Legal Systems Very Different From Ours
Professor David Friedman
8 April 2010
FYI: The footnotes are weird. I included page numbers on all them and have cited supra’s weird, because I wanted to keep the page numbers (not Id.) in case I moved things around.
This essay will focus on the Babylonians, the main ruler of the ancient state of Babylon. 1 Of course, there are many early inhabitants and rulers of Babylon, including the Sumerians, the Kassites, the Elamites, the Persians, the Medes, the Greeks, the Assyrians, and the Parthians.2 The Babylonians existed in Mesoptamia, which is modern day Iraq3. The city of Babylonia was “. . . was the alluvial plain shut in between the two great rivers of Western Asia4, and extended southwards from a point where they almost touched one another to the marshes at the head of the Persian Gulf, where they flowed into the sea.”5 Next to Babylon, but to the north of it, came the land of Assyria.6 Assyria is one of the diametrically different lands and societies as Babylon; however, because they co-existed, Assyria and Babylon were very closely related.
One major difference between these two civilizations is their geographic locale. The country of Assyria “differed essentially from the country of Babylonia, and this difference exercised an influence upon the character of the populations which dwelt in them.7 Namely, the difference was that, “Assyria was a land of limestone hills and thick forests, and was watered by the Tigres and its affluents, which cut their way through channels of rock.”8 On the other hand, Babylon was “flat and marshy; its soil was rich and fertile, but the rivers and streams that intersected it could be prevented from flooding the country only by means of a carefully organized system of canals.” 9 In addition to the two countries being geographically different, each had different societies. Namely, Babylon had “lawyers [whom] . . . existed and exercised their trade or profession, like their representatives in modern days.”10 Because Babylon was more sophisticated than some of the other ancient civilizations, their laws and legal system are both quite fascinating and quite surprising.
This essay will attempt to explain the legal and social system of ancient Babylon. Although the system is quite large, this essay will focus on primarily four topics. First, this essay will cover the Code of Hammurabi, which is the basis of the legal system in ancient Babylon. Second, this essay will speak of the social organization of ancient Babylon, in which there are three main classes. Next, this essay will focus on the legal process in ancient Babylon, namely the key players in the legal system, disputes settled out of court, and the court procedure for legal disputes. Finally, this essay will partake in an in-depth analysis of three types of laws in the Code of Hammurabi: criminal laws, societal laws, and familial laws. This essay will then conclude with a summary of the ancient legal and societal system of Babylon.
Unlike some other ancient societies, the Babylonians were quite modern in their actions and attitudes. “The average Babylonian strikes [the researchers] as a just, good man, no wild savage, but a law-abiding citizen, a faithful; husband, good father, kind son, firm friend, industrious trader, or careful man of business.”11
In ancient Babylon, every person could partake in the legal process. In Assyria, “there is no trace of disability;” thus, every individual, whether citizen or alien, has public rights and could bring a lawsuit.12 In Babylonia, there is exactly “the same freedom.”13 Thus, under both rulers, “. . . [e]gyptians, Elamites, Armenians, Jews, Arameans [could] contract exactly like natives.”14 This essay will thus focus on the legal system and legal rules of ancient Babylon, where all people could partake in the legal process.
Much is known about the legal system of Babylon because the Code of Hammurabi (circa 2250 b.c.15) was found. Prior to this finding, almost nothing was known about how the ancient civilizations dealt with criminal law. “. . . [E]xcept from the recently discovered Code of Hammurabi scarcely anything is known of the law in respect to crimes. Contracts and binding agreements are found in great profusion; but there is nothing to show how theft or murder was treated.”16 Thus, the researchers—and this essay—will rely heavily on the Code of Hammurabi to explain the legal system of the ancient Babylonians.
The Code of Hammurabi
The Code of Hammurabi (hereafter, the Code) is the cornerstone of the ancient Babylon legal system. The Code is “[t]he longest and by far the most important ancient code hitherto discovered. . . .”17 Physically, the actual Code is “. . . a block of black diorite about 2.25 metres high, tapering from 1.90 to 1.65 metres in circumference” (spelling in original). 18 The Code was found almost a century ago by a Persian.19 “It was found by De Morgan at Susa . . . in December 1901, and January 1902. . . .”20
Currently, the Code is not completely, but is mostly, preserved. It is not completely preserved probably because of the order of a monarch, who changed the Code in order to personalize it. “[T]his monument now preserves forty-four columns with some three thousand six hundred lines. There were fire columns more, which were once intentionally erased and the stone re-polished, probably by the order of some monarch of Susa, who meant to put his own name and titles there.”21 This intentional change of the code was a favorite of most kings, and was hated in ancient times. “This method of blotting out the name of a king was a favorite device in the ancient East and is frequently protested against and cursed in the inscription set up in Babylonia.”22 Because of this intentional changing, the Code is not completely preserved but is a great source of information about the ancient legal system.
