1. LEGAL PRESCRIPTION AND LAW CODES
a) BASIC TERMINOLOGY AND GENERAL ASPECTS OF LAW: SUMERIAN LAW
There was no universal term for law in the Ancient Orient. Sum. Di or Akk. Dinu designates the legal case, the legal decision and the process itself. Nì-si-sá = misaru refers to justice as the highest good, which is supplemented by nì-gin-na = kittu "constancy", "integrity". All of the gods were responsible for the protection of law and justice, but the sun god Utu/Shamash was preeminent in this regard. In the strict sense, there is no merely secular law, but only religious law, so that the decisions pertaining to trade may have carried far less weight than more central legal tenets. Upon the earth, the king holds responsibility fro the law; he is the chief justice, the final court of appeal, and where necessary, the lawgiver. Hammurabi termed his individual laws "cases of justice".
Whether all the common law precepts which determined practice were proclaimed by a king sometime in the distant past is unknown. Certainly, however, there were legal prescriptions for centuries before the first law codes were promulgated around 2000 BCE. None of these collections of laws is a "code" in the sense of the Code of Justinian, even though this term has beocme established for our usage. Even the Code of Hammurabi treats only a small protion of the legal material; it is a collection of reform laws that were probably appended to long-established legal cases. In this aspect, none fo the legal collections is systematically ordered; cases of penal, civil, trade and work law alternate with one another. Most of the laws are formulated casuistically and begin in Sumerian with tukumbi, "if", in Akkadian with Summa, and in Hittite with Takku. Thus, "If a man has committed robbery, he will be killed". By contrast, the apodictic formulation typical of religious laws (as for example, the 10 Commandments) is a rare exception: for example, " A prostitute is not permitted to veil herself; her head must remain bare". The tariff causes found in Old Babylonian laws are similarly formulated.
In most of the earlier collections of laws up through Hammurabi's, a prologue in the style of a royal inscription precedes the body, which contains the legal cases. This prologue is preserved only in the laws of Eshnunna and there only briefly - but in a style different from that of the laws it mentions the king's success in war. Except for the laws of Eshnunna, we also find epilogues with curses against those who should lay their hands on the law stela (to deface or alter it). The epilogue to Hammurabi's laws is much longer than an)'\vhere else; that of l:;rNammu, which must have been brief, is broken in the extant copy. Furthermore, the later copies omit parts of the prologue and epilogue. One does find in the laws themselves occasional verbatim correlations between two or more collections. Still, taken as a whole, each collection comprises a new, independent legal work.
The Babylonians termed proclamations of legal prescriptions which often altered earlier regulations mlsaram sakiinum and the individual decisions, simdatum.2 A new king usually promulgated such prescriptions as a means of introducing himself at the beginning of his reign, often accompanying them with proclamations of a reduction in work ( contrast this with the attitude of Solomon's successor in 1 Kings 12). Documents and letters make frequent reference to a ,simdatum, and three of these are still partially available to us (see below). In the later period, the term ,simdatum is no longer known, although there must have been comparable proclamations in Assyria. No such act of lawgiving is known from any later king in Babylon, and the same is true for the states of Syria and Asia Minor. For Elam, see below.
The oldest known collection of Sumerian laws stems from the founder of the 3rd Dynasty of Ur, Ur-Nammu. Aproximately forty short paragraphs deal with punishable acts; as a rule, physical wounds were punished by monetary fines, and more serious crimes, such as murder and robbery, were punished by death. By contrast, the more comprehensive, though much more poorly preserved collection of laws of Lipit-Ishtar of Isin, as far as it is extant, deals primarily with cases of marriage, family and property law. According to paragraph 28, a man may take an additional wife, if his first becomes infirm, but he must provide for both of them. Tablets of school children from the first millennium dealing with regulations of family law, among them one furnished with an Akkadian translation, show just how far the state had gone by that time in intervening in this area, even protecting slaves from excessive caprice. None of these laws refers anywhere to judges.
