Michelle Chan Legal Systems Very Different Than Ours

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Michelle Chan

Legal Systems Very Different Than Ours

Professor Friedman, Spring 2010
Ancient Babylon – The Code of Hammurabi

  1. Introduction

Ancient Mesopotamia has long been known for its rich and intriguing history and culture spanning over generations of conquerors and kingdoms.1 Civilization developed early here in the fertile Euphrates Valley, bordered by two rivers, the Tigris and Euphrates, which deposited rich soil into the valley from its overflowing waters every year during the rainy season.2 As one author aptly described, “yesterday’s Mesopotamia is today’s Iraq . . . buried in Iraq’s barren desert there also lie the ruins of an earlier glory and splendor that once shone for all to see.”3

One of the most renowned cities of ancient Mesopotamia is Babylon. The remains of Babylon are now located on the Euphrates approximately fifty-nine miles southwest of modern-day Iraq.4 Sumerian inscriptions suggest the city existed as early as the third millennium B.C., but its first age of glory was in 17th century B.C. during the reign of the conqueror and lawgiver Hammurabi.5 While Babylonian history spans over many centuries with such famous rulers as king Nebuchadnezzar II in 5th century B.C., who rose to infamy by destroying Jerusalem and reconstructing Babylon as the magnificent capital during the Neo-Babylonian Period, this paper will focus primarily on the legal landscape established by King Hammurabi during the First Dynasty of Babylon (also known as the Old Babylonian period) from 1792 to 1750 B.C.

  1. Hammurabi’s Long and Stable Reign

Hammurabi was the sixth and greatest Amorite ruler who governed Babylon for forty-three years during its First Dynasty in 17th century B.C.6 Hammurabi inherited his power from his father, Sin-muballit, who ruled the city-state of Babylon before him.7 Upon taking the throne, Hammurabi issued a proclamation forgiving people’s debts.8 During the first five years of his reign, he focused on renovating the religious sanctuaries.9 After consolidating his power in the south and east, he spent the next eighteen years doing public work projects including strengthening the city’s fortifications, improving the irrigation system, and beautifying temples.10

Hammurabi is best known as the conqueror who consolidated his power to become the first king of the Babylonian empire, extending Babylon’s control over Mesopotamia by winning a series of wars against neighboring kingdoms.11 His unification of the area gave the entire land one language for administration and one legal system.12 His diplomatic letters showed his deep interest in organization and dedication to uniform social justice.13 As such, Hammurabi is most known for his codification of the Babylonian law which has provided invaluable insight into the legal system of these ancient people.14

  1. Babylonian Culture and Society

    1. Economy

The primary occupation of ancient Babylonians during the Old Babylonian period was farming.15 The chief crop in the valleys of Tigris and Euphrates was grain, especially barley and emmer wheat.16 One ancient “Farmer’s Almanac” discovered by archaeologists dating back to 1700 B.C. records a father’s instructions to his son on how to cultivate a successful crop.17 This Almanac and other artifacts suggest the ancient Babylonians understood how deep seeds should be sown and the principle of crop rotation.18 However, they did not appear to have discovered yet that fertility of soil could be improved by adding manure.19

The Old Babylonian trade was largely performed by a merchant class known as tamkarū.20 The Babylonian laws mention a case in which a native Babylonian, captured on royal service, came into the hands of a tamkarū, suggesting their trading was not confined to the homeland and could involve the slave trade abroad and at home.21 Besides dealing in slaves, a tamkarū also traded in commodities like foodstuffs, wool, timber, garments and textiles, grain, wine and ale, metals, building materials such a s reeds and bricks, cattle, and horses.22 Many letters found during this Old Babylonian period indicate that trade was largely river-borne.23 A tamkarū could be more than a merchant, but also a merchant banker that funded the money for others to go on trading journeys for him.24

Unlike the religious feeling against usury in Hebrew and Islamic law, loan agreements were a common feature of Babylonian economic life.25 Payment of interest for a loan was well-regarded as normal and respectable, although the Babylonian laws disapproved of excessive rates of interests.26 During the Old Babylonian period, interest rater were commonly 33 1/3 % on barley and 20% on silver, and generally the loan would last until after harvest or until the conclusion of the trading journey.27 Tablets recording commercial contracts were typically sealed with an impression of a cylinder seal or with the mark of a fingernail.28 To prevent any falsification, the tablet was then enclosed in a clay envelope containing a duplicate text that would not be broken unless a dispute arose.29

