Wednesday, November 24, 2004

Guest blogger: Mesopotamia Redeemed, Part 3 

Government by consent in Iraq? The rule of law on the Tigris and Euphrates? As guest blogger Daniel Foty argues is the third part of his series, the Coalition and the Iraqi authorities are not transplanting some novel and alien concepts onto Iraqi soil - they are merely rediscovering Iraq's forgotten heritage. Click here for part one and part two.

Today: "Primitive" law codes from the second millennium BC? Think again.

Mesopotamia Redeemed, Part 3

The third and final Sumerian law code which has been recovered has been attributed to Lipit-Ishtar, who was the ruler of the city-state of Isin around 1900 B.C. Isin was quite powerful for a brief period, and exercised control over a rather extensive area; this allowed Lipit-Ishtar to claim the title of "King of Sumer and Akkad."

The structure of Lipit-Ishtar's code is similar to that of its predecessors, consisting of three parts - a prologue which states the reasons for the code and invokes divine favor for it, the main body of specific laws, and an epilogue which recapitulates the prologue.

The prologue is quite bombastic, but clearly states the same reasoning behind the Urukagina and Ur-Nammu codes - the establishment of order and the rule of law, as a necessary condition for the proper functioning of society. Once again, we find that the basic ideas transcend both place and time. One particularly florid section of the prologue reads as follows:

"When An and Enlil had called Lipit-Ishtar - Lipit-Ishtar, the wise shepherd, whose name had been pronounced by Nunamnir - to the princeship of the land in order to establish justice in the land, to banish complaints, to turn back enmity and rebellion by force of arms, and to bring well-being to the Sumerians and Akkadians..."
While this statement overflows with flowery rhetoric, if one excises the decorations and pulls out the core statement of this passage, we are left with this:

"...in order to establish justice in the land, to banish complaints, to turn back enmity and rebellion by force of arms, and to bring well-being to the [people]..."
This statement is nearly identical to a passage in the prologue of the Constitution of the United States:

"...in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and to our posterity..."
Though these two documents are separated in time by some 3,700 years, in space by thousands of miles, and with the latter having been developed before the existence of the former had even been re-discovered, it is remarkable (but significant) that they express exactly the same intentions. Once again, these parallels make it obvious that since the dawn of civilization, the establishment of the rule of law is a fundamental necessity for the existence and perpetuation of any civilized society.

Of the main body of the code, fewer than forty of the specific laws have been recovered (and many of those are incomplete); it seems likely that there were many more, since many of the known items are very specific. However, a somewhat astonishing aspect of the Lipit-Ishtar code is that while there are numerous extremely specific laws, in the form of listing particular offenses and corresponding particular punishments, there are others which deal with more abstract situations and which state more abstract solutions to those situations.

The "very specific" items in the code are just that - like the earlier codes, they deal with very specific offenses and punishments. For example,

"If a man cut down a tree in the garden of another man, he shall pay one-half mina of silver."
As another example,

"If a man rented an ox and broke its horn, he shall pay one-fourth of its price."
It should be noted that, like the Ur-Nammu code, the Lipit-Ishtar code makes extensive use of monetary fines as sanctions.

Other items in the code are more sophisticated; although they apply to specific situations, they set out simple rules for how a matter is to be handled. For example,

"If a man without authorization bound another man to a matter to which the other man had no knowledge, that man is not affirmed; the offending man shall bear the penalty in regard to the matter to which he has bound the other man."
This is a rather simple and honest approach to affirming basic justice with regard to such a matter.

Still other items in the code are even more sophisticated than this last example, as they set out very abstract rules for how a matter is to be handled and settled. In these items, there are rules stated for dealing with particular situations, but the stated resolutions are based on ideas which are chosen with care; this is in contrast to the prior example, where the stated resolution is rather obvious. For example, one item deals with a very detailed aspect of conflicting property rights:

"If the master of an estate or the mistress of an estate has defaulted on the tax of the estate and a stranger has borne it, for three years the owner may not be evicted. Afterward, the man who bore the tax of the estate shall possess that estate, and the prior owner of the estate shall not raise any claim."
This law is quite abstract, with its "three year" stipulation; the reason for this particular choice of time period remains unknown. In addition, this law actually bears a strong resemblance to the concept of "adverse possession" of private property (specifically, land) which appears in English common law (and is thus present to this day in all legal systems which are its descendents).

The epilogue of the Lipit-Ishtar code is typically Sumerian, being (like the prologue) rather florid. For example, it begins with:

"Verily, in accordance with the true word of Utu, I caused Sumer and Akkad to hold to true justice. Verily, in accordance with the pronouncement of Enlil, I, Lipit-Ishtar, the son of Enlil, abolished enmity and rebellion; made weeping, lamentations, and outcry taboo; caused righteousness and truth to exist; brought well-being to the Sumerians and the Akkadians..."
(The epilogue continues in the vein for some time, and not all of it has been recovered.) While this passage is rather bombastic, the intent of the code is once again made clear - to set up a firm and known rule of law, as a required basis for the functioning of a civilized society. The rest of the extant part of the epilogue confirms the importance which Lipit-Ishtar attributed to this code by once again invoking divine favor, then placing a blessing on those who would protect and honor the stele on which the code was inscribed and a corresponding curse on anyone who would willfully damage or deface that stele.

While interesting in its own right, Lipit-Ishtar's code likely has added significance. At the time of its discovery, the famous Code of Hammurabi was regarded as the oldest law code - and one that had been created ab initio in Babylon. However, once the Lipit-Ishtar code had been recovered, it became obvious that Hammurabi's code is a closely-related descendant. The small number of specific statutes of the Lipit-Ishtar code which have been recovered are for the most part also found in exactly the same form in Hammurabi's code. Thus, the longer-term impact of Hammurabi's code in the Near East and beyond is actually based on its slightly-older predecessor, Lipit-Ishtar's code.

On their own, the Sumerian legal codes were fine things. However, to be useful, they had to be more than "wall decorations" stating good intentions. Any legal code must also by accompanied by a legal system in which the laws are carried out and maintained. The recovered records also show that the Sumerians developed such a legal system - one which became highly refined and sophisticated. This legal system will be discussed in Part IV.


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