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ANCIENT NEAR EASTERN LAW

2019-12-14 12:40:02DanielJustel
Journal of Ancient Civilizations 2019年1期

Daniel Justel

University of Alcalá (Madrid)*

Introduction

Law is a system of rules that a society develops to define and/or deal with social relationships, crimes, or particular types of agreements. Justice could also be defined as the moral principle that guides society in awarding each person what corresponds to his or her legal station in that society. Scholars have traditionally approached the origins and early development of these concepts through the usage of different cuneiform sources from ancient Mesopotamia. This paper hopes to extract an overview of the origins, nature, and historiographical differences of these approaches to Ancient Near Eastern legal systems.

Even if we cannot precisely identify the origin of the first legal system, it can probably be placed in the late period of prehistory, although the only possible point where one can with any certainty recognize a legal structure is after the invention of writing, which took place sometime around the middle of the 4th millennium BC, somewhere in southern Mesopotamia, potentially in Uruk. As the earliest texts show that there were obligations and expectations, thus we must assume that there was something like a conceptual legal structure into which these texts fitted, with an actual written structure perhaps only coming later. Some may contend that legal texts may already have been created by the beginning of 3rd millennium BC.1That is, from the Jemdet Nasr Period, c. 3000–2900 BC (cf. Molina 2000, 26); for the earliest texts, see ibid., passim; Wilcke 2003 and 2007; Lafont and Westbrook 2003.However, it is more realistic to think that legal concepts (as distinct from economic obligations and social responsibilities) may not have been expressed in any explicit form until centuries later.

Regardless, the tradition of Ancient Near Eastern law was gradually codified and expanded from the middle of the third millennium until the last centuries of the 1st millennium BC, so we face a time spectrum of more than 3,000 years when the idea of legal systems began to form in Mesopotamia, and at least two millennia during which legal codes were consciously developed. Most of the known law codes were written in Semitic Akkadian, while the earliest conceptual developments may have been in Sumerian. As the Sumerian way of thinking was quite different from the Semitic way of thinking, it would be difficult to disentangle the Sumerian influences. Thus, this long chronological span, and a highly complicated linguistic and cognitive history has made historiographical approaches towards the matter of Law in the Ancient Near East both diverse in nature and expression. The documented legal systems are evidently derived from specific places and have sometimes been considered to be isolated products, unrelated to previous or later systems, and even independent of nearby cultures. Nevertheless, it is highly probable that the reality we know as the Ancient Near East is the outcome of the interaction of different social groups with their different cultures and languages. It is difficult to tell how to interpret the various influences.

In order to approach the concept of “l(fā)aw” in Ancient Mesopotamia and its surroundings, we must primarily assign capital relevance to the concept of “word.” In ancient Mesopotamian terms, the written word could also reach the category of “l(fā)aw” and, as such, would be subject to power. Dealing with Old Babylonian times (19th–16th centuries BC), Dominique Charpin states that “l(fā)aw was the foremost preoccupation of rulers.”2Charpin 2010, 4.This word, expressed in varied legal texts – such as codes, edicts, and contracts –, becomes a full legal category, and therefore is taken as a rule. The word, seen as law, thus stands for the power of rulers in the Ancient Near East. Monarchs exercised their power through legal codes or edicts, and some even adopted the resemblance of a shepherd whose the most important task was preserving the well-being of their subjects.3In this regard, for the Old Babylonian period, cf. Feigin and Landsberger 1955, 146.

It is true that the idea of a primus inter pares ruler is not compatible within the Mesopotamian and Syrian social and ideological structures. Later on, in the Greek world, particularly in Athens, democracy will be understood as something located around the community, with an ideal of equality. The ultimate meaning of Mesopotamian Law, which could in principle be seen as something similar, contradicts the classic ideal by punishing people differently, depending on their social status. This is particularly noticeable in the Code of Hammurabi (18th century BC), which is a good example of the concept of the law as kittu. This Akkadian term carries, according to the Chicago Assyrian Dictionary, the generic meaning of “truth, justice, normal state,”4CAD K, 468–470.something stable and timeless, however it could also be understood as “correct procedure.” This is precisely how the Mesopotamian legal codes are presented and justify their value, as something made to endure in time. As such, for the Mesopotamian people the concept kittum had a clear connection with stability, exemplified in aspects such as the foundations of a house, the calmness of the stars/constellations, or an order. The judge, the basic figure in charge of exercising justice, must pronounce stable sentences, abandoning ephemeral intentions.

