The Legal System
The Legal System
Lawsuit Procedures. In modern legal systems, criminal law is separated from civil law, and two state actions may be taken against the offender. That is, a suspect may be convicted in criminal court and sentenced to a jail term, and then, in a civil court, the injured party can sue for monetary damages. In Mesopotamian law almost all crimes were considered private wrongs against property interests. Legal action against the offender was thus the responsibility of the injured party or his next of kin. If the claim could not be settled privately, the injured party brought the case to court and argued it personally. (There were no lawyers.)
Public Responsibility. Although crime in Mesopotamia was not considered an action against the interests of the state, local authorities were nevertheless responsible for the welfare of citizens. The Laws of Hammurabi (circa 1792 -circa 1750 b.c.e..), for example, held that a governor was responsible for the breach in the public order when the authorities did not apprehend a thief. In such instances the city and governor were required to compensate the victim:
If a man is caught in the act of robbery, that man shall be put to death. If the robber has not been caught, the robbed person shall set forth the particulars regarding his lost property in the presence of a god, and the city and governor, in whose jurisdiction the robbery was committed, shall make good to him his lost property. If a life (was lost during the robbery), the city and governor shall pay one mina (sixty shekels) of silver to the family (of the deceased). (LH §§22-24)
The Legal System. If a dispute between two Babylonians could not be privately adjudicated, it was referred to one or more levels of judicial authority. On the lowest level, a case could be heard by a local council, then by judges or by a court, and on the highest level a case could be appealed to the king. No appeals to the king are known to have occurred in Assyrian society.
The Courts. Cases were heard by local courts of city elders, councils, or city and residential assemblies. In the Old Assyrian period (circa 2000 - circa 1780 b.c.e..) commercial affairs were regulated by the merchants of the city. Provincial civil and military officials also on occasion functioned as judges. Priests had their own collegium courts, which usually oversaw oaths or ordeals for evidentiary purposes. All courts, except for the royal court and the assemblies, were composed of judicial panels of three to six men.
Local Courts. Local courts dealt with most cases of civil and criminal concern. Litigation regarding theft and property—such as conflicts over sale, inheritance, and location of land boundaries—were common. Actions brought by merchants are well documented in testimony heard before the “harbor authorities” during the Old Assyrian period. The king, governor, and mayor also heard a large variety of cases. The king acted as the highest court of appeal, especially in cases of official misconduct. Capital cases, including murder trials, were referred to the king for assignment of venue. Royal judges and officials heard serious cases involving homicide, treason, and adultery. In the Neo-Babylonian and later Persian periods (seventh-fourth centuries b.c.e..) kings appointed royal officials to oversee temple activities. Temple officials in turn served on town assemblies and acted as local judges.
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Judges. Judges were leading members of the community. They might be professionals or citizens chosen because of their familiarity with the case at hand. Judges were responsible for investigating cases, summoning witnesses, determining guilt, and, where relevant, assessing liability and establishing the degree of compensation. Decisions were probably not made in accord with any single written body of law; rather they were likely based on the discretion of the judges in accord with oral precedent. As leading citizens, their judgment was most likely respected and accepted. Judicial behavior was regulated by law; acceptance of a bribe or failure to properly carry out duties were considered serious offenses that could lead to removal from office or imposition of a stiff fine.
Courtroom Procedures. Little is known about courtroom procedures. Trials were open affairs held in public spaces. The plaintiff’s case was heard first. Both parties presented documentary evidence, and—when available— witnesses were called on to confirm testimony or establish fact. Before testifying, witnesses were required to take an oath. Oath taking was a serious affair. Oaths could be sworn on or before a symbol of a god. The individual taking an oath was often required to touch a divine object— such as the dagger of the god Ashur, the dog of the god Gula, the weapon of the god Marduk, the spear symbol of the goddess Ishtar, the divine hand of the mother goddess Dingirmah, or the pruning saw of the sun god Shamash— and swear by the “life of the god (or goddess).” The symbol was an actual object housed in the temple of the god and rented to the court as a source of income for the temple authorities. The god’s symbol was brought to the court for the oath-taking ceremony. Oaths could also be sworn by “the life of the king.” Perjured testimony was regarded as a sin, and a false declaration taken in the name of a god or goddess was rife with the possibility of divine or human wrath. Human sanctions could include smearing the offender’s head with hot bitumen or cutting off his tongue and hand. False testimony given under oath in a case involving life was considered a capital offense. Divine vengeance could be even worse. The sacred and the profane were thus intertwined as part of court procedure.
