The Babylonian and Assyrian Legal Systems of Ancient Mesopotamia
Legal Systems Very Different from Ours
Professor David Friedman
Babylonia and Assyria were two empires of ancient Mesopotamia, a word that literally translates to “the land between the rivers” in Greek[i], as it was located between the Tigris and Euphrates Rivers,[ii] and covered modern-day Iraq, as well as parts of Turkey, Syria, and other surrounding countries.[iii] Mesopotamia is often referred to as the “cradle of civilization,”[iv] since “Assyria and Babylonia led the world in science, law, political development, mathematics, technology, and literature.”[v] Before the Babylonian and Assyrian empires, the Sumerians (whose exact origin is still uncertain but began ruling around 3500 BCE[vi]) followed by the Akkadians (beginning in 2350 BCE and forming the first regional state empire in Mesopotamia)[vii] lived upon and ruled over Mesopotamia.[viii]
It is important to distinguish between the Babylonians and Assyrians, as these groups, although similar in that they were both descendants of the ancient Akkadian peoples[ix] and spoke almost identical Semitic languages,[x] formed two distinct empires.[xi] The southern part of Mesopotamia was ancient Babylonia, while Assyria took over the northern part of the region.[xii] Nonetheless, their legal systems were very similar; thus, law that developed in Old Babylonia and evidently had influence over Assyria will be the primary focus of this discussion.
The Code of Hammurabi and Clay Tablets:
The Old Babylonian period took place from 2000-1600 BCE.[xiii] During the later part of this period, estimated around 1792-1750 BCE[xiv], King Hammurabi reigned over Babylonia, making it a “cultural supremacy” by not only forming an extremely strong military, but also by seeking to secure social justice throughout the land.[xv] With that being said, Hammurabi created the Code of Hammurabi (“the Code”), one of the most famous features of Mesopotamia and “the earliest-known example of a ruler proclaiming publicly to his people an entire body of laws, arranged in orderly groups, so that all men might read and know what was required of them.”[xvi] The Code, which was found in 1901, is carved on an eight-foot tall black stone monument[xvii] and contains 282 sections, some of which are missing, as the actual monument is only nearly complete. It is important to note that Hammurabi did not come up with these laws himself, as earlier contracts with very similar phrases have been located and it is evident that Hammurabi often added onto other already existing law.[xviii] Specifically, Hammurabi’s Code likely adopted and added onto common law of the Sumerians.[xix] Nonetheless, the Code remains as one of our guides to the Babylonian and Assyrian legal systems. Most notable in the Code is the theme of “eye for eye,” but this rule seems to apply only in instances where both parties are of equal classes.[xx]
Still, it is expected and it is true that because the Code was carved very long ago in such an ancient language, there are problems with the modern translations of the Code.[xxi] The Code has been translated many times, making each translation somewhat different and definitely not in the original wording of the Code.[xxii] Even though several interpretations of the Code exist, this flaw has not stopped historians from, nonetheless, applying the Code in their descriptions of the legal system of Babylonia.[xxiii] Besides the Code, the authors have also relied on other sources of law from before, during, and after Hammurabi’s reign to get a better sense of the Old Babylonian legal system as a whole. As will soon be discovered, these authors often depend on thousands of deeds, judicial decisions, letters, contracts, and other sources of law, and have coupled these sources with the Code to try and piece together the legal system of Babylonia.[xxiv]
As stated above, in studying Old Babylonian law, historians are dealing with an extinct language inscribed on certain material (clay, stone, etc.), not to mention such texts are likely missing pieces as they are thousands of years old; thus, each source presented must be questioned. With that being said, the main source for this paper is Babylonian and Assyrian Laws, Contracts and Letters by C.H.W. Johns. As the title of his book suggests, Johns references thousands of contracts and letters from Mesopotamia, yet makes it clear that problems do occur in copying ancient inscriptions due to grammar and vocabulary issues, as well as the nature of the contracts and letters since we do not know exactly under what circumstances and with what intent they were written.[xxv] Thus, although the sources are all there, they are not completely helpful in accurately describing Mesopotamian legal systems. Similarly, Johns states, “[n]umerous as our documents are, they do not form a continuous series,” meaning that the contracts and letters may be from any day in a period spanning hundreds of years, in hundreds of different situations, and among hundreds of different members of society. For instance, one letter might be from an ordinary Assyrian man, while another might be from an Old Babylonian king.
Throughout his book, Johns constantly references the Code (under his translation) and, when he mentions aspects of the Old Babylonian or Assyrian legal systems without referring to the Code, he interprets such information from the previously mentioned contracts and letters, some of which are translated at the end of his book. Regarding letters, Johns mentions that such communication was often not dated and was carved into a piece of clay shaped like a miniature pillow and placed into an “envelope,” a thin sheet of clay.[xxvi] Johns states that the most important letters are those of Hammurabi, as they obviously give a much fuller insight into the times of Hammurabi.[xxvii]
I will often compare and contrast Johns’ book with two other important sources to get a better feel of what the law might have really been like. In The Babylonian Laws, a two-volume set, G.R. Driver and John C. Miles translate the Code of Hammurabi, as well as other Babylonian and Assyrian laws derived from clay tablets, often adding commentary of their own.[xxviii] They also come to the conclusion that society during Hammurabi’s time followed other established ordinances, besides the Code, as several sections of the Code refer to outside rules by stating “as in the King’s ordinances.” However, such ordinances are not available to us. Driver and Miles maintain the idea that Mesopotamia, from the Sumerian times to the Assyrian times, followed generally the same common law.[xxix] I will also compare comments and translations by Georges Contenau from his book, Everyday Life in Babylon and Assyria.[xxx] Contenau was a French archeologist and translated texts from Babylonian and Assyrian clay tablets. This book is a direct translation of Contenau’s original French version, but the translators, K.R. & A.R. Maxwell-Hyslop, have included notes where they find them necessary to better explain the text to English readers.
