Law, Ancient Near-Eastern

views updated


Written laws have come down from various countries and peoples of the ancient Near East: Sumeria, Babylonia, Assyria, the land of the Hittites (Asia Minor), and Israel. From Egypt no written laws have been preserved. Israelite law is treated elsewhere in this encyclopedia. (see law, mosaic.)

General Characteristics. In the ancient Near East, where even literary texts were composed orally, oral legal tradition and customary law preceded written law, so that the texts of at least some laws were already more or less fixed before they were written down. All the written laws have much in common. Their style is usually "casuistic," as it has been called: "When such or such a case presents itself, this or that must be done." This formula makes it very probable that the written laws originated from precedents, i.e., judicial decisions that were extended to similar cases. The laws never lay down any basic principles, but nearly always regard particular cases or situations in which men may come into conflict with each other or which are liable to be brought before the judges or judicial courts. Sometimes the legislator imposes general measures, e.g., when he determines the prices of important articles, the amount of rent to be paid in such or such a circumstance; but these regulations too are to be applied in individual relations. There is no marked difference between ius (human law) and fas (divine law), between public and private, civil and penal law. The idea of revealed law is absent, though a code such as that of Hammurabi may receive religious sanction (see below on the Code of Hammurabi). There is no order in the laws of the codes, nor in the compilations of laws for private use. A series of some paragraphs may be arranged around a common subject (judicial matter); a peculiar expression in one of them may be a key word for a sequence of other paragraphs. But there are no large subdivisions, no logical or systematic conception of the law considered as a whole.

There is no evidence that the codes that have survived were universally applied in the juridical practice of the territories for which they had been given. The lawgivers proclaimed their ideals in their codes, hoping that these would be put into practice everywhere, but they could not enforce them everywhere. Such laws were certainly applied by the kings themselves, if anyone brought a complaint before their own courts. But nobody was obliged to appear in court before the king unless he was called, nor was everybody able to do so. Local judges might have applied other judicial principles with the consent of the parties concerned. This is quite clear from many legal documents from the time of Hammurabi, which are often not in accordance with the principles of the Code of Hammurabi. The ancient Near-Eastern states were not like modern states in this respect, nor did their governments function as modern governments do. The king was the defender of the state and the supreme commander of its armies and levies; he was the supreme judge, whose special duty was to protect the weak; he often performed cultic functions. (see kingship in the ancient near east.) But no ancient Near-Eastern government or king ever thought of drawing a blueprint of the state and society and promulgating laws in order to realize this ideal. This fact also determined the character of the laws, which do not state or develop basic principles, but merely mention a number of cases in which situations of conflict may arise in civil life and then state what is to be done in such cases. A marked preponderance is given to laws concerning social and family life. The peoples for whom the laws were given were urban societies dependent primarily on agriculture.

In the following paragraphs a conspectus is given of the various collections of laws or legal codes that have been preserved, but no detailed analysis can be given in this limited space, because the laws were not drawn up according to clear principles or in a logical order.

Sumerian Laws. The oldest known laws naturally come from the oldest known civilizationthe Sumerian. Besides the indirect evidence from several cuneiform tablets recording legal matters, such as decisions given in lawsuits (di-tilla tablets), that from three collections furnishes knowledge of Sumerian laws as such: (1) entries in the ana ittišu series; (2) the Code of Ur-nammu; (3) the Code of Lipit-Ishtar.

Entries in the ana ittišu Series. The bilingual (Sumerian-Akkadian) series ("dictionary" texts) known from its opening Akkadian entry as the ana ittišu, a collection of legal terms drawn up for the use of Babylonian scribes, contains 12 paragraphs, in two separate groups, of Sumerian laws with Akkadian translation. Although the preserved tablets of this series were written in the 7th century b.c. for the library of Assurbanipal (Asshurbanipal) at Nineveh, the laws themselves are probably at least as old as the Third Dynasty of Ur (c. 2060-1950). The first six paragraphs are commonly known as Sumerian Family Laws because they state the penalties attached to repudiation of one member of a family by another: a father or mother by a son, a son by a father or mother, a husband by a wife, a wife by a husband. (For the text and translation, see Driver and Miles, The Babylonian Laws, 2:308313.)