The River Ordeal. In serious cases involving charges of homicide, treason, sorcery, adultery, or theft of temple property, where there existed disputed testimony or where the court had no grounds for determining truth, the case was remanded to the river god for discovery. The god acted as a divine judge and determined guilt or innocence. According to a Sumerian hymn to the god Nungal, the river ordeal left the just ones alive and chose the evil ones by drowning them. Literary texts state that in practice not everyone was allowed to die. If the accused began to drown, a mooring pole was extended, and the guilty party was dragged out of the river and placed in custody in a dungeon-like room. The Laws of Hammurabi include the following provisions:
If the finger was pointed at the wife of a man because of another man, but she has not been caught while lying with the other man, she shall throw herself into the river for the sake of her husband. (LH §132)
If a man brought a charge of sorcery against (another) man, but has not proved it, the one against whom the charge of sorcery was brought, upon going to the river, shall throw himself into the river, and if the river has then overpowered him, his accuser shall take over his estate; if the river has shown that man to be innocent and he has accordingly come forth safe, the one who brought the charge of sorcery
against him shall be put to death, while the one who threw himself into the river shall take over the estate of his accuser. (LH §2)
The King of Justice, a Neo-Babylonian text from the sixth century b.c.e.., includes a detailed description of the river ordeal:
A man charged a man with murder but did not prove it. They were brought before him (the king) and he ordered them (to be taken) above (the city of) Sippar, to the bank of the Euphrates, before Ea, king of the depths, for trial. The troops of the guard, keeping both under close surveillance all night, lit a fire. At daybreak, the prince, governor, and troops assembled as the king commanded, and took their places around them. Both went down (and)… the river. Ea, king of the depths, in order to […] his royal beloved (and) in order to see justice [done, did] what always had … [The first] … he had to jump in, he (the river god) brought him safely t[o the bank]. The one who had charged him with murder sank in the water. From morning until noon no one saw him nor was aught heard of [him]. As for the troops of the guard, who had stood around them at the riverbank from evening until day-bre[ak], their hearts sank and they set out to search […], “What shall we report? How shall we answer the king?” When the king heard, he was furious at the troops. A courier was coming and going. “Did you not watch over the man? Has he gotten across the river and lain down in the open country?” Since none saw him at any time, they could not answer. Anxious boat(?) riders went along the river, bank to bank, checking the edge. When high noon came his corpse rose up from the river. He had been struck on the head, blood was running from the ears and nostrils. The top of his head was burned, as if with fire, his body was covered with sores. The people saw, and spoke (? of it) in reverence; all the world was borne down with awe. The enemy, the wicked one, and the hostile betook themselves into hiding. (Foster)
Witnesses. Eyewitnesses were essential for convicting a criminal. Hearsay or rumor did not qualify as evidence. The Middle Assyrian Laws (circa fourteenth - circa eleventh century b.c.e..) refer to a case of suspected adultery. Without the testimony of witnesses, the accused could not be convicted. The case was remanded to the god for a decision on the basis of the river ordeal: “If a free man has said to another free man: ’People have lain repeatedly with your wife,’ since there were no witnesses, they shall make an agreement and go to the river (for the water ordeal)” (MAL A §17). Witnesses were also necessary to validate agreements. In marriage contracts, for example, the groom’s father was listed as the first witness to guarantee the inheritance rights of his unborn grandchildren. His presence as a witness presumably also insured that there would be no mix-ups regarding the rights of his other sons’ children who might dispute the allocation of their grandfather’s money.