I have also utilized various secondary sources, including Johns’ commentary in the 11th edition of The Encyclopedia Brittanica (1910-1911), and other sources that are referenced and available in the endnotes. Similarities among sources will indicate possible accuracy in translating the Code, contracts, and letters, and the differences will display the ongoing uncertainty of specific areas of Babylonian law.
Old Babylonian Society
The General Class System
Old Babylonia had “three great classes, the amêlu, the muskênu, and the ardu,”[xxxi] as stated by Johns. The amêlu included the king (who, according to Contenau[xxxii], publicized laws, fixed the calendar and taxation, and decided when to begin and end a war), chief officers of state, and landed proprietors.[xxxiii] With such strong titles came increased fines and punishments for liabilities.[xxxiv] Though, we still continue to see the “eye for eye” theme.[xxxv] Amêlu class members were viewed as “gentlemen” or “noblemen”; however, over time and under the Code, amêlu often meant no more than a man who was a craftsman.[xxxvi] The muskênu, on the other hand, included most of the subject-population—the common, free man who owned slaves, paid less than an amêlu for doctor fees, and paid less to a wife for a divorce.[xxxvii] A muskênu was “a person of less consideration,” but he had no legal disability as far as the Code tells us under Johns’[xxxviii] and Contenau’s understanding.[xxxix] However, Contenau believes that the Muskênu was extremely poor and only a small step up from a slave, and actually considers the “free man” to be at the very top of the social ladder[xl] (I would have to disagree, as the free man could still be very poor and lower on the social ladder). Johns believes that Muskênus probably included a slave’s child adopted by free parents, and he later mentions, as will soon be seen, that adoption of a slave’s child results in the child being free.[xli] Finally, all authors agree that the ardu was the slave.[xlii]
According to Contenau, ardus were marked in some way, yet we do not know exactly how.[xliii] Slaves were controlled by their masters in a parent-child type relationship and were considered chattel, especially since they could be “pledged for debt.”[xliv] A slave was, thus, property of the owner.[xlv] Runaway slaves are often mentioned in the Code, which Johns believes is indicative of a slave’s miserable living conditions.[xlvi] Under the Code, it was a crime to harbor a slave or to keep a runaway slave that one found, and damages would be owed to a master for injuries to his slave.[xlvii] A slave was subject to mutilation if he attacked a free man or repudiated his master, yet a slave was oddly permitted to marry a free woman (their children would be free—both Johns and Contenau agree on this) and could own property with her.[xlviii] However, unlike the free man, the slave’s master acquired the slave’s property at the slave’s death rather than the slave’s children acquiring the property.[xlix] Additionally, a master was required to pay for medications and care if his slave was ill.[l] So, then, a master did not truly have full power to treat his slave as he wished.
As declared by Johns and Contenau, most of our understanding surrounding Babylonian slavery comes from the documents (on tablets) concerning the sale of slaves.[li] Such documents have suggested that slaves could be returned if the buyer found a “defect” in the slave, whether it was physical (such as a serious disease—a very horrible disease, the bennu, is mentioned in several Babylonian contracts, and the sibtu is mentioned in Assyrian deeds and Contenau believes it was some sort of paralysis), or the fact that the slave had a tendency to run away.[lii] These defects clearly lowered the value of the slave, and understandably so, because what good is a slave to his master if the slave is about to die or is so ill that he cannot work and fulfill his purpose?
Johns also mentions the abundance of information on Assyrian slaves, particularly concerning the differences between male and female slaves. Male slaves lived in their master’s house until the master found him a wife to marry, and the wife was often a female slave.[liii] Female slaves lived in their master’s house until they were old unless they married a slave, since married slaves lived in their own homes.[liv] An important thing to note is that slaves, according to Johns, were sold with their families and never alone (unless the slave young man would naturally leave his family home at that age, had he been free).[lv] However, Contenau disputes this point and claims that a master could sell the children from slave marriages separately, but this was not a common practice.[lvi] Therefore, it is likely that slaves were generally sold with their families.