Along with these, in the Ancient Near East we find another concept of legal nature with different connotations: mī?aru. This term is translated in the dictionaries as “redress,”5CAD M/2, 116–118.and is generally understood as “justice” or, even better, “straight” or “equity.” This notion used, for instance, in royal edicts on debt forgiveness, would refer more accurately to momentary justice, which guaranteed the establishment at a given moment.6On these matters and the edicts of the Old Babylonian kings, cf. Kraus 1958; Veenhof 1997, 50–53; Charpin 2004, 308–308; 2010, 83–96.Some Mesopotamian texts even combine both concepts (kittu u mī?aru, “true stability and equity”), something that in present times we would call the “rule of law.”7Cf. Sanmartín 1999, 35–42. Following Sanmartín’s approach (ibid., 40), social justice was not the result of the will of the demos or the plebs, but of the royal desire, whose principal source was the king’s edict (?imdat ?arrim). In his opinion, stability was thus the product of, first, divine commands and, second, royal commands.

In the following, I will try to outline a general vision of the importance, nature, practice and historiographical interpretations around the law in the Ancient Near East, with the understanding that this refers to Mesopotamia and its surroundings.

Approaches to Ancient Near Eastern Law

Obviously, the previously mentioned legal codes or royal edicts do not alone allow us to understand and comprehend the Mesopotamian legal system. In fact, it is rather complicated to coherently group the various text genres and purposes of the documents within the Ancient Near Eastern legal field. Scholars have frequently proposed the analysis of specific textual examples of legal realities and situations, instead of presenting a more global vision of the intentions of the legal mechanisms. Maybe the only way we can get a real sense of the “l(fā)egal source” in the Ancient Near East is by approaching it from different angles: the legal and the historical.8On this point, I agree with Westbrook (2003b, 4–21), who in my view makes a correct general division of the legal sources of the Ancient Near East; cf. also Westbrook and Wells 2009, 20–25.On the one hand, we find the so-called “historical records,” which provide us with information on institutions and general or specific regulations. Among these records there are instructions, law codes, decrees, trial records, lexical texts, transactional records, letters, historiographical documents, and literary texts.9Cf. Westbrook 2003b, 5–12, where the author presents a brief summary of each of these sources, occasionally citing paradigmatic examples (coming from Mesopotamia, Anatolia, Syria, Egypt or the Biblical World).On the other hand, we also find “jurisprudential sources,” that is, rules which include court sentences. The origins of these sources are found in specific legal cases, that were on occasion recorded, or they were not recorded.10In the ancient Orient, the importance of the pronounced word is – occasionally – clearly visible in the written documents; for our purposes, sworn statements cannot be understood without the written documents – and vice versa. Westbrook 2003b, 12 even asserts that “in the ancient Near East, although writing was widely used to document legal acts, orality played a far more important role than in modern societies.” On these and other issues, from a theoretical perspective throughout history, see Miles Foley 2010.In any case, they undoubtedly demonstrated a model for legal decisions, which migrated from school to school throughout time. In words of Raymond Westbrook, “from an historical point of view, the test of validity for a source is its credibility; from a jurisprudential point of view, the test is its authoritativeness.”11Cf. Westbrook 2003b, 4.

Regardless of how we approach the abundant sources about the law in the Ancient Near East, we can wonder how law was practiced in everyday life. How aware were contemporary people (free and unfree) of the existing laws? Were legal codes actually applied? Were the actual decisions based on legal codes, or were the latter an outcome of daily practice? There are many recent studies that have dealt with these questions for the Ancient Near East. In this study we will not delve too deeply into this question. It does suffice, however, to say that theory does not mean it will always be put to practice. Be that as it may, it is still helpful to consider different aspects of this question.12On slavery in Greco-Roman and Jewish legal sources from a legal-historical approach, cf. Hezser 2005, 19–21.

First, we must keep in mind the geographic and temporal heterogeneity of the law codes of the Ancient Near East. Within this genre, we have texts of the third (Laws of Ur-Nammu), the second (Laws of Lipit-I?tar, Laws of E?nunna, Laws of ?ammurabi, Hittite Laws and Middle Assyrian Laws) and the first millennium BC (Neo-Babylonian Laws, Covenant Code and Deuteronomic Code). All these codes are similar in style and content, although they are preserved in different forms, mostly in monuments and clay tablets. While the Laws of Ur-Nammu, E?nunna, ?ammurabi, and probably the Neo-Babylonian Laws were originally inscribed in monuments,13Evidently, the clearest example is that of Hammurabi, whose famous stele is in the Louvre Museum.with numerous attested copies in clay tablets, the Middle Assyrian Laws and the Hittite Laws were more directly found in cuneiform documents from royal archives. What is more, the biblical codes are different in both form and structure.14For these and other related matters, see Westbrook 2003b, 8–10.

