If there is anywhere in the ancient Near East where pre-state con-
ditions could be said to have prevailed, it is in relations between
states, where no central authority existed. Even in that area, how-
ever, we find already in the third millennium a recognized system
of customary international law and treaties governing disputes between
states. It is true that self-help (i.e., through war) was the sole means
of redress, but the protagonists followed the rule of law in having
recourse to it or, at least, paid lip-service to the rule of law. Indeed,
there were even rules of international law imposing liability on a
state to investigate the robbery or murder of foreign nationals on its
territory, to pursue the culprits, and if not found, to pay compen-
sation, as in internal law. There could be no clearer manifestation
of a developed criminal law with universally accepted principles.
At the same time, the ancient system bore little resemblance to
modern criminal law, either in its aims or its methods. Revenge was
an integral part of the system, as was composition. Justice was deemed
to be served by punishments that would be unacceptable, on per-
sons who would be considered innocent and, in some cases, for
crimes that would not be recognized, in modern law.8.3 The Mental Element
A basic principle of modern criminal law is that a crime must have
two elements: a guilty act and a guilty state of mind: premeditation,
intention, awareness, recklessness, or some other level of consciousness.
In practice, there exist in every legal system crimes where the demand
for a mental element is dispensed with or is very attenuated.
Again, the scholarship on ancient law has been muddled by an
old theory, that of Erfolgshaftung. According to that theory, primitive
criminal law did not distinguish between deliberate and accidental
harm, attributing guilt purely on the basis of the consequences of
an act. Scholars have agonized, in my view unnecessarily so, over
whether this condition still prevailed in the ancient Near East.^52 There
is ample evidence in the sources of distinctions between deliberate
and accidental acts, and even of nuances in between, such as fore-
seeability of consequences. What has given grounds for confusion is
that the paragraphs of the law codes do not systematically mention(^52) E.g., Cardascia, “Le caractère volontaire...”
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