a practicing lawyer, mediator, arbitrator, and adjunct professor of law. An advocate of non-adversarial forms of dispute resolution, she trains lawyers and judges in the collaborative process in the United States and abroad. In the spring of 2011, Ms. Abney taught the first three hour course on Collaborative Law to be offered any place in the world using the first draft of this text as cousre material.

Book preview

Also by Sherrie R. Abney

Avoiding Litigation

A Guide to Civil Collaborative Law

CIVIL COLLABORATIVE LAW

the road less travelled

By Sherrie R. Abney

with contributions by

Norman Solovay

Trafford Publishing

Bloomington, Indiana

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© Copyright 2011 Sherrie R. Abney.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the written prior permission of the author.

Printed in the United States of America.

isbn: 978-1-4269-7257-7 (sc)

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Library of Congress Control Number: 2011909838

Trafford rev. 08/19/2011

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Forward

I’ve experienced the growth of collaborative practice for over 20 years—from an initiation by one person, to a blossoming of the practice with from 20,000 to 30,000 practitioners in 20 countries.  This amazing growth has happened almost exclusively within the context of family law.  A logical question I hear a lot is  "Why hasn’t collaborative practice taken hold in the area of civil law."  My answer is that it is beginning to happen in civil law and when it takes hold, the growth of collaborative practice in that area will equal or exceed the growth that has happened in family law! (Remember, how mediation got its start in family conflict resolution, and after proving itself there, leaped into civil law with gusto.)

One of the key parties that is making a difference in midwifing collaborative practice in the field of civil law is Sherrie Abney.  Training is required to facilitate the shift from litigation to collaboration.  Sherrie provides such training and this book you are holding in your hands is an excellent introduction to such training.  Hopefully this book and subsequent training will create the initial energy for civil-law practitioners to experience the break-through in their area of expertise that we family-law practitioners continue to experience as we support clients to achieve collaborative agreements.

Stu Webb

Minneapolis, Minnesota

Preface

The purpose of this text is to provide a practical resource for lawyers and law students desiring to develop skills in the practice of Collaborative Law.  The text begins with the history of dispute resolution.  This overview is included to provide an understanding of the progression of dispute resolution from tyrannical laws to the realization that focusing on the individual circumstances of disputes by addressing each party’s interests, concerns, and goals expedites resolution and provides the most satisfying results for the participants.

Law students generally read a number of cases and statutes that address particular areas of the law.  Since few resources of this sort are available for the study of the collaborative process, several aspects of the collaborative process will be discussed more than once; however, each time a specific topic is mentioned, it will be from a slightly different perspective and new information is added to provide a more comprehensive understanding of a particular facet of the process.  The collaborative process is the antithesis of litigation and quite different from other forms of dispute resolution; consequently, the process may raise a number of questions that some readers must answer for themselves before understanding or appreciating the significance of this dispute resolution procedure.  

The author does not attempt to convince anyone that Collaborative Law is the answer for every lawyer, client, and dispute.  On the contrary, there are a number of requirements that those who would call themselves collaborative lawyers, their clients, the other parties, and the other parties’ lawyers must meet if there is to be an expectation of a successful collaborative result.  Unlike litigation, the process is voluntary, so no one is forced to participate.  The prerequisite for participation is a promise to forego the ordinary tools and strategies familiar to litigation and commit to a non-adversarial, interest-based procedure that is set out in a written contract.  

The collaborative process relies on the innovative abilities of the participants working in unison to create solutions that exceed any results that might be obtainable under the law.  Consequently, readers are asked to set aside all knowledge of the law for a moment in order to free their imaginations and consider the limitless possibilities and options available to participants in this dispute resolution procedure.

A number of assignments are at the end of each chapter.  The reader is encouraged to consider the problems posed in these exercises by comparing how the various situations would be handled in the collaborative process as opposed to how they are handled in litigation, arbitration, and/or mediation.

Read on and imagine how this process can bring good to the practice of law and provide relief to those in controversies.

The Author

Acknowledgements

Norman Solovay, Chair of McLaughlin & Stern’s Dispute Resolution Department, has been kind enough to contribute Chapter 18 and Appendix I to this text.  Mr. Solovay spent years as head of Holtzmann, Wise, & Shepard’s litigation department handling all sorts of matters including acting as general counsel to the Onassis interests and the investment banking firm of Allen & Company as well as representing many large corporations financed by Allen & Company.  During that time, Mr. Solovay was introduced to arbitration, and he gradually became interested in other forms of dispute resolution.

It is a privilege to include Mr. Solovay as one of my friends and colleagues, and an honor for him to allow his work to be included in this text.  Thank you, Norman.

Most writers have a bevy of people assisting them editing their work.  This author primarily had one person, Irma C. Howard.  Only a true friend would stick with you through the rigors of trying to get a text book into print.  Thank you Clare.  I could not have finished this without you.