Traditionally, and particularly since the first publication of Hammurabi’s code,15The stele was unearthed in December 1901 by a French expedition to Susa conducted by Jacques de Morgan (the monument was carried from Sippar to Susa by the Elamites in the 13th century BC), and it was published by the Dominican Father Jean-Vincent Scheil only a few months later (Scheil 1902). Before this publication, the matter of Ancient Near Eastern laws had been tackled especially from the Egyptian and biblical perspectives. On the first historiographical interpretations soon after the edition of the Code of Hammurabi, cf. Jackson 2008, 11–12.academics have assumed that Mesopotamian laws reflect a real application of the law.16The most important attested Mesopotamian and Anatolian legal codes are those of Ur-Nammu, Lipit-I?tar, E?nunna, Hammurabi, New Babylonian Laws, Middle Assyrian Laws, or Hittite Laws. The study of reference still is that of Martha T. Roth (1997). These codes share common features, like the questions dealt with (civil and criminal rights), formulas (generally casuistic) and certain expressions, and the fact that they are eclectic, since they do not systematically deal with specific fields of jurisdiction.Nowadays we tend to doubt such an idea or at least question some aspects of this theory. We may ask questions such as: were legal codes legal collections of the royal court, or were they mere royal propaganda? Could they also have been intellectual material, produced and written by scribes with their ultimate purpose being more literary than legal? These different questions about the usage of these legal codes have resulted in two different general interpretations: juridical and academic. The scholars that support the first approach state that the laws reflected in the codes could have been used as paradigmatic examples, to which one could allude to during a trial as evidence for a favorable final verdict. Under this interpretation, it is also debated whether these codes are just mere specific examples of past trials.17In this regard, cf. Haase 1965, 22. Driver and Miles 1968, 48, for their part, considered the Code of Hammurabi, even without it being a “code” in a modern sense, a reliable legislative source.On the other hand, the second academic school of thought points towards this scribal practice as completely unrelated to real specific cases.18Charpin 2004, 50–51 directly considers the law codes as commemorative inscriptions. When speaking about them and other similar texts, he affirms (ibid., 50) that: “l(fā)a plupart de ces textes étaient cachés à la vue: on ne peut donc, comme on l’a fait trop souvent, parler à leur sujet de ?propagande?, puisque le ?publique? auquel ils étaient destinés n’était pas constitué par les sujets du roi. Il s’agissait d’abord des divinités, à qui étaient voués la plupart des batiments dont la construction est commémorée: la piété du souverain est soulignée, ainsi que son zèle à obéir aux ordres que les dieux lui ont adressés. Il s’agissait aussi pour le roi de laisser à ses successeurs une indication écrite qui survive éventuellement à son ?uvre, de fa?on qu’un de ses descendants puisse restaurer la construction en ruine et sauver son nom de l’oubli.” Jackson 2008, 14 suggests that “the laws collection of Hammurabi was the collective effort of a group of scholars and belonged to Mesopotamian legal science.” Finally, regarding the Code of Hammurabi, Fleishman (1999, 65, n. 33) argues that “it seems that legal practice sometimes received, in the law codes, the status of written laws,” and “each paragraph should be investigated on its own in terms of what we know about existing law.”

Furthermore, these legal codes are generally presented as casuistic formulas.19A conditional clause (if…) in the protasis followed by a verdict or a judgment in the apodosis (e.g. Law of Hammurabi 271: “if a man rents cattle, a wagon, and its driver, he shall give 180 silas of grain per day”).As stated by Samuel A. Jackson, “most who discuss the casuistic nature of the law collections quite freely admit that they are able to be used to extract some form of underlying ideal.”20Jackson 2008, 30. He (1975, 165) does not agree with Roth (2001), since the latter thinks that the cases presented in these laws could have been paradigmatic examples that in fact were used as standard patterns.However, not every Ancient Near Eastern code shows this casuistic formulation. Biblical legislation, for example, presents apodictic formulas. The first scholar stating this basic difference between Mesopotamian and biblical laws was Albrecht Alt.21Alt 1953; 1967. In this regard, see also Weinfeld 1973.Nevertheless, Shalom Paul (1970) was the first to present a systematic comparison between these two documental realities. For him, whereas the Mesopotamian laws showed a descriptive, retrospective, relative, conditional, subjective and personal nature, the biblical version would be prescriptive, absolute, compulsory and drastically imperative.22Even so, there are some cuneiform parallels in legal codes that present laws by means of apodictic formulations (i.e. Laws of E?nunna 15, 16, 51, 52). Other laws even combined both perspectives, the casuistic and apodictic (i.e. Middle Assyrian Laws A 40).