Next comes a class—the rîd sâbî and the bâ ́iru—whose roles are uncertain, according to Johns.[lvii] Under Johns’ interpretation of the Code, these two titles were closely connected officials who “had charge of the levy, the local quota for the army, or for public works.”[lviii] They each had a benefice, containing land and other property, with the king being the benefactor that such things were credited to.[lix] They were basically the king’s servants and had to follow his orders at all times, including being away from home and family for a long time, or else they would have committed a penal offense.[lx] These officials would often be engaged in military tasks and, if caught by an enemy, would have to pay for their own ransom (if they could not pay, their towns might help them, and if their towns could not pay, the state might).[lxi]
Johns and Driver & Miles speak of another interesting class, the votaries, consisting of females who were vowed to God[lxii] (to either Shamash, the sun god and the god of justice, or Marduk, the chief god).[lxiii] Driver & Miles believe that fathers were the ones to offer their daughters as votaries to a god.[lxiv] The votary was to be respected by the people, as indicated in Johns’ translation of the Code: “§ 127. If a man has caused the finger to be pointed at a votary, or a man's wife, and has not justified himself, that man shall be brought before the judges, and have his forehead branded.”[lxv] Further, the votary lived in a “bride house,” or convent.[lxvi] This did not mean she was constrained to stay in the convent forever, as she was even permitted to leave and marry; yet, she was still required to maintain her respect.[lxvii] For example, under the Code, if a votary opened a “beer-shop” or even drank in one, she would get burned as a punishment.[lxviii] In addition, a votary was forced to remain a virgin even if married, forcing her to give her husband a maid to have children with if he wished to do so.[lxix] However, Driver & Miles make note that votaries often had children, but they were not legitimate, according to tablets.[lxx] Even if a votary was not married to a man, her vow to the god allowed her to rank as a married woman and be protected from public slander.[lxxi]
Contenau declares that the available contracts make it clear that a seller is he “who gives, who delivers” and a buyer is he “who fixes the price.”[lxxii] There was great responsibility on the seller regarding the object he sold. For example, Contenau brings up a section in the Code: an architect who built a faulty house in which the owner died due to the house’s defect would be killed; if the owner’s child was killed, the architect’s child would also be killed[lxxiii] (eye for eye). Similarly, the builder of a leaky boat had to fix the boat and pay for it himself.[lxxiv]
Both Johns and Driver & Miles speak of partnerships; however, their thoughts tend to differ. Johns states that partnership can be as simple as two men buying a piece of land together.[lxxv] Partnerships also included two people doing business together in that each partner contributed a certain amount of money and shared profits—such a partnership was over when each partner took his share, but a partnership renewal was still possible.[lxxvi] Johns makes sure to note that further research about partnerships is needed, but he continues to rely on clay tablets, since the Code, in his translation, at least, makes no mention of partnerships.[lxxvii] On the other hand, Driver & Miles translates the Code as including partnerships in § U[lxxviii] (Note: Both authors are missing certain sections of the code, specifically after § 65 and before § 100, and include letters instead. Johns has three sections in this gap [X, Y, Z], while Driver & Miles have A through V. The Code of Hammurabi was missing some sections, as it was almost whole when found—the extra sections inserted by various authors might be what they believe to have been in the law according to copies of the Code or other texts). § U states, “If a man has given silver to a man for a partnership, they shall divide the profit or the loss which there may be in proportion before a god,” indicating an equal partnership that carries out a certain aspect of business but ends when that business is taken care of,[lxxix] just as Johns argued. However, as mentioned in the note, not all translators of the Code agree that the partnership section was included—still, it is evident by at least some clay tablets.
The Legal Process and Penalties
Judges are mentioned in the Code, although not to a great extent; even so, Johns believes that judges decided the penalties of those who violated the Code.[lxxx] I agree, as Judges were often punished for decision-related functions under the Code. Judges were truly bound to their duties in court, as they would be dismissed from their positions just for revoking previous decisions, since judgments were irrevocable under the Code, Johns states.[lxxxi] Judges had to examine the words of witnesses and, in capital punishment cases, a judge would likely give six months for the accused to find and get help from witnesses,[lxxxii] which I view as displaying the importance of witnesses as well as the value of evidence and fairness in the justice system. Unlike in several civilizations, families could not cut off or disinherit their sons, children could not kick out from their homes their widowed mothers, and a widow with children could not remarry unless first asking to do so before a judge.[lxxxiii] There is no evidence of whether a judge was paid for carrying out his duties, but he was highly respected and honored by the people; in fact, it is very likely that the king acted as judge from time to time in certain cases.[lxxxiv]
Although we do not know how judges were ranked, Johns argues that some judges were regarded as more “royal” than others, as we see evidence, from clay tablets, of there being “king’s judges.”[lxxxv] Additionally, evidence points to the role of judge as being hereditary, passing on from father to son(s).[lxxxvi] In fact, there is evidence of one woman, though also a scribe, among the judges, but it is still not clear whether she was a judge’s daughter and, if so, whether daughters had an absolute right to be a judge if there was no son.[lxxxvii]
Driver & Miles also mention that not much is known about judges and they actually rely on the research of others in determining the roles of judges[lxxxviii] (likely from clay tablets). Yet, similar to Johns’ theory, the letters of Hammurabi actually make it quite clear that Hammurabi often acted as judge, dealing with offenders and punishing them, but that he preferred to refer cases to the courts.[lxxxix] One interesting point Driver & Miles make is that judges are mostly referred to in plural, indicating that they might have sat together and agreed on one decision; with that being said, the authors go on to suggest that when the singular term “judge” is used, the judge might have only acted as the leader of a group of judges (a Neo-Babylonian tablet mentions a “president of the court”).[xc] This seems plausible; although, does this mean that the entire bench of judges would be punished for violating the Code, or would the “president of the court” only be punished?
