WHAT is the oldest legal document that is still legally valid — in the sense of one that can be presented in court?
There are a number of legal documents vying for being the oldest, and much depends on what yardsticks we determine them by.
The oldest legal enactment is the ‘law code’ (a complete system of laws) called the Ur-Nammu Yasasi — the Law-Code of Ur-Nammu, enacted during the reign of Ur-Nammu (2047?–2030 BC), the Sumerian founder and king of the Third Dynasty of Ur in southern Mesopotamia.
The Code is written in the Sumerian language on clay tablets and dates from the 21st century BC. Therefore it’s over 4,000 years old.
It was discovered in 1952 by the Russian-American archaeologist Samuel Kramer at the site of the ancient Nippur (or “Enlil City”) in modern-day Nuffar city in south-central Iraq.
But the Ur-Nammu Code is oldest only in archaeological terms. It doesn’t qualify on the score of being legally valid document. The provisions in the Code has no force of law in Iraq or anywhere else — though its legal precepts obviously exist in varying degrees in the laws of many modern-day nations.
Statute of Marlborough 1267
The Statute of Marlborough 1267 (regnal 52 Hen 3 cc. 1, 4, 5, 23) is oldest legal statute (i.e. primary legislation) still in force — but only in terms of just two chapters. It was originally 29 chapters. Four chapters remained in legal force until only two remained since 2007:—
Three chapters (1, 4 and 15) are otherwise known as the Distress Act 1267 (c. 1 regnal 52 Hen 3 cc. 1, 4, 15):— Parts of the Tribunals, Courts and Enforcement Act 2007 has abolished chapters 4 and 15, so only chapter 1 remains law.
One chapter (23) is the Waste Act 1267 (regnal 52 Hen 3 c. 23):— The bulk of the chapter remains law but the first paragraph was repealed by the Statute Law Revision and Civil Procedure Act 1881. The gist of chapter 23 is to prevent tenant farmers from ruining or selling the land.
Those two surviving chapters (1 and 23) are up for axing from the statute books, as announced by the UK government’s Law Commission in mid-2015.
The Statute of Marlborough ranks older than the Magna Carta for the interesting reasons given below.
Magna Carta [1215, 1216, 1217, 1225] 1297
The Magna Carta is the oldest and best-known legal document in world history, but much of it is misunderstood or shrouded in modern political mythology.
Lipsync Lawyer can tell you as an English lawyer that anyone who tries to present the Magna Carta in court will be considered a right royal idiot.
In modern UK law, the Magna Carta carries little weight because rights are protected under other relevant legislation.
In reality, the Magna Carta is not statute — it is a peace treaty, so it qualifies more precisely as a legal document. The original 1215 master document had vanished centuries ago, and all of the versions now in official archives are just exemplifications (modified copies).
The statute Magna Carta (1297) (c.9 regnal 25 Edw 1 cc. 1, 9, 29) is the one received in law, not the earlier ones. This was a modified reissue under Edward I, based on the 1225 exemplification (which was considered a faulty copy even during the 13th century). None of the pre-1297 exemplifications are ‘statute.’
The reason for the 1297 document being statute was chiefly because the original treaty that King John sealed in 1215 was a dead letter — it was repudiated by King and Church within 10 weeks of its signing and issue. There was nothing to replace it for the next decade.
It was also because the 1225 exemplification (under Henry III, son of King John) was meant to supersede the 1215 dead letter. But the 1225 reissue was regarded as faulty even in those days because it was overly abridged (more than one-third of the original provisions removed) and many of the 1225 and earlier provisions were already then considered archaic or unenforceable (or both).
The 1297 statute contained 37 clauses, and 34 of them have been repealed as redundant from the 1820s onwards. Only three clauses are still in force:—
(Clause 1) Freedom of the English Church (which means the Church is theoretically outside the normal operations of English law: it isn’t in practice);
(Clause 9) Special freedoms of the City of London and some other towns; and
(Clause 29) Trial by peers (equals) and the laws of the land, and no arbitrary arrest.