Closely related to these Sumerian Family Laws are the nine laws on the tablet from the Old-Babylonian period published by A. T. Clay as No. 28 of his Miscellaneous Inscriptions in the Yale Babylonian Collection [Yale Oriental Series 1 (New Haven 1915) 1827].

Code of Ur-nammu. A tablet from the Old-Babylonian period published in transliteration and translation by S. N. Kramer [Orientalia 23 (1954) 4051] preserves the first section of the Code of Ur-nammu, first king (c. 20602043 b.c.) of the Third Dynasty of Ur. The extant portion of the prologue, in which this king refers to certain historical events of his reign, shows that this is an official code of laws in the technical sense. Official legal codes of ancient Mesopotamia place the corpus of laws between a prologue and an epilogue, both of a religious nature, in which the royal legislators speak of their authority as having been received from the gods and in which they invoke the gods in curses to punish the violators of the laws. In this code, the Sumerian King Urnammu, after attributing his kingship and victories to the high gods, states that he was appointed by them "to establish justice in the land." By this expression is meant the protection of the poor and weak and the maintenance of the traditional customs and rights of the various social classes by the authority of the king. Of the laws themselves only seven are partially preserved on the tablet. Most of them are concerned with bodily injuries done to one man by another.

Code of Lipit-Ishtar. Although composed in the early post-Sumerian period by Lipit-Ishtar, the fifth king of the Semitic Dynasty of Isin (c. 19831733 b.c.), this code is still written in Sumerian. Large parts of it have been preserved on seven clay tablets, almost all from Nippur. The most complete publication of the text is by F. R. Steele [American Journal of Archeology, Concord, NH 52 (1948) 425450]. An English translation of it is given by S. N. Kramer (J. B. Pritchart, Ancient Near Eastern Texts Relating to the Old Testament, 159161). Between the usual prologue and epilogue, the extant 38 laws treat of the hiring of boats, real estate, slaves, defaulting on taxes, inheritance and marriage, and rented oxen.

Babylonian Codes. In taking over the culture of the Sumerians almost in its entirety, the Akkadian-speaking Semites of ancient Mesopotamia also continued the Sumerian laws, not only in substance, but even in their formulation, so that the earliest Babylonian laws may be regarded as more or less translated from the older Sumerian laws, with certain adaptations for current conditions. The Old-Babylonian laws have been preserved particularly in two codes, that of the kingdom of Eshnunna and that of Hammurabi, King of Babylon.

Code of Eshnunna. The city of Eshnunna (modern Tell Asmar) was the capital of an Amorrite kingdom in the Diyala region east of Baghdad that flourished between the end of the Third Dynasty of Ur (c. 1950 b.c.) and the rise of the empire founded by Hammurabi (17281686 b.c.). Knowledge of this code comes from two tablets found in the 1945 and 1949 archeological excavations at Tell Abu Harmal, a small site near Baghdad, which in ancient times was an outpost of the kingdom of Eshnunna. Both partly mutilated tablets are private copies, with certain small variants, of an earlier, already somewhat corrupt copy of the original code. The copies reduced the prologue merely to a date formula and apparently omitted the whole epilogue. Since one of the tablets was written during the time of King Dadusha of Eshnunna, who reigned a generation before Hammurabi, and the other tablet is a little older, the original code, which is in Akkadian, must have been composed several generations before the Akkadian Code of Hammurabi. Its relationship in age with the Code of Lipit-Ishtar is uncertain. The text was published by A. Goetze [provisionally in Sumer 4 (1948) 63102, and definitively, with translation and full discussion, in Annual of the American Schools of Oriental Research 31 (1956)]. In the first edition of the text, on which Goetze's English translation (J. B. Pritchard, Ancient Near Eastern Texts Relating to the Old Testament 161163) is based, the name of the king who composed the code was read as Bilalama, one of the early kings of Eshnunna, but this reading proved untenable. The name of the author of the code is unknown.