As argued by Johns, in-court cases had a complex procedure. First, the plaintiff would make a statement and then the defendant would make a counter-statement in front of the judge.[xci] The object or deed at issue was brought into court and placed in the hands of the god, so that “the decision was ‘the judgment of Shamash.’”[xcii] Witnesses would be take an oath in front of the king and god, and a jury was present in court; interfering with the duties of witnesses and jury people was punished under the Code.[xciii] As mentioned above, evidence was important and a judge would often go to the estate at issue to see it for himself in estate disputes.[xciv] Judges then made a final decision, and damages were even rewarded when debt or compensation was owed.[xcv] It is important to note the significance of an “oath of god” in Babylonia (and religion’s role, as a whole, which will be mentioned in another section), as the oath is mentioned quite often in the Code since it was likely administered by judges to parties and witnesses and even occurred in contracts.[xcvi]
As reported by Johns, out-of-court settlements were common between parties, with a scribe drawing up the contract that was binding after both parties “swore by the gods and the king.”[xcvii] He likely came to this conclusion based on many contracts from such settlements carved onto tablets. Witnesses would often be involved and have their names written on the contract and both parties and the scribe kept a copy of the contract[xcviii] (perhaps identical tablets were found?). When something went wrong, these cases were apparently brought to a judge.[xcix]
For some reason, Johns is the only author, of the three I am covering, who goes into detail about witnesses in cases, and his proof comes from both the Code and the tablets. There were three types of witnesses: those who were the elders of the city and were likely nominated or approved by the king, sometimes even including other judges; those who the parties chose to testify in their favor or those who the judge chose because he believed they would know needed facts; and, those such as parties’ family members, neighbors of the property at issue, or officials who were somehow involved, who witnessed documents.[c] Johns asserts that witnesses had to take an oath during Old Babylonian times, but in Assyrian times, witnesses did not have to take an oath.[ci]
Most authors generally agree upon the translation of penalties under the Code, indicating that such penalties were likely. Johns claims that, under the Code, plaintiffs who lost their cases did not go unpunished, especially if they purposely brought false claims. In serious cases, such a mistake would be punished “eye for eye” (example—in § 3 of the Code, if a false claim was used in a capital punishment case, the accuser would be put to death).[cii] Most authors agree, including Driver & Miles, as their translations of §§ 1-4 of the Code prove various punishments existed for false accusers. This is interesting because it shows the respect for a court’s time and money spent to try cases, much like how modern judges do not like to waste court efficiency and adequate function, as well as respect for a falsely accused defendant. Furthermore, after reviewing tablets, Johns asserts that if litigants chose to reopen cases, they would possibly be subject to “dedicate” their eldest child to a god or goddess as a “burnt offering”—this was a huge deterrent to stop others from wasting time to open an already closed decision, but there is no proof that it was ever used, as, most of the time, some form of payment was required instead.[ciii] I would agree that such a penalty was only probably used as a deterrent to maintain court efficiency, since other penalties had the same goal of keeping order.
Johns moves on to criminal penalties, which are extremely harsher than we are used to. Capital punishment was inflicted on violators of the Code who were accused for theft, rape, death by assault, death caused by a bad building,[civ] and other crimes[cv] like incest, selling beer too cheaply (this one is odd . . . causing people to become drunk more easily and getting into serious trouble was the reason, perhaps), adultery, and more. Note that actual “murder pure and simple” is never mentioned in the code; however, we see several of cases of murder, even those caused by fatal assault, being punished with the death-penalty under the Code, so the punishment for such a crime was likely assumed to be an equal death (eye for eye).[cvi] There were different ways to carry out the death penalty, including death by drowning, death by fire, impalement on a stake, and possibly other methods that are not specified in the Code because some sections only mention “he shall be killed”[cvii] (Driver & Miles agree with this translation).
The next worst penalty was mutilation. According to Johns, there were two types of mutilation under the Code: “retaliation for bodily disfigurement,” such as the “eye for eye, tooth for tooth, limb for limb” theme, and mutilation “symbolic of the offence itself.”[cviii] The latter type of mutilation involved penalties like “the hands cut off mark the sin of the hands in striking a father, in unlawful surgery, or in branding,” as well as “[t]he eye torn out [for] . . . punishing of unlawful curiosity”; “[t]he ear cut off marked the sin of the organ of hearing and obedience”; and “[t]he tongue . . . cut out for the ingratitude evidenced in speech.”[cix] For “a gross assault on a superior,” scourging was done, which was carried out “with an ox-hide scourge, or thong, and sixty strokes were ordered” in public against a violator.[cx] Incest between a father and daughter resulted in banishment from the city.[cxi] Also, once again, the “eye for eye” theme was used, but affecting personal property (children and slaves were like chattel), such as “son for son, daughter for daughter, [and] slave for slave.”[cxii] Some cases were required to be left unpunished with no remedies, including “[c]ontributory negligence, the natural death of hostage for debt, [and] the accidental goring of a man by a wild bull.”[cxiii]
Penalties under the Code, like the ones for surgeons (for malpractice on a free man resulting in the free man’s death, the surgeon would get his hand cut off, and for doing the same to a slave, he would owe the master another slave), display the theme of strict liability for all professionals, as stated by another secondary source (refer to endnotes).[cxiv] § 235 of the Code also enforced strict liability against shipmen: “If a shipman has caulked a ship for a man and has not made his work secure and so that ship springs a leak in that very year or reveals a defect, the shipman shall break up that ship and shall make the ship sound out of his own property and give back a sound ship to the owner of the ship.”[cxv] Thus, privity was required, but not negligence—only a mere defect was required to be held liable, just as in the modern idea of strict liability.[cxvi] The idea of strict liability in Babylonian society was likely true, as most translations are similar regarding such sections of the Code. Lastly, if you refer back to the surgeon malpractice example, note that penalties resulting from wronging a slave and penalties resulting from wronging a free man greatly differed in that they were expectedly harsher for wronging a free man.
Johns mentions that there is no evidence of a police administration; Driver & Miles flat out say that there was no police force.[cxvii] Consequently, one would think that there was likely no police force and, even if there was one, it perhaps consisted of soldiers who regulated prisoners of war (which will later be illustrated) rather than society as a whole. Even so, a less reliable source[cxviii] claims that there was a police force that consisted of soldiers who were sent to shoot or arrest brigands (thieves, gangs, etc.) who wandered in the countryside; still, there is no real proof for this assertion.
