Law from the Tigris to the Tiber: The Writings of Raymond Westbrook 9781575066370

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Law from the Tigris to the Tiber: The Writings of Raymond Westbrook Volume 1: The Shared Tradition

Raymond Westbrook October 1, 1946 – July 23, 2009

Law from the Tigris to the Tiber: The Writings of Raymond Westbrook Volume 1

The Shared Tradition

Raymond Westbrook Edited by Bruce Wells and Rachel Magdalene

Eisenbrauns Winona Lake, Indiana 2009

Copyright ç 2009 by Eisenbrauns All rights reserved. Printed in the United States of America. www.eisenbrauns.com

Library of Congress Cataloging-in-Publication Data Westbrook, Raymond. Law from the Tigris to the Tiber : the writings of Raymond Westbrook. / Raymond Westbrook ; edited by Bruce Wells and Rachel Magdalene. v. cm. Includes bibliographical references and index. Contents: v. 1. The Shared tradition — v. 2. Cuneiform and biblical sources. ISBN 978-1-57506-177-1 (set (2 vols.); hardback : alk. paper) — ISBN 978-1-57506-175-7 (volume 1; hardback : alk. paper) — ISBN 978-1-57506176-4 (volume 2; hardback : alk. paper) 1. Law—Middle East—History. 2. Law, Ancient. 3. Jewish law. 4. Roman law. 5. Law, Greek. I. Wells, Bruce. II. Magdalene, F. Rachel. III. Title. KL147.W477 2009 340.5u394—dc22 2009040568 The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48–1984. †‘

Contents Preface ...........................................................................................................vii About the Editors............................................................................................ix Introduction: The Idea of a Shared Tradition ..............................................xi Part One: The Tradition in the Law Codes 1. Biblical and Cuneiform Law Codes................................................. 3 2. The Nature and Origins of the Twelve Tables .............................. 21 3. Cuneiform Law Codes and the Origins of Legislation ................. 73 4. What Is the Covenant Code? .......................................................... 97 5. Codification and Canonization .....................................................119 6. Codex Hammurabi and the Ends of the Earth .............................133 Part Two: The Tradition in Legal Practice 7. Social Justice in the Ancient Near East ....................................... 143 8. Slave and Master in Ancient Near Eastern Law..........................161 9. Patronage in the Ancient Near East .............................................217 10. Adultery in Ancient Near Eastern Law........................................ 245 11. Witchcraft and the Law in the Ancient Near East.......................289 Part Three: The Tradition in Greco-Roman Law 12. The Trial Scene in the Iliad ..........................................................303 13. Penelope’s Dowry and Odysseus’ Kingship ...............................329 14. The Coherence of the Lex Aquilia ...............................................355 15. Restrictions on Alienation of Property in Early Roman Law..... 379 16. Vitae Necisque Potestas................................................................389 Abbreviations...............................................................................................415 Bibliography ................................................................................................431 Index of Authors...........................................................................................473 Index of Subjects..........................................................................................479 Index of Ancient Sources.............................................................................495

Preface On July 23, 2009, as the preparations for this collection were nearing completion, Raymond Westbrook, the W. W. Spence Professor of Semitic Languages in the Department of Near Eastern Studies at Johns Hopkins University, passed away. We had been contemplating the production of these volumes for some time and began work on them in earnest about one year ago, spurred in part by the progression of his illness. Although we had hoped to deliver the completed collection as a surprise, his rapid decline did not permit us to do that. Instead, we made Professor Westbrook aware of the project several weeks before his passing. We are, however, deeply saddened that he was not able to see it in its final form. He was an important role model and mentor for us over the years, and we offer these volumes as a modest tribute to his scholarly achievements, his impact on the field, and his particular contributions to our academic development. Raymond Westbrook earned his B.A. in Law from Oxford University in 1968, studying with David Daube, H. L. A. Hart, and other prominent legal scholars. He then took his Ll.M. at Hebrew University of Jerusalem, where he worked with Reuven Yaron. Westbrook was called to the Bar of England and Wales in 1976 and practiced law for a brief time. His Ph.D. in Assyriology was completed in 1982 at Yale University under J. J. Finkelstein and C. Wilcke. He arrived at Johns Hopkins in 1987, after he had taught in the Faculty of Law at Hebrew University of Jerusalem. Westbrook published three books, edited or co-edited five additional volumes, and produced over 90 articles. His books include Studies in Biblical and Cuneiform Law (Gabalda, 1988); Old Babylonian Marriage Law (Berger, 1988); and Property and the Family in Biblical Law (Sheffield Academic Press, 1991). Among his edited volumes are Amarna Diplomacy: The Beginnings of International Relations (with R. Cohen; Johns Hopkins University Press, 2000); Security for Debt in Ancient Near Eastern Law (with R. Jasnow; Brill, 2001); A History of Ancient Near Eastern Law (Brill, 2003); Women and Property in Ancient Near Eastern and Mediterranean Societies (with D. Lyons; Center for Hellenic Studies,

viii 2005); and Isaiah’s Vision of Peace in Biblical and Modern International Relations: Swords into Plowshares (with R. Cohen; Palgrave Macmillan, 2008). A complete list of his publications (at least through 2008) can be found in the bibliography in volume 2. Deciding the contents of these volumes took some time. In the end, we felt it best to focus on the 25 years of his work that followed directly after the completion of his dissertation in 1982 and to publish what we believe were his most significant works from that period, whether or not previously reprinted. Thus, exceedingly short articles, reviews, dictionary entries, and articles in handbooks and the like are generally excluded. Due to its import, we have included one article published in 1977 and thereby have the exception that proves the rule. The volumes’ structure emerged relatively quickly. Westbrook published across a broad scope. Nonetheless, we felt that these articles could be readily divided into five major areas: 1) his theoretical work on the shared legal tradition of the so-called law codes of the ancient Near East and classical world; 2) his study of particular substantive bodies of law across this large region; 3) the application of his theory and method to Greek and Roman law; 4) his general work on cuneiform legal sources; and 5) his general work on biblical law. These categories were then divided into two volumes named respectively The Shared Tradition and Cuneiform and Biblical Sources. Such division is not rigid, however, as Westbrook used sources from the ancient Near East, Greece, and Rome as appropriate, whatever topic was before him. We wish to thank Jim Eisenbraun, publisher of Eisenbrauns, for his ready enthusiasm for the project since its inception. He was always at hand to answer our questions, to guide us, and to lend support. Our colleague, Cornelia Wunsch, willingly assisted with a host of difficult tasks that arose throughout the course of our work; the volumes are greatly improved thanks to her generous labors on our behalf. Finally, because this project was produced for the most part in the Wells’ home, we would also both like to thank Marcy Wells, Bruce’s wife, for her many gifts of hospitality, which made this project possible.

Bruce Wells F. Rachel Magdalene Munich, August 22, 2009

About the Editors Bruce Wells received his Ph.D. in Near Eastern Studies in 2003 from The John Hopkins University. He is Assistant Professor of Hebrew Bible in the Department of Theology at Saint Joseph’s University in Philadelphia. He is currently on a one-year leave at the Ludwig-Maximilians-Universität in Munich as a Research Fellow with the Alexander von Humboldt Foundation. Wells is the author of The Law of Testimony in the Pentateuchal Codes (Harrassowitz, 2004) and co-author with Raymond Westbrook of Everyday Law in Biblical Israel: An Introduction (Westminster John Knox, 2009). F. Rachel Magdalene holds a J.D. from the University of Colorado School of Law and a Ph.D. in Biblical Interpretation (Hebrew Bible) from the University of Denver and Iliff School of Theology Joint Ph.D. Program. She also did supplemental doctoral studies in Assyriology, Hebrew Bible, and ancient comparative law at The Johns Hopkins University. She practiced tax and securities law for twelve years before pursuing her Ph.D. She is currently Visiting Research Scholar at the Universität Leipzig and Guest of the Faculty at Humboldt-Universität zu Berlin. She has taught biblical studies, religious studies, and law at both the undergraduate and graduate levels. Magdalene is the author of On the Scales of Righteousness: Neo-Babylonian Trial Law and the Book of Job (Brown Judaic Studies, 2007); co-author with James P. Kutner of Study Guide to Due Diligence: Process, Participants and Liability (College for Financial Planning Press, 1988); and an editor on G. K. Scott, et al., eds., Due Diligence: Process, Participants and Liability (Longman Financial Services, 1988).

Introduction The Idea of a Shared Tradition Bruce Wells*

I

t was November of 2004 at the annual meeting of the Society of Biblical Literature in San Antonio, Texas. Victor Avigdor Hurowitz had just finished presenting a paper on the prologue to the Code of Hammurabi. There was plenty of time for discussion, and several people raised their hands. After answering one or two questioners, Hurowitz looked to his left, gestured toward the back of the room, and said something on the order of, “And here we have Hammurabi himself to give us his opinion.” We all glanced in that direction, and up stood Raymond Westbrook. The question that Professor Westbrook asked has long since faded from our memories, but the epithet bestowed on him that day will not soon be forgotten. Raymond Westbrook was recognized by many as the world’s leading authority on the legal systems of the ancient Near East. He was foremost an Assyriologist, having devoted much of his work to the analysis of cuneiform legal texts from Mesopotamia and Anatolia, as well as so-called peripheral sites such as Emar, Alalakh, and Amarna. He was also a biblical scholar, championing a reading of biblical legal texts substantially informed by a knowledge of cuneiform law. Finally, he was a Classicist, with articles to his name that included detailed studies of early Greek and Roman law. In addition to all of this, his office was filled with books on the contemporary law and legal history of Britain, the United States, Israel, China, and India, to name just a few. He could just as easily speak to

* With contributions from F. Rachel Magdalene.

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questions of modern legal philosophy or the Magna Carta as he could to the Code of Hammurabi. He was a comparative law scholar par excellence. Many of his publications were devoted to promulgating his own particular theory on the nature of ancient Near Eastern law and on how historians ought to approach the surviving records that give us insight into these early legal systems. Furthermore, he demonstrated the usefulness of his approach in numerous studies where his careful legal analysis of ancient texts produced creative and, for many, compelling solutions to ageold problems. Given Westbrook’s varied constituencies, however, his publications appeared in a wide variety of venues, from the usual Assyriological suspects to law reviews to Festschrifts for biblical scholars to historical journals. This diversity of venues seems to have had the effect of diluting the force of his overall argument. It is difficult at times for readers, even specialists in these disciplines, to see all the components of his theory and to appreciate the full weight of the evidence. We believed a venue was needed where the different pieces of his work could be brought together to form a fuller and more concentrated version of his argument. Hence, the volume before you.

A Common Legal Tradition We have entitled this volume The Shared Tradition. The title represents the essence of the theory that inspired much of Westbrook’s work and for which he is probably best known. He began articulating this theory in his early articles almost four decades ago. He described the idea in a number of his writings but perhaps no more succinctly than in his 1992 article on the trial scene recorded in the Iliad: “The societies of the ancient Near East for which we have written records are diverse in language and culture, but they appear to some considerable extent to have shared a common legal tradition.”1 It is important to understand what Westbrook meant by “a common legal tradition.” The concept has, at times, been misinterpreted to mean that the legal rules of the various ancient Near Eastern societies were entirely 1 Westbrook 1992b: 55 (= chap. 12, p. 307 in this volume).

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the same. It becomes easy, then, to dismiss his theory out of hand. While many rules across wide spans of both time and space are remarkably similar, Westbrook’s theory allows for differences among the ancient Near Eastern legal systems.2 The key is understanding the level at which these differences occur. Although Westbrook himself did not use these terms, we see in his work a distinction between what we call the micro level (minor features of a legal system that often distinguish it from others) and the macro level (major features of a legal system that are more revealing of its nature, structure, and basic approach to law).3 At the micro level, there are indeed differences. An oft-cited example comes from the Covenant Code (CC) in Exodus and the Code of Hammurabi (CH). The former states that a debt-slave may go free after six years of service in the creditor’s household (Exod 21:2), whereas CH 117 grants freedom to a debt-slave after only three years of service. It seems quite evident, however, that the basic legal import—the law at the macro level— of both provisions is identical: a limit on the duration of debt-slavery is required. Numerous other examples could be cited, and this volume is replete with them. Eventually, one must come to terms with both the quantity and the quality of data that reveal striking similarities at the level of fundamental law while, at the same time, exhibiting differences in the finer details. The evidence begs for an explanation.

The Law Codes and the Shared Tradition Westbrook’s explanation of the evidence had a mixed reception. The arguments surrounding the possibility of a common legal tradition have often focused on the law codes or law collections, such as CH and CC, that have survived from the ancient Near East. Westbrook argued that these written codes did not function as normative and binding legislation. They were rather the product of groups of scribes who applied their own particular analytical method—essentially the making of lists with individual items formulated in casuistic style (Listenwissenschaft)—to a variety of subject 2 See Westbrook 2005d: 4-5 (= chap. 13, p. 331 in this volume). 3 Magdalene (2003: 24-27; 2007: 31-33), basing her analysis on much of Westbrook’s work, first articulated this distinction in this way.

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areas, including that of law. Westbrook then went on to claim that, despite their non-legislative nature, the codes are in fact a reliable description of the law. “After all,” he wrote, “the least that one could expect from an academic treatise on law is that it accurately describe the law in practice.”4 These works, therefore, can be compared in many respects to modern legal treatises, which compile known law and, at times, hypothesize what might happen in new situations.5 Finally, Westbrook posited that the codes give us considerable insight into the substance of the shared tradition. They tell us about the law, and thus, with their correspondences in both content and reasoning, they also tell us about the numerous legal rules, institutions, and practices that were common to ancient Near Eastern societies. Many scholars, though not all, agree with Westbrook’s initial point (the codes are not legislation), but they often take exception to his second (that the codes describe operative law). A relatively common rebuttal highlights discrepancies between, for instance, Old Babylonian documents of practice (contracts, royal orders, etc.) and CH, the primary Old Babylonian code at our disposal.6 Indeed, there are a few such discrepancies. There are also, however, a number of correspondences.7 In addition, there typically exists, even in modern systems, a gap of varying degrees between the stated law and practiced law. All of us who regularly traverse U.S. expressways at exactly ten miles per hour over the posted speed limit can attest to this. A still better example lodges in the sentiments of Oliver Wendell Holmes when he said: “Great cases like hard cases make bad law.”8 The individual circumstances of cases before a tribunal often call for a reshaping of the law in its particular application, which may or may not have long-term consequences for the legal system as a whole. The same was undoubtedly true of ancient systems. Another common argument that seeks to drive a wedge between the codes and the operative law of ancient Near Eastern societies comes from the failure of contemporary documents of practice (e.g., trial records) to cite the codes. But this failure may be, in fact, a supporting argument for 4 Westbrook 1989a: 204 (= chap. 3, pp. 76-77 in this volume). 5 This is not to minimize, however, that the fundamental legal philosophy behind the law and its collection process is quite different in the modern and ancient periods. 6 See, e.g., Fried 2001: 72-84; and Fitzpatrick-McKinley 1999: 96-112. 7 See, e.g., Petschow 1984; and Ries 1984. 8 Northern Securities Co v United States, 193 US 197, 400 (1904) (Holmes dissenting).

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Westbrook’s view that the codes are legal treatises. Treatises are, in many ancient and modern legal systems, a secondary legal authority rather than a primary authority, meaning that they are not the first source of the rule of law for adjudicating individual cases.9 Although legal treatises have educated lawyers and judges for eons, and, therefore, have had tremendous influence on the shaping of law, in many historical periods, judges have used them sparingly in written decisions.10 We would not expect to see legal treatises quoted regularly in such systems, even though they articulate actual law. It is our view that, in the ancient Near East, law functioned similarly in this respect. The more intense disagreement, though, comes with Westbrook’s incorporation of the codes into his idea of a common tradition. At least two other models for understanding the nature of the codes currently compete with that of a shared tradition. What can be called the developmental model suggests that there was significant growth and expansion in the legal content from one code to the next as ancient Near Eastern societies changed and evolved over the course of time.11 This sort of development likely took place within the oral legal traditions that undoubtedly existed and reveals only certain manifestations of itself in the written codes. Even the Code of Eshnunna (CE) and CH, both Old Babylonian codes no more than about forty years apart, exhibit sufficient differences, it is argued, to support this conclusion. According to this view, the similarities that one might encounter in the codes are ultimately more apparent than real. The second model can be called the textual-dependence model. It proposes that, because the codes were literary compositions, any similarities that one might encounter are most likely due to the reliance by the authors of one code on the actual text of another. The codes may or may not give us any access to the practiced law of the time; therefore, a similarity between two codes separated by centuries points only to the likelihood that the authors of the later of the two had access to copies of the earlier, not that the law in the two respective societies was anything alike.12 9 Cf. Black, et al. 1990: 133. 10 On the pedagogical value and legal consequences of legal treatises, see, e.g., de Bracton and Thorne 1968-1977; Basile 1998; Downer 2006; and Claeys 2009. 11 See, e.g., Greengus 1994 and Otto 1994, though both differ from each other in certain details. 12 See, e.g., Wright 2003.

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We know that common legal traditions have existed and still do exist in the world, some over considerable time. This situation has sometimes arisen through the intentional acts of countries to create a shared tradition13 or through imperial-colonial aggression and control.14 How does one begin, however, to resolve this debate with regard to the ancient Near East? A number of questions loom. Are the similarities between the codes real or superficial? Do they span all of the codes or only a select few? Even if one comes to the conclusion that the codes do share a substantial amount of content and reasoning, does this mean that the legal systems of the scribes who produced the codes also shared a great deal in common? To answer any of these questions, at least two important aspects of the codes have to be examined. First, the individual provisions of the codes require close analysis to determine what they mean and how they relate to provisions in other codes. Second, it is necessary to incorporate a broad range of legal documents of practice into this analysis. Such documents can help to illuminate more clearly the relationship between the codes and the societies from which they come. It is the work of Raymond Westbrook found in this collection of his writings—and particularly in this volume—that carries out precisely those two tasks.

The Hebrew Bible and the Shared Tradition Then there is the question of the Bible. The debate that we have just described has taken on a somewhat more intensive form when it touches on 13 In discussing the development of law in Europe from the medieval to the early modern period, Donlan (2008: 4) explains: “European jurists created a ius commune, a body of doctrine or ‘law’ common across the frontiers of the continent, in contrast to particular laws specific to a place. They acted as teachers and scholars, and served as advisors, diplomats, record-keepers, administrators, and judges across the continent, paving the way for receptions of the canon and civil laws.” 14 As Marcks (2000: 266) states in his work regarding the use of law in British colonization of Hong Kong: “[L]aw played an essential role as a means for achieving colonial ends by fortifying European control over the colonized, facilitating commerce, and legitimizing colonial rule. Typically, the Europeans would begin their colonizing efforts by instituting a system of criminal law in order to strengthen their hold over the territory. Then they would implement contract, commercial, land, and labor law in order to advance their commercial ambitions.”

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the relationship between the legal texts of the Hebrew Bible and those from elsewhere in the ancient Near East. Even if one concedes to Westbrook the idea that the cuneiform law codes share in something akin to a common tradition, the fundamental question regarding the Bible still remains. Do the features and content of the biblical codes—primarily the Covenant Code in Exodus and the Deuteronomic Code—warrant inclusion within this same tradition? As one might expect, Westbrook answered strongly in the affirmative. While there are those who would disagree, from our perspective, it is becoming increasingly evident that the shared material between biblical and cuneiform law is abundant—so much so that recent studies have posited direct dependence by the biblical authors on Mesopotamian legal texts.15 A look at some of the more obvious examples helps to confirm this. - limitations on terms of debt-slavery (see above) - rights of persons injured in a fight to receive compensation for damages and medical costs (Exod 21:18-19; CH 206; HL 10) - laws on when pregnant women are struck and then miscarry (Exod 21:22-25; CL 25; CH 209-214; HL 17; MAL A 50-51) - the rule to split the meat and proceeds from a dead ox and a live ox after the latter killed the former (Exod 21:35; CE 53) - the right to kill a burglar at night but not during the day (Exod 22:1-2; CE 12-13) - sanctions for the negligent management of one’s own field that results in damage to a neighbor’s (Exod 22:4-5; HL 106-107) - the requirement that seducers of unmarried young women marry them (Exod 22:15-16; MAL A 56) - a type of talionic punishment for false accusers (Deut 19:16-21; CL 17; CH 1-4) - guilt for a betrothed maiden if taken sexually by a man in a town but innocence if in the countryside (Deut 22:23-27; HL 197) 15 E.g., Wright 2003, 2006. Though we disagree with Wright’s conclusion regarding direct textual dependence, his work throws into relief the degree of overlap between the codes.

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- the requirement that rapists of unmarried young women marry them (Deut 22:28-29; MAL A 55) - rules for when a woman grabs a man’s genitals during a fight (Deut 25:11-12; MAL A 8) This list of examples could easily be expanded. Thus, however one may understand the tradition that gave rise to the cuneiform law codes— according to Westbrook’s theory or otherwise—interpretations of the biblical material must take that tradition into account. In his understanding of the law-code tradition, Westbrook found warrant for the application of a particular method within his analysis of biblical law, as well as of ancient Near Eastern law in general. The law codes are, by their very nature, only partial reflections of their respective societies’ legal systems. Despite even the presence of numerous documents of practice, there will inevitably be gaps in the knowledge of any one of these systems. Westbrook saw it as legitimate, when attempting to reconstruct the law of a particular society, to draw upon the law from other ancient Near Eastern societies as a means of filling in such gaps. One does not, however, merely select at random rules or practices from one system that might seem to fit neatly within another. It is necessary to see how the larger tradition is at work. Regarding his own efforts to complete the lacunae in the Bible’s law of adultery, Westbrook stated: Acceptance of the fact that the biblical law is a component of a wider tradition raises the broader question of what the tradition is and how the individual legal systems relate to it. It is only by understanding the nature of that tradition that we may elucidate the complexities of the ancient Near Eastern law of adultery and their reflection in the individual systems of the area.16 This methodological process of elucidating a legal topic or a set of legal issues by means of “understanding the nature of [the] tradition” is, we believe, the essence of the works of Raymond Westbrook found in this book and throughout this collection.

16 Westbrook 1990b: 546-47 (= chap. 10, p. 250 in this volume).

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This Volume There are sixteen articles contained in this volume. We believe that these sixteen, when read together, present a forceful articulation of Westbrook’s theory regarding a shared tradition. The first six come in Part I (“The Tradition in the Law Codes”) and focus on the nature of the law codes, how they should be understood, and how they contribute to our understanding of ancient Near Eastern legal tradition. Westbrook wrote these articles over the course of fifteen years, and one can see how he developed and enhanced his argument during that time. Part II (“The Tradition in Legal Practice”) contains five articles in which Westbrook selected a particular topic of legal significance and conducted an investigation of the topic across the various time periods and geographical regions of the ancient Near East. It is in these studies that Westbrook demonstrated important connections between the legal theory, as it were, of the law codes and the legal praxis of the societies that produced the codes. Finally, in Part III (“The Tradition in Greco-Roman Law”), we present five of Westbrook’s articles that consider certain aspects of early Greek and Roman Law. In these studies, he pointed to problems of interpretation within scholarship on the law of the classical world and examined these problems within the context provided by ancient Near Eastern law. He was able to show that such a context helps to resolve a number of conundrums and that the influence of the common legal tradition of the ancient Near East made its way into the heart of the Mediterranean world. Several, though not all, of Westbrook’s articles were originally accompanied by abstracts. As we began to edit this volume, we decided that these abstracts were sufficiently valuable to be retained. In order to bring uniformity to the volume, we therefore decided to compose abstracts for those articles that did not originally have them. The articles that have original abstracts are: “Biblical and Cuneiform Law Codes” (chap. 1), “Codification and Canonization” (chap. 5), “Patronage in the Ancient Near East” (chap. 9), and “Adultery in Ancient Near Eastern Law” (chap. 10). The remaining articles are accompanied by abstracts written by the editors of this collection. With respect to more technical matters, we have attempted to make consistent matters of spelling, grammar, and punctuation according to

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American standards. We have also made one particular change to the footnotes of the articles. All articles still possess the same number of footnotes as they did in their original publications, but we have adopted the authordate style of citation for the footnotes. Additionally, we have included at the end of the book a comprehensive list of all of the scholarly literature cited in these sixteen articles. While the production of this collection and the uniformity of format that it seeks to achieve should help to make Westbrook’s writings more accessible and usable, the more important purpose is to give his views a full airing and to reinvigorate the conversations that his scholarship originally stimulated. In sum, we believe and hope that this volume will make a significant and lasting contribution not only to the study of its more immediate topic—the legal systems of the ancient Near East—but also to the study of the larger history of law.

Part One

The Tradition in the Law Codes

1 Biblical and Cuneiform Law Codes Abstract This article examines the nature and purpose of the so-called “law codes” of the ancient Near East. It concludes that they formed part of a common scientific tradition, which nonetheless had a practical purpose, as a guide to royal judges in difficult cases.

The Law Codes

A

particular genre of ancient Near Eastern literature is the so-called “law code.” To date, nine separately identifiable law codes have come down to us, in whole or in part. Seven of them are in the form of cuneiform documents:1 Codex Ur-Namma (CU), Codex Lipit-Ishtar (CL), Codex Eshnunna (CE), Codex Hammurabi (CH), the Middle Assyrian Laws (MAL), the Hittite Laws (HL), and the Neo-Babylonian Laws (NBL). The other two are to be found in the Bible. Exod 21:1-22:16 is part of the Covenant Code and has long been recognized as an independent source.2 Likewise in Deuteronomy the remains of, or extracts from, an * Originally published in Revue Biblique 92 (1985): 247-65. Copyright © J. Gabalda et Cie, Éditeurs. Used by permission. 1 There are also various fragments too small to be of use in this discussion. Note that the so-called “Sumerian Family Laws” in ana itti u are not normative provisions at all, but contractual formulae (edition in Landsberger 1937). Also to be excluded are the “Sumerian Laws” of YBC 2177. As J. J. Finkelstein points out, they are a scribal exercise executed by a student, which combines various legal phrases and contractual formulae with normative provisions (ANET3 525). The two types of material are never combined elsewhere: there is a strict separation by the scribes between the lexicographical tradition as exemplified by ana itti u and the law code tradition. 2 See, e.g., Eissfeldt 1964: 33-37.

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independent legal source can be discerned, especially in chapters 21-25, in spite of being heavily re-worked for their present purpose and interspersed with a great deal of hortatory and other non-legal material.3 All nine codes are remarkably similar both in form and content, They are predominantly formulated in a casuistic style (albeit in varying degrees), that is to say, a particular set of circumstances is given, followed by the legal ruling appropriate to that case.4 The subject matter is problems of practical law: in many cases the same or related problems are considered by different codes, and in some cases whole paragraphs have been copied by one code from another.5 This similarity is evidence at least of a common type of intellectual activity. The purpose of this study is to examine whether this factor can help to explain the nature and purpose of these “codes.”

The Law Code as a Royal Apologia? Our starting point is the classical (and most complete) example of the genre, Codex Hammurabi. It has long been recognized that the term “code” as applied to it by Scheil in the editio princeps is a misnomer; CH lacks the comprehensiveness that would make it a law code in the same sense as the Code Napoleon, for example. Thus, G. R. Driver and J. C. Miles wrote: “The Laws must not he regarded as a code or digest, but as a series of amendments to the common law of Babylon,”6 a statement expanded a few pages later to: “a series of amendments and restatements of parts of the law in force.”7 There was no doubt in the learned authors’ minds, however, that they were dealing with a source of positive law, any

3 The Priestly Code in Leviticus and Numbers has for the most part a different subject matter from the two Biblical codes mentioned or the cuneiform codes. It is more aptly compared with cuneiform series concerning priestly functions such as urpu. See Geller 1980. 4 The casuistic style is usually introduced by a conditional beginning “If . . .,” but other forms are possible. See Yaron 1962a. 5 E.g., CL 29 and CH 160, CE 53 and Exod 21:35. 6 Driver and Miles 1952: 41. 7 Driver and Miles 1952: 45

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more than there had been in the earlier commentaries of D. H. Hiller8 or P. Koschaker.9 Doubts on this point were expressed by B. Landsberger, who pointed out that Codex Hammurabi is never cited as authority in judgments, nor does it state that the judges must in future decide according to these laws.10 Since Landsberger’s article two cases have been found which appear to refer to the text of a narûm, but they are too obscure to resolve the question of practical application.11 These doubts were taken up by J. J. Finkelstein in an entirely new approach to the problem.12 Finkelstein pointed out, firstly, that Codex Hammurabi could not have been compiled except in the last years of Hammurabi’s reign, after he had accomplished all of the conquests enumerated in his prologue, and secondly, that the code concluded with an epilogue addressed primarily to posterity, especially to future kings.13 He concluded that the code’s purpose was not legislative at all. It was representative of a literary genre, namely the royal apologia, and its primary purpose was to lay before the public, posterity, future kings, and, above all, the gods, evidence of the king’s execution of his divinely ordained mandate: to have been “the Faithful Shepherd” and the r m arim.14 Finkelstein applied his theory to two earlier law codes, Codex UrNamma and Codex Lipit-Ishtar, both of which had prologues and epilogues in the same spirit, and concluded that Hammurabi was following a traditional genre of royal inscription. Our question is whether this understanding of Codex Hammurabi can be used to explain the general phenomenon of law codes in the ancient Near East: was there a literary, rather than legal, tradition shared by the monarchs of that region? The answer must be in the negative. The prologue and epilogue, which are vital to the purpose of the royal inscription, are missing in the cuneiform codes later than Codex Hammurabi, and probably also in Codex

8 9 10 11 12 13 14

Hiller 1903. Koschaker 1917. Landsberger 1939: 221-22. On the meaning of imdat arrim, see de Jong Ellis 1972. Cited by Kraus 1960: 292. Finkelstein 1961. Finkelstein 1961: 101. Finkelstein 1961: 103

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Eshnunna (which slightly antedates it).15 Since we possess copies of these codes that originally provided a complete version of the text, and not an extract (with the possible exception of the Neo-Babylonian Laws), there is no reason for them to have omitted the prologue and epilogue if they existed. We must therefore agree with S. Paul in concluding that this traditional literary pattern was not continued after Codex Hammurabi, if indeed it existed at all outside the central Mesopotamian cultural sphere represented by the three codes that were modeled upon it.16 Paul does claim to see in both Deuteronomy and the Book of the Covenant the same tripartite division of legal corpus within a prologue-epilogue frame,17 but the two biblical codes are in a literary context too different from that of their Mesopotamian counterparts to allow any meaningful comparison. The content and purpose of the framework bear no relationship to that of the Mesopotamian codes: by no stretch of the imagination can the chapters following the legal corpus (however widely defined) in Exodus and Deuteronomy be described as an apologia of the lawgiver; there is therefore no evidence from their present textual context that the codes originated in a royal inscription. If, in the alternative, it is suggested that the biblical structure is patterned on that of the Mesopotamian codes, the additional difficulty is faced that there exist other models for the biblical version to copy, in particular ancient Near Eastern treaties.18 If the activity of writing law codes could be engaged in without the addition of a prologue and epilogue to the legal corpus, it suggests that a royal apologia was not the primary purpose in the composition of the latter. This is confirmed by the remarkable dichotomy in style between the Mesopotamian codes’ prologues and epilogues and their central legal corpus. It has even been suggested19 that they were formulated by two different sets of authors: the legal corpus by jurists and the prologue and epilogue by temple or court poets. It seems to us evidence rather that the legal corpus already existed as an independent unit with an independent purpose and was sometimes inserted into a frame, as in Codex Hammu15 A date-formula appears to precede the laws. The end of both extant copies is not preserved. 16 Paul 1970: 11 n. 5. 17 Paul 1970: 27-36. 18 See Weinfeld 1972: 146-57. 19 Klíma et al. 1971: 244.

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rabi, in order to be applied to a new purpose, that of the royal apologia. This is a recognized process in the case of the biblical codes, which were inserted into a religious-historical framework.20

The Law Codes as a Scribal Exercise? The nature and purpose of the central legal corpus is the subject of the theory proposed by F. R. Kraus in respect of Codex Hammurabi.21 Kraus begins with Hammurabi’s own definition of his laws: d nt m arim,22 which he translates gerechte Richtersprüche (just judicial decisions).23 The legal corpus is therefore prima facie a list of the king’s decisions in his capacity as a judge.24 Closer examination, however, reveals that by no means all the “judgments” recorded in the code are real. They are organized in groups wherein a single case is expanded by logical extrapolation, i.e., various theoretical alternatives are considered and the appropriate solution given by a priori reasoning.25 For example, paragraphs 229-231 read: 229 If a mason builds a house for a man and does not reinforce his work and the house that he built collapses and kills the owner of the house, that mason shall be killed. 230 If it kills a child of the householder, they shall kill a child of that mason. 231 If it kills a slave of the householder, he shall give slave for slave to the householder. Similar gradation of penalties occurs elsewhere in the code, in paragraphs 209-211, for example. We are therefore in the presence of a type of

20 21 22 23 24

Weinfeld 1972: 283-96. Kraus 1960. Col. XLVII (= reverse XXIV), lines 1-2. Kraus 1960: 285. First proposed by Landsberger 1939: 223. Although they translated the phrase “just laws” (1955: 95), Driver and Miles in fact noted that these laws resembled English case-laws rather than statute (1952: 52). 25 Kraus 1960: 289. In other passages, the composition of the Code is more complex, although the same principle obtains. See Westbrook and Wilcke 1974-1977.

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academic method. Now, this same method is found in a seemingly unrelated group of texts—the omen collections. For example, in the omen series umma izbu a typical sequence is: 26 5 If a woman gives birth, and the right ear (of the child) is (abnormally) small, the house of the man will be scattered. 6 If a woman gives birth, and the left ear (of the child) is (abnormally) small, the house of the man will expand. 7 If a woman gives birth, and both ears (of the child) are (abnormally) small, the house of the man will become poor. The connection, according to Kraus, is that the law codes and omen collections are both representatives of a particular type of literature, namely scientific treatises. Divination was regarded as a science by the Mesopotamians and the compiling of omens the equivalent of scientific research. By the same token, the casuistic style in which both texts are couched was the “scientific” style par excellence—transferring the concrete individual case to the sphere of the impersonal rule.27 This scientific activity is the work of the scribes and takes place in the scribal schools. Codex Hammurabi itself exists in the form of school copies already in the Old Babylonian period. It borrows extensively, often verbatim, from the text of the earlier codes of Ur-Namma and Lipit-Ishtar (as one would expect if it were a literary genre), which in turn exist in the form of Old Babylonian school copies. Likewise, both extant copies of Codex Eshnunna are school texts.28 In Kraus’ view, therefore, it is Hammurabi the scribe rather than the judge who is represented by the legal corpus of his code. It is a work of theoretical literature designed to illustrate his wisdom—”wise” (emqum) being a typical epithet of the scribe.29

26 Tablet III, lines 5-7. See Leichty 1970: 54. 27 Kraus 1960: 288-90. The same argument is given by Bottéro 1982: 426-35, using the example of the medical texts, another form of scientific treatise. Bottéro points out that Babylonian science sought to achieve exhaustive treatment of a subject by listing examples not only of the commonly observed and the exceptional, but also of the possible. 28 Kraus 1960: 293-94. 29 Kraus 1960: 290.

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The notion of the law codes as an activity of the scribal schools provides a ready explanation for their appearance among the Hittites, in Assyria, and as far afield as Israel. Cuneiform scribal schools existed throughout the ancient Near East in the second millennium, including the cities of Canaan prior to the Israelite conquest.30 They were not merely places for learning the cuneiform script; such schools were the universities of the ancient Near East where the cultural and literary inheritance, both Babylonian and local, was preserved and developed. Codex Hammurabi itself continued to he copied and re-copied in scribal schools both in Babylonia and elsewhere for more than a millennium after its promulgation.31 It would be no surprise, therefore, to find similar codes compiled from the local law by Canaanite or Hittite scribes who were inspired by contact with Hammurabi’s magnum opus. Attractive as this picture is, in our view it requires correction in one important respect: Kraus’ basic assumption that the intellectual activity of collecting legal decisions, expanding them by the addition of logical variants and formulating them in scientific style resulted in a work of pure science, a monument to scribal wisdom and no more.32 Our reasons for questioning this assumption emerge from a closer examination of the parallel adduced by Kraus himself—the omen series.

Law Codes and Omen Series: Practical Application The omen series were compiled for a very practical purpose: to be used as reference works by diviners when they sought to determine the significance of an ominous feature (as in extispicy) or event. For example, if a lamb were born with but a single horn, the diviner (brû) would consult the series dealing with unusual births, summa izbu, select and excerpt the pertinent omens and prepare a report. Then, if necessary, an appropriate ritual would he performed in order to expiate the evil effects of a bad omen. Presumably the report would usually be presented orally, but in the library of Assurbanipal have been preserved a number of written reports 30 See Tadmor 1977. 31 See Laessoe 1950; Nougayrol 1951, 1957, 1958; Finkelstein 1967, 1969a. 32 To be fair, Kraus does hint at their possible use: “. . . gibt es ein Handbuch, so greift man zu ihm” (1960: 290), but no specific application is suggested.

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from diviners to an Assyrian king, upon which our knowledge of this procedure is based.33 The diviner did not directly cite the name of the series that he was consulting but would differentiate his sources by drawing a line between omens from different tablets of the series or else by placing them on opposite sides of the tablets.34 There is evidence of the consultation of omen series as far back as the Old Babylonian period.35 The activity of compiling the lists of omens together with their meanings was therefore not merely a scribal exercise; it was “applied science.” We suggest that the compiling of lists of legal decisions basically served a similar purpose. They were a reference work for consultation by judges when deciding difficult cases. In view of the association of most of the law codes with a king, it is reasonable to suppose that it was the king as judge, or at least the royal judges, that these lists were intended to serve. The royal courts, as supreme courts, would be called upon to decide difficult points of law and would therefore be most in need of precedents to assist them.36 There is no direct evidence from cuneiform sources for the consultation of law codes as there is for the omen series.37 This is not a decisive consideration, nor even surprising, for three reasons. Firstly, the selection of cuneiform sources available to us is notoriously arbitrary, depending on the fortunes of the archaeologist’s spade, and argument from silence is therefore inappropriate. Secondly, the interpretation of omens played a far more important and common role in Mesopotamia than did lawsuits. The king consulted diviners because, like the rest of his subjects and perhaps more so, he was a potential victim of the divine judgment signified by the 33 Leichty 1970: 7-11. For reports based on excerpts from an astronomical omen series, see Parpola 1983: nos. 324-326. 34 Leichty 1970: 8. 35 Leichty 1970: 7-8, citing an Old Babylonian letter. 36 On the role of the royal courts as a final court of appeal in difficult cases, see Weinfeld 1977; and Leemans 1968. 37 See note 11 above. An express, if later reference to the use of a law code by royal judges is found in a land which so far has yielded no law codes, namely Egypt. According to the Greek historian Diodorus Siculus (Bib. Hist. I 75 [6]), at a trial in Egypt all the laws lay before the judges, written down in eight books. Seidl (1957: 19) claims that this account is confirmed by a picture in the tomb of Rekhmireh, a vizier of the eighteenth dynasty, which shows the vizier sitting in judgment with forty leather scrolls before him.

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omens, and because he needed the advice of the diviners before undertaking any significant act and, irrespective of his own initiative, whenever a natural phenomenon of ominous portent occurred. On the other hand, the king was never party to a lawsuit, only the judge in a restricted number of cases, and his need for consultation of legal precedents, whether personally or through experts, would be much more circumscribed. Inevitably, the number of recorded omens would be far greater than that of legal precedents, and in fact in the library of Assurbanipal’s omen series formed by far the largest category of texts.38 This in turn would affect the chances of finding material evidence of their application. Finally, there is the question of oral and written procedure. Direct evidence for the consultation of omen series exists only for a short period of time covering two Neo-Assyrian kings,39 and only due to the fortuitous circumstance that the diviners in question did not live in the palace, so that consultation was by letter.40 It would require equally unusual circumstances for consultation of legal reference works during or at the conclusion of a trial to be by letter and not oral. The cuneiform sources do, however, provide some indirect evidence of the use of law codes that we have postulated. Firstly, there is the archaeological evidence concerning the Middle Assyrian Laws. This vast collection, originally numbering 14 tablets, is, as we have noted, not a royal inscription. Nor is it a school text. Most of the tablets recovered were found in a gate-house identified as the “Gate of Shamash,” which is the normal location of the courthouse in Mesopotamia (Shamash being the god of justice), and already E. Weidner referred to them for this reason as a legal library for judges.41 Secondly, there is the nature of the Hittite Laws. These are likewise neither a royal inscription nor a school tablet. They are part of the royal archives, but more interesting than their location is the historical development that they betray. The collection was recopied over several centuries,

38 The omen series umma izbu alone, as preserved in the library of Assurbanipal contains more than two thousand omens, arranged in a series of twenty-four tablets. Leichty 1970: 2. 39 Parpola 1983: xvii. 40 Leichty 1970: 9-10. 41 Weidner 1937.

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and the later copies still retain some archaic language.42 On the other hand, there is evidence of an updating not only of language43 but also of the substantive law. In some cases this is implied and in. others in the form of an express reference to an amendment.44 And a fragment of an even later version (KBo VI 4) substitutes new penalties for those of the principal text. Regular changes to keep abreast of developments in the law would not have been necessary if the text were merely academic,45 as a comparison with the subsequent fate of Codex Hammurabi shows. As we have seen, Codex Hammurabi continued to be copied for more than a millennium after its promulgation, both within and outside of Babylonia. The copies are remarkably faithful to the original; certainly no changes whatsoever were made to the substantive law. The reason is that it became a piece of canonical literature, a part of the scribal school curriculum that was copied for its own sake. This illustrates the difference between school texts and scientific texts. The local scribes saw no reason to alter Codex Hammurabi, because for them it was only a scribal exercise and not part of their positive law. Their own law codes, however, had a practical purpose and therefore had to reflect the local law, which meant also regular amendment to take account of changes in the law. This is not to say that “foreign” codes copied in the scribal schools were not without influence. The codes under discussion contain many similar provisions, because the societies themselves and therefore their substantive law were so similar. An earlier law code therefore provides an obvious model when drafting one’s own, particularly in terms of the legal problems to be addressed, but its provisions are not binding. It has rather what modern lawyers from independent systems with a common tradition call “persuasive authority,” as, for example, with United States precedents cited in English courts.46 The process of adoption is selective. Thus the Sumerian codes of Ur42 Goetze 1957: 110-11. 43 Hoffner 1981. 44 E.g. Paragraph 94: “If a free man steals in a house, he shall give (back) the respective goods; they would formerly give for the theft l mina of silver; now he shall give 12 shekels of silver” (ANET3 193). See also Koroec 1957: 99-100. 45 “KBO VI 4 schleppt die veralteten Bestimmungen nicht mehr mit; der Text gibt nur das geltende Recht” (Goetze 1957: 111). 46 Compare Cardascia’s theory of the “reception” of Codex Hammurabi, drawing on the analogy of the Continental law experience (1960: 47-48).

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Namma and Lipit-Ishtar exist in school copies in the Old Babylonian period and some of their provisions re-appear in Codex Hammurabi in almost verbatim translation.47 Other paragraphs of Codex Hammurabi, however, depart fundamentally from their parallels in the earlier codes, for example, where physical injury is punished by talio instead of monetary compensation. Again, the later codes did not reproduce the provisions of Codex Hammurabi verbatim, but a curious use of terminology illustrates how they took note of it as a source. The dowry that a bride brings from her parent’s house is consistently called eriktum in Codex Hammurabi, and the gifts that she receives from her husband, nudunnûm (paragraph 172). This terminology does not reflect the documents of practice, where

eriktum does not appear at all, gifts from the husband have no special appellation, and the nudunnûm in all periods refers to the dowry. All the evidence points to an innovation which was not taken up in practice.48 Nonetheless, the Middle Assyrian Laws in their discussion of questions of marital property use the same scheme— erku for dowry (MAL A 27) and nudunnû for gift from the husband (MAL A 29, 32)—suggesting a conscious imitation of Codex Hammurabi, although the laws in which these terms appear are not directly parallel to the provisions of the earlier code. The same tradition even makes its way into the Neo-Babylonian Laws (paragraphs 8-13), with this difference, that the author of the later code found the traditional scheme too illogical and simply reversed it—nudunnû for dowry, as in practice, eriktu for gift from the husband, the latter use being a complete innovation. Again, the content of the laws in which these terms appear are not the same as in the earlier codes. Finally, the practice of selective adoption can be seen in the relationship between the cuneiform and the biblical codes. Codex Eshnunna exists as a school text and in some form must have reached the Israelite cultural sphere, since Exod 21:35, concerning the ox that gores another ox, is virtually a translation of CE 53. However, whereas CE 54 imposes a monetary penalty on the previously warned owner of a goring ox that kills a man, Exod 21:29 in the same circumstances requires the death penalty.

47 See n. 5 above. 48 See the discussion by the author in Westbrook 1982a: vol. 2, 257-68 (since published as Westbrook 1988b).

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To summarize: in our view the ancient Near Eastern law codes derive from a tradition of compiling series of legal precedents in the same manner as omens, medical prognoses, and other scientific treatises. The purpose of these series was to act as reference works for the royal judges in deciding difficult cases. Probably this began as an oral tradition and only gradually became a systematic written corpus.49 The clearest examples of such series are the Middle Assyrian Laws and the Hittite Laws; the other law codes are evidence that such series could he adopted to other purposes. Three types of secondary purpose appear from the extant codes: (1) royal inscriptions designed to praise the king’s activity as a judge (CU, CL, CH), which were characterized by the addition of a prologue and epilogue; (2) school texts (CU, CL, CE, CH, NBL), which would take on independent existence as part of the scribal curriculum; and (3) part of a religio-historical narrative (Covenant and Deuteronomic Codes) where the deity replaces the king as the source of the law. The final piece of evidence for this thesis comes from an unexpected source, but in order to evaluate it we must first analyze the process by which the law codes were created.

Law Codes and Omen Series: The Cycle of Creation The example given earlier in which the diviner, when called upon to interpret the ominous significance of an unusual birth, would select the pertinent omens from the series umma izbu, is but one step in the cycle of creating precedents and applying them. The first step theoretically will be the case where a birth occurs for which there is no precedent—a mare gives birth to a hare. If the diviner interprets this, whether by analogy with known omens or some other process of logic, as meaning that the king will flee from the battlefield, and in the event the king in question does flee, the diviner’s decision will then become a precedent for future omens of the same kind. The second step is for the omen to pass through what we may call the “first stage of generalization.” This stage is evidenced in the cuneiform sources by the “tam tu” texts.50 These are questions put to a god, e.g., tam t 49 On the analogy of the omen literature, see Leichty 1970: 23. 50 Lambert 1966.

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alk arrni, “a tam tu concerning going on a campaign.” In most cases the name of the person for whom the question was being put is replaced by “so-and-so, son of so-and-so” (annanna ap l annanna). W. Lambert explains: “the suppression of the names suggests the reason for the handing down of these documents which at first glance would seem to have no practical use after they were originally employed by the appropriate priest. Just as in law a case once decided can become a precedent so that future parties having the same problem can find the answer without recourse to the expensive and time-consuming processes of the law, so the tam tus, once answered, were preserved in case any one should wish to find the gods’ answer to that particular question again.”51 The third step represents the second stage of generalization, whereby the anonymous precedent is put into casuistic form, and the fourth step is the compilation of lists of these casuistic rules with the addition of their logical variations by analogy so as to form a series. This “scientific” treatment is necessary because in Mesopotamian eyes it makes the series universally applicable (by exhausting all possible alternatives) and therefore authoritative.52 The fifth step is then one already familiar to us, namely consultation of the series by the diviner who excerpts the relevant omens. If the occurrence contains some new element not directly covered by the existing omens, then the new omen may itself become a precedent, undergo the two stages of generalization, and be taken up into an omen series, thus repeating the cycle. The above cycle will have a familiar ring to lawyers, for it accurately reflects the development of general legal rules from individual cases in legal systems where judge-made law predominates. The only difference is that in the modern systems the process of generalization consists in creating abstract principles of law rather than variants of the precedent. It is reasonable to suppose, therefore, that the same process took place in moving from individual judgment to law code and back again. A decision of the king (or royal judge) in a difficult case would be turned into a casuistic rule of general application and, expanded with the necessary variants by 51 Lambert 1956: 121. 52 See Bottéro 1982: 431-33. In the alternative, precedents might be compiled first and then turned into casuistic form—there are some examples of large tablets containing a number of collected tam tu’s (Lambert 1966: 119-20).

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extrapolation, would eventually become part of a canon of such rules, which in turn were consulted in deciding new cases, and where a new decision was made it eventually would be added to the canon, and so forth, Accordingly, Hammurabi could speak truthfully in his code of the just decisions that he had made, for the central part of that code represents those parts of the received canon of legal rules that he chose to adopt and apply in his own court, supplemented by his own judgments (and perhaps the logical variants thereof). The cuneiform sources are not, however, so forthcoming with evidence of the legal steps described above as they are with the omen literature. The only step recorded is the first one—the king and his judges giving judgment in a particular case—without any indication of the decision’s value as a precedent.53 Even in the few full trial reports that exist, the ratio decidendi is not given.54 Bottéro refers to one decision of Hammurabi that appears to be based on the same principle as an article of his code.55 According to CH 32: “If a merchant ransoms a soldier who is taken prisoner on a royal campaign and brings him back to his city, if there are the means for redemption in his house he shall redeem himself. If there are not the means in his house for redeeming himself, he shall be redeemed from (the resources of) his city temple. If there are not the means in his city temple, the palace shall redeem him.” The following order is given by Hammurabi in a letter: “Speak to Lutamar-Zamama and Belanum: Thus says Hammurabi. (As to) Sinanadamru-lippalis, the son of Maninum, whom the enemy took: give his merchant ten shekels of silver from the temple of Sin and redeem him.” 53 See Leemans 1968 and the examples given therein. 54 A possible exception is the trial report edited by Jacobsen 1970. The legal issue appears to be whether a wife, who is informed by her husband’s assassins of his murder but keeps silent, is herself guilty of murder. The case was remitted by the king to the Assembly of Nippur, and the report contains a debate before the Assembly, followed by the Assembly’s reasoned decision as to her guilt. The report exists in duplicates from the reign of King Rim-Sin of Larsa and in later copies (unpublished) from the time of Samsu-iluna (Jacobsen 1970: 196). This suggests that it had value as a precedent, although of course it may merely have been a cause célèbre. The same legal issue does not occur in any of the extant law codes. It is interesting to note that according to Jacobsen, the later copies of the report also contain reports of a number of other trials before the Assembly of Nippur (1970: 196). 55 Bottéro 1982: 421.

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From the name of the prisoner it could be assumed that the temple of Sin was his city temple. What then is the connection between the king’s order and CH 32? Was it the precedent from which at least part of the legal rule was constructed? Or was it given in application of the rule? Indeed, were the conditions for redemption laid down in the rule, namely the lack of funds in the soldier’s household, fulfilled in this case? No answer can be derived from the laconic terms of the order. To find evidence of the intervening legal steps we must turn to our one non-cuneiform source: the Bible. The process in question is illustrated not by the biblical law codes themselves but by the reports made of five difficult cases, four of which were decided by recourse to a special procedure (the oracle) and one by the special order of a military leader. The first case that we wish to consider is reported in Num 15:32-37. A man was found gathering wood on the Sabbath. The case must have been without precedent, for he was held while Moses consulted God. The decision was that the man was to be executed by stoning. As it stands the report is no more informative than Hammurabi’s order. The grounds for the decision and the fact that it is intended as a precedent are indeed implicit, but neither received express mention. The second case is reported in two places. In Numbers 31, after a war against the Midianites, Moses is ordered by God to divide the spoils of war between those who went out to battle and all the “congregation” (‘ dâ, vv. 25-28). As in the previous case, there is no specific indication that this decision is to serve as a precedent for future battles. However, the same principle at least (of division between combatants and noncombatants)56 is the ratio of the decision attributed to David in 1 Samuel 30. The background here is a victory over the Amalekites. The victory was achieved with only part of his forces, the rest being left behind at Nahal Besor (vv. 9-10), but David decides nonetheless that the spoil is to be divided equally between those who actually took part in the engagement and those who remained behind. The decision in this report is formulated in terms of an anonymous rule: “For as his share is who goes down into the battle, so shall his share be who stays by the baggage; they shall share alike” (v. 24). Furthermore, we are expressly informed that this ruling had the force of 56 The two rulings differ as to the details of the division: David’s decision gives an equal share to each, whether warrior or not; the order in Numbers is to divide the spoil equally between two groups of presumably unequal size.

