Collections of Laws
Collections of Laws
Law and Values. Values are a culture’s standard for qualitative assessment and its guide for conduct. A society’s formal and informal customs and institutions influence and are shaped by its values, which are not only embedded in its laws but are also influenced by them. Conditions of barter or market economies; rural or urban densities; patterns of cohabitation; clan, nuclear family, or kinship groups; political or hereditary military groups; polis or autocracy all define—through permission and prohibition—acceptable and unacceptable conduct. Values also arise historically through resolutions of conflict, and they are stratified and justified in the narrative myths that ground the culture. Religious, moral, instrumental, political, or economic values are all embedded in a society’s institutions and customs. As one of those institutions, the law defines and stabilizes those values, which are resident not only in the law but also in the language of the court. Ancient Near Eastern law seems to have been primarily oral and administrated by heads of families. Written collections of laws did not appear until late in the third millennium b.c.e. It may be assumed that actions were to a great extent influenced by a regimen of custom; that is, common practice and precedent whose continuance acquired the force of law. The extant body of written decisions and legal collections, often called codes, are only a small portion of ancient Mesopotamian laws, many of which were never defined or organized according to principles and rules.
Modern Law. In the modern sense of the term, law is an institution of society that reaches into the economy, marriage relations, religion, and the other aspects of society, regulating conduct by defining acceptable limits of behavior and the penalties for the infringement of those boundaries. Law may be embedded in the customs of the group, oral or written. Law is expected to be publicly available, so that those governed by it can know it, and to be enforced by the authority whose responsibility is the care of the community. Law is an indirect or direct expression by the body politic of the ways to achieve and maintain the common good. Beginning with the Romans, the law in Western society has been considered transcendent and unchanging, regardless of the historically changing institutions it governs. Modern law applies to all, regardless of wealth or status, and it implicitly or explicitly contains standards that are applied through legislation, policy, or judicial interpretation. The modern institution of law is usually designed to be comprehensive. It has a language of its own and its own traditions, which include precedent, established procedures, and a professional body of practitioners. Modern law is an expression of the modern state. The state or body politic was first acknowledged as an independent institution separate from religious authority in the late thirteenth and early fourteenth centuries of the Common Era (C.E.). In the modern state, consent of the governed validates elections of officials and their policies and the motions of representative bodies such as juries and legislatures. Hence, modern law—whether developed by courts, legislatures, or officials of government—is by definition publicly issued and known. Most of these assumptions about modern law do not apply to the laws of the Mesopotamians.
Ancient Near Eastern Law. In the ancient Near East, monarchs ruled with the consent of the city gods and as their representatives. Decisions of state were made with only minimal political limitations on the king’s rule. There existed no concept of the autonomous individual and no independent legislature; hence, no consent was available or necessary for the promulgation of law. Lacking reference to many areas of contract and criminal law, Mesopotamian legal collections were not comprehensive digests of law, nor did they include any effort to elevate legal decision to the level of principle. Many were literary anthologies incorporating a compendium of legal decisions in knotty cases, as well as a king’s royal boasts that he had maintained proper order. For example, the diorite stele on which Hammurabi had his laws inscribed was a monument of self-praise designed to bolster the monarch’s claim to be the king of justice who established equity and order for his people.
Oral and Written Law. It is assumed that most ancient Near Eastern law was passed down orally, governing relations among and within families. Disputes over inheritance, contracts, or homicide were typically settled by the representatives of the family or clan. Only when disputes (usually over the transfer of property) could not be resolved by family members acting according to custom and tradion
was it considered necessary to seek resolution through the courts. Since there were no professional legal practitioners in the ancient Near East, actions were brought by the litigants themselves and heard by a judge or panel of judges, who most likely decided issues according to a commonly accepted, orally transmitted standard rather than a written codified body of public law.
Positive Law. Mesopotamian law was positive law. That is, it was specifically created by the ruling authority. At present seven cuneiform legal collections are known. The Laws of Ur-Namma (circa 2112 - circa 2095 b.c.e.) and the Laws of Lipit-Ishtar (circa 1934 - circa 1924 b.c.e.) are written in Sumerian; the Laws of Eshnunna (circa eighteenth century b.c.e.), the Laws of Hammurabi (circa 1792 - circa 1750 b.c.e.), and the Neo-Babylonian Laws (sixth century b.c.e.) are written in Babylonian dialects of Akkadian; the Middle Assyrian Laws (circa fourteenth -circa ixth century b.c.e.) are in in Babylonian dialect of Akkadian. Laws from ancient Anatolia, the Hittite Laws (beginning in circa 1650 b.c.e.), are written in Hittite.
Sources of Law. From the middle of the third millennium b.c.e. to the end of the first century C.E., many Mesopotamian legal documents have survived, including summaries of well-known court cases, trial records, contracts, agreements, dockets, deeds, and depositions. Thousands of legal records written in cuneiform on clay tablets document the legal traditions of the Sumerians, Babylonians, and Assyrians and also record the legal affairs of surrounding nations in the Near East, including the Hurrians in Syria and the Hittites in Anatolia. Additional legal information is found in letters, royal edicts, hymns, and school-exercise texts.