Table of Contents

Forward

Preface

Acknowledgements

Chapter I

The History of Dispute Resolution

Chapter II

Forms of Dispute Resolution

Chapter III

Positional Bargaining v. Interest-based Negotiation

Chapter IV

Candidates for the Collaborative Process

Chapter V

An Overview of Collaborative Law

Chapter VI

The Participation Agreement

Chapter VII

The Protocols of Practice for Collaborative Lawyers

Chapter VIII

Expert Professionals in Civil Collaborative Law

Chapter IX

Introducing the Collaborative Process

Chapter X

Preparation for First Joint Meeting

Chapter XI

Discovering Interests and Goals

Chapter XII

Gathering Information

Chapter XIII

Developing Options

Chapter XIV

Evaluating Options

Chapter XV

Negotiating Resolution

Chapter XVI

Transferring the File to Litigation Counsel

Chapter XVII

Creating Models for Dispute Resolution a/k/a Overcoming the Fear of the Unknown

Chapter XVIII

Med-Arb:  What Is It and What Could It Have

Appendices

Appendix A – Comparison Chart

Appendix B – Employment Agreement

Appendix C – Participation Agreement

Appendix D – Protocols of Practice

Appendix E – Protocols for Client Screening

Appendix F – Expert Chart

Appendix G – Civil Collaborative Law Syllabus

Appendix H – RAM Manufacturing Case Study

Appendix I – Med-Arb Agreement Forms

Chapter I

The History of Dispute Resolution

The people’s good is the highest law.

Cicero

All living creatures experience conflict in some form and to some degree during their existence.  The history of man is a history of conflict, and an examination of history will reveal that man has developed many approaches to conflict management. When the source of conflict has involved a dispute between two people, solutions have ranged from killing one of the parties to the more civilized Golden Rule, which at times has been known as, He who has the gold rules.  The former solution was expedient and the latter managed to spare life, but these solutions seldom supplied the politically or financially weaker party with an equitable remedy.  Despite the fact that laws were said to be created to protect the weak, the widow, and the orphan, judgments were often rendered irrespective of the actual guilt or responsibility of the convicted party.

Although many cultures have developed varying methods of treating dispute resolution, most social groups have settled on a variation that involves the disputing parties presenting evidence to a third party in an attempt to lay all or a majority of the blame on someone other than themselves.  Once a decision is made by the third party trier of fact as to which party bears the most guilt (or responsibility), the party deemed responsible is punished and/or required to indemnify the party which is deemed to have been injured.  This basic approach to dispute resolution still dominates all so-called civilized societies today.  Modern cultures have adapted models for resolving disputes that have been improved to some degree over many obviously  flawed earlier versions, but most methods of dispute resolution are, nonetheless, still found wanting.

To understand the role of dispute resolution in our society, it is necessary to examine the history of law.  Since individuals do not need laws, laws have appeared as a result of the development of social groups.  There must be at least two people before a law can have meaning or effect.  As populations grow, opportunities for disputes increase, and the need for some sort of regulations or guidelines arises which results in laws being established by powerful individuals or entities in social groups.

Ancient Law in the Middle East

Laws of most of the inhabitants of the ancient Middle East were first recorded in cuneiform which is a writing system used by the ancient Sumerians.  Cuneiform literally means wedge-shaped.  The origin of these wedge-shaped characters may be traced back to the end of the 4th millennium BCE.  Civilizations that employed the cuneiform writing system included Mesopotamia, Egypt, Assyria, the Hebrews, and Hittites.  [I]t is not arbitrary to classify the laws of these civilizations as ‘cuneifrom’; indeed, it is a scientific necessity, because no other term covers all and only these laws.[1]

The codes of these ancient kingdoms were also similar in format.  Each began with a prologue praising the gods and establishing the importance of the author of the laws and decrees who claimed to have been chosen by a god to rule the people.  The codes ended with an epilogue filled with additional reasons that the people should follow the law, curses on those who did not heed the code, and blessings on those who obeyed.  The codes were not organized in the manner of modern statutes.  Decisions from prior cases were intermingled with decrees of the ruler and arranged in no special order.  

Mesopotamia

The first surviving laws were found in Mesopotamia.  Although there is reason to believe that there were laws recorded prior to the Code of Ur-Nammu, this is the oldest known surviving tablet containing a law code.  King Ur-Nammu of Ur (2112-2095 BCE) was given credit for creation of this code, but some historians believe that the code was the work of his son Shulgi.[2]  The code fragments which have been recovered have little information regarding the kind of evidence or proof of wrong doing that was required to render judgment in a dispute. The code simply states what would happen to a person who violated a law.  The laws were not written with dispute prevention in mind unless the fear of punishment was meant to be a deterrent to offenders.  The Ur-Nammu Code describes several offenses and the punishment that is met out once an offense has been committed.  In the portions of the code that were recovered, there is no mention of any requirement for the testimony of witnesses; however, there is reference to ordeal by water.[3]  Offenders were thrown into a river.  Good swimmers were considered innocent, but if the accused drowned, he or she was believed to be guilty.

Nearly all of the laws in the Ur-Nammu Code began with, If a man.... and continue with a description of an offense. The subjects of the laws are somewhat similar to the same concerns addressed in the laws of modern social groups.  If a man commits a murder, that man must be killed.  If a man commits a robbery, he will be killed.[4] Unlike later codes, this code did not require an eye for an eye.  If a man knocks out the eye of another man, he shall weigh out ½ mina of silver.[5]  The code also included a number of laws regarding the family and their slaves.  If a man’s slave-woman, comparing herself to her mistress, speaks insolently to her, her mouth shall be scoured with 1 quart of salt.[6]  Apparently salt was not as dear to the inhabitants of Ur as it was to many other early cultures.