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precedent: “And from that day forward he made it a statute (q) and an ordinance (mi p ) for Israel to this day” (v. 25). The terms q and mi p are, of course, familiar from the biblical law codes. The third case is even more explicit. In Num 27:1-11, the daughters of Zelophehad, who died without sons, approach Moses and claim a share of their father’s estate. Following the same procedure as in the case of the man who gathered wood on the Sabbath, Moses consults God, and the specific decision is given to share Zelophehad’s estate among his daughters (v. 7). There then follows a re-formulation of that same decision as a casuistic rule, with the addition of possible alternatives (vv. 8-11): If a man dies, and has no son, then you shall cause his inheritance to pass to his daughter. And if he has no daughter, then you shall give his inheritance to his brothers. And if he has no brothers, then you shall give his inheritance to his father’s brothers. And if his father has no brothers, then you shall give his inheritance to his kinsman that is next to him of his family, and he shall possess it. And it shall be to the people of Israel a statute and ordinance (uqqat mi p ). There thus begin to emerge some of the steps in the creation of a code that we have already seen in the case of the Mesopotamian omen series and postulated for the cuneiform law codes. The problem of inheritance when a man dies leaving daughters but no sons could not have been a rare one, and in fact we find exactly the same solution in a Sumerian fragment probably belonging to Codex LipitIshtar:57 “If a man died and he had no son, (his) unmarried daughter [shall become] his heir . . . .” The extra condition of being unmarried fits the case of Zelophehad’s daughters perfectly, since in a postscript to the story (Numbers 36) we discover that they were unmarried and had to marry within the clan in order to preserve the family estate. Without wishing to enter into the intricacies of biblical compositional history, it seems to us that if this rule had already entered the law codes as early as the reign of Lipit-Ishtar, then it must have been in a canon of legal rules in Israel as well. If, therefore, as is claimed, the story is the projection back to the time

57 CL b; edited by Civil 1965.

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of Moses of an incident designed to explain a later political phenomenon,58 the technique must have been to take the well-known rule from a code and present it as an early precedent, the association being obvious to the contemporary reader familiar with the way that law codes developed from precedents. The fourth example adds another element. In Num 9:6-14, the oracle is consulted by Moses in the case of persons who were unable to keep the passover on the appointed day. The divine decision is that they are given a second date, but far from being specific to the persons concerned, it is formulated directly as a general casuistic rule: “If any man of you or of your descendants is unclean through touching a dead body or is afar off on a journey, he shall still keep the passover . . . . In the second month on the fourteenth day in the evening they shall keep it . . .” (vv. 11-12). The intermediate steps between case and code are obvious to the reader and can therefore be omitted. The actual wording of the casuistic introit ’î ’î kî is in fact already known in Codex Eshnunna59 and employed throughout the Neo-Babylonian Laws (aw lum a). But there is, as we mentioned, an additional element. Verse 13 goes on to consider the opposite case: “But the man who is clean and is not on a journey, yet refrains from keeping the passover, that person shall be cut off from his people.” Here is the technique familiar from all the law codes and identified by Kraus as the universal thought-process of Mesopotamian science. It is not at all necessary to the decision in this particular case but has been added as the drafters of the codes added theoretical examples. And v. 14 adds a further variant, concerning the applicability of the passover law to the g r. We have thus seen in these four examples: (1) the initial decision; (2) the first stage of generalization (anonymity); (3) the second stage of generalization (casuistic form); and (4) the creation of a code (academic variations). The picture is completed by our final example: the case of the man who in the course of a fight cursed in God’s name (Lev 24:10-23). The case begins with the now familiar pattern of oracular consultation, specific decision (vv. 10-13), and execution in the particular case: “Bring out of the camp him who cursed; and let all who heard him lay their hands 58 Snaith 1966. The character of the precedent as a source of law was recognized by Weingreen 1966. 59 CE 12, 13, and 19. It is also found in the Edict of Ammi-aduqa and in the Middle Assyrian Laws, paragraphs A 40 and B 6. See Yaron 1969: 65.

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upon his head, and let all the congregation stone him” (v. 14). There then follows the repetition of the same decision in the general casuistic form (vv. 15-16): “Whoever curses his God shall bear his sin. He who blasphemes the name of the Lord shall be put to death; the sojourner as well as the native, when he blasphemes the Name, shall he put to death.” Thus far the pattern is the same as in the earlier examples. The ruling continues, however, with the following variants: “He who kills a man shall be put to death. He who kills a beast shall make it good, life for life. When a man causes a disfigurement in his neighbor, as he has done it shall be done to him; fracture for fracture, eye for eye, tooth for tooth; as he had disfigured a man, he shall be disfigured. He who kills a beast shall make it good; and he who kills a man shall be put to death” (vv. 17-21). The relevance of these variants is not all apparent. Only the vaguest association of ideas would link them to the actual decision in the case which concerned the using of God’s name in a curse. On the other hand, if we consider all the circumstances of the case, namely that there was a fight between two men when the one man cursed, then the reference to rules on unlawful death or wounding is understandable. In a modern context, a lawyer giving an opinion on the case—prior to the decision—would naturally wish to cover those aspects as well. In the ancient Near Eastern context, the method involved becomes clear if we refer once again to our Mesopotamian parallel, the practice of the diviner (brû) when consulted on an ominous event. It will be recalled that the diviner’s report consisted of omens excerpted from the omen-series. But, as Leichty points out, “It is interesting to note that the brû-priest never filed just one omen as a report, but rather attempted to include all omens which might in some way pertain to the case.”60 The very same technique has been used in our passage in Leviticus, and just as the brû-priest would excerpt quotations from umma izbu or some other omen-series, so excerpts from a law code have been quoted here—to all appearances from that same collection upon which the present Covenant Code is based. In the light of the cuneiform material then, the biblical source can be seen to provide the missing piece of evidence that the law codes were applied in practice. And thus the cycle is completed.

60 Leichty 1970: 8.

2 The Nature and Origins of the Twelve Tables Abstract This article establishes a link between the early Roman code, known as the Twelve Tables, and the ancient Near Eastern law codes. The relationship between the two is evident both in the form of the codes and in their content. Both appear to derive from the Mesopotamian scientific tradition and to deal with similar legal issues that likely formed part of the curriculum in scribal training. A detailed examination of how issues such as minor physical assault and theft are treated in the Roman and Mesopotamian material supports this line of reasoning.

Introduction The Nature of the Twelve Tables

T

he various accounts from classical sources agree that the Twelve Tables were a lex, a normative statute of the type familiar from the late Republic, promulgated after due deliberation by a legislative body.
Indeed, the Twelve Tables were “the lex,” the archetypal piece of legislation that initially at least constituted a comprehensive codification of the law in force—fons omnis publici privatique iuris, as Livy puts it (3.34.6). And like any lex its formulation arose out of specific historical
Originally published in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 105 (1988): 74-121. Used by permission. A new numbering system for the Twelve Tables is set forth in Crawford 1996. This article retains the older system. * My thanks are due to Professor Peter Birks of Edinburgh University, who read the first draft of the article and made many useful comments and criticisms. Responsibility for the opinions expressed herein rests, as usual, with the author.

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circumstances (the struggle between the patricians and the plebeians), the problems of which their provisions were designed to resolve (by removing the plebeians’ grievances). Modern scholarship, while discounting the incidental legends of the traditional account, has been singularly uncritical in assessing its basic premises. Since the universal rejection of Pais’ and Lambert’s heresy as to the date and authorship of the Twelve Tables,1 the scholarly consensus has been that the code was indeed the product of conscious intellectual effort on the part of a commission of ten individuals, duly confirmed by a constituent assembly (as legislation ought to be), at about the date ascribed by tradition, namely the mid-fifth century B.C.E., and designed to impose a sweeping reform upon the existing law, a new order that would improve the lot of the plebeians.2 Problems arise, however, when we try to apply this view of the Twelve Tables to its actual provisions, as known to us from the surviving fragments. Firstly, there is the question of form. As Daube points out, the predominantly casuistic style of the Twelve Tables (“If a man does X, he shall be subject to Y punishment”) is not the form used by classical legislation.3 But this, it may at once be countered, is scarcely a problem at all. The Twelve Tables are the product of a primitive society; they cannot be expected to have developed the sophistication of the later laws, and any differences may therefore be attributed to normal historical development. This all too obvious explanation, however, leads one to wonder whether the elaborate machinery of the Decemvirs, etc., while eminently suitable for legislation of the classical period, is not also too sophisticated for such a primitive society? The form of the text gives rise to a further problem. Wieacker discerns two basic stylistic forms: laconic imperatives in parataxis and (the more dominant) the conditional sentence. Even the occasional use of a relative sentence reveals the same thought structure: rules such as Qui malum 1 For a summary of the controversy, see Schiller 1978: 153-55. 2 E.g., Crifò 1972: 118-121, 123; Kunkel 1973: 23-35; Jolowicz and Nicholas 1972: 14; Wieacker 1956: 472; Wieacker 1966: 299; and especially Westrup 1950: 168-69, 17682: “. . . a Magna Charta of the plebeian rights and liberties.” 3 Daube 1956: 5-7. This difference is not affected by Daube's later argument (1956: 5761) that the third-person singular forms in the Twelve Tables may have an impersonal sense.

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carmen incantassit (VIII 1) could equally well be formulated as a conditional sentence.4 The result is a series of specific solutions to narrow sets of circumstances; lacking are abstract norms, general principles, or definitions.5 In consequence, the Twelve Tables could not have been a comprehensive code, even of the private law to which the surviving fragments seem mostly to confine themselves.6 Here at least, some modern scholars break ranks with the orthodox Roman view. Gioffredi suggests that the provisions allude to the unwritten principles of the law which, being generally known, there is no need to state expressly,7 thus admitting the existence of a customary law with equal validity as the written text. Kaser, following the same line of thought, regards the Roman view as a fiction which arose some time after the Twelve Tables’ promulgation.8 The bulk of the law was based on unwritten tradition (mos maiorum), while the Twelve Tables affected only a relative small number of rules, which they confirmed or amended.9 It is to be noted that Kaser’s explanation, in denying comprehensiveness to the Twelve Tables, at the same time assumes that they had the character of a classical lex, the point being that in later history lex was only a sporadic source of law alongside the all-embracing ius.10 We thus come to the final and most serious problem: the apparent lack of reference in the extant rules to the events which were supposed to be their “raison d’être.” Commentators have made great efforts to discover in the terse provisions on private law reforms for the benefit of the plebeians, but all such interpretations are based on a priori reasoning. If we did not know of an external tradition concerning patricians and plebeians, would

4 Wieacker 1966: 321-22. 5 Gioffredi 1947-1948: 7-140, esp. 44. 6 This is not merely a question of their present fragmentary condition. As Wieacker points out, the impossibility of comprehensiveness can be seen from the nearcontemporary Laws of Gortyn, the text of which has been preserved almost in its entirety (1956: 467). In 1966: 299 on the other hand, Wieacker speaks of comprehensive legislation by the Decemvirs, but without giving grounds for this change in his position. 7 Gioffredi 1947-1948: 7-140, esp. 44. 8 Kaser 1973: 523-46, esp. 539. 9 Kaser 1973: 524, 527-28, 533. 10 Kaser 1973: 524.

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we conclude from the text of the Twelve Tables alone that they were designed to reform the law in favor of plebeians? Hardly. 1. The text contains only one express reference to the two social classes, namely the prohibition on intermarriage (XI 1), which suggests quite the opposite.11 2. In the rules on debt, the right of the creditor to take the debtor “bound with fetters or shackles of 15 pounds, not less, or more if he wishes” (III 3) does not suggest social legislation in favor of the debtor, always assuming the latter to be identifiable with the plebeian class. 3. The bulk of the rules deals with very ordinary aspects of private law, such as procedure, inheritance, and delict. They could apply to almost any period or society. 4. A small number of rules apply to religious practice such as funerals, and are as such of no social immanence.12 Furthermore, the very simplicity of the rules belies the notion that the plebeians’ ignorance of the law was an evil removed by the legislation. The law was bound to be revealed to them by the precedents that they 11 It can be argued that the provision is in one of the supplementary Tables, added against the will of the plebeians. But this again relies on an external story rather than the text, and it could equally be argued that the elaborate tale of the last two Tables, found in certain authors, was designed to cover their embarrassment at the content of the text so flagrantly contradicting their account of its formation. 12 The argument that the prohibition on sumptuous funerals (e.g., Wieacker 1966: 313) was aimed against the high living of the aristocracy is an example of the dangers of uncritically accepting classical Roman interpretation. The claim is based on Cicero's remarks (de leg. 2.23.59-24,61), but the picture given from those provisions preserved in the original is somewhat different. The prohibitions are on smoothing the funeral pyre with an axe (X 2), female mourners tearing their cheeks or making a certain type of lamentation (X 4), collecting the bones for a subsequent funeral (X 5), adding various things to the corpse, including gold (X 8). Apart from the gold, none of these prohibitions could possibly have anything to do with luxury. Prima facie they represent religious practices, the significance of which would have been lost on Cicero. One has only to compare the prohibition on Canaanite practices in Lev 19:28: “You shall not make any cuttings in your flesh for the dead nor print any marks upon you . . . .” Compare further A. Watson’s more sober assessment of all the evidence (1975b: 180186).

The Nature and Origins of the Twelve Tables

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themselves experienced; only its subtleties could be hidden from them, and these would rely on a level of sophistication or a mass of detailed exceptions of which there is no trace in the published text. The most ignorant plebeian could hardly have been unaware that it was forbidden to bury or burn bodies in the city, if that rule had been enforced but once. And by the same token, if there were subtleties concealed from the plebeians, then the provisions of the extant text are singularly inapt for removing them. As Watson admits:13 “. . . would the XII Tables have enabled the plebeians to know what the law was, and to exercise their private law rights? No! Law remained a mystery. Though the code is explicit on how to summon a defendant to court, on appropriate sureties and so on, there is not a word on the forms of action. One would not learn from the code how to frame the appropriate legis actio.” We conclude, therefore, that the form of the Twelve Tables does not bear the unequivocal marks of a legislative process and that their content is not necessarily explicable by reference to particular historical events. The hypothesis that we shall present in this study is that originally the Twelve Tables, far from being a lex in the classical sense, were not normative legislation at all and certainly not a comprehensive code. They represent a work of an entirely different character, a character which is intimately connected with the question of their origins.

The Origins of the Twelve Tables The classical account with its story of a mission to Greece does at least hint at some foreign influence in the laws. Modern scholarship, on the whole, has taken a much more chauvinistic attitude. Thus Westrup claims:14 “The Laws of the XII Tables are beyond any doubt whatever as a whole essentially of national Roman origin, even though the composition of a single precept may have had a provision in Solon’s laws for its 13 Watson 1975b: 185. Ignorance should not be confused with uncertainty in the law, which would work to the detriment of patricians and plebeians equally. It is impossible to tell whether the extant rules resolved uncertainties, since all rules do so by their very existence. Neither comprehensive legislation nor even writing is necessary to establish certainty. 14 Westrup 1950: 108.

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prototype.” Westrup would look to Rome’s own Indo-European heritage for the origins of its law.15 The foremost representative of the contrary opinion remains the thesis of Müller in 1903.16 Having noted that a number of provisions in the newly-discovered Code of Hammurabi bore a close resemblance to provisions of the Covenant Code in Exodus and in some cases also to those of the Twelve Tables, Müller concluded that the first two derived from a common Semitic “Urgesetz,”17 while some parts thereof were further incorporated into the Twelve Tables through the medium of Greece, where the decemviral mission had become acquainted with that same document.18 Müller’s hypothesis has been universally rejected, often in the strongest terms. The last detailed refutation was by Volterra in a long essay on the originality of the earliest Roman law.19 Volterra compared the early Roman and ancient Near Eastern legal systems by an analysis of institutions and concluded that they were incompatible.20 There is little point in discussing the details of Volterra’s comparisons, for two reasons. The first is one noted by Volterra himself: that future archaeological discoveries might invalidate his conclusions.21 It is not any particular discovery but the constant addition of new source-material, including a vast quantity of legal sources, that has rendered Volterra’s prediction accurate. This material, together with equally extensive advances in the science of cuneiform studies, has rendered the learned works on ancient Near Eastern Law upon which Volterra relied mere milestones in the history of research.22 Very little of their conclusions remains valid today: in terms of philology alone, many legal terms which were previously mistranslated or untranslatable have been clarified, leading in turn to a radically different interpretation of the legal context in which they appear.23 15 16 17 18 19 20 21 22 23

Westrup 1950: 186. Müller 1903. Müller 1903: 191-204, 210-211. Müller 1903: 205-206. Volterra 1937. Volterra 1937: part II, 85-173. Volterra 1937: 86. E.g., David 1927; Koschaker 1917. For example Volterra’s translation (1937: 99) of a key phrase in Codex Hammurabi 185 (ina mêu) as in suo none is now known to be incorrect; see Yaron 1965: 171-83.

The Nature and Origins of the Twelve Tables

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The second reason is that Volterra’s comparison reveals what in our opinion is a fundamental error of method. Volterra took as his point of departure early Roman law as traditionally interpreted, in other words, more or less as seen through the eyes of classical Roman commentators.24 Now, it may be readily accepted that the classical law was a unique product of Roman civilization, and on this basis it is easy to conclude, when comparing the “classical version” of early Roman law with ancient Near Eastern law, that there is no connection between the two. It did not occur to Volterra that our understanding of early Roman law might be open to re-interpretation in the light of the ancient Near Eastern material. After all, it is not as if our present understanding of early Roman law removes all obscurities or inconsistencies. It is a methodological error therefore to use the classical interpretation as if it were a constant. Nonetheless, the approach implied in Volterra’s method has recently received emphatic expression in Watson’s study of the Twelve Tables:25 “When the direct evidence for archaic Roman law is inconclusive we often have a safer guide than that provided by unconnected systems, namely, developed Roman law. There is really very little connection between early Roman law and, say, the law of Babylon, but the law of the later Roman Republic and of the classical period is the immediate descendant of the law of the early Republic and the XII Tables.” We would argue that the position is by no means so clear. It is well known that much of the early text was obscure to the Romans themselves: the meaning of some terms had already been lost.26 In the case of the jurists, their interpretation was by definition a distortion, since they were not interested in seeking historical truth but in establishing a rule that would

Likewise Volterra’s assumption that riks tu in CH 128 means a written contract (1937: 117): see Greengus 1969: 505-32. Volterra’s statement that ancient Near Eastern law (as opposed to Roman law) used written modes of transfer (1937: 145) was inaccurate even when he wrote: see San Nicolò 1931: 162-63. 24 E.g., that early Roman law placed no restrictions on the right of the paterfamilias to alienate property (Volterra 1937: 138-39), or that it had execution against the person, not against his goods (Volterra 1937: 148). 25 Watson 1975b: 8. 26 See, e.g., Cicero, de leg. 2.23.59 (lessus).

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work for their own, vastly different, conditions.27 But even the so-called “historians” cannot be relied on: being unaware of the conditions of early Roman society, they could only interpret the ancient texts in the light of their own experience. Far from trying to penetrate the thought-process of their ancestors, they imposed their own conceptions upon them.28 Needless say to, many traditions were preserved, but they must be treated with caution, and not regarded as inherently reliable. We shall attempt to show in the course of this study examples of where the ancient Near Eastern material can be used, on the one hand to confirm a native Roman tradition and, on the other hand, to clarify a misunderstanding of the law arising from it where that tradition results in an apparent internal contradiction. Such cases in themselves raise a presumption of some connection between the legal systems, but they are insufficient without a proper framework within which the existence of such connections can be accounted for. This framework we hope to provide in demonstrating the common derivation of the Twelve Tables and its counterparts from the ancient Near East. We thus return to Müller’s thesis. The rejection of criticism such as Volterra’s does not automatically rehabilitate the former’s approach. For Müller, no less than the rest of modern scholarship, assumed in his comparisons that he was dealing with normative statutes. The “Urgesetz” postulated by him was assumed to have been a single piece of legislation29 which was reproduced more or less faithfully by Moses, adapted by Hammurabi,30 and adopted in part by the Decemvirs. Müller even surmised that a legal commission might have been responsible for Hammurabi’s version.31 Modern research on the ancient Near Eastern law codes has 27 E.g., the reinterpretation of malum carmen (T. VIII 1) into the delict of famosus libellus. Cf. Paulus Sent. 5.4.6: introducta est lege XII tab. de famosis carminibus . . . . 28 See n. 12 above. 29 “. . . nicht einzelne Bestimmungen, die da und dort in gleicher Weise entstehen können, sondern das schon feststehende in bestimmte Formen und Gruppen gebrachte Gesetz, das nur an einem Orte in der Fassung und Redaktion entstanden sein kann” (1903: 218). 30 Müller’s suggestion that this “Urgesetz” was brought by Abraham to Canaan and thence to Egypt, where Moses became acquainted with it (1903: 219), might seem a little naive to us today. It appeared less so in the then state of biblical research. 31 Müller 1903: 188.

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rendered the idea of an “Urgesetz” untenable. Indeed, it is our different understanding of the nature of these law codes that provides the key to the connection between them. But by the same token, this new understanding may be applied equally to the Twelve Tables, so that Müller’s researches can be said to have pointed in the right direction. We therefore turn now to examine the ancient Near Eastern material.

The Ancient Near Eastern Law Codes The Framework: Ancient Near Eastern Civilization Little more than a century ago virtually the only native evidence that existed for the ancient Near East before the conquest of Alexander was the Hebrew Bible. This document, standing in isolation, provided an obscure and often incomprehensible record of the culture from which it arose, and a highly distorted view of the surrounding civilizations. The archaeological and epigraphical evidence provided since then by excavations in the region has revealed that biblical Israel was but a minor part of a much wider civilization. The various kingdoms of the region were in constant contact throughout millennia, through trade, diplomacy, and at times by direct conquest. Through these channels passed not only men and goods but also ideas: wholesale literary, religious, and scientific traditions. The pattern of diffusion of ideas was generally from Mesopotamia outwards.32 The main reason seems to have been the system of writing. Cuneiform script, invented by the Sumerians in the early third millennium, was adopted by their Akkadian-speaking 33 neighbors and thence spread to other areas where it was adapted to the local languages. Already in the third millennium Ebla, in Syria, was using cuneiform for its language.34 and in the second millennium cuneiform scribal schools were to be found as far afield as Armenia (Urartu), Anatolia (Hittites), Palestine (Canaan),

32 Though not exclusively, at least by the 1st millennium. 33 Akkadian was a Semitic language, better known by the names of the two main dialects that developed from it: Babylonian and Assyrian. 34 See Pettinato 1979: chap. 3.

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and Egypt.35 In this process, of particular interest to our inquiry is the position of the Hittites and of ancient Israel. a) The Hittites spoke an Indo-European language and were never incorporated into any of the Mesopotamian empires.36 Thus the existence of Mesopotamian traditions in their records can neither be due to some presumed common Semitic heritage37 nor to the forcible imposition of a foreign culture. Assyrian merchants were active in Anatolia in the early second millennium (before the rise of the Hittite empire),38 while the later Hittite Empire appears to have imported Babylonian scholarship on a larger scale.39 b) The main record of ancient Israel, the Hebrew Bible, is thoroughly pervaded with Mesopotamian influences while at the same time manifesting extreme ideological hostility to Mesopotamian culture.40 Thus the absorption of outside traditions was not altogether a conscious act of will.41 Furthermore, the Bible is not written in cuneiform script, showing that the traditions in question could survive the demise of the script in which they were originally expressed. Indeed, such was the tenacity of

35 The influence on Egypt was less, since the Egyptians had their own script and highly developed civilization. By the same token, Egyptian influence outside of its own territory was remarkably small, except in the small area of Western Asia that it intermittently held under its control. In the 2nd millennium, Akkadian was the language of diplomatic correspondence, and the Egyptians used it even for communication with their own vassals in Canaan, having a scribal school at ElAmarna for this purpose. 36 The Hittite Empire flourished between the 18th and the end of the 12th century B.C.E., when it was destroyed by the Sea Peoples. For a summary description, see Goetze 1957: 82-178. 37 Also, many of these traditions are found first in Sumerian—a non-Semitic language. 38 For a summary of the relations, see Goetze 1957: 64-81. Our documentation is mainly from the 19th century B.C.E. 39 See Goetze 1957: 171-74. 40 E.g., Jeremiah’s objections to the cult of Ishtar (Jer 7:18) and Ezekiel’s disgust at women weeping over the death of Tammuz in the temple in Jerusalem (Ezek 8:14). 41 E.g., Ezekiel uses categories known from a Babylonian reference work for priests. See Westbrook 1988d: 29 n. 102.

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these traditions that many survived into post-biblical rabbinic literature, even when not mentioned in the Bible.42 The spread of Mesopotamian traditions was therefore only in small part due to conquest or ethnic factors. It appears to have occurred mostly through political and commercial interchange, fostered by the use of the cuneiform script. It manifests itself in every field of ideas, most notably in literature, religion, and science. a) In the literary sphere the best-known example is the Flood story, derived from a Mesopotamian original, which finds its way into the biblical creation account in Gen 6:9-9:17.43 But there are other examples that follow other patterns of diffusion, for example the Harab myth, which passes from a Babylonian version into the Hittite sphere.44 Often we find preserved not the whole myth but elements thereof, as with the apkallu’s, the seven Mesopotamian sages, who were said to have pre-dated the Flood and who have recently been identified in Prov 9:1.45 On the other hand, it may be not the content of the literature that is transmitted, but the literary genre, for example “citylaments” or “building stories.”46 b) The diffusion of traditions in the religious sphere is evidence of even deeper influence. Although they worshipped different gods, the peoples of the ancient Near East shared many cultic practices and concepts, including the classification of sins.47 c) A third significant sphere was that of the sciences, but we shall postpone our discussion of the scientific tradition for the moment, and deal first with the position of the law codes in this general picture. 42 See, e.g., Weinfeld 1983: 95-129, esp. 119; and Westbrook 1986b: 393-398. 43 The oldest version is in Sumerian, and an Akkadian version was implanted into the Gilgamesh Epic. See ANET3 42-44 (Sumerian version), 93-95 (Akkadian version). 44 Jacobsen 1984: 17-20. 45 Greenfield 1985: 13-20. 46 For “city-laments,” see Gwaltney 1983. For “building stories,” see Kapelrud 1963; and Hurowitz 1985. 47 See nn. 41 and 42 above; and Moyer 1983.

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The Law Codes The so-called “law codes” from the ancient Near East form a literary genre in which the common tradition is particularly evident. Nine such documents are known to date, seven in cuneiform script and two from the Pentateuch. They are as follows: 1. Codex Ur-Namma (CU), from the city of Ur in southern Mesopotamia. It is written in Sumerian and dates from ca. 2100 48 B.C.E. 2. Codex Lipit-Ishtar (CL), from the city of Isin in southern Mesopotamia. It is also in Sumerian and dates from ca. 1930 B.C.E. 3. Codex Eshnunna (CE), from the eponymous city in northern Babylonia. It is written in Akkadian and dates from ca. 1790 B.C.E. 4. Codex Hammurabi (CH) from Babylon, is written in Akkadian and dates from ca. 1750 B.C.E . 5.The Middle Assyrian Laws (MAL), from the time of TiglathPileser I (end of the twelfth century B.C.E.). They are written in the Assyrian dialect of Akkadian. 6. The Hittite Laws (HL) are written in Hittite and date from between the sixteenth and twelfth centuries B.C.E. 7. The Neo-Babylonian Laws (NBL) date from the seventh century B.C.E. They consist of a small tablet apparently copied from a larger corpus. The two biblical codes are: 8. The Covenant Code from the book of Exodus (Exod 21:122:16). It is impossible to date this code with any certainty, but 48 This and the following dates are very approximate. The law codes cannot be dated to a specific year, only to the reign of the king in whose name they were promulgated or by other external evidence. Furthermore, the chronology itself has not yet been settled. For convenience, we follow the chronological schema of the Cambridge Ancient History. For one view on whether Codex Ur-Namma should be attributed to his son, Shulgi, see Kramer 1983.

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it may be one of the earliest strata of biblical literature, probably dating from the first third of the first millennium B.C.E. 9. The Deuteronomic Code from the book of Deuteronomy (Deut 21:10-25:16). This is generally dated to the 7th century B.C.E. All these codes share certain characteristics which immediately mark them as belonging to a single literary genre: 1. Their content is a collection of legal rules dealing with everyday problems of non-sacral law, i.e., the settlement of legal disputes arising from delict, contract, and the like; the establishment of rights in respect of property, status, etc., procedural rules, or simply norms with a socially immanent sanction.49 2. The form is casuistic. The law is expressed as a series of individual cases, the circumstances of which are put into a hypothetical conditional sentence (“If a man does X, . . .”), followed by the appropriate legal response in the particular case (“. . . his punishment shall be Y”). While there is some variation within the framework of this form, e.g., the protasis can begin “a man who . . .,” or the whole rule can be cast as a direct order (“no credit shall be given to . . . a slave”), the approach is always the same. As significant as their form is what is missing from all these codes. Two features of classical and modern law codes are notable for their absence: division into abstract legal categories and legal definitions.50

49 The biblical codes present a somewhat more complicated picture in that the original codes have been transplanted into another literary context and combined with material from sources of a different genre: thus they also contain moral exhortation, norms without sanctions, or with divine or sacral sanctions, and narrative. But this material is easily separated from the pure legal matter which formed the original code. 50 The Middle Assyrian Laws are a good illustration. They consist of a series of 14 tablets divided by subject matter, but the division is material, not legal. Tablet “A” (the only tablet fully preserved) is a collection of the most diverse laws, ranging from theft to witchcraft through marriage, inheritance, and murder, the only common denominator being that all relate in some way to women.

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To understand the nature of these codes, we must review the research that has been conducted upon the most famous among their number, Codex Hammurabi. It has long been recognized that the term “code,” applied to it in the editio princeps, is a misnomer. Large areas of the law are not touched upon, and even in those that are there is not the slightest pretension to completeness,51—a task which, given its casuistic form, would require an almost infinite number of paragraphs. Could these individual paragraphs be understood each as a reform of some specific point of law? At one point Driver and Miles, in their commentary on CH, seem to take this view: “The laws must not be regarded as a code or digest, but as a series of amendments to the common law of Babylon . . . .”52 This position, however, is too difficult to maintain. Too many of the rules already appear in earlier codes,53 and too many of them deal with matters so central or banal that it is difficult to imagine that the law would have been otherwise previously. Accordingly, a few pages later, Driver and Miles expand their original statement to: “a series of amendments and restatements of parts of the law in force . . . .”54 Nonetheless, there was no doubt in these learned authors’ minds that they were dealing with a source of positive law, any more than there had been in the earlier commentaries of Müller or Koschaker.55 Doubts on the issue were first expressed by Landsberger, who pointed out that CH is never cited as authority in judgments (of which many contemporary examples have been preserved).56 Landsberger’s suspicions were finally confirmed in a seminal article by Kraus.57 Kraus takes as his starting point Hammurabi’s own statement in the epilogue to the code, where the foregoing paragraphs are described as the “just judgments (din t m arim) that I made.” The legal corpus is therefore prima facie a list of the king’s decisions in his capacity as a judge.58 51 52 53 54 55 56 57 58

Thus the code discussed a false accusation of murder, but not murder itself. Driver and Miles 1952: 41. See below. Driver and Miles 1952: 45. See above, nn. 16 and 22. Landsberger 1939: 219-34, esp. 227. Kraus 1960. Kraus 1960: 285. Kraus rendered din t m arim “gerechte Richtersprüche.” The word d nu is a standard Akkadian term for the decision of a judge in a lawsuit.

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The paragraphs are, it is true, not recognizable as judgments in their present form, having been denuded of the names of the parties and all other details that might connect them with an actual case, and having been put into the form of a hypothetical set of circumstances. On the other hand, this might be all the better for casting them in the role of precedents, since something akin to the ratio decidendi now stands stripped of irrelevant details and ready to be applied in analogous circumstances. Closer examination, however, reveals that by no means all the “judgments” recorded in the code are actual decisions in real cases. They are organized in groups wherein a single case is expanded by logical extrapolation, i.e., various theoretical alternatives are considered and the appropriate solution given by a priori reasoning.59 For example, paragraphs 229-231 read: 229 If a builder builds a house for a man and does not make his work strong and the house that he built collapses and kills the owner of the house, that builder shall be killed. 230 If it kills a child of the owner of the house, they shall kill a child of that builder. 231 If it kills a slave of the owner of the house, he shall give slave for slave to the owner of the house. Similar gradation of penalties occurs elsewhere in CH, in paragraphs 209-211, for example. We are therefore in the presence of a type of academic method. Now, this same method is found in a seemingly unrelated group of texts—the omen collection. For example, in the omen series umma izbu a typical sequence is: 60 5 If a woman gives birth, and the right ear (of the child) is (abnormally) small, the house of the man will be scattered. 6 If a woman gives birth, and the left ear (of the child) is (abnormally) small, the house of the man will expand. 7 If a woman gives birth, and both ears (of the child) are (abnormally) small, the house of the man will become poor. 59 Kraus 1960: 289. 60 Leichty 1970: 5-7

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The connection, according to Kraus, is that the law codes and omen collections are both representative of a particular genre of literature, scientific treatises.61 Divination was regarded as a science by the Mesopotamians and the compiling of omens the equivalent of scientific research. By the same token, the casuistic style in which both texts are couched was the “scientific” style par excellence—transferring the concrete individual case to the sphere of the impersonal rule.62 The implications of Kraus’ insight into the intellectual context of CH are: 1. CH is not legislation as we understand it; it is not new law created by a process of theoretical reasoning that will apply prospectively to hypothetical situations conceived through that reasoning. The basis of CH is judge-made law: a series of retrospective decisions concerning existing situations which acquire a prospective character only through their eventual application as precedents.63 The “scientific method” employed seeks to enhance their prospective character somewhat by adding theoretical variants to the existing decisions. But being only logical extrapolation, these variants do not create new law; they merely discover the law. 2. So far from being legislation, CH is not even prescriptive; it is descriptive. It is essentially a record of the common law, that is, the traditional corpus of unwritten law built up mostly through precedents, together with the occasional intervention of administrative measures.64 The text of the code is not itself authoritative, since the legal rules that it describes are already so in their own right. The nearest modern analogy would be a legal textbook.65 61 Kraus 1960: 288-89. 62 The “scientific” nature of CH has been further elucidated by Bottéro, using the analogy of Mesopotamian medical treatises, which employ the same technique (1982: 42535). 63 There are also administrative decisions, fixing the prices of commodities, services etc. 64 It should be noted that the description is not always neutral; it can be phrased so as to emphasize a particular point of view. See Westbrook 1988d: 76-77. 65 This does not mean that it was purely an academic exercise. Mesopotamian science was applied science. For the use of law codes by the royal courts, see Westbrook

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CH, as we have seen, does not stand in isolation. It is only one (and not the earliest) in a series of documents found scattered throughout the ancient Near East that share the characteristics of a separate literary genre. Consequently, it may be postulated that the, other “law codes,” which all use the same casuistic approach, are likewise scientific treatises rather than prescriptive measures, and further that these codes are dependent upon a scientific tradition emanating from Mesopotamia. This hypothesis is confirmed by two factors. The first is the general context of ancient Near Eastern civilization of which we have spoken. We mentioned the role of cuneiform script as a medium of transmission and the existence of scribal schools throughout the region. The transmission of Mesopotamian scientific traditions alongside literature and religion is comprehensible when it is realized that these schools taught not only the difficult art of writing cuneiform; they were the “universities” of the ancient Near East. On the one hand they were the bearers of Mesopotamian culture: literary monuments such as the Epic of Gilgamesh were part of the scribal curriculum, as was Codex Hammurabi.66 It continued to be copied and re-copied in scribal schools both in Babylonia and elsewhere for more than a millennium after its original composition. On the other hand, the schools were centers of “scientific” research, where lists of omens, medical texts, etc., were compiled and refined. As a scientific subject, law would give rise to the same research and could expect to enjoy the same pattern of diffusion.67 The second factor is the content of the law-codes themselves. While each of the codes contains a fair proportion of original matter (at least in as far as no parallel has yet been discovered), certain material seems to recur again and again. This is discernible on three levels:

1985a: 247-64. For the close connection of the provisions of CH with the law in practice, see Petschow 1984: 181-212. CH was a secondary use of this scientific material for a work of royal propaganda. See Finkelstein 1961: 91-104. 66 CH continued to be copied and re-copied in scribal schools both in Babylonia and elsewhere for more than a millennium after its original composition, but as a literary text. See the references in Westbrook 1985a: 253 n. 31. 67 On the diffusion of the omen-lists, see the most illuminating discussion and chart by Leichty 1970: 20-21.

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Writings of Westbrook, Vol. 1: The Shared Tradition 1. In a very few instances, there appear to be verbatim copies (or rather, translations) of paragraphs from one code to another. This is the case with CH 161 and CL 2968 and with Exod 21:35 and CE 53.69 2. More frequently, the same rule is found in several codes, albeit expressed in a somewhat different manner.70 3. Most common are cases in which the same problem is found, either with a somewhat different solution or with attention paid to different aspects of the problem.71

It has been argued in the past with regard to specific parallels between the codes that these are mere coincidence or the inevitable response of different societies faced with similar problems. Given the cultural context that we have described, and within this context the sheer quantity of parallels, such a view is no longer tenable.72 Where parallels occur in the different codes of the ancient Near East, the most reasonable explanation is 68 CL 29: If an inchoate son-in-law enters the house of his father-in-law and gives the marriage-gift, and later they make him leave and give his wife to his friend, they shall give him double the marriage-gift that he brought. His friend shall not marry his wife. CH 161: If a man causes the biblum-gift to be brought to the house of his father-in-law, gives the bride-money, and his friend slanders him and then his father-in-law says to the fiancé “You shall not marry my daughter,” he (the father-in-law) shall return double everything that he brought to him. His friend shall not marry his wife. 69 CE 53: If an ox gores an ox and causes its death, both ox owners shall divide the price of the live ox and the carcass of the dead ox. Exod 21:35: If a man’s ox gores his neighbor’s ox and it dies, they shall sell the live ox and divide its price and also divide the dead ox. 70 See below. 71 See below. 72 For the earlier view see, e.g., David 1950: 149-78, and van Selms 1950: 321-327 (whose main argument was later shown to be based on an incorrect reading of the cuneiform text). For the current view, see Yaron 1966: 396-406, and especially Paul 1970: 102-105, where some of the traditions are collected, illustrating what the author calls “a vast juridical canvas which extended throughout the ancient Near East.”

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that there was some contact between them. But what form of contact? The answer is much more complex than Müller’s assumption of an “Urgesetz” and constitutes a central plank of our wider thesis. Let us reconsider for a moment the nature of Mesopotamian science. Modern scientific method, derived from Greek philosophy, is a vertical system. The material is first organized into general abstract categories, the terminology of these categories defined so that it can at once be seen what material is included and what excluded, then the general categories broken down into successively smaller categories, with appropriate definition of the terminology, until the individual case is reached. All this was beyond the reach of Mesopotamian science. It was incapable of creating abstract categories or of defining terms. Consequently it was forced to proceed horizontally, to present concrete examples of the topic under discussion, and to exhaust that topic by the accumulation of ever more examples pertaining to different facets thereof. The result is an extremely fragmentary picture, since an infinite number of examples would be necessary to cover the whole of any given topic. In an attempt to overcome this limitation, the science developed certain techniques.73 These can be illustrated by the method whereby the law codes were constructed. The starting point was a judgment in an individual case. Preferably a borderline case was taken, since the law in the ordinary case could also be derived from it by implication. For example, in a discussion of rape, a case involving a girl who was betrothed but not married would theoretically inform one also of the position of a fully married woman. The facts and the judgment were then re-cast in the anonymous, objective form of the casuistic sentence that, as we have seen, is the hallmark of the Mesopotamian scientific style: “If a man rapes a betrothed woman, his punishment is Y.”74 This hypothetical case can then be examined more deeply by the technique of variation. Firstly, the circumstances can be changed in some details: if the girl were willing, if she were unwilling but unable to call for help, etc.; or a vital circumstance can be changed that reverses the judgment from liability to non-liability, or vice versa. Secondly, a further set of 73 For a somewhat different, but excellent, exposition of this point, see Bottéro 1982: 431-32. 74 For the detailed steps in this process, see Westbrook 1985a: 258-64.

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variations that follow a fixed pattern may be imposed, such as attributing different grades of status to the parties. The examples that constitute the law codes were not, therefore, cumulated at random, but result from the application of a scientific method. They have not been taken directly from original legal sources but have passed through a stage of processing in an academic school where the traditions of Mesopotamian science were taught. The basic building blocks for the codes were thus “scholarly problems”—cases that may have begun life as a “cause célèbre” but then became the object of a theoretical discussion in the scribal schools, where all manner of hypothetical variations to the actual circumstances were considered so as to build up a series of precedents grouped around a single theme. A proportion of these problems will have been derived from local judgments and decisions. But where the same problems recur from code to code, it is not because they were re-discovered by each legal system. They formed a canon that was received by each school as part of the scientific tradition.75 The existence of a canon of scholarly problems helps to resolve certain anomalies in the parallels between codes that could not be satisfactorily explained by the idea of simple copying from one text to another or of an “Urgesetz.” Thus the parallels do not appear in the same order in the different codes, as one might have expected: the same rules may be expressed in very different ways, and the same problems may result in different solutions or may contain aspects which appear in one code and are omitted in another. Nor does the flow of parallels between codes follow any consistent pattern; it certainly does not all pass through CH.76 No single code manages to cover every aspect of the traditional problem; instead each selects such facets as it deems germane to its own 75 The tradition was probably oral: there is evidence that scholars traveled, but none that cuneiform texts (apart from letters) did. Texts found in provincial locations are invariably written in the local epigraphy. Our account is probably also something of a simplification. There may well have been more than one canon and the canon or canons would have been organic entities subject to change and growth over the centuries, although it should be emphasized that the traditions, where they recur, reveal a remarkable conservatism. 76 While CH was copied outside of Babylonia as a scribal exercise, none of its provisions are reproduced literally in the other extant law codes.

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discussion. The rest are not consigned to oblivion; they are part of the common law and their existence is assumed. Moreover, the discussion is a creative process: one code may choose to propose a different solution (although, it must be emphasized, this will not be radically different but within the terms of reference of the received discussion), or to develop the discussion by considering new aspects, using the same method of variation and logical extrapolation.77 It is in fact by assembling the parallel and notquite-parallel provisions of the different codes that we are able to reconstruct the full problem and to identify differences in approach between the codes, if any. To illustrate the above process, we have selected two fairly simple examples. The first is the case of the rape of a betrothed maiden, which is dealt with by four codes. CU 6 If a person proceeds with force and deflowers a young man’s wife who has not yet been deflowered, he shall kill that man. CE 26 If a man brings the bride-price for the daughter of a man, but another, without asking her father and mother, abducts her and deflowers her, it is indeed a capital case; he shall die. CH 130 If a man binds a man’s wife, who has not known a male and is living in her father’s house, and is caught lying in her lap, that man shall be killed; that woman shall be let free. Deut 22:23-26 If there is a nubile girl 78 betrothed to a man and a man finds her in the city and lies with her, you (pl.) shall bring them both out to the city gate and stone them to death: the girl because she did not cry out in the city and the man because he took advantage of his neighbor’s wife; you (s.) shall remove the evil from your midst. But if the man found the betrothed girl in the 77 As Bottéro elegantly expresses it, “. . . comme l’on fait tourner entre ses doigts une babiole qu’on veut examiner sous tous ses angles” (1982: 431). 78 The Hebrew term (btûlâ) might mean “virgin.” This is an age-old crux. For a detailed discussion, see Locher 1986: 117-238.

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Writings of Westbrook, Vol. 1: The Shared Tradition country and seized her and lay with her, the man who lay with her shall die alone; you (s.) shall do nothing to the girl.

The act is described in roughly the same terms in all four cases, but the status of the girl is not. The connection becomes clear, however, from the substantive law of betrothal in the ancient Near East. Betrothal was in two stages: the first, a simple contract between the groom (or his parents) and the parents of the bride. The second stage was begun by payment of the agreed bride-price, which made the bride a wife vis-à-vis third parties, even though the relationship between the parties remained contractual and could be terminated without the need for divorce.79 Both Sumerian and Akkadian lack a technical term for this stage and therefore use various circumlocutions. The terse Sumerian law emphasizes the woman’s virginity and the fact that she is the wife of a g u ru , a technical term rather inadequately translated “young man” here, but which probably refers to the fact that the man is not yet a father.80 Akkadian lacks even this term, so CH focuses on the fact that the wife has also not yet left her father’s house, as a bride would do on completion of the marriage. Hebrew, on the other hand, does have a technical term for this stage of betrothal and can therefore dispense with circumlocution. Note that only two codes give any hint as to the identity of the executioner: CU’s formulation probably refers to the wronged fiancé (although it could be the father), while Deuteronomy seems to indicate a public body. Here, then, may be a difference between the two systems. Deuteronomy differs from the other codes in the range of its discussion. It includes the possibility that the girl was willing, in which case she also is punished. This, however, is hinted at in the final provision of CH that the girl is to go free—suggesting that in other circumstances she would not. There is therefore an inference here of a wider oral discussion that did not find its way into the final text. Furthermore, Deuteronomy applies an evidentiary test in deciding whether the case was rape or seduction. This same test occurs in HL 197:

79 See Westbrook 1988b: chap. 2. 80 See Westbrook 1984: 753-54.

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If a man seizes a wife in the mountains, it is the man’s crime; he shall die. If he seizes her in the house, it is the wife’s crime; she shall die. (If the husband finds them and kills them, it is not an offense.) In other words, Deuteronomy has broadened the discussion without changing its terms of reference by applying an evidentiary test from another context, that of the rape or adultery of a married woman, which logic would have admitted as appropriate anyway. Finally, it is important to note how the same legal distinction (betrothed, as opposed to single or married) has been transmitted from code to code in a context where it is not absolutely necessary (rape), despite differences in language and culture, not to mention distances of time and space. The second example is a case of non-permanent injury which is dealt with in three of the law codes. CH 206-208 If a man (aw lum)81 strikes a man (aw lum) in an affray and inflicts a wound on him, that man shall swear “I did not strike knowingly” (i.e., with malice aforethought) and shall pay the doctor. If he dies of his blow, he shall swear, and if he (the victim) is the son of an aw lum he shall pay 1/2 mina of silver; if he is the son of a commoner (muk num) he shall pay 1/3 mina of silver. HL 10 If someone wounds a man and makes him ill, he shall nurse him. He shall give a man in his place, and he (the latter) shall work in his house until he is well. When he is well, he shall give him 6 shekels82 of silver and pay the doctor’s fee. (A later 81 The terms aw lum and muk num are still the subject of dispute. Not least of the difficulties is that they are used relatively. The term aw lum can therefore mean a man (i.e., anybody), a head of household, or a “gentleman” (whether by wealth or social status is not clear). The term muk num can mean an ordinary citizen (as opposed to the king) or a “commoner” (as opposed to an aw lum), or simply a poor man. See Kraus 1973: 95-125. 82 A mina was worth 60 shekels.

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Writings of Westbrook, Vol. 1: The Shared Tradition version adds: . . . When he is well, he shall give him 10 shekels of silver and pay the doctor’s fee. If it is a slave, he shall pay 2 shekels of silver.) Exod 21:18-19 If men fight and a man strikes his neighbor with a stone or a fist and he does not die, but falls to his bed: if he rises and walks abroad on his stick, the striker is clear; he shall pay only his idleness and his (medical) treatment.

Let us begin by noting what the three texts have in common. Firstly, they all concern injury which is non-permanent but results in a period of incapacitation. Secondly, they all mention a doctor’s fee. This is quite an unusual feature: nowhere else in the discussion of personal injury is such an expense mentioned, nor for that matter is there any such correlation between the penalty and the expenses suffered by the victim. Thus we have a traditional scholarly problem with its traditional solution adopted by three different systems. But from this point onwards variations begin to appear on the basic theme. We may list them as follows, using CH as our point of departure. a) CH expressly deals with the question of intention, stressing the absence of malice. The other two codes do not, but both HL and Exodus locate the injury in the context of a fight, thereby indicating that this is not a case of pre-meditated assault. Exodus adds the further detail of “a stone or a fist” (as opposed to a deadly weapon), suggesting a spontaneous reaction. The latter two codes may therefore be applying the same test as CH, but arrived at by a different path. b) The total payments vary between all three, CH mentioning only the basic doctor’s fee, Exodus a doctor’s fee and compensation for loss of work, while HL’s approach is yet more generous: doctor’s fee plus a substitute for his work plus a lump sum payment. Note that the later version of HL even increases the latter payment. c) CH expands the discussion to cover the case where the blow results in death. The other two codes do not do so in this context.

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d) CH, in discussing death, adds the further dimension of the victim’s status. The first sequence is: man wounded, son killed.83 The intermediate cases of son wounded and man killed are omitted; we are expected to be able to deduce them from the examples given (although in practice it assumes knowledge of the common law). This is a common device in the codes for economizing on variations. It would normally go on to the third member of the sequence, the slave. This happens in the later version of HL, which adds the slave to the discussion of injury. e) CH discusses a distinction not found in other codes, between aw lum and muk num, the latter apparently being a member of the poorer classes.84 This does not point to a fundamental difference between the law of CH and the other two codes or to any reforming zeal in the latter omitting the distinction. It is rather a special concern of. CH which it introduces into cases in many different areas of law. Thus on the premise of a scholarly problem, we are able to follow the same tradition from one system to another. The principle remains the same throughout; only on the secondary question of the level of compensation do they differ.85

The Ancient Near East and the Twelve Tables The Framework From the Persian Gulf to the shores of the Mediterranean, we have outlined the influence of Mesopotamian civilization, and within that 83 The distinction in status is significant because of the practice of vicarious punishment. See Westbrook 1988d: 55-64. 84 See n. 81 above. 85 It must be stressed that the two examples presented here were chosen inter alia, for their relative simplicity; they do not require a detailed exposition of intricate substantive law or of textual or philological problems. For more complex problems, such as the goring ox or the death of a distrainee, see Westbrook 1988d: chap. 2. The examples used here are themselves, one should note, only part of wider scholarly problems.

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civilization the influence of its scientific tradition, and within that scientific tradition again the influence of its legal science. Can that influence be shown to have spread even further, across the Mediterranean basin to Rome itself? Three intermediaries immediately present themselves. The Etruscans have been assigned an oriental origin by one school of thought,86 but the matter remains so obscure and controversial that no reliance can be placed upon this possibility for the purposes of our discussion. The Greeks certainly had contacts with both worlds, but the oriental influence on their early culture is a problem in itself which cannot be pursued here, let alone the question of its further transmission.87 The Phoenicians present a far more promising intermediary, being direct bearers of ancient Near Eastern culture. There is ample evidence of their contact with early Rome, and it is on this evidence that we shall concentrate. Of the three channels for the passage of ideas that we noted in the ancient Near East—trade, diplomacy, and conquest—only the first two could apply to connections with early Rome. The existence of Phoenician trade in central Italy has been well attested from at least the 8th century, with the orientalizing period from about 700 B.C.E., bringing in works of art from as far away as Syria and Mesopotamia, together with a corresponding influence on the local material culture.88 The Phoenicians set up trading colonies in Etruria and possibly even on the site of Rome itself.89 On the diplomatic front, Polybius records the terms of a treaty with Carthage as the first of such acts by the new Republic (3.22.4-13). Without entering into the question of the accuracy of its details or the precise date, 86 For a general discussion of the problem of Etruscan origins, see Scullard 1967: 34-57. 87 Note, however, the point made by Ducos (1978: 60-61) that all concrete cases of Greek influence on the Twelve Tables are also found in the ancient Near Eastern codes. Ferenczy’s thesis (1984: 2001-2012, esp. 2009) that the Twelve Tables were modeled on the code of Zaleucus of Locri is based on the merest generalities: (1) the tradition that the latter had been adopted by other cities in Magna Graecia; (2) both codes are concerned mostly with private and criminal law; (3) procedural law plays a large role in both; (4) the use of talio; and (5) both were concerned to uphold decent behavior (e.g., prohibition on luxury). 88 See, e.g., Ferron 1972: 189-91 and the literature cited therein. 89 Van Berchem 1967: 326-30; and Rebuffat 1966: 7-15.

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the feasibility of such diplomatic contacts at that period has been demonstrated by the Pyrgi inscription, which we shall discuss below. Diplomatic contacts between Etruria and Carthage, it should be noted in passing, are mentioned by Aristotle (Politica 1280a) as if common knowledge. Evidence that these contacts functioned as the channels for significant Phoenician influence on Roman thought is provided firstly by the sphere of religion. Van Berchem has argued that the Ara Maxima at Rome, the site of temples and an altar to Hercules, was originally a Phoenician temple to Melqart, the God of Tyre.90 According to the same author, it was the oldest cult in Rome, practiced before the foundation of the city itself.91 The significance of Van Berchem’s theory lies not only in the existence of such a temple but in the fact that much of the evidence adduced by him comes from peculiar features of the later Hercules cult which are survivals from its oriental origins.92 The temple was not therefore a closed facility for foreign merchants alone; it entered the religious life of the host nation and its influence remained long after their departure. In 1964, excavations of a temple at Pyrgi revealed three metal plates with inscriptions in Phoenician and Etruscan.93 Pyrgi was one of the seaports of Caere, an Etruscan city known to have had an alliance with the Phoenicians,94 but also enjoying close connections with Rome.95 The first plate of gold contains an inscription in Phoenician wherein the Etruscan ruler dedicates a temple96 to Astarte. The second, also of gold, appears to be a translation or equivalent dedication in Etruscan, and the third plate, of

90 Van Berchem 1967: 307-38. 91 Van Berchem 1967: 308. 92 Van Berchem 1967: 317-26. Hercules was represented dressed in the garments of an oriental priest; women were excluded from the cult; only bulls and heifers were sacrificed; it was forbidden to associate other gods with the sacrifice, contrary to the normal Roman practice of generalis invocatio; there was a holocaust sacrifice; neither dogs nor flies dared enter the sacred precincts, only priests; the god received a tithe as patron of trade (pars Herculanea). 93 For an edition of the Phoenician inscription, see Donner and Röllig 1973: 330-32 (Supplement). For an edition of the Etruscan inscriptions, see Heurgon 1966: 1-15. But see further Ferron 1972: 201-207. 94 They were allies in the battle of Alalia in 535 B.C.E. (Herodotus 1,1966). 95 Rebuffat 1966: 18-19. 96 Or cella, according to Ferron (1972: 201).

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bronze, also in Etruscan, seems to refer to a later commemoration of the dedication. The Pyrgi inscription gives to a foreign cult an even stronger role than that which we postulated for the temple of Melqart at Rome. It reveals more than “direct, immediate contacts with the Semitic world”;97 it demonstrates penetration of the local culture by the latter civilization. As Heurgon points out, in these parallel inscriptions it is the Phoenician text which dictates all the minutest details of the ceremony, while the Etruscans have only to translate them as best they can and follow their precepts.98 The second sphere for which we have evidence of influence is that of law itself, thanks to a series of researches by Yaron. The first of these that we wish to consider derives from international diplomacy: in a treaty between Rome and the Latins, the Foedus Cassianum of 493 B.C.E ., the text of which is given in Greek translation by Dionysius of Halicarnassus,99 the phrase occurs “And let it not be permitted to add anything to, or take anything away from these agreements . . . .” Yaron points out that this phrase reflects a practice of ancient Near Eastern treaties and suggests that the Romans may have adopted it from the Carthaginians, with whom they and the Etruscans had already made treaties at an earlier date.100 The next shows international relations affecting internal constitutional law. According to Yaron the early use of the term iudex (judge) as title of the Chief Magistrate at Rome and the curious feature of there being two concurrent holders for a one-year tenure is a copy of the Carthaginian practice with their Chief Magistrate, also called “judge” (sufes).101 But Yaron’s researches lead us even further into the realms of internal law and beyond the point where any specific connection can be shown. Yaron demonstrates that the phrase vitae necisque potestas has parallels in equivalent terminology throughout the ancient Near East, referring to a king’s power of pardon: “power to put to death —power to keep alive.” He concludes that the Latin phrase must originally have referred to a father’s 97 98 99 100

Yaron 1974: 347-38. Heurgon 1966: 15. 6.95.2. Mentioned also in Cicero pro Balbo 53 and Livy 2.33.9. Yaron 1974: 348-51. We might add that a further phrase in the foedus Cassianum— “so long as heaven and earth have the same place”—is reminiscent of the phrase in the Pyrgi inscription that the statue should stand “as long as these stars.” 101 Yaron 1974: 351-54.