Johns asserts that there is not much information on marriage in Assyrian times and in the late Babylonian times, but clay tablets make it highly likely that the laws of Old Babylonia regarding marriage remained unchanged for the entire Mesopotamian period after Hammurabi’s time,[cxix] while Contenau brings a different perspective, claiming that texts have shown that wives were not bought and sold in late Assyrian and Neo-Babylonian times.[cxx] As asserted by both Johns and Driver & Miles, prior to an engagement and marriage, the man was the “suitor” and once he hoped to marry a girl, he brought gifts (more gifts for poorer families and less gifts for richer families of brides), such as money and/or slaves, to her parents, and the father (or, in some cases where there was no father, the mother) had to accept or decline the engagement.[cxxi] Parents eventually gave this money to their daughter bride, but it is not stated when or under what conditions.[cxxii] Contenau adds that, once betrothed, a girl was basically considered family even so much that if the suitor died, she would be married off to his brother or one of his relatives.[cxxiii] Perhaps he saw evidence of this practice in several tablets. In any case, after comparing research and finding great similarities, it can be assumed that the “betrothal gift” idea is accurate, especially since it is mentioned several times in the Code.
In fact, if after giving a bride’s parents presents, the suitor had taken interest in another girl, he lost the presents and they remained with the parents of the first bride, pursuant to the Code (Johns and Driver & Miles translate this section similarly).[cxxiv] Also, if a man tried to seduce a betrothed woman, he received a penalty, as required under the Code.[cxxv] Although the suitor had a choice as to which girl he wished to marry (even though in later Babylonian times, he had to gain his father’s approval), there is no indication that the bride had any say.[cxxvi] However, women who used to be married were permitted to choose their own husbands after divorces, separations, or the deaths of their spouses.[cxxvii]
Johns states that to be a wife, a woman had to have “bonds,” or a marriage contract that listed the husband and wife’s names and their lineages, as well as the husband’s declaration that he takes the woman to be his wife.[cxxviii] Driver & Miles agree with this interpretation of the Code in § 128 (she is “not a wife”).[cxxix] According to Johns, a “man might be required to insert the clause that his wife was not to be held responsible for any debts he might have incurred before marriage”; if there was no such bond, “the wedded pair were one body as far as liability for debt was concerned.”[cxxx] But, both the husband and the wife were responsible for debts accrued after marriage.[cxxxi]
All three sources agree that monogamy was prevalent, and when a man did have two wives, it was for various reasons and viewed as the exception to the general rule.[cxxxii] This seems to be the correct interpretation after comparing research. A husband might have a concubine, free women, not wives, but they might have had some legal rights similar to those held by wives.[cxxxiii] A man was only allowed to have a concubine if his wife was childless, but not if the childless wife gave him a maid for children.[cxxxiv] The maid was a slave and, if she had children, she was not sold and was free after her master’s death.[cxxxv]
The father was in charge and had total power over his entire family; still, the mother, although inferior, was the husband’s helper and his honorable wife, as argued by Johns.[cxxxvi] A family was a unit and a family’s ancestors were very important and defined which “clan” it belonged to and its prestige, as well-known and distinguished families had certain privileges.[cxxxvii] However, Johns declares that research does not tell us the extent of these privileges and that we can only guess that there were famous families due to certain family names being constantly mentioned on clay tablets. Families of not-so-famous lineage often referred to their origin as being from a certain tradesman, like sons of “the baker[.]”[cxxxviii] Often, certain cities had their own trades, such as the trade of goldsmith in Nineveh.[cxxxix] A man could not simply claim to be of distinguished ancestry without any proof, since there is proof of an actually a court of ancestry (bît mâr bânûti) that looked into such assertions, as provided on clay tablets.[cxl]
Since a father could treat his children as slaves, “as a chattel to be pledged for his debts,” Johns believe this to mean that the father could sell his child.[cxli] A father could also take his son’s wages, as he had rights over his son’s finances, which were, in effect, his own.[cxlii] A father could favor a certain son and deed him all or most of his property at his death.[cxliii] Johns suspects a father only owed his daughter a promise to dower her (marry her off), but he could also give her away as a concubine.[cxliv] Driver & Miles somewhat agree with fathers not owing much more to their daughters than to find them a husband, in that daughters were not guaranteed inheritance of their father’s property;[cxlv] therefore, it is likely accurate that the only responsibility fathers had to daughters was to marry them off. Even so, under the Code, children owed great respect to their fathers. “If a son struck his father, his hands were cut off,” and if a child repudiated his father, he was disinherited, now had the status of a slave, and was possibly branded.[cxlvi] Likewise, if a son repudiated his mother, he “was branded and expelled from house and city,” but was not sold as a slave.[cxlvii] The worst repudiation of them all was that of an adoptive child against his adoptive parents, often resulting in “having an eye torn out, or the tongue cut out,”[cxlviii] punishing his lack of gratitude.
Johns declares that although there were various reasons adoption occurred, the most common one was “that the adopting parents had lost by marriage all their own children and were left with no children to look after them,” and the birth parents of these children would be grateful that their children would be taken care of by acquiring their adoptive-father’s property at his death.[cxlix] Other reasons for adoption were that a father might want to adopt his illegitimate son so that he could become legitimate and have property rights, a father might have no legal heir, or a father might simply need a way to be provided for in old age.[cl]
Driver & Miles agree with the above reasons for adoption, but add that, often, the reason for adoption was because the adopter was owed religious rites after his death and needed somebody to carry out those traditions.[cli] Driver & Miles also mention that even though the norm was for adopters to only adopt a son if they did not have one, several contracts show adopters adopting sons when they already had sons, but, as the authors suggest, this could just mean that the adopter adopted his illegitimate son (from a concubine, etc.) in order to make him legitimate.[clii] This idea seems more plausible, because if a father already had sons to take care of him and acquire his land at his death, there was really no other reason to adopt and provide for additional children.