Imprisonment. Since Mesopotamian law did not distinguish between criminal and civil offenses, all crimes were actions that caused damage to private property, not offenses against the state. (Even treason was considered to be an offense against the royal family.) There were no state prisons or penitentiaries. Incarceration (usually under conditions of forced labor) existed only as a place of detention. Imprisonment for a capital offense was a grisly affair. According to the Sumerian Hymn to Nungal, a person incarcerated
does not recognize his fellow men, they have become strangers. A man does not return the password of his fellow men, their looks are so changed. The interior of the House gives rise to weeping, laments, and cries. Its brick-walls crush the evil-ones but give birth to honest men. The angry hearts spend there the days in weeping and laments…. No one wears clean clothes in my dusty House. My House falls, like some drunkard, upon the man. He is listening for snakes and scorpions in the darkness of the House. (Black et al.)
Punishment. In Sumerian and Babylonian law written during the period circa 2100 - circa 1600 b.c.e.., punishment for theft and homicide was stated in terms of a maximum sentence. In the codes, execution of the offender was primarily applied to injuries sustained by the awilum (property-owning) noble class in cases of homicide, theft of property, kidnapping, adultery, rape of a betrothed girl, fraud, purchase without witness, false accusation, and special circumstances including incest, death of a commoner’s wife or daughter following unlawful distrainment, and breach of military orders.
Execution. Although the Laws of Hammurabi constantly refer to execution, there was no official state executioner. In fact, no word exists in Akkadian for executioner or for a person who mutilates another’s body (as in “an eye for an eye”). It is now assumed that the injured party or the victim’s legal representative or next of kin had the right to take proper and necessary action. In cases where the court needed to apply punishment the actual process remains unknown. In cases where the guilty party clearly intended to do harm, or where the possibility of death was great and where witnesses were present at the scene of the crime, the injured party possessed the right of immediate revenge. Private execution or imposition of sanctions was left to the wronged party.
Revenge. Causing the death of an offender was instant revenge, but this action precluded any monetary compensation. If the wronged party or next of kin wanted compensation from the manslayer, thief, or adulterer, they could seek a monetary settlement for any of these offenses either through private negotiations or through legal action. Though the ultimate penalty for crimes of intent, such as theft, against members of the landholding class was death, the available documentary evidence seems to indicate that in practice thievery was punished by payment of a monetary fine. In fact, the penalty for most capital offenses (except in cases of regicide or murder within a temple) was some sort of monetary payment. The amount of compensation demanded by the family of the manslayer’s victim is not stated in extant texts; no guidelines were given. Common law and societal limits of acceptable behavior acted to quantify the judgment. In instances where the victim’s kin could not reach agreement with the manslayer, they could use the threat of execution to force settlement.
Jeremy Black, Graham Cunningham, Jarle Ebeling, Esther Flückiger-Hawker, Eleanor Robson, Jon Taylor, and Gábor Zólyomi, The Electronic Text Corpus of Sumerian Literature, The Oriental Institute, University of Oxford, 1998- <http://www-etcsl.orient.ox.ac.uk/>.
G. R. Driver and John L. Miles, The Babylonian Laws, 2 volumes (Oxford: Oxford University Press, 1952, 1955).
Benjamin R. Foster, Before the Muses: An Anthology of Akkadian Literature, 2 volumes (Bethesda, Md.: CDL PRess, 1993).
Tikva S. Frymer-Kensky, “The Judicial Ordeal in the Ancient Near East,” dissertation, Yale University, 1977.
Remko Jas, Neo-Assyrian Judicial Procedures, State Archives of Assyria Studies, volume 5 (Helsinki: Neo-Assyrian Text Corpus Project, 1996).
J. N. Postgate, “Laws and the Law,” in his Early Mesopotamia: Society and Economy at the Dawn of History, revised edition (London: Routledge, 1994), pp. 275–291.