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power of pardon when his son was guilty of some capital offense, and not to an arbitrary right to kill as later authors assumed.102 It is true that Yaron is careful to disclaim a connection between the Eastern concept and the Roman phrase: “. . . not because it is in itself impossible or unlikely, but rather because there is no evidence available to establish it.”103 Such scholarly caution is certainly called for in an isolated case,104 but if the parallel in question can be seen to be part of a wider pattern,105 and if a context exists in which the transmission of legal ideas is known to take place, then it is no longer necessary nor is it satisfactory to ascribe the phenomenon to mere coincidence or some presumed deterministic development.106

Form Were one unaware of their provenance, then one would have no hesitation in assigning the Twelve Tables, with their casuistic style and their lack of any abstract categories or definitions, to the same literary genre as the ancient Near Eastern law codes. At most, it might be argued that with their somewhat mixed style, they are more akin to the provincial codes such as the Covenant Code and Codex Eshnunna than to the classical works of the Mesopotamian heartland such as Codex Hammurabi. We have seen that the factor connecting the ancient Near Eastern codes is a common scientific tradition, which is ascertainable from internal evidence when the evidence is set in the context of the diffusion of Mesopotamian civilization. 102 Yaron 1962b: 243-51. 103 Yaron 1962b: 248. 104 The Chinese T’ang Code (10th century A.D.) contains provisions for the control of goring oxen and vicious dogs which are very similar to those of certain ancient Near Eastern Codes. In such an isolated case, the explanation of two systems independently reaching the same solution to a common problem is obviously preferable to a search for possible connections. See MacCormack 1983: 132-150, esp. 147. 105 Yaron elsewhere provides two more examples, from the Twelve Tables themselves. See below. 106 As Watson puts it (1975b: 17): “It has never been shown that early law everywhere develops in the same way.”

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Early Rome lay on the periphery of this civilization, was in contact with it, and was subject to its intellectual influence in such spheres as religion and law. Given this context, we submit that the Twelve Tables were a product of that same Mesopotamian scientific tradition.107 In consequence: a) Like the other codes, the Twelve Tables were initially a scientific treatise on law; that is to say, it was descriptive, not prescriptive. It was not legislation in the classical sense and certainly not a reform measure called into being by particular historical events.108 b) The method of logic employed will have been the same as in the other codes. The individual provisions should be interpreted in this light, i.e., as aspects of scholarly problems, and not as general principles or as the response to putative evils in a previous system. c) It is doubtful whether a specific date can be assigned to their composition. The Mesopotamian tradition was in essence an oral one transmitted through discussion and learning in schools,109 and the oriental influence on Rome, whether via

107 It is interesting to note at this point Leichty’s remarks (1970: 14): “The closest parallels to Mesopotamian birth divination are to be found in the Hittite, Etruscan, and Roman civilizations. The Hittites borrowed their divination techniques directly from the Babylonians and many texts are simply copies or translations of the Babylonian originals.” He continues (1970: 16): “There appears to be a strong cultural continuity from Mesopotamia to Rome via the Etruscans in the matter of birth divination. This same continuity is evident in extispicy and could be investigated with regard to other forms of literature with great rewards.” 108 Our conclusion, albeit arrived at by a different route, is therefore similar to that of Stein (1966: 9-25), who considers the Twelve Tables to have been declaratory of ius. Nonetheless, there is still a difference between descriptive and declaratory. According to Stein (1966: 19), “Once a lex has been enacted, it recorded the law authoritatively and was intended to be as permanent as the ius which it stated.” In our view, terms such as “enactment” and “authoritative” suggest a replacement of the common law rather than a guide to it and therefore seem to us less appropriate to the original nature of the Twelve Tables, although they undoubtedly came to assume this character later. 109 A faint echo of this tradition may be contained in Cicero’s remark that the Twelve Tables had been part of the school curriculum (de leg. 2.4.9 and 2.23.59).

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Etruria, Greece, or Carthage, had existed since before the Republic. The idea of a specific mission or teacher seems to us more akin to the spirit of later times. It is possible that the actual writing down of the code in its final version was a datable event, as in the case of Codex Hammurabi.110 d) It is most unlikely that Mesopotamian science would have determined the form of the code alone, without influencing its content. While some of the content will have been the product of local intellectual activity and based upon local legal traditions, some will have been taken from the canon of scholarly problems. If such cases can be identified in the Twelve Tables, it would serve to confirm our thesis. It is to this aspect, therefore, that we now turn.

Content Yaron has already pointed to two cases where reference to ancient Near Eastern sources elucidates an obscure phrase in the Twelve Tables. Thus the phrase res suas sibi habeto in IV 3 does not regulate the formalities of divorce but, on the basis of parallel provisions in divorce settlements from widely scattered loci in the ancient Near East, the property rights of the wife ancillary to divorce.111 And the phrase si adorat furto in VIII 1 refers

110 Not too much store should be set by the tradition of the Twelve Tables being drafted in response to popular pressure for publication of the law; it may reflect a literary topos rather than an historical event. Hammurabi in the epilogue to his code boasts of the salutary effect of its publication (Col. XLVIII 8-19): “Let the oppressed man who has a case come before my statue, ‘the king of justice,’ let him have read to him my inscribed stela, let him note my precious words, and may my stela make the matter clear to him; may he recognize his case and set his mind at ease!” Likewise in the books of Exodus and Deuteronomy banal legal statements such as the prohibition of theft and murder are given special authority by their being written down on stone tablets in dramatic circumstances which purport to signify their origin as positive law (i.e., the Ten Commandments). 111 Yaron 1960: 1-12.

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not to the theft itself but to a false accusation of theft, a legal problem which is found in CH 1-4 and Deut 19:16-21.112 We wish to consider two further cases, where a tradition can be traced through several ancient Near Eastern codes and can elucidate the Roman law on the assumption of its continuation into the text of the Twelve Tables. They are, it must be emphasized, both fragments of larger problems which could equally be used for this purpose but whose size and complexity would require a separate study. T. VIII 4 reads: Si iniuriam faxsit, viginti quinque poenae sunto—“If he does iniuria, the penalty is 25 (asses).” The term iniuria causes considerable difficulty. In the classical law it refers to the delict of outrage—an insulting attack on a person’s honor whether physically or by some other means. In the original text of the Twelve Tables, it was but the third of a triplet of delicts, the first two involving serious physical injury (membrum rup[s]it and os fregit) and carrying the considerably heavier penalties of talio and 300 asses (150 for a slave) respectively. Gaius (Inst. III 223) interprets iniuria to include these two, explaining that the penalty of 25 applies to “other outrages” (ceteras . . . iniurias), but this is clearly a reinterpretation, not least because it involves re-phrasing the text. What, then, was the original delict? Like most provisions of the Twelve Tables, this problem has attracted a large body of scholarly literature. The dominant view seems to be that iniuria referred to minor physical assaults, if only to make the triplet of delicts cover the whole field of physical injury.113 This interpretation causes two problems vis-à-vis the classical meaning of iniuria. Firstly, the developed delict was understood as outrageous insult, an attack on a person’s character or feelings, whether by physical assault or some other means. Secondly, iniuria in adverbial use already in the Lex Aquilia had the much wider meaning of any unlawful or wrongful act. Attempts have been made to resolve the second problem by attributing the wider meaning to the provision in T. VIII 4. Thus Simon argues that 112 Yaron 1967: 510-24. For a different reconstruction, see Watson 1975c: 193-96. Without entering into the merits of the case, we would suggest that Watson’s reconstruction imposes on the Twelve Tables reasoning more suitable to the time of Gaius. 113 E.g., Simon 1965: 163; Watson 1975a: 216.

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the early legal system knew only acts of violence, self-help, which were qualified either as justified (ius) or unjustified (iniuria).114 By the time of the Twelve Tables iniuria is the residue of violent acts which has not received a more specific designation (i.e., membrum ruptum, os fractum) and thus by a process of elimination minor acts of physical violence.115 Halpin116 suggests similarly that the phrase iniuria alteri facere meant “to do wrong to another,” but that in the unsophisticated conceptions of that early period wrong was understood only as a direct physical assault.117 Birks,118 relying on the wider meaning of iniuria, goes so far as to deny the general consensus as to physical assault. The provision rather refers back to the two previous delicts and imposes the light penalty of 25 asses on a victim of one of those delicts who retaliates “unlawfully” (iniuria), i.e., not within the bounds of revenge or ransom119 laid down by the statute.120 Little attention, by contrast, is given to the discrepancy between the delict’s early meaning of injury and later one of insult. This is presumed to be a natural development in the law from a primitive to a more sophisticated stage. Only Simon reflects that an unjustified act of violence contained an element of hubris which might be of more significance than the injury done.121 We shall not enter into a detailed discussion of the various theories, since it is their approach with which we would take issue. The method that they share can be described as follows: having gleaned a particular interpretation of the early rule from hints and allusions in the classical sources, conjectures are made as to the character of “primitive” law. It is then shown how the particular interpretation advocated would fit a system of that character. The difficulty with this method is that it lacks any empirical basis. The primitive systems described are hypothetical constructions with no demonstrable basis in reality. Thus Simon postulates a system concerned solely with classifying acts of violence as offenses or 114 115 116 117 118 119 120 121

Simon 1965: 145-47, 160-62. Simon 1965: 169-75. Halpin 1976: 344-54. Halpin 1976: 351-53 Birks 1969: 163-208. On understanding the penalties of 300 and 150 asses as such, see Birks 1969: 187-88. Birks 1969: 188-90. Simon 1965: 174-75.

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remedies,122 Birks a system of retaliation and counter-retaliation with appropriate sums by way of ransom for the two stages,123 while Halpin assumes that indirect harm “would have been alien to the primitive jurisprudence of that time.”124 The systems thus created are usually internally consistent and reasonable125 and may in some details have reflected primitive reality, but it is impossible ever to know for certain since they contain no shred of evidence from that reality. Consequently, one theory can follow another, each re-arranging the “classical” evidence126 according to a new model of primitive law, without ever breaking out of the circle of unsubstantiated hypothesis. The evidence for the ancient Near Eastern legal systems comes for the most part from sources that are both primary and contemporary with the law that they describe.127 They provide us from the outset with working models of “primitive” law from which we can draw empirical evidence and thus reduce the scope of hypothetical models. But they do more than this. For the theory that we have proposed is not one of comparative law but of an actual connection between the ancient Near Eastern codes and the Twelve Tables. Where a tradition can be traced through the former into the latter, it will also provide an objective criterion for determining which elements in the later sources, if any, reflect the early law. It enables us in short to follow a chronological method, rather than the practice of the authors discussed above, which is the opposite. In the case of iniuria, at least, the ancient Near Eastern sources enable us to confirm a later tradition. We have noted that the classical law associ-

122 123 124 125

Simon 1965: 160-62. Birks 1969: 187-89. Halpin 1976: 351. Although as Birks points out (1969: 167-70), Simon’s reconstruction does not work even within its own terms of reference. 126 Where the classical evidence is inconsistent, this often involves value judgments. Thus Simon dismisses the evidence of Gellius in one instance (1965: 156-57), while praising his accuracy in another (1965: 132-133). Birks is forced to question Labeo’s reliability on the story of L. Veratius (1969: 174-78), although he appears subsequently to have modified that position (1974). 127 The exception is the Bible, but even there the received text shows all the signs of faithful transmission.

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ated iniuria with the idea of insult. This notion has been rejected for the early law, both because early Romans were supposedly impervious to insult128 and on the more weighty grounds that the context is one of physical assault. But there is one case where physical assault results not in injury but only in insult: a slap in the face. And this is exactly the meaning given to the delict in the famous story of Lucius Veratius (as told by the jurist Labeo)129 who went around slapping people’s faces with the flat of his hand and promptly paying them the sum of 25 asses demanded by the Twelve Tables, relying on the effects of inflation which had made a mockery of the penalty. It is generally assumed by modern scholars that this story gives but one example of a minor assault, but this type of assault is special in that no injury results for which compensation should be paid, and we see no reason to extend the bounds of the delict beyond the bare facts of the story. All the ancient Near Eastern codes that discuss physical injury at length do so in the form of lists of the more serious injuries classified either by the part of the body affected (ear, nose, bone, etc.) or by the type of injury inflicted (e.g., burning, cutting). To each injury is assigned the appropriate penalty, which is either talionic or a tariff of fixed payments.130 Non-permanent injuries are treated differently, as we have seen, the main consideration being compensation for work lost and medical fees. Two codes, however, include with the list of permanent injuries a slap in the face. CH, after considering the gouging of an eye, the breaking of a bone, and the knocking out of a tooth, continues: 202 If an aw lum slaps the face131 of an aw lum who is older than he, he shall be struck with 60 strokes of an ox-hide whip in the Assembly.

128 Jolowicz and Nicholas 1972: 171. 129 Gell. NA 20.1.13. 130 The difference between these two types of penalties is not as profound as it seems. See Westbrook 1988d: 45-47. 131 The Akkadian idiom is “strikes the cheek.” Cf. the Latin formula of the ao. iniuriarum in the Edict: QUOD AULI AGERII PUGNO MALA PERCUSSA EST, a formula which is already reflected in Plautus Asin. II, 2, 104: pugno malam si tibi percussero. See further Lenel 1901-03: 398.

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Writings of Westbrook, Vol. 1: The Shared Tradition 203 If the son of an aw lum slaps the face of the son of an aw lum who is like him (in age), he shall pay 1 mina of silver. 204 If a muk num slaps the face of a muk num, he shall pay 10 shekels of silver. 205 If an aw lum’s slave slaps the face of the son of an aw lum, they shall cut off his ear.

Since this is an offense against honor, the relative social standing of the parties is a significant factor and allows CH to give free rein to its obsession with status, developing the discussion through ever more subtle gradations. (The basic distinction between aw lum “a gentleman” and muk num “a commoner” has been noted above, n. 81.) The general approach that emerges is that slapping the face of a superior is a serious matter; slapping an equal less so. CE is less concerned with such distinctions and anchors the offense firmly in the context of permanent injuries: 42 If a man (aw lum) bites the nose of a man and severs it, he shall pay 1 mina of silver; an eye—1 mina; a tooth—1/2 mina; an ear—1/2 mina; a slap in the face—he shall pay 10 shekels of silver.132 43 If a man severs a man’s finger, he shall pay 2/3 mina of silver. 44 If a man knocks a man down in a . . . and breaks his arm, he shall pay 1/2 mina of silver. 45 If he breaks his leg, he shall pay 1/2 mina of silver. 46 If a man strikes a man and breaks his collarbone, he shall pay 1/3 mina of silver. It should be noted that although the offense does not occur in the biblical codes, it was probably also part of that scholarly tradition. The Mishnah, although a post-biblical source, preserves many oral traditions that failed to find written expression in the Bible.133 In Bava Qamma 8.6, in the context of personal injury, it discusses the same question with a piquant variation: “If he slaps him (in the face), he pays him 200 zuz; with 132 1 mina = 60 shekels. 133 See n. 42 above.

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the back of his hand—he pays him 400 zuz.” Thus there existed in the ancient Near Eastern codes a tradition whereby a mere slap in the face was included in the list of injuries which made up the scholarly discussions of assault. The level of the penalty varied from code to code, but at least as between equals it was regarded as less serious than actual injury. T. VIII 2-4, with its list of serious injuries plus iniuria, was a continuation of the same tradition. Iniuria already then meant insult, but insult in the physical form then recognized by law134—a slap in the face.135 It was therefore a technical term, different in meaning and use from the adverbial form. If in the result T. VIII 2-4 does not cover the whole range of physical injury, then it is in perfect accord with the other codes.136 One of the main points of our argument, it will be recalled, was that it is anachronistic to seek comprehensive statements of the law in the Twelve Tables.137 The second case that we wish to consider is that of furtum conceptum. The problem is well known: according to Gaius, the actio furti concepti lay against a person on whose premises stolen goods had been found after a search in the presence of witnesses, even if that person was not the thief (Inst. III 186).138 The Twelve Tables provided a three-fold penalty under this action (Inst. III 191).139 Equally according to the Twelve Tables, however, if stolen goods were found on a person’s premises after a ceremonial 134 This has nothing to do with the primitive character or otherwise of the legal system: modern English law gives no remedy for verbal insult as such (as opposed to defamation). 135 The other two cases listed, membrum ruptum and as fractum, may also have constituted an affront to one’s honor, but if so it was insult added to injury. 136 CH, for all its sophistication relative to the other law codes, has only eye, bone, and tooth. 137 Da Nobrega (1967: 250-270), who refers to a variety of comparative ancient systems, appears to recognize the specificity of the provisions in T. VIII 2-4 (1967: 268-269), but his conclusion that “iniuria était bien plus une offense morale que physique” (1967: 270) remains a trifle too unspecific. From the comparative material adduced (1967: 259-263), he appears to consider that any insult would be included. Watson (1975a: 216) notes that iniuria to a slave is not covered by Chapter III of the Lex Aquilia and must therefore have meant injuries so minor as not to affect his market value or even give rise to medical expenses. It may equally be pointed out that a slave has no honor to be damaged by a slap in the face. 138 But with the possibility of recovery from the person who passed it to him under the ao. furti oblati. 139 And the same under the ao. furti oblati.

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search lance et licio, it was regarded as manifest theft, with the appropriate penalties for that offense (Inst. III 193-194). By Gaius’ time only the actio furti concepti existed, but it cannot be concluded that this action was a subsequent replacement for the search lance et licio, in view of Gaius’ express statement that the action was included in the Twelve Tables. Since he was familiar with the text of the Twelve Tables, Gaius could not have made such an obvious error.140 How then is the existence of two different searches in the Twelve Tables, with two different penalties, to be explained? There are three leading theories. According to De Visscher,141 there was only one search at the time of the Twelve Tables (lance et licio), but with two consequences, depending on whether the householder was the thief (furtum manifestum) or an innocent receiver (conceptum). This in turn depended on whether there had been an immediate hue and cry leading to the premises or some comparable indication of guilt.142 When lance et licio was later abolished, the penalties of furtum manifestum disappeared with it.143 Daube, on the other hand, considers that there were two searches.144 The first was informal and led to three-fold damages if stolen goods were found. If, however, the householder refused to allow a search, recourse was had to the more ceremonial form, lance et licio, with a corresponding escalation in the potential penalty. Pugsley agrees that there were two searches but offers a different rationale.145 Furtum manifestum originally depended not on the mode of theft but on its object, namely res mancipi. A search for res mancipi required a ceremonial form, lance et licio, in view of the seriousness of the consequences. The search for res nec mancipi need only be informal and the potential penalty was correspondingly lower. Our remarks above as to method apply equally here. All three theories rely in varying degrees on the combining of allusions in the classical 140 De Zulueta 1946-53: 202. For the original meaning of lanx et licium, see Wolf 1970: 59-79. 141 De Visscher 1931: 217-253. 142 “. . . traces, délai, dissimulation . . .” (De Visscher 1931: 249). 143 De Visscher 1931: 223. 144 Daube 1947: 282-83. 145 Pugsley 1969a: 139-52.

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sources with conjectures as to the “primitive” law. De Visscher, at least, does bring some comparative evidence for the primitive state of the law (from medieval statutes),146 although none of his sources involving hot pursuit, etc., mention anything about ritual search. Nor does he explain why the dual penalty should not have survived the abolition of the search lance et licio, since under his system it was the hot pursuit and not the form of the search which was decisive as to the penalty. Daube assumes that in the primitive law the householder who had resisted an informal search would not have dared to resist the ceremonial one or if he did, that the state would at this point intervene.147 But he offers no empirical evidence to support these conjectures. Pugsley’s conjecture as to the primitive law may have some basis, since there is plenty of evidence from early systems (not only in the ancient Near East) that the penalty for theft could vary with the object stolen (although Pugsley himself does not refer to this evidence). But that is far from making the theft of res mancipi “a heinous offense,” a proposition for which he offers no evidence.148 The ancient Near Eastern legal tradition contained a classic scholarly problem on theft. The solution differed from system to system, but the problem remained essentially the same. Let us begin with the exposition in CH 9-12: 9 If a man whose property is missing seizes his lost property in the hands of a man, (and) the man in whose hands the lost property is seized says: “A seller sold it to me (and) I bought it in front of witnesses,” while the owner of the lost property says, “I shall bring witnesses who know my lost property”— then the buyer shall bring the seller who sold it to him and the witnesses in whose presence he bought it, while the seller shall bring the witnesses who know his lost property. The judges shall examine their case. The witnesses in whose presence the purchase was made and the witnesses who know the lost

146 De Visscher 1931: 232-42. 147 Daube 1947: 282-83. 148 Pugsley 1969a: 140. Acceptance of Pugsley’s theory also requires us to dismiss all the classical sources as unreliable—which in itself is not impossible—but on the sole grounds that they do not comply with the theory.

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Writings of Westbrook, Vol. 1: The Shared Tradition property shall declare their knowledge before the god. The seller is a thief; he shall be put to death. The owner of the lost property shall take his lost property. The buyer shall take the money he paid from the estate of the seller. 10 If the buyer does not bring the seller who sold it to him and the witnesses in whose presence he bought it, while the owner of the lost property brings the witnesses who know his lost property, the buyer is a thief; he shall be put to death. The owner of the lost property shall take his lost property. 11 If the owner of the lost property does not bring witnesses who know his lost property, he is a liar; he has made a false accusation. He shall be put to death. 12 If the seller had died, the buyer may take five-fold the claim of that very case from the estate of the seller.

To begin with, it is necessary to explain an obvious contradiction within the text. According, to paragraph 9, the innocent purchaser receives back only his purchase price from the seller/thief, whereas in paragraph 12, the apparently irrelevant circumstance of the seller/thief having died in the meantime results in his receiving five-fold damages. This contradiction is compounded when we look at the other paragraphs on theft in CH. According to CH 8: If a man steals an ox or a sheep or an ass or a pig or a boat, if it belongs to a god or to the palace he shall restore thirty-fold; if it belongs to a subject he shall restore ten-fold. If the thief has not the means to pay, he shall be put to death. The penalty for theft is multiple damages instead of death, which applies only if the thief is unable to pay.149 The resolution of these discrepancies lies in part in the substantive law of theft and in part in the techniques of Mesopotamian science.

149 Ten-fold damages is also the penalty in CH 265 for a dishonest shepherd who steals sheep by changing their brand and selling them.

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Throughout the ancient Near East, theft (like other serious delicts) gave rise to a two-fold right for the victim.150 In principle, he could take revenge on the thief by having him killed,151 or, in the alternative, accept ransom for the thief’s life. In practice, however, the courts had long since intervened to bar this type of revenge in all but a few aggravated cases such as kidnapping or armed robbery. Instead, they imposed a fixed ransom, usually a multiple of the stolen thing (according to the nature and circumstances of the theft), and only if the thief failed to pay the ransom did the residual right of revenge revive, as in CH 8. CH 9-11 bears all the marks of a theoretical discussion. A triangular situation, between owner, purchaser, and thief/seller, is reduced to its simplest form, with three basic variations being dealt with in turn: if the seller/thief is guilty, if the purchaser is guilty, if the owner is guilty. The solution is neatly balanced and altogether too ideal, particularly in the first case. The two innocent parties are able to recoup their loss, the owner from the purchaser and the purchaser from the seller/thief. In practice of course, the situation is seldom so convenient: the thief will have disappeared or be insolvent, and one of the innocent parties will have to bear the loss. The discussion is so theoretical because CH is trying to convey a point of principle, namely that where there are two innocent parties who stand to lose, the primary loss will fall on the purchaser. He is strictly liable to the owner for the consequences of the purchased goods being stolen and bears the risk of being unable to recoup his loss from the seller. Since it could not express this principle except by way of examples, CH tried at least to make the discussion as abstract as possible by removing all extraneous details. Thus the question is discussed in paragraphs 9-11 in terms of the theoretical law (death for the guilty party) and not the law in practice.

150 The following is a summary of the more detailed discussion to be found in Westbrook 1988d: chap. 4. 151 It cannot be sufficiently emphasized that this had nothing to do with self-help. In all serious delicts, the court, having heard the case and decided on guilt and the appropriate penalty (where not obvious), then handed the guilty party over to the plaintiff for that revenge alone. Self-help was only justifiable as an ex-post-facto defense in certain limited cases, such as flagrant murder, armed robbery, and night burglary. Self-help (and the concomitant unrestricted revenge) was regarded as the antithesis of legal order. See Westbrook 1988d: 45-46.

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The moment the discussion moves away from the question of principle to its practical application, then the multiple penalties reappear. CH 12 reflects the combination of the principle of purchaser’s strict liability vis-àvis owner (tempered by his right to recover from the seller) with the rule of multiple damages. The innocent purchaser is being allowed to recoup the payment of multiple damages which he himself has had to make to the owner. “That very case” is the one in which the owner has succeeded in extracting from the purchaser not only restitution of the stolen goods but also multiple damages. Thus the multiple damages system applied as much to the purchaser of stolen goods, albeit innocent, as to the actual thief. And the documents of practice provide us with evidence of this very system at work. According to MVN 3 219:152 Bukanum the merchant bought from DINGER.E and Idi-ilum 3 sheep, their purchase price being 1 shekels 15 grains of silver. Nahshubal was the guarantor. These sheep were “turned into” stolen sheep. Bukanum and Nahshubal were “turned into” thieves. Seven shekels of silver were paid for the crime committed regarding the sheep. 1 shekels 15 grains of silver were paid as purchase price for the sheep. DINGER.E and Idi-ilum have been made obligated to Nahshubal to restore (the money paid). (To do so they have sworn by the life of the king.) (Witnesses, date.) Bukanum, the merchant, is very clearly an innocent purchaser of sheep, which are later found to be stolen property. He has been found guilty of “theft” in this extenuated sense and has had to restore the sheep to their owner. Most probably he, or rather his guarantor, also had to pay the fine of seven shekels of silver. As the document is not at all interested in this stage of the case, it is simply summarized by the words “turned into a thief.” The second stage is that the purchaser recoups from the guarantor the price he had paid and perhaps the seven shekels if the guarantor did not pay it directly. The machinery of payment is not described, since the document is only interested in the fact that the sums have been paid. The

152 Edition in Westbrook and Wilcke 1974-1977: 114-15.

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third stage, that with which the document is actually concerned, is the obligation of the sellers to restore the money to the guarantor. The innocent purchaser has had to pay multiple damages to the owner, albeit at a rate (5x) lower than that imposed on a thief (10x). He now seeks to recoup this sum from the seller, only to discover that the seller has died in the interim. He can nonetheless recover his payment from the seller’s estate, a right which still leaves him with the risk of the latter’s insolvency. In summary, theft is presented in the above scholarly problem as a three-cornered affair, involving the owner, the thief who is also the seller, and the receiver of the stolen goods from him. The law applied is that the latter is strictly liable to the owner for multiple damages but may recover the same amount from the seller.153 The three-cornered presentation of theft is continued in the Middle Assyrian Laws, Tablet A, paragraphs 3-6. It is all the more noticeable, since these paragraphs are not concerned with theft in general but with the special position of a married woman.154 Paragraphs 3-4 concern the case of a woman who steals from her husband and passes the stolen goods to a receiver. The laws consider the liability of both wife and receiver; 155 indeed a certain linkage is established between their punishment. Paragraph 5 considers the case of a wife who 153 The distinction between innocent and fraudulent receiver lay not only in the amount payable but in the alternative to payment: for the innocent receiver a simple debt; for the fraudulent receiver revenge, as for a thief. Hence the innocent receiver would sometimes still try to establish the identity of the seller, not to avoid all liability, but to avoid the consequences of fraudulent possession. See the cases in Westbrook and Wilcke 1974-77: 116-118, as reinterpreted in Westbrook 1988d: 153 n. 60. 154 See n. 50 above. 155 §3: “If a man is sick or dead and his wife steals something from his house and gives it to a man or a woman or any third party, they shall put to death the wife and the receiver. If a married woman whose husband is well steals from her husband’s house and gives it to a man or a woman or any third party, the man shall charge his wife and impose a punishment on her; the receiver who received the stolen property from the man’s wife shall restore it, and they shall impose upon the receiver the same penalty as the husband imposed on his wife.” §4: “If a slave or slave woman receives anything from a married woman, they shall cut off the nose and ears of the slave or slave-woman, and they shall restore the stolen property in full. The husband shall cut off his wife’s nose, but if he pardons his wife and does not cut off her nose, they shall not cut off those of the slave or slavewoman, nor shall they restore in full the stolen property.”

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steals from another man.156 Here there is no mention of any passing of the goods, but the paragraph is nonetheless shown to be but one side of the coin by that following,157 which considers the strict liability for theft of a mere depositee from the wife. Even when the theft is dealt with from this oblique angle, therefore, the three-cornered pattern is imposed upon it. Although it plays a key role in the relevant provisions, the threecornered pattern is less evident in the Hittite Laws. This is due to two factors. Firstly, these laws use a slightly different technique to CH: where CH attempted to compress the problem into the most theoretical examples, adding only a few practical examples at the end, HL expands the problem into the most detailed discussion, considering every variation both by type of goods stolen and the nature of the receiving. Secondly, HL shares a stylistic characteristic of the provincial codes (as opposed to the central Mesopotamian codes such as CH and CL), namely an extreme terseness in identifying the parties involved, often omitting to indicate change of subject from one clause to another. HL 57-71 deal with theft of animals and related offenses and may be divided into several categories: 1. Ordinary theft. This is characterized by the phrase “if someone steals . . . .” There are three levels of penalty, depending purely on the type of animal stolen. The somewhat complex provisions as to type of animal may be schematized as follows. Paragraphs 57-59 deal with the most valuable animals, the examples given being a bull, a stallion, and a ram. The penalty is fifteen-fold restitution. Paragraphs 63-65 deal with less valuable animals, a plow-ox, a cart-horse, a goat, and certain species of sheep. The penalty here is ten-fold restitution. Para-

156 §5: “If a married woman has stolen something from another man’s house exceeding 5 mina of lead in value, the owner of the stolen goods shall swear: ‘I did not let her have possession of it’ and ‘there has been a theft from my house.’ If her husband agrees, he shall restore the stolen goods and redeem her, and cut off her ears. If the husband does not agree to redeem her, the owner of the stolen goods shall take her and cut off her nose.” 157 §6: “If a married woman makes an outside deposit, the receiver shall be liable for the stolen goods.”

The Nature and Origins of the Twelve Tables graphs 67-69 deal with a cow, a mare, and certain other species of sheep. The penalty is six-fold restitution. 2. The fraudulent finder. Here a different act is described: “If someone finds a . . . and ‘cleans’ it (i.e., removes the marks of ownership) and its owner identifies it . . . .” Paragraphs 60-62 mention a bull, a stallion, and a ram, i.e., animals in the first category of theft, and impose a penalty of seven-fold restitution, which is approximately half of that for stealing the same animals. Although the finder committed a fraudulent act designed permanently to deprive the owner of his property, he did not actively take away the property, and this is apparently regarded as a mitigating circumstance. Note that the owner here has succeeded in proving that the animal is his and that the ownership marks were removed by the present possessor. 3. The negligent finder. This category is represented by paragraph 71, which begins “If someone finds a horse, a donkey, an ass . . . .” His duty is to report it to the authorities, in which case “if its owner finds it he may rightfully (sakuwassar) take it, but he may not seize him as a thief.” The owner’s proprietary right is therefore established, but a right to multiple damages is denied. On the other hand, if the finder does not inform the authorities, the text declares him to be a thief. The text does not say what the consequences are of being a thief in these circumstances, but this and other significant details are provided by a later version of the same paragraph. There the finder must have the find witnessed, or else he will be considered a thief if the owner finds it. His penalty in that case is three-fold restitution. This version adds to the list of lost property an ox, a sheep, and even utensils, which shows that the list is meant to indicate any lost property: the size of the penalty does not depend on the nature of the property as in ordinary theft or fraudulent finding. 4. Innocent possession. Paragraph 66 concerns various types of animals, large and small, which wander over to another herd. The owner of the herd is entirely innocent and accordingly, “if its owner finds it he may rightfully take it, but he may not seize him as a thief.”

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Writings of Westbrook, Vol. 1: The Shared Tradition 5. Paragraph 70 reads: “If someone steals an ox or a horse or a mule or an ass (and) its owner identifies (kanes) it, he may rightfully take it. In addition he shall pay two-fold.”

In spite of appearances, the person paying the two-fold damages is not the thief. The penalty for theft is much higher: six-, ten-, or fifteen-fold. And the list of animals is the same as for the negligent finder, where we noted that the content of the list is of secondary importance.158 Closer analysis of paragraph 70 reveals that it has this special characteristic: it combines the phraseology of the theft paragraphs with that of the finder/possessor paragraphs. From the former it has “if someone steals” and the multiple restitution provision. On the other hand, “If its owner identifies it” comes from the realm of the fraudulent finder, not the thief, while the statement “he may rightfully take it” is altogether out of place in theft, where there could be no doubt as to the owner’s right vis-à-vis the thief. The phrase is only found in cases of innocent possession, where the dispute is rather as to ownership between two innocent parties than as to culpability for theft or fraud. The unidentified person who has to pay two-fold is therefore the innocent receiver of the stolen animals. The thief stole them, removed their identifying marks and sold them to an innocent purchaser. The owner nonetheless manages to identify them as his property and is therefore entitled to their return, even though their present possessor can equally prove innocent acquisition. And in addition, the latter must pay multiple damages. The principle is therefore the same as in CH. The innocent purchaser is strictly liable to the owner for the penalty for theft, and must recoup his loss from the seller/thief as best he can. And as in CH, the multiple damages paid by the innocent purchaser are lower than those payable by the original thief—his innocence is admitted as a mitigating factor. The possibility of his recouping this payment from the seller/thief is not mentioned, but it is reasonable to assume that some similar rule to this effect existed. Our final source for this problem is the Covenant Code, which shares the terse provincial style of the Hittite Laws but is drastically more sparing 158 A further difference is that all the paragraphs on ordinary theft record the fact that the penalty has been reduced (“. . . formerly they gave 30 . . . now he shall give 15 . . .”).

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in detail. Exod 21:27 reads: “If a man steals an ox or a sheep and slaughters or sells it, he shall pay five oxen for the ox and four sheep for the sheep.” Exod 22:3 continues:159 “If the stolen item—from ox to ass to sheep—is found alive in his hand, he shall pay two-fold.” In Exod 21:27, where the thief has slaughtered or sold the animal, he faces multiple damages according to the type of animal, as in HL 57-59, 63-65, and 67-69. The point of the slaughter or sale is to show that the original thief is meant: the animal is no longer in his possession, and his crime has been proved by circumstantial evidence, such as the testimony of the buyer, as in CH 9. In Exod 22:3 it is not the same original thief who is the subject but the innocent possessor. As in HL 70, he is not expressly named but may be identified from the pattern of the discussion. Note that Exod 22:3 shares two further features with HL 70: there is a longer list of animals than in the law on original theft, formulated in such a way as to indicate that the type of animal is unimportant since the penalty is uniform; and the penalty itself is a lower level of multiple damages than for original theft. As in HL, the possibility may well have existed of recouping the payment from the seller/thief, although omitted in the text. We have thus managed to trace a scholarly problem through four law codes and to show that the same basic law underlay them all. That this would not at all be apparent from a superficial reading of the texts is due to the vagaries of Mesopotamian scientific technique and the local variations in its application. This same problem, we submit, continues into the Twelve Tables, in the form of the actio furti concepti and oblati, and reflects the same law, namely the strict liability of the receiver of stolen goods, albeit innocent, to pay multiple damages to the owner, tempered only by his right to recover the same from the seller/thief, as in CH. The element that is missing from all four examples from the ancient Near East is the search. It may have been a possibility, but all these laws are unconcerned with the question of how the owner found his stolen goods; it is the fact that he can identify them in the possession of the 159 We have omitted the intervening law on the thief caught breaking in. This was another classic scholarly problem that the Covenant Code combined with the present problem. For the logic of the Covenant Code’s presentation see Westbrook 1988d: 154.

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receiver which is important. The same, in our view, applies to the actio furti concepti. Contrary to the impression given by Gaius, there was only one search in the Twelve Tables, lance et licio, which was directed against the thief himself, probably after a hue and cry, as De Visscher surmised.160 Furtum conceptum was a different problem, that of strict liability for receiving stolen goods, to which the search procedure was irrelevant.161 In this light, Gaius’ description of the law is perfectly understandable. Gaius states (Inst. III 191) that a penalty of three-fold damages for a furtum conceptum is found in the Twelve Tables, as it undoubtedly was. Gaius’ account can be accepted as accurate on this point, since he had access to the actual text. The same is not true, however, of Gaius’ account of the legal practice forming the substance of furtum conceptum. A little earlier (Inst. III 186) he describes the content of that action “as it was in his day,” i.e., including a search. It does not follow (and to his credit Gaius does not actually say so expressly) that the “content” was the same at the time of the Twelve Tables, when the search lance et licio existed. The obvious time for the change in content was when the search lance et licio went out of use. To fill the gap a more modern procedure, quaestio before witnesses, became attached to the actio furti concepti, which thus lost some of its original rationale.162 160 Note also that the two biblical parallels adduced by Daube (1947: 257-259), Laban’s pursuit and search of Jacob’s possessions and Joseph’s of his brothers’ (Gen 31:22-35; 44:3-13), involve a hue and cry, and the search is directed against the original thief. 161 Daube in fact showed some awareness of this point in his analysis of the terminology (1947: 267-269). He surmised that the ao. furti concepti originally meant “an action because of stolen goods received” as the logical parallel to the ao. furto oblati “an action because of stolen goods brought,” i.e., that the essence of the offense was receiving the stolen goods. Daube ultimately rejected this interpretation, however, because of the weight of tradition (that of the classical Roman jurists) against it. 162 An interesting question, though not strictly relevant to our discussion, is why the innocent possessor should be punished more severely than a common thief. (It arises whether our interpretation is accepted or not.) Pugsley’s suggestion that it covers the extra expense and trouble of a search (1969a: 146) is not at all convincing: we know of no legal system where such considerations play a part in the level of punishment, and in any case catching the original thief and proving the case against him could be equally troublesome. We would provisionally suggest that here again is a case where Gaius’ interpretation is misleading. His division of theft into two exhaustive categories, one (manifestum) being specific and the other (nec manifestum) residual, is anachronistic. The Twelve Tables certainly discussed furtum manifestum, but the men-

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The disparity between the original nature and meaning of the Twelve Tables’ provisions on the one hand, and later Roman jurists’ understanding of them on the other, was not simply the result of the passage of time or of development in the law. The Twelve Tables were the product of Mesopotamian science, then the dominant intellectual force in the Near East and Mediterranean basin. At some point in the history of the Republic, however, Mesopotamian science was replaced by a scientific method developed by the Greek philosophers, and the Roman jurists, having once adopted this new method, became divided from the old texts by an unbridgeable intellectual gulf. They could no longer look at the Twelve Tables with the same eyes as those who had drafted them. An instructive example can once again be gleaned from oriental sources; this time not because of any connection, direct or indirect, but merely by way of comparison. The two biblical law codes, the Covenant Code and the Deuteronomic Code, were, as we have seen, part of the Mesopotamian scientific tradition. In the eyes of post-biblical Rabbinic jurists, however, they were something entirely different. They and the other rules found in the Pentateuch were regarded as legislation, enacted at a particular historical juncture in response to charismatic events (by divine proclamation on Mount Sinai after Israel’s exodus from Egypt). Together with other law supposedly promulgated orally at the same occasion, they formed a comprehensive code which was to be the fount and origin of all Jewish law. Unconsciously applying Greek scientific method, the Rabbis proceeded to interpret the content of the biblical codes accordingly. The Covenant Code contains a series of laws on damage to persons or property. Exod 21:28-32 reads: tion of furtum nec manifestum in VIII 16 was not to a general category, but to a specific case where the theft was not manifest, as the Mesopotamian scientific method would lead us to expect. The less serious cases of dishonesty in the Twelve Tables (VIII 19, 20) with two-fold damages were taken by Gaius and others as illustrations of a general category of furtum nec manifestum. Hence the attribution of two-fold damages to all cases of common theft. In our view, the original penalty for common theft was a higher multiple. It may have varied according to the object stolen, but the most likely figure would be four-fold, i.e., that to which the penalty for furtum manifestum was later commuted. The grounds and the evidence for this proposition must await a more detailed study.

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Writings of Westbrook, Vol. 1: The Shared Tradition If an ox gores a man or a woman and they die, the ox shall be stoned and its flesh not eaten, but the owner of the ox shall be clear. But if the ox has been accustomed to gore in the past, and its owner has been warned but has not guarded it, and it kills a man or a woman, the ox shall be stoned, and its owner shall also be put to death. . . . If it gores a son or a daughter, it shall be done to him according to this rule. If the ox gores a male slave or a female slave, the owner shall give their master 30 shekels of silver and the ox shall be stoned.

Here is a typical scholarly problem dealt with according to the techniques of Mesopotamian science. The original question of liability is expanded by changing the status of the victim: man, woman, son, daughter, slave.163 The following law also considers oxen, but the association is material not legal. Exod 21:33-34 reads: If a man opens a pit or a man digs a pit and does not cover it, and an ox or an ass falls into it, the owner of the pit shall make it good; he shall give money to its owner, and the dead beast shall be his. The next law (vv. 35-36) returns to the question of the goring ox, but where the victim is another ox.164 The discussion is again, expanded by imposing the scienter test on the owner. There then follows a series of provisions on theft, after which the question of damage to property is raised again in two laws concerning responsibility for damage to crops. Exod 22:5-6 reads: If a man causes a field or vineyard to be grazed over, or lets his beast loose and it feeds in another man’s field, he shall make restitution from the best in his field and in his vineyard. If fire breaks out and catches in thorns so that the stacked grain or the standing grain or the field is burned, he that lit the fire shall make full restitution.

163 For a discussion of this particular scholarly problem, see Westbrook 1988d: 70-75. 164 See n. 69 above.

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The same principle of liability for negligence can be discerned in these two laws, but it is expressed, as usual, only through isolated examples that give no hint of the limits of that principle. Now let us compare the treatment of these disparate provisions at the hands of the Rabbinical jurists. The Mishnah, in Bava Qamma 1.1, reads: The four “fathers” (i.e., primary causes) of injuries are the ox and the pit and the grazing beast and the outbreak of fire. The ox is not like the grazing beast, nor is the grazing beast like the ox; nor is either of these, which have life in them, like fire, which does not have life in it; nor is any of these, whose way it is to go forth and do injury, like the pit, whose way it is not to go forth and do injury. What they have in common is that it is the way of them to do injury and that guarding them is your responsibility; and if one of them did injury, whoever did the injury must make restitution for the injury with the best of his land. The scattered examples of the ancient text have been transformed into general categories which divide between them the whole field of injury, while common principles of liability and compensation are elucidated. Not only would this reasoning be beyond the capacity of the original draftsman of the Covenant Code, but it changes the substantive meaning of the biblical text. As we have the original text we are in a position to compare, but were we forced to reconstruct it from the Mishnaic commentary, the result would, for all our efforts, be bound to look very different. The method of reasoning reflected in the Mishnaic commentary may already have pervaded the tripertita of Sextus Aelius. It would certainly have been the basis of Gaius’ commentary on the Twelve Tables. Small wonder then, that although he himself may have had the text before him, Gaius (and his fellow jurists alike) cannot reproduce for us its original meaning.165

165 In conceding Gaius accurate knowledge of the text we may even be going too far, since any version before him will not have been in the language of the fifth-century original. See Nörr 1976: 497-604, esp. 535.

3 Cuneiform Law Codes and the Origins of Legislation Abstract Recent scholarship has argued that the ancient Near Eastern law codes constituted legislation. This study takes exception to that view. Even though the codes appear to be fairly accurate descriptions of the law, they did not function as prescriptive legislation, nor did their provisions serve as legislative reforms. The ancient Near Eastern royal edicts, on the other hand, were a type of legislation. It was not until later biblical and Greek sources combined aspects of both the law codes and the royal edicts that the concept of written normative legislation began to develop.

W

hen first discovered, the cuneiform law codes were assumed by scholars to be legislation in the classical or modern sense of the term. The only discussion was as to whether they were a codification or a reform. Doubts, however, were expressed by scholars such as Eilers 1 and Landsberger,2 and a contrary thesis was formulated by Kraus,3 namely that the codes were an academic exercise, part of the proto-scientific activity of the scribes, on a par with the omen lists and medical treatises. This thesis, further expanded by Bottéro,4 has gained wide acceptance among Assyriologists. * Originally published in Zeitschrift für Assyriologie 79 (1989): 201-22. Used by permission. 1 Eilers 1932: 8-9. Note that P. Koschaker, for whom the legislative character of CH was without question, by the same token concluded that MAL was a private academic work without legislative force, by reason of the contrast in style between it and CH: apud Ehelolf 1922: 12-15. 2 Landsberger 1939: 221-22. 3 Kraus 1960. 4 Bottéro 1982. See also Finkelstein 1961 and Renger 1976.

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Recently, however, the “academic” view of the law codes has come under attack by a number of legal historians who specialize in the field of cuneiform law. Both new and old arguments have been brought to bear in an attempt to show that the codes were indeed normative legislation, as earlier commentators had assumed. The debate, it should be added, has centered mainly around Codex Hammurabi, but its conclusions are assumed to apply to the codes in general. Before we examine the arguments of this juridical school, it is necessary to explain the significance of the difference between an academic and a normative interpretation of the codes. Legislation is an authoritative source of law; the courts are bound to obey its precepts. That binding quality begins at a certain point in time, when the legislation is promulgated. And once promulgated, the text of the legislation takes on a life of its own—the text is the exclusive source of the law. For this reason, the courts must pay great attention to the wording of the text, interpret its meaning, and cite it in their decisions. Even if the legislation does not change the existing law but merely codifies it, the effect is to exclude reliance on the earlier sources. An academic treatise on the law may be good evidence of what the law is, but it is not an authoritative source. The treatise in describing the law in effect refers the court to the real authoritative sources thereof, whether they be statute, precedent, or custom. The date of the treatise is therefore of less significance; there is no particular point in time at which it comes into effect. And its text has no independent value. Courts need not cite it or pay attention to its wording, since they are essentially looking beyond it to the source that it reflects. The arguments of legal historians in favor of the former interpretation of the cuneiform codes are the following. Firstly, certain remarks in the epilogue to CH are taken to show that the text of the code was intended to be cited in court.5 The section in col. XLVIII, lines 3-17, reads: A man oppressed who has a plaint,6 let him go before my statue “king of justice,” read my inscribed stela, and hear my precious 5 Petschow 1986: 21-22. 6 aw tam iraû. Not, apparently, a technical term of litigation. In the OB period it occurs in letters rather than legal documents: JCS 17 77, no. 5:6; AbB 1 50:20.

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words. May my stela reveal to him the matter; may he see his judgment . . . . According to Petschow, this invitation presumes that the plaintiff would be able to rely on the judges applying the relevant provisions in his lawsuit.7 That presumption may well be correct, but it does not make the provisions legislation. They could equally be an earlier judgment of the king which the stela describes, since what the plaintiff has revealed to him is dnu— “his judgment”—and elsewhere the provisions as a whole are termed “the just judgments that (king Hammurabi) established” (dn t marim a . . . ukinnu).8 Such judgments would have authority in their own right as precedents, unless the law code replaced them, and of that step there is no indication in the text. It can only be supplied by importing modern conceptions of law, which of course is to beg the question. For the text goes on to describe not the citation of the judgment found by the plaintiff in the stela, but his joy at the discovery and the need for him then to praise Hammurabi and to pray for him. And all this takes place not in the court but in the temple, where the stela is situated. On the same subject, Klíma9 and Démare-Lafont10 argue that the provisions of the stela are made binding on the courts by the curse formulae upon anyone disregarding the content of the stela or tampering with the inscription itself. But these curses are clearly directed against a future ruler after Hammurabi,11 not to his own administration. Indeed, the curse against one who erases Hammurabi’s name and inserts his own on the stela12 shows that the binding authority of the provisions was not uppermost in the promulgator’s mind, since that action by a future king would not detract from their authority and might even enhance it.

7 Petschow 1986: 22. Contra Renger 1976: 234, who considers the invitation to have moral rather than legal force, being intended to reassure one seeking justice. 8 Col. XLVII, lines 1-5. 9 Klíma 1972: 308. 10 Démare-Lafont 1987b: 345. 11 Col. XLVII, lines 59-63. 12 Col. XLVII, lines 33-35.

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The second main argument put forward is that the political context reveals CH to have been normative legislation. As Klíma puts it:13 Le dynamisme de la politique hammurabienne qui menait à la centralisation et l’unification de l’empire . . . met hors de doute l’intention du souverain de munir son empire d’un droit unifié, obligeant toute la population sans distinction d’origine, de race et de nationalité. The idea is that an act of legislative codification was necessary to replace conflicting local systems. Unfortunately, there is no evidence whatsoever that such noble sentiments were abroad in the eighteenth century B.C.E. There is nothing in the sources to suggest either that the legal systems of the region differed to the point of conflict or that there was any awareness that unification of the law was necessary or desirable, or that CH did anything in this regard. The only clear difference between regions known to us is the firstborn son’s right to a privileged share of the inheritance, which amounts to ten percent of the total estate in Southern Mesopotamia but to the equivalent of one ordinary heir’s share in the North and in peripheral areas.14 The question is not dealt with at all in CH. The third argument is that, contrary to the earlier findings of Eilers,15 there are no discrepancies between the rules of CH and those found in documents of practice.16 This is a finding that may be accepted without further discussion, for it proves nothing about the legislative effect of the code (except that it was not impossible). It does not prove that practice conformed with the code, since it could equally well have been the code that was conforming with practice. After all, the least that one could expect from an academic treatise on law is that it accurately describe the law in 13 Klíma 1972: 306-307. Cf. Petschow 1986: 21 and Démare-Lafont 1987b: 346. 14 See O’Callaghan 1954: 139-140. On the other hand, references to talionic punishment in some codes and to payments in others do not point to conflicting legal systems, as we have argued in Westbrook 1988d: 45-77. Hammurabi, at least, regarded the judgments of his defeated neighbors as valid and still binding on the parties, as Jean Tell Sifr 58 shows; see Kraus 1958: 208. 15 Eilers 1932: 8, no. 3. Cf. San Nicolò 1932: 189-92. 16 See esp. Petschow 1984. Also U. Sick 1984.

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practice. In this respect, the findings of the juridical school are to be commended as a useful qualification to the “academic exercise” theory.17 It is not to be supposed that those who drafted the codes invented rules out of their own imagination; they described the positive law.18 The same considerations apply to arguments based on innovations in the codes.19 The Hittite Laws in particular make express reference to changes in the law, e.g., paragraph 59: “If someone steals a ram, formerly they used to give 30 sheep. Now he shall give 15 sheep; 5 ewes, 5 rams, 5 lambs.” Such paragraphs may show that the code is linked to the law in practice, but they do not necessarily mean that the code is the source of the reforms mentioned. It could as well be describing changes in the law made by some other process. An example of such a process is given in paragraph 55 of the same code: When the Hattian feudal tenants came and bowed down to the king’s father and said, “No one pays us a wage, and they belittle us (saying), ‘You are feudal tenants,’” then the king’s father [. . .] in the assembly and sealed a document (saying), “Go! Be like your colleagues.” The final argument is a more subtle one. It is suggested that the content of certain provisions in the codes indicates that they must have been legislative reforms. The first instance relates to paragraph 12 of the NBL, which reads: A wife, whose husband has received her dowry, who has no son or daughter, and whose husband has died, shall be given a dowry to the value of her dowry from her husband’s estate. If her husband gave her a marital gift, she shall receive her husband’s marital gift together with her dowry and is paid. 17 Bottero (1982: 435) argues that, as in the omen-texts, the law codes contain cases that are conceivable but not in the realm of the practical. While the omens do contain fantastic cases, such as a woman giving birth to six, seven, eight, nine, ten and so forth children at one time, one should not take the analogy too far. Omens are by definition extraordinary occurrences; the circumstances of legal disputes are not. 18 This is not to exclude some variation or idealization, as in any modern treatise on law. 19 Von Schuler 1959: 436; Preiser 1969: 26-27.

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Writings of Westbrook, Vol. 1: The Shared Tradition If she has no dowry, the judges shall consider her husband’s estate, and something shall be given her from her husband’s estate.”

In discussing a Neo-Babylonian trial document in which the widow receives back the value of her dowry, Ries comments that one has the impression that the court had paragraph 12 before it in making its decision.20 He distinguishes between a trial document in which, for example, the death penalty is imposed for homicide, which need not be based on a provision to that effect in a code, since in the nature of things that would be the appropriate penalty, and the present case, where the provision of the code is so technical that the same result in the trial can be no coincidence.21 In our view, the opposite is the case. One of the innate functions of the dowry is to provide for the wife during widowhood. The dowry is always to be restored to the wife, and if she dies childless, it is returned to her father’s estate; it does not devolve upon her husband’s. These principles are already recorded over a thousand years earlier in the Old Babylonian codes 22 and are the rationale for the dowry lists found in documents of practice in which quantities and values are recorded with painstaking detail.23 It seems to us, therefore, that NBL 12 was not a technical innovation but a banal recapitulation of customary law, and the court in this instance had no need to refer to the text of a code in order to reach its decision. The second instance relates to differences between CU and CH. In CU 28, if a man floods his neighbor’s field, he must pay a fixed amount of

20 Ries 1984: 358. 21 Ries 1984: 358-59: “Die Bestimmung ist so sehr technischer Art, daß die Entscheidung nicht auf Zufall beruhen kann, wie etwa, wenn die Anwendung eines Gesetzes über vorsätzliche Tötung in Frage stünde, dessen Rechtsfolge die Todesstrafe ist. Könnte man in diesem Fall ein Dokument der Rechtspraxis entdecken, wonach der Täter zum Tode verurteilt wurde, so wäre das kein zwingender Nachweis dafür, daß das Gericht die Norm bewußt angewandt hat. Anders als im vorliegenden Fall könnte sich dieses Ergebnis auch aus der Natur der Sache ergeben.” 22 CE 18, CH 171-172, CH 176. Discussed in Westbrook 1988b. For the widespread application of this principle, see Westbrook 1986b. 23 For examples, see Westbrook 1988b (BE 6/1 84, BE 6/1 101, CT 8 2a).