b) THE LAWS OF ESHUNNA AND THE CODE OF HAMMURABI: LEGAL EDICTS
As far as we know, Dadusha of Eshunna was the first to promulgate laws in the Babylonian language. In 1735 Before Common Era he published a corpus of 60 paragraphs which is almost completely preserved; it begins with the establishment of tariffs and then addresses ships and grain, family and slaves, physical wounds, animals and the building of houses without any strict arrangement of material. Nowhere is a judge mentioned, though the palace is mentioned once as the court of judgement. It is remarkable here that the death penalty is prescribed only five times, though in two further instances the king must decide whether to pronounce it. Similar to the Sumerian laws, mutilations, beatings and banishments are never demanded. As with Hammurabi, a marriage can only be constituted by means of a marriage contract. These laws have not yet been compared with the largely unpublished documents from Eshnunna.
The Code of Hammurabi towers above all previously mentioned law codes. The lone original stela on which this code was inscribed survives, along with fragments of many copies from contemporary and later Babylon and Assyria. The text itself served as a literary standard for the schools. Seven columns of the front side of the stela were chiseled out after it was carried off to Susa, and these can be reconstructed only partially from the clay tablets onto which the laws were copied. The approximately two hundred cases are numbered as 282 paragraphs. The penal law contained in the concluding laws formulated around 1695 is much harsher than in the older laws. The death penalty is frequently threatened, in particular cases in a sharpened form; in addition, mutilations according to the lex talionis ( the law of "an eye for an eye") are frequently prescribed, along with beatings. The rigid application of such analogies could even lead to the death of the innocent. The reason for the often much harsher penalties and fines can only be that Hammurabi held the traditional, less stringent penal code to be inadequate for deterring crime in an empire newly acquired through conquest. We do not know to what extent the law was carried out. The king laid high expectations upon the judges for investigating and judging their cases; they had to convict the suspected perpetrators by summoning witnesses.
Careless conduct of judicial duties led to removal from office or to high fines (§ 5), and Hammurabi nowhere tolerated caprice. Just when the king himself or a governor could be invoked as the highest court of appeal is not made precisely clear; according to the letters it was not a rare occurrence.
It is not possible here to go into the details of family, slave, property, and business law, though we have referred to some of these things above. The many studies on the Code of Hammurabi in the last ninety years have revealed the strange fact that in the hundreds of legal documents from the time following the proclamation of these laws, various regulations other than those one would expect from the Code are frequently encountered. Only in part of the documents is the validity of the Code confirmed. From this we must conclude that the reforms were only partially carried out and that often, in the cities, various forms of the common law could not be changed. That is true not least of all for the laws directed specifically at the muskenum (see above, vl.4c).
Moreover, some of the laws were completely unrea1istic: for example, the monetary fine established for a failed operation was far higher than the fee the surgeon would have received had the operation succeeded (§§ 215ff.). A comprehensive presentation of the law which was actually applied in Hammurabi's reign remains to be written.
Of the legal regulations (see above) which are mentioned in the texts, only one precept from the beginning of the reign of Hammurabi's fourth successor, Ammi-~aduqa, is in large part preserved; only very small parts are known from a further edict from Samsu-iluna and perhaps one from a third king, which agree for the most part with that of Ammi-aduqa. These contain only the prescriptions for individual penalties in connection with the economic and social regulations on which account the edicts were issued. For his part, Ammi-aduqa distinguishes repeated1y between the population groups of the Akkadians and the Amorites and declares invalid any documents which run contrary to his stipulations. These edicts still give us numerous problems.
From the period in Babylonia following the Old Babylonian era, we know only a Neo-Babylonian fragment which may be from the seventh century, along with regulations on marriage and slave law, and on controversia1 questions of property rights. In contrast to earlier periods, apodictic laws are more frequent in these laws or legal drafts than are the casuistic. How comprehensive the whole law corpus was cannot at present be determined.
