CHAPTER 5 THE EMERGENCE OF SUCCESSION LAW
In this chapter the notion of ‘succession law’ and its meaning shall be discussed.43 An
attempt will be made to indicate that succession law emerged from the ancient Egyptians’ belief in the afterlife and that the need for sustenance would lead to provisions made prior to death. These provisions represent the ‘birth’ of succession law and more specifically the ‘birth’ of the testamentary disposition. The question of what ‘documentation’ entails will be considered; for instance, does documentation only refer to written documentation? I shall explain what happened when someone died in ancient Egypt and the very important role of the ‘eldest son’. The discussion needs to be seen against the socio-economic background of the ancient Egyptians.
This chapter presents an exposition of the first signs of ancient Egyptian succession law.
The law of succession determines what happens to someone’s property after death. It is proposed that the importance of the belief in the afterlife would form the basis for law of succession in ancient Egypt and more specifically the testamentary disposition. The belief in the afterlife is part of , the principle of harmony, order and justice.
Together with the belief in the afterlife,maat it is necessary to take into consideration the socio-economic circumstances in ancient Egypt for an understanding of the emergence of succession law together with the important role the eldest son played
WHAT IS SUCCESSION LAW?
Before looking at succession law in ancient Egypt it is necessary to understand what is meant with succession law. The law of succession is basically concerned with the transfer of property, as vested in a person at his death, to another person or persons. This presupposes the existence of the notion of private property (property owned by a person). I am of the opinion that the question of succession does not arise where the property belongs to a group, a family, etc., but arises in a society, which recognises that 43 This chapter discusses a specific branch of law, namely succession law. In essence this chapter flows from the previous chapter since it focuses on a branch of general law, but also flows from Chapter 3. Chapter 5 gives an overview of this separate branch of law within the context of the socio-economic circumstances, the connection with the afterlife, and the basic tenets of succession law.
provision must be made for what needs to happen with the property when the owner of such property dies.
Succession law refers to the law applicable when someone dies, in other words, what happens to the assets, who takes care of the formalities, who inherits, etc. When a person dies, his assets pass by inheritance to people qualified to succeed the deceased (Schoeman & De Waal 2005:2). The rules of the law of succession determine who the qualified person or persons are and it also establishes the scope of the benefits (Schoeman & De Waal 2005:2). The law of succession is not always the most progressive or dynamic part of a civilisation’s legal system (Pestman 1969:59), which means that we are actually able to form a proper understanding of a civilisation’s idea of succession law. This is especially true in the case of ancient Egypt which was a more conservative and followed tradition, custom and precedent.Van der Merwe and Rowland (1997:1) define succession law as follows:
Erfreg is die geheel van regsreëls wat die oorgang van daardie bates van ‘noorledene wat vir distribusie onder bevoordeeldes vatbaar is, of die van ‘n anderwaaroor eersgenoemde beskik het, beheer.
Schoeman and De Waal translate the above as follows (2005:2):
The law of succession is the totality of the legal rules which control the transfer of those assets of the deceased which are subject to distribution among beneficiaries, or those assets of another over which the deceased had the power of disposal.
In essence, as Corbett, Hofmeyer and Kahn (2001:1) put it quite simply, ‘[t]he law of succession deals with the rules governing the devolution of the estate of a person upon death’.
Succession as a legal term, means, according to Burdick (1989:546) ‘an entering into the place and property rights of another’. It is effectively a way of acquiring legal rights whereby the rights of one person are transferred to another (Burdick 1989:546).
In Roman law the terms inheritance (hereditas) and succession (successio) are often used synonymously (Burdick 1989:546). In Roman law there may be succession to a successio singularis single or a particular right of another, or to a number of such rights which is referred to as (singular succession) (Burdick 1989:546-547). In Roman law there may also be a succession to all the proprietary rights and duties of another considered as a whole which is referred to as succession universalis or universal succession (Burdick 1989:546-547).