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grain per area unit in compensation. In §29, if a lessee fails to cultivate the land under lease, he must pay the lessor the same fixed amount. According to Cardascia,24 CU’s system is a primitive one. The fixed amount—in itself a crude measure—is applied indifferently where the whole crop is at issue, as in §28, and where only the rent (one-half or twothirds of the crop) is at issue. In the parallel provisions in CH a different measure appears—“like his neighbor,” i.e., the yield of a neighboring field—and to Cardascia this signals a legislative innovation, a new and more sophisticated concept introduced by CH. The situation, however, is considerably more complex. CH in fact uses both measures, the fixed as well as the neighboring. It does so, as Cardascia recognized,25 in different types of circumstances, which suggests to us that the difference is not historical but utilitarian. The fixed measure is used in CH in three paragraphs. For Cardascia, the common factor is that (on his interpretation of the text) in all these cases the field has been reduced to a totally barren condition. Accordingly, the archaic Sumerian system was applied here or rediscovered by CH for technical reasons, namely the difficulty of estimating the future crop on the basis of the neighboring field’s production.26 We cannot see the logic in this reasoning. The neighboring fields’ production is an equally usable criterion whether part or the whole of a field’s crop has been lost. The potential crop will be the same in either case. Moreover, the neighboring field measure is used in CH also where the total crop is lost, in CH 43. The negligent lessee there has to do the same preliminary work on the field before returning it to its owner (hoeing, etc.) as in CH 44, where the fixed measure applies. In our opinion, therefore, the field’s reduction to a barren condition was not the factor that determined CH’s employment of the fixed measure. The difference between the two measures is to be sought elsewhere. 24 Cardascia 1985. 25 Cardascia 1985: 179. 26 Cardascia 1985: 179: “Dans ces trois espèces le forfait serait appliqué, non pour des raisons d’equité—qui militeraient plutôt en sens inverse—mais pour un motif technique: la difficulté que l’on rencontrait à estimer la future récolte (ou le futur fermage) d’après la production des champs contigus. Pour cette raison contingente, Hammurabi aurait, soit conservé, soit retrouvé de façon indépendante, la méthode forfaitaire, seule pratiquée à l’époque sumérienne.”

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The provisions of CH that use these measures apply them to two types of wrong: where a tenant-farmer through negligence fails to fulfill his contract with the owner and where the owner of a field through negligence floods his neighbor’s field. Let us first consider the contractual provisions. From the documents of practice, we know that a tenant-farmer might pay rent in one of three ways, according to his lease: a fixed quantity of grain (or other crop) for the area leased, a fixed quantity per acre, or a fixed proportion of the harvest (i.e., share-cropping).27 An example of share-cropping is given in CH 64: If a man gives his (date-)palm grove to a gardener for pollination, as long as he holds the grove, the gardener shall give two-thirds of the grove’s yield to the owner and shall take one-third himself. CH 65 continues: If the gardener does not pollinate the grove and reduces the yield, the gardener shall measure out to the grove’s owner a yield of the grove like his neighbor. In a share-cropping arrangement, the rent received by the owner is variable, depending on the total yield produced by the tenant’s efforts. If the tenant through negligence fails to produce a reasonable yield, he is in breach of contract. The obvious measure of reasonable yield is the production of the neighboring fields. Indeed, it is only in a share-cropping situation that this measure is appropriate. If the rent were fixed, whether in total or per acre, that would be the amount payable by the tenant whatever the total yield produced from the rented land. CH 42 reads: If a man leases a field for cultivation and does not produce grain in the field, they shall prove that he did not do the husbandry of the field, and he shall give the field’s owner grain like his neighbor.28 27 See Driver and Miles 1952: 131-35. 28 In CH 43, if the tenant did not even plow the field, he must do this and relinquish the lease in addition to paying the owner rent by the same measure.

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Although it is not mentioned expressly then, here also the lease must be a share-cropping arrangement, and the payment must thus be the owner’s proportion of a reasonable yield.29 Turning to the provisions of CH where a fixed measure is applied to breach of contract, we see that the lease is of a different nature. It is for development of waste land (ana tepttim). CH 44 reads: If a man leases a waste field for three years for development but was negligent and did not develop the field, in the fourth year he shall plow, hoe, and harrow the field and return it to the field’s owner and shall measure out 10 kor of grain per bur. The same contract is found in contemporary documents of practice. While there is considerable variation in the terms, the basic condition is that the tenant be allowed a period rent-free or at a reduced rent until the field comes to full production. In some contracts it is only in the final year of the lease that the tenant “enters into rent” (ana biltim irrub), i.e., pays the full rent.30 It is not usually stated what the full rent is, but apparently it may be on any one of the three bases mentioned above, since in one case it is stated as 8 kor per bur 31 and in another as “like his neighbors,”32 suggesting share-cropping. Another variation of this contract is for the tenant to pay no rent at all for the period of the lease, but to be obliged to return the land in a developed condition.33 In our opinion, it is with the latter arrangement that CH 44 is concerned, for if rent were payable in the final year of the lease, that in itself would provide the measure of compensation for breach. There being no share-cropping arrangement, however, the “like his neighbor” measure is 29 Cf. the lease agreement in VAS 8 62-63 (= Schorr 1913: no. 130): A has leased a field, as far as it extends, from B for cultivation. He will do the work like his right (neighbor) and his left (neighbor). If he does not do the work, he (the lessor) will (still) take his half-share of the grain. In a very indirect way the document reveals that it is a share-cropping agreement in which the owner is entitled to a share based on the yield from neighboring fields. 30 E.g., CT 2 8, CT 33 36, VAS 7 22. 31 Waterman Bus. Doc. 48 (= AJSL 29 295):15. 32 VAS 7 22. 33 VAS 7 21.

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not appropriate, especially since no particular proportion has been agreed upon. An average rent for developed land would therefore seem in order, and that is almost exactly what 10 kor per bur represents. The contemporary documents that stipulate rent by kor per bur vary from 6 to 18 kor, the average being around 9 kor.34 In CH 62-63 the two rival measures of compensation are again contrasted, but the situation is quite different, and so is their application. A gardener has contracted to plant a (date-)palm grove on the owner’s land, an enterprise that will require four years rent-free occupation, with the parties dividing the field (not the crop) in equal shares in the fifth. CH 62 continues: If he did not plant the field given him with a palm grove, if it is developed arable land, the gardener shall measure out to the owner the yield of the field for the years that he was negligent like his neighbor and shall make it a worked field and return it to the owner. In our opinion, the payment here does not represent rent, which would be inadequate compensation.35 On the total failure of the investment, the owner is restored to the best position that he would have been in had he retained control of the field, namely its full grain production as developed land.36 To ascertain that production, the measure “like his neighbor” is the most appropriate. CH 63, however, continues: 34 Driver and Miles 1952: 133. 35 The term GUN (biltum) can mean yield or rent, according to context. The latter meaning might apply in the context of a share-cropping agreement, but the context here is explicitly not one of share-cropping: according to §60, if the contract to plant an orchard is successfully completed, the owner and the gardener will physically divide the land as absolute owners. 36 The fact that this optimum standard is used points to some of the difficulties felt by the Babylonian jurisprudence in grappling with the question of fair compensation. In awarding damages for breach of contract, a modern court of law would seek to compensate for loss of expectations: it would seek to put the plaintiff—in financial terms—in the position he would have been had the contract been performed., The quantification, however, is difficult and complex, involving speculation as to the future performance of the investment. It is not surprising therefore that the Babylonian court followed a more attainable goal: the position the plaintiff would have been in

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If it is waste land he shall make it a worked field and return the field to the owner and measure out 10 kor of grain per bur for each year. Again, the resemblance to rent is purely superficial. The measure of compensation is based on the assumption that the owner would otherwise have developed the waste land as grain-bearing land. The results would have varied, as variations in the development contracts show, but a reasonable average would have been for the owner to have had perhaps a small crop in the second year and a full crop in the third or at least the fourth year. A recent study has shown the average yield at this period to have been about 20 kor per bur,37 so that from waste land four years’ development would yield on average about 40 kor. This is the sum of 10 kor per year for the four-year lease and may therefore have been the unexpressed aim of this measure.38 It could have been computed differently, but this was a round measure at hand and was presumably borrowed from the waste land rent case on the same analogy as the “like his neighbor” measure for rent of development land. Finally, in CH 55-56, the two measures of compensation are again used out of their original context. The situation is no longer contractual, but concerns damage caused by negligence. 55 If a man opens his canal for irrigation and is negligent and lets the water carry away his neighbor’s field, he shall measure out grain like his neighbor. 56 If a man opens the water and lets the water carry away the workings (ep tim) of his neighbor’s field, he shall measure out 10 kor of barley per bur.

had there been no contract and no breach. But there must have been awareness, albeit inarticulate, that this was insufficient, that some allowance for reasonable expectations must be given. Hence the optimistic assessment of the plaintiff’s likely earnings in the absence of a development lease. 37 Butz and Schroeder 1985: 189-90. 38 Our remarks in n. 36 as to the optimistic assessment of the owner’s putative income apply equally here.

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In §55, the rationale for use of the “like his neighbor” measure is clear. The crop has been washed away, and the neighbor is therefore entitled to the quantity that his field would have produced, as evidenced by the production of the surrounding field. In §56, on the other hand, as Driver and Miles point out, “the damage done is merely to the preparatory work on his neighbor’s field, such as the fencing and ditching, and this work can be done again and a late crop may be raised.”39 The “like his neighbor” measure would therefore be inappropriate, since there may be no loss of production at all; the loss is rather in extra trouble and expense. Fixed average rent per acre may not be the most sophisticated measure, but given the difficulty of assessing trouble and expense in pecuniary terms, it is a reasonable one. For good measure, it should be added that there is a third measure of compensation for flooding in CH 53, namely the amount of grain lost. In this case, the negligent farmer has flooded the whole district (ug rum), so that presumably there are no neighbors left by whose crop the lost production can be judged. On the other hand, there is no explanation of how the quantity lost is to be assessed. To summarize, CH discusses a wide variety of cases where agricultural production is disrupted through negligence, some founded in contract and some in what today would be called tort. The code applies several criteria for measurement of compensation, in particular a fixed rate of 10 kor per bur and “like his neighbor,” both of which derive from the practice in different types of lease. There is nothing to suggest that the latter is more sophisticated than the former; rather they are each confined to the circumstances where they would be most appropriate. With these considerations in mind, we may return to the provisions of the earlier CU. In contrast to the plethora of detail in CH, the Sumerian code presents only two brief paragraphs. The tablet breaks off at that point, however, and it may well be that treatment of the topic was more extensive. 28 If a man caused water to carry away the crop-bearing field of a man, he shall measure out 3 kor of grain per iku of field.

39 Driver and Miles 1952: 154.

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29 If a man leased a crop-bearing field to a man for cultivation, and he did not cultivate it but turned it into an “empty place,”40 he shall measure out 3 kor of grain per iku of field. Although the same general situation is evidently being described, it is impossible to ascertain from these terse and enigmatic provisions which of the several lease or flood cases considered in CH are being adumbrated, if any. It may indeed be none of them, for in the apodosis the whole basis for comparison breaks down. Cardascia notes with astonishment that the measure here of 3 kor per iku is more than five times higher than in the parallel provisions of CH, but attributes it to the much-reduced yield of the Babylonian fields due to the effects of salinization.41 Butz, however, has shown that salinization had little effect on yield between the NeoSumerian and Old Babylonian periods.42 A similar severity is found twice in CH, where the payment required is 60 kor per bur, i.e., six times higher than the fixed measure under discussion. In §58 it concerns a shepherd who has left his sheep in a field during a period when this is forbidden,43 and in §255 an employee who dishonestly hires out his employer’s ox or who steals his employer’s seed-grain. In the latter case at least, the payment can be clearly seen to be penal. We must therefore assume the same for the payments in CU. Consequently, either CU took a different attitude to CH over the offences in question, or the circumstances of the protasis are not as parallel as they appear. Whatever the case, the payment required by CU cannot be interpreted as a measure of compensation, primitive or otherwise. Neither from internal evidence, therefore, nor from comparison with the provisions of an earlier code, can the “like his neighbor” measure of compensation be seen as a legislative innovation by CH to replace a more primitive fixed rate of payment. The final argument for the legislative nature of the law codes concerns a question first raised by Landsberger.44 Why are the law codes never

40 41 42 43 44

 à. sù .g a, see CAD  249, urb (lexical discussion); and AHw 987-88, rqu. Cardascia 1985: 177. 1 bur = 18 iku. Butz and Schroeder 1985: 197-98. See Dossin 1972: 77-80. Landsberger 1939: 220.

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referred to in documents of practice? Two answers are given by legal historians: firstly, citation was not required in ancient legal procedure,45 and secondly, cuneiform trial records never give the legal grounds for the decisions recorded.46 There is some substance in these points. It is not to be expected that the ancients shared the obsession of modern lawyers with citing chapter and verse for every rule applied, and an argument from silence is to be treated with the utmost reserve given the haphazard circumstances upon which we depend for our sources. Nonetheless, they must both be rejected in the light of the following facts. 1. In the post-cuneiform period of classical antiquity, it was the practice to cite statutes, by name and by direct quotation of 45 Klíma 1972: 308. 46 Démare-Lafont 1987b: 344. A different approach has been to claim the existence of citations of legislation in the cuneiform literature. See e.g., Szlechter 1965: 64-74; Preiser 1969: 33-34; and Leemans 1988: 233. As we shall see, there are cases where the king’s acts as a lawmaker are cited, but there is no evidence to identify these acts with law codes in the sense of CH, MAL, etc. The nearest candidate is UET 5 420: a-lu-ú-um / DUMU a-at-ta-a / dEN.ZU-ú-ba-lí-i-sú / a-na UGU A.À-u / a-na e-ebbu-tim / i-ku-un-u / i-na U4.1.KAM /
2 SÌLA! NINDA ù 3 SÌLA KA /
x i-ku-unu / e-a-am i-na ka-ba-si-im / 3 E.GUR i-na KAR ÚRIki / i-na-ad-di-i-um / a-na i-i-im a ib-ba-a-u / ki-ma pí-i NA4.RUe / i-ip-pu-u-u Sin-uballissu has established Alum son of Attaya as guardian(?) over his field. He has established 2 qa of bread and 3 qa of beer per day for him. When the grain is trampled, he will give him 3 kor of grain at the quay of Ur. For any shortfall that may be, they will treat him according to the word of the stela. (4 witnesses; date: Samsu-iluna 5). Since the CH, inter alia, is written on a stela, this could be interpreted as a reference to such a law code. It is precisely in a contract, however, that one would not expect reference to a law code. If the code constituted positive legislation then there would be no need to refer to the rule in the contractual conditions since it would apply automatically. At most, one might expect a paraphrase of the rule. A possible exception would be where the stela contained a tariff, perhaps not yet fixed at the time of concluding the contract. Since any shortfall would be relative to the size of the harvest, the clause may refer to a tariff posted after the outturn of the harvest is known. The two other similar references to a stela both refer to tariffs—of wages and interest: see CAD N/1 364-65, narû A.

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paragraphs, if not by number.47 The practice is not, then, a modern innovation, and the difference between classical and pre-classical antiquity in this regard is of great significance. 2. There does exist a comparable type of cuneiform legal source for which contemporary references abound: the royal edict. There are many examples, the most complete of which are the edicts of Uru-inimgina of Lagash (25th century),48 Ammiaduqa of Babylon (17th century),49 Telipinu of Hatti (16th century),50 and Horemheb of Egypt (14th century).51 They all take the form of solemn proclamations by a king declaring the reform of some aspect or aspects of the existing law. Evidence external to the texts themselves leaves no doubt as to their practical application; indeed, the existence of most of the edicts is known only from evidence of their effect in practice. The same evidence shows them to have been a widespread phenomenon, common not only to the cuneiform sphere but to the whole of the ancient Near East.52 47 Examples are countless. To take two at random: 1. In the Mishnah, Ketubot 3.5: “If there be found in her unchastity or if she is not fit to enter the congregation of Israel, he is not permitted to marry her, as it is said: ‘And she shall be to him for a wife.’ (This means:) a wife who is fit for him.” (The citation is of Deut 22:29.) 2. Demosthenes, In Aristocratem 51: “This statute, men of Athens, like all the other excerpts from the law of homicide which I have cited for comparison, is a statute of Draco; and you must pay attention to his meaning. ‘No man is to be liable to prosecution for murder for laying information against manslayers who return from exile illegally.’ Herein he exhibits two principles of justice, both of which have been transgressed by the defendant in his decree” (translation from Vince, in Loeb Classical Library, 1978). 48 Edited by Lambert 1956: 169-84. Recent translation and notes in Cooper 1986: 70-78. The king’s name was formerly read Urukagina. 49 Edited by Kraus 1984: 163-214. See also the text of fragments of two further edicts from the same period; edited in Kraus 1984: 152-62. 50 Edited by Hoffmann 1984. A fragment of an Edict by Tudhaliya IV of Hatti is edited by Schuler 1959: 435-72. Middle Assyrian edicts concerned with palace protocol are edited by Weidner 1954-56b: 257-93. A recently published fragment may have had wider application: George 1988: 25-30. 51 Edited by Kruchten 1981. 52 The overall picture is discussed by Weinfeld 1985: esp. chapters 4-7 (in Hebrew).

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The effect of the edicts can be seen from changes in contemporary economic documents,53 and they are referred to indirectly in contracts, where it is necessary to emphasize that the transaction in question postdated the edict.54 They are the subject of lawsuits55 and petitions,56 and their promulgation is recorded in year names 57 and in historical narratives.58 The reason for all this evidence is quite simply that, unlike the lawcodes, the reform edicts were normative legislation. The text lays down a series of rules that come into force at a specific point in time59 and have to be obeyed by the courts.60 If the law codes had had the same effect, we

53 Maekawa 1973-74: 114-36. 54 E.g., TCL 10 40 (Old Babylonian document from Larsa); edited by Kraus 1984: 3133. Cf. the clause in a Neo-Assyrian contract (“If a release is established, PN may claim his silver”) discussed by Lewy 1958: 30-31. 55 Oliver 1984. 56 Finkelstein 1965. 57 E.g., two year names of king Katilia, of ana: a) “Year: king Katilia established a marum.” b) “Year: king Katilia established a second marum.” See Kraus 1984: 99-100. The numerous examples from the OB period are collected in Kraus 1984: chapters 2-5. 58 Jer 34:8-11, recording an edict by King Zedekiah of Judah releasing debt-slaves. 59 CE is preceded by a date-formula, which might suggest that the code came into force at a specific point in time. (The incongruity with a law code has been noted by Kraus, 1984: 94-96.) What follows the date-formula, however, is a tariff, which appears to have been incorporated from an independent source without any changes. (It has not been put into the casuistic style characteristic of the law codes.) In our view then, the date belongs to the tariff and originally marked the point in time from which the prices were valid. 60 It is a moot point whether the text of the edicts was in itself authoritative. This must have been the case with tariffs, but were the actual words of an edict interpreted by the court? The extant texts of Uru-inimgina’s Edict are not the original version and not authoritative. They are dedicatory inscriptions from later in his reign in which the king boasts of his various achievements and in so doing quotes extensively from the reforms that he had instituted at the beginning of his reign (see Edzard 1974: 147-49). The role of the text in the Old Babylonian marum-edicts is not clear (see Kraus 1958). Paragraph 30 of the Edict of Telipinu instructs the nobles to tell a future king planning to kill his siblings to “see the matter of blood from the tablet. Formerly blood (= murder) was frequent in Hattusa, and the gods placed it (the bloodguilt) on the great

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would expect similar references to them as to the edicts, at least in the Old Babylonian period, when there is ample source-material. Instead, there is silence. The name of king Hammurabi’s second year refers to a reform edict, and that of year 22 to his statue “Hammurabi, King of Justice,” which is also mentioned in the epilogue to CH, but the promulgation of the great code itself does not even merit a year name. The process of legislation appears to have stopped short at the edicts. And this is no accident. For legislation, the edicts are remarkably narrow in scope. The earliest, that of king Uru-inimgina of Lagash, contains three types of provisions, which mark the parameters also of the three other major extant examples and to all appearances of those preserved only in fragmentary form or in passing reference. The three categories are: 1. Adjustments to royal administrative machinery. Offices are created or abolished; malpractices of officials are forbidden and their future repetition punished; the administration of state institutions is regulated.61 The edicts of Telipinu of Hatti and Horemheb of Egypt fall exclusively into this category. The former is concerned mostly with regulating an orderly succession to the throne and with administration of the royal granaries, while the latter is concerned with abuses by military and civilian officials and the provision of supplies for the itinerant royal court. The substantive law of the land is untouched by this type of legislation. The king reorganizes his own household and the general population is affected only insofar as they come into contact with the royal bureaucracy.62

(= royal) family.” This could be a reference simply to the historical preamble, where the gory deeds of Telipinu’s predecessors are recounted. 61 E.g., “He installed Ningirsu as proprietor over the ruler’s estate and the ruler’s fields; he installed Ba’u as proprietor of the estate of the woman’s organization and fields of the woman’s organization; and he installed ulagana as proprietor of the children’s estate” (Sollberger Corpus Ukg. 5; transl. Cooper 1986: 72). All three are gods—the reference is to a reorganization of public administration, which included the temples. 62 But note that paragraphs 49 and 50 of the Telipinu Edict appear to contain procedural regulations concerning the palace’s role in the prosecution of murder and witchcraft.

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In short, the principal areas of substance in a legal system: property and inheritance, family law, contract, and delict—areas that receive the full attention of the cuneiform law codes—are virtually ignored in the only true legislative instrument of the cuneiform sources, the royal edict.65 63 E.g., “When a corpse is brought for burial the umu takes his 3 jugs of beer, his 80 loaves of bread, one bed, and one ‘leading goat,’ and the umum takes 3 ban of barley” (Sollberger Corpus Ukg. 5; transl. Cooper 1986: 72). Similar lists are found in §§1-11 of the Code of Eshnunna, §§268-277 of the Code of Hammurabi, and §§176B-186 of the Hittite Laws. They appear to have been drawn from independent sources, but no such source has been recovered to date. Nonetheless, there is indirect evidence that tariffs were posted at the city-gate. See n. 46 above on narû; and KAH 1 2 iii 16-iv 3. 64 Some secondary rules punishing those who disobey the decree by their nature govern future conduct. Paragraphs 5 and 7 of Ammi-aduqa’s edict, which punished complicated attempts to evade the edict, must have been based on court decisions arising from earlier edicts. The same would seem to apply to §§10, 17, 18, and 22, contrary to the interpretation of Finkelstein (1961: 100-102), who saw them as impractical reforms (citing the same paragraphs as 8, 15, 16 and 20, following an earlier edition). 65 The reverse is not true. The law codes contain material from all sources, including royal edicts. See esp. Finkelstein 1961: 103.

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The reason for such timidity is in our opinion an intellectual one. Let us consider for a moment the difference between the two great sources of authoritative law: precedent and statute. Precedent derives from the decisions of a court in a particular case. Initially, the court’s judgment looks backward; it resolves a past or existing situation that is presented to it. What precedent does is to make the same judgment look forward, by rendering it applicable to potential future situations where the facts are analogous but not necessarily similar. The key to this process is the extraction of the reasoning behind the decision and its re-formulation as an impersonal rule. Statute already begins life as an impersonal rule. With the exception of retrospective legislation, its attention is directed exclusively to the future. It may be based on past or present experience but essentially it must predict potential situations and formulate rules to resolve them. Clearly, there is a great danger of such rules having unexpected results. It is a danger that is easier to avoid with precedent, where the consequences can already be seen in the case upon which the decision is made. The more widely the precedent is formulated, therefore, the further it departs from the narrow facts upon which the original decision was based, the greater the danger of unpredictable results, and the closer its formulation resembles statute. By the same token, statute may lessen this danger by narrowing its formulation to resemble more that of a precedent, although with a corresponding loss of effectiveness. In short, the formulation of general principles of law is a difficult intellectual task, in which there is a rising gradation between precedent and statute. Being an intellectual discipline, therefore, law cannot go beyond the philosophical and scientific attainments of the society that has produced it. The limitations of Mesopotamian science are well known. It was incapable of experiment or of formulating abstract categories.66 These limitations had their effect also in the sphere of law.67 Being reluctant to depart from present experience, cuneiform law was based essentially on precedent (for the most part, in fact, it was custom dressed up as precedent). Its legal science hesitantly expanded the scope of 66 See Bottéro 1987: 160-69. 67 Bottéro 1982: 425-35; Westbrook 1988a: 86-93.

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precedents by logical extrapolation, but this method could lead only to descriptive treatises that “discovered” the law, not to consciously new rules. These were the cuneiform law codes. Being unable to engage in speculative experiments, its legislation was equally tied to the past. The most radical of reforms acted, like judicial decisions, upon existing situations—they were retrospective. Measures for the future were confined to the mechanical: price-lists and administrative orders. Thus the system produced decrees, but not yet statutes. The transformation to true prospective legislation was achieved not in the cuneiform sphere but on its periphery. In the second millennium, bronze age Canaan and Mycenaean Greece were still a patchwork of minor provincial kingdoms on the fringe of high civilization, as represented by Egypt, the Hittites, and the Mesopotamian powers. By the early first millennium, however, these two areas had become the foci of new forms of literature and of thought: the prophets in Israel and the pre-Socratic philosophers in Greece. These changes in the intellectual climate find their reflection in the law. The earliest legal code in the Bible is the Covenant Code (Exod 21:122:19). Although it is impossible to date the code with any certainty, it can most probably be assigned to the early monarchy or even pre-monarchical period, and the 10th century is as reasonable a supposition as any.68 In content and form, the code is very closely related to the cuneiform codes of the second millennium69 and shares their limitations. It can be characterized as a provincial reflection of the cuneiform legal tradition. The book of Deuteronomy, on the other hand, can be dated with reasonable confidence to the 7th century. Its ideology is identifiable with the religious reforms of king Josiah, and it reflects the attitudes and concerns of the 8th and 7th century prophets.70 Its legal provisions use the same material as the Covenant Code and the cuneiform codes, but in its open advocacy of reform71 (albeit projected back to the time of Moses), it is the

68 See the discussion by Noth 1962: 173-75. 69 The parallels are summarized by Paul 1970: 102-105. Cf. Westbrook 1988d: 89-91. 70 It is generally associated with reforms in the reign of king Josiah (ca. 622 B.C.E.). For a summary of the research, see Sellin and Fohrer 1965: 182-92. 71 E.g., Deut 24:16, which inveighs against the system of vicarious revenge still operative in the Covenant Code (Exod 21:20-21). See Westbrook 1988d: 98-99.

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expression of a different intellectual climate. The new possibilities that result can be seen in the provisions of Deut 15:1-2: At the end of seven years you shall make a release. This is the matter of the release: every creditor shall release his loans that are owed him by his neighbor; he shall not claim them from his neighbor. Verses 9-10 continue: Beware lest there be a word of wickedness in your heart, saying, “The seventh year, the year of release, draws near,” and you look ill upon your poor brother and do not give him (a loan); and he calls to the Lord about you, and there is sin in you. You shall surely give to him and not think ill in giving, for because of that the LORD your God will bless you in all your deeds and enterprises. The content of the law is a debt-release decree, such as we have seen were common throughout the ancient Near East. But in this version there is a significant difference; the effect of the law is prospective, not retrospective. The release has been changed into a cyclical event, and the consequences thereof have been taken into consideration. The resultant appeal to the creditor’s conscience may not be very practica1,72 but the method of thinking reveals a fundamental innovation. It is speculation as to the future consequence of rules formulated to apply to a future event.73 At the same time in Athens,74 a law of Drakon presents a discussion of homicide. As we have seen, this subject is within the realm of the 72 The law was almost certainly utopian and never applied in practice. Westbrook 1971a and 1986c. 73 If Aristotle is to be believed, a similar process took place a little later in the case of Solon, whose most famous measure was his seisachtheia, a retrospective cancellation of debts and debt-slavery on the universal Near Eastern pattern, but who in addition, “made the people free both at the time and for the future by prohibiting loans secured on the person” (Aristotle, Ath. pol. 6.1). 74 This is not the forum in which to discuss the vexed question of cultural connections between the ancient Near East and pre-classical Greece. Suffice it to say that from the

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cuneiform law codes, rather than the edicts, except insofar as administrative aspects are concerned.75 Drakon’s law76 concentrates heavily on administrative matters such as court procedure,77 but there are also some provisions that appear to go to the substance of the law of homicide. In lines 13-19 the right to pardon a killer is assigned to various groups in order of priority. If correctly restored,78 the provision following reads (lines 19-20): “And let those who killed previously [be bound by] th[is ordinance].” It would seem that the concept of a point in time at which the law comes into effect, so lacking in the law codes, is applied in an area formerly reserved to the latter. Confirmation of the restoration and its interpretation comes from the Great Code of Gortyn, dated by scholars to the fifth century.79 The code is preserved almost in its entirety, and in its form and content the traditional pattern of the cuneiform law codes can be recognized: a series of casuistic

75

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Near Eastern perspective, early legal sources like Drakon’s law and the Great Code of Gortyn are immediately recognizable as the culmination of a two-thousand-year-old tradition, rather than creations ex nihilo as some modern classicists (e.g., Gagarin 1986: esp. 62) seem to assume. Cf. Telipinu 49: “And the matter of blood is as follows: he who does blood, it is what the owner of the blood (= avenging relative) says. If he says ‘Let him die!’ then let him die. If he says ‘Let him pay ransom!’ then let him pay ransom. But to the king, nothing.” The paragraph is a banal recapitulation of the basic principles of homicide law as known not only in Hatti but throughout the ancient Near East (see Westbrook 1988d: 45-55). Only the last sentence, in which the king foregoes some privilege, possibly the right to a share of the ransom, is the operative section. Edited by Stroud 1968. For the purposes of this argument it is assumed, with Stroud (1968: 60-64), that the extant text is an authentic copy of the original. In surveying the early Greek inscriptional evidence, Gagarin perceptively notes (1986: 81) that “procedural concerns predominate in laws enacted before 500 B.C.” The term “procedural” is perhaps too wide: the inscriptions discussed by Gagarin (1986: 81-96) concern the administration of justice—powers and duties of officials and courts—not, for example, how the parties are to conduct their case. IC 4.1-40 (see Gagarin 1986: 95) may be a price list. In other words, these early Greek laws reveal the same limitations in subject matter as the Near Eastern edicts. Stroud (1968) follows earlier scholars in restoring on the basis of Demosthenes, Contra Markartatum 43.57. Discussed by Willetts 1967: 8. As Willetts notes, however, the inscription could be sixth century, and the law of Crete seems to be more conservative than that of contemporary Athens.

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provisions deal mostly with property and family law, discussing the alternatives to each hypothetical situation in the systematic method of Mesopotamian science.80 In col. XI 19-23, however, after a series of provisions on adoption, the following is stated: And the rules shall be thus from the time this inscription is written, but as regards matters of previous date, in whatever way one holds (property), whether by adoption or from an adopted son, there shall still be no liability. As in the case of Drakon, there is a consciousness of a point at which the law comes into effect, but here the context is unambiguously a traditional law code and the subject matter substantive law. Just as the Deuteronomic law extended the scope of the edict, therefore, so these Greek laws extend the scope of the law code, by grafting onto it one of the central characteristics of the edict. It is this combination of the two ancient sources of law that turns the law code into a statute whose text may be cited as authoritative in a court of law. A further step, outside the scope of our inquiry, was still needed to achieve legislation in the modern sense, namely the analytical method of classical Greek philosophy, which enabled lawmakers to express the rules in abstract general categories and to define terms.81 These early Greek and Hebrew statutes therefore represent an intermediate stage, and in some respects a direct link, between the cuneiform and classical systems of law. In conclusion, it should be stressed that the importance of the cuneiform law codes must not be underestimated. They represent a considerable intellectual achievement, and as such made a vital contribution to the process that led to the law codes of late antiquity and thence to modern western statutes. At the same time, if we are to interpret their provisions correctly, their limitations should be recognized. The most salient of these is that they were not normative legislation.

80 In fact, as Ducos points out, it is slightly more sophisticated in its method, attempting to provide a general rule followed by a series of particular cases (1978: 67-68). 81 See Westbrook 1988a: 119-21. On the transformation in general, see Lloyd 1970: 115.

4 What Is the Covenant Code? Abstract Many biblical scholars tend to see the Covenant Code as the result of a process of literary revision and editing. This process, they say, corresponds to the development of law in ancient Israel from a primitive, family-based structure to a more sophisticated legal system in the monarchical period. This approach, however, fails to account for the literary-legal tradition in which the Covenant Code finds its heritage—namely, the cuneiform law-code tradition. When seen within that context, the ostensible discrepancies within the code do not require the kinds of source- and form-critical explanations previously offered. Rather, the Covenant Code presents itself as a coherent document, which scholars should expect to contain clear and understandable laws.


I

t has long been recognized that the “Book of the Covenant” (Exod 20:22-23:19) forms a separate entity that has been inserted into the surrounding narrative. While the whole entity consists of normative provisions, it is easy to recognize a further section within it which may more properly be described as a law code, in that its norms are justiciable in a human (as opposed to divine) court and carry sanctions enforceable by such a court. The section in question is usually taken to extend from Exod 21:1 to 22:16, but I would include the provisions of 22:17-19 since, although religious in character, they are likewise amenable to normal human jurisdiction, with corresponding sanctions. It is this section, the “Covenant Code” strictly so called, that is the subject of this study, although many of
Originally published in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development (ed. B. M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994 [repr. Sheffield: Sheffield Phoenix Press, 2006]), 13-34. Copyright © Sheffield Phoenix Press. Used by permission.

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the opinions that will be considered have been expressed in terms of the wider entity. Legal interpretation of the code’s provisions is fraught with difficulties. Contradictions appear to abound between the various laws and even within them, while abrupt changes of form and syntax seem to break the thread of discourse. Even distinctions made by the laws themselves are hard to appreciate: why should the penalty for theft of an animal vary according to whether the thief has it alive in his possession or has slaughtered or sold it? Traditional commentaries employed numerous devices and rationalizations to arrive at a logical and systematic legal corpus; but the consensus of modern scholars is that the explanation for these discrepancies is historical. They are the result of a long and complex legislative process whereby the original text suffered repeated amendments and accretions in order to take into account developments in the law. Numerous studies of both the code as a whole and of individual provisions have adopted this approach, which may be illustrated by the following examples. Biblical scholars have, inevitably, applied to the Covenant Code the methods developed with respect to other genres of biblical literature such as psalms and narratives, in particular that of form criticism.1 The fundamental study remains that of Alt, who distinguished between two types of laws on the basis of form: casuistic and apodictic.2 The former, characterized by an if-clause (“If men fight . . .”) were taken to derive from the cuneiform law code tradition, via putative Canaanite codes, whereas the latter, characterized by concise commands (“Whosoever strikes a man and he dies shall be put to death”), were the indigenous product of ancient Israel. The two types of laws differed not only as to source but as to character, casuistic laws being dry, practical, and secular, apodictic laws being emotional imperatives dealing with religious and moral issues. More important still is their difference in substance. For example, the casuistic law of homicide took into account the culprit’s intention; the apodictic law imposed talionic punishment. Alt’s claim of Israelite uniqueness for apodictic law has not been universally accepted, but his basic distinction has, together with the notion 1 See Baentsch 1892; Jepsen 1927; Jirku 1927. 2 Alt 1934.

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that the two forms are somehow different in source and content.3 Furthermore, the existence in the Covenant Code of both forms closely intermingled and sharing features that were supposedly unique to one or the other (as, for example, the use of YHWH in a casuistic law in Exod 22:10) obliged Alt to assume a complex process of redactional fusion, with secondary insertions and with deletions.4 Again, this “patchwork quilt” image of the law code has remained a necessary element in the historical explanation of its provisions. Thus Otto in a recent monograph attributes to the two forms different origins within the internal history of Israelite law.5 Apodictic law arises from the jurisdiction of the paterfamilias within the family or clan. He has power to punish individual members, if necessary with the death penalty. The apodictic form, then, reflects the curt commands of the paterfamilias. Casuistic law, on the other hand, arose from disputes between families within a tribe. It was not concerned with individuals although the dispute may have been triggered by individuals. Jurisdiction was that of the local court, which acted as an arbitrator. It had no coercive powers, since settlement of the dispute ultimately depended on the agreement of the two families. Accordingly, all judgments were compensatory in nature, with the exception of blood vengeance, where the parties took justice into their own hands. The casuistic form, then, reflects a series of precedents as to when compensation is appropriate. With the advent of the monarchy, society became more complex, and according to Otto, this led to two developments. Patriarchal jurisdiction was taken over by the courts, which thereby developed a casuistic criminal law. The law of theft, for example, moved from simple compensation to two-fold to four- and five-fold payment as the courts’ jurisdiction became more penal. Secondly, casuistic law, which formerly had dealt with disputes between families on an equal footing, now had to deal with vertical disputes between rich and poor, which it achieved by developing a social law to protect the latter. At the end of the process, therefore, there existed several independent bodies of law—casuistic civil law, casuistic criminal law, apodictic 3 See, e.g., T. Meek in ANET3 183 n. 24; Mendenhall 1954: 30; Williams 1964: 484-89. 4 Alt 1934 (1959): 294, 302-11. 5 Otto 1988c; see also Otto 1988a.

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criminal law, and casuistic social law—which came together under the jurisdiction of the local court. Their ultimate fusion is reflected in the Covenant Code, which interweaves these various sources. For example, the group of laws from Exod 21:33 to 22:14, which all contain the phrase “he shall pay” (y all m), can be seen to alternate between simple compensation and multiple compensation (= penalty).6 An even more complex scheme of editing is proposed by Otto for 21:18-32.7 Its core comprises two laws concerning a fight (vv. 18-19 and vv. 22-25). Both originally ended with payment, reflecting the early casuistic law’s function as a compromise settlement. The interpretation of “life for life” in v. 23, however, gave v. 22 a new role: it introduced the death penalty into casuistic law, giving the local court the power of punishment. The interpolation of rules on the killing and the wounding of slaves (vv. 20-21 and vv. 26-27 respectively) after the two core laws added the dimension of social law. The interpolation of the talionic wounding rules (vv. 24-25) replaced compensation with punishment in all but a few special cases such as v. 18. Other scholars have drawn different conclusions from the logic of legal development. In considering the theft provisions of Exod 21:37-22:3, Daube points out that the passage comprises three rules which are not in their logical order: (a) the thief who slaughters and sells, (b) the right to kill a thief breaking in, (c) the thief who has not yet slaughtered and sold.8 The logical order would have been for (c) to precede (b). The logical order was not followed, however, because originally the law consisted of the two provisions: (a) and (b), while (c) is a later amendment. It was appended and not inserted, as logic would require, because the law was too well known in its traditional order. The reason for adding the later provision, according to Daube, was a development in the law of evidence. The original law contained a crude, objective test—theft was not proven until the stolen object had been used. Later, a more sophisticated test developed whereby the subjective intentions of the thief were considered. If it could be ascertained that he had the intention to misappropriate, then possession alone would be sufficient to establish theft. 6 Otto 1988c: 12-14. 7 Otto 1988c: 28-30. 8 Daube 1947: 74-101.

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Similarly, Jackson attributes various features of the law concerning a pregnant woman to the incorporation by editors of reforms in the general law.9 Thus the singular form “you shall give” in v. 23 was interpolated to restrict liability to a single individual, w ntan biplilîm in v. 22 was interpolated to restrict the husband’s claim by assessors, and, most subtly of all, the talionic wounding provisions in vv. 24-25 were added to change the context of the word ’sôn and thus shift its meaning from the death of the fetus to the death of the mother, without changing the original wording. Finally, in his recent monograph dedicated to the Book of the Covenant, Schwienhorst-Schönberger proposes for the Covenant Code the model of a pristine casuistic code, the provisions of which underwent expansion at three stages by different redactors, the first being secular, the second religious, and the third Deuteronomistic.10 Each stage reflects legal and social developments but is achieved only by interpolation in the previous text, not by amendment. Thus, for example, in the deposit law (22:6-14), the pristine provision dealt only with injury or death to an ass, ox, or sheep entrusted or loaned (vv. 9, 10, 13).11 The first redactor added the question of theft of goods deposited and a divine verdict procedure that included the aforementioned animals (vv. 6-8), while in v. 11 he covered for both categories the unresolved case of the depositee’s responsibility where he is not the thief. The second redactor replaced the divine verdict with the YHWH oath (vv. 9-10), adding (inter alia) the generalizing words “any animal” so as to change the meaning of v. 8 from divine verdict to oath by giving it a new context. As with Jackson, Schwienhorst-Schönberger ascribes great subtlety to the biblical redactors. The above authors and the many others who espouse a historical explanation of the Covenant Code differ greatly as to the details of historical development and its reflection in the text. Their method, however, is uniform. It is based on no empirical evidence but upon identification of allusions in the text itself by the application to it of certain basic premises. Those premises are difficult to formulate because they are more usually

9 Jackson 1975: 75-107. 10 Schwienhorst-Schönberger 1990: 234-38. 11 Schwienhorst-Schönberger 1990: 194-211.

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assumed than stated, and they are not shared to the same degree by all scholars. I would suggest that the following three represent the widest consensus: 1. The Israelite legal system underwent radical development from “primitive” law to a relatively sophisticated model. 2. The process is visible in the Covenant Code because the forms of its provisions are indicative of their content and/or source. 3. The process is also visible because of the manner of the code’s editing. The pristine text, although it reflected primitive law, was clear and logical. The present text is neither, because the radicalism of its redactors in matters of content was matched by their conservatism in matters of form. It was possible to add to, or rearrange, existing laws, but difficult to delete any part of their text, and simply to redraft them was out of the question. Let us now consider whether, in the light of evidence available, these premises are justified.

Primitive Law and Development Legal historians of the nineteenth century attributed various “primitive” features to early law.12 The most salient of those features were: a) law exists between families, clans or tribes, but not between individuals; b) redress for individual wrongs took the form of feud between the groups to which the culprit and victim belonged; c) the courts acted as arbitrators between such groups, seeking to find a just settlement, but without the power necessary to enforce their judgments; d) liability was strict, with no consideration of the culprit’s intentions (so-called Erfolgshaftung). 12 Maine 1861.

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Propositions of this kind constantly recur in scholars’ analyses of the Covenant Code, without discussion of the evidence for them; they are taken as axiomatic. It is not my purpose to enter into a general discussion of their validity, but merely to question whether the picture of early law that they present is at all applicable to the Israelite legal system, at least within the termini for composition of the Covenant Code. Thanks to cuneiform records, evidence for the history of law in the ancient Near East now extends back to the early third millennium. The very earliest records, however, already reveal a highly organized legal system, whose courts have full coercive power and whose individuals have the capacity to make contracts. Nor are third millennium sources ignorant of the significance of intention in determining liability.13 As is well known, the Sumero-Akkadian civilization that produced this legal system spread throughout Western Asia through the medium of cuneiform writing. Its influence is already attested in Syria in the third millennium, at Ebla, and legal documents drafted in Akkadian from Alalakh and Hazor show that not merely the writing but the legal culture itself was established in SyriaPalestine by the early second millennium.14 The implications for Israelite law are clear. Any primitive stage must either have predated the second millennium (at the very least) or reflect early Israel’s total isolation from the surrounding societies. The first is a chronological impossibility, and the second, inherently improbable, is all the more so in the context of the Covenant Code. Some earlier commentators such as Morgenstern sought to deny any connection between the Covenant Code and the cuneiform law codes, but their position has become untenable in view of the accumulation of parallels.15 More than half of the Covenant Code’s provisions have some parallel in one or more of the cuneiform codes, whether in the form of the same problem addressed or distinction applied, a similar rule, or an identical rule.16 It is difficult to see how provisions that are so closely associated

13 CU 7 (edited by Yildiz 1981: 92, 96). The adulterer’s ignorance of the woman’s married status relieves him of liability. 14 Wiseman 1953; Hallo and Tadmor 1977. 15 Morgenstern 1930: 68 n. 70. 16 Paul 1970: 43-105.

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with an outside source can at the same time be the product of internal development from an earlier primitive version. The difficulty is seen by Otto, who by way of answer suggests that the cuneiform element in the Covenant Code is due not so much to direct influence as to the fact that Israelite law was part of a common legal culture of the ancient Near East. That culture merely forms the framework within which the Israelite and other legal systems develop.17 Otto’s answer raises the whole question of legal development in ancient Near Eastern law. At first sight, it may seem obvious to assume that legal systems would change and develop considerably over hundreds, indeed thousands, of years. That, however, is an attitude derived from our own culture, where constant changes in technology, social structure, and ideology raise concomitant demands for reform of the law, demands which are met by the investment of considerable intellectual effort on the part of trained specialists. The most striking feature of the cuneiform legal material, on the other hand, is its static nature. The basic pattern of contractual transactions found in Sumerian legal documents of the third millennium survives, differences of detail notwithstanding, throughout the cuneiform record. 18 Some contractual terms, indeed, survive even longer, passing into Aramaic and Demotic documents.19 Continuity is no less evident in the law codes, where the same rules, tests, and distinctions recur in codes separated by hundreds of years. Of course, there are also discrepancies between the codes, but discrepancies do not necessarily betoken a significant development in the law. It should be remembered firstly that the codes do not give anything approaching a complete account of their legal system or even of any given area of law. It is dangerous, therefore, to argue from the silence of a code on a particular point of law for its absence from that legal system. Secondly, the circumstances of two cases are seldom the same. In applying rules to an amorphous set of facts, a court will have any number of

17 Otto 1988a: 366-67. 18 See SRU 43 (24th century); CT 8 22c (18th century; = Schorr 1913: no. 79); Petschow MB Rechtsurkunden 1 (14th century); SAA 6 98 (7th century); San Nicolò-Petschow Bab. Rechtsurkunden 17 (6th century). 19 Muffs 1969.

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distinctions to make, as to status, wealth, intention, causation, remoteness of damage, etc. Casuistic codes cannot put into their paradigmatic cases every possible circumstance and will inevitably tend either to blur all distinctions if they are too general or to emphasize one distinction to the neglect of others if they are more specific. Patterns of emphasis may be seen in certain codes: between classes of society in Codex Hammurabi, between classes of animal in the Hittite Laws. Rudiments of the same distinctions can be seen in all the codes; differences between them are a matter of degree of emphasis. Thirdly, differences between the codes may be more apparent than real. As an example I would cite the difference between physical and pecuniary punishments, which has long been seen as signaling the dividing line between primitive and developed law. The earlier view was that a change from physical to pecuniary punishments marked the crucial development from feud to law.20 It was supported by the appearance of the former in Codex Hammurabi and the latter in the Hittite Laws. It was challenged when earlier codes than Codex Hammurabi were discovered, Codex Ur-Namma and Codex Eshnunna, which contained only pecuniary punishments. The development was then said to be from civil law (pecuniary) to criminal law (physical).21 There remained, however, the question of what line of development was followed. A general development of ancient Near Eastern culture could not apply because the movement was not chronological—the Hittites retained the “older” system of civil law. For the same reason, there could be no question of a slow and imperceptible development (as opposed to deliberate reform). In any case, the Hittites undoubtedly knew the text of Codex Hammurabi, and Codex Eshnunna predates Codex Hammurabi by about forty years only.22 The answer was to make value judgments upon the civilizations in question: the Sumerians, Eshnunnans, and Hittites were more “primitive” than the Babylonians or the Assyrians.23 Such judgments, however, were based solely on this one difference in their respective law codes; our knowledge of those cultures would demand no such conclusion. 20 21 22 23

Driver and Miles 1952: 501-502. Diamond 1957. Cardascia 1960. Diamond 1957: 154-55. Cf. Finkelstein 1961: 96-99.

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Imposing a developmental model on apparent differences between law codes entails assumptions about the surrounding culture and society that are not warranted by the empirical evidence. There is empirical evidence, however, that (in the guise of revenge and ransom) physical and pecuniary punishments could be two sides of the same coin, and on this basis we have argued elsewhere that the societies in question all enjoyed the same system of punishment throughout.24 Where they differed was in the exact limits to be imposed on revenge and ransom—as represented in the codes by physical and pecuniary punishments respectively—and whether the latter was to take precedence over the former in the particular case. No evolution was involved, therefore, but an exercise of discretion that could vary from case to case, from court to court, and from system to system. Fourthly, consideration must be given to the nature of the law codes themselves. If they were legislation in the modern sense, then they could be expected to furnish reforms as part of their intrinsic purpose. It has been persuasively argued, however, by Kraus and others that the law codes were essentially academic documents, which may accurately have described the law but did not prescribe it.25 They were, therefore, conduits of tradition rather than of change. Furthermore, with one important exception (the Hittite laws, to be discussed below), there is no consciousness of reform in the law codes. The kings who are their supposed authors do not boast of changes made in the system by the codes, nor is there any indication of their rules being valid from a particular point in time. The codes have a timeless quality, as perhaps befits an academic document. External evidence likewise gives no hint of awareness of the code’s impact. The often monumental reforms posited by scholars find no echo in inscriptions, letters, or legal and administrative documents. Given the fragmentary state of textual evidence, the preceding statement might be considered an unacceptable argument from silence were it not for the fact that we have ample evidence that a different genre of legal text was consciously seen as reforming the law. The royal edicts both proclaimed themselves as reforms, changing legal rules from a particular point in time, and were regarded in contemporary documents as having 24 Westbrook 1988d: 39-77. 25 Kraus 1960; Bottéro 1982.

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such an impact, with corresponding reactions from persons affected by them.26 Such edicts, however, were remarkable for the narrowness of their scope. Only three categories of reform are recorded in them: retrospective cancellation of debts, reorganization of the royal administration, and the fixing of prices (which in this context also means pecuniary penalties, including fixed limits on ransom). Any reforms, therefore, that are attributed to differences between law codes will only be credible if they fall within those three categories, pending further empirical evidence to the contrary. This hypothesis as to the limits of reform can be tested by reference to the Hittite Laws, which contain two special features. Firstly, unlike the other codes, they do exhibit some consciousness of reform. The most common expression thereof is the much-repeated phrase—”formerly they gave x shekels; now he shall give y shekels”—in respect of payments by way of penalty.27 It thus falls within the category of price-fixing and may possibly be recording the provision of an edict or edicts to that effect, especially in view of the other expression of reform, which actually narrates the legislative history of the measure.28 In paragraph 55 we are told that the king’s father in the assembly had altered the status of certain feudal tenants in response to their petition. This reform falls squarely within the category of administrative reorganization. Secondly, we possess one tablet of the law code (KBo VI 4) that, by its language, appears to be later than the version recorded in the other copies. It contains numerous differences from the main version, and the

26 See the literature cited in Westbrook 1989a: 214-16. 27 See paragraph 9, where the king also relinquishes his share of the payment. Cf. the Edict of Uru-inimgina (Sollberger Corpus Ukg. 6; transl. in Cooper 1986: no. La 9.3). 28 Paragraph 92 replaces revenge for theft of bee-hives (by stinging) with a fixed ransom. This combines price-fixing with the court’s function of setting a limit on revenge and ransom, which may sometimes lead it to give fixed ransom precedence over revenge. On the other hand, §166 replaces a ceremony whereby a man and oxen are killed with a sacrifice of sheep as substitutes. This would appear to be a purification ritual, unconnected with revenge, and the reform is therefore of a religious nature (cf. §196 and §199). The scope of reform in the religious sphere is a question that requires separate study. It should be noted, however, that the possibility of substitution of an animal for the culprit in the sacrifice was an integral part of the system, as attested in the biblical scapegoat ritual and even in early rabbinic sources. See Segal 1989: 107-18.

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question thus arises whether those differences represent substantive reforms.29 The major difference again lies in the scale of payments by way of penalty. In some cases, the medium of payment has also been changed— from slaves or land into silver—but that is a matter of accountancy rather than law, since it must always have been possible to pay in silver as well as in kind. Where the amount of silver payable has been changed, however, we might seem to be in the presence of a substantive reform. Nonetheless, it is no more than price-fixing. The second difference takes the form of additional circumstances not covered by the original protasis. They consist of variations, such as in the type of property lost,30 the type of tax payable,31 the type of victim,32 or the type of land on which the offense was committed,33 or of distinctions, such as those between provocation and negligence34 or between temporary and disabling injury.35 These variations and distinctions are not reforms at all, but scholarly refinement, using the characteristic academic method of the codes, of extrapolating variants from the original cases. Some of these variants, indeed, are themselves found elsewhere in the earlier version. The third difference consists of omissions. Such is the fate of the phrase parnassea suwaizzi (“he shall push/peep(?) to his house”), which occurs frequently in the apodosis of paragraphs in the earlier version, but only once in the later version.36 Both the meaning of the phrase, however,

29 In an earlier study, following (uncritically) the opinion of Goetze (1957: 110-11), I did indeed assume that the references to reduction of penalties in the Hittite Laws and the existence of KBo VI 4 in particular indicated substantive law reforms (Westbrook 1985a: 255-56). While rejecting that assumption here, I retain the view espoused by my earlier study that the law codes could have a practical application. I would only emphasize that they functioned as consultative documents rather than authoritative legislation. For the latter distinction, see Bottéro 1982: 435-38 and Westbrook 1989a: 202. 30 §XXXV (= §45 of the older version); cf. §III (= §5). 31 §XXXVII (= §47). 32 §IX (= §10). 33 §IV (= §6). 34 §III (= §5), §§V-VII (= §§7-8). 35 §§X-XI (= §§11-12). 36 §XII (= §13).