The 60 extant laws of this code treat of maximum prices (12), hiring a wagon (3), boats (46), wages of farm workers and the hire of a donkey (711), trespass and unlawful entry (1213), business transactions (1321), unlawful distraint (2224), engagement and marriage (2930), defloration of a slave girl (31), raising of children by others than their parents (3235), deposit (3637), sales and purchases (3841), bodily injury (4248), slaves (4952), damage caused by animals or falling masonry (5358), divorce (59), and neglect in guarding a house (60). A remarkable feature of the code is that many of the laws are formulated, not in the usual casuistic style ("If , then "), but as apodictical statements: "One kor of barley is priced at one shekel of silver; three qa of very light oil are priced at one shekel of silver," etc.

Code of Hammurabi. The most important and best preserved of all the law codes of the ancient Near East is the Code of hammurabi (hammurapi), sixth king (17281686 b.c.) of the First Dynasty of Babylon. It is inscribed in Old-Babylonian monumental script on a diorite stele, 7½ feet high. Although the date formula of Hammurabi's second regnal year is "The year he enacted the law of the land," the code as inscribed on the stele must represent a later revision, because the Prologue mentions several events of the King's later years. Originally the stele stood in the temple of E-sagila at babylon. It was carried off to Elam as war booty, probably in the 12th century b.c. In 1902 it was found by French archeologists in the course of their excavations at Susa and published, with a French translation, in the same year by Vincent Scheil [Memoires de la delegation en Perse 4 (Paris 1902)]. The stele is now in the Louvre Museum, Paris. On top of the obverse is a bas-relief depicting the King standing in worship before the enthroned sun-god Shamash, who is also the god of justice. It is sometimes stated that the scene portrays Shamash as giving the law to Hammurabi, but there is no basis for this, either in the bas-relief or in the text. Shamash holds out in his right hand the staff and ring as symbols of his divine authority. In the prologue and epilogue of the inscription the King thus expresses his relationship to Shamash: "I, Hammurabi, am the king of justice [i.e., just king], to whom Shamash has bestowed the right things [kīnātim ] obedient to Shamash to rise like Shamash over the people at the command of Shamash, the great judge of the heavens and the earth, to make justice shine forth in the land" (reverse 25.9598; obverse 2.23; 1.40; reverse 24.8288). Similarly described is the relationship between the King and Marduk, the national god of Babylon (e.g., obverse 5.1424). Nowhere is it stated that Shamash or Marduk gave the laws of the code to Hammurabi. The king, it is true, derived his authority to legislate and judge from the gods, but the law was his own; it was not a revealed law, like the law of Israel.

The stele is inscribed on the reverse as well as the obverse, and the whole text is almost perfectly preserved except for 16 lines at the bottom of the obverse. These lines were obliterated, most likely by the Elamites, who intended, but never carried out the plan to put an inscription of their own in this place. However, certain parts of the text of these lines can be restored from copies that had been made on clay tablets of various parts of the inscription. These tablets also duplicate, with variant readings, parts of the code that are preserved on the stele. The most complete publication of these tablets as well as the text of the stele itself, with a Latin translation, is by A. Deimel [Codex Hammurabi (Rome 1930; 3d rev. ed. by A. Pohl and R. Follet, Rome 1950). An English translation of it by T. J. Meek is given in J. B. Pritchard, Ancient Near Eastern Texts Relating to the Old Testament, 163180].