    1. Social class

There were three main classes of persons in ancient Babylonian society. The awilum, or

patricians, were members of landholding families.30 The muskenum, or plebeians, were citizens who were free but did not possess land.31 The wardum, or slaves, were members of society that were neither free nor owned land.32 Under the law, those most privileged were held to the highest standard of responsibility.33 Those less privileged were often penalized to a lesser degree for breaking the law, unless the offense committed was against a member of a higher class.34 For example, a muskenum, or plebian, could divorce his wife by giving her a third of a maneh of silver, while an awilum, or patrician, would have to pay a whole maneh.35

The classes however were not rigidly separated.36 If compelled to surrender his land because of a debt, an awilum could become a muskenum.37 Similarly, if a muskenum acquired land, he could become an awilum.38 A wardum, or slave, could be granted freedom, and a free citizen in dire financial straits, could lose his liberty.39 If a member of one class married a member of another class, the children born of their marriage would belong to the higher of the two classes.40

    1. Family

Ancient Babylonian culture practiced limited monogamy – a man could not, in principle, possess more than one legitimate wife, but law and custom allowed for multiple concubines.41 A marriage could occur in several ways. A young man’s father typically chose his son’s fiancé.42 The bridegroom’s father would contract with the bride’s father by giving him a bridal gift, or tirhatu, for the bride’s hand in marriage.43 The couple was then inchoately married, but the bride remained in her father’s house until the marriage was consummated.44 Another way for marriage to occur was for the bridegroom’s father to give a tirhatu to the bride’s father and then take her to his house in the position of a daughter or servant until her and the son reached the age to marry.45 If a father died and left an unmarried son, the son could take more than his share of the inheritance to pay for a bridal gift.46

  1. Babylonian Legal System

  1. Early laws

Several rulers of Babylonian city-states who reigned before the unification of the country by Hammurabi attempted to enforce law and order under their jurisdiction.47 For example, King Urukagina of Lagas (c. 2800 B.C.) proclaimed that “he has established the ordinances of former times.”48 Sin-Gasid, king of Uruk, fixed the first known tariff of maximum prices for common commodities like corn, oil, and wood.49

While the exact date of his reign is unknown, Bilalama, king of Esnunna, is believed to have implemented the earliest collection of laws approximately two centuries before Hammurabi.50 The laws were inscribed on two tablets, and the subjects covered were comprehensive, including the prices and rates of hired labor, trespass on a field or house, acquisition of a bride, divorce, repaying loans of grain or money, dishonoring a slave girl, sale of property and chattels, assaults and injuries, flight or loss of slaves, as well as some unusual subjects like a goring ox, savage dog, or falling wall.51 The language and terminology found in Bilalama’s laws are often echoed in Hammurabi’s laws, and all but a quarter of Bilalama’s codes are included in Hammurabi’s legal codes.52 Accordingly, Hammurabi did not organically develop his own legal system, but in reality borrowed and translated many of the older Sumerian laws. Hammurabi’s laws contain many of the same technical terms borrowed from the older text, such as “free man,” “merchant,” bond contract,” and “safe custody or deposit.”53 Such similar linguistic usages suggest not only a continuity of legal phraseology lasting over many centuries, but also the existence of a common law.54

  1. Courts and Judges

Besides scattered references in the Babylonian laws, not much is known about the courts and judicial procedure during the Old Babylonian period.55 The king had ultimate authority, but it appeared Hammurabi himself preferred to leave legal decisions to his local governors or courts of law.56 Parties might petition the king if there was a breach of justice due to bribery or an official abusing his position.57 In one instance, Hammurabi intervened in a case that had dragged on for many years, and in another case he referred the trial to another local court.58 However, there did not appear to be any formal system of appeal from a lower to a higher court.59 A judge appeared to be a member of a profession and normally sat on a bench with several other judges when deciding a case.60 There were different classes of judges, such as the judges of the temple of Samas, royal or local judges, with the local judges being named after the chief towns in the country (ie. Babylon, Sippar, Larsa, Dilbat, Barsippa).61 It is not clear how someone became a judge or if there were different types of courts for different cases.62