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and the rationale for its being appended to specific laws remain obscure.37 No conclusions can therefore be drawn as to the legal import of its omission from later parallels. In two instances an alternative circumstance is omitted from the protasis, thereby eliminating a distinction made by the earlier version. In the first instance, the case of a merchant killed abroad (as opposed to one killed in Hatti),38 it is of no legal significance, but the second, concerning the month of pregnancy in which a miscarriage was caused, might signal a change in the law.39 Since the sole consequence of the distinction, however, lay in the amount payable by way of penalty, we are once more in the realm of price-fixing. The fourth difference consists in additional legal consequences. Thus where the earlier version mentions only that the offender is deemed a thief, the later version adds the penalty applicable.40 For all we know, the same penalty may have been applicable in the earlier version, and if not, it is again a question of price-fixing. In the second example of this type, the king is granted a discretion over the amount of a certain type of feudal due.41 If this were an innovation, then it falls within the sphere of administrative reform. In summary, the Hittite Laws, which afford us a unique diachronic view of a cuneiform legal system, provide little evidence of substantive change, and such evidence as they do provide lies within the narrow categories of reform found in royal edicts. This image of a static legal system should be less surprising if regard is had for the nature of the society that produced it. From the mid-third millennium to the end of the Bronze Age, the Near East saw no major advance in technology nor any radical change in social or political structure. Intellectual expression was dominated by Mesopotamian “science,” a form of logic severely handicapped by inability to define terms, create general 37 Haase suggests that the phrase gives the judgment creditor the right to “look into the house” of the judgment debtor, i.e., to distrain upon his property (1980: 93-98). This theory does not explain, however, why a procedural facility, which should in principle be available to any judgment creditor, is expressly mentioned in only a limited number of delicts, nor why any law reform should wish to remove it in some, but not all, cases. 38 §III (= §5). 39 §§XVI-XVII (= §§17-18). 40 §XXXV (= §45). 41 §XXXIXb (= §47b).

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categories, or reason vertically from the general to the particular.42 A legal system cannot be more advanced than its social and intellectual environment: the social environment was hostile to change, while the intellectual environment lacked the tools to give legal expression to anything more than superficial reforms. Beginning in the seventh century, the intellectual revolution documented in the Greek sources led to sweeping changes in the way that law was conceived and ultimately provided it with the intellectual tools for reforms to match the radical changes in social and political structures. The system that emerged remains the norm for us today. Its Near Eastern predecessor, on the other hand, was already a mature system when it first becomes accessible to us in Sumerian sources of the third millennium. The intellectual revolution that produced it lies further back in time, at a turning-point about which we can only speculate, whether it was the smelting of bronze, urbanization, or even the agricultural revolution. The common legal culture of the ancient Near East would not, then, have provided a framework for legal development in the Covenant Code. The later biblical codes—the Deuteronomic and Priestly codes—share something of the intellectual ferment of contemporary Greek sources and thus some taste also of their new legal conceptions. The Covenant Code, on the other hand, although it cannot be dated with any confidence, looks back to the cuneiform codes of the second and third millennia. It is in the light of that long and stable tradition that the two remaining premises as to its form and composition are to be judged.

Forms in the Covenant Code The predominant form in the Covenant Code is casuistic, as is characteristic also of its cuneiform predecessors. Seven laws are in apodictic form, grouped in two blocks: 21:12, 15-17, and 22:17-19. The question that concerns us is whether the difference in form is of legal significance, either because the laws derive from a different jurisdiction

42 For the application of Mesopotamian science to law, see Bottéro 1982: 425-35; and Westbrook 1988d: 2-5.

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(foreign, patriarchal, sacral, etc.) or because they represent different stages of legal development. It has been pointed out by scholars that apodictic forms, as defined by Alt, do occur in the cuneiform codes, albeit rarely.43 Alt’s hypothesis of a purely Israelite origin for apodictic law cannot, therefore, stand. Furthermore, it is hard to discern any pattern in the isolated instances of apodictic form in the cuneiform codes. In Codex Hammurabi, it occurs in paragraphs 36-40, all of which concern limitations on the rights of tenants over their feudal holdings. It might, therefore, be argued that its use is connected with its original function—administrative orders from the palace concerning its feudal tenants, especially since the only apodictic form in the Hittite Laws (paragraph 56) also concerns feudal tenants.44 On the other hand, there are many similar provisions in the two codes which concern feudal tenants but are drafted casuistically. Codex Eshnunna, paragraphs 51-52, concerning slaves entering and leaving the city, might have some connection with the city administration, but no such connection is apparent in paragraphs 15-16, which place restrictions on the commercial activities of slaves and sons. The same can be said of the only apodictic provision in the Middle Assyrian Laws (A 40), listing the classes of woman who must or must not veil themselves in public. In sum, there is no obvious common factor in these diverse provisions in source or content and certainly no indication that they might represent types of jurisdiction or levels of legal development. If the apodictic forms furnish no special rationale for their occasional use in the law codes, perhaps our inquiry should be in the opposite direction, namely as to why the casuistic form came to be the dominant form of the codes. It is not, after all, a natural form for a source of law. Judgments are based on actual, not hypothetical, facts and are rendered with reference to the parties in the case, in the form of a specific order. Such is the case, for example, in the various literary accounts of trials from Nippur, which, it has been suggested, may be sources for the law codes.45 Royal decrees

43 See n. 3 above. 44 Cf. Yaron 1988b: 108. Mainly on the basis of form, Yaron divides the provisions of Codex Eshnunna into two groups: those derived from a decree and those based on precedent, while admitting the speculative character of the enterprise (1988b: 106-13). 45 Locher 1986: 93-109.

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would also tend to be in the form of direct, if more general, orders. That is indeed the dominant form in administrative and debt-release edicts and in instructions to officials.46 Price-fixing, on the other hand, would simply be by lists of the goods or services and their corresponding price, usually expressed as a statement of fact. Apart from the latter then, all sources of law would tend to be expressed in some kind of apodictic form. The casuistic form was the quintessential “scientific” type of Mesopotamian literature, as attested in the omen and medical texts. It was the means whereby raw data could be cast into a generalized, objective form, stripped of any connections with circumstances irrelevant to their universal application. It was the nearest Mesopotamian science could come to expressing principles. The casuistic form, therefore, far from reflecting any particular source of law, was itself a process of editing, creating a uniform body of rules indifferent to their origins. It would be naive, however, to conclude that a non-casuistic form always betokens an original legal source. The bulk of law in ancient Near Eastern societies was traditional law handed down from time immemorial. It was, however, regarded as having come from specific judgments, orders or the like, an assumption that could be expressed by giving a traditional rule the form of one of those sources.47 This is why the apodictic rules of the cuneiform codes cannot be assigned to legal categories. The choice of form for the individual paragraphs of what was essentially a literary document, belonging (as we have argued above) to the genre “academic treatise,” was not a legal one but depended on other factors, perhaps pedagogical or rhetorical. The casuistic form, for all its scientific credentials, was not always the ideal vehicle for the latter purposes, nor did all the cuneiform codes share the same desire for uniformity. Codex Hammurabi is the most extreme, placing even price lists in casuistic form, although the result is clumsy and unsuitable (§§268-277), while Codex Eshnunna (§§14, 7-8, 10-11, 14) and the Hittite Laws (§§178-185) present their tariffs as bald statements. At the other end of the spectrum, Codex Eshnunna pre-

46 See, e.g., the Edict of Ammi-aduqa (edition in Kraus 1984: 168-83) and the Hittite Instructions to the Commander of the Border Guards (edition in von Schuler 1957: 4152). 47 See Codex Hammurabi, epilogue, col. XLVII, lines 1-5; and compare Exod 21:1 itself, which attributes the code to judgments (mipîm) given by God.

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sents a mixture of styles, which may more accurately represent the “peripheral” tradition to which the Covenant Code belongs. In contrast to the “core” tradition of southern Mesopotamia, which is a direct heir to Sumerian civilization, the Akkadian-speaking areas of northern Mesopotamia share with the rest of the fertile crescent, where cuneiform learning was acquired primarily through the medium of Akkadian (Susa, Nuzi, Hatti, Emar, Ugarit, Hazor, etc.), a tradition of legal drafting that is less austere and more heterogeneous.48 Turning to the apodictic laws of the Covenant Code, we see that they are no less diverse in content than their cuneiform counterparts, covering murder, striking or cursing parents, kidnapping, witchcraft, bestiality, and heretical sacrifice. The only unifying factor is that they are all very serious offenses, requiring the death penalty, but then so does the casuistically formulated case of the goring ox (Exod 21:29). Two of the offenses involve inner-family relations, which is a slim basis on which to conclude, as Otto does, that the apodictic form had its origins in inner-family jurisdiction.49 The first group comprises private delicts involving a victim, while the second consists of victimless crimes, in which the public interest is engaged. A further test of their unique status is whether these provisions have an equivalent in the cuneiform codes, and if so, whether those equivalents form any special category. Two laws, cursing parents and heretical sacrifice, have no equivalent, which might give them special status were it not for the other five. The homicide rule of Exod 21:12, “He who strikes a man and he dies shall be put to death,” is directly paralleled by the casuistically formulated paragraph 1 of Codex Ur-Namma: “If a man kills, that man shall be put to death.”50 The Sumerian law is couched in the same stark tones as the biblical law, with no mention of the question of intention—which is, I hasten to add, no evidence that intention was not taken into consideration.51 Much has been made of the fact that the question of intention in the biblical law

48 49 50 51

See Muffs 1969: 17-23. Otto 1988c: 31-33. Edition in Yildiz 1981: 91, 95. Codex Ur-Namma is particularly laconic, leaving out details that are supplied by parallels from later laws. For an example, see Westbrook 1990b: 550.

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is couched in casuistic form immediately following upon the above apodictic rule, thereby opening the door to a distinction between the “primitive” strict liability of the apodictic law and the more enlightened casuistic law.52 I would view the proposed distinction with skepticism, in the light of the casuistic cuneiform law above and in the light of paragraph 40 of Tablet A of the Middle Assyrian Laws. The latter begins with a series of apodictic commands concerning the veiling of women, which reveal themselves, however, to be no more than the necessary preamble to the casuistic part of the law, which lays down punishments for men who fail to report infringements of the veiling regulations. In the same way, the apodictic rule of Exod 21:12 can be seen as the necessary preamble to the casuistic rules of vv. 13-14, which distinguish between intentional and non-intentional homicide. The cuneiform codes likewise furnish casuistic parallels for kidnapping (Codex Hammurabi 14: death), striking a parent (Codex Hammurabi 195: cut off hand), witchcraft (Middle Assyrian Laws A 47: death), and bestiality (Hittite Laws 187-188, 199-200: death or no liability, depending on animal). There is nothing in these parallels to suggest that they come from a special source or contain a special legal content. I conclude that the same must apply to the biblical provisions. As we have seen with the apodictic rules of the cuneiform codes, the reason for their formulation does not lie with legal considerations. Depending on the literary tradition, the same rule may be drafted casuistically, apodictically, or in some other fashion.

The Text of the Covenant Code The idea of a conservative editing of the text, by exclusion, addition, and interpolation in order to make it comply with changes in the law has one certain historical model, indeed, a model of monumental proportions. The Digest of Justinian, from the sixth century C.E ., one of the greatest achievements in the history of law, was just such a compilation. At that time, the writings of classical jurists from some three centuries earlier were cited in court as binding authority, which led to great confusion and incon52 E.g., Noth 1962: 180; Childs 1974: 470.

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venience, since, on the one hand, much was no longer applicable to the conditions of the Byzantine empire and, on the other, they contained innumerable disputes and contradictions. Several committees were, therefore, charged with excerpting from those writings such material as could produce a relevant and coherent body of law. Under the guiding hand of a law professor, Tribonian, they completed the massive task in a mere three years but only at the cost of considerable tampering with their sources. Each excerpt was cited by author, work, chapter, and verse, but by editing, in particular by interpolation, the passage cited was brought into line with contemporary law. The process inevitably left inconsistencies in style and content which can be identified by modern scholars. In the early years after the discovery of Codex Hammurabi, king Hammurabi was indeed regarded by some scholars as an early Justinian. An eminent legal historian schooled in Roman law, P. Koschaker, attempted to apply the techniques of that field to the cuneiform code. His approach lacked any historical justification, however; the peculiar circumstances of the late Roman Empire, its legal system, and its intellectual climate that led to the compiling of the Digest could not be reproduced in the second millennium B.C.E. Instead, apparent inconsistencies in the provisions of the cuneiform codes are progressively being dissipated through our growing understanding of their linguistic, cultural, and social background, due not least to the continuous stream of newly discovered cuneiform documents.53 By the same token, it is inappropriate and anachronistic to apply, consciously or unconsciously, the model of Justinian’s Digest to the editing of 53 See Codex Hammurabi, paragraph 164, which Koschaker suggested was an interpolation because of its clumsy and over-elaborate discussion of a set-off mechanism (1917: 87 n. 6, 187-88). It was subsequently discovered, however, that the paragraph was in fact taking into consideration a certain marriage custom, in the light of which (and with a different interpretation of the syntax) the paragraph was well formulated and perfectly appropriate; for discussion and references, see Yaron 1988b: 176-79. The one case where Koschaker’s approach is generally thought to have been vindicated is Codex Hammurabi, paragraph 125, where his postulated development of the law is said to have been confirmed by the subsequent discovery of Codex Eshnunna, paragraphs 36-37, containing an earlier, more “primitive” rule (Koschaker 1917: 2633; see also Goetze 1956: 104; Yaron 1988b: 250-51; Otto 1988b: 4-16). All such comparisons, however, rely on translations that disregard certain difficulties in the text. See Westbrook 1994c.

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the Covenant Code. The Bible has no background documentation like the cuneiform codes, but the Covenant Code has a ready substitute for such documentation in the cuneiform codes themselves, since it belongs to the same literary genre and the same intellectual tradition as the latter. As we have seen, one of the cuneiform codes, HL, has at least two chronologically separate versions and can therefore provide explicit evidence of the process of editing that may be expected in texts of this genre.54 While the two versions were seen to differ but little in substance, the same is not so for their form, which presents many variants. A good proportion may be dismissed as deriving from the peculiarities of the cuneiform script (variant spellings, use of Sumerograms) or of the Hittite language (use of active instead of medio-passive),55 but some changes in language are more radical. For example, the earliest version’s “strikes and wounds” (hunikzi . . . istarninkzi, §10) is replaced by “injures the head” (SAG.DU hapallasai, §IX). Of relevance here is Hoffner’s discussion of a fragment of a version still earlier than the main text (§§164-166), written in the Old Ductus.56 Although the two versions contain the same law, Hoffner points to considerable differences of language, which he ascribes to a desire by the later scribe to modernize archaic expressions. A more serious reason for change is provided by §IV of the later version, which extends the circumstances discussed to cover a murder committed on land outside the city. Accordingly the expression “in another city” (takiya URUri) in the earlier version (§6) is changed to “in another field and meadow” (damedani A.À A.GÀR). Finally a most telling change of style occurs between §48 and §XL—from apodictic to casuistic. The important point about these changes, and the much more frequent additions and omissions in the later text, is that they are achieved without disrupting the logic of the provision or the thread of their discourse in any way. Were there no extant earlier version of the text, one would scarcely be aware from the later versions that it had ever existed, the presence of scattered archaisms in the language being the only indication. It would

54 Among biblical scholars, only Schwienhorst-Schönberger has noticed this possibility. He employs it in a single, isolated instance, without considering the wider implications (1990: 121). 55 §§15, 16 = §§XIV, XV. 56 Hoffner 1981: 206-209.

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certainly be impossible to reconstruct anything of the earlier version. The assumption, therefore, that the process of editing the Covenant Code left tell-tale traces in the form of inconsistencies can only be justified by reference to a model far removed from it intellectually and culturally, while a model that stands in the same intellectual tradition supports no such conclusions. At most, the tendency that we have seen in the later version of the Hittite Laws, after the method of cuneiform science, to add new circumstances might justify concluding that in the Covenant Code as well certain rules subsidiary to a main problem, such as the distinction between a warned and unwarned ox in the case of ox goring ox, were secondary accretions.57 Unless, however, they signify some change in the substantive law, it is an arid exercise to speculate as to which components of a legal problem are “original” and which are a later accretion. It could be argued that, the Hittite evidence notwithstanding, so special is the character of the biblical law and its role in the religious life of ancient Israel that its texts nonetheless acquired a canonicity that demanded more conservative editing. The Bible itself, however, attests to the contrary. There is a salient example within the Bible of the same law existing in an earlier and later version: the slave-release law of Exod 21:2-6 and Deut 15:12-18. The Deuteronomic version pays no respect to the earlier text, but changes the person of the verb and the identity of the slave and makes the transaction ex latere venditoris (from the seller’s point of view) rather than ex latere emptoris (from the buyer’s point of view). Accordingly, the premise of a conservative process of editing is not supported by empirical evidence, external or internal. The present text must be presumed to be clear and coherent. At most, one might argue for the minor editorial emendations and glosses that could be found in any genre of text.

Conclusions Conventional wisdom regards the Covenant Code as an amalgam of provisions from different sources and periods, the fusion of which has left telltale marks in the form of various inconsistencies in the text. That view is 57 Cf. Schwienhorst-Schönberger 1990: 121.

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based upon assumptions as to the history of the law and its expression which are unsupported by empirical evidence. At most, they can rely on inappropriate models from the classical and later periods. Such models may have been acceptable in the last century, but since the discovery of massive quantities of cuneiform sources, they are no longer so. Interpreters of the Covenant Code need to come to terms with the fact that it is part of a widespread literary-legal tradition and can only be understood in terms of that tradition.58 The starting point for interpretation must therefore be the presumption that the Covenant Code is a coherent text comprising clear and consistent laws, in the same manner as its cuneiform forbears. Apparent inconsistencies should be ascribed to the state of our ignorance concerning the social and cultural background to the laws, not necessarily to historical development and certainly not to an excess of either subtlety or incompetence on the part of their compiler.

58 See now Malul 1990: 140-43, arguing for a close literary dependence of the Covenant Code on the Mesopotamian law codes.

5 Codification and Canonization Abstract First millennium codes from the Mediterranean basin, such as the Twelve Tables and the Pentateuchal codes, were the product of an ancient proto-scientific tradition from Mesopotamia which produced treatises on the law in the form of lists of casuistic examples. Like their cuneiform forerunners, they were originally read as descriptive and not prescriptive sources of law, because the concept of the legislative text as an autonomous source of law had not yet been developed. However, the intellectual revolution that produced analytical jurisprudence and jurists also led to a change in their character. They were “canonized” by having attributed to them the status of legislation and of autonomy. They could thus be read as if they were a comprehensive and prescriptive body of rules.


Introduction

A

law code has two requisites: firstly that it be a law and secondly that lit be a code. The first means that the text must be a normative source of law which a court is bound to obey, not merely a source of information about the law, however much respect the court may have for its sagacity. The second requirement means that it must be an exclusive source of the law, at least in the area which it purports to regulate (e.g., civil code, criminal code). Even if some exception is made in practice, the theoretical concept remains necessary to interpretation of the code. Its text is deemed to be a comprehensive statement of the relevant law, so that anything omitted from the text is omitted from the law—a sort of legal horror vacui.
Originally published in La Codification des lois dans l’antiquité: Actes du Colloque de Strasbourg, 27-29 Novembre 1997 (ed. E. Lévy; Travaux du Centre de Recherche sur le Proche-Orient et la Grèce antiques 16; Paris: De Boccard, 2000), 33-47. Used by permission.

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The earliest known legal systems are those of the ancient Near East, the documentary record of which stretches from the 31st to the 3rd century B.C.E. Scattered through this record, and indeed extending beyond it, is a distinctive genre of texts known to modern scholars as law codes. There are seven extant examples in cuneiform script, and several more from the periphery of cuneiform culture, such as the biblical codes, the Laws of Gortyn, the Laws of Drakon, and the Twelve Tables.1 Did these documents meet the above criteria? Let us begin with the best-known example, Codex Hammurabi. In the epilogue to his code, king Hammurabi appears to claim both the properties of law and code for its provisions. He states: Any man wronged who has a case, may he . . . have read to him the inscription of my stela; may he hear my words sublime and may my stela reveal the case to him. May he see his judgment and his mind be eased . . . (col. XLVIII, lines 3-19). And a little further on: In the future, may any king who arises in the land keep the just words that I have written on my stela. May he not change the judgments of the land that I judged, the decisions of the land that decided . . . (col. XLVIII 59-72).

1 The cuneiform codes were: Codex Ur-Namma (Sumerian, c. 2100 B.C.); Codex LipitIshtar (Sumerian, c. 1900 B.C.); Codex Eshnunna (Akkadian, c. 1770 B.C); Codex Hammurabi (Akkadian, c. 1750 B.C.); Middle Assyrian Laws (Akkadian, 14th century); Hittite Laws (Hittite, various copies from 17th to 12th century); Neo-Babylonian Laws (Akkadian, 7th century). The Pentateuch was regarded by Rabbinical tradition as containing 613 laws, comprising both religious prescriptions and temporal rules. Modern scholars refer to the two main clusters of rules in the narrative as the Covenant Code (Exod 20:22-23:33, esp. chapters 21-22, where laws on temporal matters are concentrated) and the Deuteronomic Code (temporal laws concentrated mostly in chapters 15 and chapters 21-25 of Deuteronomy). The Deuteronomic Code is generally dated to the 7th century B.C.E. and the Covenant Code two or three centuries earlier.

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We should be careful, however, not to import our own cultural and juridical conceptions into the text. Let us begin with the idea of exhaustiveness that the first of the above passages appears to claim.

Exhaustive Codes? The provisions of Codex Hammurabi are formulated as a series of casuistic sentences. This form, characteristic of all the law codes, marks it as belonging to a wider literary genre, namely that of Mesopotamian “science.” By the third millennium B.C.E., the Mesopotamians had developed a technique for organizing knowledge by compiling lists of like examples: of flora, fauna, professions, grammatical forms, etc. A more sophisticated type of list consisted of cases: medical symptoms and their diagnosis, omens and their significance, legal problems and their solution.2 They were expressed in a hypothetical form that for the Mesopotamians was the hallmark of their scientific method: e.g., “if X does Y, his punishment shall be Z.” Mesopotamian science must have been a considerable improvement on whatever system of thought had preceded it, for it came to dominate, along with other aspects of Mesopotamian civilization, the whole of the ancient Near East (with the partial exception of Egypt). The genre of casuistic law codes was one aspect of this domination, and one in which it spread even further, into the Mediterranean Basin. A brief examination of the contents of the Mediterranean law codes, as opposed to native accounts of their origins, immediately reveals their dependence in form and content on jurisprudential traditions that can be traced back to Sumer of the third millennium B.C.E.3 Compared with classical or modern methods of organizing knowledge, however, the Mesopotamian approach was primitive, a proto-science. In particular, it lacked the ability to formulate general principles or abstract categories. Hence it was unable to reason vertically; it could only proceed horizontally by cumulating examples. Accordingly, neither Codex Hammurabi nor its fellow codes could ever amount to a comprehensive 2 See Bottéro 1982. 3 See, e.g., Westbrook 1988a.

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statement of the law; their lists of casuistic examples could not hope to be exhaustive, except at the point of infinity. How then, could Hammurabi purport to provide every possible answer to the perplexed litigant? He felt perfectly justified in his claim, because his scientific standards were very different from our own. Certain methods were employed by Mesopotamian science to compensate for its own limitations, so that, in native eyes at least, its lists met the requirements of comprehensiveness. The examples were consciously grouped by topic, as we know from a native edition of Codex Hammurabi, which gives subheadings to groups of paragraphs, such as “Rules of House, Field, and Orchard” and “Rules of Soldier and Fisherman” (types of feudal tenants).4 Note that the headings themselves are not strictly analytical, but list examples. Within topics, the choice and arrangement of examples was designed to place markers at suggestive points—sometimes at the very center of the topic but most often at its periphery—so as to indicate (if not to delineate) its boundaries.5 A good example of this technique is to be found in the opening paragraphs of Codex Hammurabi itself: 1 If a man accuses a man of murder and does not prove it, his accuser shall be killed. 2 If a man accuses a man of witchcraft and does not prove it, the one accused of witchcraft shall go to the river and leap the river. If the river overcomes him, his accuser shall take his house; if the river purifies that man and he is saved, the one who accused him of witchcraft shall be killed, and the one who leapt the river shall take the house of his accuser. 3 If a man in a lawsuit proffered false testimony and did not prove what he said, if that case is a capital case, that man shall be killed. 4 If he proffered testimony on grain or silver, he shall bear the penalty of that case. 5 If a judge judges a case, renders a verdict, and has a sealed document drafted, and subsequently changes his verdict, they 4 Edition in Finkelstein 1967. 5 Cf. Eichler 1987.

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shall prove that judge to have changed his verdict, and he shall pay twelve-fold the claim in that case . . . . The topic is clearly procedure in litigation. The five paragraphs cover the topic by the simple technique of chronological sequence: initial claim, trial, judgment. At each stage examples are given which illustrate misconduct, some common, others not so. Although only a small sample of possible wrongdoing and of types of claim is given, the parameters of the topic are set and the principles by which other cases within its ambit will be decided are at least adumbrated, if not expressed. There is thus a considerable gap between the subjective perceptions of the ancient authors as to the exhaustive nature of their work and our evaluation according to modern criteria. It is in the light of this gap that the second passage from Hammurabi’s epilogue, referring to his code as a text to be obeyed by future kings, should be considered.

Normative Legislation? There has been much debate as to whether the ancient Near Eastern law codes were normative legislation at all.6 It has been noted that they are never cited in the manner of modern laws, but that argument has been dismissed as an argument from silence.7 A second argument arises from the “scientific” character of the texts. A scientific work is a work of reference: it may be consulted, but it does not stipulate, as does a law. Again, it may be countered that although the ancient law codes were the product of science, they became legislation by virtue of their publication by a king. I wish to raise a third, more radical, argument against the legislative character of the ancient codes. It relates not to the way they were written but the way that they, and all other legal documents, were read. In my view, Mesopotamian jurisprudence did not read legal texts in the same way as we do. They did not treat them as autonomous sources.

6 For a recent summary of the arguments, see Renger 1994. 7 Renger 1994: 35.

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A vital element in the status of modern legislation is that the words of the text are the ultimate point of reference for its meaning. They can be elucidated with the assistance of travaux préparatoires or other evidence of the will of the lawgiver, but the lawgiver could never simply declare, for example, that the text did not properly reproduce his intention and should be disregarded. The reason is that the text is not mere evidence of the order of the lawgiver; once promulgated, it becomes the lawgiver itself, the messenger as well as the message. Consequently, specially trained experts are needed to “read” its provisions correctly and understand its words, to introduce that much-maligned practice of legalistic interpretation. In the ancient Near East, lawyers did not yet exist as a learned profession.8 This curious absence may be explained in part by the fact that the conceptual basis for their discipline was still lacking. Those same inadequacies of Mesopotamian science that shaped the composition of their law codes also circumscribed their reading of legal texts. In particular, one inadequacy not yet mentioned, namely the inability to define concepts, was of vital significance. One of the key instruments of legal interpretation of texts—definition—was not available to them. More significant, however, was the status of legal texts themselves within the constitutional structure of ancient states: they had not yet attained sufficient autonomy to require a special discipline for their interpretation. Let us begin with those documents the status of which we can be relatively certain. It is well established that private legal documents such as contracts and testaments were of evidentiary value only: they were the protocol of an oral transaction.9 Even the most sophisticated of contractual documents, international treaties, were no more than records of an oral oath ceremony, and their drafting was a triumph of the scribe’s, not the lawyer’s, art.

8 The correspondence of scholars with Assyrian kings of the 7th century B.C.E. names five scholarly disciplines: uparru “astrologer/scribe,” brû “haruspex/diviner,” ipu “exorcist/magician,” asû “physician,” and kalû “lamentation chanter.” Parpola 1993: xiii-xiv. 9 Already pointed out by San Nicolò 1931: 162-63.

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The same may even have been true of records of unquestionably legislative acts. There is plenty of evidence in letters and contracts of rulers making orders and of courts obeying them. But those orders, even when committed to writing, did not stray far from their author, either in scope or duration. Decrees of kings did not set up general rules of permanent validity affecting the general population, i.e., rules of the type found in the law codes. The reason for this is that they could not establish for themselves an existence that would outlive the king’s own will. Ultimately, cases would be referred back to the king, not to the decree. Thus the most sophisticated example of ancient Near Eastern legislation, the royal debt-release decree, which was solemnly proclaimed, affected the whole population, and was recorded in a lengthy text, was retrospective. It demonstrated the king’s ability to impose his will on past acts. Subject to the restraints of justice, there was no guarantee that an order of the king relating to the future would not be replaced by a contrary order relating to the past, so undoing all that had been done by the first. In these circumstances, the written text could not be more than evidence of the king’s order; it never become independent of that order. Between these two types of legal source lie the “law codes.” Their structure made no pretense of being anything but an academic treatise, the context of their publication, in those texts that provide one, was an apologia, and nothing in letters or contracts refers to their being obeyed.10 It is unlikely, therefore, that their text would have had an independent status. As was the case with comprehensiveness, the limits of Mesopotamian conceptualization provide the cultural context for understanding Hammurabi’s claims. Hammurabi expected future kings to follow the words on his stela because they were evidence of his wise judgments, which resolved every case that could possibly exist, not because the stela was law independent of Hammurabi. On the contrary, the same curses that were heaped upon wicked future kings for erasing the words of the stela applied to a king who merely erased the name of Hammurabi and substituted his own.11

10 On the law as royal apologia, see Finkelstein 1961: 103-104. 11 “If that man pays no heed to my words which I wrote on my stela, disregards my curses, does not fear the curses of the gods, and annuls the judgments that I judged,

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If this understanding is correct, the reason for the striking absence of all reference in the ancient Near Eastern sources to citation of the law codes in law courts is not the existence of some oral practice which has not happened to surface in the extant written sources (a perfectly feasible possibility), but a fundamental lack of the necessary conceptual basis: legalism. The total absence of legalism, being a negative proposition, is impossible to prove and, whatever its heuristic value, may be too extreme. It is possible that, as with other areas of theoretical reasoning, the Mesopotamians had some inkling of a text’s potential for semantic manipulation but failed to develop it.12 A search of the cuneiform sources—not merely the legal ones—for evidence of legalistic reasoning brings to light some straws in the wind. From the early second millennium B.C.E., there are a few references in Babylonian contracts and in Assyrian letters and court verdicts to actions to be taken “in accordance with the words of the stela.” The city council of Assur in particular uses this formula to refer to what appear to be orders previously made by it.13 Nonetheless, the words themselves are never given and are never the subject of dispute. It is impossible to determine from the bare formula whether the written text was anything more than a means of disseminating information. The copious literature relating to omens might be expected to have provided a focus for legalistic reasoning. The omen lists bear a close formal resemblance to the law codes, they apply the same scientific method, and they are analogous to judgments in the sense that they are predictions by divine rulers as to future events within their control. Furthermore, since gods are eternal, an omen will remain valid forever, i.e., the same ominous sign will always have the same significance. Thus it has the potential for becoming independent of the god whose will it represents. In the seventh century, Assyrian kings consulted experts who in turn consulted canonical lists in order to establish the ominous significance of astronomical or other phenomena. Nonetheless, the closest that the experts came to interpreting

replaces my words, removes my engraved image, erases my inscribed name and writes in his name...” (col. XLIX, lines 18-35). 12 Cf. Neugebauer’s assessment of the achievements and limitations of Babylonian mathematics in Neugebauer 1969: 29-52. 13 For references, see Veenhof 1995.

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the lists as independent sources was to suggest that omens predicting defeat in battle applied to an enemy land rather than the Assyrian king. Even here they showed a lack of confidence, advising the king to take apotropaic measures, as if the god could not be relied upon to follow the diviner’s interpretation.14 There is, however, one definite reference to the power of the written word. King Esarhaddon wished to rebuild Babylon, destroyed by his father, Sennacherib. He tells us: “He (the god Marduk) wrote the time of its lying waste as 70 years, but quickly merciful Marduk’s heart calmed down, and he turned it upside down and ordered its rebuilding within 11 years.”15 Although represented as the god changing his mind, it appears to be an allusion to the Assyrian king turning the tablet round so that the same signs read 10+1 instead of 60+10. If so, the text was regarded as an immutable expression of the god’s order and could therefore be reinterpreted, albeit in a crude and mechanical fashion.

New Developments The Assyrian system of the seventh century B.C.E . represents the ultimate refinement of Mesopotamian science. Although in its final stages it drew close to the creation of analytical categories, it failed to attain them and thus failed to provide the basis for analytical jurisprudence.16 From the Mediterranean littoral, on the other hand, new ideas were emerging that gave exciting possibilities for the development of law. 14 E.g., SAA 10 362 (see Parpola 1993: no. 362), lines 14-18 : “If Jupiter becomes visible in the path of the Anu stars: the crown prince will rebel against his father and seize the throne. The path of the Anu stars (means) Elam; it pertains to Elam. Nevertheless, they should (strengthen) the guard and perform the relevant apotropaic ritual.” Some hint of legalistic interpretation might also lie in the question and answer concerning another omen: “Does (the omen) ‘(If something) passes between the legs of a man’ apply to something that came out from underneath a chariot? It does apply.” 15 Borger 1956: 15, no. 10a. 16 A Neo-Assyrian learned commentary on extispicy, Multbiltu, finally expresses the rules of association between physical conditions of the entrails and their application to human life. It consists of three columns which read: “If length/fulfillment/(casuistic example); if protrusion/fame/(example); if thickness/strength/(example) . . . .” See Jeyes 1980: 23-24.

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Firstly, legislation became detached from the legislator. In the book of Deuteronomy (generally dated to the seventh century), the ultimate prerogative of the king, to decree a cancellation of debts, is made automatic and cyclical (15:1-11). The tradition that Solon, after proclaiming such a decree, precluded himself from doing so again by abolishing debt-slavery, belongs to the same trend.17 The process of detachment was perfected in the Greek cities, where it went hand in hand with the development of new forms of government. It has been argued that the change in terminology from thesmos (the decree of an individual ruler) to nomos, which by the fourth century meant written statute, marks the change to a democratic attitude.18 By then it had become standard practice in Athenian courts for judges and juries to swear an oath to decide according to the nomoi, referring to the written texts invoked before them by forensic orators (Demosthenes, In Timocratem 149-151). What gave the nomoi their status was not their publication by or association with a ruler, but their validation by passage through a legitimate political process. In this way, the text of legislation came to be regarded as having a life of its own, independent of the human agent who had produced it. Accordingly, Socrates could imagine the laws (nomoi) personified asking him, “Are you not intending by what you are trying to do (i.e., escape from custody) to destroy us, the laws . . . ?” (Crito 11). The book of Daniel (written in the second century B.C.E .) dramatically projects this new attitude back into the Near East with its description of king Darius’ decree, which, “according to the law of the Medes and Persians,” once written down might not be changed, even by the king himself (Dan 6:9). The second, interrelated, development was that Greek philosophy provided the means whereby truly comprehensive laws might be formulated. New methods of analytical reasoning such as division into categories (diaíresis and merismós) and definition (lógos tes ousías) enabled laws to be formulated in a vertical manner, with subsidiary rules being derived from general principles, and categorization ensuring that those principles covered the whole of a given field of law.

17 Plutarch, Solon XV.3. 18 Ostwald 1969: 158-60; MacDowell 1978: 44.

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Canonization If the promise of such new methods was not immediately fulfilled, it was because they did not fall upon a vacuum. The societies of the Mediterranean basin not only had a long and settled tradition as regards their substantive law, they also had an equally venerable tradition as regards its theoretical formulation. It looked to a fund of casuistic wisdom, compiled by the methods of Mesopotamian science. Local versions drew in varying measure upon a repertoire of traditional legal problems developed originally by Mesopotamian jurisprudence, e.g., the goring ox, the adulteress caught in flagranti, the thief breaking in by night, the talionic response to physical injuries.19 In some cases parts of this casuistic fund of traditional wisdom existed in written form. The latter, none other than the ancient law “codes,” enjoyed great prestige and in some instances may have been regarded as comprehensive, by the less exacting standards of Mesopotamian science. Traditional law, especially if concretized in a law code, could not be swept aside; it could only be reformed and reformulated piecemeal. The task fell not to philosophers, but to an entirely new learned profession—the jurists. By applying the methods of Greek philosophy, they were able to read old sources “legalistically” and thus turn them into comprehensive legislation. Their approach was therefore to “canonize” existing texts, i.e., to read them as if they were law codes created on the basis of the new legal science. For this purpose, the old code would be given the status of normative legislation and a suitable historical pedigree, namely promulgation at a critical juncture in the early history of the nation (not at the very beginning, but at the politically appropriate beginning). Two parallel examples are the Pentateuch and the Twelve Tables. In the first case, several codes, or more probably fragments of codes or of an oral canon, were inserted into an historical narrative which located its promulgation at a convocation in the desert prior to Israel’s occupation of the promised land, by no less than God himself.20 Rabbinic jurists went further by deeming it the basis of all Jewish law (while admitting the existence of an oral code alongside it). In the second case, the Twelve Tables 19 See Westbrook 1988a: 91-118. 20 Cf. the legend reported by Aristotle that Locrian law was first codified by Zaleucus, who received the laws from Athena (Frag. 548 Rose).

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were referred to by classical jurists simply as lex, “the statute,” and (while admitting the existence of an oral tradition) were regarded as the “fons omnis publici privatique iuris” (Livy, 3.34). The code was said to have been promulgated at a suitably critical moment in the early Republic (not during the monarchy, of course) for a suitably worthy social cause. Its form and content, it is to be noted, give no hint of any of this; they mark the code as a typical product of Mesopotamian science, in the same peripheral tradition as the biblical codes and Codex Eshnunna. Being regarded as comprehensive legislation, the casuistic paragraphs of the old codes were interpreted as if they had been drafted by a philosopher. Cicero, who spans the two worlds of philosopher and jurist, unwittingly provides us with an insight into the jurists’ attitude when he tries to explain how Greek philosophical discourse may be used for legal argumentation. The examples that he adduces to illustrate genus and forma (= species), divisio (= diaíresis), partitio (= merismós), and definitio are not from some current juristic treatise or recent legislation, where their influence might be expected to be at its most compelling, but from that (already in Cicero’s day) venerable antiquity, the Twelve Tables.21 Too little has been preserved of the text of the Twelve Tables for it to furnish a reliable control of the reverse process, namely extrapolation from casuistic examples to general categories. The parallel Jewish sources, on the other hand, preserve the full text of both the original “code” and its reinterpretation at the hands of the jurists. For example, the so-called “Covenant Code” in Exodus 21-22 contains four different cases of wrongful damage scattered through its provisions: a goring ox, an ox or ass that falls into a pit, cattle that trespass on a neighbor’s field, and a fire that spreads to a neighbor’s field. In the hands of the Rabbinic jurists these were transformed into a code of the law of wrongful damage: The four heads of damage are: the ox and the pit and the devourer and the fire. The ox is not like the devourer, and the devourer is not like the ox, nor are both these, which are living, like the fire, which is not living. Nor are all these, whose nature is to go forth 21 Topica, esp. 2.9-10; 3.13-14; 4.26-28. The formal application of the Greek classifications by Roman jurists has been studied by Nörr 1972: esp. 45-53. Cf. MélèzeModrzejewski 1993.

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and cause damage, like the pit, whose nature is not to go forth and cause damage. What is the same in them is that their nature is to cause damage and that you are responsible for guarding them, and when they cause damage, the one who caused it is liable to pay compensation with the best of his land (Mishnah, Bava Qamma 1.1). Individual cases thus became genera, under which other traditional cases could be classified as if they were subsidiary rules. In the light of this example, one should perhaps be cautious in assuming that rigid bi-polar distinctions of classical Roman law, such as that between furtum manifestum and furtum nec manifestum, existed in the same form in the Twelve Tables, and wary of reconstructions based on that assumption.22 If the fragmentary reference in the Twelve Tables to theft quod nec manifestum erit23 was no more than an isolated allusion to a special set of circumstances, then the classical assumption that it was already then an exclusive category to which two-fold damages always applied might also be questionable.24 Once a casuistic rule is regarded as theoretically comprehensive, so that what is omitted is deemed to be excluded, the door is opened to extremely creative readings of the text, which were, indeed, an inevitable consequence of canonization. For the orgy of legalism that characterizes the writings of both the Rabbinical and Roman jurists may be traced to a method that on the one hand reveres the text as the most just lawgiver of all, and on the other strives to make an inadequate text cover (in theory) every possible contingency. Thus, for example, the casuistic rule in the Twelve Tables—“If a father sells a son three times, the son is free of the father”—was interpreted by the classical jurists as follows: Now a son passes out of parental authority by three mancipations, but all other children, male or female, leave it by a single 22 E.g., the putative law “si furtum manifestum est, ni pacit, verberato transque dato . . .” based on no reported source and offered with all due reserve by the editors in Crawford 1996: vol. 2, 578 at I, 19 (= VIII 14 in FIRA). 23 VIII 16 (in FIRA) = I, 21 in Crawford 1996. 24 The danger of anachronism applies a fortiori to reconstructions of broad statement of principle, such as that proposed by Watson (1991: 309-12) for this fragment.

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The jurists, faced with the practical problems of their own day, adopted a teleological rather than an historical interpretation of the canonized text. The alternative—to rewrite the text itself on the basis of the same principles that were applied to its interpretation—was not attempted. Nonetheless, the intellectual investment arising from canonization may be regarded as an important stepping-stone toward Justinian’s Digest and subsequent codifications. It allowed the early jurists an opportunity to control the practical consequences of adopting general principles, by confining them within a framework of pragmatically tested casuistic rules.

Conclusions We have attempted to trace the history of a legal tradition from Mesopotamia of the third millennium to the Roman Empire of the early centuries of the common era. It is a tale of both continuity and caesura. In the course of the odyssey, awareness of the system of thought with which the tradition originated—Mesopotamian legal science—was lost, as indeed was the whole civilization, lying forgotten for nearly two thousand years. The process of canonization enabled a few products of that system of thought to survive, from societies on the periphery of its sphere of influence. While canonization served working legal systems well, at the same time it threw a veil over the original meaning of the texts, which were henceforth seen exclusively through the perspective of a radically different conceptual structure. The very success of canonization in this regard demonstrates that codification may be as much a function of reading texts as of their composition.

6 Codex Hammurabi and the Ends of the Earth Abstract The Code of Hammurabi claims to contain decisions for any legal conflict that might arise among the king’s subjects. But the limited number of actual provisions in the code gives the lie to this claim of comprehensiveness. How, then, could such a claim be justified? In the same way that royal propaganda asserted that the king, by means of various military campaigns, had extended his territorial control to the ends of the earth, so the provisions within the code push the law to its very limits. By treating cases that lie at the edge of possibility or that form opposite extremes, the code seeks to demonstrate the king’s control of the outer reaches of the law and, thus, of all existing legal terrain in between.


The Problem of Impossible Claims

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n the epilogue to his famous code, Hammurabi boasts: “Any man wronged who has a case, may he come before my statue ‘The King of Justice,’ may he have read to him the inscription of my stela, may he hear my words sublime, and may my stela reveal the case to him. May he see his judgment and his mind be eased” (col. xlviii, lines 3-19). The code purports to contain every conceivable case, a degree of foresight in human affairs that is impossible, even to modern lawyers. Modern law, however, can have greater pretension to universality because it has recourse to conceptual tools that the ancient Mesopotamians lacked: abstract categories, definitions, principles, and vertical reasoning. A modern law can, for example, divide the whole of the law of property into
Originally published in Landscapes: Territories, Frontiers and Horizons in the Ancient Near East (ed. L. Milano et al.; History of the Ancient Near East Monographs 3; Padova: Sargon, 1999), vol. 3, 101-103. Used by permission.

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two categories, real and personal, give a definition of real property, divide it into further sub-categories, and formulate principles that will govern the application of rights and duties at each and every level of categorization, down to the individual case of trespass upon another’s land. Mesopotamian science, by contrast, could only proceed horizontally, by the cumulation of examples.1 All the cuneiform law codes, including Codex Hammurabi, reflect this dearth: at most a few hundred individual cases could be presented, out of an almost infinite number of possible variants. How then could Hammurabi reconcile his boast in the epilogue of his code with the modest selection of cases that had been offered in the body of the text? The answer, I suggest, lay in the use of the same techniques that were employed in royal propaganda concerning the king’s conduct of foreign affairs. These techniques have been analyzed to great effect by Liverani, whose insights are the basis for the following remarks.2

The Ideology of Universal Control One of the ideal roles of kingship was to conquer the whole world, to establish a universal empire, as expressed in the traditional formula “king of the four quarters.” By doing so, the king pushed back the forces of chaos, which ever threatened to overwhelm civilization, to their natural habitat, the ends of the earth.3 In the ancient world view, a universal empire should extend literally to the horizon, the edge of a flat earth, where terra firma was replaced by the realm of chaos, personified by a great ocean.4 In reality, no king could reach the edge of the earth, let alone control all the territory within its compass. Nonetheless, royal propaganda was able to present the king’s real achievements in symbolic terms that satisfied that ideal intellectually, even in the minds of those few who actually had knowledge of lands beyond the narrow confines of the home territory.

1 2 3 4

Bottéro 1987: 156-84, esp. 169-77. Liverani 1990. Liverani 1990: 56-57. Liverani 1990: 51-56.

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Liverani identifies several techniques by which a sense of universal control was achieved, relating either to the content of the universal empire or to the container which held its territories.

Content The first of Liverani’s examples relating to content that I wish to cite is the “open list,” where single items are cumulated to give the impression of a totality, or at least a potential one, e.g., the endless listings of subdued countries or the enumeration of conquered cities, enemies slain, or booty seized. They make an obvious point of comparison with the law codes in general, which are seemingly endless lists of cases decided. Moreover, an open geographical list can, as Liverani points out, be arranged according to a structural pattern (e.g., by opposing southern and northern sites), in order to show that the listed items are not only many but also distributed in a way that will cover the whole world.5 In the same way, the list of injuries in Codex Eshnunna 42-46 follows a spatial structure, moving from head to limbs to body, but of course giving examples of only some of the possible injuries to those parts: 42 If a man bites a man’s nose and severs it, he shall pay one mina of silver. An eye—one mina; a tooth—half a mina; an ear—half a mina; a slap in the face—he shall pay ten shekels of silver. 43 If a man severs a man’s finger, he shall pay two-thirds of a mina of silver. 44 If a man knocks a man down in . . . and breaks his hand, he shall pay half a mina of silver. 45 If he breaks his foot, he shall pay half a mina of silver. 46 If a man strikes a man and breaks his collarbone, he shall pay two-thirds of a mina of silver. In the law codes, the structure may also be temporal, as in CH 1-5, which give isolated examples of attempts to pervert the course of justice 5 Liverani 1990: 46-47.

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on a chronological basis, following a lawsuit systematically through its stages from initial accusation to trial to judgment: 1 If a man accuses a man of murder and does not prove it, his accuser shall be killed. 2 If a man accuses a man of witchcraft . . . etc. 3 If a man produces false testimony in a lawsuit and does not prove what he said, if it is a capital case, that man shall be killed. 4 If he produces testimony concerning grain or silver, he shall bear the penalty of that case. 5 If a judge judges a case, gives a verdict, and has a sealed document drafted, but afterwards changes his judgment, they shall prove that that judge changed his judgment in the case, and he shall pay 12-fold whatever the claim is in the case. . . . It may also be hierarchical, following, for example, the axis: head of household, son, slave. For example, in CH 229-231: 229 If a builder builds a house for a man and does not make his work strong and the house that he built collapses and causes the death of the householder, the builder shall be killed. 230 If it causes the death of the householder’s son, they shall kill the builder’s son. 231 If it causes the death of the householder’s slave, he shall give slave for slave to the householder. A second technique for suggesting totality is through subdivision into opposite parts: interior and periphery, upper and lower land, mountains and plains.6 This can be compared with the use of positive and negative cases in the law codes, as in CH 155-156, which contrast incestuous relations between a father-in-law and daughter-in-law before and after consummation of her marriage:

6 Liverani 1990: 44-46.

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155 If a man chooses a bride for his son and his son has had intercourse with her, but he thereafter is caught lying in her lap, they shall bind that man and throw him in the water. 156 If a man chooses a bride for his son and his son has not had intercourse with her, but he lies in her lap, he shall pay . . . . Sometimes the double presentation seems superfluous, as in CH 30-31 where the ruling, that a soldier who abandons his feudal tenancy for three years will forfeit it, is followed by the self-evident ruling that he will not if he abandons it for a lesser period.7 The presentation of opposites, however, gives the case a merismatic quality and thus a sense of completeness.

Container Control may be suggested by reference to the geographical container of the territory: the borders of the universe. The very act of reaching them is symbolic of attaining control of all the areas beyond which they lie. This in turn may be suggested by the king leading an expedition to some body of water (or equally unstable element), which is representative of the ultimate ocean surrounding the earth, and there setting up a stela or carving an inscription which marks his presence.8 In the law codes, exact opposites such as CH 30-31 mentioned in the previous section are rare. Far more frequent are what Eichler calls “a polar pair of cases with maximal variation.”9 As Hallo explains, it is a “codification of extremes” whereby “[CH] repeatedly multiplies the criteria of both culpability and innocence as if with the intention of leaving

7 CH 30: “If a soldier or a fisherman, faced with feudal service, abandons his field, orchard, and house and absconds, and another after him takes his field, orchard, and house and performs his feudal service for three years, if he returns and demands his field, orchard, and house, it shall not be given to him. The one who took it and performed the service shall continue to do so.” CH 31: “If he absconds for one year and returns, his field, orchard, and house shall be given to him; he is the one who shall perform his feudal service.” 8 Liverani 1990: 59-65. 9 Eichler 1987: 75.

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a large discretionary area in the middle, where neither all the criteria of guilt nor all those of innocence may be satisfied.”10 For example, CH 129 discusses consensual intercourse with a married woman, and §130 contrasts it with forcible intercourse, but not with the same woman. Instead, the victim is merely betrothed. Thus at least two intermediate cases are omitted: forcible intercourse with a married woman and consensual intercourse with a betrothed woman. Scholars have tended to see in this technique the medium of a hidden message or agenda. For Finkelstein, it was in pursuit of pure justice: extremes emphasized the unambiguously just decision, unburdened by the nuances inevitable in everyday cases.11 For Eichler, it is a way of stating legal principles by inference. Thus in CH 129-130, contrasting the consensual intercourse of an experienced woman with the non-consensual intercourse of an inexperienced girl amounts to a legal statement that consent is a decisive factor in determining the woman’s liability.12 I would be reluctant to read such messages into the text, for fear of imposing upon it, unconsciously, our own cultural criteria. It seems to me that a simpler explanation, and one explicitly attested in the text itself, is the desire for completeness. The use of fantastic examples to give an impression of completeness has already been noted by Bottéro, both for the law codes and for other types of scientific literature, such as medical and omen lists.13 Those cases in the codes which feature extreme polarity are applying the technique of the royal expedition to the law. They are the markers of the conceptual edge of a topic, or as far out into its ramifications as the draftsmen could penetrate. Theoretically, the appropriate rulings in all intermediate cases within those markers can be logically deduced by extrapolation from the extremes. In practice, however, extrapolation is possible only to a very limited extent (even applying modern legal reasoning), because there are still too many variables left untreated. This is another reason, apart from cultural bias, to be cautious with modern attempts (including my own) to “fill in the gaps” by inference. It mattered 10 11 12 13

Hallo 1964: 99 n. 35. Finkelstein 1966: 364. Eichler 1987: 82. Bottéro 1987: 175-177.

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less to the ancient draftsmen or their audience, because the rest of the law was common knowledge anyway, and because the impression of completeness was what counted.

Conclusion Royal inscriptions boast of the king’s successful execution of his royal mission, in which he sought to impose peace and order through conquest abroad and through justice at home. In his perfect execution of justice, the king purported to foresee all possible cases. His law code would suggest as much through the same techniques as were used to suggest his total control of foreign lands. Prime among those techniques was the royal expedition to the ends of the earth. Without a map or even knowledge of the surrounding territory, the heroic leader would follow a narrow path, sometimes that of previous kings, sometimes one blazed by himself. So too did the heroic lawgiver reach the edge of each legal topic, by the use of cases culled from the existing legal tradition, or by the use of new decisions made, or at least postulated, by himself. No metaphor could have been more apt.

7 Social Justice in the Ancient Near East Abstract For the societies of the ancient Near East, social justice typically meant maintaining the existing socio-economic hierarchy. Thus, those who had lost some measure of their status within that hierarchy could appeal to the king for redress. Other restorative mechanisms, such as the right of redemption, time limits on debt-slavery, and royal debt-cancellation decrees were of particular use in helping households to regain their financial footing and avoid the most extreme consequences of economic misfortune and oppression.

I

n this chapter I will deal with the sources in cuneiform from Mesopotamia, dating from the third to the first millennium B.C.E., but I will also consider the sources in cuneiform from Syria and Anatolia in the second millennium, and the Hebrew Bible as evidence of ancient Israel in the first millennium, since all these societies shared a similar social and political structure, a common legal tradition, and a common view of social justice.1 The societies of the ancient Near East were organized hierarchically. The basic unit was the household, headed by a paterfamilias and containing wives, children, and slaves as its subordinate members. Above the households of the citizens lay those of the nobility, above them that of the king, and above the king the gods, whose pantheon itself was conceived in terms of household and hierarchical structures.

* Originally published in Social Justice in the Ancient World (ed. K. Irani and M. Silver; Westport, Conn.: Greenwood Press, 1995), 149-63. Used by permission. 1 On the common legal tradition, see Paul 1970; on the common view of social justice, see Weinfeld 1985. Epsztein 1986 is a general survey based on secondary sources.