It is important to remember that the law of succession should always be studied within its broader social context (Schoeman & De Waal 2005:2). The law of succession, like the law of things, the law of obligations and of intellectual property, constitutes part of the law relating to patrimony, which is a subdivision of private law. Therefore, principles and rules pertaining to other parts of the law relating to patrimony often have a bearing on the law of succession (Schoeman & De Waal 2005:2). is concerned with the rules that As has already been mentioned, the law of succession control the transfer of proprietary rights in the assets of the deceased to his or her rightful successors (Schoeman & De Waal 2005:2). It is therefore apparent that the law of succession can only operate in a system that recognises the institution of private property. It therefore fulfils an important economic function with rules regulating the transfer of a deceased’s assets upon death according to Schoeman & De Waal (2005:2).
This economic function is supplemented by the principle of freedom of testation, which means a person may decide on the distribution of his or her assets after death (Schoeman & De Waal 2005:2).
In South Africa common law applies to testate succession (except if a court decides otherwise or a testator, living under customary law, prescribes otherwise in his will).
Regarding all intestate matters, the Intestate Succession Act 81 of 1987 applies. In South Africa succession can therefore take place either testate or intestate, but also, thirdly, in terms of a contract . ( ) contained in an antenuptial contract or a pactum successorium donatio mortis causa Corbett et al (2001:1) observe that the intestate succession branch is historically the oldest. In primitive legal systems the order of succession is fixed by custom and they contend that it cannot be changed by a will or testament. Corbett et al’s assumption will be considered when texts relating to succession law in ancient Egypt are being dealt with later in this thesis in order to determine if it was possible in ancient Egypt to change the customary intestate succession law.
South African law of intestate succession originates from 17th- century Holland and the principles and main institutions on testate succession law form part of Roman Dutch law (Corbett et al 2001:2). If a person dies without a will (or antenuptial agreement) assets are inherited in terms of the law of intestate succession. If a person has left a will (a testator) , his estate is inherited in terms of such a will, for the rules of the law of testate succession are then applicable. It is therefore possible in South African law to change the intestate law of succession by means of a will (testate succession law).
Schoeman and De Waal (2005:3) define a will as follows: ‘A will is a unilateral declaration of the wishes of the testator in which he sets out the way his assets must be apportioned after his death, to designated persons or institutions.’ The deceased’s estate includes his assets and liabilities, but today only the assets pass on to the beneficiaries.
In Roman law the beneficiary inherited both the assets and liabilities. However, not all
assets are inherited today; only the assets remaining after the deduction of debts and
other liabilities are inherited (Schoeman & De Waal 2005:3).
As Van der Merwe and Rowland (1997:3) observe, the beneficiaries are the heirs (heres) and the legatees. The heir is the residual beneficiary, and the legatee is someone to whom a specific item has been bequeathed (Van der Merwe & Rowland 1997:3). The legatee enjoys preference when it comes to the distribution of the estate, while the heir only comes into the picture once the legatee has received his or her benefit (Van der Merwe & Rowland 1997:3). Obviously legacy is only possible in testate succession (and not in intestate succession) as the legatee can only be nominated in a will (Van der Merwe & Rowland 1997:3).
In Roman law the executor, who was also the necessary heir (heres suus et necessarius) could be forced to accept his appointment (Van der Merwe & Rowland 1997:2). The had to pay debts, then legatees and thereafter the heirs (Van der Merwe
& Rowland 1997:2). In South Africa today the estate is administered by an executor in heres inter alia terms of the provisions of the Estates Act 66 of 1965, as amended, but in Roman law this function was executed by the heres (Van der Merwe & Rowland 1997:2).
