고대 근동 법전의 성격
The Character of Ancient Near Eastern Law Code
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What is the ancient Near Eastern law code? Is it a code similar to modern one? Or just law collections which consist of decisions made by babylonian king or royal judges? This is the old question unsettled so far not only among assyriologists and sumeriologists but also among many legal scholars. One group of scholars argued that the code is just royal apologia that was written for the purpose of justifying the ruling of kings of the time, another said that it is just scientific treatise used for educating, and the other argued that it is not a code but just law collections, that is to say, the compilation of precedents. All of these arguments are based on the fact that there is no evidence which proves that the code was cited in the court of the time. However, it is a hasty conclusion because it is possible that citing the code in the court was not necessary in the Near Eastern legal culture. This paper argued and defended the opinion that the code is law collections. The code was not just a compilation of unrelated decisions, but systematic construct of precedent used for solve real cases. It was similar to a statute. In England, a statute plays a role of revising the common law and often codifying some of the unwritten law. This is how the babylonian codes functioned.
Abstract
What is the ancient Near Eastern law code? Is it a code similar to modern one? Or just law collections which consist of decisions made by babylonian king or royal judges? This is the old question unsettled so far not only among assyriologists and sumeriologists but also among many legal scholars. One group of scholars argued that the code is just royal apologia that was written for the purpose of justifying the ruling of kings of the time, another said that it is just scientific treatise used for educating, and the other argued that it is not a code but just law collections, that is to say, the compilation of precedents. All of these arguments are based on the fact that there is no evidence which proves that the code was cited in the court of the time. However, it is a hasty conclusion because it is possible that citing the code in the court was not necessary in the Near Eastern legal culture. This paper argued and defended the opinion that the code is law collections. The code was not just a compilation of unrelated decisions, but systematic construct of precedent used for solve real cases. It was similar to a statute. In England, a statute plays a role of revising the common law and often codifying some of the unwritten law. This is how the babylonian codes functioned.
참고문헌 (51)
- 광신대학교 고대근동어연구소, "아카드어 사전" (2007), 광신대하교 출판부
- 김일수, "새로쓴 형법총론" (2007), 박영사
- 안성조, "기초법연구 제1권 － 언어･논리･역사 －" (2009), 경인문화사
- 안성조, "현대 형법학 제1권 - 이론과 방법 -" (2011), 경인문화사
- 이종근, "히브리 법사상" (2004), 삼육대학교출판부
- 이종근, "메소포타미아의 법사상" (2008), 삼육대학교출판부
- 이형국, "형법총론" (2007), 법문사
- 임웅, "형법총론" (2005), 법문사
- 조규창, "비교법(上)" (2005), 소화
- 한상수, "함무라비법전" (2008), 인제대학교 출판부
- 니시다 다이이찌로, "중국형법사 연구" (1998), 신서원
- 시마다 마사오, "아시아법사" (2000), 서경문화사
- 정동호, "고대법" (2009), 세창출판사
- Pamela Barmash, "Homicide in Ancient Israel, the Ancient Near East, and Traditional Societies", 박사, pp.1999
- Jean Bottéro, "Mesopotamia: Writing, Reasoning, and the Gods. In: The Code of Hammurabi" (1982), Chicago: University of Chicago Press
- Johnathan Burnside, "God, Justice, and Society: Aspects of Law and Legality in the Bible" (2011), New York: Oxford University Press
- Martin J. Buss, "Theory and Method in Biblical and Cuneiform Law. In: Legal Science and Legislation" (1994), Sheffield: Sheffield Academic Press
- Umberto Cassuto, "A Commentary on the Book of Exodus" (1967), Jerusalem: Magnes Press
- G.R. Driver, "The Assyrian Laws" (1935), Oxford: Clarendon Press
- G.R. Driver, "The Babylonian Laws Vol. I － Legal Commentary －" (1956), Oxford: Clarendon Press