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The structure of the society is illustrated by the native use of the term slave.2 While it denotes real slaves, that is, unfree persons, who were of course at the bottom of the ladder, the term was also used relatively to describe one’s relationship to any hierarchical superior. Thus, a free citizen was called a slave of his king, and both were slaves of the gods. The concept of social justice in such a society was not at all one of equality, nor was it identified with the relief of poverty as such, given that large sections of the population existed at subsistence level. Social justice was conceived rather as protecting the weaker strata of society from being unfairly deprived of their due: the legal status, property rights, and economic condition to which their position on the hierarchical ladder entitled them. The ideal was expressed by such phrases as “that the strong not oppress the weak, that justice be done to the orphan and widow”3 or “the orphan was not delivered up to the rich man, the widow was not delivered up to the powerful man, the man of one shekel was not delivered up to the man of sixty shekels.”4 A whimsical tale entitled “The Poor Man of Nippur” (Cooper 1975: 170-74), although fiction, is revelatory of Mesopotamian attitudes as to the sort of poor and weak who were embraced by such high-sounding ideals: There was a man, a citizen of Nippur, destitute and poor, Gimil-Ninurta was his name, an unhappy man. In his city, Nippur, he lived, working hard, but Had not the silver befitting his class, Nor had he the gold befitting people (of his stature). His storage bins lacked pure grain, His insides burned, craving food, and His face was unhappy, craving meat and first-class beer; Having no food, he lay hungry every day, and Was dressed in garments that had no change (I 1-10). Poverty, then, is relative. Our hero was a free citizen down on his luck, who could no longer maintain himself in the style to which his status enti2 Sumerian ìr ; Akkadian (w)ardu; Hebrew ‘ebed. 3 Codex Hammurabi, col. XLVII (= reverse XXIV), lines 59-61. ANET3 163-80. 4 Prologue to Codex Ur-Namma, A IV, lines 162-168; translation in ANET3 523-25.

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tled him.5 The story then goes on to tell how, as a result of his condition, he suffered oppression at the hands of the powerful. His solution to his hunger is to sell his coat in exchange for a goat. He decides, however, not to eat the goat himself, because it would be no feast without beer and because his neighborhood friends and family would be angry with him for not inviting them. Instead, he presents the goat as a gift to the mayor of the city, hoping thereby to garner a greater favor in return. The mayor, however, behaves churlishly: he orders his servant to give the man a drink of third-class beer and to throw him out. The rest of the story is taken up with our hero’s elaborate revenge, whereby he succeeds in administering the mayor not one but three good beatings. To begin his revenge, the Poor Man of Nippur first approaches the king and asks him for the use, on credit, of a chariot for a day, so that he can play the part of a noble. The kings accedes without hesitation or without inquiry into his motives. Improbable as this scenario may seem, it is true in principle regarding a further aspect of social justice presumed by the story. In real life, it was indeed to the king that oppressed citizens looked to fulfill the demands of social justice. A principal function of the king was to intervene in cases of oppression, for the legitimacy of a king’s reign was based upon a divine mandate, the terms of which included ensuring social justice in his realm (Finkelstein 1961: 103). The oppression that he was expected to guard against was abuse of administrative power, as in the story above (albeit resulting in more than mere loss of face), or of economic power. It is for this reason that widows and orphans were singled out for protection by the king. A widow or an orphan need not necessarily be poor; but on the death of the head of a household there might be no one to defend their rights, especially their inheritance rights, against those who coveted the deceased’s property. The king, therefore, being head of the household for the population as a whole, intervened as substitute paterfamilias. Thus, king Hammurabi of Babylon (eighteenth century) wished to be remembered by the oppressed for whom he had done justice as “the master who is like the father of a child to his people.”6 5 Dearman (1988: 52-53) finds a similar profile in the Bible for the class of poor for whom the prophets demand social justice. 6 Codex Hammurabi, col. XLVIII (= reverse XXV), lines 20-21.

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The vulnerability of the weaker classes in general is illustrated by a paragraph from the earliest recorded legislative act in history, the Edict of King Uru-inimgina, ruler of the Sumerian city-state of Lagash in the twenty-fifth century: 7 Should the house of a noble adjoin the house of a commoner and the noble says to him, “I wish to buy it from you”—and he says, “If you wish to buy it from me, pay me a satisfactory price; my house is a basket, fill it with barley!”—if he does not then buy from him, the noble shall not, in his anger, “touch” the commoner.8 What measures are involved in “touching” the commoner are not made clear, but it is evident that the noble’s action was not benign and was aimed at acquiring the commoner’s property without having to pay the asking price. As would be expected with such an archaic text, much of its language is obscure. The paragraph apparently does not impose a sanction upon the oppressive noble. The versions of the edict that we possess are not contemporaneous with its promulgation; but inscriptions from later in the king’s reign boasting of his earlier achievements, and much that is recorded in them, may be no more than propagandistic hyperbole. Nonetheless, they would seem to provide sufficient evidence that on his accession to the throne king Uru-inimgina did institute a number of practical reforms, with particular emphasis on the state administration and its bureaucracy (Maekawa 1973-74: 114-36). Various practices of officials are detailed—the appropriation of property, the receipt of payments, and the use of services—which we are given to understand were regarded as abusive, because the officials in question were removed from those areas of responsibility. One reform is clear: the former charges by different functionaries for expenses connected with funerals were listed and a new tariff

7 See Steible 1982: 288-312; English translation Cooper 1986: 70-76. 8 In the edition of Steible 1982: Ukg. 4.11.32-4.12.11 = Ukg. 5.11.1-18; cf. Cooper 1986: 72. The Sumerian term here translated “touch” ( t ag ) is translated by Steible as “(den Zorn darüber) fühlen lassen,” and by Cooper as “strike at him.”

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posted in which some of the payments had been drastically reduced, for example, from 420 loaves for the Uhmush to 80. In paragraph 163 of the law code of king Hammurabi, punishment is explicit and is severe where abuse of power takes the form of maltreatment of a subordinate by an official: If a “captain” or a “lieutenant” takes a soldier’s possessions, deprives a soldier of his due, gives a soldier out for hire, delivers a soldier into the bands of the powerful in a lawsuit, or takes a gift that the king gave the soldier, that “captain” or “lieutenant” shall be killed. The ancient legal systems did not strictly separate administrative and judicial powers. An official could act in a quasi-judicial capacity, deciding the legal rights of those subordinate to him without a formal trial, even in cases where the official himself had an interest. The best recourse for the injured party was to the king by way of petition. King Hammurabi writes to a senior official as follows (RA 21 15; see Thureau-Dangin 1924: 15): To Shamash-hazir, speak! Thus says Hammurabi. Sin-ishme’anni of Kutalla, the orchard keeper of the Dilmun date-palms, has informed me as follows: “Shamash-hazir expropriated from me a field of my paternal estate and gave it to a soldier.” Thus he informed me. The field is a permanent estate—when can it be taken away? Examine the case and if that field does belong to his paternal estate, return the field to Sin-ishme’anni. In this case, apparently, the official had wrongfully exercised his discretion to expropriate land, probably for failure by the landowner to meet certain public obligations. Not every act of oppression, however, involved illegality. Even while operating within the letter of the law, it was possible to achieve results that were regarded as unjust because of their harmful social or economic consequences. This was the case with the laws regarding debt in the ancient Near East. The law allowed a creditor, if unpaid, to acquire by way of foreclosure not only the debtor’s property but also his family and even his own person in slavery. The burden of debt was a serious socioeconomic problem, leading to the dispossession and enslavement of the

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class of small farmers. Several different measures were therefore employed to restore families to their patrimony and debt slaves to their families, in derogation from the strict rights of the creditor under the contract of a loan. The first measure was the right of redemption. If property was pledged for a loan, by the nature of things that property would be released by the creditor to its owner upon repayment of the loan. The courts, however, extended this principle to property sold outright, where the transaction was in effect a forced sale at undervalue to pay off a debt. The seller was, under certain conditions, allowed to buy back—to redeem—his property at the original price. This equitable principle applied only to certain types pf property, namely members of the family sold as slaves and family land (Westbrook 1991b: 90-117). Paragraph 119 of Codex Hammurabi deals with a case arising in the first category: “If a debt has seized a man and he sells his slave-woman who has borne him children, the owner of the slavewoman may pay the silver that the merchant paid and redeem his slavewoman.” By virtue of her having borne her master children, the slave acquires the status of a member of the family insofar as the right of redemption is concerned. Note that she does not gain her freedom as a result; the purpose of redemption is to protect the integrity of the family, not necessarily to improve the lot of the individual. Paragraph 39 of Codex Eshnunna9 deals with a sale of family land: “If a man grows weak and sells his house, the day that the buyer will sell, the owner of the house may redeem.” The phrase “grows weak” is an indication that a forced sale for debt is meant (Westbrook 1991b: 100-102). The law protects not the poor as a class, but the impoverished, that is, those families who are in danger of losing their place on the socio-economic ladder. It was not intended to bar the normal sale of land at its full market price but was intended for those cases where the “price” was really the amount of the loan and the property was in effect being confiscated for default on that sum. A contract from Emar, a city-state that flourished in

9 A kingdom to the north of Babylonia in the eighteenth century. The name of the king responsible for this code is not preserved. Most probably it is to be attributed to King Dadusha, an earlier contemporary of Hammurabi. In that case, it would predate Codex Hammurabi by several decades.

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north Syria in the late second millennium, depicts the circumstances contemplated by the law (Arnaud Emar 6 123): A owed twenty shekels of silver to B and ten shekels of silver to C and could not repay. Now A has sold his house to B and C for thirty shekels of silver as full price and has handed over to them the old tablet of his house that was sealed with the seal of (the god) Ninurta. If in the future A repays the thirty shekels of silver to its owners in a single day, he may take his house. If not, and if two days have passed, whoever in the future claims this house may pay the same amount of silver and take his house. The final clause is an oblique reference to the fact that in default of its exercise by the seller, the right of redemption accrued to the seller’s nearest relative. Again, it is the family (in the sense of extended family or clan) that this social law is primarily designed to benefit, not the individual. The order in which the right may be exercised is given in the redemption law of Lev 25:47-49: If a resident alien grows successful among you and your brother grows poor with him and he is sold to a resident alien among you or to the descendant of an alien clan, after he is sold he shall have redemption: one of his brothers may redeem him, or his uncle or his cousin or a further relative from his clan may redeem him, or he may be redeemed by his own resources. A further document from Emar shows this right in operation (Arnaud Emar 6 205): A died and his sons entered B’s house, and he (B) released the 25 shekels of silver. And now B brought the two sons of A before . . . the city elders and their father’s brothers. He spoke thus: “Take your two nephews and give me back my 25 shekels. . . . These two nephews entered voluntarily into my slaveship.” Their father’s brothers refused to give the 25 shekels belonging to B, and they confirmed by a sealed tablet, voluntarily, the enslavement of their two nephews to B. Dead or alive, they are

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Redemption, therefore, was not a very reliable form of social protection. The seller might be unable to raise the amount necessary to repay his debt, even though it was less than the market price of the property, and other members of the family might be equally unable or unwilling to do so in his stead. In the book of Ruth (4:3-6), Naomi’s closest relative decides to forego his right of redemption when Boaz reveals to him that it will trigger the duty of levirate marriage and thus render his investment unprofitable (Westbrook 1991b: 63-67). If redemption failed, however, all was not lost. A second, more radical, remedy might be available. According to Codex Hammurabi 117, “If a debt seizes a man and he gives his wife, son, and daughter in sale or ana kitim, they shall serve in the house of their purchaser or holder for three years; in the fourth year their freedom shall be established.” The same remedy for debt slavery is provided by Exod 21:2 and Deut 15:12, except that the period of service before release is six years. In all these laws, release from slavery occurred by operation of law; there was no need for any redemption payment. This was a special privilege for members of the family; it did not apply to family land. It is curious that the period of service varies so radically between the biblical and cuneiform laws. Despite their apparently absolute language, such paragraphs in .the law codes may possibly reflect an equitable discretion of the court that was applied in differing measure according to the circumstances of the case. The rationale for release appears to have been that the debt slaves by their period of service had paid off the capital of the debt. This somewhat more flexible criterion is used in Codex Lipit-Ishtar, a Sumerian law code predating Codex Hammurabi by about a hundred years. According to paragraph 14, “If a man has returned his slavery to his master and it is confirmed (that he has done so) two-fold, that slave shall be released.” A similar underlying principle is alluded to in the remark of Deut 15:18 that “he has served twice the hire of a hireling in serving you for six years.” In practice then, the actual lapse of time needed for a court to declare the release of debt slaves will have varied. Nonetheless, it was still linked

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to the contract between the parties and acted upon its terms in a manner that could be anticipated. This was not the case with the third and final measure, which sought to achieve social justice through a sweeping and arbitrary intervention in the normal economic life of the society. It was the practice of Mesopotamian kings every so often to issue a decree annulling debts throughout the kingdom. The decrees were retrospective: they applied to existing contracts at whatever stage of completion they happened to be at the moment of proclamation. Affected also were those same ancillary transactions that the mechanisms of redemption and limitation of servitude sought to control: the pledge or forced sale of family land or the enslavement of members of the family. The king, in issuing a decree, was said to “establish equity for the land”—literally, a “straightening out.”10 The normal judicial activity of the king in answering individual petitions was defined in the same way. It was regarded as the correction of imbalances, the restoration of a status quo that had been destroyed temporarily by some act of injustice. “Equity for the land” was the same action on a grand scale, where the imbalance affected whole strata of the population. The earliest mention of such a decree is in an inscription of a predecessor of Uru-inimgina at Lagash, king Entemena (twenty-fifth century). He boasts that he “caused the son to return to the mother, he caused the mother to return to the son, he established the release (‘freedom’) of interest-bearing loans.”11 Entemena is here indulging in a rhetorical game, since the Sumerian term for “freedom” (a m ar .g i 4 ) means literally “return to the mother”;. but its literal sense had long since given way to a technical legal meaning, as is shown by its use in this inscription for the release of debts. Debt release also formed part of Uru-inimgina’s edict: “He cleansed the citizens of Lagash, who were living in debt for planted acres(?), late grain, theft, and murder—he established their release.”12 The association of murder and theft with debts for crops and commodities may seem strange, but is perfectly logical in the context of the ancient Near Eastern system of criminal justice. I shall postpone discussion of it for the moment, 10 Sumerian n í g . si . sá ; Akkadian marum. 11 Entemena 79.4.2-5; see Steible 1982: 269. 12 In the edition of Steible 1982, Ukg. 4.12.13-22 = Ukg. 5.11.20-29.

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however, since it is the subject of much more detailed provisions in a later edict. The Sumerian documents of the third millennium yield few further references to the release of debts and no information on its operation in practice. It is the following period, the early second millennium (usually referred to as the “Old Babylonian Period”), that provides us with an abundance of sources: royal inscriptions, references in letters and private legal documents, and the partially preserved text of three decrees.13 The sources then decline precipitately in the following periods, but there are sufficient scattered references to establish that the custom had not died out and that our dearth of information is probably due to the random preservation of ancient records.14 In particular, an edict of a Hittite ruler of the twelfth century has recently been identified as containing debt release provisions (Westbrook and Woodard 1990: 641-59). The most complete text of a debt release decree is the Edict of King Ammi-aduqa of Babylon, the great-great-grandson of Hammurabi (Kraus 1984: 168-83). The twenty-two paragraphs preserved reveal a complex set of provisions designed to focus the effects of the decree on its intended beneficiaries while limiting disruption of normal commerce. The provisions are of two types, those canceling various categories of debts and those concerned with problems of implementation. The central provisions are paragraphs 3 and 8, which contain a crucial distinction. According to paragraph 3, “Whoever lends silver or barley to an Akkadian or Amorite at interest . . . and has had a tablet drafted, because the king has established equity for the land, his tablet is broken. He may not collect silver or barley in accordance with his tablet.” Silver and barley are the normal media of exchange. Akkadians and Amorites are the two main ethnic components of the population. The wording could be intended to privilege these two ethnic groups in particular, but it is more probably a means of referring to the population as a whole, as opposed to

13 Kraus (1984) contains all known Old Babylonian references until that date and an edition of the three extant decrees. 14 See CAD A/2, andurru, 116-17, meanings g and h, for references from Nuzi (fifteenth century) and the Neo-Assyrian period (eighth-sixth century). On the latter, see Lewy 1958: 30*-31*.

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the citizens of specific towns, who are the beneficiaries of other provisions in the decree. The paragraph is thus drafted in the most general terms, annulling the normal type of loan that would be made to farmers, who composed the bulk of the population. In contrast, paragraph 8 states: “An Akkadian or an Amorite who has received barley, silver, or goods as a purchase-price, for a (business) journey, for partnership, or as a capital advance: his tablet shall not be broken; he shall pay according to his contract.” Trade was thus exempted from the operation of the decree. Various business transactions that involved the giving of credit would continue to be enforced by the courts, as long as the profit element was not derived from interest. Paragraph 9 specifies that if such a contract contains a penalty clause imposing interest after the due date for repayment has passed, that clause is void, but the contract itself remains valid. A distinction between valid and invalid loans is an open invitation to fraud by moneylenders seeking to preserve their investment, and several paragraphs of the edict contain complicated measures to counter evasion. Paragraph 7 reads: If a man has lent barley or silver at interest and has had a tablet drafted but has kept the tablet in his possession and said, “I did not lend at interest; the barley or silver that I gave you was for a purchase-price, for a capital advance, or for another such purpose,” the man who borrowed the barley or silver from the merchant shall bring witnesses to the wording of the tablet that the lender denies. They shall make their declaration before the god, and because he distorted his tablet and denied the transaction, he shall pay sixfold. If he cannot pay his penalty, he shall die. Note that the term merchant is synonymous with moneylender. Merchants were the source of capital for both trade and agriculture and thus would be in a position to claim that a transaction belonged to one sphere of their activities rather than another. A slightly different type of annulment was the cancellation of arrears on unspecified debts that was made in favor of certain sections of the population only. The criterion appears to have been socio-economic: some of the groups named are known to be types of feudal tenants, and it is possible that they may all have been dependants of the palace in one way or

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another. The intention of the legislation is expressly stated to be “to strengthen them and to deal equitably with them,” a statement that is made only with reference to these groups. At least part of the arrears in question, possibly all of them, were owed to the palace itself in the form of feudal dues or taxes. Other paragraphs of the edict (§§11, 12) reveal a complicated arrangement whereby merchants acted as wholesalers to market commodities owned by the palace, part of which the merchants received from palace stores but part of which they had to collect themselves from feudal tenants who owed the commodities by way of taxes. Special consideration is given in the edict to the position of the taverness. This lady was an important factor in the economic life of the society—and one to whom strict regulations applied to prevent her from engaging in fraud or exploitation.15 Beer was a staple commodity that was sometimes supplied as rations or wages. The taverness would market the beer of those who had a surplus and would supply beer on credit, or rather beer mash, which could keep for much longer, against payment in barley at the next year’s harvest (Kraus 1984: 254). Although not in form a loan at interest, it was one in substance, since the taverness gained her profit by supplying in one commodity and receiving payment in another. Paragraph 17, therefore, bars her directly from claiming payment for this type of transaction. The last provision from this edict that I wish to discuss is directed, not at the debt itself, but at its consequences. Paragraph 20 reads: “If a citizen of Numhia, Emut-balum, Idamaraz, Uruk, Isin, Kisurra, (or) Malgium has been bound by a debt and has given [hims]elf, his wife, or [his child] in sale, ana kitim, or in pledge, because the king has established equity for the land, he is released, his freedom is established.” Why the citizens of these particular towns should have been singled out is not clear. There is no common link between them, and it is unwise to speculate as to special social conditions or pressures, for reasons that will be explained shortly. What is also remarkable is the similarity of language between this provision and CH 117 discussed above, which released the debtor’s family after 15 Codex Hammurabi 111 fixes the rate at which the taverness could give beer on credit, and paragraph 108 prescribes the death penalty for a taverness using false weights. A slightly earlier law code, Codex Eshnunna, in paragraph 41, obliges the taverness who sells nonresidents’ beer on their behalf to obtain the current market price.

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three years. It casts further doubt on the effectiveness—or, at least, the general applicability—of the law code provision. The following paragraph of the edict contains an important proviso: the release in question is not to apply to house-born slaves of the citizens of those towns. Once again we see that the purpose of the edict is to aid citizens fallen on hard times; its conception of social justice does not extend to the truly weakest strata of society, those born into slavery or poverty. One type of debt that is not covered by the Edict of Ammi-aduqa but which we have already met in a tantalizingly brief reference in the Edict of Uru-inimgina is that arising from crime. Crimes such as murder, adultery, rape, and theft, which in modern law are prosecuted and punished by the state, were dealt with on an entirely different basis in the ancient systems. Such crimes gave rise to a dual right on the part of the victim or his family: to revenge or to accept payment in lieu of revenge. The payment was therefore neither a fine nor compensation, but composition, whereby the culprit ransomed his own life, limb, or liberty, depending on the nature of the revenge appropriate. The ransom agreement was a contract like any other and, therefore, gave rise to a debt that had to be paid or satisfied in some other way, whether by transfer of the debtor’s property, his family, or his own person (Westbrook 1988d: 39-83). Because a ransom agreement was a kind of forced sale, the question arises whether its consequences might be annulled under the terms of a debt release decree. That question appears to be addressed in the Edict of the Hittite king Tudhaliya IV:16 And if someone has given ransom for blood, and he has purchased. himself from you, whether (the ransom be) a field or a person, no one shall release it. If he (i.e., the holder of the ransom) has taken those things along with his (i.e., the culprit’s) wives and sons, he shall release them(?) to him. And if someone has given ransom for theft, if it is a field, they shall not release it (II 3-10).

16 Westbrook and Woodard 1990: 642-44.

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The edict distinguishes between two cases. In the first, a person has committed homicide and has paid a ransom for his own life: he has “bought himself.” Can the property that he handed over as the price of his life be released by the decree? The edict answers in the negative, even if the property be land or persons, which could refer to slaves or, possibly, dependent members of his family. In the second case, on the other hand, the creditor (i.e., the avenger) appears to have made a general seizure of the homicide’s property and family, and their release is authorized. The edict then goes on to discuss debts arising from theft, along the same lines. It may seem strange that criminals could be regarded as potential objects of social justice, but it should be remembered that payment of ransom would usually apply to less serious. degrees of homicide and that the thief’s condition might evoke some sympathy. As the book of Proverbs puts it: A thief is not held in contempt For stealing to appease his hunger; Yet if caught he must pay sevenfold; He must give up all he owns (Prov 6:30-31). Under what circumstances were debt release decrees promulgated? It is clear that, traditionally, a king would be expected to declare a release in the first year of his reign, as part of the pomp and circumstance surrounding his accession to the throne. The copious evidence of the Old Babylonian period, however, reveals that a king in the course of his reign might issue one or more further decrees. Thus, Hammurabi appears to have issued a decree in the twelfth and again in the thirty-third year of his reign; his third successor, Ammi-ditana, in his twenty-first year; and the latter’s successor, Ammi-aduqa, in his tenth year. A contemporary of Hammurabi, king Rim-Sin of Larsa, is thought to have issued at least three extra decrees, in the twenty-fifth, thirty-fourth, and some time after the fortieth year of his sixty-year reign.17 According to Bottéro (1961: 152-53), the frequency of these decrees indicates serious economic disorder in the kingdoms of the period. It took 17 See Kraus 1984: 16-110 for a full list of all possible edicts alluded to in the Old Babylonian sources.

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the form of the disastrous indebtedness of the majority of the population, which paralyzed production or, at least, failed to encourage it sufficiently, for the yield to satisfy the collective needs of the society. The decrees were to some extent acts of desperation, which attempted to cure the worst effects of the economic situation without dealing with its underlying causes. I regard such conclusions with skepticism. The debt release decree was an ancient custom that formed part of the religious duty of kings. There is no evidence that the economic situation was worse in the Old Babylonian period than at other times nor that indebtedness, however widespread and crushing, would have had a serious effect on overall production. It would, on the other hand, have altered the distribution of land ownership, with a tendency toward the formation of latifundia. Accordingly, we should look to social rather than economic stability as the motive for these recurrent decrees. The cuneiform records give little evidence of social unrest. It is true that they represent the voice of the establishment, rather than the opposition, but one would still expect to find some echo of widespread discontent in the sources. The “protest” of the individual debtor lay in flight, abandoning his home and family and seeking refuge in a foreign kingdom or perhaps in the lightly populated steppe. It is also possible that the various social measures were effective in keeping economic grievances from becoming too widespread. Tudhaliya IV informs us at the beginning of his edict that it was promulgated as a direct result of a protest by his citizens: When I had destroyed Assuwa and returned to Hattusa, I refurbished the gods; the men of Hatti all began to bow down to me, and they spoke as follows: “O great king, you are our lord, a leader of campaigns. Are you not able to judge in matters of justice? Behold, evil people [. . .] have utterly destroyed [. . .] the feudal holdings and the sarikuwa tenants [. . .] (I 1-11). Unfortunately, the broken state of the tablet prevents us from learning what the point of the protest was. Nonetheless, it does show the ability of the citizens as a group to petition the king about a particular abuse—and in fairly bold terms. Similar group petitions are found elsewhere in the Hittite sources. Paragraph 55 of the Hittite Laws records the king’s accession to a petition by a certain class of feudal tenants to receive equal treatment to that of other classes. In a document from Ugarit (PRU IV, RS 17.130; see

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Nougayrol 1956: 103-105), a vassal state of the Hittites, the king of Ugarit petitions the Hittite emperor on behalf of his free citizens, who have complained that Hittite merchants are “heavy upon the land.” The emperor grants a seasonal restriction on the merchants’ activities at Ugarit. By contrast, the dire political consequences of failing to heed popular grievances are revealed in the biblical account of king Rehoboam’s refusal grant a petition of his citizens led by one Jeroboam (1 Kgs 12:1-20). The Old Babylonian decrees do not mention any specific occasion for the promulgation; the only motivation given is religious—that it is pleasing to the god of justice.18 The same motivation, it should be noted, is present in the Hittite decree. Tudhaliya’s remark that he refurbished the gods would appear to have no relevance to his account, unless it is to suggest that part of the “refurbishment” was to correct injustices displeasing to the gods. Fear of the gods may provide a clue to the specific occasion for some of the decrees. It will be recalled that the edict of Uru-inimgina referred to the release of debts as a process of “cleansing.” If an accumulation of injustice could, like murder or sacrilege, ritually pollute the land, then the anger of the gods would express itself in general disasters such as crop failure, plague, and defeat in war, and debt release would be a means of assuaging their anger. An example from the Bible is the slave release decree of king Zedekiah, proclaimed when Jerusalem was besieged by the Babylonian army (Jer 34:1-10). While nothing as dramatic can be correlated with any of the Old Babylonian decrees, it is possible that their occasional nature may be linked to natural disasters, such as failure of the harvest, that resulted in a year of famine and provided good grounds political and religious, for relief of debts. Whatever the occasion for their promulgation, the one character that the decrees from cuneiform sources share is their unpredictability, depending entirely on the discretion of the ruler. The same is true of the decree promulgated in an emergency by king Zedekiah. In contrast, the equivalent measures enshrined in biblical laws—the famous Sabbatical and Jubilee years—are cyclical in occurrence and automatic in operation. Deut 15:1-3 18 An example is the following petition to the king: “When my lord raised the Golden Torch for Sippar and established equity for Shamash (the god of justice) who loves him . . .” (BM 80318; see Finkelstein 1965: 236).

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directly annuls debts: “Every seventh year you shall make a cancellation. The cancellation shall be as follows: every creditor is to release the debts that he has owing to him by his neighbor; he shall not press his neighbor for payment.” Lev 25:9 annuls transactions founded on debt which resulted in the alienation of family land or the enslavement of members of the family: “You shall make the fiftieth year a holy year and declare freedom in the land for all its inhabitants: it shall be a Jubilee for you and each man shall return to his estate and each shall return to his clan.” Now this cyclical aspect changes the whole nature of the debt release and ultimately destroys its usefulness. It was the very unpredictability of the decree that made it effective: it acted retrospectively and without warning on existing contracts. But a creditor, who knows that his loan is bound to be annulled at a certain point in the future and any security taken lost, will simply not give credit or will find some means of evading the release. The effect on debtors will be far worse than before, drying up their sources of credit or driving it underground into a black market. The biblical measures, unlike their cuneiform counterparts, must therefore be regarded as utopian. The question then arises, why a practical measure, which was used by Israelite kings in the same manner as Mesopotamian and Hittite rulers, was turned into an impractical one. The answer is suggested by the aftermath of king Zedekiah’s decree. The decree ordered the release of debt slaves, which indeed occurred, but subsequently the same persons were enslaved again by their former masters (Jer 34:10-11). This breach of faith elicited divine anger, as conveyed through the prophet Jeremiah: “Thus says the LORD: Because you have not obeyed me by declaring freedom, each man to his brother and his neighbor, I hereby declare freedom for you, says the LORD, to the sword, to plague, and to hunger, and I shall make you an object of horror to all the kingdoms on Earth.” In general, the Hebrew prophets repeatedly inveighed against the Israelite ruling class for their failure to do social justice: “Woe to them who make evil decrees and who write documents of suffering; to turn aside the indigent from judgment and to oppress the poor in court, to make widows their booty and orphans their plunder” (Isa 10:2). Like the prophets, but unlike the cuneiform sources, much of Leviticus and Deuteronomy derives from circles representing the voice of the opposition. In their eyes, the Israelite kings had failed in their constitutional duty; they had not taken the

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necessary measures to ensure the social justice that their divine mandate demanded of them. Since the king of flesh and blood could not be trusted to proclaim a debt release when needed, these circles advocated its removal from his discretion to the authority of the divine king and—to make sure that it happened—made its occurrence cyclical. In summary, social justice was regarded in the ancient Near East as the preservation of the status quo—as the privileges owed to each citizen as member of a family unit with a certain recognized socio-economic status. Where those privileges were lost through an act of oppression, certain mechanisms were available to restore the balance. If due to abuse of administrative power, a petition to the king was expected to result in an order canceling the administrative act and, if necessary, punishing the offender. If due to abuse of economic power, the right of redemption was available to the debtor or his family. If that right could not be exercised, there remained for debt slaves the possibility of release without payment after a period of service. Finally, the king could intervene by a general cancellation of debts and of transactions ancillary thereto. Ultimately, it was the responsibility of the king, as part of his divine mandate, to ensure that these mechanisms functioned effectively. Mesopotamian kings boasted of having fulfilled their mandate, but evidence from the Bible suggests that the practice of kings sometimes failed to live up to the ideals of social justice.

8 Slave and Master in Ancient Near Eastern Law Abstract This study considers the topic of slavery by examining a variety of sources, including law codes, contracts, trial records, narratives, and royal inscriptions, ranging from the third millennium well into the last half of the first millennium B.C.E. The article carefully distinguishes types of slaves and explains what options were available for each type to achieve freedom. Slaves were indeed treated as property by the legal systems of the ancient Near East. Still, they were afforded certain protections due to their humanity, such as restrictions on their excessive abuse and on their sale into a foreign land.

I. Scope of Study

T

he purpose of this article is to examine the legal aspects of the relationship between slave and master in the world’s oldest recorded legal systems.1 It will concentrate upon the creation and termination of slavery and the transfer and treatment of slaves by their masters. The legal capacity of slaves (marriage, contract, litigation, etc.) and liability to and of third parties in delict must be reserved for a later study. The geographic area bounded by this study is the Fertile Crescent of the ancient Near East, from Mesopotamia in the East, through Anatolia in the North, to Syria-Palestine in the West, but, for the most part, excluding Egypt. The time period covered extends from approximately the twentyfifth century B.C.E., when the earliest legal documents concerning slavery * Originally published in Chicago-Kent Law Review 70 (1995): 1631-1676. Used by permission. 1 By “master” we refer to private owners of slaves. Slaves could also be owned by public institutions, namely the palace and the temple. Special features attach to public slaves, especially temple slaves; see Dandamaev 1984: 469-584.

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were found, to the fourth century B.C.E., when, with its conquest by Alexander, the area became part of the larger Hellenistic world.

II. Historical Background The sources are mostly written in cuneiform script (in various languages),2 with the exception of the Hebrew Bible and a few documents in Aramaic. They are very unevenly divided in space and time. As the history of this period is not generally familiar to legal scholars, this article begins with a brief historical survey of the societies and cultures which form the background to the legal institutions that we are about to study. The sources from the third millennium are mostly in Sumerian, a language with no known cognates, which was spoken by a people who founded an urban civilization in southern Mesopotamia. The sources primarily date from the Old Sumerian period (twenty-fifth century through twenty-second century), characterized by independent city-states, and the Neo-Sumerian period (twenty-first century), characterized by a highly bureaucratic and centralized empire. In between these periods is the Sargonic Empire (twenty-fourth century), whose rulers spoke Akkadian, a Semitic language. In the first half of the second millennium, Akkadian divided into two dialects, Babylonian and Assyrian. Sources from this period are classified as either Old Babylonian, when their provenance is the city-states of southern and central Mesopotamia, or Old Assyrian, which mostly comprises the records of Assyrian merchants in Anatolia. The second half of the second millennium was a period of great empires, namely Egypt, Babylonia, Assyria, Mitanni, and Hatti. The population of Mitanni spoke Hurrian, a non-Semitic language, but wrote their legal documents in Akkadian. The inhabitants of Hatti, the Hittites, spoke an Indo-European language which they wrote in cuneiform. Mesopotamian sources from this period are referred to as Middle Babylonian or 2 Sigla such as YOS 8 91 are standard abbreviations used by Assyriologists to refer to publications of copies of cuneiform texts (e.g., Yale Oriental Series, Babylonian Texts, Vol. 8 no. 91). Where there exists a published edition or translation of the text, it will be given after an = sign following the siglum.

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Middle Assyrian. Syria-Palestine consisted of many small states, divided between the Hittite and Egyptian spheres of influence. Their legal records are mostly in Akkadian. The early centuries of the first millennium were marked by Assyria’s rise to universal dominion. At its zenith in the eighth and seventh centuries, the Assyrian Empire controlled the entire Fertile Crescent. Sources from this period are referred to as Neo-Assyrian. Most of biblical law can be dated to this and the subsequent period. The Assyrian Empire collapsed in 612 B.C.E. and was replaced by Babylonian hegemony. The term “NeoBabylonian” encompasses sources from the subsequent Persian period (from 539 B.C.E.), since the cuneiform sources from Mesopotamia continued to be written in the same Akkadian dialect, although Aramaic had in fact become the lingua franca of the region. The legal sources that we shall be applying are of three main kinds: law codes, royal edicts, and documents of practice. The extant law codes are as follows: 1. Codex Ur-Namma (CU): Twenty-first century, from Ur in southern Mesopotamia. Written in Sumerian. 2. Codex Lipit-Ishtar (CL): Twentieth century, from Isin in southern Mesopotamia. Written in Sumerian. 3. Codex Eshnunna (CE): Eighteenth century, from Eshnunna in central Mesopotamia. Written in Akkadian. 4. Codex Hammurabi (CH): Eighteenth century, from Babylon. Written in Akkadian. 5. Hittite Laws (HL): Fourteenth century, from Anatolia. Written in Hittite. 6. Middle Assyrian Laws (MAL): Thirteenth century, from Assur in northern Mesopotamia. Written in Akkadian. 7. Neo-Babylonian Laws (NBL): Sixth century, from Babylon. Written in Akkadian. 8. Covenant Code, essentially Exodus 21:1-22:16. Ninth century? Written in Hebrew. 9. Deuteronomic Code, mostly in Deuteronomy 21-25: Seventh century. Written in Hebrew.

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Although modern scholars call these law codes, I subscribe to the view that these documents are not legislation in the modern sense, but rather academic treatises on law expressed in casuistic form.3 Kings occasionally decreed the cancellation of existing debts and related transactions. These are genuine examples of legislation, if somewhat narrow in scope. We shall refer to four such edicts: by King Uru-inimgina (Sumerian, twenty-sixth century), Ammi-aduqa (Babylonian, seventeenth century), Tudhaliya IV (Hittite, thirteenth century), and Zedekiah (Hebrew, sixth century). The documents are mostly records of legal transactions such as sale, hire, redemption, etc., with a much smaller number of litigation records and miscellaneous records such as letters. Most of those documents date from the Old Babylonian and Neo-Babylonian periods. The Middle Babylonian period contains a number of small but significant archives, from Nuzi in Mesopotamia, a city in the Empire of Mitanni, and from Emar, Alalakh, and Ugarit, cities in Syria. The Neo-Sumerian period has yielded a number of litigation records, a relatively rare genre. In total, there are, by a conservative estimate, more than twenty thousand such documents already published, any of which might touch upon the question of slavery. A comprehensive view of slavery in the ancient Near East is not attainable in the present state of research. At most, one may hope to ascertain the salient features of that institution’s legal framework. On the other hand, the task is made easier by the fact that, in spite of the huge distances of time and space and the many different languages and cultures involved, the societies of the ancient Near East did share a common legal tradition which persisted throughout the period in question with no radical change and is particularly noticeable in the academic tradition of the law codes.4 We may be confident therefore that throughout the gamut of sources, from Old Sumerian to Neo-Babylonian, we are dealing with essentially the same underlying laws of slavery.

3 Argued by Kraus in his seminal article in 1960; and elaborated by Bottéro 1982. For the most recent summary in English of this much-debated question, see Westbrook 1989a. 4 See Westbrook 1988a: 82-97.

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III. Definition In law, a slave may be defined as a person who is owned by another in the manner of a chattel, subject only to special considerations that may arise from his humanity. Such considerations may affect the extent to which the rules of property law are applied and may vary from system to system, but they do not derogate from the basic status. Applying this definition to the systems of the ancient Near East, however, is complicated by two factors: 1) the ambiguity of native terminology; and 2) the plethora of servile conditions that share some of the characteristics of slavery but were nonetheless distinct in law. A. Terminology The native terminology can be misleading. In the strongly hierarchical societies of the region, the term “slave” was used to refer not only to a person owned in law by another but to any subordinate in the social ladder. Thus, the subjects of a king were called his “slaves” even though they were free citizens. The king himself, if a vassal, was the “slave” of his emperor, and kings, emperors, and commoners alike were “slaves” of the gods. A social inferior, when addressing a social superior, referred to himself out of politeness as “your slave.” Context is the only criterion for determining which nuance of the term is implied, and in a legal context that will normally be the legal meaning. Also, slaves can usually be identified by the lack of a patronymic, but this is by no means always the case. The names of free persons were not always written with a patronymic, while slave names with a patronymic are occasionally encountered. Akkadian sources also occasionally use the terms “boy” and “girl” for slave and slave-woman, with no indication except context to indicate whether a free child or a slave, who may well be an adult, is meant.5 B. Slavery and Servitude Slavery is a separate status and should be distinguished from the following servile conditions: 5 See CAD  231-34; and Finet 1972.

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1. Family The authority of a head of household over other members of the family gave him powers that were, in some cases, analogous to those of a property owner. He could sell his children into slavery or hire out their labor, or he could hand over his wife or children by way of pledge to secure a debt. A son owned no property while his father was alive, and a wife’s dowry was subsumed into the marital assets that were controlled by her husband. On the other hand, this is one area where terminological differences are maintained. Although a husband is often called the “master” of his wife, neither wives nor children are ever referred to as the “slaves” of the head of household. Furthermore, a son had a vested interest in his father’s property, of which he could not be divested except for cause and by a court order (CH 168-169). In addition, if a father chose to allot his son his share in the father’s lifetime, the son became present owner of that property and did not lose his status as a son. Similarly, a wife remained the theoretical owner of her dowry, as a fund which was to be restored to her on termination of the marriage, and might have legal possession of certain items of it, such as clothes, jewelry, and personal slaves. A wife who was guilty of certain marital offenses could be divorced without compensation or, if the husband chose not to divorce her, she would dwell in his house “like a slave,” i.e., deprived of her status as a wife and of her dowry (CH 141). Although members of the family other than the head of household held a subordinate status, it was a separate status in law with its own special rules, which only occasionally coincided with those of slavery. 2. Serfdom At various periods there is evidence of classes of workers attached to an institution (palace or temple) or to an estate, whom modern scholars have classified as serfs.6 The native terms attributed to this status are manifold

6 I. Gelb compares 20 distinct features of slaves and serfs (1970: 81-92; cf. Gelb 1979). Diakonov points out, however, that most of these features are non-essential and lists 18 features himself (1974: 55-63).

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and varied greatly from society to society.7 While economically they may have shared the condition of slaves, it is doubtful that these classes of persons shared their legal status, although it is impossible to state to what degree they lacked freedom.8 The few references in law codes do not contrast their legal treatment with that of free men, as is regularly the case with slaves.9 3. Pledge Debtors could give themselves or persons under their authority to creditors by way of pledge. The resulting conditions were analogous to those of slavery: the pledge lost his personal freedom and was required to serve the pledgee, who exploited the pledge’s labor. Nonetheless, the relationship between debtor and creditor remained one of contract, not property. Since the pledgee did not own the pledge, he could not alienate him, nor did the pledge’s property automatically vest in the pledgee. It was in the nature of a pledge that it could be redeemed by payment of the debt, at which point the pledge would go free. During the period of his service, failure by the pledge to fulfill his duties led to contractual penalties, not punishment under the general disciplinary powers of a master. The contract could, however, contain a forfeiture clause whereby the pledge was reduced to slavery. A Middle Assyrian example reads:10 A. and B. have borrowed 5 homers of barley, the property of C., from C. They shall pay the capital, the barley, within x months. When the due date is past they shall pay 2 mina of tin. As pledge ( apartu) for this tin, C. holds their field or house or threshingfloors or wells or sons or daughters. When the due date is past,

7 E.g., g u ru , e r i n in Sumerian texts; miqtum, n i biltim in Old Babylonian; hupparas, LÚ giTUKUL in Hittite; ikkaru, u nu in Neo-Babylonian. 8 Diakonoff (1974: 58-59) includes in his list four “legal” features. They are not very revealing. Only “Alienability” differs; slaves are alienable, serfs are not or seldom so. The others are “Freedom of movement” (no), Emancipation (rare), Legal rights (limited/subject to change). 9 CL 15-16 (miqtum); HL 40-41 (LÚ giTUKUL). 10 KAJ 66 = David and Ebeling 1929: no. 55.

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Writings of Westbrook, Vol. 1: The Shared Tradition their pledges are acquired . . . . A. and B. have received the tin as purchase price of their pledges.

Any children given as pledge could presumably then be sold. The alienability of the former pledge is made explicit in this contract:11 (Concerning a loan of 6 shekels) C. wife of B. has been handed over to A. as a pledge (mazzazz nu). If he (B.) does not pay the silver in two months, C. wife of B. may be sold. Pledge frequently had an antichretic character. In other words, the person pledged was employed by the creditor in lieu of payment of interest on the loan. The result could be a form of service that lasted for many years, even for life. An antichretic pledge contract from Nuzi reads as follows:12 Thus says A. son of X. Before witnesses he declared as follows: “I have received 12 mina of tin; I have caused myself to enter the house of B as pledge (tidenntu) and do his work. When I have done his harvest, I shall return 12 mina of tin to B and cause myself to go out of B’s house. If I neglect the work of B for a single day, I shall pay one seah of barley to B as a penalty.” He who violates the agreement shall pay one ox. The period of service here is relatively short—until the end of the harvest. In other such contracts, however, the period could be up to fifty years, and it is to be noted that the stated period was a minimum. A. had to wait until after the harvest to free himself. If he did not then pay, he remained in service. Note that the penalty for absence was contractual and that repayment was by the pledge himself. 4. Distraint Where a debtor was in default, the creditor was entitled to distrain his property, including slaves, as well as members of his family. In the Old 11 ARM 8 71 (Old Babylonian). 12 HSS 5 40 = Eichler 1973: 126.

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Babylonian period, this power (nepûtum) is the subject of letters and of some legal regulations. Persons distrained could be held prisoner and possibly forced to work for the creditor, but the evidence suggests that they could not be sold to satisfy the debt. The purpose of distraint appears rather to have been to put pressure on the debtor to repay:13 After you went away on a journey A. came and, with the statement “He owes me one-third of a mina of silver,” distrained your wife and daughter. Come and get your wife and daughter released before they die from being kept in detention. Please! 5. Ki tum Like distraint, this Old Babylonian term refers to a non-consensual form of servitude, but in this case it arose ex delicto. It appears to have been the penalty for certain minor offenses, such as petty theft. The basic system of retribution for offenses that would be regarded as crimes in modern legal systems was a dual right that accrued to the victim (or his family): 1) revenge against the culprit (or his family), or 2) the acceptance of a payment by way of ransom in lieu of revenge. This right was a legal right, regulated by the courts who intervened to fix not only the appropriate level of revenge but also, in less serious cases, the appropriate ransom. In the latter case, revenge was only available if the ransom was not duly paid. Ki tum reflected this duality, falling at the lower end of the scale. Revenge was loss of freedom; if the culprit could not pay the ransom (fixed or negotiated according to the circumstances of the case), the victim was entitled to take the culprit or members of his family or possibly one of his slaves into servitude.14 In a sense it was servitude for debt, because if the ransom were ever paid, the person was released. There is indirect evidence, however, that the perpetrator could not be sold to a third party to realize the ransom. According to CH 117, family members given for ki tum were to be released after three years, but CH 118 provides that a slave given for ki tum was not released. Instead, the slave could be sold by the creditor if not redeemed within a three-year period. 13 UET 5 9 = Kraus 1959: 28. 14 See Westbrook 1996b.

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The permission accorded by CH 118 to sell slaves after a grace period assumes an incapacity to sell free persons in the same condition. C. Categories of Slavery The status of slavery itself was not monolithic. The legal regime applied might differ in some aspects as between categories of slaves and even as between individual slaves. Three principal factors were responsible: 1. Social Justice The legal systems of the ancient Near East contained various laws and measures of social justice for the relief of debtors. They applied not only to persons held by way of pledge, distraint, etc., but often explicitly included persons sold into slavery, where the sale arose from indebtedness. The rationale was that sale in such cases was merely an outward legal form, the true transaction being forfeiture for debt, which should be treated in the same way as pledge or distraint.15 The effect of these rules was to create in practice two classes of slavery—debt-slavery and chattel-slavery—with different consequences in terms of manumission. A third class was constituted by what we shall term famine-slavery. The law intervened, to a more limited extent than with debt-slavery, to protect persons who entered into slavery under duress due to famine at a time of general calamity. Restrictions on the maltreatment of slaves also differed according to class of slave. 2. Contract A characteristic feature of legal transactions recorded in cuneiform is the use of contracts ancillary to the creation of a legal status. Although contractual agreements could not directly annul or amend the rules that defined a status, it was possible for contractual terms to achieve the same purpose indirectly. For example, the status of marriage gave a wife the right to divorce her husband at will, but the marriage contract would im-

15 See Westbrook 1991b: 90-117.

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pose a penalty on the wife for her exercise of that right.16 Where slavery was created by contract, especially where self-sale was involved, the rules of the status could be affected in an analogous way. The terms of the contract could ameliorate the slave’s condition, making it closer to other types of servile condition such as pledge, or they could reduce it, for example by stultifying the effect of rules of social justice. 3. Citizenship/Ethnicity Foreigners in the ancient Near East were in a precarious situation. They had no legal rights outside of their own country or ethnic group unless they fell under the local rulers’ protection. Even their lives were not safe. When the Egyptian envoy Wen-Amon was ship-wrecked on Cyprus, the inhabitants sought to kill him, and he only saved himself by forcing his way through to the local ruler and claiming her protection. Similarly, Genesis 12 narrates that when Abraham and his wife Sarah went down to Egypt, Abraham asked his wife to pretend to be his sister, for fear that the Egyptians, seeing her beauty, would kill him in order to take her from him. Involuntary enslavement was therefore a distinct possibility. Protection could be acquired in several ways. Between states enjoying friendly relations, the rules of international law obliged the local sovereign to forbid and to punish crimes against the citizens of the other state committed on his territory, and he would be held accountable by the victim’s own sovereign. A foreigner who had no allied sovereign to support him would seek to be designated a resident alien, a status that gave him protection against involuntary slavery, but not necessarily the benefit of social justice measures that citizens enjoyed.17 Many such measures were expressly limited to citizens or to members of the local ethnic group. Furthermore, even within a state, the privileges of residence might have had only local validity. As a Babylonian proverb remarks: “A resident alien in another city is a slave.”18 Inevitably, foreign slaves were heavily represented in the category of chattel-slaves.

16 See Westbrook 1988b: 58-59, 79-85. 17 Akkadian ub ru, Hebrew gr. See Kühne 1973: 29 n.128. 18 Lambert BWL 259 (= AJSL 28 242); edition in Lambert 1960a: 259.

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D. Biblical Law The slave laws of the Bible offer a special complication because biblical Hebrew does not appear to have had special terminology for servile conditions apart from slavery. As a result, not only debt-relief laws, but all laws protecting pledges, etc., were applied to slaves. The main distinction was between native and foreign slaves, it being assumed for the purposes of social justice measures that all native slaves were debt-slaves.19

IV. Creation A. War Foreigners captured in war were booty, which could be dealt with as the captor saw fit. They could be held for ransom, exploited as labor, or resettled.20 They were not automatically slaves, but they were without rights and therefore potential slaves. Indeed, they were without the legal complications of domestically created slaves, since their enslavement was in the nature of acquisition of ownerless property. Although war might be expected to be a prime source of slavery, there is very little mention of slaves from this source. In the cuneiform writing system, the Sumerian ideograms for slave and slave-woman were originally pictograms composed of the signs MAN+MOUNTAIN and WOMAN+MOUNTAIN, respectively, suggesting that in early times (i.e., the fourth millennium) the mountains to the East of the Tigris-Euphrates Valley, which, in Sumerian eyes, were populated by hostile barbarian tribes, were raided for slaves. At the end of the third millennium, a NeoSumerian king, Shu-Sin, boasted: 21

19 The Covenant Code describes a procedure (Exod 21:5-6) whereby a debt-slave voluntarily becomes a chattel-slave, but the parallel slave-regulations of Lev 25 (considered by biblical scholarship to be from a different source) do not appear to recognize this possibility. 20 See CAD /1 248-50. 21 Kutscher Brockmon Tablets 90 iv: lines 15-31.

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He blinded the young men whom he captured in their cities and gave them as . . . in the orchard of (the gods) Enlil and Ninlil and in the orchards of the great gods. And the young women whom he captured in the cities he devoted to the weaver’s mills of Enlil and Ninlil and to the temples of the great gods. Such slaves were regarded primarily as a royal resource, the male prisoners being blinded as a security measure, and therefore of limited usefulness. Some Old Sumerian contracts were for the sale, at a discount, of “blinded men” (i gi -nu-du 8 ), the sellers being orchard-keepers and in one case a state employee.22 They may then allude to some traffic of royal prisoners in the private sector. There is more positive evidence for the private acquisition of captured girls, who would obviously be more suited for private domestic service. A contract from Nuzi contains the declaration:23 (Ms.) A. of the land of Arrapha I took from the land of Kukapshuhena as booty(?) to my chariot and sold her to B. son of X. Similarly, a Neo-Babylonian contract reads:24 A. son of X. has voluntarily sold to B. son of Y. his slave-woman C. and her daughter of 3 months, an Egyptian from his booty of the bow, for 2 mina of silver as the full price. Deut 21:10-14 laid down rules for a soldier wishing to marry a woman that he had captured: When you go out to war against your enemies and the LORD your God gives them into your hand and you take captives: if you see among the captives a beautiful woman and you desire to marry her, you shall bring her into your house and she shall shave her head and pare her nails and remove the garment of captivity and sit in your house and mourn her father and mother for one month 22 SRU 40-42. 23 JEN 179 = Saarisalo 1934: no. 28. 24 Camb. 334 = Dandamaev 1984: 107.

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Writings of Westbrook, Vol. 1: The Shared Tradition and thereafter you may consummate the marriage with her. But should she not please you, you shall send her out where she will (i.e., be divorced and leave as a free woman); you shall not sell her, and you shall not reduce her status (tit‘ammr) because you have shamed her.

The Hebrew verb here translated “reduce her status” is found elsewhere in the Bible only in Deut 24:7, where it refers to the act of selling a kidnapped free man into slavery. The basis of the present law is therefore that a prisoner was not yet a slave but had the potential to be one. Here the intervening marriage interfered with the normal rights of the captor and rendered it unjust for him to exercise them should he then terminate the marriage. B. Kidnapping Involuntary enslavement applied only to foreigners. With respect to one’s fellow citizens, the law codes contained stern injunctions against kidnapping free persons for the purpose of reducing them to slavery: CH 14: If a man steals the young son of a man, he shall be killed. Exod 21:16: A man who steals a man and sells him, and one in whose hand he is found, shall be put to death. The safest course was to sell the kidnap victim abroad, as is illustrated by the story of Joseph. Judah urged Joseph’s brothers not to kill him but to sell him to a caravan of foreign merchants on their way to Egypt, a transaction which was ultimately made by some passing Midianites (Gen 37:25-28). An Old Babylonian administrative order alludes to the misadventures of a child sold abroad due to the fortunes of war but apparently later acquired in ignorance by a local citizen: 25

25 AbB 6 80. Siegel suggests that her freedom was made possible by reconquest from the Elamites of the area in which she lived (1947: 44, 46).

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A free lady, a native of the city of Idamaraz, was deported by the Elamites with the general population but without her family. Her wet-nurse sold her. Her city has attested that she is a free lady. Her present owner, (in) the city of Muti-abala, has not freed her; he has detained her in his house. Judgment should be given according to the order. C. House-Born In Old Babylonian slave-sales it was occasionally noted that a slave is “house-born” (wilid b tim).26 In one such document, the slave-girl was said to have been “born on the roof.”27 Such slaves could have been the offspring of a union of master and slave, as attested in the law codes (CL 25, CH 171) or of slaves. In a Neo-Sumerian court record a slave claimed to be a free man, but was proved to have been born in the late master’s house as the son of a slave of the latter and was therefore assigned to the late master’s heirs.28 D. Debt If a debt fell due and the debtor was unable to pay, the creditor could seize goods or members of the debtor’s family in order to force him to pay the sum owing. In the latter case the Old Babylonian law codes spoke of the creditor detaining the distrainee in his house and imposed severe penalties should the distrainee have been killed there by beating or abuse (CE 23, CH 115-116). The selection of this special situation, rather than slavery in general, as the locus of a discussion of abuse suggests to us that the simple alternative of selling the distrainee to realize the sum of the debt was not available to the creditor. Enslavement for debt required a voluntary act by the debtor, at least in law. Contracts of sale into slavery for debt made efforts to emphasize the voluntary nature of the sale, especially where the debtor was selling himself. In practice, the debtor may have been left with

26 E.g., YOS 13 248:2. Further references in CAD I/J 71. 27 Sumerian: ù r . r a . tu . u d . d a. YOS 12 74:2. 28 NSG 32.