There were no formal juries selected from the population, and those who were required to swear an oath swore to the symbol of the local god.63 An unsuccessful plaintiff typically had to make a sworn statement that he would not bring the same claim again – this statement was added to the end of most records or sometimes as a separate document.64 There was no estoppel by judgment in Babylonian law, but the plaintiff risked a penalty for bringing the same suit even with new evidence. In one case of sale-adoption, the seller denied the sale but the judges decided against him.65 The seller then brought a new suit, but again lost, and was condemned to give a slave girl to the purchaser because he had treated the previous judgment as a nullity.66

How far the decisions of the court were enforced by public authority is not certain because there was no formal police force, no public prosecutor, and no public executioner.67 The ancient Babylonians did not have lawyers or a prison system.68 Perhaps the judgment was carried out by the equivalent of a sheriff’s officer, or private action was taken by the aggrieved party or his relations or neighbors. One author suggests that perhaps the prevailing party in a civil case could distrain the losing party’s property until he paid off the amount awarded by the court.69 There is evidence that most controversies were resolved at the local level of a village or neighborhood by a council of elders serving as judges.70

  1. Monument Inscription of the Code of Hammurabi

A 1901-1902 archaeological excavation uncovered three large blocks of diorite (possibly the hardest stone known to the Babylonians at the time71) creating a single cone-shaped monument that was 2.25 meters tall.72 The top of the monument had the engraving of Samas, the sun god and god of justice, receiving the homage of Hammurabi, who stands before Samas in an attitude of prayer.73 The text of the laws is thereafter engraved around the monument beneath the sculpture.74 The monument was originally erected in the temple of Marduk in Babylon, and was later carried away as a trophy of war by another conqueror in 12th century B.C.75

Image: Code of Hammurabi, stands today in the Louvre in Paris,

available at http://www.westcler.org/gh/curlessmatt/arthistory/2a/SteleOfHammurabi.jpg.

  1. The Structure of the Code

What is most striking about the Code of Hammurabi is its comprehensive character,

addressing diverse aspects of public and social life in Babylon. Most scholars now agree that Hammurabi did not set to codify or republish the entire and complete existing law, but rather set forth a series of amendments and restatements of parts of law already in force.76 For example, the laws deal with a false charge of murder but not with attempted murder, and deal with kidnapping a free man’s son but not with kidnapping a slave.77 Hammurabi himself makes no claim to have constructed a code of law, but rather described himself as a reformer of law and a legislator.78

The laws are preceded by a prologue and followed by an epilogue.79 The prologue begins with a religious introduction written in poetry telling of the call of Hammurabi to become the king of Babylon and to give justice to the people entrusted to his care, as well as highlighting his pacification of the neighboring lands.80 The prologue then proceeds to catalog the central events of Hammurabi’s reign, including a list of cities he conquered, the prosperity he brought, and the temples he restored or built.81 The prologue contains no reference to Samas, the god of justice whose image is carved on top of the monument, but rather proclaims that Marduk, another god, ordered Hammurabi to set forth justice in the land.82 Although two gods are mentioned, neither god is said to be the author of the Laws, rather Hammurabi himself claims to have written the laws.83 In this sense, unlike the Hebrew or Islamic laws, the Code of Hammurabi was not set forth as a divine pronouncement or a religious document.84

The epilogue ends stating these are the “just laws” that Hammurabi has established.85 Hammurabi speaks of himself in the epilogue as the “king of justice” and proclaims his intention to give justice to the people of the land, the widows and orphans, and the oppressed.86

The main body of the law can roughly be divided into the following sections: 1) offenses against the administration of justice, 2) offenses against property, 3) land, 4) trade and commerce, 5) marriage and family, 6) assaults, 7) professions, 8) agriculture and wages of hire, and 9) slaves.87

  1. Code of Hammurabi

    1. Offenses Against the Administration of Justice

False witness (§§1-4). The laws open with four sections dealing with false witnesses.88

Those who accuse a man of manslaughter but fail to prove the accusation are put to death.89 When a man is accused of sorcery but his accuser has failed to prove it against him, the accused:

Shall go to the holy river; he shall leap into the holy river and, if the holy river overwhelms him, his accuser shall take and keep his house; if the holy river proves the man clear and he comes back safe, he who has charged him with sorcery shall be put to death; he who leapt into the holy river shall take and keep the house of his accuser.90