c) LAWS IN ASIA MINOR AND ASSYRIA
We do not know whether legal regulations which can be deduced from the Old Assyrian documents and letters from Anatolia are based on the written laws of the Assyrians or those of local rulers. In three small fragments one can see mostly the vestiges of laws, though they might also be merely a kind of merchant statute. The Hittites in Anatolia began to compile collections of laws as early as the sixteenth century. These are significant because the death penalty is prescribed in very few cases, and restitution of debt is set above retribution (as is the case in Hebrew law). This is not the place, however, to go into greater depth regarding these laws.ll Soon after regaining their independence under Ashur-uballit I, the Assyrians began to write down individual regulations, although nothing is left of the pertinent tablets. About twenty mostly fragmentary pieces of a compilation of three law tablets from the time of Tiglath-Pileser I have been discovered, as well as a tablet with provisions regarding the maintenance of order in the palace, particularly in the king's harem. This last tablet occasionally names the king from whom the legislation stems: the earliest is Ashur-uballit I, the latest Tiglath-Pileser I. On the first tablet of laws, which is almost completely preserved, the woman is the center of concern. The second, which likewise has eight columns, deals with property rights, while the third, which was written by a different hand, gives laws dealing with slaves, livestock, and goods. Specific laws generally fall outside the general scope of these tablets. Nor has it been completely explained whether all laws were regarded as in force, or whether parts of them should be looked upon rather as drafts for a new structure of lawgiving and a new ordering of legal material.
Changes in the face of the legal praxis discernible in the earlier documents present many enactments, primari1y for women, which are absolutely degrading. In no other ancient Oriental law is the status of a woman as low as it is in these Middle Assyrian laws. Nor do we find a penalty system so harsh and brutal as that found in the contemporary palace ordinances. The husband himself is frequently permitted to inflict harsh punishment upon his wife; at least in such cases, no one else who had taken part in the crime would come off better or worse than the wife, as, for example, in the case of adultery. Simi1arly, only both together can be freed from punishment. Besides the death penalty, beatings up to one hundred blows, forced labor, and manifold muti1ations were prescribed, often in combination. Ordeals often served as a means of proof for the judges. In criminal law, as in property and case law, the concern for justice and differentiation according to the particular circumstances can be recognized, and the possibi1ity of a renunciation of punishment also existed. How the often contradictory administration of these laws was carried out can be discerned only in part. The vast majority of the extant Middle Assyrian documents stem from the time before Tiglath-Pi1eser I, and a codification of law in Assyria from the first millennium is unknown.
2. DOCUMENTS AND OTHER LEGAL SOURCES; LEGAL PRAXIS
We possess legal documents and contracts in the Sumerian, Babylonian, and Assyrian languages from the wider area extending from northern Syria to Elam representing many periods and in extremely large numbers. These are supplemented in many ways by public correspondence and business letters and, much more rarely, by other types of texts. Legal documents and business correspondence from the Hittite kingdom and Urartu are a1most entirely lacking. The testimony of the content of the documents and letters regarding particular legal materials cannot be treated here: they are simply too diverse. Something must be said, however, concerning the structure of the documents and how much they can tell us. Furthermore, we must limit ourselves to the laws of private contracts, which comprise by far the greatest mass of these documents; for the documents of the legal process, see below. Contracts are so numerous because the basic principIe in force was that all large-volume business transactions and all agreements of any importance had to be written out in the presence of witnesses. Indeed, the laws declare invalid a marriage without a marriage contract, even when the partners had long since consummated it.
Documents were often enclosed in sealed clay "envelopes," in order to protect the text against the possibility of destruction or from unauthorized alterations made by one of the parties. The text was often completely repeated, or at least reproduced in its major parts, on the outside of the clay shell. If it later became necessary to read the text in its entirety again, this envelope had to be shattered and became worthless. Many documents and letters have been found still in their envelopes. Documents were baked more often than were letters, but they cou1d also be air dried. No doubt duplicates were often written for two or more contract partners, but these have seldom come down to us. It was often prescribed for clay certificates of debt that after the debt had been repaid, the original certificate had to be destroyed; but thousands of these documents have been preserved to this day.
Purchasing, hiring, tenancy, and the exchange of goods, plots of ground, fields, houses, animals, and persons are among the principal themes of the documents. Slaves were purchased, for example, and harvest-workers were hired. To these were added sureties, liabilities, deeds of partnership, gifts, deposits, and, primarily in the later period, the sale of benefices (see above, VI.4d), as well as the debt certificates already mentioned, sometimes with the giving of a surety. In spite of the demand for written contracts, marriage and adoption contracts are noticeably scarce, as are disputes over inheritances. Many types of contracts which are even less well-attested must be added to these.
