This page intentionally left blank International Law in Antiquity This study of the origins of international law combines techniques of intellectual history and historiography to investigate the earliest developments of the law of nations. The book examines the sources, processes, and doctrines of international legal obligation in antiquity to reevaluate the critical attributes of international law. David J. Bederman focuses on three essential areas in which law influenced ancient State relations – diplomacy, treaty-making, and warfare – in a detailed analysis of international relations in the Near East (2800–700 BCE), the Greek city-States (500–338 BCE), and Rome (358–168 BCE). Containing up-to-date literature and archeological evidence, this study does not merely catalogue instances of recognition by ancient States of these seminal features of international law: it accounts for recurrent patterns of thinking and practice. This comprehensive analysis of international law and State relations in ancient times provides a fascinating study for lawyers and academics, ancient historians and classicists alike. david j. bederman is Professor of Law at Emory University’s School of Law in Atlanta, Georgia. His previous publications cover such diverse subjects as international legal theory and history, the law of the sea and international environment, the law of State responsibility and international claims, US constitutional law of foreign relations, and maritime law. cambridge studies in international and comparative law This series (established in 1946 by Professors Gutteridge, Hersch Lauterpacht and McNair) is a forum for high quality studies in the fields of public and private international and comparative law. Although these are distinct sub-disciplines, developments since 1946 confirm their interrelationship. Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees, and international criminal law) international and national systems interact. National constitutional arrangements relating to “foreign affairs”, and to the implementation of international norms, are a focus of attention. Professor Sir Robert Jennings edited the series from 1981. Following his retirement as General Editor, an editorial board has been created and Cambridge University Press has recommitted itself to the series, affirming its broad scope. The board welcomes works of a theoretical or interdisciplinary character, and those focusing on new approaches to international or comparative law or conflict of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages. General Editors James Crawford David Johnston Editorial Board Professor Hilary Charlesworth University of Adelaide Mr John Collier Trinity Hall, Cambridge Professor Lori Damrosch Columbia University Law School Professor John Dugard Director, Research Centre for International Law, University of Cambridge Professor Mary-Ann Glendon Harvard Law School Professor Christopher Greenwood London School of Economics Professor Hein Kötz Max-Planck-Institut, Hamburg Professor D. M. McRae University of Ottawa Professor Onuma Yasuaki University of Tokyo Advisory Committee Professor D. W. Bowett QC Judge Rosalyn Higgins QC Professor Sir Robert Jennings QC Professor J. A. Jolowicz QC Professor Sir Eli Lauterpacht QC Professor Kurt Lipstein Judge Stephen Schwebel A list of books in the series can be found at the end of this volume International Law in Antiquity David J. Bederman The Pitt Building, Trumpington Street, Cambridge, United Kingdom The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcón 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org © David J. Bederman, 2004 First published in printed format 2001 ISBN 0-511-03166-1 eBook (Adobe Reader) ISBN 0-521-79197-9 hardback For my Father, who sets the highest standards Contents Acknowledgmentspage xi List of abbreviationsxiii Mapsxiv 1 A methodological introduction: this study and its limitations1 Times and places2 Comparison and relativism4 Sources, process, and doctrines6 Texts and sources8 The modern critique of ancient international law11 2State relations in ancient civilizations16 The concepts of State and State system and their relevance to antiquity16 The ancient Near East: Mesopotamia, Syria, and Egypt21 Sumer and Mesopotamia22 The great Near Eastern empires, 1400–1150 BCE24 Syria and Palestine, 966–700 BCE28 The Greek city-States, 500–338 BCE31 Rome and its competitors, 358–168 BCE41 3 Religion and the sources of a law of nations in antiquity48 The metaphysics of ancient international law51 Good faith and breaking faith51 Four fragments54 Religion59 Nationalism and universalism59 Making and breaking oaths61 Ritual and custom73 Reason and rhetoric79 Conclusion85 ix x contents 4 Making friends: diplomats and foreign visitors in ancient times88 The reception and protection of diplomats and embassies88 Some general concepts88 The formalities of diplomacy95 Privileges and immunities of diplomats106 The status and protection of alien visitors120 Agreements: xenoi,asylia,isopoliteia, andsymbola124 The proxeniainstitution130 Western Mediterranean analogues134 Ritualized friendship in an ancient law of nations135 5Making faith: treaty practices amongst ancient peoples137 Beginnings of the ancient treaty tradition in the Near East137 General suppositions and the earliest texts137 The Babylonians, Hittites, and Assyrians141 The Egyptians and the treaty with the Hittites of 1280 BCE146 Ancient Israelite practice150 The Greek city-States154 Terminology and types of treaties154 The nature of Greek treaty-making171 Western Mediterranean departures in treaty-making183 Patterns of treaty-making by Western Mediterranean cultures183 Formalities and enforcement of Roman treaties194 Ancient treaty-making: enforcement, sophistication, tradition, and universality202 6 Making war: the commencement and conduct of hostilities in ancient times207 Declarations of war208 Justifications for commencing hostilities208 The rituals for starting a war and the legal consequences of an outbreak of hostilities227 Laws of war242 Restraint in warfare242 Immunities in warfare249 After the war260 Managing conflict in antiquity263 7Civilization and community in the ancient mind267 Topical bibliography281 Index303 Acknowledgments This book has been over a decade in the making. It began its life as my dissertation for a PhD in Laws at the University of London. In that stage of development, I was grateful to Professor (now Judge) Rosalyn Higgins and Professor Patricia Birnie at the London School of Economics, who both pro- vided valuable guidance at the early, planning stages of this project. At the conclusion of writing, I was given significant direction by Professor William E. Butler of University College London, and by Professor James Crawford of Cambridge University. I have also immensely profited from countless conversations with scores of colleagues and scholars, drawn from the international law, classics, ancient history, and political theory disciplines. It would be impossible for me to credit all of these contacts, but I would particularly acknowledge the advice of such people as Robert Bauslaugh, Hal Berman, Michael Broyde, Herbert Hausmaninger, Mark Janis, David Kennedy, Martti Koskenniemi, Benedict Kingsbury, Charles Reid, Cees Roelofsen, Alan Watson, and John Witte. I owe a special debt of gratitude to Professor Aldo Lupi of Georgia State University, who took such especial care in checking and correcting my Latin and Greek usages, and to Professor Michael Broyde, of Emory University School of Law, who reviewed my ancient Hebrew terminology. The dauntingly broad scope of this work placed heavy burdens on the many reference librarians that I have been privileged to be associated with in my career. I owe a substantial debt to the librarians of the Peace Palace Library in The Hague; the University of Virginia School of Law Library; and, most of all, to my colleagues at the Emory University School of Law, Robert W. Woodruff, and Pitts Theological Libraries. I should also point out that an early version of what is now Chapter 3 of this volume appeared in a collection of essays entitled The Influence of Relig- ion on the Development of International Law (Mark W. Janis, ed. 1991 & 1999). xi xii acknowledgments Finally, I must acknowledge the sacrifices of my wife and daughter. Any scholar’s commitment to a project of this sort comes always at a substantial cost to one’s family. I just hope that the costs have been modest enough, and compensated (to some degree) with my attention, respect, and love. As always, I fully accept responsibility for the errors and omissions found in this volume. Despite my best efforts, I am sure many will be identified. Interdisciplinary scholarship is always a risky undertaking, and a book