As for the daily practice of the legal codes, it should be underlined that no reference to them has been found in practical legal cases. Even if the edicts were not just literary exercises and were actually executed,23Cf. Charpin 2010, 86. For some interpretations that doubt the actual application of the mi?arumedicts, see Kraus 1958; Finkelstein 1961.this connection is not as clear for legal codes in relation to everyday examples (contracts or wills).24Analyses that tried to relate the stipulated issues in legal codes with the content of documents of legal practice abounded soon after the first edition of the Code of Hammurabi (cf. the volumes Kohler and Peiser 1904; Kohler and Ungnad 1909a; 1909b; 1910; 1911; Koschaker and Ungnad 1923).It is important to distinguish here between two complementary but ultimately different legal categories: the one performed by local institutions, and the other which was used by the monarchs and recorded in royal inscriptions from the second half of the 3rd millennium BC.25Cf. Lafont 2000, 15.

Several researchers, based on the laws of E?nunna or Hammurabi, have long ago seen these laws as not directly reflected in practical documents.26Cf. Eilers 1932; also Westbrook 1989, 216.Other scholars rather think that the absence of direct reference to legal codes in everyday cases is no reason for denying that they were actually applied or used as guidance. In this sense, Jackson states that “we cannot rule out the possibility that the legal cases presented in collections such as LH (i.e. Laws of Hammurabi) were discussed in the courtroom or at least influenced the reasoning of the judges in making their decision.”27Jackson 2008, 77.This last remark seems obvious in light of parallels between legislative provisions and legal practice cases. We may take as an example the relation between Hammurabi’s Laws 188 and 189 (18th century BC) and JEN 572, a specific case of adoption coming from Nuzi (14th century BC):

LH 188–189: If a craftsman takes a young child to rear and then teaches him his craft, he will not be reclaimed. If he should not teach him his craft, that rearing shall return to his father’s house.28Translation by Roth 1997, 119.

JEN 572:1–5Huitilla, son of Warteya, has given his son Naniya in adoption to Tirwiya, servant of Enna-mati. Tirwaya shall provide Naniya with a wife and train him in the weaver’s trade.15–18If Tirwiya fails to train Naniya in the weaver’s trade, Huitilla may in such circumstances take back his son Naniya.29Translation by Speiser 1963, 70.

These and other examples, even from very different times and geographical locations,30Like the proposed examples, with a temporal difference of around four centuries and also coming from different areas. On a comparison between both cases, cf. Lion 2004, 546–547.give us accounts of a certain legal continuity in Mesopotamia and also throughout the Mediterranean in ancient times (see below). The first comprehensive and systematic study to state this common legal tradition for all the Ancient Near East was the two-volume work edited by Westbrook.31Westbrook 2003a; 2003b, 4: “All the ancient Near Eastern systems belonged in varying degrees to a common legal culture, one very different from any that obtains today. At the very least, they shared a legal ontology: a way of looking at the law that reflected their view of the world and determined the horizon of the lawmaker.” Before proposing this statement, Westbrook himself (1994, 21–22) defended the complete unity of the legal sources of Mesopotamia, denying the idea of “change.”After an introduction to law in the Ancient Near East,32Westbrook 2003b.the volumes are arranged in chronological blocks: 3rd millennium, 2nd millennium and 1st millennium BC. Within each, the structure is similar: Egypt, Mesopotamia, Anatolia and the Levant, and International Law.33In each one of these subsections the number of contributions depend on the specific characteristics of the different archives (i.e., in 2nd millennium Mesopotamia there are more diverse legal realities (Old Babylonia, Old Assyria, Middle Babylonia, Middle Assyria, Nuzi) than in 3rd millennium Mesopotamia (Early Dynastic and Sargonic Period and Ur III Period)).The various contributions debated within the structural system of the work34Each contribution even has the same structure: Sources of Law, Constitutional and Administrative Law, Litigation, Personal Status, Family, Property and Inheritance, Contracts, and Crime and Delict.generally reveal many more similarities than legal differences within the cultures in the Ancient Near East. This transversaly and synchronic vision of the legal systems of that world openly suggests the existence of various legal interpretations that were common throughout different times and areas.35See the following three examples: 1) the assumption that a person has the right to a medical compensation appears in the Laws of Hammurabi, the Hittite Laws, and the Bible; 2) the case in which women abort due to the blows of a third party is raised in the Laws of Lipit-I?tar, the Code of Hammurabi, the Middle Assyrian Laws, and the Hittite Laws; 3) in the case of the rape of a young girl, differentiating between whether the crime had taken place in a field or in a city, is considered in the Hittite Laws and the Bible.