A question arises as to why an accuser who fails to prove sorcery is not automatically put to death like in the manslaughter provision. Perhaps the fear of witchcraft or the difficulty of proving witchcraft warranted an additional “test” in the river. One scholar surmises that perhaps Hammurabi’s object was to prevent, as far as he could, the old custom of ‘swimming’ a witch that was commonly documented in the ancient East.91 Perhaps Hammurabi dared not forbid the usage directly, but by setting the provision in this way, he encouraged an informer with a genuine charge by rewarding him the property of the accused, while discouraging false and malicious accusations by the threat of the death penalty.92 Another question that arises is whether the false witness was tried at the hearing of the principal case or in a subsequent proceeding.93 Little is known of Babylonian procedure and process in a court action, but it is probable that the court dealt with any doubt of false witness in the proceedings itself and could condemn the witness who had perjured himself.94

Corrupt judge (§5). If a judge gave a decision in a case and then later varied his judgment, he had to pay twelve times the claim and be removed from the bench.95 The most obvious reason for such a provision was to prevent bribery of a judge by a litigant.96 Judges usually sat in benches of three or four judges, and a judge sitting alone is rarely mentioned in legal documents. 97 This raises the question of how one judge could alter a judgment given by a plural bench, but not enough is known of Babylonian procedure to know if a single judge could alter the written record of the court in a bench with two or more judges.98

    1. Offenses Against Property

Theft (§§6-13). The Code of Hammurabi does not contain a general statement of the law of theft, just like there is none for the law of murder, because it was intended to already be known and the existing law presumably remained in effect.99 The provisions in the Code of Hammurabi address more specific instances of theft. The law appears to infer that the usual penalty for theft was death and restitution, and if the thief was dead and could not pay the penalty, compensation was payable by his heirs.100

Theft of sacred property belonging to a god or palace resulted in death to the thief and to the recipient of the stolen property.101 Theft of non-sacred items from a god or palace, like an ox or sheep or swing or boat, resulted in paying back the stolen property thirty fold, and if it was property of a plebian, or muskenum, the thief must pay back ten fold.102 If the thief had no means for payment, he was put to death.103 The receiver of stolen property was treated the same way as the thief.104 Theft from private persons also resulted in death, although some scholars believe the thief could avoid this extreme penalty by settling with his adversary outside of court with a high rate of compensation.105

The real meaning of muskenum is uncertain, but the term is often mentioned in connection with the palace.106 For example, the muskenum’s slave is equated with the slave of the palace in several other sections of the law.107 A muskenum had the same right as an ordinary free man in divorcing his wife, but was ranked socially and financially in other sections as between a free man and the slave.108 Thus, the muskenum appeared to belong to a class under the crown’s protection and was in some sense a dependant, although not a slave, of the palace.109

Robbery and looting (§§21-25). The Code of Hammurabi also addressed house-breaking and looting during a fire. Breaking into a house and committing robbery both amounted to death.110 Looting during a fire would also amount to being cast into that fire.111 How exactly robbery is distinguishable from theft is uncertain, but robbery here appears to relate closer to the raiding, plundering or pillaging, and stealing by violent or intimidation from a person who is present at the taking.112

    1. Land

Tenants of the crown (§§26-41). The law also addresses the rights and duties of certain tenants of the king, including that of a “runner,” “fisher,, and “colonel,” as well as those in similar positions like the merchants (tankarum) and other tradesmen like archers, riders, fowlers, shepherds, bakers, masons, smiths, jewelers, workers in wood and reeds, weavers, cobblers, scribes, soothsayers, singers, and palace chamberlains.113 Services provided to the crown by military, civil servants, and tradesmen were often paid in return by the king granting corn and approximately 15-40 acres of land.114 This grant of land, or fiefs, was generally described in the law as a tenant’s field, grove, or orchard and house, but there was no feudal relation between the king and the tenants like in English feudal society.115 Fiefs could be granted to an individual or group.116 Fiefs were divisible between several heirs or several grants might be held by one person.117 Possessing a fief was valuable, and many of Hammurabi’s letters dealt with complaints from tenants saying they had been wrongfully kept out or evicted from their fiefs.118 Other letters of Hammurabi and the other Old Babylonian-era kings dealt with fixing the fiefs’ boundaries, flooding and irrigation, cutting of timber and produce, and the neglect of the land.119