In any case, “[a]doption was effected by a deed, drawn up and sealed by the adoptive parents, duly sworn to and witnessed,”[cliii] and the proof probably lies in deed tablets. A well-off lady could also adopt a daughter to give her food and drink and help take care of her.[cliv] When the adopted child failed to fulfill his or her responsibilities, he or she was disinherited if a judge so ordered.[clv] According to Contenau, this disgraced child was often sold into slavery.[clvi]
Regarding ending a marriage or legal relationship, all translations of the Code display that both men and women were permitted to divorce under certain circumstances.[clvii] When a man divorced his wife or concubine, the wife or concubine was given a maintenance, custody of children, and both the children and the wife divided up the husband’s property at his death.[clviii] Divorced wives were permitted to remarry but not during the husband’s lifetime, and if the husband remarried and had children, then all of his children combined would divide his property upon his death.[clix] A man could divorce his wife for the reason of being childless or for being a bad wife (perhaps as an adulteress, potentially resulting in her death by drowning), but he could not leave her for her being chronically ill (but he could marry a second wife).[clx] A wife could divorce her husband if she could prove that he treated her poorly and that she had no blame, but received no alimony because she was the one who wanted the divorce in that case.[clxi] If a man deserted his wife without telling her anything, she could be with another man and the husband could not claim her upon his return.[clxii] Therefore, though the husband/father was the head of the family unit, the wife/mother was owed some respect, as well.
The temple was not only of great financial status as “that of the chief,” but it also had huge political impact,[clxiii] according to most authors who have reviewed the tablets.
Finances and Gifts
Johns asserts that the temple received payments, “primarily of a ginû, or fixed customary daily payment, and a sattukku, or fixed monthly payment,” from families that held temple lands in perpetuity.[clxiv] Payments often included vegetables, like corn, and animal meats, such as that of birds.[clxv] Temples lands could not rented out or sold.[clxvi] The state financed these lands, as they were free from all other dues to the state. Temples had other land, as well as houses, that they could let.[clxvii] Moreover, many people actually provided the temple with gifts voluntarily as “thank-offerings,” and such presents included food and money “often accompanied by some permanent record, a tablet, vase, stone or metal vessel, inscribed with a votive inscription.”[clxviii]
Due to its large stock of raw products, the temple gave the raw material to the poor in rough times or just for charity, to tenants, to slaves, “and to contractors who took the material on purely commercial terms,” who, in turn, paid for the material upfront or with stipulated interest.[clxix] Contractors also purchased wool and other material and, in exchange, were expected to give back rugs or hangings.[clxx] Perhaps tablets indicated such transactions. The temple also did banking business by holding money deposit “against the call of the depositor.”[clxxi] It gave out loans with or without interest and god was considered the owner of the money.[clxxii]
Priests and Temple Staff
Driver & Miles state that there no laws priests must follow under the Code.[clxxiii] As specified by Johns, priests’ support of the king was crucial, as the king “could do nothing without religious sanction” because priests were very wealthy and had sanctions of religion that could be given out at their disposal.[clxxiv] Basically, priests were on the side of “right” in regards to what is right and what is wrong, and if someone did something wrong, he had offended the priests, an act that was publicly frowned upon.[clxxv] Moreover, Johns asserts that the highest-ranked priest was the priest proper, sangû, and he acted as a “mediator between god and man,” and sometimes as a judge[clxxvi] It is likely that priests were very respected and powerful, as is true in other ancient societies.
Besides priests, temples had various classes of people and officials. Temple slaves were given clothing and food but were not paid for routine work.[clxxvii] Furthermore, a temple had “slaughterers, water-carriers, doorkeepers, bakers, weavers, . . . shepherds, cultivators, irrigators, gardeners,” and even a personal doctor, but the exact duties and independence, or lack thereof, of such temple classes remain unknown.[clxxviii] In fact, Johns claims that research does not even tell us when exactly “a temple official acts in his own private capacity and when on behalf of the temple.”[clxxix] According to both Johns and Driver & Miles, the Code and tablets mention that women had roles in temples, since there were also female clerks, nuns, priestesses, and as well as women who held some of the previously mentioned offices.[clxxx] The temple’s staff was provided shelter, food, and clothing by the temple, and the right to hold these positions was often hereditary.[clxxxi] Additionally, celibacy seems to be nonexistent among the various temple classes, including priests, since even they were often married.[clxxxii]
Contenau believes that the gods had limitless power over all of mankind, including the poor and even the king.[clxxxiii] He might know this due to the prologue and epilogue of the Code (see next paragraph), as well as in clay tablets; therefore, it can be assumed that the temple yielded great political influence. Before Hammurabi, several kings trusted magicians, but, according to Johns, Hammurabi sought to end the magic.[clxxxiv] This could possibly mean that Hammurabi relied on priests for political advice. Johns states that it is not clear what responsibilities temples had to the state, but sometimes the king and his officials had to borrow the temples for military reasons.[clxxxv] Also, some kings often took the temple’s resources, but it is believed that they later repaid the temples; this was viewed as wrong in the peoples’ eyes, though.[clxxxvi] Thus, it seems evident that if the state used a temple for its own gain, it would lose political trust among the civilians as this civilization was dedicated to and even truly ruled by god.
Furthermore, Contenau asserts that succession to the throne was not only through royal lineage, but also by nomination by the gods, a claim that is assumed through poems carved on tablets.[clxxxvii] This idea is also somewhat mirrored in the prologue and epilogue of the Code, which, as stated by Driver & Miles, mentions that Marduk, the patron deity of Hammurabi’s dynasty, “called Hammurabi ‘to make justice to appear in the land, to destroy the evil and the wicked . . . ’” and also indicates that an actual copy of the Code was placed in Marduk’s temple in Babylon.[clxxxviii] So, it seems that if Hammurabi was made king under the gods’ wishes, he was then forced to rule according to the gods’ teachings. Well, what are such teachings? I am assuming they might be what the priests say they are, and the priests were likely trained to teach certain material.