In writing this Code, Hammurabi did not invent all the laws; he borrowed some of them yet created others. “. . . [T]he code of Hammurabi is [. . . ] a compilation. He did not invent his laws. . . .Doubtless he did enact some fresh laws. But he built for the most part on other men’s foundation. The decisions already passed by the judges had made men ready to accept as ‘right’ what was now made ‘law’.” 23 Because of this borrowing, the Code is not a stark change from the societal norms, because some rules had already been enacted by judges. “As far back as we can trace the history or its written monuments, there is no time of which we can say, ‘[a]s yet there was no law’.” “. . . [L]egal decisions which recorded the ruling of some judicial functionary on points of law submitted to him . . . and the hints given by the legal phrase-books had allowed [the writers of the book] to attain considerable knowledge of what was legal and right in ancient Babylonia. . . .” 24
Similarly, the format of the Code is permissive, in that a judge can impose a certain sentence. “Most clauses are permissive rather than positive. The verb ‘shall’ is not an imperative, but a future. Doubtless in cases of heinous crimes the death-penalty had to be inflicted.”25 Thus, the sentence of the criminal was partially in the judge’s discretion, but even before that, the accused criminal always had a trial.
The Social Organization of the Ancient Babylonians
In the Code of Hammurabi, the state of Babylonia appears to have been “composed of three great classes, the amêlu, the muškênu, and the ardu.”26 The main difference between the amêlu and the muškênu is that “there can be no doubt that the . . . [former] was the ‘gentleman’ or ‘nobleman,’ and the . . . [latter was] a common man, or poor man.”27
The first class is the amêlu, which is comprised of the top tier of society. The amêlu belonged to “. . . the king and the chief officers of state, and also the landed proprietors.”28 As the top tier, “[t]heir liabilities for fines and punishments were higher.”29 One variation of the three classes is that in the case of the amêlu, “the old law of ‘eye for the eye, tooth for a tooth’ still held; while others came under a scale of compensation and damages.”30 This variation may be because of a racial difference since the “ancient laws of Arabia may have been carried with them by Hammurabi’s tribal followers, while the older subject-residents accepted the more commercial system of fines.”31 Hammurabi’s tribal followers may have been forbidden, by “the old pride of the Arab tribesman,” from “taking money as payment for his damaged eye, or tooth.”32 In the Code of Hammurabi, the word amêlu is commonly used because it “usually means no more than ‘man’.”33 Thus, the amêlu, the top tier of society, were similar to the elite of society, and were treated as such. In comparison, the muškênu–which this essay will next focus on—comprised the bulk of the middle class.
The middle tier is the muškênu and was comprised of the “bulk of subject-population.”34 The muškênu member was “a free man, not a beggar. He was not without considerable means. . . He had slaves. . . .”35 Unlike the amêlu, because the muškênu were more “humble,” they could take money as payment.36 “His fees to a doctor or surgeon were less than those paid by an amêlu. He paid less to his wife for a divorce and could assault another poor man more cheaply than could an amêlu.”37 Although a muškênu’s fees were less, “[t]here is no suggestion of any legal disability on the part of a muškênu; he is merely a person of less consideration.”38 It is very possible that the muškênu’s “. . . ranks were recruited from the children of slaves by free parents.”39 The muškênu, as the majority of society, were similar to a modern-day middle class in that they had considerable means and were able to participate fully in the society. The bottom class of society, the ardu, was comprised entirely of slaves and as such, has no equivalent in modern-day society.
The lowest tier, the ardu, is comprised of the slaves of the Babylonian state.40 The slaves in this ancient society were similar to black slaves in the United States: he was at his master’s command, he was to some extent a chattel, and he could be pledged for debt, as could a wife and child.41 However, unlike the United States’ system, slaves in Ancient Bablyon, were “free to marry a marry a free woman and the children were free. So a slave-girl was free on her master’s death, if she had born him children; and the children were also free.”42The ardu were slaves and were treated as such, for example they were chattel and could be exchanged for money. Yet, at the same time, were given much more freedom than ancient slaves usually are given.