A tenant who did not a follow a king’s commandments could be put to death. 120 A tenant did not have absolute ownership over his property and therefore the law prohibited a tenant from selling his fief by making all sales voidable and restorable to the seller.121 Should a tenant be captured while on the king’s mission and saved by a merchant’s ransom, the tenant must first pay the ransom himself if he can afford it. If not, the local temple must pay his ransom, but if the temple cannot afford the money, the seat of the local administration pays.122 The order of who has duty to pays the ransom is interesting considering the man is an officer of the king.123 In one letter, Hammurabi instructs two officers to pay 10 manehs of silver from the temple treasury of the moon god, Sins, to a merchant for the ransom of a man named Imaninum who had been taken prisoner.124

Work on the land (§§42-65). The laws now pass to the general law of a farmer’s land and his debts, as well as offenses in connection with irrigation, cattle trespass and maintenance of his land.125 Of particular note is Hammurabi’s favor for the distressed farmer. A farmer in debt who cannot produce a profitable crop due to flooding or doubt need not pay interest for that year.126 A creditor may not take the farmer’s entirecrop, but only has first rights in the amount of the debt with interest.127

An entire section of laws applies to irrigation, as the Babylonian world heavily relied on the annual rainfall of approximately 8 inches during the winter season.128 Irrigation was therefore an important agricultural necessity to water the summer crops of sesame and millet and date palms, cereal crops, and vegetables.129 Thus, ancient Babylonians developed an elaborate system of canals to maintain their water supply.130 A man who did not exercise sufficient care in his irrigation methods and damaged his neighbor’s soils must pay for his neighbor’s ruined crops.131

    1. Commercial Law

Partnership and agency (§§U – 107). Only one section of the law is dedicated to partnerships. When one man gives money to another “for a partnership,” they must declare their profits and losses before a god and divide them correspondingly.132 The Babylonian partnership is not the ordinary partnership of English law, where partners enter a business relationship for a long period of years.133 Rather, the Babylonian partnership was a joint venture for the carrying out of some particular piece of discrete business.134 The formation of a partnership usually involved a third party loaning money to one or two other partners (he usually became a partner and creditor himself), and each was entitled to its share of profits pro rata.135 From other ancient documents, it appears the god mentioned in the law referred to Samas, the god of justice, in whose temple the dissolution of a partnership took place.136

The law also provided three degrees of responsibility for a merchant’s agent who failed to make a profit. An agent who failed to make a profit through incompetence or negligence had to repay the entire debt and lost profits.137 If the agent lost the merchant’s money due to the perils of the journey, he repaid only the actual debt.138 However, if the loss is caused by the king’s enemies, the agent can exculpate himself by oath and be excused from repayment.139 This section presents the earliest reference to the well-known exception commonly found in Greek and Roman law for repayment due to the activity of the king’s enemies.140 For example, in Athens, borrowers were permitted to deduct any sum that they had been forced to pay to pirates.141 In Rome, one who took custody of another’s goods to transport them abroad did not insure the owner against pirates.142

Debt and Distress (§§113-19). If a debtor failed to pay his debt of corn or silver, the creditor was entitled to levy a “distress” without recourse to a court.143 A “distress” or “pledge” could be a wife, child, or slave of the debtor seized to ensure or compel the payment of a debt.144 The pledge is retained and presumably put to work by the creditor until the debt is satisfied, although the distress technically still remained the property of the debtor which the creditor must release upon repayment of the loan.145 A creditor who wrongfully seizes a distress must pay a monetary fine of 1/3 maneh of silver.146 If a distress died a natural death in the creditor’s house, the debtor had no right of action against the creditor, nor presumably, could the creditor complain of the loss of his security.147 If the distress died because of physical abuse or ill treatment while under the creditor’s house, the owner of the distress could convict the merchant.148 The merchant’s son was put to death if the distress was a free man’s son, or else the merchant paid 1/3 maneh of silver and forfeited his debt if the distress was a free man’s slave.149 A creditor who caused the death of a distress was not treated as a murderer, but suffered vicariously through his son’s death or from his pocket.150 It is interesting to note that the sum of 1/3 maneh of silver is the same penalty prescribed for a slave fatally injured by a goring ox and for causing the death of a pregnant slave girl.151

The laws do not make clear what happens if the debtor still refuses or is unable to pay after a creditor seizes a distress. However an Old Babylonian-era letter refers to the subject by mentioning that the author has taken a woman from the debtor’s household as a distress, and asks the addressee to write to the judges to order the debtor repay his debt because the author wished to be rid of the distress, complaining “I have fed the distress for five months on my corn.”152 This letter suggests that if the distress process did not work for the creditor, he may be able to bring a claim before the court to obtain some kind of judgment against the debtor.