The Army and Prisoner Slaves
In Old Babylonia, there was always a territorial levy of troops (each district was required to supply its quota) that were called out by the king (“the king’s men”), as specified by Johns.[clxxxix] These men who were obligated to serve were mainly slaves and poor men and, under the Code, those who harbored men who ran away from their obligations were punished with death[cxc] (the Babylonian version of a draft, only forcing the less fortunate into the army). Men only had to serve for a certain number of years, thought to be six.[cxci] Though, “religious officials and shepherds in charge of flocks were exempt” from service in the army.[cxcii] All states had a number of duties to the army, such as providing ferry dues, customs, and highway and waterways.[cxciii] All estates of a specified size were required to provide a soldier to the state.[cxciv] Some cities claimed for their citizens a right of exemption from “the levy.”[cxcv]
Enslavement of Prisoners of War
An interesting idea concerning Assyrian war is that of slavery. Contenau brings up the claim of war being another excuse to enslave men, as Assyrian kings could then form a large labor force to execute their demands.[cxcvi] These men are believed to have been prisoners of war, who, upon return to Assyria, would be forced to service the temple, upkeep the canals, or be sold as slaves to Assyrians.[cxcvii] With that being said, it can be inferred that POWs never saw their homelands again and continued to work in forced labor. I could not find any research regarding whether slaves who were once POWs were permitted to marry Assyrian slaves, as regular slaves were allowed to do; however, it would be interesting, especially because the masters would then be able to acquire more slaves (including wives and potential children), since slaves normally remained with their families. Furthermore, I wonder if such slaves would be freed after the deaths of their masters, just as other slaves were freed under similar circumstances. I have also failed to find information concerning any legal rights of prisoners of wars, but I imagine that they were provided with survival necessities, including food and drink, but, perhaps, not much else. However, it seems that Contenau formed his ideas about prisoners of war mostly from Assyrian bas-reliefs, which does not make his beliefs true (artwork is often inaccurate), but only possible. However, one might agree that armies would bring back prisoners for the benefit of Babylonia or Assyria.
The Code of Hammurabi and the recovered Babylonian and Assyrian tablets, when coupled together, are able to give us an insight into the legal systems of Babylonia and Assyria. Scholars have clearly not agreed upon all interpretations of the law, but they have not disagreed on all areas, either. Nonetheless, scholars have continued to attempt to decode the ancient Mesopotamian legal systems. Although we will never be fully aware of the Babylonian and Assyrian legal systems, at least we have thousands of clay tablets and an almost full steele code to give us an idea of what laws the ancient Mesopotamians had to follow.
[i] H.W.F. Saggs, Everyday Life in Babylonia and Assyria (B.T. BatsfordPutnam 1965) available at http://www.aina.org/books/eliba/eliba.htm#c4.
[ii] See Ann Marie Dlott, Ancient Mesopotamia, Able Media: Classics Technology Center, http://ablemedia.com/ctcweb/showcase/dlottmesopotamia1.html (last visited Mar. 5, 2012) (displaying geography of Mesopotamia).
[iii] Saggs, supra note 1.
[iv] Life in Mesopotamia, Univ. of Chicago Library, http://mesopotamia.lib.uchicago.edu/mesopotamialife/index.php (last visited Mar. 28, 2012).
[v] Hannibal Travis, The Cultural and Intellectual Property Interests of the Indigenous Peoples of Turkey and Iraq, 15 Tex. Wesleyan L. Rev. 415, 432 (2009).
[vi] C.H.W. Johns, Babylonian and Assyrian Laws, Contracts and Letters 23 (Kessinger Publishing 2004).
[vii] History of the Bronze Age in Mesopotamia, SRON Netherlands Institute for Space Research, http://www.sron.nl/~jheise/akkadian/bronze_age.html#oldbabylonian (last visited Mar. 5, 2012).
[viii] Saggs, supra note 1.
[ix] History of the Bronze Age in Mesopotamia, SRON Netherlands Institute for Space Research, http://www.sron.nl/~jheise/akkadian/bronze_age.html#oldbabylonian (last visited Mar. 5, 2012).
[x] Andrew George, Babylonian and Assyrian: A history of Akkadian, Postgate, J. N. (2007) available at http://eprints.soas.ac.uk/3139/1/PAGE_31-71.pdf.
[xi] Travis, supra note 5, at 432.
[xii] Saggs, supra note 1.
[xiii] History of the Bronze Age in Mesopotamia, SRON Netherlands Institute for Space Research, http://www.sron.nl/~jheise/akkadian/bronze_age.html#oldbabylonian (last visited Mar. 5, 2012).
[xv] Saggs, supra note 1.
[xvi] Charles F. Horne, The Code of Hammurabi: Introduction (1915), available at http://www.fordham.edu/halsall/ancient/hamcode.asp.
[xviii] Johns, supra note 6.
[xx] Hammurabi Code of Law, All About Archaeology, available at http://www.allaboutarchaeology.org/hammurabi-code-of-law-faq.htm (last visited Mar. 20, 2012).
[xxi] Hammurabi’s Code in History, Yahoo!, available at http://voices.yahoo.com/hammurabis-code-history-2510464.html.
[xxiv] Claude Hermann Walter Johns, Babylonian Law—The Code of Hammurabi, Encyclopedia Britannica (11th ed. 1910-1911), available at http://www.fordham.edu/halsall/ancient/hamcode.asp.
[xxv] Johns, supra note 6, at 4-5.
[xxvi] Id. at 139.
[xxvii] Id. at 142.