However, Westbrook’s approach might somehow prevent the explicit differentiation of legal aspects, both general and specific in the varied areas of study. It has only been recently that Jackson36Jackson 2008.threw doubt on this perspective of legal continuity as a comparative method.37Regarding research that employs this comparative method, one of the aspects drawing Jackson’s particular criticism is the high degree of selection among possible examples and their origins; he states that “the comparative method in ancient Near Eastern studies has been overshadowed by the study of the Hebrew Bible” (Jackson 2008, 20), especially with cases like that of the goring ox (cf. ibid., 1–2, n. 4).Accepting several similarities throughout time, particularly in Lower Mesopotamia, he also confirms some differences. The most significant ones come from the Hittite World, whose social peculiarities and political practice would lead to including changes in some specific insights of the laws, by mentioning a previous ruler’s legal mistakes and even admitting a military defeat.38On the contrary, admitting a battle defeat would have never been done, for example, by Assyrian kings. In this regard, cf. Jackson 2008, 56.Jackson also points out other differences such as the extreme cruelty in physical punishment used by the Egyptians and Assyrians in comparison with other legal codes.39Ibid., 222–223.

Over the last few years, gathering more studies and adding perspectives has proved to be a promising line of research. The transmission of, and relation between, Ancient Near Eastern and classical legal history has barely been touched upon in recent years. The first scholar who strongly underlined the impact of the Mesopotamian legal traditions on the early Greek and Roman juridical systems was Westbrook himself. His broad knowledge of Ancient Near Eastern legal systems helped him to connect both legal systems, that of the Ancient Near Eastern and that of the Classical world, sometimes putting aside theoretical approaches and focusing attention onto specific and real cases. Despite the initial rejections of Westbrook’s postulates from scholars of Roman law, his contributions soon “became required for honours seminars and made their way onto numerous reading lists and into countless footnotes.”40Du Plessis 2015, 113 (review of Westbrook 2015).Westbrook’s connections of both legal spheres were so suggestive that they constituted the starting point of lines of research and even the creation of investigation teams with this interdisciplinary perspective.41In this way, two posthumous re-publications of articles of Westbrook deserve special attention: Wells and Magdalene 2009 (with a very suitable title with respect to the aforementioned: Law from the Tigris to the Tiber. The Shared Tradition) and Westbrook 2015.The project Lebend(ig)e Rechtsgeschichte at Innsbruck University is a good example in this. They regularly organize international congresses on a specific topic,42E.g. interculturality, human and divine perception of justice, punishment and rights, justice administration procedural law, etc.always related to legality from this transversal viewpoint, and have published six volumes from 2007 until now.43Cf. the information and the publications of this project: https://www.uibk.ac.at/alte-geschichteorient/forschung/projekte/lebendige-rechtsgeschichte.html (07.03.2019).

Having taken these and other perspectives and historiographical interpretations into account,44Cf. Lafont 1994; Jackson 2008, 9–19.the great value of Ancient Near Eastern legal documents is undeniable. The methodological approach used deepens our understanding and will clearly provide us with new theories and conclusions. The future approach to understanding the ancient Mesopotamian legal system and its surroundings should undoubtedly start with the study of Legal History, Assyriology, Biblical Studies, or the Classical World. In this regard, in a recent study on Essene law, Aryeh Amihay45Amihay 2016, 10.calls for “greater interdisciplinarity” in future research on ancient law. The greatest difficulty and temptation that a dedicated scholar can have is that of falling into methodological imprecision and imbalance in sources and perspectives. This obviously happens regularly given the difficulty of understanding in depth the four – or even more – realities mentioned. The approach to the historical context of the time and the comparative method in between contemporary situations should under no circumstances allow us to stop questioning the degree of continuity of Ancient Near Eastern Laws over the millennia. One last approach might be to relate the legal system practiced throughout Mesopotamia and the religious and moral frames of the time, however this last aspect could be rather subjective.46On this and other possible approximations to Law in ancient Orient, cf. Jackson 2008, 253–255.Anyhow, the possibilities of study that such mentioned legal documents have to offer are vast and varied. Its variety is equally enriched by the constant edition of legal texts, which will undoubtedly expand our knowledge of Ancient Near Eastern societies.

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Wilcke, C. 2003.

“Early Dynastic and Sargonic Periods.” In: Westbrook 2003a, 141–181. — — 2007.

Early Ancient Near Eastern Law. A History of Its Beginnings. The Early Dynastic and Sargonic Periods (Revised Edition). Winona Lake: Eisenbrauns.

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