The Rîd Sabî and the Bâ’iru
Besides the three main classes of men, there existed in Ancient Babylon a certain class of men, employed by the king, who were in charge of public works.43 These men, called the rîd sabî and the bâ’iru.44 These two classes “. . . were closely connected, if not identical, officials. They had charge of the levy, the local quota for the army, or for public works.”45 The rîd sabî was similar to a “levy-master” in that they were the “‘taskmaster’[:] the one over the gang of forced laborers and reminiscent of the old time press-gang officers.”46 The bâ’iru, on the other hand, were similar to a “field cornet” in that they may have been “a local policeman, whose chief duty was to apprehend criminals and reluctant conscripts.”47 Nevertheless, it is not clear what the bâ’iru did because that name was also used for “‘fisherman’ who were ‘catchers’ in another sense, and of hunters.”48 The researchers have found that “[a] really satisfactory rendering [of the both classes] is impossible, as we have now no officials whose duties actually correspond to theirs.”49
As compensation for their duties, each of these officials received a “benefice [which]. . . consisted of land, house, and garden, certain sheep and cattle as stock, and a salary.”50 This compensation ‘. . . was directly ascribed to the king as benefactor.”51 If an official neglected the care of his benefice, he “ran the risk of forfeiture [of that benefice].”52 Although he ran the risk of forfeiture, “the official and his benefice were protected. He could not be hired out by his superior officers, no in any way plundered or oppressed. He held tax free, subject only to his feudal duty.”53 These two classes of men, the rîd sabî and the bâ’iru, were employed by the king, and as such, answered entirely to him. These men had a considerable workload, yet simultaneously, received considerable compensation for the work that they did for the king.
The Legal Process of Ancient Babylon
The legal system was quite modern in that there is a trial of the accused and there is a jury and judge present. “[T]here was always a trial, and proof was demanded on oath . . . There is no proof that the jury decided only facts and found the prisoner guilty or not, leaving the judge no option but to inflict the extreme penalty. The judge, on the contrary, seems to have had much legislative power.”54
Because some of the earliest known documents are written by judges, “. . . it may fairly be said that judges were found in ancient Babylonia from time immemorial.”55 The researchers have discovered that judges “. . . must have decided what was right when there was no written law to which to appeal.”56 In Babylonia, specifically, “. . . hardly anything was done without committing it to writing. Hence we are as well informed about domestic affairs in Babylonia as about those of Europe in the Middle Ages.”57 Nevertheless, far more is known about domestic affairs in ancient Babylon “in the early periods than in the later. Hence the discussion of early legal usage is unusually full.”58 The next part of this essay will go through the key players in the legal process –the judges, the scribes, and the witnesses – and give a synopsis of what each role did.
The Key Players: Judges, Scribes and Witnesses
Because so much is known about the legal affairs of Babylon in the early times, the researches have discovered that there is a vast source of information relating to lawsuits. In suits, for example, “. . . there was no word for ‘law,’ only the terms ‘judgments,’ ‘right’ and ‘wrong’. It was significant that the parties to a suit always seemed to have agreed on what was right between man and man, and then to have sworn by their gods to observe that ‘right’.” 59 Due to the parties both agreeing to a lawsuit, one could say that the legal system was quite efficient. It was also partially efficient because of the key players in the legal system, that is the judge, the scribe, and the witnesses.
Judges were a crucial part of the domestic affairs of ancient Babylon; however, they may not have received compensation for it.60 “[I]t must not be understood that [judges] had no other means of livelihood. Indeed, there is no hint anywhere that they receive any remuneration for their services. But it was a high honor and by no means subsidiary to another office.”61 A majority of the judges were comprised of higher officials and “[d]oubtless the king himself acted as judge on occasions. . . .”62 Nevertheless, the judges were probably not priests. “The judges were men of great importance and high rank, but there is nothing to show that they were priests. An age qualification is more likely.”63 The judges may have been appointed by the king, as is evidenced in the phrase “the king’s judges;” however, there is “clear evidence of the office being hereditary.”64 Quite different from other legal systems is the notion that a woman could be a judge. On occasion, Ishtar-ummu, who was the daughter of the king and whose brothers were all judges, was a judge.65
In the Code of Hammurabi, the judge is revered and respected, however, in reading the Code, “. . . it seems probable that the sentences there laid down had to be pronounced by the judge, if not carried out by him.”66 Although he may have to carry out the sentence, researchers are “still in complete ignorance as to the machinery of police administration.”67 The judge may grant some leniency to people in certain situations. In a criminal case, “where a man had to produce witnesses to save his life form a death-sentence, the judge might grant him six months’ grace in which to produce his witness.”68 The judge thus had the power, and responsibility, to invoke and carry out, the sentences.