Fragments of later codes include the Code of Lipit-Ishtar which dates approximately one hundred years after the Ur-Nammu Code.[7]  The recovered portions of the Lipit-Ishtar code address reimbursement and indemnity for theft of crops and injuries to property and animals as well as a man’s responsibility toward his children born by a woman outside his household.[8]

Eshnunna, a Sumerian city-state in lower Mesopotamia, was a popular trade route which had access to many precious animals, metals, stones and other exotic goods.[9] The numerous transactions and goods passing through the area required regulation by an authority in order to maintain the peace.  The Eshnunna Code was short lived since Hammurabi the king of Babylon in 1751 BCE conquered Eshnunna, and four years later the community was almost completely destroyed by flood.[10]

The Code of Hammurabi was established two hundred years after the Code of Eshnunna, and is the best preserved and most complete of the law codes which have been discovered thus far.  The laws are numbered from 1 to 282 (numbers 13 and 66-99 are missing) and are inscribed in Old Babylonian cuneiform script on an eight-foot tall stele.

The image on the stele is done in bas-relief on basalt, and the text completely covers the bottom portion of the stele.  The text contains a list of crimes and their various punishments, as well as settlements for common disputes and guidelines for citizens’ conduct.  The Code does not provide opportunity for explanations or excuses, though it does imply one’s right to present evidence.  The stele was openly displayed for all to see; thus, no man could plead ignorance of the law as an excuse.  Scholars, however, presume that few people could read in that era, as literacy was primarily the domain of scribes....  It [the stele] is currently on display at the Louvre Museum in Paris.[11]

Hammurabi was the first ruler to organize the law and present it to the general public.  The carved image on the stele depicts the king presenting himself to a god.  Having the code literally carved in stone and placed in a public area gave citizens an outline of the boundaries for their behavior and predicted consequences for any violations of those boundaries.  By this time, most tribal custom had disappeared from the law of the code.  The code is state-law, and self-help, blood feud, and marriage by capture are absent; however, family solidarity, district responsibility, ordeal, and the lex talionis,[12] are primitive features that still remained.[13]

The Prologue of the Code of Hammurabi states:

...then Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash [the sun god], and enlighten the land, to further the well-being of mankind.[14]

Man cannot function well in chaos.  It is important for social groups to have some reasonable expectations and predictability to their lives.  The creation of laws establishes boundaries for acceptable behavior and predicts the consequences that offenders will face if they ignore the limits set by the law.  When rule is believed to be by divine right, the logical conclusion is that the laws are the will of the gods, and those who offend or ignore laws ignore the gods and should be punished.  

By claiming to rule by divine right, Hammurabi granted himself the equivalent of supernatural power over the people.  The majority of the people, believing that the gods chose their king, were obedient without question.  The assertion of divine right by their king created an atmosphere for the population that allowed a relatively smooth progression from anarchy and tribal custom to rule by the organized authority of a legal code.  

The Hammurabi Code begins by discouraging false witness.  The punishment for any who would ensnare or falsely accuse another was severe.  According to the code if the person accused of a crime were to leap into the river and die, the person accusing him or her would take possession of the accused person’s house.  However, if the accused lived, the accused would take possession of the house that belonged to the accuser, and the accuser would be put to death.[15] The death penalty was used as a deterrent for perjury, but if the accused was a good swimmer, the death penalty would also deter a truthful witness from reporting a crime since the accuser could be put to death if the accused were tried by ordeal and survived.

Judges were encouraged to do their best to render just decisions.  If a judge made a written decision that was later found to be in error, the judge was required to pay twelve times the fine that he had set in the case, and he was permanently removed from the bench.[16]  There is no explanation regarding what constituted error; however, error may have been a dishonest act rather than a simple difference in opinion since appeals were not uncommon. Appeal to the king was allowed and is well attested.  The judges at Babylon seem to have formed a superior court to those of provincial towns, but a defendant might elect to answer the charge before the local court, and refuse to plead at Babylon.[17]  The Hammurabi Code is evidence of a progression from a few codified rules to a fairly complete judicial system.  Babylonian Courts recognized a form of venue by allowing the accused to answer in his local community.  The idea of the right to have a decision reviewed and that of hearing the lawsuit in the venue of the offender has survived to this day.  

There seems to have been three classes of citizens in Babylon during this period: the amelu, the muskinu, and the ardu.  The amelu included the king and his court and landed citizens.  This class had the most privileges and responsibilities and paid the highest fines, fees, and taxes.  The muskinu were free men who most likely did not own land.  A muskinu paid smaller fines and fees than the amelu.  The muskinus were the smallest in number and might be considered the middle class except that it appears that some slaves may have been in a better financial position than the muskinu.  The ardu was a slave and accounted for a large part of the population.  Although slaves were chattel, slaves could own other slaves as well as property.  Slaves who married slaves would often be set up in a business or on a farm and pay their owner an annual rent.  Men slaves sometimes married free women, and then their children were born free.  Slaves could be adopted or buy their own freedom and become an amelu. The slave population consisted of captives brought back from wars and freemen who had been placed in slavery due to punishment for a crime or nonpayment of debt.[18]

The code treated offenders from various classes differently.  If livestock was stolen that belonged to a god or the king, anyone who stole it was ordered to pay thirtyfold; if the animal belonged to a freed man of the king, the fine was tenfold; and if the thief had nothing with which to pay, he was put to death.[19]  Restitution was mandatory to avoid the death penalty.  A man could not plead poverty as an excuse for non-payment and expect to receive mercy under the code.