The rules of the law of succession determine who the qualified beneficiaries are and also in my opinion establish the scope of the benefits. The rules of intestate succession apply where the deceased left no will, while the rules of testate succession apply where the deceased died with a will. The executor acts on behalf of the deceased in order to facilitate the process. With this background and understanding of what is meant by succession law, it is necessary to consider the socio-economic function of succession law in society
It is important to note that the law of succession also fulfils a social function (Schoeman & De Waal 2005:2). This social function refers specifically to maintaining and protecting the family as a social unit, which explains why the law of succession is also influenced by the social trends affecting the family (Schoeman & De Waal 2005:2). Intestate succession law, for example, prescribes that the immediate family members are the beneficiaries of the ’ estate.
For this reason it is important to understand the socio-economic life and norms in ancient Egypt, which should be taken into account when studying the first signs of the development of succession law in ancient Egypt. I am of the view that the social context of ancient Egypt is extremely important seeing that the idea was for the immediate family, specifically the children, to inherit in order to sustain the deceased, and also to keep the family property together. The inheritance could go to the immediate family by way of the basic or customary process, or alternatively, in accordance to some instruction given by the deceased prior to death (like the pious foundation) as will be discussed later in this chapter and in Chapter 6. In practical terms someone had to take responsibility at the death of the 44 for certain matters pertaining to the burial process, as well as for matters pertainingdecuius to the deceased’s property, of which the distribution of the inheritance was an important part. Of particular importance in ancient Egypt was the initial importance of and duty to sustain the deceased. This duty of managing the estate fell onto the ‘eldest son’ who acted in a way very similar to the modern-day executor of a deceased estate.
To describe social behaviour it is important to analyse the motivation behind actions, and not simply the actions themselves as listed in the text (Eyre1992:207). Although such an analysis might often seem subjective, it could well be the only way to put an isolated legal text into its wider context (Eyre 1992:207). It is therefore important to understand the ancient Egyptians world and the wider influences of their motivations, influenced by among others religion, family and economic factors when considering texts.
The law of succession, besides being a product of society, may also perform a function for the society according to Fleming (1978:233). Friedman (quoted in Fleming 1978:233), referring to succession, observes that the law and rules … help define, maintain and strengthen the social and economic structure. They act as a kind of pattern or template through which the society reproduces itself each generation. Rules of inheritance and succession are, in a way, the genetic code of a society. They guarantee that the next generation will, more or less, have the same structure as the one that preceded it. In the long run, for example, there could be no upper class or aristocracy without rules about the inheritance of wealth and privilege, which permit the upper class or aristocracy to continue. And if rules permit free transfer of property and freedom of testation, a middle class society can be created and maintained.
It is Fleming’s (1978:233-234) view that in a very general sense, all rules of law (which include all rules of succession) serve identifiable social functions. He goes on to say that the early entrance of free testation in Roman law had little to do with the increasing secularisation of the Republic’s law, but rather that it was called for to permit the institution of a single heir ( ) in order to prevent peasant plots from being split into uneconomic unitsinstitutioorhavingheredisto support the result of repeated intestate succession by numerous co -heirs (consortium). According to Fleming (1978:234) by doing this Roman law achieved the same end as primogeniture45 in modern systems which use special legislation for farm holdings. This very same concept of the institution of a single heir is also present in ancient Egypt with the important role played by the eldest son to prevent the split-up of property into uneconomic plots, but also to fulfil the important role of taking charge of the required sustenance of the deceased.4
THE NUCLEAR FAMILY AND FAMILY PROPERTY
As Brewer and Teeter (1999:95) correctly observe, the nuclear family was the core of Egyptian society. Even the Egyptian gods were arranged into the same family groupings (Brewer & Teeter 1999:95). Many genealogical lists indicate how important family ties were (Brewer & Teeter 1999:95). From ‘The Contendings of Horus and Seth’ we know that values such as justice47 and family solidarity were very dear to the Egyptians (Sweeney 2002:143). The earliest examples of inscriptions, texts and paintings reflect the importance of family in ancient Egypt and specifically the nuclear family.