At all times and everywhere, there were locally differentiated, widely established formulas for certain types of documents, as, for example, certificates of obligation or bills of sale for land, while more flexibility existed for other types of documents. Only specialized studies wou1d be able to describe these in detail. Generally, the documents begin with the designation and more precise characterization of the matter with which it is concerned: for example, the amount of barley, or the dimensions and location of the piece of ground. In other documents, the partners taking part in the business venture are named first; in these cases, the father's name is found in place of the family name (which was not in use). The various types of "conversational" documents are not rare either. In these, the one partner brings his offer or demand, and the other gives answer to this or grants his request, or he may demand the bringing of witnesses. In such cases, it was necessary to specify the sum which the one partner had to pay to the other. Where offers of Some kind were made, it had to be stressed that these had been put forth voluntarily. Quite frequently, any subsequent challenging of the contract had to be expressly excluded and a dissolution of the contract forbidden. High penalties were often threatened for anyone breaking the agreement. Still other extreme demands were added, especially in later Assyria, even where the disputed sum was small. Thus, for example, one man was made to lick up 1 l. of kress seeds which he had allowed to be strewn along the road. In most cases, a shorter or longer list of witnesses follows, sometimes with the addition of the rolled or pressed impressions of their respective seals. Many Neo-Babylonian documents also contain curse formulas. Finallv, in late documents and sometimes even earlier, the place is often given, or at least the exact date was stated with the appropriate standard designation of the year - using the date formulas, the eponym, or the regnal year of the king. These are sometimes followed by particular concluding clauses. In Nuzi, superscriptions designating the type of document are particularly frequent.
In view of the limited number and uneven distribution of the legal collections, as well as their limited value as witnesses to actual legal praxis, the legal documents, in connection with the letters dealing with the same themes, are the richest Source for the study of ancient Oriental law and the activity of the judges. Despite their often modest numbers, the documents from Syria, the Hurrian districts, and Elam are especially important for us: by far the greatest proportion of them are written in the Babylonian language. Among the archives discovered in Syria, only those from Ugarit (about 1400-1200 BCE) and Alalakh (1700-1200 BCE) have been published in large part, but the juridical materials have only begun to be evaluated. Here, the king seems to have exercised direct influence over private legal agreements with particular frequency. Documents pertaining to feudal law are rather richly attested. In Assyria, Babylon and especially in the principality of Arrapkha, where the archive of Nuzi - by far the largest of that period - was found. Certain legal institutions which are unattested in neighboring lands played a very large role in Nuzi. Among these were adoption for the sake of appearances, the purpose of which was to circumvent conventional law, and the furnishing of a security deposit in the titennutu.
Elamite law reveals other completely different peculiarities, which are attested bv about five hundred documents from Susa during the period of 1720-1500 BCE These documents, which are written in Babylonian, contain a simultaneous interworking of divine and temporal law to which we are otherwise unaccustomed; this is found, for example, in the many sales contracts, in debt law, and so forth. Many terms of the documents have not yet been sufficiently explained. The cutting off of hand and tongue is often threatened, along with monetary fines, as a penalty for breaches of contract.
3. JUDGES AND THE JUDICIARY
The "judge" appears as a profession already in the Early Dynastic period, often, for example, in Ebla and in Lagash, and occasionally alongside the city prince (ensi). In the somewhat later legal documents, he emerges with particular frequency as a member of the majority, since in legal matters more faith was put in a council. Moreover, there was besides the sun god a special judge god (Madanu). Unfortunately, no text informs us even on an introductory level, how judges were prepared for the responsibilities of their profession following their basic education as scribes. In all probability they had to participate in the legal process for a long time and then were instructed by an experienced judge with the aid of legal cases which had already been decided. Since laws, as we have already seen, were either completely lacking or regulated only a small part of the legal material, the judges often had to reach decisions on the basis of their own free discretion. They risked the loss of their office, however, if they did not proceed in a reasonable or prudent fashion. Nevertheless, corrupt judges could be found in every age; only the gods were incorruptible. To what extent the king, governor and mayor could influence the findings of the court is unknown. That they undertook to do just that, however, can scarcely be doubted, and in every instance they served as the final court of appeal in important cases. It is also certain that the trials were always public: the gate, a place or niche in a building at the city gate, is often named as the locus of the court. We hear of judges in the Old Assyrian texts with remarkable rarity. In the Cappadocian trade colonies, there were in all probability no professional judges at all, but only individuals who could decide from case to case. Since very few studies have been done so far on the office of the judge, our knowledge of many aspects is insufficient.