The courts began to place more importance on two forms of evidence: the testimony of witnesses and written agreements such as contracts for the purchase of chattels, leases, and deeds.  Since literacy was probably not common, most people relied on witnesses to prove their cases.  If someone’s property was found in the possession of another and the person having possession claimed that he had bought the property from a merchant, the person (accuser) who lost the property was required to bring witnesses that could testify that the accuser was the owner of the property, and the person who was currently in possession of the property would bring witnesses that he had purchased the property in a legitimate transaction.  If the merchant was proved the thief, he was put to death.  The consequence for either party not being able to produce witnesses was death, and a witness that did not appear before the court within six months of being summoned was fined.[20]  Apparently, cases could continue for long periods giving the witnesses ample opportunity to forget facts or have their testimony otherwise influenced.

The death penalty was common for many crimes which included but were not limited to robbery or breaking and entering, stealing a child from anyone, hiding a runaway slave of another, failing to pay a mercenary hired to take that person’s place in war, stealing a gift presented to a captain by the king, adultery, incest, overcharging for drink in a tavern, and harboring conspirators in a tavern.  The forms of death penalties mentioned in the code included drowning, burning, hanging, and impaling.  There are also references to maiming as punishment.  If a son strike his father, his hands shall be hewn off.  If a man put out the eye of another man, his eye shall be put out.  If he break another man’s bone, his bone shall be broken.  If the slave of a freed man strike the body of a freed man, his ear shall be cut off.[21]  If a patient did not survive an operation requiring a large incision, the physician’s hands were cut off unless the patient was a slave in which case the physician was required to replace the slave with another slave.[22]

Construction law was relatively simple.  If a builder built a house that caved in due to poor construction and the collapse of the house killed the owner, the builder was put to death.  If the son of the owner was killed, the son of the builder was put to death.[23]   This penalty appears to be unjust for the son of the builder but it is in keeping with the idea of lex talionis.  Warranties were required for the workmanship of shipbuilders, but punishment for defects was less harsh.  If a ship was not tight, the shipbuilder was required to rebuild the boat and return it to the owner.[24]

Labor law was included in the code setting wages for sailors, field laborers, ox drivers, herdsmen, the use of an ox and an ass as well as many other occupations and situations.[25]  Money is seldom mentioned in the code.  Payments for labor or rent were made in measures of corn,[26] sesame, or oil.  Farmers were expected to work hard and get along with their neighbors.  If water flowed across their property, the owners or sharecroppers had riparian rights and responsibilities, If a man let the water, and the water overflow the plantation of his neighbor, he shall pay ten gur of corn for every gan of land.[27]

There was an early form of crop insurance:

If anyone owe a debt for a loan, and a storm prostrates the grain, or the harvest fail, or the grain does not grow for lack of water; in that year he need not give his creditor any grain, he washes his debt-tablet in water and pays no rent for this year.[28]

There was also risk sharing or insuring in the event of theft.  If a man swore under oath that the specific items had been stolen, the community was to reimburse his loss:  

If anyone is committing a robbery and is caught, then he shall be put to death....  If the robber is not caught, then shall he who was robbed claim under oath the amount of his loss; then shall the community... on whose ground and territory and in whose domain it was compensate him for the goods stolen.[29]

There are references to many aspects of family relations from purchasing a wife for a son to the discipline of an unruly child.  Divorce was allowed, but a man was not allowed to desert his wife and leave his family without the ability to care for themselves.

The code appears to have been a collection of laws that gradually came into existence on an as needed basis after the occurrence of a dispute or the commission of a crime that was serious enough to require attention.  Perhaps this pattern of evolution is why the majority of the Hammurabi Code focused on the past, looking back at blame rather than forward to prevention and solutions.

Ancient Egypt

No legal code has been found in Ancient Egypt that can compare to the Code of Hammurabi.  The legal codes such as the Demotic Legal Code of Hermopolis West were guidelines rather than law compilations in the modern sense.  They were collected by the priests and kept in their archives....[30]  Early records indicate that the law was administered by government officials without any persons appointed to preside as professional judges, nor were there government buildings set aside for court rooms.  Egyptian society operated with reference to decrees of the king, having the force of law, together with the precedents established in previous cases.[31] There is evidence that disputes were heard from time to time by a vizier or other government official, and that decisions in the disputes followed those of prior cases or mandates in decrees.[32]

Ancient Egyptians were not a peaceful lot as evidenced by the many records of disputes involving every area of law.  The number of disputes increased with the growing population and the integration of laws from other social groups that eventually found their way into the Egyptian culture:

Under the Ptolemies a second Greek legal tradition was introduced and cases were decided according to the language in which they were heard.  Women, favoured by Egyptian traditions which gave them more rights than the restrictive Greek customs, did better under the Demotic than the Greek laws.  Ptolemy II integrated a Greek translation of the Jewish Torah into the official code, which was applicable for Jewish subjects.[33]

By the second century BCE, the law was being enforced by police in the cities and by the army in remote regions.  The police carried staffs and were accompanied by trained monkeys and dogs as evidenced by a scene in the tomb of Khnumhotep and Niankhkhnum depicting a policeman with a monkey on a leash that is holding the leg of a thief.[34]  Criminals were presumed guilty unless proven innocent.  Beating and mutilation were the most prevalent forms of punishment; however, beatings were not limited to punishment.  Witnesses were also examined by beating with a rod.[35]  The death penalty was normally used sparingly, and trial by ordeal was not mentioned.  The priests, who had little to do with the early judicial system, later began to take over some of the judicial powers previously held by government officials.  When there was no precedent from a prior case or a decree to assist in determining the outcome of a case, an oracle was used to identify the guilty party.  Parties sometimes appealed these decisions.    