Looking at the nuclear family in more detail: in ancient Egypt, social independence required a man to have a wife (Eyre 2007:224). As Pinch (2000:370) suggests, Egyptian society was based on the ‘conjugal household’. The basic Egyptian family unit consisted of a man, a woman and children they might have (Pinch 2000:370-371). According to Eyre (2007:225) neither a man without a wife, nor a woman without a husband were fully integrated in society. Their full socialisation was probably marked by childbirth.
In order for an Egyptian to ‘find a house’ separate from his father’s, he had to marry (Eyre 2007:224). For a man to remain in his father’s household would leave him structurally and socially in the subordinate role of a son (Eyre 2007:224). It was possible for a young married couple to stay with either parents, but ideally a man did not marry until he could afford to establish his own household (Pinch 2000:371).
By marrying, the woman would then have to ‘enter his (the man’s) house’ (Eyre 2007:224). As Eyre (2007:224) correctly states, this description is synonymous with marriage. It was also in the ancient Egyptians’ view a necessary step, as only a woman could run a household (Eyre 2007:224). For the ancient Egyptians there was no alternative lifestyle (Eyre 2007:224). The idea of a man living alone, without a woman, would be outside normal experience and normal practice (Eyre 2007:224). The term for marriage was ‘to moor (a boat)’ and r ‘to found a house’ (Brewer & Teeter 1999:96). These terms already convey the sense that the arrangement was about meni grg p property (Brewer & Teeter 1999:96).
According to Brewer and Teeter (1999:96) marriage was purely a social arrangement in order to regulate property rights. There is no evidence of any form of legal or religious ceremony in order to establish the marriage (Johnson 1996:179). Unlike documents which referred to economic matters (like marriage contracts), marriages themselves were not registered (Brewer & Teeter 1999:96). Marriage was a private affair in ancient Egypt in which the state t ook no interest and or which it kept no record (Johnson 47 As indicated in Chapter 2 and 3, justice was central to the Egyptian world and, as indicated in Chapter 4, a key element of Egyptian law.
1996:179). It would appear that there was no legal obligation to register a marriage, and no standard religious ceremony in a state-run temple (Pinch 2000:372). Once a couple started living together, they were regarded as being married (Brewer & Teeter 1999:96). There might have been a feast to mark the occasion of ‘marriage’ (Pinch 2002:372). The ancient Egyptians were monogamous (except for the king) with many records indicating that couples expressed true affection for each other (Brewer & Teeter 1999:95).
The husband would give the bride and the bride’s family a gift (Brewer & Teeter 1999:96). It would appear that the financial aspect of the ‘marriage’ was the subject of lengthy negotiations between the two families of the bride and groom (Pinch 2002:372). The financial security of daughters appears to have been a matter of great concern for parents (Pinch 2002:372).
Each spouse maintained control of the property they brought into the family, while property they acquired during marriage was held jointly (Brewer & Teeter 1999:96).The Egyptian woman had the right to be provided for during marriage by receiving her subsistence from her husband, without which a marriage ceased to exist (Eyre 2007:225). It was customary that some households might be enlarged since widowed, divorced, or unmarried women lived with their closest male relative (Pinch 2002:371)
