Tuesday, January 11, 2005

Guest blogger: Mesopotamia Redeemed, Part 6 

In his ground tour of the ancient intellectual history of the "land between the rivers", guest blogger Daniel Foty today looks in depth at Hammurabi's code, arguably one of the most famous documents of antiquity. As the Coalition and pro-democracy Iraqis fight with neo-Baathists and Islamists for the soul and the future of modern Iraq, the forgotten legacy of ancient Mesopotamia bears constant reminding. As Dan argues, Sumer is as much a part of our Western heritage as Jerusalem, Athens or Rome. This, then, is the intellectual dimension of liberation - as we in the West are coming back to our roots, so at the same time we are helping Iraqis go back to their's.

Click here for
part 1, part 2, part 3, part 4, and part 5.

Mesopotamia Redeemed - Part VI

In and of itself, Hammurabi's code is a remarkable achievement - and it has attained a historical place of note since it was long thought to be the oldest legal code, created out of whole cloth at Babylon. Now that we are more fully aware of the older Sumerian legal codes and how they (especially Lipit-Ishtar's code) were the direct predecessors of Hammurabi's code, we can see Hammurabi's code in a different light. While still a singular achievement, Hammurabi's code is essentially the collected culmination of what was almost entirely Sumerian legal wisdom.

Even the form of Hammurabi's code is identical to its Sumerian predecessors. It begins with a long and boastful prologue, contains a main body of individual laws, and concludes with a lengthy and flowery epilogue.

Like the Sumerian codes, it is clearly stated that the law code had a divine basis - that it responded to the divine justice of the gods and transcended the affairs of men. This is also evident on the stele upon which the code is engraved; at the top, above the text of the code, is a relief depicting Shamash, the Babylonian sun god, handing a scepter and a ring - the symbols of kingship - to Hammurabi. For both the Sumerians (Utu) and the Babylonians (Shamash), the sun god was the deity associated with justice - in his role as the "illuminator," under whose light it was impossible to hide falsehood.

Hammurabi's code also places a great deal of emphasis on precedent, both legal and social. By Hammurabi's time, in Mesopotamia there had accumulated literally centuries of archived legal decisions and property deeds. In Babylon, as in the Sumerian city-states, contracts were used extensively and were formulated with great systematic care; agreements were written down, sworn to by the parties involved, signed by the parties and also by witnesses, then officially notarized and archived. Once again, these procedures are essentially identical to what is done today in similar circumstances. In court, claims were expected to be backed up by either written documents or witness testimony which was given under oath - or by both. And as in the Sumerian legal system, court decisions were written down, signed by the judges, and filed in the archives. As in a modern legal system, there was strong emphasis on the ubiquity of written documents and records; these written records were central to any legal proceedings.

It is also somewhat unfair that two statutes (of 282 total) in Hammurabi's code have received undue attention and have caused a misunderstanding of the law codes of Mesopotamia:

196. If a man put out the eye of another man, his eye shall be put out.

200. If a man knock out the teeth of his equal, his teeth shall be knocked out.
It is these two items, commonly referred to as "an eye for an eye, and a tooth for a tooth," which have had the unfortunate effect of implying that the basic tenor of justice in Hammurabi's time (and, by implication, in Sumer in prior days) was very primitive, unsophisticated, vindictive, and direct - and allowing of no extenuating circumstances or subtlety. However, this is obviously an incorrect judgment; examined in their entirety, both Hammurabi's code and its Sumerian predecessors are in fact very sophisticated, reflecting the high level of cultural and social development of the societies which created and maintained them.