Egypt experienced several periods of chaos when the officials administering the law were corrupt or there was a total absence of law enforcement.  The Great Edict of Horemheb was issued during one of these periods.  A copy of the edict was found carved on a stone slab at Karnak.  Horemheb’s penalties were harsh in order to rid the land of evil and lying.  Any official who takes the craft [boat] of any citizen of the army or of any person who is in the whole land, the law shall be executed against him, in that his nose shall be cut off, and he shall be sent to Tha[ru].[36] There was a city in Tharu, appropriately called Rhinocolura that was established in the wilderness to receive offenders who had lost their noses and were exiled for extortion, theft, detaining another’s slave, or hindering free access to the Nile.  Army troops were also a target for reform:  

Two divisions of troops which are in the field, one in the southern region, the other in the northern region, stole hides in the whole land....  They went from house to house, beating and plundering without leaving a hide of the people.... ...beginning with this day, the law shall be executed against him, by beating him a hundred blows, opening five wound, and taking from him by force the hides which he took."[37]

To remove this evil from the land, Horemheb searched for and found two officials that he placed over the upper and lower regions of Egypt.  The king describes these men as, perfect in speech, excellent in good qualities, knowing how to judge the innermost heart, hearing the words of the palace, the laws of the judgment-hall.[38]  The officials were warned not to take bribes and to keep themselves above reproach.

Now, as for any official or any priest (concerning whom) it shall be heard, saying: ‘He sits, to execute judgment among the official staff appointed for judgment, and he commits a crime against justice therein;’ it shall be against him a capital crime.  Behold, my majesty has done this, to improve the laws of Egypt, in order to cause that another should not be //////.[39]

Egyptians seldom were sentenced to death for a crime.  When the death penalty was used, it was reserved for very serious offenses.  The fact that Horemheb decreed the death penalty for corrupt judges infers that corruption must have been a serious problem during his reign.

In addition to decrees and edicts, Egyptian rulers and officials issued numerous teachings in the form of instructions, maxims, and precepts to guide their subjects in dealing with authority, their families, and others citizens.  A document dated 2100 BCE and called the Instruction of Merikare warns subjects of the kingdom to avoid conflict and the people who could lead them into trouble.  A talker is a mischief-maker, suppress him, kill [him], erase his name, [destroy] his kinsfolk, suppress the remembrance of him and his partisans who love him.[40]  The talker was very likely a rabble-rouser.  Egyptian subjects were to avoid violence and violent men who were also considered talkers.  Instructions of Merikare also included acts of omission: if anyone was aware of wrongdoing, he was told he must ...accuse him [the person committing the offense] before the entourage and suppress [him], for he is a rebel indeed.[41]

Instructions and maxims were authored by officials and influential people to urge appropriate behavior.  One set of maxims authored during the 5th dynasty are attributed to a vizier called Ptah-Hotep who, upon reaching old age, wrote advice to his son:

Be not arrogant because of that which you know; deal with the ignorant as with the learned; for the barriers of art are not closed, no artist being in possession of the perfection to which he should aspire.  But good words are more difficult to find than the emerald, for it is by slaves that that is discovered among the rocks.[42]

The vizier’s directions continued with guidance on avoiding an argument with a disputant while he is hot.  He states that to avoid an argument with such a person is a strength and not a weakness.  He encourages his son to adhere to the conduct of his ancestors and to instruct his own son in the same manner.  The importance of respect for all people and especially superiors is emphasized.  A wise man will look after his house, love and care for his wife, and avoid impropriety with other women.  Should the son become elevated in society, he is cautioned to remain humble:

If you have become great after having been little, if you have become rich after having been poor, when you are at the head of the city, know how not to take advantage of the fact that you have reached the first rank, harden not your heart because of your elevation; you are become only the administrator, the prefect, of the provisions which belong to Ptah.  Put not behind you the neighbor who is like you; be unto him as a companion.[43]

Ancient Egyptians lived in a much different environment than most other cultures.  Practically all of the population lived on or very near the east bank of the Nile.  Rulers were required to maintain control over this very long, narrow strip of land.  The west bank of the Nile was reserved for burying the dead.  With no one living on the west bank, grave robbers could easily ravage the tombs of rich and influential former rulers and officials.  The people were entirely dependent upon the Nile to water their crops and provide a primary means of travel.  The majority of the general population was poor and, at times, barely had enough food to survive.  Corrupt officials, police, and army troops regulated river traffic, collected excessive taxes in order to keep part of the tax for themselves, stole from the farmers and herdsmen, and allowed grave robbers to purchase their silence.  These conditions may be the reason the ruling class spent a great deal of time instructing the population on maintaining an honest, peaceful co-existence rather than concentrating on organizing a legal code.

The Hittites

Three groups of people inhabited the area that is now known as Turkey during the 2nd millennium BCE.  They were the Hittites, Hattians and Hurrians.  Of the three groups, the Hittites became the most powerful.  The Hittite king was not only the chief ruler, military leader, and supreme judge but also the earthly deputy of the storm god; upon dying, he himself became a god.[44]

It is believed that the Hittites migrated from an area beyond the Black Sea which is now known as Bulgaria and the Ukraine.  Settling among the Hurrian people, they adapted many of the local customs including the cuneiform writing system.  One of the first cultures to smelt iron, the Hittites began controlling sources of metal and trade routes.  In 1595 BCE, they conquered Hammurabi’s army and ransacked Babylon.  The Hittites had a tumultuous relationship with Egypt which culminated in the battle at Kadesh in 1276 BCE.  

