Wednesday, June 08, 2005

Guest blogger: Mesopotamia Redeemed, part 7 

After a long break, our guest blogger Dan Foty continues his quest for the origins of the Western legal system - in an unexpected locality of ancient Mesopotamia, or present-day Iraq (for the links to previous parts, click here).

Mesopotamia Redeemed -– Part VII

As described in Part VI, the Hammurabi code provides 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. It also shows how the Mesopotamians were able to deal with a number of very complex and surprisingly "modern" legal ideas - ideas which were well-known to the Sumerians.

As described earlier, it is particularly unfair to characterize these laws as "An eye for an eye, a tooth for a tooth" in concept - due to two statutes among the nearly three hundred in the Hammurabi code; in reality, the stipulated sanctions were in the form of fines. In addition, there were numerous provisions for "extenuating circumstances," in which the exact particulars of the situation were central to reaching the appropriate conclusions. The hierarchy of Sumerian legal procedures is also evident; there were lower courts in the various cities, procedures for appeal to higher courts, and even a "supreme court"” in Babylon. At all of these levels, there were procedures for judicial review and oversight.

The statutes themselves involved both basic laws regarding "crimes and punishments," along with detailed regulation of commercial activities and social interactions. To a large degree, these Mesopotamian codes served combined purposes which we now tend to regard as separate -– the constitutional basis of society and governance, the statutes of civil and criminal law, and the regulatory framework for commercial activities (including caravans). An interesting sidelight in the enumerated statutes of the Hammurabi code is that there is no statute number 13 -– even in ancient Mesopotamia, 13 was considered to be an unlucky number that should be avoided.

In addition to the mundane, we can note with a degree of admiration that these early law codes already were wrestling with abstract legal concepts - tort, reckless endangerment, "“takings" -– which are frustrating and difficult even to this day. In their criminal laws, the Mesopotamians also showed experience with the concept of "“mens reas"” (criminal intent) -– that the intent of the accused party was as important as the specific actions which occurred. Finally, we can note that these codes clearly stated the importance of legal precedent in judicial practice; in addition to the legal implications, this also serves to show that the Hammurabi code was not “early,” but that it carried the sensible intent that the prior accumulated centuries of records and decisions should be used directly in any "“contemporary"” situation.

It is also interesting to note that fines for man-to-man offenses were paid directly to the offended part -– not into the state treasury:
4. If he satisfy the elders to impose a fine of grain or money, he shall receive the fine that the action produces.
Judges were held to high standards, and there were procedures for the impeachment, removal, and firing of errant or corrupt judges:
5. If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge's bench, and never again shall he sit there to render judgment.
There were also harsh sanctions against perjury; for example,
3. If anyone bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death.
Without a basis in truth, no legal system can function.

In terms of contract law, there is even a provision (embedded inside a statute covering an obscure topic) for declaring a contract "null and void"”:
37. If any one buy the field, garden, and house of a chieftain, man, or one subject to quit-rent, his contract tablet of sale shall be broken (declared invalid) and he loses his money. The field, garden, and house return to their owners.
"Breaking a contract"” was meant quite literally -– the contract tablet was smashed.

The Hammurabi code also contains extensive provisions regarding property law and the protection of property rights. As noted in early sections, the Mesopotamians - all those centuries ago - had learned of the importance of private property (and its protection) as one of the most fundamental underpinnings of a civilized society; this concept is clearly embodied in all of the law codes of Sumer, Akkad, and Babylon. As described above, the most common sanction for non-violent offenses involved fines; this is the case for intentional property damage, where specific fines were specified for specific infractions. For example,
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.
The protection of private property was also sanctified with very strong punishments for robbery, theft, burglary, and similar malfeasances; for example,
21. If anyone break a hole into a house [breaking and entering for purposes of burglary], he shall be put to death before that hole and be buried.

22. If anyone is committing a robbery and is caught, then he shall be put to death.
Along the same lines, looting was regarded as a particularly heinous offense:
25. If fire break out in a house, and someone who comes to put it out cast his eye upon the property of the owner of the house, and take the property of the master of the house, he shall be thrown into that self-same fire.
While the punishments (death) are arguably harsh, these statutes in the Hammurabi code inform us that private property was sacred to the Mesopotamians, and the violation of those rights was treated as a capital offense.

