Mesopotamian Law

The first code of laws that we have any records of are those of a Sumerian king of Ur known as Ur-namma who ruled from 2112 BCE to 2095 BCE. (By the way, historians no longer use “BC” and “AD” to denote years. The usage is now “BCE” for “Before the Current Era” and “CE” for “Current Era”.) Ur-Namma forthrightly declared the reason for his laws:


I did not deliver the orphan to the rich. I did not deliver the widow to the mighty. I did not deliver the man with but one shekel to the man with one mina. I did not deliver the man with but one sheep to the man with one ox.

In other words, the purpose of the laws was to protect the weak from the powerful. Here are some of the laws in his code:

1. If a man commits a homicide, they shall kill that man.
2. If a man acts lawlessly, they shall kill him.
3, If a man detains another, that man shall be imprisoned and he shall weigh and deliver 15 shekels of silver.
6. If a man violates the rights of another and deflowers the virgin wife of a young man, they shall kill that male.
7. If the wife of a young man on her own initiative, approaches a man and initiates sexual relations with him, they shall kill that woman. That male shall be released.
8. If a man acts in violation of the rights of another, and deflowers the virgin slave woman of a man, he shall weigh and deliver 5 shekels of silver.
9. If a man divorces his first-ranking wife, he shall weight and deliver 60 shekels of silver.
10. If he divorces a widow, he shall weigh and deliver 30 shekels of silver.
11. If a man has sexual relations with a widow without a formal written contract, he will not weigh and deliver any silver in a divorce settlement.
25. If a slave woman curses someone acting with the authority of her mistress, they shall scour her mouth with one sila of salt.

There is also a group of laws that impose fines for the following crimes of violence:
cutting off the foot: 60 shekels
shatters a bone: 60 shekels
cuts off the nose: 40 shekels
knocks out a tooth: 2 shekels

I point out three striking observations about these laws:
First, they all take the same form: if (somebody commits this crime) then (they suffer this punishment). This if-then format is directly descended from the natural history mental module that I explained earlier. The natural history mental module was a list of rules about how the natural environment functioned, such as “If the tracks are deeper than normal, then the animal that made them is heavier than average” or “If this kind of fruit is not completely red, then it will make you sick if you eat it”. In other words, the natural history mental module was recruited to specify the laws of civilized behavior.
Second, the level of abstraction in these laws is extremely low; everything is expressed in detail. There are no abstract terms such as “rape” or “assault” or “grievous injury”. This dearth of abstraction is an important consideration that will pop up repeatedly through this book.
Third, they are horribly incomplete. It’s true that we have only a portion of Ur-Namma’s law code, but even the laws we have fail to specify crucial considerations. For example, what constitutes “homicide” in Law #1. I strongly suspect that the original Sumerian term was something like “killing” rather than our more precise term “homicide” -- after all, the law gives no consideration for the many variations we have on the notion of homicide: accidental killing (we call it manslaughter), accidental death due to negligence, self-defense, justifiable homicide, and so on. There’s just the single word “homicide”. And what about the various injuries listed: what if somebody cuts off a hand or an arm? What if they neuter a man? What if they cut off an ear? What if a man divorces his second-ranking wife? How much alimony does he pay? And how is “first-ranking” defined? Questions like this leap out at us, yet nobody seems to have noticed these gaping holes in the legal code. This demonstrates just how illogical people were back then.

Lipit-Ishtar
Our next lawgiver is one Lipit-Ishtar, who ruled Nippur around 1930 BCE. His laws were more extensive than those of Ur-Namma, and probably acted only as an extension to existing criminal law. Lipit-Ishtar’s laws were primarily commercial in nature. Here’s a sample:

If a man’s wife does not bear him a child but a prostitute from the street does bear him a child, he shall provide grain, oil, and clothing rations for the prostitute, and the child whom the prostitute bore him shall be his heir; as long as his wife is alive, the prostitute will not reside in the house with his first-ranking wife.