The battle at Kadesh resulted in a peace treaty between the Hittite king Hattusili and the Egyptian pharaoh Ramses II.  This agreement is why the Hittites are remembered as the earliest known people to establish international relations by way of a written treaty.  An enlarged copy of a cuneiform tablet containing a copy of the peace treaty which was found at Hattusha hangs in the United Nations Building in New York demonstrating that international treaties have a history going back to the earliest civilizations.[45]

The style and format of Hittite law was similar to the Code of Hammurabi, and was written in the language of nesili:

The Hittite language is known from the approximately 25,000 tablets or fragments of tablets preserved in the archives of Bogazköy-Hattusa, excavated by German archaeologists beginning in 1905.  In Hittite cuneiform texts, the language is referred to as nesili (nasili) language of Nesa, or nesumnili language of the Neshite.[46]

It was among these tablets that the Hittite laws were discovered:

The Collection of roughly 200 Hittite laws, complied in a single work in two tablets, contain laws of different periods showing a constant development towards milder and more humane punishment.  The most primitive clause prescribes drawing and quartering for an agricultural offense.[47]

The punishment for injuring another person under the Code of the Nesilim was less severe than the Code of Hammurabi.  The harsher Hittite punishment was reserved for disobedience, If anyone oppose the judgment of the king, his house shall become a ruin.  If anyone oppose the judgment of a lord, his head shall be cut off.  If a slave rise against his master, he shall go into the pit.[48]  The laws were extremely permissive regarding sexual activity with the exception of incest and rape.  The majority of the Hittites appear to have been peasants and craftsmen who were not hesitant to adopt the languages and customs of their neighbors and the people that they conquered.

The Laws of Ancient Israel

According to Jewish tradition, the law in Israel began when God created man and gave him dominion over all Eden with the exception of the tree of knowledge.[49]  Adam disobeyed God and ate of the tree breaking this covenant.  The descendants of Adam continued to offend God until the world was filled with wickedness, and except for Noah, his sons, and the inhabitants of the ark, God destroyed all living creatures with the Flood.  After the waters receded, God made a covenant with Noah that he would never destroy the world with water again, and because Noah and his sons had obeyed God, their faith was rewarded with the reestablishment of man’s dominion over the earth.[50] Noah then received seven commandments from God.  The Jews believe that these commandments are meant for observance by the entire human race, and every Jew and non-Jew should obey them.  These commandments are called the Seven Noahide or Noahic Laws and contain one positive and six negative precepts:

1) to establish courts of justice; 2)not to commit blasphemy; 3) not to commit idolatry; 4) not to commit incest and adultery; 5) not to commit bloodshed; 6) not to commit robbery; and 7) not to eat flesh cut from a living animal.  These commandments are fairly simple and straightforward, and most of them are recognized by most of the world as sound moral principles.  Any non-Jew who follows these laws has a place in the world to come.[51]

The first law, establishment of courts of justice, anticipated the continuing need for methods of dispute resolution in order for mankind to be able to live in social groups.

The next important event in Jewish law was what is sometimes called the Ten Commandments which Moses directly received from God in the 13th Century BCE.  The Jews refer to these laws or mitzvot as the Ten Declarations or Aseret ha-Dibrot.  Scripture claims that these laws were written by the hand of God on two tablets.  The first tablet contained the laws regarding man’s relationship with God, and the second contained laws regarding man’s relationship with others.  The laws of both tablets were considered equally important, but if a law regarding a relationship with man was in conflict with a law regarding man’s relationship with God, the law regarding man’s relationship with man would prevail.  For instance, if a man was found starving on shabbat, the Jew should break the law of shabbat to provide food to the man in need.  The starving man needs food; God does not need obedience.  To break a law that related to God (bein adam la-Makom) was not as bad as breaking a law regarding other people (bein adam la-chavero) because breaking a law relating to another person required the offender to not only be forgiven by God, but he must also seek the forgiveness of the offended person.[52]

According to Judaism, the Aseret haDibrot identifies the following ten categories of mitzvot. Other religions divide this passage differently.  According to Jewish tradition, these are categories of the 613 mitzvot that are binding only upon Jews.  The only mitzvot binding upon gentiles are the seven Noahic commandments.

The Aseret ha—Dibrot

1.    Belief in Gd.  This category is derived from the declaration in Ex. 20:2, beginning, I am the Lrd, your Gd...

2.    Prohibition of Improper Worship.  This category is derived from Ex. 20:36, beginning, You shall not have other gods.... It encompasses within it the prohibition against the worship of other gods as well as the prohibition of improper forms of worship of the one true Gd, such as worshiping Gd through an idol.

3.    Prohibition of Oaths.  This category is derived from Ex. 20:7, beginning, You shall not take the name of the Lrd your Gd in vain...  This includes prohibitions against perjury, breaking or delaying the performance of vows or promises, and speaking Gd’s name or swearing unnecessarily.

4.    Observance of Sacred Times.  This category is derived from Ex. 20:8, beginning, Remember the Sabbath day...  It encompasses all mitzvot related to Shabbat, holidays, or other sacred time.