- C. Edwards, "The World's Earliest Laws" (1934), London: Watts & Co
- G.R. Driver, "The Babylonian Laws Vol. II － Text Translation －" (1955), Oxford: Clarendon Press
- Samuel Greengus, "Theory and Method in Biblical and Cuneiform Law. In: Some Issues Relating to the Comparability of Law and the Coherence of the Legal Tradition" (1994), Sheffield: Sheffield Academic Press
- Harry A. Hoffner, "The Laws of The Hittites: A Critical Edition" (1997), Leiden; New York: Brill
- Thorkild Jakobson, "Toward the Image of Tammuz and Other Essays on Mesopotamian History and Culture. In: An Ancient Mesopotamian Trial for Homicide" (1970), Cambridge: Harvard University Press
- C.H.W. Johns, "Babylonian and Assyrian Laws, Contracts and Letters, Union" (1999), The Lawbook Exchange
- F.R. Kraus, "Ein Zentrales Problem des altmesopotamischen Rechtes: Was ist der Codex Hammurabi", Genava N.S, IIIV (1960)
- F.R. Kraus, "Königliche Verfügungen in altbabylonischer Zeit, in Studia et Documenta ad Iuris Orientis Antiqui Pertinentia Vol. xi" (1984), Brill
- J.J. Finkelstein, "Ammisaduqa’s Edict and the Babylonian “Law Code”", Journal of Cuneiform Studies, 15, pp.91~ (1961)
- R. Hasse, "Einführung in das Studium keilschriftlicher Rechtsquellen" (1965), Wiesbaden: Otto Harrassowitz
- J. Klima, "Reallexikon der Assyriologie. In: Gesetze" (1932), Berlin; Leipzig: W. de Gruyter
- Paul Koschaker, "Rechtsvergleichende Studien zur Gesetzgebung Hammurapis: Königs von Babylon" (1917), Leipzig: Veit & Comp
- B. Landsberger, "I. In: Die Babylonischen Termini für Gesetz und Recht" (1939), Leiden: Brill
- Sophie Lafont, "Theory and Method in Biblical and Cuneiform Law. In: Ancient Near Eastern Laws: Continuity and Pluralism" (1994), Sheffield: Sheffield Academic Press
- Niels Peter Lemche, "Justice in Western Asia in Antiquity, Or: Why No Laws Were Needed!", Chi.-Kent. L.Rev, 70, pp.1695~ (1995)
- Victor H. Matthews, "Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development. In: The Anthropology of Slavery in the Covenant Code" (1994), Sheffield: Sheffield Academic Press
- A.T. Olmstead, "History of the Persian Empire" (1948), Chicago: University of Chicago Press
- A.Leo. Oppenheim, "Ancient Mesopotamia: Portrait of A Dead Civilization" (1977), Chicago; London: University of Chicago Press
- Eckart Otto, "Theory and Method in Biblical and Cuneiform Law. In: Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law" (1994), Sheffield: Sheffield Academic Press
- W. Preiser, "Festschrift für Karl Engisch. In: Zur Rechtliche Natur der altorientalischen Gesetz" (1969), Frankfurt am Main: Vittorio Klostermann
- Martha T. Roth, "Law Collections from Mesopotamia and Asia Minor 2nd ed" (1997), Atlanta, Georgia: Scholars Press
- Martha T. Roth, "Mesopotamian Legal Traditions and The Laws of Hammurabi", Chi.-Kent L. Rev, 71, pp.13~ (1995)
- H.W.F. Saggs, "The Greatness That Was Babylon" (1962), New York: Hawthorn Books
- R. VerSteeg, "Early Mesopotamian Law" (2000), Durham, North Carolina: Carolina Academic Press
- Reuven Yaron, "The Laws of Eshnunna" (1988), Jerusalem: The Magnes Press, The Hebrew University; Leiden: E.J. Brill
- Moshe Weinfeld, "Deuteronomy and the Deuteronomic School" (1972), Oxford: Clarendon Press
- Raymond Westbrook, "Biblical and Cuneiform Law Codes", Revue Biblique, 92 (1985)
- Raymond Westbrook, "Cuneiform Law Codes and the Origins of Legislation", Zeitschrift für Assyriologie und Vorderasiatische Archäologie, 79, pp.201~ (1989)
- Raymond Westbrook, "A History of Ancient Near Eastern Law, Vol.I. In: The Character of Ancient Near Eastern Law" (2003), Leiden; Boston: Brill
- Raymond Westbrook, "Chiers de la Revue Biblique 26. In: Studies in Biblical and Cuneiform Law" (1988), Paris: J. Gabalda
- Raymond Westbrook, "Theory and Method in Biblical and Cuneiform Law. In: What is the Covenant Code" (1994), Sheffield: Sheffield Academic Press