Note how much longer and more detailed this law is. Note also that it retains each of the three characteristics I noted earlier: it is phrased in a straightforward if-then structure, but that structure is more complex: there are two if-clauses (infertile wife and child-bearing prostitute); there are also three consequences in the then-clause (rations, heir, and residence). Again, there is no abstraction used in the law, nor does this law cover all the possible scenarios related to its content.

Eshnunna
With Eshnunna, about 1700 BCE, we see more detail and more consistency. Consider these two laws;

12. A man who is seized in the field of a commoner, among the sheaves at midday, shall weigh and deliver 10 shekels of silver; he who is seized at night among the sheaves shall die, he will not live.
13. A man who is seized in the house of a commoner, within the house at midday, shall weigh and deliver 10 shekels of silver; he who is seized at night among the sheaves shall die, he will not live.


Of course, these two laws follow in direct sequence, so it was easier to be consistent. Eshnunna’s other laws go into greater detail in regulating life: he sets prices for goods, rates for labor, and even interest rates (20% in some cases, 33% in others). He carefully defines a great many situations involving marriage contracts, illicit relationships, and personal injuries. All in all, Eshnunna’s laws are much like previous law codes, but more detailed.

Hammurabi
Now at last we come to Hammurabi, the king commonly credited with preparing the first code of laws -- which we know to be wrong. However, Hammurabi’s law code comes down to us complete in all its 282 laws. I suspect that Hammurabi’s code has survived because of its very size. It seems unlikely to me that earlier codes were as long as Hammurabi’s, for none of them go into such great detail as Hammurabi’s. Nevertheless, Hammurabi’s laws differ from previous law codes only in the degree of detail to which they go. Some examples:

236. If a man rent a boat to a sailor, and the sailor is careless, and the boat is wrecked or goes aground, the sailor shall give the owner of the boat a new boat as compensation.

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.

Inconsistencies are rife:

196. If a man put out the eye of another man, his eye shall be put out.
198. If he put out the eye of a freed man, or break the bone of a freed man, he shall pay one gold mina.

or

202. If any one strike the body of a man higher in rank than he, he shall receive sixty blows with an ox-hide whip in public.
205. If the slave of a freed man strike the body of a freed man, his ear shall be cut off.

Then there are the laws which seem to defy our notions of logic:

209. If a man strike a free-born woman so that she lose her unborn child, he shall pay ten shekels for her loss.
210. If the woman die, his daughter shall be put to death.

What happens if the perpetrator has no daughter?

Roughly 50 of these 281 laws deal with sexual and property relationships in marriage. Hammurabi attempts to address every possible combination of adultery, failure to wed properly, death of a spouse, dowries, and wills. Yet he misses plenty of scenarios because he never approaches the problem at the abstract level; each and every law has a specific if-clause and a specific then-clause. There are a few whiffs of abstraction; in one place, Hammurabi requires a wrongdoer to pay the value of the destroyed item. He doesn’t specify the number, leaving that abstraction to his magistrates.

One possible explanation for the many logical flaws here is that Hammurabi himself could neither read nor write; it is likely that his laws were written down one by one, whenever he saw fit to promulgate a new law. If so, then Hammurabi never had the opportunity to see the code as a single unit. The people who could see all the laws in one long list might have detected the logical flaws, but who would be bold enough to tell Hammurabi that he screwed up?

Hittite Laws
A few hundred years after Hammurabi, the Hittites build their own empire. They had laws, too, and their laws have come down to us in fairly complete form. 200 laws have been stitched together from a variety of sources, and although they do not cover all legal situations, they do address most of the important issues. The three observations I have to offer about these laws are as follows:

