Babylonian law

Babylonian law is a subset of cuneiform law that has received particular study due to the large amount of archaeological material that has been found for it. So-called "contracts" exist in the thousands, including a great variety of deeds, conveyances, bonds, receipts, accounts, and most important of all, actual legal decisions given by the judges in the law courts. Historical inscriptions, royal charters and rescripts, dispatches, private letters and the general literature afford welcome supplementary information. Even grammatical and lexicographical texts contain many extracts or short sentences bearing on law and custom. The so-called "Sumerian Family Laws" are preserved in this way.

Other cultures involved with ancient Mesopotamia shared the same common laws and precedents extending to the form of contacts that Kenneth Kitchen has studied and compared to the form of contracts in the Bible with particular note to the sequence of blessings and curses that bind the deal. The Maxims of Ptahhotep and Sharia Law, also include certifications for professionals like doctors, lawyers and skilled craftsmen which prescribe penalties for malpractice very similar to the code of Hammurabi.

The discovery of the now-celebrated Code of Hammurabi (hereinafter simply termed "the Code") has made possible a more systematic study than could have resulted from just the classification and interpretation of other material. Fragments of other Ancient codes exist and have been published, but there still remain many points whereof evidence is still lacking. There survive legal texts from the earliest writings through the Hellenistic period, but evidence on a particular point may be very full for one period and almost entirely lacking for another. The Code forms the backbone of most reconstructions. Fragments of it recovered from Assur-bani-pal's library at Nineveh and later Babylonian copies show that it was studied, divided into chapters, entitled ''Ninu ilu sirum'' from its incipit (opening words), and recopied for fifteen hundred years or more.

Much Babylonian legal precedent remained in force, even through the Persian, Greek and Parthian conquests, which had little effect on private life in Babylonia; and it survived to influence Romans. The laws and customs that preceded the Code may be called "early"; that of the Neo-Babylonian empire (as well as the Persian, Greek, etc.), "late". The law of Assyria was derived from the Babylonian, but it conserved early features long after they had disappeared elsewhere.

History

Tribal influence

The early history of Mesopotamia is the story of a struggle for supremacy between the cities. A metropolis demanded tribute and military support from its subject cities but left their local cults and customs unaffected. City rights and usages were respected by kings and conquerors alike. When the ancient Semitic-speaking peoples settled in the cities of Mesopotamia, their tribal customs passed over into city law.

As late as the accession of Assur-bani-pal and Shamash-shum-ukin, we find the Babylonians appending to their city laws that groups of aliens to the number of twenty at a time were free to enter the city; that foreign women, once married to Babylonian husbands, could not be enslaved; and that not even a dog that entered the city could be put to death untried.

The population of Babylonia was multi-ethnic from early times, and intercommunication between the cities was incessant. Every city had a large number of resident aliens. This freedom of intercourse must have tended to assimilate custom. It was, however, reserved for the genius of Hammurabi to make Babylon his metropolis and weld together his vast empire by a uniform system of law.

Hammurabi's Code

By Hammurabi's time, almost all trace of tribal custom had already disappeared from the law of the Code. It is state law—self-help, blood-feud, and marriage by capture, are all absent; though code of family solidarity, district responsibility, ordeal, and the ''lex talionis'' (an eye for an eye), are primitive features that remain. The king is a benevolent autocrat, easily accessible to all his subjects, both able and willing to protect the weak against the highest-placed oppressor. The royal power, however, can only pardon when private resentment is appeased. Judges are strictly supervised, and appeal is allowed. The whole land is covered with feudal holdings, masters of the levy, police, etc. There is a regular postal system. The ''pax Babylonica'' is so assured that private individuals do not hesitate to ride in their carriage from Babylon to the coast of the Mediterranean. The position of women is free and dignified.from Encyclopedia Britannica, 1910-11

The Code did not merely embody contemporary custom or conserve ancient law. It is true that centuries of law-abiding and litigious habitude had accumulated, in the temple archives of each city, vast stores of precedent in ancient deeds and records of judicial decisions and that intercourse had assimilated city custom. The universal habit of writing, and perpetual recourse to written contract, further modified primitive custom and ancient precedent.

If the parties themselves could agree to the terms, the Code as a rule left them free to make contracts. Their deed of agreement was drawn up in the temple by a notary public and confirmed with an oath "by god and the king." It was publicly sealed and witnessed by professional witnesses, as well as by collaterally interested parties. The manner in which it was executed may have been sufficient guarantee that its stipulations were not impious or illegal. Custom or public opinion doubtlessly ensured that the parties would not agree to "wrong". If a dispute arose, the judges dealt first with the contract. They might not sustain it, but if the parties did not dispute it, they were free to observe it. The judges' decision might, however, be appealed. Many contracts contain the proviso that in case of future dispute, the parties would abide by "the decision of the king." The Code made known, in a vast number of cases, what that decision would be, and many cases of appeal to the king were returned to the judges with orders to decide in accordance with it. The Code itself was carefully and logically arranged, its sections arranged by subject matter. Nevertheless, the order is not that of modern scientific treatises, so a somewhat different order than either is most convenient for our purpose.

See also
English translation of Hammurabi's Code

Three classes

The Code contemplates the whole population as falling into three classes: the '' avilum'', the '' mushkenu'' and the ''ardu''.

