1.2.2 Precedent and Custom
There is some evidence that previous decisions were regarded as a
source of law. In the epilogue to his law code, Hammurabi advises
one who is wronged to consult the list of his “just judgments” on
the stele so as to know his rights. Etiological narratives in the Hebrew
Bible trace the origin of certain rules of law back to an earlier judg-
ment in an individual case, which then became a rule of universal
validity (Num. 27:1–11; 1 Sam. 30). In the trial of Jeremiah (sixth
century) the acquittal of an earlier prophet on a similar charge is
cited before the court in his favor ( Jer. 26:17–19). Otherwise, cita-
tion of cases before a court as in modern systems is not attested.
Much of the law applied by the courts was probably customary
law, derived not from known cases but from timeless tradition. The
Hittite Instructions to the Commander of the Border Guard demon-
strate respect for local custom (iii 9–14):Furthermore, the Commander of the Border Guard, the town gover-
nor, and the elders shall judge cases carefully and bring them to clo-
sure. As from olden times, as the binding rule has been followed
regarding abomination in the districts: in any town in which they have
practiced execution, let them continue to execute; in any town where
they have practiced banishment, let them continue to banish....1.2.3 Legislation
Legislation is used here to include all orders issued by the sovereign,
his officials or the local authorities. Most of these would not meet
the criterion set out by John Austin for legislation:... where it obliges generally to acts or forbearances of a class, a com-
mand is a law or rule. But where it obliges to a specific act or for-
bearance, or to acts or forbearances which it determines specifically
or individually, a command is occasional or particular.^11
The ancient Near Eastern orders are ad hoc commands, mostly con-
cerning the rights of individuals, or temporary expedients to meet(^11) Austin, The Province of Jurisprudence Determined(1832), 25–26. The example given
by Austin is of great relevance: “If Parliament prohibited simply the exportation of
corn, either for a given period or indefinitely, it would establish a law or rule: a
kind or sort of acts being determined by the command, and acts of that kind or
sort being generally forbidden. But an order issued by Parliament to meet an
impending scarcity, and stopping the exportation of corn then shipped in port,
would not be a law or rule, though issued by the sovereign legislature.”
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