Despite the direct and simple statutes regarding property offenses, the Hammurabi code also deals with more intricate situations. For example, the issue of the receipt of stolen property is very complicated; it is possible that others received or purchased stolen property while unaware that it was indeed stolen. The code provides several very complex statutes with regard to this matter:
9. If anyone lose an article, and find it in the possession of another: if the person in whose possession the thing is found say "A merchant sold it to me, I paid for it before witnesses," and if the owner of the thing say, "I will bring witnesses who know my property," then shall the purchaser bring the merchant who sold it to him, and the witnesses before whom he bought it, and the owner shall bring witnesses who can identify his property. The judge shall examine their testimony — both of the witnesses before whom the price was paid, and of the witnesses who identify the lost article on oath. The merchant is then proved to be a thief and shall be put to death. The owner of the lost article receives his property, and he who bought it receives the money he paid from the estate of the merchant.

10. If the purchaser does not bring the merchant and the witnesses before whom he bought the article, but its owner bring witnesses who identify it, then the buyer is the thief and shall be put to death, and the owner receives the lost article.

11. If the owner does not bring witnesses to identify the lost article, he is an evil-doer, he has traduced, and shall be put to death.

12. If the witnesses be not at hand, then shall the judge set a limit, at the expiration of six months. If his witnesses have not appeared within the six months, he is an evil-doer, and shall bear the fine of the pending case.
These statutes provide very detailed procedures for establishing culpability - or even if any crime has been committed in the first place. Statute 9 in particular clearly echoes its Sumerian predecessors, and shows the high regard which the Mesopotamians had for private property. The goals were to identify stolen property, to identify and punish the thief and any culpable traders in the stolen property, to absolve any innocent handlers of the stolen property, and to return that stolen property to its rightful owner.

The code also specifies a provision for someone who has custodial responsibility for the property of others, with goals similar to those noted above:
125. If anyone place his property with another for safe keeping, and there, either through thieves or robbers, his property and the property of the other man be lost, the owner of the house, through whose neglect the loss took place, shall compensate the owner for all that was given to him in charge. But the owner of the house shall try to follow up and recover his property, and take it away from the thief.
As in the earlier Sumerian codes, there are also several statutes dealing with the "adverse possession"” of property - that is, property ownership being transferred from the original owner of property to the long-term user of that property:
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 concept of adverse possession was also introduced into English common law, and so is present in all descendants of that system; it remains one of the more little-known but controversial aspects of property law to this day.

Another complicated aspect of property law which is found in the Hammurabi code (and its Sumerian predecessors) is that of "tort"” -– that is, liability for the damage (or devaluation) of someone else'’s property, even if that damage was inadvertent. In the Mesopotamian law codes, this concept is confined very narrowly to matters of agriculture - specifically, liability for damage caused by the flooding of neighboring fields due to poor irrigation practices:
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 grain which he has caused to be ruined.

54. If he be not able to replace the grain, then he and his possessions shall be divided among the farmers whose grain he has flooded.

55. If anyone open his ditches to water his crop, but is careless, and the water flood the field of his neighbor, then he shall pay his neighbor grain for his loss.

56. If a man let in the water, and the water overflow the plantation of his neighbor, he shall pay ten gur of grain for every ten gan of land.
Additional scholarship on legal documents contemporaneous with the Hammurabi code indicates that there was also a "takings clause"” in practical usage. Certain royal officials could (under certain circumstances) requisition and take the private property of ordinary citizens; however, these officials were required to provide a complete written account of this taken property to the citizen, so that he could take that receipt to the king and receive compensation.

Another complicated concept evident in the Hammurabi code is that of "mens reas"” -– a requirement that there be criminal intent demonstrated if there is to be criminal prosecution. This is notable in one particular statute:
206. If during a quarrel one man strike another and wound him, then he shall swear, "I did not injure him wittingly," and pay the physicians.
The notion that there is a difference between a "civil offense"” and a "“criminal offense"” was one that was clearly known to the Mesopotamians.

Yet another complicated concept appears in the Hammurabi code -– that of "“reckless endangerment."” In the code, the notion is quite limited; for example, it appears with regard to the bringing of a frivolous charge against another party which could carry the death penalty as punishment:
3. If anyone bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death.
This concept also appears in harsh sanctions against incompetent physicians inflicting injury on patients, and implicitly in several other statutes.

"“Reckless endangerment"” is a difficult legal concept, since it is in essence an opposite of "criminal intent." The notion is that in some situations, while there was no direct criminal intent, the behavior of the offending party was so unnecessarily and willfully negligent - leading to serious injury or damage to another party -– that the behavior should be classified as criminal. The Mesopotamians were also clearly aware of the basic notions of this legal concept and its duality with other concepts.

As noted earlier, the Sumerian and Babylonian law codes served many functions which eventually came to be regarded as separate; they combined "constitutional"” law, criminal law, civil law, social law, and the regulation of commercial activities -– all in a single code. Thus, in addition to the types of provisions already discussed, the Hammurabi code also contains large blocks of statutes relating to more mundane daily matters of life.