1. Inconsistencies in punishments for similar crimes
The Hittites used a common system of payments for crimes. (In ancient Germanic law, this was called “weregeld”: man-gold). Each crime had its own payment amount. This system worked because the money had to come not from the perpetrator but from his “house” -- his family. The money went straight to the house of the victim. Here’s the schedule of payments established in Hittite law (each of these entries was listed as a separate law):

blind or knock out a tooth [free victim]
20 shekels
blind or knock out a tooth [slave victim]
10 shekels
“injure the head”
3 shekels
injury leading to temporary incapacitation
6 shekels + replacement worker + medical costs
break arm or leg [free victim]
20 shekels
break arm or leg [slave victim]
10 shekels
bite off nose [free victim]
40 shekels
bite off nose [slave victim]
3 shekels
tear off ear [free victim]
12 shekels
tear off ear [slave victim]
3 shekels
cause miscarriage in tenth month (?) [free victim]
10 shekels
cause miscarriage in fifth month [free victim]
5 shekels
cause miscarriage in tenth month (?) [slave victim]
5 shekels


Now, we moderns wonder at this table. Why was biting off the nose of a free person the most severely punished action in the list? I would expect blinding a person to be a much more serious crime, but it costs half as much as biting off a nose. Moreover, given this detailed list of injuries and their prices, how is one to determine the price for an injury not listed here? What if you burn a man’s arm? Cut off a finger? Break a rib? Emasculate him? (One set of Mesopotamian laws did address the case in which a woman crushed a man’s testicle, with different penalties for crushing just one or both testicles. Apparently, women back then were not to be messed with.) But compare the previous table with the penalties for stealing or killing animals:

bull
15 cattle
cow
6 oxen
stallion
15 horses
mare
6 horses
ram
15 sheep
ewe
6 sheep
plow ox
10 cattle
draft horse
10 cattle
trained goat
10 cattle
mule
2 mules
pig
6 shekels
piglet
100 liters of barley
herding dog
20 shekels
hunting dog
12 shekels
plain dog
1 shekel
bee hives
6 shekels


Again we see just enough of a pattern to suggest a logic, but there remain exceptions to the rules that make no sense. The general rule is that, if you steal a male animal, you must pay a fine of 15 animals of the same species. But for mules, the multiplier is only two, and for pigs and dogs, the fine is in silver, not in kind. Here’s another set of inconsistencies, these having to do with men having sex with the following animals:

Animal
Penalty
cow
death
sheep
death
pig
death
dog
death
horse
none
mule
none

Does this make any sense to you?

2. failure to abstract similar cases into a general law
This is another factor that we moderns find inscrutable: why did they have to list everything in detail? Why not simply substitute some abstractions? For example, the last set of laws could all be reduced to “If (sex with animal) then death” -- except of course for the case of horses and mules. The second set of laws regarding the penalties for stealing or killing animals could have been boiled down to “If (steal or kill male animal) then (fine is 15 of the same animal)” and “If (steal or kill female animal) then (fine is 6 of the same animal). An even simpler approach would have been “If (steal or kill animal) then (fine is 6 times market value of animal). This failure to apply abstraction to the issue reveals a great deal about the weaknesses of the ancient mind.

3. nested if-statements
To close on a brighter note (and mollify any offended Hittites reading this essay), I will point out a clear advance in Hittite thinking over Hammurabi’s thinking: the use of nested if-statements. Consider this law:

If anyone finds an ox, a horse, or a mule, he shall drive it to the king’s gate. If he finds it in the country, he shall present it to the elders. The finder may use the animal while it is in his custody. When its owner finds it, he shall take it back, but he shall not have the finder arrested as a thief. But if the finder does not present it to the elders, he shall be considered a thief.

What I find significant about this law is its addressing of four different logical cases in a single law. If the animal is found in the city, there is one requirement; but if it is found in the country, there is another requirement. If the requirement is satisfied, then the finder is safe, but if the requirement is not satisfied, then the finder is a thief. All of Hammurabi’s laws are simple if-then statements, but this is a complex if-then statement. Clearly, the thinking behind this law went deeper than the thinking behind Hammurabi’s laws.

Conclusions
What does all this tell us? The first and most important conclusion is also rather disturbing: the ancients did not think the same way we think; they were not as logical. Specifically, they did not appreciate that an incomplete code of laws is greatly flawed; they did not recognize logical inconsistencies in their laws; and they never got the idea of creating abstractions to represent groups of related acts or conditions. In all of these ways, the Mesopotamians fell short of what we now consider to be logical thinking.

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