If we turn to the cases which the judges had to conduct, the first thing that strikes us is the almost complete lack of criminal cases in which the maximum penalties prescribed in the laws would have been administered. Only a single Neo-Sumerian murder case with a resulting death penalty has been passed down in a few transcribed copies; it was probably treated as a school exercise. From the later period, only criminal judgments with monetary fines are known, and the ancient world nowhere knew of prison sentences. Other than that, a few records of proceedings exist which list criminal acts. Since thieves and murderers certainly were often sentenced to death or, where it was customary, to mutilation, we can only conclude from the lack of criminal judgments that these, at least, were only pronounced orally, that is, that the principIe of written documentation was only valid for civil procedures. We can only guess at the reason for this: the judges may have feared that the written death penalty might somehow, perhaps by magic, be used to their own harm. Another possibility might also be considered: in such cases one wrote on perishable wax and completely destroyed the tablet as soon as possible thereafter.
In all cases the plaintiffs had to be heard first, and afterward the accused or defendants; both parties had to bring forth witnesses who would confirm their testimony, but this, of course, was often enough impossible. Wherever necessary, the witnesses had to testify under oath; in other words, they had to take a curse upon themselves in the case that they gave false testimony. This generally took place before a symbol of the deity, which sometimes had to be brought from the temple. Under these circumstances, each lie simultaneously became an insult to the deity. Certainly, the statements made under oath were often written down. Testimony under oath was unnecessary when documents could be presented which confirmed the essential elements of someone's testimony. In such cases, the judgment of the court could be announced immediately. The king frequently demanded oaths as well.
The ordeal was employed as a further means of proof when someone was accused of murder or adultery without adequate substantiating evidence. It was occasionally used also in cases of suspected theft; in Babylonia, Assyria, and Nuzi, this was always a river ordeal. Apparently at that time no one considered the possibility that someone could actually swim in the river. Therefore, people could be persuaded that the river god always threw the innocent up on land, yet he would at the same time let drown either the one who committed the crime or a person who brought a false charge. A propagandist ofNabonidus depicts quite vividly the performance of an ordeal which had already been prescribed under the law of Ur-Nammu of Ur.
Depending on the case, functionaries of various ranks, as well as the elders of the city, could take part in the proceedings. Studies of the particular functions of such persons are still needed, and we have known nothing of any kind of attorney. The indispensable person who directed the process was generally the scribe, who as a rule was named following the witnesses, and who was also responsible for preparing the documents. He was required to have mastered the convetional formulation and the juridical terminology. Texts exist from the 1st Millennium which set the Sumerian technical terms and phrases alongside the Akkadian.
Neither the documents nor the laws make any statements whatever concerning the persons charged with carrying out the physical penalities. These individual may simply have been summoned from case to case. The collection of monetary fines and payments to the party who had prevailed, payments which often far exceeded the value of a case itself, were in all likelihood supervised by city officials. Women often entered into the procedures, and not just to protect their own interests in marital disputes. The designation judge was attributed to individual goddesses, though there were in fact no earthly female judges (with the exception of the biblical Deborah).
---
Note by Lishtar: The author mentions Ereshkigal, the
Goddess of the Underworld as a Great Judge as well as adds up that other goddesses
also simultaneously judged the dead.
Source: Von Soden, Wolfram (1985) Chapter 10 – Law.. In: The Ancient Orient - an introduction to the Study of the Ancient Near East. William B. Eerdmans Publishing Company, Grand Rapids, Michigan, USA. Translated by Donald G. Schley.