A very large block of the code, statutes 128 - 191, constitutes "family law"” and the regulation of such matters. There are numerous very detailed provisions; for example, there is a set of statutes dealing with the division of property following a divorce:
137. If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart.

138. If a man wishes to separate from his wife who has borne him no children, he shall give her the amount of her purchase money and the dowry which she brought from her father's house, and let her go.

139. If there was no purchase price he shall give her one mina of gold as a gift of release.

140. If he be a freed man he shall give her one-third of a mina of gold.
Another block, statutes 215 - 225, provides regulation of medical practice. Interestingly, statutes 224 and 225 apply specifically to veterinarians; these involve animals used as draft animals and beasts-of-burden in agriculture.

The final major aspect of the code is a large block of statutes regarding commercial activities and trade, including caravans. Once again, these regulations are rather detailed. In total, they clearly indicate that commerce and commercial activities were of the utmost importance to the Mesopotamians and their prosperity. Being devoid of most natural resources and being rich only in their agricultural products, these highly-developed trade networks were of the utmost importance and were thus treated with special care in the laws.

Several of these statutes show that the sinews of commerce had developed to a very remarkable level. For example, there is a provision regarding the requirement for "paperwork" in trade:
103. If a merchant give an agent corn, wool, oil, or any other goods to transport, the agent shall give a receipt for the amount, and compensate the merchant therefor. Then he shall obtain a receipt from the merchant for the money that he gives the merchant.
The "receipt"” here seems to serve two functions. First, in terms of the goods, the "receipt" serves the purpose of what is today called a "bill of lading"” -– that is, an itemization (both qualitative and quantitative) of the goods contained in a shipment. The Mesopotamians were well-aware that in commercial activities the best policy for preventing problems (even unintentional ones) was to "get it all in writing."” Second, the notion of a "“receipt" for the money"” is interesting; other contemporary documents show that these "“receipts"” could be written in one place and redeemed for payment in another place -– in other words, the trade system was so sufficiently advanced that the concept of "checks"” and "“checking accounts"” had already been invented.

The existence of these sorts of "“receipts"” also indicates something further. Other contemporary records show that the caravans were so regular that they were used for purely third-party shipment of goods and as a postal service for documents.

A final interesting aspect of the Hammurabi code is that it contains stipulations for "“product warranties"” -– specifically, warranties for buildings and boats. The statutes regarding the integrity of houses provide a rudimentary form of building code. If a house is being constructed by a builder and is proving to be inferior, the builder is responsible for making things right:
233. If a builder build a house for someone, even though he has not yet completed it; if then the walls seem toppling, the builder must make the walls solid from his own means.
If a completed house collapsed and killed any of the occupants and the fault was found to be due to shoddy construction by the builder, the sanction was very severe:
229. If a builder build a house for someone, and does not construct it properly, and the house which he built fall in and kill its owner, then that builder shall be put to death.
The statute regarding boats also provides for a "product warranty,"” and specifically stipulates a one-year warranty:
235. If a shipbuilder build a boat for someone, and do not make it tight, if during that same year that boat is sent away and suffers injury, the shipbuilder shall take the boat apart and put it together tight at his own expense. The tight boat he shall give to the boat owner.
It is unclear why a period of one year was mandated.

The Hammurabi code capped the development of law codes, legal systems, and the understanding of the concept of the rule of law as it developed in Mesopotamia. Since it is much more fully preserved than any of its Sumerian predecessors, it is the easiest to study and understand (both literally and contextually). It seems reasonable to assume that the earlier Sumerian codes (which may yet be further recovered by new archaeological discoveries) contained similar specific provisions, while taking the same basic tone as to their intent and the problems which they were created to address. The Hammurabi code served both of these functions very clearly - it directly stated the general intentions of the code (the establishment of justice and the rule of law), while also providing a set of specific statutes which, overall, were very clear and unambiguous.

As noted earlier, when the Hammurabi code was recovered, it was the oldest known code of laws; thus, it seemed to provide a "“beginning" to the concept of the rule of law. Of course, later discoveries eventually identified the Sumerians, and showed that Sumerian concepts of law went back several centuries before the Hammurabi code; the Hammurabi code was based very heavily on these predecessors, and is in fact a culmination of all those centuries of effort.

However, while the Hammurabi code was not a beginning, it sadly seems to have been an end. While the Hammurabi code was used widely throughout the region (in Mesopotamia and far beyond) to varying degrees for several more centuries, the centuries of "“the rule of law"” in Mesopotamia were coming to a close. After the fading of the Hammurabi'’s Old Babylonian Empire, Mesopotamia came increasingly to be dominated by absolute monarchs and authoritarian warlords. This topic will be considered in Part VIII.


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