The world-famous clause 29 is the one that started the political myth that the Magna Carta gave rise to personal liberties and democracy.
In reality, none of the versions of Magna Carta even once (or even remotely) referred to the concept of democracy. The political myth started during or after the Glorious Revolution of 1688. It was reinforced by the newly independent America/USA in the 1780s, which looked to Magna Carta for their framework of freedoms and liberties. So relatively more of Magna Carta survives in U.S. law than in English law.
Clause 29 didn’t actually establish equal justice for all — because the Magna Carta drew clear distinctions between classes, nationalities and peoples, and the kind of justice appropriate to those distinctions.
The Magna Carta wasn’t the root of habeas corpus or the jury system (contrary to American beliefs). Habeas corpus was entirely a 15th-century English legal invention.
In other countries
Nicene Creed [AD 325]
Relevant in some Catholic and Eastern Orthodox countries, the Nicene canons and their amendments have legal force. These are the 20 canons adopted in the First Ecumenical Council of Nicaea in AD 325.
Interestingly, Canon 1 prohibits self-castration for Christians. Since it has the force of law in some countries, this should qualify as a legal document or statute.
I understand that the Torah (or parts of it) has force of secular law in Israel (and Jewish communities elsewhere in addition to local laws) for marriage, family matters, succession and probate, and perhaps other matters as well.
I don’t know much about this one (except for that portion of the stuff I learnt in law school). There may be some aspects of Islamic law that pre-date the rise of Islam and are still observed today. But going into this is blurring the line between religion, government and law. I mention this simply because it crops up in this kind of discussions.
The matter of Japanese law comes up quite often in discussions about which or what is the oldest legal document or law still in operation.
Japanese law was almost entirely overhauled during the Meiji Restoration (1868-1912) and moulded according to the German-Swiss model (as also adopted by China in pre-/post-1949).
The current Japanese criminal laws have the longest duration of operation — but that’s only in terms of Japanese history. They only trace back to the Meiji Criminal Code of 1907 at the earliest.
Often quoted in discussions is the date 660 BC. That only comes from the Japanese Emperor being the titular ruler since 660 BC. And that’s exactly the problem — it’s only titular.
Also problematic — the start line of Japanese emperors is clearly mythological. Japan as ‘Japan’ and a recognisable ‘state’ was described in Chinese records from ca. 1st century AD, and even then Japan was a collection of hundreds of little kingdoms. The only reliable dating is from Emperor Keitai ca. 6th century AD, but he didn’t rule all of Japan as we know it today.
Predictably, the item that seems to shock some people is about the Magna Carta — predictable because many doubts about it stem directly from the political mythology generated around it in the last 200 years.
Clause 1 (about the freedom of the English Church) is a common point of query. If the Church is theoretically outside the normal operations of English law — yet isn’t in practice — then why doesn’t it matter in practice if something is law? What’s the point of law if its application can be arbitrary?
This kind of doubt is very common among Americans or those with an U.S. state of understanding. They (rightly) understand that some of the silly, near-defunct laws (on the books in the USA) are rightly ignored (for instance, it is illegal to have sleeping donkey in your bathtub after 7 pm). Yet they seem unable to wrap their heads around something as far-reaching as Clause 1 — that it cannot be simply dismissed out of hand. Or can it?
Unfortunately, I have to be a little rude here at our American cousins, who are apt to view matters in that frame of mind.
Answer:— The reason it’s arbitrary to us in our present-day perspective. In the context of that particular time in the old days, ‘law’ was an engine of statehood, not a means for justice and fairness.
Originally written on 14 May 2016
© Lipsync Lawyer, 27 Dec 2016. (B16332)
Featured image: Toilet roll cores via Aunty Acid.
How to cite this post
Lipsync Lawyer. (2016 Dec 27). Oldest legally valid legal document. Blog post ID B16332. http://wp.me/p8dCZK-aD.