TABLE OF CONTENTS
LIST OF FIGURES
TABLE OF CONTENTS
CHAPTER 1 INTRODUCTION
1.2 RESEARCH PROBLEM AND QUESTIONS
1.3 SIGNIFICANCE OF THE STUDY
1.4 LIMITATIONS OF THE STUDY
1.6 AIMS AND OBJECTIVES
CHAPTER 2 RELIGION: THE FOUNDATION OF THE EGYPTIAN WORLD
2.2 ANCIENT EGYPT IN HISTORICAL CONTEXT
2.3 THE ROLE OF RELIGION
2.4 THE CONCEPT OF MAAT: THE BASIS FOR LAW
CHAPTER 3 THE BELIEF IN THE AFTERLIFE
3.2 MAAT, JUDGEMENT AND THE AFTERLIFE
3.3 HOPE OF ETERNAL LIFE
3.4 BURIAL, THE TOMB AND SUSTENANCE OF THE DECEASED
CHAPTER 4 THE EMERGENCE OF LAW
4.2 THE EMERGENCE OF LAW IN ANCIENT EGYPT
4.3 DEVELOPMENT OF LAW
CHAPTER 5 THE EMERGENCE OF SUCCESSION LAW
5.2 WHAT IS SUCCESSION LAW?
5.3 SOCIO-ECONOMIC BACKGROUND
5.4 THE EMERGENCE OF SUCCESSION LAW IN ANCIENT EGYPT
5.5 WHAT HAPPENS WHEN THE TESTATOR DIES?
5.6 THE ROLE OF THE ELDEST SON AS CARETAKER/ADMINISTRATOR
5.7 THE ROLE OF THE PERSON ASSISTING WITH THE BURIAL
CHAPTER 6 BASIC TENETS OF SUCCESSION LAW IN ANCIENT EGYPT
6.2 SUCCESSION LAW SOURCES IN ANCIENT EGYPT
6.3 CUSTOMARY INTESTATE SUCCESSION
6.4 THE TESTAMENTARY DISPOSITION DOCUMENT
CHAPTER 7 TESTAMENTARY DISPOSITION DOCUMENTS
FROM THE OLD KINGDOM
7.2 CONTEXT OF TESTAMENTARY DISPOSITION TEXTS OF THIS ERA
7.3 INSCRIPTION OF METJEN
7.4 THE INSCRIPTION OF NIKAURE
7.6 THE INSCRIPTION OF NIANKHKA
7.7 PAPYRUS BERLIN 9010
7.8 TABULAR OVERVIEW OF CONCEPTS AND ELEMENTS OF SUCCESSION LAW IDENTIFIED IN TEXTS FROM THE OLD KINGDOM
CHAPTER 8 TESTAMENTARY DISPOSITION DOCUMENTS FROM THE MIDDLE KINGDOM
8.2 CONTEXT OF TESTAMENTARY DISPOSITIONS OF THIS ERA
8.3 PAPYRUS UC 32058
8.4 PAPYRUS UC 32055
8.5 PAPYRUS UC 32037
8.6 INSCRIPTIONS OF DJEFA-HAPI
8.7 TABULAR OVERVIEW OF CONCEPTS AND ELEMENTS OF SUCCESSION LAW IDENTIFIED IN TEXTS OF THE MIDDLE KINGDOM
CHAPTER 9 TESTAMENTARY DISPOSITION DOCUMENTS FROM THE NEW KINGDOM
9.2 CONTEXT OF TESTAMENTARY DISPOSITIONS OF THIS ERA
9.3 NAUNAKHT DOCUMENT I, TEXT 1: THE LAST WILL
9.4 NAUNAKHT DOCUMENT I, TEXT 2: UNDERTAKING TO COMPLY WITH THE WILL
9.5 NAUNAKHT DOCUMENTS II and III: THE DIVISION OF THE PROPERTY
9.6 NAUNAKHT DOCUMENT IV, TEXT 1: PROMISE TO HAND OVER LEGACY
9.7 NAUNAKHT DOCUMENT IV, TEXT 2: CONFIRMATION OF HANDING OVER OF LEGACY
9.8 PAPYRUS ASHMOLEAN MUSEUM 1945.96 (ADOPTION PAPYRUS)
9.9 TABULAR OVERVIEW OF CONCEPTS AND ELEMENTS OF SUCCESSION LAW IDENTIFIED IN TEXTS OF THE NEW KINGDOM
CHAPTER 10 CONCLUSION
10.1 General discussion
10.2 Discussion of concepts and elements of succession law from the Old, Middle and New Kingdom texts
10.3 FINAL CONCLUSION
10.4 SUGGESTIONS FOR FUTURE RESEARCH
List of abbreviations of journal titles
List of Egyptian sources
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