The law also prohibited the creditor from self-help in taking corn or silver from the debtor without the debtor’s knowledge.153 Other sections of the laws also forbid a creditor from self-help in taking a debtor’s ox or cloak, suggesting that part of the purpose for these laws was to avoid a breach of the peace, since a man would be more prone to fight to preserve food for himself and his family.154

    1. Marriage and Family

Matrimonial offenses (§§127-132). The centrality of marriage is clearly expressed in the Code of Hammurabi. Almost one fourth of its 282 statutes were devoted to family law.155 If a married lady was caught lying with another man, they were cast into the water.156 However if the husband decided to spare his wife’s life, the king allowed the cheating man to also live.157 This kind of “guilty pair” provision appears elsewhere in Assyrian laws based on the principle that joint offenders must suffer the same penalty or enjoy the same clemency.158 In the corresponding case under the Assyrian Laws, the husband is allowed to kill or mutilate both guilty parties, but if he pardons his wife, the offender must goes free as well.159

If a man committed rape against a virgin woman, he was put to death and she went free.160 Incest was punishable by burning to death.161 If a husband accused his wife of adultery but has not caught her in the actual act with another man, she could take an oath and be set free.162 If members of the public provided additional evidence beyond the husband’s accusation that the wife committed adultery, she must “leap into the holy river” to prove her innocence.163 Because the alleged cheating man was not caught in the act, no claim could be brought against him by the husband.164

Dissolution of a marriage (§§137-49). A divorced woman, depending on whether she bore her husband sons, could receive her dowry back and perhaps up to half of her husband’s chattels and field plantations.165 Ancient Sumerian law stated a wife who refused her conjugal duty was to be thrown into the water.166 In comparison, the laws of Hammurabi provided that if she was not a good housewife, the rule to be thrown into the river applied strictly, but if she proved that her husband deserted her, she could take her dowry and return to her parent’s roof.167 In one judgment pronounced during the ninth year of Hammurabi’s reign, a man had left his wife for twenty years and when she died, he tried to claim the inheritance bequeathed to her daughter, a slave woman.168 It was held that he had left his wife “to pursue his own destiny and had not loved her,” and his request for the inheritance was denied.169 The law of Hammurabi also limited a wife, son or daughter’s servitude to a creditor to three years.170

Inheritance §§162-67). The laws of inheritance are not discussed explicitly except to give certain special cases of succession. The order of succession appeared to follow the line of sons, unless formally disinherited.171 If a son predeceased his father and left his own sons, the grandsons took the property per stirpes with their surviving uncles.172 Before Hammurabi, it was lawful to disinherit children, but Hammurabi required parents to invoke the courts and show a grave crime had been committed in order to deprive a child of his legal rights.173 There did not appear to be a legal instrument such as a will or testament that existed during the time of Hammurabi, however an owner of property could adopt a person during his lifetime to confer the adoptee a right to inherit his estate.174 He could also assign his estate to the adoptee, either retaining a life-interest or contracting to be maintained by the grantee. This type of settlement was commonly employed by a priestess who adopted a younger priestess to look after her in her old age, and such a grant was revocable if the grantee was guilty of serious misconduct.175 The head of a family could also make a gift of property to his daughter on her marriage or at her dedication if she was to be a priestess.176 But his power of disposition was limited only in favor of a family member or to a god, and could only confer a benefit to a stranger by means of adoption.177

    1. Assault

Assaults on men (§§195-208). No general rule is laid down for assaults, but a number of individual instances are given. For example, if a son strikes his father, his hand is cut off.178 If a man strikes the cheek of another, the fine varied according to whether the victim was of a superior rank (public whipping of 60 strokes), of one’s own rank (fine of one maneh of silver), or of a plebeian (only 10 shekels of silver).179 There were several eye-for-an-eye provisions, where the assault of a free man’s eye, bone, or tooth would result in the same injury to the accused.180 However, putting out the eye or breaking the bone of a slave would result in only a monetary penalty.181 If a man struck a free man and swore “surely I did not strike wittingly,” he only needed to pay the doctor’s costs.182 If he killed the free man in the affray, he may swear likewise that it was unintentional and pay ½ maneh of silver.183