The Code of Hammurabi is essentially a compilation of the older laws and customs of ancient Mesopotamia, most of them going back to Sumerian times. Hammurabi boasts that he rendered the Sumerian laws into the language of his people, classical Old Babylonian: "When Marduk sent me to rule the people and govern the land, I established right and justice [kittam u mišaram ] in the language of the land, thereby promoting the people's welfare" (5.1424).

The prologue is concerned mostly with recounting the benefits that Hammurabi bestowed on his country, particularly the various favors given to the different temples throughout the land. The epilogue, after briefly reviewing the achievements of the King, is taken up with curses on those who violate the laws or damage the stele.

The large, central part of the inscription contains the laws. In modern editions these are divided into 282 sections. The individual laws are often joined in logical groups, but there is usually but little logical sequence between the various groups. The principal groups of laws are concerned, in this order, with: false accusations; retraction of judgment by judges; theft; kidnapping; fugitive slaves; burglary; robbery; ransoming of captives; substitution of conscripts; property of soldiers; rent; irrigation; fields; orchards; loans; sale of fermented liquor; debts; embezzlement; slander; marriage; sexual crimes; inheritance; legitimation of children; adoption; substitution of another child by a wet nurse; maltreatment; damage done by a surgeon; houses and ships; cattle; damage done by cattle; theft of grain, seeds, and farm tools; hiring of people and animals; cattle breeding; and slaves. The social classes are distinguished in the code: the awēlū, citizens with full rights and full responsibility; the muškēnū, free men with limited rights and responsibilities; and the wardū, slaves. The laws presuppose a very highly developed civilization, basically agricultural, but with considerable commerce.

Since the period of Hammurabi corresponds roughly with the period of the Israelite patriarchs, the relationship between his code and the Mosaic Law has often been discussed. There are undoubtedly a few similarities that help to elucidate certain Old Testament customs, such as the husband of a childless wife begetting children in her name by the wife's slave girl (cf. par. 144147 with Gn 21.914). The similarities, however, are due to the same juridical customs throughout the ancient Semitic milieu, not to any borrowings by the Israelites from Babylonian laws. In general, the material culture envisioned by the Code of Hammurabi was much higher than that of the Israelites either in the patriarchal period or in the Mosaic period. One of the closest resemblances, even in words, between the code and the Mosaic Law is in the laws of retaliation ("an eye for an eye, a tooth for a tooth"; cf. par. 196197, 200 with Ex 21.2325; Lv 24.1920; Dt 19.21). But these are instances of ancient tribal customs that had almost died out in the Babylonia of Hammurabi's time.

Neo-Babylonian Laws. A school tablet (writing exercise in a scribal school) published by F. E. Peiser [SBMünch 18 (1889) 823828] contains 16 laws, of which only 9 are intelligible. The tablet was written in the NeoBabylonian period (626539 b.c.) and apparently represents the legal customs of this time. But these laws are probably not extracts from any code in the strict sense. The best preserved are concerned with marriage customs. (An English translation by T. J. Meek is given in J. B. Pritchard, Ancient Near Eastern Texts Relating to the Old Testament 197198.)

Assyrian Laws. In addition to a few fragmentary tablets with laws from the Old-Assyrian trading post of Kanes (modern Kultepe) in eastern Asia Minor, dating from the first centuries of the 2d millennium b.c., a considerable corpus of Middle-Assyrian laws are known from tablets found by the German archeologists who excavated (190314) the ancient city of assur (modern Qalāt Sherqāt). These tablets, now in the Staatliches Museum, Berlin, were published by O. Schroeder [Keilschrifttexte aus Assur verschiedenen Inhalts 1.7 (Leipzig 1920) ] and E. F. Weidner [Archiv für Orientforschung 12 (1937) 5052]. Although the tablets date from the 12th century b.c., the laws themselves are probably a few centuries older. About 116 laws, some of them of considerable length, can be reconstructed from the tablets. They contain prescriptions on sacrilege, theft and receipt of stolen goods, assault, murder, rape, slander, abortion, flight of married women, adultery, marriage, divorce, debt and surety, veiling of women, widows and wives of prisoners of war, sorcery, bodily injuries, deflowering of a virgin, manner of inflicting corporal punishment, sale of real estate, irrigation, sale of slaves, animals, theft, shipping, blasphemy, hereditary rights, etc.