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no choice. CH 117 speaks of a loan “seizing” a man, so that he sells his wife, son, or daughter. The realities of the situation may be reflected in the ambiguous statement in 2 Kgs 4:1: One of the wives of the prophets cried out to Elisha: “Your servant my husband has died . . . and the creditor comes to take my two children as his slaves.” Was the creditor acquiring slaves by distraint, something that we have argued was not possible in neighboring legal systems? Given the absence of special terminology in biblical Hebrew, it may indeed be that two legal institutions were fused in law. On the other hand, this non-legal text may merely be alluding to the widow’s helplessness in the situation. The same circumstances are described in the opening lines of a court record from Emar: 29 Before X. and the city elders: A. owed B. 25 shekels; then A. died and his two children entered B.’s house and he released the 25 shekels. Now B. has produced the two children of A. before X. and the elders and before their (paternal) uncles and declared: “Take your two nephews and repay me my 25 shekels . . . . These two nephews have entered voluntarily into slavery with me.” Where a sale took place, it could be to the creditor himself or to a third party. We have already seen that pledge contracts could contain a foreclosure clause converting the pledge into sale to the creditor or allowing the creditor to sell the pledge. In the absence of pledge, direct reference to the loan could be made in the contract of sale; such reference occurs in a NeoAssyrian document: 30 A. has purchased and acquired B. daughter of C. from C. in lieu of 30 shekels of silver belonging to A. and to (the goddess) Ishtar of

29 Arnaud Emar 6 205. 30 Kwasman NA Legal 401.

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Arba’il. In lieu of his debts he has given his daughter to A. That woman is paid for and acquired. An Old Babylonian document where the purchaser was a well-known financier expresses the same in the case of a self-sale:31 Balmunamhe has purchased A. and B., the sons of X . . . from themselves. He has paid one-third of a mina of silver for their loan as their full price. An Emar document records sale to a third party who effected a purchase of the debtor’s loans: 32 Before the elders of the city of Ur, A. son of X. stated thus: “I was indebted for 100 shekels of silver, and B. son of Y. has paid my debts. In exchange for my debts that he paid for me, I, together with my two wives, . . . have of my own free will entered into the slavery of B.” This is the silver for which he entered: 70 shekels of silver given to C., 10 shekels of silver given to D., 20 shekels of silver given to E. Debt did not only arise from loans. Certain types of delict created a debt in the culprit to the victim or his family which, if not paid, might be satisfied by sale of the culprit into slavery. Thus CH 53-54 ordered that where a negligent farmer had managed to flood the whole district and did not have the means to compensate all his neighbors for their loss, the latter could sell him and his property and divide the proceeds among themselves. Similarly, in Exod 22:2 a burglar caught breaking in had to pay the householder a ransom for his freedom, and, if he could not, was to be sold “for his theft.”33 The same rule would seem to lie behind a Neo-Sumerian trial report which recorded the sale of the culprit’s family:34

31 32 33 34

YOS 8 31 = Mendelsohn 1949: 15-16. Arnaud Emar 6 215. For an analysis of this law, see Westbrook 1988d: 124-26. NSG 42.

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Writings of Westbrook, Vol. 1: The Shared Tradition A. gave B., the wife of C., his (C.’s) daughter D., and E., the slave of C., to F. and G. in slavery because C. had robbed him (A.).

In another of these records, the victims elected to keep the culprit’s family for themselves as slaves, after the culprit’s death (execution?):35 It was established before the grand vizier that A. son of X. had killed B. Y. was presiding officer when, because A. was killed, his estate and wife and daughter were handed over to B.’s sons. In the fifth year A.’s wife and daughter ran away from B.’s sons, but B.’s sons caught them. Finally, in a document from Emar, a person accused of theft reached a settlement whereby he avoided slavery for himself:36 A. stole the slave of B. and was caught with that slave. They brought him to judgment before the king, and the king gave the nobles of the town of S. to the oath. The king declared: “If the nobles swear, A. shall remain to B. as a slave.” A. did not wish to agree to the nobles swearing; he gave his sister to B. as a slave in exchange for himself. In the future A. may not raise claims against B. E. Famine In contracts written in the town of Nippur when it was under siege by Nabopolassar, children were sold into slavery in exchange for their being kept alive and for money for food for their parents:37 A. spoke thus to B.: “Take my . . . daughter C. and keep her alive. She shall be your slave. Give me 6 shekels of silver so that I may eat.”

35 NSG 41. 36 Arnaud Emar 6 257. 37 Iraq 17 no. 2 (NT 97).

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Enslavement for famine was similar to enslavement for debt, but was not always identical. The sale of a child in times of famine could always be regarded as a sale made under duress with the price being a debt. Sometimes, however, there was no price. Rather, free persons gave their children or themselves into slavery in return for being kept alive until the famine was over. A small group of contracts among the Middle Babylonian records from Nuzi, mostly from the business archive of a single financier, Tehip-tilla (and his son Enna-mati), involved persons who voluntarily entered his house as slaves.38 The reason was not stated and no money changed hands. Some of the contracts describe the subjects as  biru, referring to a marginal category of people who would, for the most part, have been landless, or as being of foreign origin.39 It is reasonable to assume therefore that such contracts concerned self-enslavement by reason of famine. They contained some remarkable clauses, some of which are typical of famine-induced slavery and others which are best explained as attempts to avoid the rules of social justice that applied in that situation. A Neo-Babylonian contract is more explicit:40 In that time, A. spoke thus to B., the scribe of Sippar: “Keep me alive and I will be your slave.” B. agreed and established food rations for her. The question then arose whether such a person was to continue in slavery once the famine was over. If not, how long was he to serve? If he could be redeemed, at what price, since there was no debt to provide a criterion? The legal principles that applied to famine-induced contracts will be discussed below under the heading “Termination.” Famine also resulted in the abandonment of children. If a passerby saved an abandoned child, he might adopt him, as was the good fortune of Moses, or he might take him as a slave. We have little evidence on the latter case, but in an Old Sumerian slave sale the slave’s name was “Foundin-a-well” (t ul -t a -pa d-d a) which was a standard mode of describing a 38 JEN 446-465, 610, 611, 613. Edited by Bottéro 1954: 43-61; and Greenberg 1955: 23-28, 30-32. 39 For a detailed discussion, see Bottéro 1954 and Greenberg 1955. 40 BM 74652 = AfO 16 37 (plate III).

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foundling.41 A slave taken as a foundling would presumably be ownerless property, like a prisoner of war. In the case of adoption, the possibility of the natural parents reclaiming the child under certain circumstances was considered in the law codes.42 Whether the same applied to an enslaved foundling is an intriguing, but as yet unanswerable, question. F. Penalty Slavery also arose from the operation of contractual penalty clauses. A Sumerian-Akkadian dictionary of legal phrases (mid-first millennium) contains the following standard clause:43 If a son says to his father “You are not my father,” he will shave him, place the slave-mark (abbuttu) upon him and sell him. The words quoted are the verba solemnia dissolving adoption. A wife who pronounced the divorce formula might be visited with the same penalty. An Old Babylonian contract contains the clauses:44 If A says to his wife B, “You are not my wife,” he shall pay half a mina of silver. If B says to her husband A, “You are not my husband,” they will shave her and sell her. Similar clauses are also occasionally found in commercial agreements. An Old Babylonian labor contract reads:45 A. and his son shall make their labor available to B. Yearly B. shall give them 1 kor of barley, 1 garment, and a shirt. A. and his son have sworn by (the god) Ninurta that if they abandon the work, B. may sell them.

41 42 43 44 45

SRU 43. CH 185-186; cf. MSL I 3 III 28-57. MSL I 7 III 23-28. BE 6/2 48 = Westbrook 1988b: 115-16. Kienast Kisurra 88.

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Such a delinquency clause is even found in a slave sale contract, as part of the seller’s warranty:46 A. has purchased a slave-woman named B. from her brothers C. and D. If she abandons (her work), they will become slaves (in her place). In an unusual case, a Neo-Babylonian document reveals that a young woman called the penalty of slavery upon herself for immoral conduct:47 If A., daughter of X., is seen with B., son of Y., and he leads her to himself under false pretenses . . . but she does not say to the master of the house “Inform Y. the father of B.,” then A. will receive the mark of slavery.

V. Termination A. By Manumission The Neo-Sumerian records of litigation include a number of disputes between slaves and the heirs of their owners. For example:48 The heirs of A. sued the daughters of B., slave of A. C., daughter of B., brought before the vizier a tablet of A. (stating) that A. in his lifetime had appeared and declared: “By the king’s oath! I free the daughters of B., my slave.” The daughters of B. severed themselves from the heirs of A. In spite of the wording of the oath, it appears that manumission was only to be postmortem, leading to disputes when the heirs sought to claim their inheritance.49 In NSG 99:15-51, on the death of the slave-owner, his heirs claimed a slave from their mother, but she was able to prove that their 46 47 48 49

Steinkeller Sale Documents 45 (Neo-Sumerian). Cyr. 307 = Dandamaev 1984: 105. NSG 205:27-42. Cf. NSG 75, 178:12-23, and the discussion by Falkenstein 1956-57: vol. 1, 94-95.

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father had given her the slave as a gift during his lifetime. She then freed that slave’s daughters, and the heirs swore an oath not to “change their mother’s word.” The reference is to respecting her testamentary dispositions when they eventually inherited from her.50 The motivation for manumission in these cases is not mentioned, and it may well have been pure liberality on the owner’s part. But documents of manumission from later periods for the most part record reciprocal arrangements whereby the slave was freed in return for continuing to look after his master, especially in old age. These arrangements were of two kinds. In the first, the master manumitted the slave upon his death, in return for support during the rest of his life, as in a document from Elephantine: 51 A. son of X., a Jew of Elephantine the fortress of the Iddinnabu detachment, said to B., his slave-woman who is marked on her right hand “Belonging to A” thus: “I took thought of you in my lifetime. I have set you free at my death, and I have freed C., your daughter whom you bore me. A son or daughter of mine or brother or sister, near or distant (relative) . . . has no right to you or to C., your daughter whom you bore me, has no right to brand you or sell you. Whoever lays claims to you or to C., your daughter whom you bore me, shall be liable to you for a penalty of 50 karsh of silver . . . . You are freed, from shadow to sun, and your daughter C., and another has no right over you and your daughter C.; you are freed to God.” And B. and her daughter C. said: “We shall serve you as a son or daughter supports his father during your lifetime, and upon your death we shall support your son D., like a son who supports his father, as we shall have been doing for you during your lifetime. If we arise and say: “We will not support you like a son who supports his father nor your son D. after your death,” we shall be liable to you and your son D. for a penalty of 50 karsh of silver.” 50 Cf. CL 31: “If a father in his lifetime has made a gift to a favorite son and drafted a sealed tablet for him, after the father’s death the heirs shall divide the father’s estate, but they shall not claim his share; they shall not . . . their father’s word.” 51 Kraeling 5 = TAD B3.6.

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According to CH 171, a master’s slave-concubine and his issue by her were to be freed automatically upon his death. That surprising piece of liberality was not widely emulated, and here we see that it had to be achieved through an express contractual clause. Three further points should be noted with respect to this document. First, the manner of the slaves’ service was to be like that of a son caring for his father. Second, the slaves’ obligation continued after their master’s death with respect to his son even though they were free; they were bound by contract, not status, from that point on. Third, even during their remaining period of slavery, the grant of freedom was irrevocable. Their misconduct would result in a contractual penalty, not in cancellation of the grant. The contract thus mitigated the effects of slavery, at least in law. In practice, however, the impossibility of paying the huge penalty would inevitably lead to their re-enslavement. The second method was to free the slave immediately and adopt him, thereby ensuring for the manumitter the duties of support imposed by analogy in the Elephantine contract. The duty thus arose from status, but the status of a son, not a slave. According to an Old Babylonian contract:52 A. is the son of B. His mother B., the priestess, daughter of X., has purified him; she has placed his face to the sunrise.53 If A. continues to support B. as long as she lives, after her death no one shall have any claim upon A; he is purified. No one from among the children of X. or the children of Y. shall raise a claim against him. Failure to support was a breach that would lead to the loss of his status as son. He would then be liable to be reclaimed as a slave by his mistress’s heirs. An Old Assyrian contract provides further details:54 A. son of X. has purified the forehead of his slave B. As long as his father A. and his mother C. live, he shall support them and serve them. After (the death of) his father A. and his mother B., he

52 CT 8 48a = Schorr 1913: no. 27. 53 This is a reference to a ritual of manumission; see Malul 1988: 41-51. 54 Kraus AV 359-85.

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Writings of Westbrook, Vol. 1: The Shared Tradition shall receive x acres of land and one ox. If A. reclaims him, he shall pay 2 mina of silver, and if B. repudiates A. and C. and leaves, he shall be sold in the town market where he is spotted.

It can be inferred that the slave was adopted upon manumission. The contract was unusually favorable to the slave. He was allotted an inheritance share, which is unusual in this type of manumission. The penalty on his former master for attempting to reclaim him as a slave was very large while the penalty on the former slave was standard for repudiation by an adoptee. Occasionally, a contract manumitted forthwith and stipulated service without adoption of the freed slave.55 In such cases, it would appear that the obligation to serve once free was based on contract alone. The consequences of a breach would not have differed significantly, as a NeoBabylonian document reveals:56 A., son of X. descendant of Y., sealed a tablet of free status of his slave B. (in return) for giving food and clothing. After he had sealed the tablet of free status, B. ran away and did not give him food, oil, and clothing. But C. daughter of Z. etc., the wife of D. son of A., served, honored, and looked after him. A. voluntarily annulled B.’s tablet of free status and sealed a tablet assigning (B.) to C. and her daughter F., the daughter of D. son of (A. descendant of) X. C. and her daughter F. shall serve (A.), and after C.’s death he (B.) will pass to F. A document from Ugarit records a contract wherein an owner manumitted his slave-woman and married her off, receiving from the groom the betrothal payment that would normally be paid to a parent or guardian:57

55 See e.g., the text cited in Roth 1979: 108-9: “A. has freed [his slave-woman B.]. He has purified her forehead, he has broken the pot of her slavery, and he has executed a document concerning her purification. As long as she lives, she shall serve him. A., the father, while still alive, has sworn by the king that after A. dies, A.’s heirs shall not claim her for slavery.” 56 Nbn. 697 = Dandamaev 1984: 438. 57 RS 8.208 = Thureau-Dangin 1937: 253-54; and Schaeffer 1955: 110-11 (in part).

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As of this day, before witnesses A. has freed B., his slave-woman, . . . (declaring) thus: “I have poured oil on her head and I thereby purify her. As the Sun is pure, so B. is pure for ever.” Furthermore, C. has taken her as his wife. C., her husband, has brought 20 (shekels of) silver and has given them to A. It is not clear from the document whether he received the payment by way of owner or parent (in which case we would need to assume an intervening adoption). In an Old Babylonian document, the mistress manumitted her slave-woman, adopted her, and gave her in marriage. No betrothal payment is mentioned in its very summary text.58 B. By Redemption 1. Debt-Slavery If property was pledged for a loan, by the nature of things that property would be released to its owner upon payment of the loan. The courts of the ancient Near East, however, extended that principle by way of equity to sales, where the sale was in effect a forced sale at under-value to pay off a debt. The seller was, under certain conditions, allowed to buy back, to “redeem,” that property at the original price, as if it had merely been pledged. This equitable principle applied only to certain types of property, in particular family land, but also to members of one’s family sold as slaves.59 As Lev 25:47-49 puts it: If a resident alien obtained means and your brother grows weak with him and is sold to the resident alien . . . after he is sold he shall have (the right of) redemption: one of his brothers may redeem him, or any of his relatives from his clan may redeem him or he may obtain the means and be redeemed. The circumstances are graphically portrayed in an Emar document:60 58 CT 2 33 = Westbrook 1988b: 116. 59 See Westbrook 1991b: 90-117. 60 Arnaud Emar 6 205, discussed in part IV. D. above.

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Writings of Westbrook, Vol. 1: The Shared Tradition Before X. and the city elders: A. owed B. 25 shekels; then A. died and his two children entered into B.’s house, and he released the 25 shekels. Now B. has produced these two children of A. before X. and before the elders and before their (paternal) uncles, and he has declared: “Take your two nephews and repay me my 25 shekels . . . . These two nephews have entered voluntarily into slavery with me.” Their father’s brothers refused to give the 25 shekels of B., and they confirmed by sealed tablet, voluntarily, the enslavement of their two nephews to B. Dead or alive, they are B.’s slaves. In the future, if C. and their father’s brothers say: “We will redeem our two nephews,” they shall give two souls for D. and two souls for E., the blind one, to B., and then they may take their two nephews.

In paragraph 119 of Codex Hammurabi, the principle is extended to a slave concubine: If a debt has seized a man, and he sells his slave-woman who has borne him children, the owner of the slave-woman may pay the silver that the merchant paid and redeem his slave-woman. Note that in this case the result was not freedom for the slave but return to her former master. A right of redemption based on ownership will return property to its previous owner or to one with a right to inherit it. That is how the system worked with redemption of family land. In the case of a previously free debt-slave, however, the right of redemption in a relative would seem to be based not on ownership or inheritance but on family authority. Thus, a slave who reverted to the authority of the head of household, for example a son redeemed by his father, would thereby be freed but once more be subordinate to his father. It is an open question whether a more distant relative acting as redeemer, such as a cousin, also acquired family authority over the family member redeemed. The redeemer certainly acquired the rights of a creditor, but with a loan that was now unsecured.

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If the line of relatives was exhausted, there existed the possibility that the public authorities could intervene. A broken Neo-Assyrian document contains the following clause:61 Whenever . . . his brothers or the prefect or his people or his governor or his prefect or the mayor of his city shall come, he shall pay . . . seventy shekels of copper and cause the man to go out. Evidently, not every debt-slave was eligible, and the circumstances under which the authorities would choose to intervene are not known. It is reminiscent of the duty of the local authorities in CH 32 to pay the ransom of a captured soldier if he did not have the means to do so himself. Ideologically, the king was the “father of his people” in matters of social justice, a role to which being a redeemer was eminently suitable.62 In a series of transactions from the Old Babylonian stratum at Alalakh, the king of Alalakh redeemed various debt-slaves from their creditors by paying their debts.63 It appears that the relation between the former slaves and their new creditor was changed to one of antichretic pledge.64 An outside redeemer might be motivated by altogether different considerations. In a remarkable Middle Assyrian case, a slave, with his master’s authority (and presumably his funds), redeemed a slave-woman from a different master, manumitted her, and married her. She was to be subordinate to her husband’s master in some way, but the contract expressly prohibited the master from enslaving her or her children.65 Prior to his marriage, the redeemer appears to have had no standing that would have given him a right to redeem, irrespective of the owner’s consent. We 61 ARU 133:4-10. The clause is apparently preceded by a previous redemption and duty to serve for the lifetime (of the redeemer?). The clause is too fragmentary to draw any conclusions. 62 CH Epilogue Col. XLVIII 20-24. It is not surprising that the God of Israel, the ultimate king and father, is referred to as the redeemer of his people, e.g., Psalm 103:4. 63 AT 28-31. 64 This is stated expressly in AT 28 and is inferred in the other documents by the statement that the capital bears no interest. 65 The transaction is recorded in two documents: KAJ 167 = David and Ebeling 1929: no. 7 (redemption); and KAJ 7 = David and Ebeling 1929: no. 1 (marriage). The husband to all appearances remains his master’s slave.

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must assume, therefore, that this special arrangement was made with the consent of all the parties concerned, including the slave-woman. The final resort, according to Lev 25:49, was for the slave to find the means to redeem himself. That arrangement was recorded in a NeoSumerian contract:66 A., the slave of B., has redeemed herself from B. She has paid him one-third of a mina of silver as her full price. As long as B. and C. live she shall do service with their spouses and children. After B.’s and C.’s death, A. may go where she pleases; no one shall raise claims against her. What was the source of funds for the slave’s redemption? If a slave could own no property of his own, how could he repay his master? In an Old Babylonian document, a slave was manumitted after she had “brought in” ten shekels of silver to her mistress, which suggests an outside source. 67 One can speculate that it might have sometimes been in the master’s interest to allow the slave, by his work or through his peculium,68 to accumulate sufficient funds for his redemption. The paradox of the NeoSumerian contract just discussed, namely that the slave has paid the full price of her redemption but must still serve under a contractual obligation in the manner of a manumitted slave, may be explained by supposing that at least a part of the payment was fictitious, being the capitalization of her future work. An Old Babylonian document is even more suggestive of this possibility:69 One slave, A. by name, the slave of B., redeemed himself. He (B.) has purified his forehead and smashed his foot fetters. He established his freedom and gave him towards the Sun. As long as B. lives, A. shall support him. After B. dies, if any of B.’s sons de-

66 UET 3 51 = Falkenstein 1956-57: vol. 1, 95. 67 BE 6/2 8 = Schorr 1913: no. 28. Antichretic pledge documents, by contrast, sometimes make express mention of the debtor’s land, which may be seized by the creditor if he absents himself from work, e.g., Eichler 1973: nos. 33, 34. 68 On the slave’s peculium, see Dandamaev 1970: 35-39. 69 Speleers Recueil 45 = Roth 1979: 110-11.

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clare as regards A.: “(He is) my slave,” he shall pay two minas of silver. 2. Famine-Slavery Where a person enslaved themselves in return for sustenance in a year of famine, there was no obvious price for their redemption. HL 172 set a standard tariff: If a man saves a free man’s life in a year of famine, he shall give his substitute. If it is a slave, he shall give 10 shekels of silver. The provision of a substitute appears to be the usual contractual practice. In the Middle Assyrian marriage arrangement just described, where the bride had originally been taken into slavery “for keeping alive and for acquisition,” the receipt of “a Subarian girl” (i.e., a foreign slave) by her owner is described as “her redemption payment (ipiri a).” Other contractual arrangements were, however, possible. A price in silver could be set by the contract, as in an Old Assyrian example:70 A., in a time of famine, gave B. and his wife to C. In a time of famine he kept them alive. B. is his slave; his wife is his slavewoman. If anyone should claim them, he shall pay two mina of silver to C. and cause them to go out. The document does not provide sufficient background information to explain the basis for the price set. The relationship between A., the couple B., and C. is not specified. In the small group of contracts of the financier Tehip-tilla from Nuzi that we have identified as famine-induced, several stipulated the provision of a substitute,71 but others imposed harsher terms. For example, in one

70 AHDO 1 106-108. 71 JEN 458 = Greenberg 1955: no. 43; JEN 463 = Greenberg 1955: no. 42; JEN 611 = Greenberg 1955: no. 65. Curiously enough, the first two refer to the payment as being for breach of contract.

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case a father had to give ten slaves in order to redeem his son.72 Some contracts sought to delay the possibility of release: 73 A. son of X. the scribe, an Assyrian, has caused himself to enter the house of B. son of Y. for slavery. As long as B. lives A. shall serve him, and when B. dies, A. shall give to B.’s son a scribe as his substitute and he may depart. B. shall furnish A. with food and clothing. If A. leaves now, he shall pay 10 mina of silver and 10 mina of gold. This contract restricted the slave’s service to the lifetime of his first owner, entitling him to redeem himself from the latter’s heir. In this respect the contract gave slavery features typical of certain types of antichretic pledges. Compare an antichretic pledge from Nuzi not involving slavery:74 Thus A. declares: “I caused myself to enter the house of B. together with my sons and the people of my house.” As long as A. lives he shall not leave B.’s house. When A. dies, A.’s sons shall give one boy of 2 cubits and one girl of the same height, and they themselves may leave. If A. leaves B.’s house, he shall pay B. one mina of silver and one mina of gold. If A. quits the work of B. for one day he shall pay the hire of a slave. In antichretic pledges from Emar, the resemblance is closer. The pledge typically had to serve for the lifetime of the creditor, after which he could redeem himself from the creditor’s heir, and penalties were imposed upon both parties for attempting to end the relationship prematurely.75 72 JEN 455:8-16 = Greenberg 1955: no. 46. 73 JEN 456:9-13+613 = Greenberg 1955: nos. 59, 60. The translation is a composite of the two sources, which are a shorter and longer version of the same transaction. 74 JEN 312:5ff. = Saarisalo 1934: no. 34; Eichler 1973: 20. 75 Arnaud Emar 6 16. Cf. also an innominate form of servitude recorded in a document from Emar which specifically mentions famine (Arnaud Emar 6 86): “A. son of X. said thus: ‘B. son of Y. kept me alive in a year of famine and paid my debt of 2 shekels of silver. As long as I live I shall serve you (apallaka). If in the future A. says to B., ‘I will leave your house,’ he may pay B. 10 shekels of silver and go where he pleases.”

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The penalty for premature termination in the Nuzi slavery contract— ten minas of silver and ten minas of gold—is absurdly large and clearly in terrorem, but it is still by no means the harshest in this group of contracts. As we shall see, cruel physical punishments were also possible. On the other hand, the contractual penalty could be even milder than the norm set by the Hittite Laws. In one contract, Tehip-tilla’s son Enna-mati supplied the person who entered into slavery with him a peculium and a wife. The slave had to serve Enna-mati and his successor, but his penalty for premature termination was nothing more than forfeiture of the wife and property received.76 Famine-slavery therefore occupied an intermediate position between debt-slavery, where redemption was a right and the price was predetermined by the original debt, and chattel-slavery, in which a slave could not unilaterally end his slavery and no contractual penalty was necessary, since any attempt by the slave to end his slavery would have no legal consequences. In famine-slavery it appears that a person saved from famine had an underlying right to redeem himself from his benefactor’s service. The terms of the right of redemption could be determined by contract. Supplying a substitute was the equitable arrangement, but the enslaver was allowed a great deal of freedom to impose terms. These terms ran the gamut from milder than the standard set in the Hittite Laws to incomparably more severe. The grounds for the terms in a particular case are hidden from us. It is not known whether there was a natural market, even in times of famine, in which the poor and their creditors competed among each other for the best terms,77 or whether there were restrictions based on the equitable jurisdiction of the king and the courts that could only sometimes be evaded. In many of the contracts with Tehip-tilla, it is stressed that the people entering into slavery with him were foreigners, which may be the reason why their rights could be so drastically curtailed by contractual clauses. Paradoxically, those clauses are at the same time evidence that the 76 JEN 610 = Greenberg 1955: no. 64. 77 In an Emar document (Arnaud Emar 6 216), the contract relates the statement of a woman that she sold her daughter to another woman in order to keep her other children alive in a year of famine. A second contract, however, (Arnaud Emar 6 217) reveals that payment on the first agreement was not made, and so instead of selling one child for 30 shekels, the couple sold all four of their children to another financier for 60 shekels.

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protection of social justice measures was to some extent available to foreigners as well, since there would have been no point in inserting in the contract a penalty for the exercise of a non-existent right. C. By Debt-Release If the debtor was so impoverished that he could not find the funds to redeem himself or his family, even at the reduced price of their original debt or sale, then redemption was a hollow right for him. The social and economic consequences of the debt-burden were such that rulers felt obliged to intervene with more drastic measures. Not surprisingly, the benefit of these measures was generally confined to citizens or members of the ethnic group. First, the courts might decree the automatic release of a debt-slave after a certain number of years of service. According to CH 117: If a debt seizes a man and he sells his wife, son, or daughter or gives them for ki tum, they shall work three years in the house of their purchaser or holder in ki tum; in the fourth their restoration (andur rum) shall be established. Andur rum is an important term, which is generally translated as “freedom.” Charpin has shown, however, that the basic root of the word means “to return to the point of origin.”78 In terms of slaves, a return to their original status would generally mean freedom, as is certainly the case here, but in certain circumstances, it would only mean a return to their previous master. The same mechanism is found in the Bible in Exod 21:2 and Deut 15:12-17. The first of these reads: If you buy a Hebrew slave, he shall work six years, and in the seventh he shall go out free for nothing. The phrase “for nothing” indicates that debt-slavery is at issue because the slave does not have to pay redemption. A remark in Deut 15:18 justifies 78 Charpin 1987: 36-41.

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the measure by suggesting that, as we have seen implied in some redemption documents, the slave’s service was deemed to have amortized the loan: It shall not seem hard to you to set him free, for he has served you twice the hire of a hired man, six years. Although the above texts from law codes give the impression of a universal rule that was applied automatically, they are, in my view, to be interpreted as indications of the courts’ equitable discretion. The law codes were not normative legislation, and there is some suspicion that rules of this nature were more ideal standards than standard practice. On the other hand, the king did have power to correct injustices even if the acts in question were within the letter of the law. There is copious evidence of the king’s exercise of this equitable role in individual cases, usually in response to petitions.79 We suspect, therefore, that the above limits on the length of debt-slavery represent criteria that the king might have applied in exercising his discretion in response to an individual petition. Indirect evidence for exercise of discretion in this regard comes from the slave contracts of Balmunamhe, a slave-owner of the Old Babylonian period. A number of transactions involving debt-slaves contained clauses making sureties, sometimes identified as the slave’s relatives, liable to pay compensation to Balmunamhe if the slave “seeks/turns to the palace or to an influential or important person.”80 In other words, if the slave gained his freedom by petitioning the king or one of his officials, the surety had to compensate the owner for his loss. When exercised on a universal basis, the king’s equitable discretion led to a more drastic solution to the plight of debt-slaves. It was the practice of kings throughout the ancient Near East to decree on their accession to the throne, and occasionally at other times, a general cancellation of existing debts. This retrospective measure—“establishing equity”—also brought to an end the service of persons pledged or sold for non-payment of debts. Thus, in the prologue to his law code, King Lipit-Ishtar boasted:

79 The king’s equitable powers are discussed in Westbrook 1988d: 9-38. 80 See Van De Mieroop 1987: 7.

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Writings of Westbrook, Vol. 1: The Shared Tradition I restored the freedom (literally, “obtained the restoration”) of the sons and daughters (i.e., free citizens) of Nippur, of Ur, of Isin, Sumer and Akkad (upon whom) . . . slavery . . . (had been imposed).

Note that the release applied only to the citizens of certain towns. The edict of King Ammi-aduqa of Babylon contained several express provisions concerning release from debt-slavery. According to paragraph 20: If a debt binds a son of the cities of Numhia, Emutbalum, Idamaraz, Isin, etc., and he sells himself, his wife, or his children or gives them for ki tum or in pledge, because the king has established equity for the land, he is released; his restoration (andur rum) is established. The wording is very similar to that of CH 117, but whereas the latter applied after a fixed period of debt-service, here the release intervened at an arbitrary point, regardless of how long the individual debt-slave may have served. Note also that those pledged, as well as those sold for debt, qualified for release. Paragraph 21 provided an exception to the foregoing rule: If the house-born slave of a son of Numhia, etc., is sold or given for ki tum or in pledge, his restoration shall not be established. A house-born slave was apparently not sufficiently a member of the family to qualify for the privileges of the release. His release would, in any case, have returned him to slavery with his former master, which was probably not the equitable result that the decree sought to obtain. This edict also released debts which arose from ki tum, which was a type of debt ex delicto resulting from the system of revenge and ransom. An early reformer, king Uru-inimgina, expressly included such debts:81

81 Edition in Steible 1982: 308-11 (Ukg. 4.12, 4.13-22 = 5.11, 5.20-29).

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The sons of Lagash who were living in debt due to interest . . . he cleared them of . . . barely taxes, theft, murder, of those . . . and established their restoration. The Hittite king Tudhaliya IV, on the other hand, made certain distinctions in his edict:82 And if someone has given ransom for blood and he has purchased himself from you, whether the ransom be a field or a person, no one shall release it. If he (the ransom-holder) has taken those things along with his (the offender’s) wives and sons, he will release him/it to him. The edict distinguished between two cases. In the first, a person had committed homicide and had paid a ransom for his own life: he had “bought himself.” This raised the question as to whether the property that he had handed over as the price of his life could be released by the decree. The edict answered in the negative, even if the property was land or persons, which referred to slaves as well as dependent members of his family. The second case is more difficult to determine because of the ambiguity (for us) of its phrasing. We tentatively suggest that the creditor, the avenger, has made a general seizure of the culprit’s property and family. The edict decreed the release of “him/it to him,” which presumably referred to the release to the culprit himself of the aforementioned property and of his family. The Bible also has laws concerning debt-release and the concomitant release of debt-slaves. According to Lev 25:10: You shall sanctify the fiftieth year and decree a restoration (d rôr) in the land, for all its inhabitants. It will be a Jubilee for you, and you shall return, each man to his family estate and to his family. In v. 54 the particular situation of the debt-slave is considered:

82 Edition in Westbrook and Woodard 1990: 643, 654-56 (II 3-8).

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Writings of Westbrook, Vol. 1: The Shared Tradition If he is not redeemed by any (of the above), he shall go free in the Jubilee year, he and his sons with him.

Release in the Jubilee year is emphatically confined to Israelites (vv. 4446): As for male and female slaves that you have—you may acquire slaves from the nations around you. You may also acquire them from aliens resident with you and from their families who are with them, who have been born in your land. You shall have them as heritable property. You shall give them by way of inheritance to your children after you, to acquire permanent title in them. The Jubilee release of debt-slaves differed from the cuneiform edicts in one vital respect: it was cyclical, coming every fifty years, and thus amounted to a prospective, as opposed to retroactive, cancellation of debts. This made it unworkable in practice, since no one would give credit under those conditions as the Jubilee approached. Why, then, did the biblical jurists remove the very factors that made a debt-release workable: its unpredictability and its retroactivity? Precisely because it was in the hands of kings of flesh and blood, who could not be relied upon to act when men of religion thought it necessary. The prophets furiously berated the kings of Israel and Judah for not doing justice and equity, among which they meant releasing debts and debtors. Just such an incident occurred during the reign of king Zedekiah (Jer 34:8-11): The word that came to Jeremiah from God after king Zedekiah had made a covenant with all the people to decree for them restoration (d rôr): for each man to free his Hebrew slave and slave-woman so that no man would enslave his brother in Judah. All the princes and people, who entered into a covenant to release etc., agreed and freed (them). But afterwards they reneged and took back the slaves and slave-women whom they had released and re-enslaved them. The king at first followed the prophet’s advice and decreed a release, using his prerogative in the customary manner of ancient Near Eastern kings. But the decree was ineffective and the ruling classes re-enslaved their

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debtors. Jeremiah was enraged with the king for breaking his word and predicted divine punishment in consequence: 83 Thus says the LORD: “You did not obey me and declare a restoration, each man for his brother and each man for his neighbor; now I declare a restoration for you, says the Lord—to the sword, to pestilence, and to famine . . . .” It is a small wonder that the circles who were responsible for drafting the Levitical law adopted an approach that avoided the pitfalls of human discretion but nevertheless fell into the trap of utopian economics.

VI. Transfer A. Alienability Slaves were treated as ordinary chattels and could be sold, pledged, hired, given as gifts, inherited, and forfeited. Although the law codes and debtrelease decrees portray them as leaving the house of the original owner, there is no reason to suppose that debt-slaves, as opposed to other types of slaves, were inalienable. As Yaron points out, there is no theoretical difficulty since any transfer would be subject to the debtor’s power of redemption. The creditor would not be able to grant any better title than he himself had.84 A Middle Babylonian document describes redemption from a transferee: 85

83 Jer 34:17. In his polemic, Jeremiah quotes the seven-year slave release law as if it were the rule to be applied by Zedekiah in this case (v. 14). But that law is inappropriate to a general release, being measured by each individual slave’s term of service, and the text cited is a garbled version of the Deuteronomic law. It is probably an editorial gloss designed to harmonize Jeremiah’s words with the provisions of the Torah. 84 Yaron 1959: 155-76 at p. 158. Contra Driver and Miles 1956: vol. 1, 218. 85 Gurney MB Texts 1 (see Gurney 1983: 17-22).

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Writings of Westbrook, Vol. 1: The Shared Tradition A., the prefect, took a slave-woman 86 named X. from B, the prefect, . . . and later C. took her from A. and gave her to D., the weaver, for spinning, and since she is the wife of Y., the brewer, Y. approached C., the prefect of the land, and they entered in to E., the prefect, and E. released X. to her husband and gave Z. as redemption-payment for X. to D., the weaver, and gave back X. to Y.

This may have been a case of famine-slavery rather than debt-slavery, but the principle is the same. A Neo-Assyrian contract provides an example of debt-release affecting transferred slaves:87 A. has sold and delivered to B. 6 persons in total, X., Y., Z., etc., belonging to A., in consideration of 2 minas of silver by the mina of the merchants. The full price is paid; the people are paid for and acquired. If those people leave in a restoration (dur ri), A. shall return the silver to its owners. Important, if indirect, evidence on the alienability of debt-slaves comes from MAL Tablet C+G 3: [If a man] sells into a foreign land [either a man’s son] or a man’s daughter who [is residing in his house] by way of sale or antichretic pledge . . . he shall forfeit his silver [and] he shall pay . . . . But if the man whom he sells dies in the foreign land, he shall pay a life. He may sell into a foreign land an Assyrian man or an Assyrian woman who had been taken for full value. We have seen that the equitable principle of redemption applied not only to pledges but also to forced sales at under-value to pay off a debt. It also applied to forfeiture of pledges, which purported to turn a pledge into a sale after the due date for repayment of the loan had passed. The natural 86 Sumerian SAL.TUR = Akkadian u rtu which, as we have pointed out, could mean a female child, rather than a slave. It is, however, unlikely in this case, since the subject is a married woman. 87 CTN 2 248 (see Postgate 1973: 230-32).

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corollary is, however, that where full value was given, the principle no longer applied. A pledge for whom the creditor gave full value, either at the time of the loan or (if the contract so allowed) by paying the balance after default,88 was no longer protected once the forfeiture clause had operated. He was no longer regarded as a pledge or a debt-slave, but as a chattel-slave. Therefore, the underlying distinction is between pledges, who could not be sold at all, and chattel-slaves, who could even be sold abroad. We may conclude that in the intermediate case of debt-slaves, they could be sold domestically but not abroad. The same rule is applied in Exod 21:7-8, where a girl was sold by her father as a slave-concubine, but the new owner changed his mind as to her attractiveness. He was ordered to allow her redemption but at the same time forbidden from selling her to a foreign people. Again, the intermediate case would have been a domestic sale, which appears to have been allowed and was not affected by the right of redemption. B. Special Terms Special features relating to slaves are found in contracts of sale. The earliest slave sale documents (in Sumerian) date to the Sargonic period. A typical example reads:89 A. son of X. has received one-third of a mina of silver as the purchase-price for B. son of Y. C., the Prefect, has paid the silver, he has caused him to climb over the wood. Payment of the price was followed by a ceremony special to slave sales, whereby the slave was made to climb over a wooden bar.90 The significance of this symbolic act is not clear. It is generally assumed that it signified a transfer of ownership from the seller to the buyer. Throughout Mesopotamian sale law, however, ownership passed with full payment of

88 An example is ZVR 44 no. 55 (in pp. 305-81), where in spite of appearances the forfeiture clause only allows the creditor to pay the difference between value of the loan and value of the pledge in order to acquire full title. See Westbrook 1991b: 107-10. 89 SRU 49. 90 Edzard 1970: 8-53.

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the price, which was always recorded, even when the wooden bar ceremony was not. Two possible explanations are that it either indicated the transfer of possession or a recognition of the slave’s potential volition in obliging him to submit to the authority of a new master. Its occurrence in the Sumerian-Akkadian dictionary of legal phrases as a measure taken after recapture of a runaway slave might be taken as evidence in favor of the latter explanation.91 In the Neo-Sumerian period, the wooden bar became a pestle. The phrase continued into the Old Babylonian period, by which time, however, it had become a frozen formula, not representing an actual ceremony.92 Special warranties applied to slave sales, arising out of the slave’s character as a living creature with volition. We have already seen an example of a warranty against a slave’s delinquency. Liability could also fall on the seller if the slave ran away, as a Neo-Sumerian record of litigation reveals:93 A. bought from B. and his wife C. one woman, her price being 2 shekels of silver. Because the slave-woman escaped, C. swore by the king’s name to deliver (another) slave-woman. Some of the liabilities of a seller of slaves are set out in CH 278-279: If a man purchases a slave or slave-woman and, his month not being completed, epilepsy attacks him, he shall return him to his seller and the buyer will take the money that he paid. If a man purchases a slave or slave-woman and he acquires a claim, his seller shall be liable for the claim. These paragraphs are probably intended to indicate fair standards of practice in slave sale agreements and do in fact reflect in part the standard Old Babylonian contractual warranty (e.g., YOS 13 5):

91 MSL I 2 IV 7’-14’. 92 See Malul 1985: 66-77. 93 Steinkeller Sale Documents S.3 (see Steinkeller 1989: 333-34).

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Three days “search”; one month epilepsy; he (seller) is liable for claims upon him according to the order of the king. Whereas the legal meaning of the first warranty is not known,94 the warranty against epilepsy and the warranty of good title match the provisions of the law code.95 By the advent of the Neo-Babylonian period, the warranty-clause had expanded considerably. NBL 6 added a rider to the basic statement of liability in CH 279: A man who has sold a female slave and a claim arises upon her and she is taken away: the seller shall pay the buyer the silver in full according to the promissory note. If she has borne children, he shall give half a shekel of silver for each. As many as fifteen different warranties are recorded in sale contracts, although almost never together in the same document.96 The seller had to warranty against false claim, vindication, the slave being sold having the status of a free person, a temple slave, a royal slave or a serf ( u nu), or having certain obligations to perform royal service. All of these warranties were stated as being in perpetuity. Additional warranties against flight or sudden death were for one hundred days. A contemporary document recorded a claim before the court by A. that his slave X. had run away and that he had later seen the slave at the home of B., who had given him another name and subsequently sold him to C. The judges ruled that, if A.’s statement was confirmed, he could take his slave away “according to the order (d tu) of the king.”97

94 A recent suggestion is that it refers to investigation of the possible free status of the person purchased; see Stol 1993: 134-35. 95 The import of the enigmatic phrase “order of the king” (imdat arrim) is not known. It is tempting to assume that it refers to the rules of the law code, but such an assumption would be anachronistic and does not accord with the many occurrences of the phrase. The most recent study (Kraus 1979), fails to reach a satisfactory conclusion. 96 Dandamaev 1984: 182-94; Mendelsohn 1949: 38-39. 97 Dar. 53 = Dandamaev 1984: 223.

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A clause found to date in a few Neo-Assyrian sale documents added further conditions:98 Seizure(?),99 epilepsy up to 100 days, criminal record in perpetuity, madness within months . . . . The vagueness of the time limit in the final provision is unusual for a legal document—it may have been a question of reasonable delay in determining the condition. CH 280-281 contained special provisions concerning stolen slaves purchased abroad: If a man has bought another’s slave or slave-woman in a foreign land, and when he returns home the owner of the slave or slavewoman identifies his slave or slave-woman: if that slave or slavewoman is a native of the land, their restoration (andur rum) shall be established without (payment of) silver. If they are natives of another land, the purchaser shall declare before the god the silver that he paid, the owner of the slave or slave-woman shall give the merchant the silver that he paid and redeem his slave or slave-woman. The second provision is clear: a merchant traveling abroad innocently purchased a foreign slave. Upon his return home it is revealed that the slave belonged to a local owner. The local owner could not simply reclaim him, however, as he could in a domestic case. The merchant had to be rewarded for his pains with the price of the slave. As Driver and Miles point out, the merchant would normally have had recourse against his seller under the warranty against eviction, but since the seller was in a foreign land and the merchant could not have been expected to suppose that a foreign slave bought in a foreign country had a Babylonian owner, there was a measure of fairness in the law.100

98 BaghM 16 373-374. 99 I.e., a medical condition. See Stol 1993: 136. 100 Driver and Miles 1956: vol. 1, 482-84.

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Interpretation of the first provision has been complicated by the word andur rum, conventionally translated “freedom,” which is certainly its meaning in many other contexts. Earlier commentators were puzzled as to why native slaves would be freed by this chance circumstance of their being taken abroad and back, and why their master would identify them when he had no hope of recovering them. Driver and Miles already suggested, however, that in this context andur rum meant only release to the original owner.101 The basic meaning of the word is restoration to one’s previous status, which in this case meant a return to the slave’s previous master. A merchant abroad, therefore, should have been on his guard when he bought a fellow countryman as to the possibility that he was stolen goods.102 Finally, it is to be noted that slaves could be used as a mode of payment, especially as compensation or penalties for delict. In a Neo-Assyrian contract settling the blood-money payable for a killing, it is provided:103 A. son of B. shall give C. the slave-woman, the daughter of D., the scribe, together with her family, in lieu of the blood. He shall wash the blood. If he does not give the woman, they will kill him on top of B.’s grave. In a Middle Babylonian homicide case, the king ordered one of the parties to pay the other seven slaves.104 HL 1-4 set tariffs in payment of slaves for homicide in various circumstances.

101 Driver and Miles 1956: vol. 1, 482-84, with a review of the earlier commentators. 102 Driver and Miles (1956: vol. 1, 486) saw no reason for discrimination against the merchant in paragraph 280, arguing that it would discourage him from bringing home Babylonian slaves. But merchants faced far higher risks in their domestic purchases—they could be liable not only to return stolen goods, but also to pay the owner a penalty, which they would then have to recoup from the seller (see Westbrook and Wilcke 1974-1977: 111-21). As recouping from a foreign seller was difficult, the law in fact offers some relief in restricting the merchant’s liability to restitution. 103 ADD 321 = Kwasman 1988: no. 341. Our interpretation differs slightly from Kwasman’s. 104 BBSt. 9.

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A. Principles MAL A 44 reads as follows: If an Assyrian man or woman who is dwelling in the house of a man as a pledge for their value is acquired for their full value, he may beat, tear out hair, crush his ears, or pierce them. The principle is that where a pledge was acquired for full value, in this case evidently by operation of a forfeiture clause in the contract of loan, he no longer enjoyed the right of redemption. By forfeiture he became a slave; but so far from being a debt-slave, his status was that of a chattelslave, and he could be treated accordingly. This paragraph illustrates the difference between the permissible treatment of pledges, slaves, and, by implication, debt-slaves. A pledge could not be punished by physical maltreatment nor marked as a slave (by piercing his ear).105 The same restrictions would appear to apply to a debtslave. These measures applied to chattel-slaves only, but at the same time they acted as limitations, since they marked the limit of what could be done to such a slave.106 Let us now consider other evidence for the two measures taken in the Assyrian law: marking and punishment. 105 This paragraph has generally been understood as a list of punishments, of which piercing the slave’s ear is but one. This is incorrect. Ear-piercing is not especially painful, nor was it regarded in the ancient Near East as disfiguring or degrading; it was common for free men and women to wear earrings in pierced ears. Confirmation of our interpretation comes from paragraph A 59 of the same code, which is explicitly a list of punishments that a man may inflict on his wife. The list is identical to that of our paragraph, except for the last verb; instead of “pierce” (upalla ) with respect to her ears, it has a broken verb which cannot be identical and which almost certainly is to be restored “touch” (ulappat). The latter verb in Akkadian is a known euphemism for “to strike, hurt.” See CAD L 91. 106 There is no doubt that the purpose of the paragraph is restrictive: the parallel paragraph 59, discussed in the previous note, lists the punishments that a husband is allowed to inflict on his wife apart from those allowed in specific situations in the other paragraphs of the tablet.

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B. The Slave-Mark Since wearing earrings was widespread in the ancient Near East, piercing a slave’s ear was presumably for the purpose of inserting an ownership tag of some sort. The purpose of the exercise, as we learn from the only other source where piercing is mentioned, was to mark him as a chattel-slave. Exod 21:5-6 discusses the case of a debt-slave due to be released after six years of service but who had received a wife from his master: If the slave says, “I love my master, my wife, and my children; I will not go free,” his master shall bring him to the door or doorpost of the shrine(?)107 and bore his ear with an awl, and he is his slave for ever. Other sources mention different types of slave-marks: in Old Babylonian the abbuttum, which was a mark or tattoo applied to a slave’s shaven head, and in Neo-Babylonian the indu, a tattoo or brand which could mark the status of slavery or the identity of a particular owner.108 In contractual penalty clauses that imposed slavery, marking was frequently mentioned as well, to emphasize that the person would become a chattelslave, not subject to redemption. Nonetheless, by no means were all chattel-slaves so marked. It appears to have been used where the status or owner of the slave might be called into question, or where the slave was likely to run away. C. Punishment: Licit In the law codes, the only mention of punishment besides MAL A 44 is CH 282, which allowed a master to cut off his slave’s ear for denying that he was his slave. Like the Assyrian law, it implies that a master did not 107 Literally: “to the god/gods, to the door or doorpost.” This is only one explanation among many that have been proffered. See most recently Viberg 1992: 77-81. 108 The exact nature of the Old Babylonian abbuttum is disputed. See Driver and Miles 1956: vol. 1, 421-25; and Szlechter 1950: 391-418. CAD A/1 48-50 regards it as a hairstyle in the form of a top-knot. The Neo-Babylonian indu, on the other hand, is clearly a brand, sometimes with symbols or writing indicating the owner. It is also applied to cattle. See Dandamaev 1984: 229-34; and Mendelsohn 1949: 42-50.

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have a general right to disfigure his slave. For the same offense, however, some of the contracts in the Tehip-tilla archive from Nuzi applied a remarkably severe penalty:109 If A. breaks the contract and leaves B.’s house and declares thus, “I am not a slave-woman and my sons are not slaves,” B. shall put out the eyes of A. and her children and sell them. The purpose of blinding was so that they could be sold as chattel-slaves, not famine-slaves who would be subject to redemption. But it is not clear what circumstances in these particular cases allowed the slave’s owner to change their status in such a drastic manner. Another contract from the Tehip-tilla archive is milder. It merely allowed the owner to treat the slave who denied his ownership and left “as he pleases.” In other words, the owner had the discretion to treat the famine-slave as a chattel-slave.110 The same clause is found in an Emar contract, with the further provision that the owner “has the locus standi of their case” (bl d ni unu t). The reason is that the contract was one of purchase of a slave from a third party and the slave’s denial was in favor not of freedom but of the previous owner.111 D. Punishment: Abusive We have seen that the law codes severely punished the killing of a distrainee. In CH 116, if the distrainee was the debtor’s son, the distrainer’s son was to be killed. In our opinion, Exod 21:20-21, following the tendency of biblical law not to distinguish between slavery—at least debtslavery—and other servile conditions, applied the same rule. Our translation reads:112 109 JEN 449 = Greenberg 1955: no. 58; similarly JEN 452 (without denial, “goes to the house of another”; Greenberg 1955: no. 45) and JEN 457 (Greenberg 1955: no. 63). 110 JEN 462 = Greenberg 1955: no. 61. 111 Arnaud Emar 6 211. Cf. an Old Babylonian letter (AbB 1 27:16-26), where a correspondent reports to X. that his slave-girl screamed hysterically, “I am the slave of X.! My mistress gave me to him!” She had to be physically restrained from running away. 112 For the supporting philological arguments, see Westbrook 1988d: 89-100.

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If a man strikes his slave or slave-woman with a stick and he dies under his hand, he shall be avenged. But if he survives a day or two he shall not be avenged, but it is his silver. The vengeance in question is taken to have been the appropriate vicarious revenge as in CH 116. The last phrase we understand to mean “it (the revenge) is his silver (the loan).” In other words, the creditor/master forfeited the right to repayment of the loan for which the slave was security, by way of fixed ransom in lieu of revenge. The same applied to v. 26:113 If a man strikes his slave’s or slave-woman’s eye and destroys it, he shall set him free for his eye. If the ransom was fixed at the level of the debt, thereby annulling it, it would automatically release the debt-slave. E. Exploitation of Labor In the context of the Jubilee laws, Lev 25:39-40 enjoins: If your brother grows weak with you (i.e., becomes insolvent) and is sold to you, you shall not make him work the work of a slave; he shall be like a hired man or dependent with you and shall work with you until the Jubilee. We have already drawn attention to the fact that the Jubilee slave-release was a utopian measure. The impractical character of this provision is even more obvious. It is interesting, however, for the distinction that it drew between treatment of the Israelite slave—“your brother”—and foreign slaves. Of the latter, v. 46 states: You shall make them work, but your Israelite brother you shall not pursue with harshness.

113 Westbrook 1988d: 101.

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F. Sexual Abuse The Hittite laws considered sexual offenses like sleeping with a woman and her daughter to be “abominations,” the penalty for which was usually exile or death (§191). But if the women in question were slaves, it was no sin (§194). The Bible, on the other hand, in the curious case of Lev 19:2022, regarded an act of sexual abuse of one’s slave as a sin but no delict. Our translation differs from the accepted one and gives a completely different law: 114 If a man has sexual intercourse with a married woman, she being a slave pledged115 to the man and not redeemed or given her freedom, an action lies for her return. They may not be put to death because she was not freed. But he shall bring a guilt-offering. Adultery was an offense against the husband for which revenge could be demanded. But where the wife was a debt-slave in the hands of his creditor, the husband had no right to revenge because of her unfree status, which acted in mitigation of the offense. Instead, he was limited again to ransom fixed at the level of the debt and thus to an in rem action for her return. As the sexual act remained a sin against God, the creditor nonetheless had to bring an offering to the temple in atonement. G. Furlough A number of texts from the archive of an Old Babylonian slave and landowner named Balmunamhe provide evidence that home leave was sometimes possible for slaves.116 In these transactions, Balmunamhe temporarily released a slave into the custody of a third party, sometimes identified as a relative, who acted as a surety for the slave not absconding

114 For a full legal and philological discussion, see Westbrook 1988d: 101-109; and Westbrook 1990b: 564-69. 115 The combination of slavery and pledge is a further example of the special character of biblical slave law that we have noted: its failure to distinguish between slavery and other servile conditions. It is his wife that the man pledged, not his slave. 116 The archive is discussed by Van De Mieroop 1987.