There were severe penalties for a judge giving and then revoking his punishment. Under the Code, “. . . if a judge had given a judgment, decided the case, and embodied it in a legal decision, he was subjected to severe penalties for afterwards revoking his decision.”69 If a judge had inflicted a penalty in his sentence and could not justify his revocation of the sentence, “he had now to repay it twelve-fold to him from whom it was exacted. Further, he was to be publicly deposed from his office, expelled from his seat of judgment. . .  and no longer be permitted to sit with the judges.”70 There was a great and severe penalty for giving and then revoking one’s punishment. This may be why the judge would grant leniency in some cases, for fear that he would revoke his sentence, and did not want to face those penalties.
The scribe is the writer of the document at the legal proceeding, and “there is no evidence that anyone else ever wrote a word on the document.”71 However, we do not know how scribes were appointed because they only put their name and their title, not their father’s name, thus we do not know whether the office was hereditary.72 Similar to judges, “[w]omen certainly were scribes. Out of a total of ninety names of scribes known, at least ten were women.”73 Moreover, just like the judge, a scribe was not a priest.74 “There is no evidence whatever that either priests were all scribes, or could all writes, or that scribes were necessary priests. . . the offices are distinct and no man ever bears both titles.”75 Thus, the scribes, as men and women, were quite necessary in the legal system.
The reports that the scribe makes of the legal proceedings are very peculiar. Specifically, the scribe, writing after the legal proceeding has taken place, “. . . ascribes the property to the rightful owner from the start of his document, and regards the wrongful holder as laying claim to it.”76 Hence, the cases are slightly skewed because of this style of writing; nevertheless, one can see how crucial the scribes were because they memorialized all of the legal proceedings.
The witnesses comprised the vast majority of the people at a legal proceeding, and were similar to a modern-day jury.77 They witnesses are comprised of the šîbu who are the elders of the city.78 The šîbu may have been “. . . nominated, or at least approved, by the king.”79 Similar to judges and scribes, the šîbu was not comprised of exclusively men.80 Just like a modern day grand jury, “[t]he recurrence of the same names, at the same dates, indicates that a body of official witnesses were held in readiness to act on such occasions.”81 Unlike a modern-day jury however, these jurors usually “. . . had an interest in the case. They might be relatives of the parties, neighbors of the estate in question, [or] officials whose rights were concerned.”82 The jury in ancient times were not disassociated from the case, as such, may have been a lot more attentive during the case because they had a personal connection with the object at issue in the case.
Disputes Settled Out of Court
Not all disputes had to go to court; some could be, and preferably were, settled out of court. It is “probable that many cases were settled by mutual agreement,” that is, out of court.83 The system is almost exactly the same as the American system in that, “[w]hen parties disagreed, they might discuss their difference between themselves and arrive at an agreement.”84 After this agreement, “. . . they procured a scribe, who embodied the agreement in a binding compact. . . .”85 This compact also had some clauses in it where the parties mutually undertook “not to withdraw from the agreement, re-open the dispute, or bring legal action, one against the other.”86 In order to sanction this agreement the two parties “swore by the gods and the kings.”87 Furthermore, “[w]itnesses were called upon to be cognizant of and attest the contract; and their names were added to the contract.”88 In addition, in order to authenticate their names, “both parties and witnesses often impressed their seals or, in default of seals, made a nail-mark.”89 Finally, the date was added to the compact and there were three copies of the agreement made: one for each party and one for the scribe, who may have “. . . deposited it in the archives.”90 This process was quite thorough and very efficient, possibly in order to promote the settling of disputes out of court.
If a party violated this promise not to bring a legal action, they had to forfeit something.91 In fact, there “were terrific penalties intended to deter any attempt at litigation.”92 One of these terrific penalties was that “. . . the litigant should be punished by the sacrifice of his child as a ‘burnt offering’ to the god.”93 Although this punishment is severe, “[w]e have no proof that such an offering ever took place;” it may have simply been meant as a punishment of deterrence.94 Although the severe forfeiture may simply have been a deterrence, they may have worked because a vast number of cases were settled out of court.95
The Court Procedure for Legal Disputes
Because the Code of Hammurabi is not very detailed about the legal procedure in the courts, “[w]e have only scattered hints regarding legal procedure.”96 We do know that the scribe first records the plaintiff’s statement of claim and then records the counter-statement, thus, this is probably the order of the legal procedure.97 We also know that as a part of the legal procedure, “. . . the object in dispute, or at any rate, the deeds relating to it, were brought into court, and resigned into the hands of the god.”98 The god was charged with “discern[ing] the rightful owner [of the object] and restor[ing] the object to him.”99 Because the god made the decision, the defendant had to make his claim before the god.100 This process is quite different from the modern-day American one, in that, the object in dispute is brought into court, the defendant has to make his claim before the god, and the god made the ultimate decision.