5.    Respect for Parents and Teachers.  This category is derived from Ex. 20:12, beginning, Honor your father and mother...

6.    Prohibition of Physically Harming a Person.  This category is derived from Ex. 20:13, saying, You shall not murder.

7.    Prohibition of Sexual Immorality.  This category is derived from Ex. 20:13, saying, You shall not commit adultery.

8.    Prohibition of Theft.  This category is derived from Ex. 20:13, saying, You shall not steal.  It includes within it both outright robbery as well as various forms of theft by deception and unethical business practices.  It also includes kidnapping, which is essentially stealing a person.

9.    Prohibition of Harming a Person through Speech.  This category is derived from Ex. 20:13, saying, You shall not bear false witness against your neighbor.  It includes all forms of lashon hara (sins relating to speech).

10.    Prohibition of Coveting.  This category is derived from Ex. 20:14, beginning, You shall not covet your neighbor’s house...[53]

Christianity and Judaism both observe the ten declarations or commandments, but there are numerous variations in their interpretation and translation.  Thou shalt not kill, and thou shalt not murder pertain to two totally different situations; thus, the choice of interpretations can give different meaning to what many would consider the same commandment.  Moreover, Jewish law has expanded the scope and application of the ten declarations to include a multitude of relationships with God and man as well as religious, moral, dietary, family, criminal, and agricultural practices.

Of the 613 laws which Jewish scholars derived from the Aseret haDibrot, some were positive or affirmative and others negative.  An affirmative commandment simply means that something must be done rather than a negative commandment requiring that some act or behavior be avoided.  For example: Jews were commanded that the Court shall pass sentence of death by decapitation with the sword.  This is an affirmative law requiring an act in a particular situation.  Despite disagreement over the order of the list and the exact wording of the mitzvot, Jewish scholars all agree that there are 613 commandments with 248 being positive and 365 negative.      After the destruction of the Temple in 70 CE, a number of the laws could not be observed since they related to sacrifice and offerings which could only be made in the Temple.  Other laws that could no longer be practiced regard the King, the court system, and agriculture. Some laws apply only inside of Israel.  Currently, the laws that are observed will depend upon the form of Judaism that is being practiced.  The Orthodox Jew can still observe many of the original laws.  Rabbi Israel Meir Kagan...has identified 77 positive and 194 negative mitzovt which can be observed outside of Israel today.[54]

The Pentateuch or Torah, which is composed of the first five books of the Bible, contains the basis for all 613 mitzvot.  Authorship of these books has generally been attributed to Moses, with the exception of the last few verses of Deuteronomy that describe his death.  No writings of Moses have survived; yet, references to him codifying the law are found in the Pentateuch.  Five times the narratives claim that Moses kept written records (Ex. 17:14; 24:4, 34:27-28; Num. 33:2; and Deut 31:9, 24-26).  Even with a generous interpretation of the extent of these writings, they do not amount to more than a fifth of the total Pentateuch....[55]  Evidence refutes the idea that Moses actually authored all five books; nevertheless, the original commandments were received by Moses; it was he who began the interpretation and application of the laws; and Moses who established the courts of justice for the Hebrew people.  

Jewish laws were comprehensive in their regulation of the Israelites, and to keep them ever mindful of the law, the people were commanded to bind the law in leather pouches on their heads and arms and to nail the Mezuzah, a container that held a scroll of scripture, to the entrances of their houses.[56]  Jews could find a law to regulate every aspect of their daily activities: do not marry a gentile; lend to aliens at interest; do not eat the flesh of unclean beasts; do not eat flesh with milk; do not muzzle a beast while it is working; do not favor a great man while trying a case; never settle in the land of Egypt; do not allow anyone practicing witchcraft to live; do not tattoo the body; men shall not wear women’s clothing; women shall not wear men’s clothing; and do not destroy fruit trees during a war.

Having many laws provides many opportunities for disputes.  Israel’s system of dispute resolution was established by Moses while he was leading the Israelites through the wilderness after their exodus from Egypt.  Jethro, Moses’ father-in-law, came to the camp of the Israelites and observed Moses hearing disputes of the people from morning until evening.  Jethro told Moses that he would not be able to continue handling the resolution of all the people’s disputes alone.  Jethro instructed Moses to appoint trustworthy men from among the people to hear disputes.  Moses would handle only those cases that involved facts that had no legal precedent or that involved complicated situations.  So Moses chose able men and made them rule over thousands, of hundreds, of fifties, and of tens to judge the people.[57]

As the population grew, so did the need for additional judges to preside over Israel’s judicial system.  After Moses died, cases that had no precedent or that were too difficult for the local magistrates were taken to places appointed by God and presented to the priest or judge for a decision.  The people were commanded to be careful to do all that they were directed and to follow all of the instructions they were given by the priests.  The penalty for disobedience to a decision by the court was death.[58]

Jewish law is remarkable in that, with the exception of the Pentateuch, the law was passed from generation to generation orally without the benefit of any written code. When the Temple was destroyed in 70CE, the Jewish legal and social systems were unable to continue to function in the same manner.  Judaism could no longer maintain a system of oral scholarship, so the rabbis began to record the laws in writing.  In the 3rd century, the laws were complied into the Mishnah.  Almost immediately scholars began to interpret the Mishnah, and their work was called the Gemara.  These two works taken together are the Talmud.  As the centuries passed, social and economic changes required additional interpretations and applications.  This resulted in the Halakhah (the Way or the Path) which is composed of ancient laws, ordinances, history, fables, and ethical teachings.  The Halakhah is continually revised to meet the needs of the Jews.  The standard legal code for Jews today is the Shulkhan Arukh which was first published in the 16th century.