Assaults on pregnant women (§§ 209-14). If a man assaulted a pregnant women and caused her to miscarry, he had to pay a monetary fine.184 However if she died, his own daughter was put to death.185 Causing a slave girl to miscarry or die resulted in a monetary fine.186

    1. Professions

Surgical operations (§§215-23). Interestingly enough, the laws also provided an entire section regulating the rate of payment for surgeons. Depending on the kind of operation and whether the operation was successful, the surgeon could receive a certain amount of payment. For example, a surgery requiring a deep incision that saved a patient’s life amounted to 10 shekels of silver for a free man, 5 shekels if a plebian, and 2 shekels if a slave.187 If however the operation was unsuccessful and the patient died, if the patient was a free man, the doctor lost his hand.188

Other professions (§224-40). The laws regulate payment for certain services provided by veterinary surgeons, builders, and shipmen, along with penalties for certain negligent acts. For instance, if a shipman negligently caulks a ship and the ship springs a leak in that same year, the shipman must repair the ship at his own cost and return a sound ship to the ship’s owner.189 A builder who builds a faulty house that causes the death of the homeowner will be put to death.190 If a veterinary surgeon operates on an ox or donkey and causes the animal to die, he will have to pay one fifth of the price of the animal to the owner.191

    1. Agriculture and Rates of Hire

Oxen (§§241-52). As discussed previously, creditors were allowed to seize persons of a debtor as distress to compel repayment of a debt. However, seizing oxen for security was prohibited, most likely because these beasts of agriculture were vital to a debtor providing a livelihood for himself.192 A letter from Hammurabi to Sinidinnam, the governor of Larsa, even instructed the governor to investigate a complaint that a royal herdsmen has seized three oxen for three years as a distress and Hammurabi wanted to make sure justice was done.193

A hirer of an ox is bound to return it safely and undamaged, but is excused from any liability if the oxen is killed by a lion in open country or a god has struck it dead (although in this case, he must swear by a god that he did not cause the death).194 A goring ox that kills another man passing along on the street will either result in no liability or a monetary penalty to the victim depending on whether it was foreseeable the ox would gore a man.195 This same kind of forseeability test can be found in the Hebrew law where the penalty for a goring ox depended on whether the ox had gored someone in the past.196

Rates of Hire (§§268-76). The laws set forth the rates of hire for beasts, for wagons, and for agricultural workers.197 The cost of hiring an ox for threshing was 20 sila of corn.198 The period of their hire is not clear in the text, but other documents suggested this rate was per day worked.199 Seasonal workers were utilized during the rainy season to control irrigation, and then for harvest.200 A comparison of rates suggests the seasonal workers were paid slight higher than the regular workers, however the regular worker did arguably have the advantage of steady employment year round.201 Wages were also set for certain craftsmen such as the cloth-worker, carpenter, leather-worker, reed-worker, building, brick layer, stone cutter, jeweler and smith.202 These rates of hire set out in the laws were presumably the rates paid by the palace and temples, since they were the largest landowners and likely the predominant employers of labor.203 Private parties could normally set their own prices, as evidenced in documents that listed rates of hire and wages in private transactions.204

    1. Slaves

Slavery (§278-82). The majority of slaves in Babylon belonged to the palace and temples.205 Private persons, except the rich, had few slaves.206 Slaves were often captured in war and purchased in markets at home and abroad.207 House slaves were usually children of slaves, and a large number were Babylonians by birth who by reason of poverty had sold themselves or been sold by their fathers or been seized by creditors into slavery.208 The laws do not describe the position of slaves in Babylon in great detail. A few references to slaves in the laws provide that if a man’s slave is injured, compensation is paid to the master.209 A slave may be taken as distress or may be sold or pledged by his master to his master’s creditor, but a female slave that is a concubine to her master shall be redeemed.210 If a slave assaulted a free person, his ear is cut off, and the fees paid to a doctor for treating a slave were less than for a free person.211 The children of a slave fathered by the master required the master to adopt them in order to legitimize them as his sons, otherwise they and their mother acquired freedom at his death.212

The contract of a sale of slaves may be rescinded if the slave became ill within one month of the purchase.213 A seller warranted that he has good title to a slave he was selling, and if the slave is claimed by a third party, the seller was responsible for settling the claim.214 Slaves that were purchased abroad who turned out to be “natives of the country,” or born in Babylon, were released without payment.215

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