The direct connections to the (only partially-recovered) Lipit-Ishtar code are quite evident. The first paragraph of the Hammurabi prologue is rather florid, and like its predecessors invokes divine favor for the promulgation of the code:

When Anu the Sublime, King of the Annunaki, and Bel, the lord of Heaven and earth, who decreed the fate of the land, assigned to Marduk, the over-ruling son of Ea, God of righteousness, dominion over earthly man, and made him great among the Igigi, they called Babylon by his illustrious name, made it great on earth, and founded an everlasting kingdom in it, whose foundations are laid so solidly as those of heaven and earth; then Anu and Bel called me by name, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash, and enlighten the land, to further the well-being of mankind.
Providing a strong indication of the direct lineage of Hammurabi's code, it is interesting to compare this opening paragraph with that of Lipit-Ishtar's code:

When the great An, the father of the gods, (and) Enlil, the king of all the lands, the lord who determines ordinances, had... to Ninisinna, the daughter of An, the... for her... (and) the rejoicing... for her bright forehead; when they had given her the kingship of Sumer (and) Akkad (and) a favorable reign in her (city) Isin, the... established by An; when An (and) Enlil had called Lipit-Ishtar... Lipit-Ishtar, the wise shepherd, whose name has 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...
Certain passages of these two paragraphs are so similar that it seems likely that not only was Lipit-Ishtar's code known to Hammurabi and his advisors - the Lipit-Ishtar code was probably "on the table" during the authoring of Hammurabi's code. Likewise, both codes conclude with long and windy epilogues which recapitulate the intent of the codes. From Hammurabi's code,

Laws of justice which the Hammurabi, the wise king, established. A righteous law, and pious statute did he teach the land. Hammurabi, the protecting king am I.
The stated intent is similar to the opening of the epilogue of Lipit-Ishtar's code:

Verily, in accordance with the true word of Utu, I caused Sumer and Akkad to hold to true justice.
The words are slightly different, yet the embodied intentions are identical.

While (unfortunately) very few of the specific statutes in the Lipit-Ishtar code have been recovered, two rather specific items regarding property damage appear almost identically in both codes. For example, from Hammurabi's code,

59. If any man, without the knowledge of the owner of a garden, fell a tree in a garden he shall pay half a mina in money.
In Lipit-Ishtar's code,

If a man cut down a tree in the garden of another man, he shall pay one-half mina of silver.
Similarly, in Hammurabi's code,

248. If anyone hire an ox, and break off a horn, or cut off its tail, or hurt its muzzle, he shall pay one-fourth of its value in money.
This item is virtually identical to a similar provision in the Lipit-Ishtar code:

If a man rented an ox and broke its horn, he shall pay one-fourth of its price.
This is another indication that Hammurabi's code was derived substantially from Lipit-Ishtar's code, and was thus able to address the same sorts of concerns in a nearly-identical society. It is also a testament to the effectiveness of these law codes that they were re-used widely in this fashion; they obviously were regarded as a worthwhile foundation of the societies of Mesopotamia.

The difficult concept of "adverse possession" of private property appears in both codes in a nearly identical manner. From Hammurabi's code,

30. If a chieftain or a man leave his house, garden, and field and hires it out, and some one else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.
The provision in the Lipit-Ishtar code is nearly identical:

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.
These provisions (and the situations they describe) are nearly identical, right down to the use of a "three year" stipulation of as-yet unknown origin.

A final striking similarity between the two codes is the provision in both for the very abstract legal concept of "tort" - the requirement for compensation when someone's incompetent actions cause harm or damage (usually to property), even though there is no criminal intent. In Hammurabi's code this involves irrigation water running amok and damaging the crops and fields of others:

53. If anyone be too lazy to keep his dam in proper condition, and does not so keep it; if then the dam break and all the fields be flooded, then shall he in whose dam the break occurred be sold for money, and the money shall replace the corn which he has caused to be ruined.
A provision in Lipit-Ishtar's code embodies the same idea, although it is applied to a different situation:

If adjacent to the house of a man the bare ground of another man has been neglected and the owner of the house has said to the owner of the bare ground, "Because your ground has been neglected someone may break into my house; strengthen your house," and this agreement has been confirmed by him, the owner of the bare ground shall restore to the owner of the house any of his property that is lost.
While these two provisions are not specifically identical, they both address the same abstract legal concept.

This leads back again to how we can view Hammurabi's code. It is indeed an achievement in its own right. However, it also serves as the best extant summary of the collected wisdom of numerous centuries of Mesopotamian (chiefly Sumerian) experience with the practical issues involved in the rule of law. Hammurabi's code presently provides the only method of illuminating the details of a number of very complex and surprisingly "modern" legal ideas which were well-known to the Sumerians; these concepts will be considered in Part VII.


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