[xxviii] G.R. Driver & John C. Miles, The Babylonian Laws (1952).
[xxix] Id. at 17.
[xxx] Georges Contenau, Everyday Life in Babylon and Assyria (1954).
[xxxi] Johns, supra note 6, at 42.
[xxxii] Contenau, supra note 32, at 137.
[xxxiii] Johns, supra note 6, at 42.
[xxxviii] Johns, supra note 6, at 42.
[xxxix] Contenau, supra note 32, at 15.
[xli] Johns, supra note 6, at 42.
[xlii] Rev. Claude Hermann Walter Johns, Babylonian Law—The Code of Hammurabi, Encyclopedia Britannica (1910-1911), available at http://webcache.googleusercontent.com/search?q=cache:K9P_IcvlF_kJ:avalon.law.yale.edu/ancient/hammpre.asp+babylonian+law+ardu&cd=1&hl=en&ct=clnk&gl=us.
[xliii] Contenau, supra note 32, at 20.
[xliv] Johns, supra note 6, at 42.
[xlv] Id. at 82.
[xlvi] Id. at 42.
[xlix] Id. at 82.
[l] Id. at 42.
[li] Id. at 82.
[lv] Id. at 83.
[lvi] Contenau, supra note 32, at 22.
[lvii] Johns, supra note 6, at 42.
[lx] Id. at 43.
[lxiii] Sumerian Gods and Goddesses, Crystalinks, available at http://www.crystalinks.com/sumergods1a.html (last visited March 20, 2012).
[lxiv] Driver & Miles, supra note 29, at 371.
[lxv] Johns, supra note 6, at 31.
[lxvi] Id. at 43.
[lxx] Driver & Miles, supra note 29, at 371.
[lxxi] Johns, supra note 6, at 43.
[lxxii] Contenau, supra note 32, at 80.
[lxxv] Johns, supra note 6, at 131.
[lxxviii] Driver & Miles, supra note 29, at 186-87.
[lxxix] Id. at 43.
[lxxx] Johns, supra note 6, at 45.
[lxxxiv] Id. at 46.
[lxxxvii] Johns, supra note 6, at 46.
[lxxxviii] Driver & Miles, supra note 29, at 490.
[xc] Id. at 491.
[xci] Id. at 48.
[xcvi] Id. at 49.
[xcvii] Id. at 47.
[c] Johns, supra note 6, at 47.
[ci] Id. at 49.
[cii] Id. at 50.
[cv] Id. at 51.
[cvi] Id. at 50.
[cvii] Id. at 51.
[cviii] Johns, supra note 6, at 51.
[cxiv] James Acret, Liability Based on Warranty Law, Architects and Engineers § 6:6 (4th ed.).
[cxvii] Driver & Miles, supra note 29, at 493-94.
[cxviii] Jeffrey Hays, Mesopotamian Government and Justice System (Mar. 2011), available at http://webcache.googleusercontent.com/search?q=cache:I9XG27C4DAUJ:factsanddetails.com/world.php%3Fitemid%3D1517%26catid%3D56%26subcatid%3D363+police+in+mesopotamia&cd=9&hl=en&ct=clnk&gl=us.
[cxix] Johns, supra note 6, at 61.
[cxx] Contenau, supra note 32, at 16.
[cxxi] Johns, supra note 6, at 63.
[cxxii] Id. at 63.
[cxxiii] Contenau, supra note 32, at 15.
[cxxiv] Johns, supra note 6, at 63.
[cxxv] Id. at 66.
[cxxvi] Id. at 64.
[cxxvii] Johns, supra note 6, at 64.
[cxxviii] Id. at 61.
[cxxix] Driver & Miles, supra note 29, at 245.
[cxxx] Johns, supra note 6, at 61.
[cxxxii] Id. at 67.
[cxxxiii] Johns, supra note 6, at 67.
[cxxxvi] Id. at 61.
[cxxxix] Johns, supra note 6, at 61.
[cxli] Id. at 74.
[cxlv] Driver & Miles, supra note 29, at 335.
[cxlvi] Johns, supra note 6, at 74.
[cxlix] Id. at 76.
[cli] Driver & Miles, supra note 29, at 335.
[clii] Id. at 384.
[cliii] Johns, supra note 6, at 76.
[cliv] Id. at 78.
[clvi] Contenau, supra note 32, at 19.
[clvii] Johns, supra note 6, at 71.
[clxi] Johns, supra note 6, at 71.
[clxii] Id. at 72.
[clxiii] Id. at 97.
[clxvii] Johns, supra note 6, at 97.
[clxxii] Johns, supra note 6, at 98.
[clxxiii] Driver & Miles, supra note 30, at 359.
[clxxiv] Johns, supra note 6, at 98.
[clxxvii] Johns, supra note 6, at 99.
[clxxix] Id. at 100.
[clxxx] Id. at 99.
[clxxxiii] Contenau, supra note 32, at 266.
[clxxxiv] Johns, supra note 6, at 99.
[clxxxv] Id. at 100.
[clxxxvii] Contenau, supra note 32, at 114.
[clxxxviii] Driver & Miles, supra note 30, at 38.
[clxxxix] Johns, supra note 6, at 94.
[cxci] Rev. Claude Hermann Walter Johns, Babylonian Law—The Code of Hammurabi, Encyclopedia Britannica (1910-1911), available at http://webcache.googleusercontent.com/search?q=cache:K9P_IcvlF_kJ:avalon.law.yale.edu/ancient/hammpre.asp+babylonian+law+ardu&cd=1&hl=en&ct=clnk&gl=us.
[cxciv] Johns, supra note 6, at 94.
[cxcvi] Contenau, supra note 32, at 19.