The laws on women, marriage, and sexual crimes are the longest in this compilation. Characteristic of Assyrian law is the common infliction of corporal punishment, on women as well as on men, such as flogging with from 20 to 50 stripes, and amputations of various parts of the body. In contrast, penalties in Babylonian law are mostly in the form of fines. Incarceration as a penalty was not practiced in the ancient Near East. Many of the Assyrian laws are more complicated and less clearly worded than the Babylonian laws. Moreover, they give more consideration to subjective factors, such as intention, knowledge, and ignorance. (An English translation of the Middle-Assyrian laws by T. J. Meek is given in J. B. Pritchard, Ancient Near Eastern Texts Relating to the Old Testament, 180188.)

Hittite Laws. Two of the many tablets found in the archeological excavations from 1906 to 1912 of the Hittite capital on the site of modern Bogazköi contain part of a collection of Hittite laws from the middle of the 2d millennium b.c.. Each tablet contains 100 legal paragraphs, formulated casuistically in a short and clear manner. Reference is made to a similar third tablet, but this has not been recovered.

The text contains various prescriptions on: maltreatment and murder, sorcery, mutilations, kidnapping, fugitive slaves, divorce, marriage, hiring of men and animals, feudal estates, stealing of cattle, damage to cattle, burglary, incendiarism, agriculture, theft of animals, prices, wages, bestiality, other sexual crimes, etc.

Of special interest is the fact that in many of the paragraphs more than one version of the law is given. The more recent version represents a later stage of legislation or customary law, and the compiler was interested in differences of local customs. The collection was compiled in a disorderly fashion, the same legal matters often being treated again in different places. (An English translation of the Hittite laws by A. Goetze is given in J. B. Pritchard, Ancient Near Eastern Texts Relating to the Old Testament, 188197.)

Egyptian Laws. There are good reasons for thinking that the ancient Egyptians possessed written laws, even though these have not been preserved. Diodorus Siculus (Bibliothecae Historicae 1.25), who wrote between 60 and 30 b.c., states that in the great Egyptian courts of justice a number of scrolls containing the text of all the laws were laid before the judges. On a representation of a court of justice of the 18th Dynasty (1570c. 1304 b.c.) 40 long objects, probably law scrolls, lie on four mats at the feet of the vizier Rechmerê. [See A. Erman, Aegypten und aegyptisches Leben im Altertum (Tübingen 1922) 158.] Diodorus also gives the names of six famous Egyptian lawgivers whose laws were handed down in writing. The oldest, according to him, was Mneus, who received his laws from Mercury (i.e., the Egyptian god Thot, the god of the order of the world, the heavenly judge, the scribe of the gods, etc.). The other legislators were Sasyches, Sesostris, Bocchoris, Amasis, and Darius the Persian. If Diodorus is correct, the Egyptians ascribed at least to some of their laws a heavenly, i.e., a revealed origin. On a stone erected by Horemheb (second half of the 14th century b.c.) a very worn copy of a royal decree is given. In the 1940s a law in demotic writing was found at Hermopolis, but it has not yet been published.

Bibliography: g. r. driver and j. c. miles, The Assyrian Laws (Oxford 1935); The Babylonian Laws, 2 v. (Oxford 195255). e. neufeld, The Hittite Laws (London 1951). j. m. p. smith, The Origin and History of Hebrew Law (Chicago 1931). f. hrozny, Code Hittite provenant de l'Asie Mineure (Paris 1923). j. leroy, Introduction à l'étude des anciens codes orientaux (Paris 1944).

[j. van der ploeg]