The ''avilum'' was originally a patrician, a man from an elite family, possessed of full civil rights, whose birth, marriage and death were registered. He had aristocratic privileges and responsibilities, and the right to exact retaliation for corporal injuries, but was liable to a heavier punishment for crimes and misdemeanours, higher fees and fines. To this class belonged the king and court, the higher officials, the professions and craftsmen. Over time, the term became a mere courtesy title—already in the Code, when status is not concerned, it is used to denote anyone. There was no property qualification, nor does the term appear to be racial.

It is most difficult to characterize the ''mushkenu'' exactly. The term in time came to mean "a beggar", and that meaning has passed through Aramaic and Hebrew into many modern languages; but though the Code does not regard him as necessarily poor, he may have been landless. He was free but had to accept monetary compensation for corporal injuries, paid smaller fees and fines, and even paid less offerings to the gods. He inhabited a separate quarter of the city. There is no reason to regard him as specially connected with the court, as a royal pensioner, nor as forming the bulk of the population. The rarity of any references to him in contemporary documents makes further specification conjectural.

The ''ardu'' was a slave, his master's chattel, and formed a very numerous class. He could acquire property and even own other slaves. His master clothed and fed him and paid his doctor's fees, but took all compensation paid for injury done to him. His master usually found him a slave girl for a wife (the children were then born slaves), often set him up in a house (with farm or business) and simply took an annual rent of him. Otherwise, he might marry a free woman (the children were then free), who might bring him a dower that his master could not touch, and at his death, one-half of his property passed to his master as his heir. He could acquire his freedom by purchase from his master, or might be freed and dedicated to a temple, or even adopted, when he became an ''amelu'' and not a ''mushkenu''. Slaves were recruited by purchase abroad, from captives taken in war, or by freemen degraded for debt or crime. A slave often ran away; if caught, the captor was bound to restore him to his master, and the Code fixes a reward of two shekels that the owner must pay the captor. It was about one-tenth of the average value of a slave. To detain or harbour a slave was punishable by death. So was aiding him to escape the city gates. A slave bore an identification mark, removable only by a surgical operation, that later consisted of his owner's name tattooed or branded on the arm. On the other hand, on the great estates in Assyria and its subject provinces there were many serfs, mostly of subject race, settled captives, or quondam slaves; tied to the soil they cultivated and sold with the estate, yet capable of possessing land and property of their own. There is little trace of serfs in Babylonia, unless the ''mushkenu'' is really a serf.

Citizens tenants of gods

The god of a city was originally considered the owner of its land, which encircled it with an inner ring of irrigable arable land and an outer fringe of pasture; the citizens were his tenants. The god and his vice regent, the king, had long ceased to disturb tenancy and were content with fixed dues ''in naturalia'', stock, money or service.

One of the earliest monuments records the purchase by a king of a large estate for his son, paying a fair market price and adding a handsome honorarium to the many owners, in costly garments, plate, and precious articles of furniture. The Code recognizes complete private ownership of land but apparently extends the right to hold land to votaries and merchants; but all land sold was subject to its fixed charges. The king, however, could free land from these charges by charter, which was a frequent way of rewarding those who deserved well of the state.

It is from these charters that we learn of the obligations lying upon land. The state demanded men for the army and the ''corvée'', as well as dues in kind. A certain area was bound to provide a bowman, together with his linked pikeman (who bore the shield for both), and to furnish them with supplies for the campaign. This area was termed a "bow" as early as the 8th century BC, but the practice goes back much earlier. Later, a horseman was also due from certain areas. A man was only bound to serve a certain number of times, but the land still had to find a man annually. This service was usually discharged by slaves and serfs, but the ''amelu'' (and perhaps the ''mushkenu'') also went to war. The bows were grouped together in tens and hundreds. The ''corvée'' was less regular. Special liabilities also lay upon riparian owners to repair canals, bridges, quays, etc. The letters of Hammurabi often deal with claims to exemption. Religious officials and shepherds in charge of flocks were exempt from military duty.

The state claimed certain proportions of all crops, stock, etc. The king's messengers could commandeer any subject's property, giving a receipt. Further, every city had its own octroi duties, customs, ferry dues, highway and water rates. The king had long ceased to be owner of the land, if he ever was. He had his own royal estates, his private property, and dues from all his subjects. The higher officials had endowments and official residences.

The Code regulates the feudal position of certain classes. They held an estate from the king, consisting of a house, a garden, a field, stock, and a salary, on condition of personal service on the king's errand. They could not delegate the service, on penalty of death. When ordered abroad, they could nominate a capable son to hold the benefice and carry on the duty. If there was no capable son, the state put in a ''locum tenens'' but granted one-third to the wife to maintain herself and her children. The fief was otherwise inalienable; it could not be sold, pledged, exchanged, sublet, devised or diminished. Other land was leased from the state. Ancestral estate was strictly tied to the family. If a holder would sell, the family kept the right of redemption, and there seems to have been no time limit to its exercise.

Temple

The temple occupied a most important position. It received income from its estates, from tithes and other fixed dues, as well as from the sacrifices (a customary share) and other offerings of the faithful—vast amounts of all sorts of naturalia, besides money and permanent gifts. The larger temples had many officials and servants.

Originally, perhaps, each town clustered round one temple, and each head of family had a right to minister there and share its receipts. As the city grew, the right to so many days a year at one shrine (or its gate) descended within certain families and became a kind of property that could be pledged, rented or shared within the family, but not alienated. Despite all these demands, the temples became great granaries and storehouses and were also the city archives. The temple had its responsibilities. If a citizen was captured by the enemy and could not ransom himself, the temple of his city must do so. To the temple came the poor farmer to borrow seed, grain, or supplies for harvesters, etc.—advances that he repaid without interest.

The king's power over the temple was not proprietary