The Laws of Ancient Greece

Ancient Greeks lived in a number of city-states that employed a variety of legal systems based on tribal background and history.  Of all city-states, the laws of Athens have emerged as the most commonly known.  The first record of Athenian law was the code written by Draco in the 7th century BCE.  Under the Draconic constitution, punishment for practically every crime was death whether the crime was serious or of little import.  The severity of Draco’s Code was memorialized in the term Draconian law, which is still used today.

Athenians were ruled by aristocrats called the eupatridae who owned the best land and controlled the government.  The eupatridae suppressed the lower classes by excluding them from participation in governing activities and forcing many farmers into debt which the farmers often were unable to pay resulting in them being sold into slavery.  When conditions had deteriorated to the verge of revolution, all the people turned to Solon to find a solution for their problems.  When Solon, an Athenian statesman and poet, was approached by the citizens of Athens to rescue their city-state, he faced the enormous task of implementing economic, political, and legal reforms.[59]

Solon’s first act was to cancel all debt and free citizens that had been sold into slavery.  Next, Solon prohibited the exportation of grain in order to relieve the starving lower classes, and passed laws recognizing a new set of weights and measures.  A number of other laws were enacted to alleviate poverty and increase trade.  Solon divided citizens into four classes based on income, and eliminated the aristocracy’s control over government.  All of the extreme penalties in Draco’s code were purged with the exception of the laws regarding homicide.  

Athens had two factions which often engaged in power struggles and attempted to exercise control over the city-state.  Laws were passed to address any who would seek to overthrow the government, and a process was created to impeach officials who abused their official powers.  While some citizens plotted to gain influence and control in Athens, others were totally indifferent to the governing body and would accept any man as a government official without complaint.  Solon addressed the apathetic segment of the population by enacting a law declaring that anyone who would not take sides with one of the parties in times of disputes would lose his rights as a citizen. When Solon’s work was finally finished, the aristocracy was angry at their loss of power; and the poor were angry that Solon had not taken control and divided up all of the eupatridae’s land.  Nevertheless, the people agreed to accept his changes since the alternative would have been chaos.[60]

Solon believed that the wealthy Attic citizens were the primary reason for most of Athens’ problems.  He had the opportunity to rule Athens as a dictator, but he chose to establish a more democratic system of government enacting laws to create checks and balances between the political factions.  Being the poet that he was, Solon commented on the policy he adapted to use with the people:

I gave to the mass of the people such rank as befitted their need,

I took not away their honor, and I granted naught to their greed;

While those who were rich in power, who in wealth were glorious and great,

I bethought me that naught should befall them unworthy their splendour and state;

So I stood with my shield outstretched, and both were sale in its sight,

And I would not that either should triumph, when the triumph was not with right.....

But thus will the people best the voice of their leaders obey,

When neither too slack is the rein, nor violence holdeth the sway;

For indulgence breedeth a child, the presumption that spurns control,

When riches too great are poured upon men of unbalanced soul.[61]

Solon continued his poem with comments regarding those who wanted him to redistribute all of the land and those who were released from slavery with the abolition of debt.  The people continued to badger Solon concerning his laws until he realized that in endeavoring to treat all of the people fairly, he had failed to satisfy any of them.  Rather than continue to explain and defend his actions, Solon left Athens and did not return for ten years.

The administration of Athenian law lay with the magistrates, popular courts, and the Areopagus.  There were nine achons (magistrates) who shared religious, military and legal functions once performed by the king.  The earliest achons served for life.  Later their terms were reduced to ten years and still later to one year.  The Areopagus was composed of former achons.  Before citizens were allowed to serve as achons, they underwent an examination (dokimasia).  The examination included, ...their birth qualifications, physical fitness, treatment of parents, and military activity; at the end of their term, they underwent an examination (euthyna) of their conduct, especially financial, while in office.[62]

The classes eligible to serve as achons and the method of selection varied over the years as did their powers.  When achons were first appointed, they were charged with making decisions regarding both the facts and the law.  Later, their responsibilities changed, and they no longer sat in judgment at trials. Achons would preside over the hearings by inquiring into the matter, but they had no responsibility to instruct juries on the law or to render decisions in the cases.[63]

Athenian courts were called dicasteries.  Initially dicasteries functioned as appellate courts, but later became courts of original jurisdiction.  Each year 6,000 male volunteers over the age of 30 were chosen by lot to sit on the court panels.  Panels for criminal trials were composed of 500 dicast.  If the trial was extremely important, more than one dicastery would hear the case.  It was possible for as many as 1,500 dicasts to hear a single trial.  A private or civil case used 200 panelists.  Litigants usually spoke for themselves, but defendants could engage advocates to speak for them.  The dicasts acted in the capacity of judge and jury.  They did not discuss the facts or the law with one another before voting on a verdict.  Once all of the evidence had been heard, the verdict was determined by their majority vote.[64]  Dicasts were sworn to literally interpret the law without consideration for equity.  There were no appeals; however, the loser was allowed to bring an action against any witness who had given false testimony, and later, Solon’s laws made appeals part of the judicial