The Hammurabi Stele. The laws of the Babylonian king Hammurabi (circa 1792 - circa 1750 b.c.e.) were inscribed on a diorite stele more than seven feet in height, which was placed in the temple of Shamash, the god of justice, in the city of Sippar. Its intended audience was the gods and future rulers, as well as a larger audience that included those who felt wronged. The existence of school copies of the provisions on cuneiform tablets and of fragments of the code on other stelae—as well as a declaration in the prologue that Hammurabi “established truth and justice in the language of the land”—all suggest that the legal provisions of his code were probably publicly available in both written and oral form. The prologue is followed by a body of 282 legal provisions. Modern research has shown that the Laws of Hammurabi were not an ancient code (in the sense of the Napoleonic code) that was inclusive and used by jurists to determine guilt or innocence. The collection was instead a compilation of cases and edicts issued to demonstrate to gods and people that the monarch was a true king of justice. The text concludes with an epilogue in which the king claims that he has issued the laws, inscribed them on a stele, and made provision for them to be read aloud and serve as a standard of justice for future kings.
Format. Most of the legal provisions in Mesopotamian legal collections are formulated in an academic style also used by scribes in divination and medical texts. Typically a legal provision describes a circumstance and then the sanction. In other words, “If a member of a status group does such and such, then the consequences will be the following.” The first phrase of such a statement is called the protasis, and the second is the apodosis. It is thought that this formula was devised as a simple method of stating a principle that may have originated with a well-known case. Such cases may have arisen from unusual or contestable situations involving the extent of a defendant’s liability. All extraneous circumstances that did not deal directly with the main subject matter were excised. Only a brief description of the circumstances remained and was then cast into a hypothetical protasis-apodosis formula—“if (a legal situation) … then (a legal prescription)“—which included the maximum penalty applicable to that case. In its final simplified form the nature of damages was clear.
Faulty Construction. The following example from the Laws of Hammurabi (LH) is a legal provision that may have derived from an actual case. The circumstances surrounding the case were summarized, the damages described, and the penalty stated:
If a builder constructed a house for a man, but did not make his work strong, with the result that the house that he built collapsed, and so has caused the death of the owner of the house, that builder shall be put to death (as the maximum penalty). (LH §229)
Expanding a Case. Following the presentation of this example, alternative circumstances and/or participants were then artificially constructed to form a small subsection on the legal issue being examined. Mesopotamian thought, in contrast to later Roman law, never clearly expounded categories of legal thought. Instead cases were piled on top of each other to illustrate contrasting aspects of a case without stating a general principle:
If (a builder constructed a house for a man but did not make his work strong with the result that) it has caused the death of a son of the owner of the house, they shall put the son of that builder to death (as the maximum penalty). If it has caused the death of a slave of the owner of the house, he shall give slave for slave to the owner of the house. If it has destroyed goods, he shall make good whatever it destroyed; also, because he did not make the house strong that he built and it collapsed, he shall reconstruct the house that collapsed at his own expense. (LH §§230-232)
Analogy in Laws. Analogies, as well as opposite sets of circumstances, were often employed to illustrate a legal point and develop new exemplars. To the modern mind what often appears to be a sudden jump in logic to an analogous or opposing circumstance appears confusing. While modern law develops principles to organize legal thought, ancient Near Eastern law merely continued to explore endless variations of circumstance. General principles were not deduced from observation; scholarship was based on practice, and knowledge was considered to be cumulative.
Exemplars. The exemplars found in the codes also avoid circumstances that would lead the verdict in an opposite direction. Ambiguity was not a part of a king’s ideal statement of accomplishment. In a similar fashion, cases that vary from the norm were also not considered (for example, rape by a slave of another slave). Circumstances were limited to rare and unusual instances and not to an exhaustive list of hypothetical situations.
Contracts and Sales. Legal records of many sorts of property transfers were written on clay tablets inscribed with cuneiform signs. These documents include records of sales, exchanges, leases, and rentals. In order to establish title, contracts were drawn up regarding the sale of items such as real estate. Not all legal arrangements regarding property were recorded. Sales of commodities classified by weight, measure, or number, or sales of most mobila—movable goods of all kinds, including animals, furnishings, and garments—(except for slaves) were usually not recorded. If payment was made at the time of the transaction or if there existed no dispute over ownership, and if a written record of title was not required, no recording of the transaction occurred. The lack of a written record did not preclude the existence of some form of oral agreement that would lend legal validity to a transaction. In some instances, such as the necessity to formalize a marriage agreement, a verbal contract before witnesses must have been associated with some type of private ceremony or a symbolic act analogous to the modern practice of unveiling a bride at a wedding ceremony. Some of these acts are known; for example, a slave stepping over a pestle symbolized the transfer of property, or throwing a lump into a canal possibly represented the transitory nature of the land being purchased.
B. L. Eichler, “Literary Structure in the Laws of Eshnunna,” in Language, Literature, and History: Philological and Historical Studies Presented to Erica Reiner, edited by Francesca Rochberg (New Haven: American Oriental Society, 1987), pp. 71–84.
Martha T. Roth, “Mesopotamian Legal Traditions and the Laws of Hammurabi,” Chicago Kent Law Review, 13 (1995): 13–39.
Ira Spar and Eva von Dassow, Private Archive Texts from the First Millennium B.C. Cuneiform Texts in the Metropolitan Museum of Art, volume 3 (New York: Metropolitan Museum of Art, 2000), pp. xiv–xxviii.