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or ceasing work.117 For example, in YOS 5 141 parents sold their son to Balmunamhe, and in YOS 8 35 (five years later) they received him back on the following terms: X., his father, and Y., his mother, received in the capacity of sureties one slave named A., the slave of B., from his owner B. If he absconds, X., his father, and Y., his mother, shall convey their house and orchard to B. Balmunamhe received no payment for the transfer, but it has been pointed out that most such transactions took place in the winter months when there was insufficient agricultural work on his estate and the price of grain for feeding his slaves was high.118 It was therefore in the slave-owner’s interest during the low season to release some of his slaves to their family, who stood surety for their eventual return to work. H. Abandonment Mendelsohn asserts that sick slaves who could no longer perform the duties expected of them were cast out and abandoned to fend for themselves.119 There is, however, no real evidence on this question. Mendelsohn cites a single source, 1 Sam 30:11-15, where a slave found halfstarved by David declared that he was abandoned by his master “because three days ago I fell sick.” But the circumstances were anything but normal. The master was a member of an Amalekite raiding party being pursued by David’s troops. I. Flight As Renger has pointed out, flight was a social phenomenon that affected not only slaves but many of the lower economic strata, where it was seen

117 The recurrence of transfers involving the same slave reveals them to be provisional; see Van De Mieroop 1987: 12. 118 See Van De Mieroop 1987: 11-12, 23-24. 119 Mendelsohn 1949: 65.

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as an escape from oppressive debt and fiscal or feudal burdens.120 In the case of slaves, counter-measures were directed both against the slave himself and against third parties from whom he might seek assistance or refuge. A Neo-Sumerian document records: 121 A., the slave of B., ran away. They caught him. He appeared and said: “The king’s oath! The day that I run away a second time, may I perish!” X., Y., and Z. were the judges. The sons of Nippur. (Date.) The oath was a powerful deterrent, since breach of it brought down divine sanctions.122 The difficulty was that it could only be taken voluntarily. On the other hand, it was undoubtedly a preferable alternative to punishment (the procedure in the present document is before a court) or to the physical impediments that were available to an owner. Some are listed in the Sumerian-Akkadian dictionary of legal phrases:123 He fled from the house of his master. After he had fled from his master’s house, they brought him back. After they had brought him back, he placed hobbles on his feet, he put him in chains, he caused him to cross the pestle, and he engraved on his face: “Fugitive, seize!” The normal slave-mark was not so dramatic but still had the purpose of revealing the slave’s status to third parties. CH 226-227 imposed severe penalties on a corrupt barber who excised the slave-mark or on an accomplice who tricked an innocent barber into excising it. Even fetters were no guarantee against escape, as CE 51 reveals:

120 Renger 1970: 167-82, referring to the Old Babylonian period. For biblical society, compare the malcontents who gathered around the renegade David: “There gathered to him every man in distress and every man who had a creditor and every man who was discontented” (1 Sam 22:2). 121 Çi and Kizilyay NRVN 1. 122 Cf. Gen 24:2-4, where Abraham uses the same device to ensure that his slave Eliezer will fulfill his mission. 123 MSL I 2 IV 7’-14’.

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A slave or slave-woman of Eshnunna, upon whom are placed fetters, shackles, or the slave-mark, may not go out of the city-gate of Eshnunna without his master’s permission. It is not clear to whom this prohibition was directed, but the free citizenry were expected to cooperate in the re-capture of fugitive slaves. According to CH 15-16: If a man causes a fugitive slave or slave-woman of the palace or of a private citizen to go out through the city-gate, he shall be killed. If a man conceals a fugitive slave or slave-woman of the palace or of a private citizen in his house, and does not bring him out at the herald’s call, that householder shall be killed. Other law codes were less harsh in their punishment of one who harbored a fugitive slave. According to HL 24: If a slave or slave-woman runs away, the one at whose hearth his master finds him shall give x shekels of silver as the wages of a man for one year, and y shekels of silver as the wages of a woman for one year. If the culprit was not caught in possession of the slave, CL 12-13 rules: If a slave-woman or a slave of a man has run away from the city and it has been proved that she dwelt in the house of a man for one month, he shall give slave for slave. If he has no slave, he shall pay 15 shekels of silver. By the same token, one who brought back a fugitive slave was entitled to a reward from the slave’s master, set by the law codes at between two and six shekels of silver.124

124 CU 14 (two shekels), CH 17 (two shekels), HL 22-23 (up to six shekels, according to the distance involved).

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The fugitive slave’s best chance of freedom was to escape the country altogether. If he had been sold abroad, he would have attempted to return home, as in an Old Babylonian case:125 A., whom B., his master, had sold to (the city of) Eshnunna for one-and-a-half mina of silver, after he had served as a slave for five years in Eshnunna, fled to Babylon. C. and D., the army officials, seized A. and said, “You are cleansed; your slave-mark is shaved off. You shall serve in the armed forces.” A. replied: “I will not serve with the soldiers; I will perform the feudal service of my father’s house.” His brothers X., Y., and Z. swore the oath of (the god) Marduk and king Ammi-ditana. There is no claim upon their brother A. for service;126 as long as he lives, A. will perform the feudal service of their father’s house with his brothers. A slave who fled in the other direction, to a foreign county, could not be sure of the welcome he would receive. His hope for free status rested on being granted the status of resident alien, a privilege entirely at the discretion of the local ruler. There might also have been a treaty between two states, providing for the extradition of fugitive slaves. A Middle Babylonian treaty between king Idrimi of Alalakh and king Pillia of Kizzuwatna provides:127 When Pillia and Idrimi swore the oath of the gods and made this treaty between them: They will always return fugitives between them. If Idrimi seizes a fugitive of Pillia, he shall return him to Pillia, and if Pillia 125 CT 6 29 = Yoffee 1977: 57-59. Yoffee suggests that A. had been adopted by B. (post mortem) and B.’s death while A. was in Eshnunna had automatically freed A. This scenario assumes that i) B. is the father of X.,Y., and Z., ii) B. adopted A., and iii) B. died. None of these assumptions can be verified from the text. The content of the brothers’ oath is not stated; it may refer to their not contesting A.’s right to a share of the estate in return for feudal service. 126 ana re tim. It is not clear whether this unusual term means slavery or public service: see AHw 976. We incline to the view that it means the latter—in this case, the military service from which A. was excused. 127 AT 3 = Reiner in ANET3 532.

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seizes a fugitive of Idrimi, he shall return him to Idrimi. Anyone who seizes a fugitive and returns him to his master, if it is a man, he shall be given 500 (shekels of) copper as his reward; if a woman, he shall be given 1000 (shekels of) copper as his reward. If a fugitive of Pillia enters the land of Idrimi and no one seizes him, but his master seizes him, he need not give a reward to anyone; and if a fugitive of Idrimi enters the land of Pillia, etc. In any town in which a fugitive is concealed, the mayor and five men of good standing shall swear the oath of the gods. The same reward system was applied as in domestic law, but punishment was collective. A similar treaty between Alalakh and Tunip reveals the context of the oath and specifies the consequences of breach:128 The mayor and five elders shall swear the oath of the gods: “Your slave does not live among us, and we do not conceal him.” If they are unwilling to take the oath but return his slave ( . . . they are not liable . . . ). If they swear and afterwards he discovers his slave . . . they are thieves: their hands are cut off; they shall give 6000 (shekels) of copper to the palace. The last phrase suggests that the palace may have indemnified the foreign owner for the loss of his slave. The above treaty provisions put in perspective the injunction in Deut 23:16-17: You shall not surrender to his master a slave who has fled to you from his master. He shall live with you in your midst where he chooses in one of your settlements as he pleases; you shall not oppress him. It was recognized by early commentators that this provision could not apply to domestic slavery, since it would have undermined the right to recover property upon which the whole institution depended. It makes perfect sense, however, when applied to the international sphere, where no 128 AT 2:27-32 = Wiseman 1953: 29; and Reiner in ANET3 531.

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right of recovery existed unless expressly authorized by treaty. The passage can therefore be seen as a polemic against such treaty provisions, and a prohibition on the authorities in Israel against ever including an extradition clause in their treaties with neighboring states. Mendelsohn suggested that it applied only to a Hebrew slave fleeing a foreign master.129 The terms of the law which granted the fugitive a choice of dwelling in any city negate this interpretation. A Hebrew slave would have returned to his home, not picked a city to dwell in. By that grant of choice of dwelling and the injunction not to oppress him, the foreign fugitive was being granted the status of resident alien without geographical limitation, which would protect him from being enslaved by an Israelite.

VIII. Summary and Conclusions The legal systems of the ancient Near East recognized persons as a category of property that might be owned by private individuals. It was pursuant to the normal rights of ownership that a master could exploit the slave’s labor, restrict his freedom, and alienate him. Nonetheless, the relationship between master and slave was subject to legal restrictions based on the humanity of the slave and concerns of social justice. In spite of the impression given by certain law codes, those restrictions were not imposed in a systematic manner but derived mainly from the equitable discretion of the courts, in particular the king (or his officials), who, as the font of justice, had the power (and the divine mandate) to intervene in order to alleviate injustice, even where it arose from arrangements that were within the letter of the law. As a result, the “rights” of slaves were uneven in quality, varying from system to system and from period to period, and even as between individual cases within the same society. The basic principles, however, were the same in all the societies in question. In determining who should benefit from measures of social justice, the legal systems drew two main distinctions: between debt-slave and chattelslaves, and between native and foreign slaves. The authorities intervened first and foremost to protect citizens who had fallen on hard times and had been forced into slavery by debt. The tendency was to assimilate them for 129 Mendelsohn 1949: 63-64.

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these purposes into the class of pledges, persons whose labor might be exploited under a contractual arrangement but who remained personally free in terms of status. At the other end of the scale, foreigners who had been acquired by capture or by purchase abroad received very little succor from the local legal system. The benefits of the law related to (a) enslavement, (b) length of service, and (c) conditions of service. Under the first aspect, enslavement, the prime distinction was between native and foreign slaves. A person who was ethnically or by birth a free member of a particular society could not be enslaved against his will if independent or without the permission of the person under whose authority he was if a subordinate member of a household. The only exception was enslavement by court order for commission of a delict. Although, in practice, economic circumstances would often force a person into slavery, in law his act was voluntary. The foreigner, by contrast, could be enslaved through capture in war, kidnapping, or force, unless protected by the local ruler, either under the rules of customary international law which applied between friendly states or as a resident alien. In the latter case, protection still might have been only partial. Under the second aspect, length of service, three means were available for the slave to gain his freedom. First, a slave could gain his freedom through redemption, that is, payment of the original debt. Where found, this appears to have been a legal right, which attached to the slave, binding subsequent purchasers. It vested in both the slave himself and in close relatives, and possibly also the king. Second, freedom could be attained through manumission after a period of service. The law codes where this means is attested set different periods of service, one as short as three years, which if it had applied automatically would have made all other measures superfluous. We therefore consider that it was not a right like redemption but a discretion of the authorities to intervene in individual cases and free a debt-slave after a reasonable length of service in relation to his debt. The fixed periods in the sources are attempts to set a “fair” standard. Third, freedom could be achieved through release under a general cancellation of debts. This was the most radical measure but was unpredictable, being entirely dependent on the king’s equitable discretion. It was confined to native debt-slaves.

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Under the third aspect, conditions of service, the slave was protected against three forms of maltreatment. First, slaves were protected against excessive physical punishment. Even chattel-slaves appear to have benefited to some extent from this protection. Second, protection was afforded against sexual abuse. Sexual intercourse with a woman amounted to an offense in the ancient Near East when it was an infringement of the rights of the person under whose authority she was, for example, her father or her husband. Ownership of a chattel-slave eliminated that authority, but there is evidence that it did not entirely do so in the case of a debt-slave. Third, slaves were protected from sale abroad. Only native debt-slaves were protected by this prohibition, which must in any case have been difficult to enforce in practice. Between the debt-slave and the chattel-slave we have identified a third category, which we have termed the famine-slave, where a person entered into slavery in a year of famine in return for being kept alive. This category shared some of the benefits accorded to the debt-slave, albeit in a lesser measure. There appears to have been a right of redemption after the end of the famine, at a reasonable price set by the law, and possibly even to manumission after a period of service, but it also seems that these rights could be restricted or overridden by contract. The contracts in question often make specific mention of the foreign origin of the person enslaved, which paradoxically both points to their being able to share these rights with natives and suggests a reason why their rights could be restricted by private agreement.

9 Patronage in the Ancient Near East Abstract Patronage is generally assumed by scholars to have been a universal feature of ancient Near Eastern societies but has been neglected as a topic of serious investigation. The purpose of this study is to offer, without prior assumptions, textual evidence that establishes the existence of the concept of patronage. The approach is to present case studies from various parts of the region which are best explained by the presence of patronage. For these purposes patronage is narrowly defined on the basis of ancient Roman and contemporary anthropological models.

Methodological Introduction he term patronage is borrowed from Roman history.1 In the late Republic, a patronus was a powerful aristocrat who gathered around him loyal followers, known as clientes. A client would be expected to vote for his patron and to provide him with political support and any other services that might be requested of him, in return for protection from other nobles and legal and material assistance (Scullard 1973: 12-18; Verboven 2002;

T

* Originally published in the Journal for the Economic and Social History of the Orient 48 (2005): 210-33. Copyright © Koninklijke Brill NV, Leiden. Used by permission. 1 This article was first presented, under the title “À la recherche du patronage dans le Proche-Orient Ancien,” to the équipe “Anthropologie et sociologie comparative des institutions” of the Laboratoire d’Anthropologie Sociale in Paris, in their seminar series “Clientèle et Patronage.” I am grateful to Prof. Alain Testart and Dr. Valérie Lécrivain for inviting me to participate in the series and to the participants in the seminar for their comments and criticisms. I am likewise grateful to my colleagues and students in the Department of Near Eastern Studies at Johns Hopkins University for their critique of a revised version and their helpful suggestions. The usual caveats as to responsibility apply.

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Wallace-Hadrill 1989). Anthropologists have identified patronage and clientship as a widespread phenomenon in both the ancient world and in contemporary traditional societies.2 The basic characteristics of patronage as a cross-cultural phenomenon may be summarized as follows: 1. It is a personal relationship, often referred to as “friendship,” but is asymmetrical, between a socially dominant and a socially servient party. 2. It is based on the mutual exchange of goods and services. Nonmaterial services provided by the patron include protection and access to decision-making bodies or persons within government. The prime non-material service that the client provides is loyalty. While the patron might appear to give more in goods and services than he receives, he obtains a valuable intangible benefit from the relationship in the form of enhanced prestige. 3. The relationship must be of some duration. A single transaction or exchange of favors would not amount to patronage. 4. The relationship must be voluntary, or at least purport to be voluntary. Patronage is to be distinguished from other relationships: 1. Legal relations are formal and give rise to rights that are enforceable in a court of law. Patronage gives rise to expectations, not rights. It is an informal tie, based on moral obligations, and the sanctions for breach of those obligations are moral and social. 2. Bureaucracy is supposed to create an impersonal relationship with its beneficiaries based on rules, and thus to ensure equal treatment for all. Patronage is a personal relationship with no fixed criteria for the allocation of its benefits. Far from ensuring equal treatment, patronage gives an advantage to the client 2 This is particularly true of the more traditional regions of contemporary Mediterranean countries. The classic study is Pitt-Rivers 1971; see also Campbell 1964; Peters 1968; Waterbury 1977; and Zuckerman 1977.

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over other persons in like circumstances. Where scarce resources cannot be obtained by all, it is a way for a few to gain privileged access to them. 3. Commercial exchanges are impersonal and immediate. The dynamic of patronage is serial rather than reciprocal. Being notionally based on friendship, each benefit must be deemed gratuitous, an act of generosity (whether spontaneous or requested). It creates a moral obligation to respond generously at some point in the future. Although there is an overall accounting, no one counter-gift need exactly equal the value of a previous gift. The standard is appropriateness, not equivalence. 4. Kinship obligations have many similarities to those of patronage but are based upon an involuntary, indissoluble tie. Patronage exists only as long as its obligations are met. Serfdom and slavery are analogous to kinship in so far as they are formalized, coercive relationships that cannot be dissolved at will, at least by the servient party. It is important to recognize at this point that our definition of patronage as a cross-cultural phenomenon is of necessity narrow, excluding atypical forms that may be found in certain modern societies, such as “spiritual” patronage3 or the extended use of the terminology in modern parlance, such as patronage of the arts, which can refer to charitable donations. There are three further aspects of patronage that are relevant to this study: 1. It can co-exist with one of the formal relationships above. In a sense, patronage will be symbiotic, allowing formal rights and duties to be tempered or distorted (depending on one’s viewpoint) by favoritism. 2. It can be analyzed on an individual level, but patronage can also exist as a system. Given its symbiotic capacity, it may 3 “Spiritual” patronage is a special form deriving from the religious duties of a Christian godfather. Unlike ordinary patronage, it is indissoluble. Identified in some modern Mediterranean societies, it has to our knowledge no echo in the ancient world. See Pitt-Rivers 1971: 107-108; and Campbell 1964: 217-24.

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Writings of Westbrook, Vol. 1: The Shared Tradition even result in parallel formal and informal systems of governance within the same state. 3. In the light of the above two aspects, it should be noted that patrons can be primary or intermediary. A primary patron is the sovereign ruler, who also dispenses the benefits of patronage to certain of his privileged subjects. An intermediary patron would be a noble or official who has access to higher levels of government (whether as a client himself or by virtue of office) and can act as a broker to give clients the benefit of his influence. Depending on which function he is exercising, the same patron could be primary and intermediary.

Previous Scholarship and Present Approach Conditions in the societies of the ancient Near East would seem ripe for the flourishing of patron-client relationships. Notwithstanding large bureaucracies, governments were highly personalized, with hereditary rulers surrounded by a court of family members and privileged nobles. The economies, if not entirely redistributive, were far from offering a free market in goods and services. Although free citizens made up a large part of the population, society tended to be highly stratified, with rigid hierarchies and little mobility. Nonetheless, with one notable exception (discussed below), historians of the ancient Near East have sometimes assumed the existence of patronage but have otherwise disregarded it. Studies of political and social structures focus upon bureaucratic systems and kinship. Schloen’s analysis of the society of Ugarit and its neighbors, for example, mentions patronage in passing, but its focus is the patriarchal household and associated kinship systems. It assumes patronage to be an intrinsic feature of traditional societies (2001: 72, 110, 310). Matthews and Benjamin in an avowedly anthropological approach to Biblical Israel adduce anthropological literature on wealthy villagers as patrons of poorer ones. They transpose these models in a general way onto Israelite village society without citing Biblical references (1993: 120-22, 159-60). Similarly, Kemp speaks of ancient Egyptian mayors having power which “must have lain in the respect and influence they commanded by virtue of local landownership and family ties and a

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network of patronage and obligation” (1989: 219), without explicating any further. One reason why scholars have not considered the question seriously is that none of the languages of the region reveals a dedicated vocabulary, the usual starting point for inquiry into social structures. Patronage, however, often adopts terms describing other types of relations, mainly kinship and affect relations, as well as the vocabulary of gift giving. None of them are unfailing markers of patronage, but combined with other evidence they can be a strong indicator, especially when they seem incongruous in the context in which they are used. A difficulty with such terms in the languages of the ancient Near East is their very wide semantic range. Kinship terms such as “father” and “son” are promiscuously employed outside of the realm of the family for all manner of social, commercial, and legal relations. Terms for “gift” are frequently used in legal fictions to designate a payment that would be illegal or invalid if given its real title of price, fee, or compensation. Terms of affect such as “love” are employed in servant-master/vassal-overlord relations (witness the biblical injunction that Israelites should love their god). Even terms for “friend” may designate a commercial or professional relationship.4 The problem of terminology is illustrated by the corpus of letters from the Old Babylonian period. The term “father” is widely attested in these letters as a general mark of respect to the addressee, who in most cases is evidently not the actual parent of the correspondent. Use of the term is often accompanied by effusive wishes for the addressee’s welfare. The content of the letters themselves, however, does not provide unambiguous evidence that the “father” is really the patron and the writer the client. Two examples, one positive and one negative, will illustrate the difficulty. AbB 5 166 reads: Speak to my father; thus says Sin-magir: May the gods Shamash and Ninurta keep you healthy for many days for my sake! The men whom I sent to you are poor. . . . There is no sustenance. I seized the men . . . and they left. May they constantly pray to 4 On the Akkadian term ibru, see CAD I/J 5-7; on the Sumerian term k u -l i , see Wilcke 1969, who questions some of CAD’s conclusions.

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Writings of Westbrook, Vol. 1: The Shared Tradition Shamash for you! . . . As for the ox about which you wrote to me, I was busy and have not sent it to you; as soon as I have some rest, I will send it to you. Regarding the harvest and all that you ordered, I will have men from the Tigris sent to you. They are 5 men who are in my service. There is no sustenance. Let them pray for you constantly! Let them not be lost to me!

The deference shown by the writer, his willingness to take orders from his “father,” and his appeal for financial assistance could all point to some form of patronage. The second document, however, paints a different picture (AbB 5 224): Speak to my father; thus says Zimri-Erah: May the gods Shamash and Marduk keep you healthy for ever! May you be well. I write to you regarding your well-being; write to me whether you are well. I am engaged in opening and damming the canal at Dur-Sin. Where I am situated, I have nothing to eat. I herewith send you one-third of a shekel of silver under my seal. With the said silver, buy me good fish and send them here for me to eat. This may be a letter from a client to a patron, but the request to purchase food on the writer’s behalf, with the purchase money enclosed, does not use the kind of language that would be expected when an inferior speaks to a superior. The request is more in the nature of a mandate that a superior would impose on an inferior, or at least between equals, i.e., that one friend would ask of another. A further difficulty is the nature of the sources. Most of the primary sources from the region are institutional—from the palace or the temple— and record formalized relationships of dependence. Even private sources tend to be of a purely legal, commercial, or administrative nature, revealing little of the social relations between individuals. There is no theoretical literature and such “scientific literature” as exists, namely lexical lists, does not discuss the topic, in the sense that they present no identifiably dedicated terminology. It is not surprising then that scholars have tended to concentrate on the formal relationships that are so abundantly attested.

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The pioneering studies of Lemche are a notable exception to the general silence, arguing trenchantly for the importance of patronage, at least in ancient Israel and its environs.5 In the most theoretical of his essays (1995a), Lemche berates scholars for not considering patronage as a factor in ancient Near Eastern societies and presents several examples of patronclient relationships in the ancient sources. Unfortunately, his conception of patronage is somewhat misleading. According to Lemche, the very center of the system of patronage is loyalty based on mutual oaths that binds patron and client in an unbreakable relationship. The term esed in the Hebrew Bible is indicative of patronage, particularly since a esedrelationship can be effectuated by solemn oath. As explained by Glueck, esed can only be given and received by people in a binding legal relationship (German: Rechtspflichtverhältnis), which for Lemche is the very essence of patronage. On the same basis, Hittite vassal treaties established a patronage relationship between the local kings and the Hittite emperor, and the biblical covenant did the same between God and Israel. There is very little in this account that a Roman historian or an anthropologist would recognize as patronage. Oaths are not necessary to patronage, which is an informal association, and the tie, being voluntary, is not unbreakable. Most important of all, patronage is the antithesis of a legal relationship. Formal Hittite treaties and the biblical covenant are definitely to be excluded from its ambit.6 Lemche also considers the position of rulers as patrons, pointing to the example of Egypt’s Canaanite vassals, who in the Amarna correspondence see themselves as clients of the Pharaoh. This is an important insight to

5 Lemche 1995a on royal patronage, 1995b on patronage and the law, 1996 on patronage in the early Israelite monarchy. 6 Some confusion has entered discussion of the term due to the nature of the Roman sources. The classical authors created a mythological vision of archaic patronage. Thus the 1st-century historian Dionysius of Halicarnassus attributes the founding of patronage to Romulus, who supposedly laid down various legal and religious obligations for it (Roman Antiquities 2.9-11). His account certainly does not reflect the conditions of the late Republic, which is the point of departure for patronage as we now understand it (see Wallace-Hadrill 1989: 66-67). The first modern historians, such as Fustel de Coulanges, uncritically used classical sources like Dionysius, Plutarch, and Livy to depict archaic patronage as a sacred, legal tie and thus helped to perpetuate the myth (1982[1864]: 128-30, 242-45, 267-79).

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which we will return below.7 On the other hand, he regards the kings of Judah and Israel as the personal patrons of all their citizens, or at least of every one who sought their help. Patronage of such a kind would be so diluted as to be meaningless. To be effective, patronage must bestow, or be perceived to bestow, upon the client a privilege over at least some of his peers (cf. Waterbury 1977: 332; Wallace-Hadrill 1989: 72-73). Finally, Lemche repeatedly refers to patronage as a system. There is, as we have noted, a distinction between patronage at the individual level and at the systemic level.8 Whether individual patronage relationships amount to a system is a separate question, to be determined by examining the evidence from each society. Lemche deems this unnecessary because he sees patronage as a universal phenomenon in traditional states with only a rudimentary bureaucracy. The states of the ancient Near East (or at least of Western Asia) were “patronage societies” (1995b: 1708-11). Patronage can be assumed to inform virtually all asymmetrical power relations.9 While Lemche has performed a valuable service in drawing attention to a neglected dimension of social relations, his account identifies patronage with conceptually different relationships and assumes rather than demonstrates the pervasiveness of a patronage system. The aim of the present study is more modest. We will revisit the basic question of whether the concept of patronage existed at all in the ancient Near East, using the narrow criteria set out in the methodological introduction. We will present several case studies from different parts of the region which are best explained by the existence of patronage, and where recognition of patronage improves our understanding of the text. We will concentrate on relations between individuals and not try to prove the existence of a system, although the existence of a system might be inferred from them. 7 Likewise Thompson (1995), following Lemche. Both Lemche (1995a: 128) and Thompson (1995: 64 n. 20) attribute the idea to Liverani (1967 and 1990: 187-202 respectively), but Liverani does not use the term patronage, speaking only of protection, a narrower concept. 8 Note the strictures of Johnson and Dandeker 1989. 9 In 1995b: 1712-14 (see also 1996: 111), Lemche regards patronage as replacing law at the local level, to the point where judicial decisions were unthinkable except as arbitration between peer patrons. The justification given for this assumption—that assertions to the contrary in the biblical text are late ideological concoctions—does not, even if correct, amount to empirical evidence.

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A rigorously narrow approach is necessary in order to avoid the temptation to see patronage in every unequal power relationship and in every isolated act of granting a benefit. The pitfalls are illustrated by an existing case study of Thompson, who applies the criteria set out by Lemche to the incident of David and Nabal in 1 Sam 25:2-42. David, a bandit chief, sends his men to Nabal, a wealthy livestock farmer, with the following message (vv. 7-8): I hear that your flocks are being shorn. Now, your shepherds were with us and we did not harm them, nor was anything of theirs missing all the time they were on the Carmel. Ask your men and they will tell you. Please oblige my men, for we have come on a feast day: give whatever you can to your servants and to your son David. According to Thompson, “David sends ten of his ‘retainers’ to explain to Nabal that he has all along been giving Nabal’s shepherds needed protection, and so asks a ‘favor’ in return. The language of the story makes it very clear that David here seeks to put the ‘House’ of Nabal under his patronage” (1995: 70). We would question this interpretation for two reasons. First, if the relationship were patronage, it would in theory be the converse. David would be the client and Nabal the patron, since David is asking for Nabal’s generosity and refers to himself deferentially as Nabal’s son. Second, the protection mentioned is not against violence from third parties, which would be the office of a patron. The potential violence was from David’s men themselves. In other words, it is nothing more than criminal extortion: a thinly veiled threat to rob Nabal if he does not hand over property. It is not inconceivable that a distorted form of patronage could exist between a criminal and his victim, but there is nothing in the present narrative to compel that conclusion from a single instance of exaction by a bandit.10 Even David himself maintains the fiction that this is a single act of charity 10 Lemche (1995a: 119-20) invokes the “Godfather” model to characterize patronage, referring to modern fictional representations of organized crime in the United States. In that model, however, the criminal’s patronage consists of protecting those loyal to him from third parties or obtaining benefits for them from the same.

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appropriate to a religious occasion, rather than the mark of a continuing relationship.

Primary Patronage Great Expectations An Old Babylonian letter from Tell al Rimah illustrates the intangible benefit to the patron of enhanced prestige: 11 Speak to my lady: thus says Yasitna-abum your servant. May Shamash and Marduk grant that my lady live forever for the sake of myself, a ghost’s son. I am well. No greeting from my lady has ever reached me, so that my heart does not live. In Andarig you made me trust in a blind gamble (lit. uninspected birds), saying: “Learn to be a scribe and I will make your household that of a gentleman”—in that you made me put my trust. You made me forego both fish and fowl and made me wander about, a ghost’s son in the midst of my family. You are not mindful that you once encouraged me and tried hard for me; you have not a woman’s pity. Do you not know that a ghost’s son is deserving of pity, even more than a corpse? Now, render Justice (literally, “Shamash”) a favor, do an eternal kindness to a ghost’s son: because I have nothing, I cannot serve in the palace. But what more can I write to you? Do I know more of these matters than you? Do you not know that a gentleman whose household members cannot trust him loses face in his own palace and he himself is contemptible? I have written to you often enough. Just as a father would not look askance at his own son, so may my lady uphold me, the ghost’s son. Just as gentlemen trust in their fathers and brothers, so do I trust in my lady. May my lady not let me down! 11 OBT Tell Rimah 150. Edited by Foster 1993a.

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The letter is addressed to Iltani, queen of Qattara. The writer reveals that he has been the object of his queen’s patronage in the past, but no longer enjoys her favor. He recognizes that patronage can be terminated by a unilateral act or even by mere omission, but complains of the special damage that resulted, for it was her encouragement and support in the first place that had led him to give up his livelihood in exchange for a scribal career. The writer’s arguments in favor of renewal are of three different kinds: an appeal to a woman’s pity, an appeal to justice, and most tellingly, the suggestion that her prestige as ruler will suffer if she is seen to be unreliable to those under her special protection. The appeal to the addressee’s self-interest is a sure sign that the writer acknowledges that he has no legal recourse, even in a divine court. As befits an informal arrangement that created expectations but not rights, he invokes justice and mercy, but not the law.

The Poor Man of Nippur The Poor Man of Nippur is a satire written in Babylonia in the first millennium.12 The opening lines (1-22) read: There was a man, a citizen of Nippur, poor and destitute, Gimil-Ninurta his name, an unhappy man. In his city of Nippur in misery he dwelt, He had not silver as befits his kind, Gold he had not as befits mankind, His storage jars were lacking pure grain, With a craving for bread his innards burned, With a craving for meat and best beer his face was made grim; Every day he lay hungry for want of a meal, Was dressed in garments that had no change. In his gloomy heart, he had a thought: “I’ll strip off my garments that have no change, In my city Nippur’s market I’ll buy a sheep!” 12 Edition in Gurney 1956; Cooper 1975; and Foster 1993: vol. 2, 829-34.

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Writings of Westbrook, Vol. 1: The Shared Tradition So he stripped off his garments that had no change, In his city Nippur’s market bought a three-year old goat. In his gloomy heart, he had a thought: “Supposing I slaughter the goat in my yard— There could be no feast, for where is the beer? My neighbors would be outraged to hear of it, My family and relatives would be furious with me. So I’ll take the goat to the mayor’s house, I’ll try (to provide) something good and tasty for his stomach!”

These lines tell us a great deal about the social standing of the protagonist. Gimil-Ninurta lacks means but not status. He is not some poor beggar on the margins of society; on the contrary, he is a citizen of Nippur, living among his family and in a neighborhood where he is well known. His dilemma shows that he holds a position of respect in those circles. We might expect that he would look first to family and then to peer group—his neighbors—for aid; instead, it is they who will expect to benefit from him, in spite of his strained finances. Indeed, his standing is such that later in the story he is able to rent a chariot from the king for a considerable sum without being required to pay in advance. The Poor Man of Nippur cannot enjoy a proper meal because he is trapped as much by social convention as by poverty. Gimil-Ninurta’s solution is to give the goat to the local mayor. The mayor likewise recognizes his status: on hearing that a citizen of Nippur is at the door, he chides his doorkeeper for keeping the man waiting. Lines 34-40 then read: When Gimil-Ninurta entered the mayor’s presence, In his left hand he held the neck of his goat, With his right hand he greeted the mayor: “May (the gods) Enlil and Nippur bless the mayor! May (the gods) Ninurta and Nusku make him prosper greatly!” The mayor spoke to the citizen of Nippur: “What is the wrong done to you, that you bear me a gift (kadrâ)?”

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The mayor assumes that the visitor is a petitioner with a legal complaint of loss or damage,13 for which the mayor may give redress if in his judgment the complaint is justified. Dealing with petitions and correcting injustices was a customary function of a Mesopotamian ruler, as the correspondence of Hammurabi makes clear (see Leemans 1968). It was common practice for a petitioner to bring a gift (here called alternately ulm nu and kadrû) to an official in order that the official should examine his case, even if it were not resolved in his favor. In Middle Assyrian texts such a “gift” (ulm nu) was even booked as a debt, with the notation “When he (official) has attended to his (applicant’s) affair, he shall receive his ulm nu.”14 The gift, in other words, was nothing but a thinly disguised fee. Thus the mayor’s understanding of the purpose of the gift of a goat was as a fee for a single service to be rendered. Gurney’s surmise (1956: 145-46) that the mayor mistook the gift for a bribe and became incensed can be discounted. If the mayor had been outraged at the offer of a bribe, he would not have accepted it, nor would he have given the culprit anything in return, however derisory. Instead of making the expected complaint against a third party, GimilNinurta simply repeats the opening lines describing his poverty, the purchase of the goat, his social dilemma, and his decision to bring the goat to the mayor. Evidently, he expects something in return, but does not say what. The text is broken after this point: apparently the mayor has the goat slaughtered and a meal prepared, but then gives the order: “Give the citizen of Nippur a bone and a sinew, From your flask give him third-rate beer to drink, Send him away, throw him out through the gate!” (lines 58-60) Gimil-Ninurta promises the mayor revenge for this insult: “For the one insult15 that you heaped upon me I will repay you three-fold!” (lines 67-68)

13 On ibiltu, see CAD  179-80. 14 See Finkelstein 1952 and Postgate 1988: xiii-xvi. 15 For the term pitu, see Moran 1991: 327-28

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The rest of the story is an account of how Gimil-Ninurta manages to get his revenge by administering three beatings to the mayor. Gimil-Ninurta’s motivation in bringing the goat to the mayor remains obscure. Gurney suggested that he hoped that the mayor would arrange a feast for him with beer, although he admitted that the logic was by no means clear (1956: 145). Nor is it clear why this tactic would assuage the wrath of family and friends at being excluded from the feast. We suggest that Gimil-Ninurta was not seeking an immediate benefit from his gift but had decided to make of it a long-term investment. Hence his reply to the mayor was deliberately vague. The gift was not a payment, disguised or otherwise, for a specific service but a communication of the donor’s desire for an ongoing relationship with the recipient, namely patronage. Eventually the patron would reciprocate in more generous measure and ensure the client’s maintenance.16 Gimil-Ninurta wanted to be taken under the mayor’s protection. What benefit did he have to offer to the mayor in return? The goat was the least of it. Let us return for a moment to the Roman model. Patronage did not end with the fall of the Republic, but was continued by the emperors. As a primary patron, the emperor gathered around him a select group of friends (amici Caesaris), whom he met on a personal basis at morning audiences (salutationes) and banquets (convivia). They were the beneficiaries of imperial largesse in the form of offices, honors, and material gifts. In return, the emperor received the loyalty of an influential group of citizens. Despite their awesome power, Roman emperors lived in constant fear of conspiracies and rebellions. Patronal resources were deployed as a tool for the maintenance of political power (Saller 1982: 70-78; Roller 2001: 130, 144-46, 173-82). On a more modest level, the mayor of Nippur faced the same need to secure loyalty among the more influential members of the populace. Mesopotamian mayors, albeit not elected by modern democratic methods, shared power with the leading citizens, sometimes referred to as an assem-

16 In Roman terms a shared meal, a convivium, provided by the patron, was one way of reciprocating (see Roller 2001: 135-41), but it was by no means the only benefit that could accrue to the client.

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bly (puru).17 Gimil-Ninurta’s offer of clientship should therefore have been attractive, provided he could show himself to be a man of influence. 18 In his reply to the mayor’s query, Gimil-Ninurta emphasizes the problems that purchase of the goat has brought upon him, as one who is expected to give, not to receive (as he had previously informed the audience in his soliloquy). He thus artfully alludes to his high social standing, that same position of respect that put him on the horns of a social dilemma. The mayor could have simply rejected Gimil-Ninurta’s gift, if he deemed the future relationship that it implied insufficiently attractive. Instead, he chose to demonstrate his lack of interest in the most insulting way. He arranged for immediate payment, to show that he regarded this as a relationship of commerce, not patronage. Moreover, he made the payment derisory and threw out the supplicant, without even sharing the meal. He would have been better advised to have adopted the attitude of the indifferent Roman patron satirized by Juvenal. A duplicitous patron will keep his client in expectation of benefits but will reward him with infrequent meals, where he is insulted with cheap scraps, while the patron gorges himself on delicacies.19

Adad-umu-uur and His Son Arad-Gula Where primary patronage overlays an existing relationship of dependency such as that of an official or a vassal, it is not always easy to disentangle 17 Although the mayor was subordinate to the king, Gimil-Ninurta appears to be seeking him as a primary, not an intermediate, patron. Later, Gimil-Ninurta has no difficulty in approaching the king directly. 18 On the personal nature of politics in a society lacking modern ideological parties, see Lenclud 1998. 19 Satire V: A meal is the return which your grand friendship yields you; the great man reckons it against you; and though it seldom comes, he reckons it against you all the same. So if after a couple of months it is his pleasure to invite his forgotten client, lest the third place on the lowest couch be unoccupied, and he says to you, “Come and dine with me,” you are in the seventh heaven! What more could you desire? (14-19). See now that huge lobster being served to my lord, all garnished with asparagus; see how his lordly breast distinguishes the dish; with what a tail he looks down upon the company, borne aloft in the hands of a tall attendant! Before you is placed on a tiny plate a shrimp hemmed in by half an egg—a fit banquet for the dead (80-85).

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the privileges and obligations of being a client from the rights and duties of office. The letters of Neo-Assyrian scholars to the king are a case in point. Occasionally they contain complaints and pleas regarding their treatment. Are these demands within the framework of their remuneration or an attempt to gain extra benefits on the basis of the king’s gratitude for their personal services? The exorcist Adad-umu-uur was the personal physician of Esarhaddon. In an eloquent letter to the king he seeks preferment for his son AradGula at court (SAA 10 226). He contrasts the general contentment that the king has brought about in the population with the unhappiness of himself and his son, and gives the reason: Now the king, my lord, has shown his love of Nineveh to the people, saying to the heads of household, “Bring your sons to me; let them attend me” (ina p niya lizziz ). Arad-Gula is my son; let him attend the king, my lord, along with them. Let us rejoice, dance, and bless the king, my lord, with all the people (reverse, lines 612). It is unlikely that the king is supporting the entire youth of Nineveh in his entourage. The writer must be referring to a privileged circle in which his son for some reason has not been included. When the king grants his request, bringing not only his son but other members of his family into the privileged circle, Adad-umu-uur writes an effusive thank-you letter (SAA 10 227) that contains, inter alia, the following expression of his feelings: The king, my lord, has treated his servants like a father treats his sons. Since mankind has existed, what king has done such a favor (damiqtu) for his servants and what friend (b l bti) has returned such a kindness to his friend? (lines 22-29) The question is whether Adad-umu-uur was entitled to that privilege by virtue of his rank, or whether it was a gift in the discretion of the king as patron. We may compare the language of Arad-Gula himself, after he has attained the position of a royal exorcist. Arad-Gula writes to the king claiming certain benefits, but in very different terms to his father’s appeals (SAA 10 294):

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When my lord was crown prince I received the “leftovers” with your exorcists. I stationed myself at the windows and kept watch. The whole time that I attended him I observed the taboos surrounding him. I did not enter the house of a eunuch or a courtier without his permission. . . . Now the king my lord, after his father, has added to his good name, but I am not treated in accordance with my services (ina pitti ep tiya). I have suffered as never before; I have laid down my life (lines 19-25). If it is fitting that senior scholars and their assistants receive mules, then let them give me one donkey. Furthermore, they apportion oxen in the month of Tebet; let [me receive] one ox (lines 31-34). The contrast is striking. Adad-umu-uur uses the language of affect; Arad-Gula the language of entitlement. The one is a bid for patronage; the other is an assertion of the privileges of office. This distinction between a request for favor and a claim to fair treatment is also an important factor in the Amarna letters, discussed below.

Pharaoh and the Canaanite Kings The Amarna archive from fourteenth-century Egypt contains diplomatic correspondence between Egypt and other kingdoms of the region. Although dealing with matters of state, the letters are always phrased as if they were personal communications between the two rulers. The reason is that kings saw themselves as householders writ large: the theoretical basis of international relations was metaphors of inter-personal relationships such as family ties and individual friendship (Liverani 2000: 18-19). The letters between equals frequently appeal to personal sentiments of love, brotherhood, and friendship. Since they are between equals, they cannot involve patronage, but in a sense they lay the theoretical groundwork for patronage, in that they reveal an understanding of friendship based upon mutual interest and mutual exchange (cf. Zaccagnini 2000). Patronage is a form of friendship in this self-interested sense, but with the additional mutation of being between unequal partners. The bulk of the Amarna correspondence is between Pharaoh and the petty kings of Canaan, who were his vassals. “Vassalage” is a term

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borrowed from medieval history and generally distinguishable from patronage by its formality and permanence. At first sight, the ancient Near Eastern equivalent is expressed in even stronger terms: the overlord is called “master” and the vassal “slave,” implying absolute obedience and servitude from the vassal and no reciprocal obligations from the overlord. It would seem that patronage could have no place, even as an accretion, in such a despotic, one-sided relationship. The terminology of servitude, however, has a wide semantic range in the languages of the ancient Near East, indicating anything from proprietary slavery to mere hierarchical subordination. In the field of international relations, vassalage can entail many different degrees of political control, from province to sphere of influence. In the Hittite empire of the same period, the formal treaty was the instrument of choice for determining the status of individual vassals. The treaty set out the reciprocal rights and duties of overlord and vassal, naturally weighted in favor of the former. Its provisions were so comprehensive and detailed that they left no room for patronage outside of the juridical relationship. The situation within the Egyptian empire in Western Asia was more complex. On the one hand, the language of the Canaanite vassals themselves serves to reinforce an impression of absolutism: I fall at the feet of the king, my lord, seven times and seven times. I am dust under the sandals of the king, my lord (EA 147: 3-5). On the other hand, there is an absence of formal treaties. The Egyptians may have taken loyalty oaths from their vassals at the outset, but they did not spell out rights and duties, whether orally or in a formal document. Instead, they left it to district administrators (r biu—“commissioner”) to regulate ongoing relations with the vassals, on an informal basis. Perhaps in the interests of flexibility, a certain ambiguity was built into the Egyptian system. Liverani has pointed to a discrepancy between the Egyptian and Canaanite interpretations of certain aspects of vassalage (1967; 1983: 49-56; 2001: 160-65). The Egyptians insist on the vassal kings performing their duties as if they were members of the Egyptian administration, while still regarding them as outsiders and thus denying them any of the emoluments that an Egyptian official would be entitled to. The vassal kings refer to

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themselves as members of the administration (azannu—“mayor”) and regard themselves as entitled to be treated as officials.20 Liverani’s identification of the discrepancy is a great insight. It is not, however, a matter of misunderstanding. The letters reveal a far more subtle dynamic, in which the correspondent’s interpretation of terms is in itself a negotiation, as Na’aman has pointed out (2000: 131-38). We would add that Na’aman’s analysis applies irrespective of whether the correspondent is Pharaoh or a vassal. The issue is not so much which status is to apply; rather, each side picks out a particular property of one or other status that happens to serve their interest. Aziru of Amurru ruled a kingdom that stood on the border between the Egyptian and the Hittite spheres of influence. He was therefore in a position to play off one against the other and adopt a more independent attitude toward Pharaoh. He sends Pharaoh “tribute” in the form of timber (EA 160), but it emerges that Pharaoh reciprocates with deliveries of silver and gold (EA 161). When it suits him, Aziru chooses not only to be a loyal vassal but, like many lesser vassals, to claim insider status within the administration. When accused of entertaining the envoy of a great power, a gesture of independent foreign policy forbidden to a vassal king, Aziru protests (EA 161: 47-53): Moreover, the king, my lord, also said, “Why did you provide for the messenger of the king of Hatti, but did not provide for my messenger?” But this is the land of my lord, and the king, my lord, made me one of the mayors! Aziru does not deny the facts, but suggests that his acts or omissions cannot be interpreted as a political gesture. If he provided food for a foreign messenger, it was as a representative of the Pharaoh, because he is an Egyptian official. On the other hand, alongside the language of subservience, Aziru adds vague promises more appropriate to patronage:

20 In the special dialect of this correspondence, “mayor” is used to mean a member of the Egyptian bureaucracy, not the head of a local authority as in Mesopotamia.

236

Writings of Westbrook, Vol. 1: The Shared Tradition . . . as to any request that the Sun, my lord, makes, I am your servant forever . . . (EA 156: 4-7) . . . and whatever the request of the king, my lord, I will grant it (EA 157: 17-19)

Such statements should be compared with the language of friendship used by the Great Kings, Pharaoh’s peers: Furthermore, whatever my brother wants, let my brother just write me so it can be taken from the house (EA 7: 61-62—Babylonia) Whatever my brother needs for his house, let him write and take it (EA 19: 68-69— Mittani) Aziru actually uses the language of personal affect in referring to his relationship with Pharaoh (EA 158: 36-38): But if the king, my lord, does not love me but hates me, then what am I to say? Pharaoh was accustomed to speak of obedience and duty, not love, in relation to his vassals. Aziru sought to overlay his vassal status with the special privileges of a client. His efforts were not without result. Pharaoh’s attitude to Aziru is revealed by the copy of a letter sent by him to Aziru, remarkable for its weakness (EA 162). 7-11 Do you not write to the king, my lord, saying, “I am your servant like all the previous mayors in this city”? Yet you acted delinquently by taking the mayor whose brother had cast him away at the gate, from his city. . . . 19-21 And if you did act loyally, still all the things you wrote were not true. In fact, the king has reflected on them as follows, “Everything you have said is not friendly.” 22-29 Now the king has heard as follows, “You are at peace with the ruler of Qadesh. The two of you take food and strong drink together.” And it is true. Why do you act so? Why are you at peace with a ruler with whom the king is fight-

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ing? And even if you did act loyally, you considered your own judgment, and his judgment did not count. You have paid no attention to the things you did earlier. What happened to you among them that you are not on the side of the king, your lord? 30-32 Consider the people that are training you for their own advantage. They want to throw you into the fire. . . . 33-40 But if you perform your service for the king, your lord, what is there that the king will not do for you? If for any reason whatsoever you prefer to do evil, and if you plot evil, treacherous things, then you, together with your entire family, shall die by the axe of the king. So perform your service for the king, your lord, and you will live. Although Aziru has performed patently treasonable acts, Pharaoh each time offers him a way out, settling for a light reprimand. In lines 30-32 Pharaoh himself finds an excuse for Aziru’s misconduct, appealing to him not to be led astray by others seeking to exploit him for their own ends. In lines 33-38, the threat of punishment for a disobedient servant was to be expected; what is surprising is the offer of benefits by the king in return for services. Especially significant is the fact that Pharaoh’s offer is couched in the vague terms of boundless generosity, not an exact quid pro quo or payment. It creates expectations for the vassal, not categorical legal rights. It is the pure language of patronage. Aziru’s bid for patronage, apparently successful, should be contrasted with the correspondence of Rib-Hadda of Gubla. Rib-Hadda repeatedly sought Pharaoh’s aid against his fellow vassals but had no rival patron to whom he could turn.21 His letters therefore argue exclusively from the standpoint of a member of the Egyptian administration and use the language of entitlement, demanding fairness in his treatment (EA 88: 43-48):

21 Rib-Hadda tries to give his local rivals the status of foreign enemies, by suggesting that they threaten the integrity of the Egyptian empire (EA 137). They represent the Apiru, that is, the forces of chaos (EA 88, 90); they are comparable to external threats such as the Hittites or the Babylonians (EA 76, 116); they are forming a coalition that will challenge Egyptian hegemony (EA 74:30-45); they are in collusion with the Hittites (EA 126:53-66— perhaps with a grain of truth!).

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Writings of Westbrook, Vol. 1: The Shared Tradition Gubla is not like the other cities. Gubla is a loyal city to the king, my lord, from most ancient times. Still, the messenger of the king of Akka is honored more than my messenger, for they furnished him with a horse. . . .

Intermediary Patronage Aziru Again A classic example of intermediary patronage is the great man at court who will use his influence for the benefit and protection of his client. In EA 198 above, Arasha of Kumidu, seeking military aid, sought to assure Pharaoh of his loyalty: May the king, my lord, inquire of all his commissioners whether I am a loyal servant of the king, my lord. May the king, my lord, inquire of Hamasha whether I am a loyal servant of the king, my lord . . . (lines 11-17). The mention of commissioners is no more than a reference to credible witnesses. The mention of Hamasha, a senior Egyptian courtier, is not of the same order. He could just have been a disinterested witness, but it is more likely that Arasha saw him as his patron at the Egyptian court.22 In EA 158, Aziru of Amurru writes directly to Tutu, a high official at the Egyptian court, with the same purpose: To Tutu, my lord, my father: Message of Aziru, your son, your servant. I fall at the feet of my father. For my father may all go well. Tutu, I herewith grant the request of the king, my lord, and whatever may be the request of the king, my lord, he should write and I will grant it. Moreover, as you in that place are my father, whatever may be the request of Tutu, my father, just write and I will grant it.

22 On the assumption that Moran is correct in identifying him with Haamashi who had served as an envoy to Mittani (1992: 381).

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As you are my father and my lord, and I am your son, the land of Amurru is your land and my house is your house. Write to me any request at all of yours, and I will grant your every request. And you are in the personal service of the king, my lord. Heaven forbid that treacherous men have spoken maliciously against me in the presence of the king, my lord. And you should not permit them. And as you are in the personal service of the king, my lord, in my place, you should not permit malicious talk against me. I am the servant of the king, my lord, and I will not deviate from the orders of the king, my lord, or from the orders of Tutu, my father, forever. But if the king, my lord, does not love me but hates me, then what am I to say? Several points stand out from this letter. First, the writer calls the Egyptian official “my father” and himself “your son.” While not necessarily a sign of patronage, it is certainly appropriate to it. Secondly, the writer offers to fulfill any request of the official (and of the Pharaoh). It is the same vague offer made to and by Pharaoh elsewhere in Aziru’s correspondence that we have noted as indicative of patronage obligations. Thirdly, his letter has one overriding purpose: to exploit the influence of that official with the Pharaoh. Nothing, from the vassal’s point of view, could be more valuable, as he makes clear in the last sentence. A requirement of patronage is that the personal relationship not be restricted to an isolated transaction. The same Tutu appears several times in Aziru’s correspondence (EA 167, 169). He was most probably an established contact at court that the vassal in this letter tries to enlist in his ongoing campaign to neutralize enemies among his fellow vassals and influence Pharaoh in his favor.

Adad-umu-uur Again In his request to Esarhaddon for preferment of his son, Adad-umu-uur complains that he has no “friend” (b l bti) at court who would accept a ulm nu-gift from him in order to present his case to the king (SAA 10 226: reverse 14-19). The “friend” could of course be a colleague who would accept a mandate to intercede on his behalf, but it is difficult to see

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why a courtier of equal standing should be more effective than the petitioner himself. It seems more likely to indicate that there are higher echelons of courtiers, for example princes or generals, among whose ranks he has no intermediary patron to act as broker for him.

Biblical Prophets In 1 Kgs 17:8-24, the prophet Elijah is given a curious instruction by God. He is to request support from a poor widow, in other words, to become her client. The woman, not unwilling in principle, points out her inability to fulfill the prophet’s request, given that she and her son are on the point of starving to death. The prophet, by a miracle, provides her with limitless supplies and thus in one stroke becomes her patron rather than her client. Her maintenance of him, originally demanded as a gratuitous service, becomes a reciprocal gift for his intervening with the divine ruler to ensure maintenance of herself and her son. Later, when her son falls ill, her reaction is not to entreat Elijah but to berate him. “What have I to do with you, man of God? Have you come to me to invoke my sin and kill my son?” she remarks sarcastically (v. 18).23 As her intermediary patron, he has failed in his duty to protect her from adverse decisions of the divine ruler. Elijah is keenly aware of his failure. His plea to God for the son’s life is not for the boy’s sake but rests upon the mother’s client status (v. 20): “Will you harm the widow with whom I lodge by killing her son?” When he succeeds in reviving her son, her reaction is again logical within the framework of patronage: she affirms his effectiveness as an intermediary with the divine ruler (v. 24): “Now I know that you are a man of God and that the word of the LORD in your mouth is true.” 2 Kgs 4:8-37 and 8:1-6 repeat the same topos, but in a more complex and subtle narrative, charged with irony regarding the vicissitudes of fortune. It concerns the relationship of the prophet Elisha with a wealthy woman in the town of Shunem. Whenever he passes through the town, she invites him for a meal, and eventually she and her husband construct an 23 Following MT. If the manuscripts that insert kî are followed, the tone of the widow’s remarks nevertheless remains the same: “What have I to do with you, man of God, that you have come to me to invoke my sin and kill my son?”

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extra bedroom in their house that he can use as lodgings. The motivation for their generosity is piety, because the prophet is a holy man. They ask no favors from him, but they do stand to gain from the relationship in terms of social prestige and perhaps favor with God. Nonetheless, the prophet is determined to reciprocate and instructs his servant Gehazi to ask her: “Would you have a word spoken on your behalf to the king or to the commander of the army?” In other words, he offers his patronage as an intermediary: to use his influence at the royal court on her behalf. Note that his offer comes some time after he has been receiving her hospitality. The relationship demands that his offer not be seen as payment for services, but as a counter-gift in recognition of her generosity. The relationship can thus remain personal, not commercial. Although phrased as an offer of assistance, its effect will be to shift Elisha’s status from client to patron. It is an assertion of his role as the superior in the relationship, and the woman, understanding its implications, rejects it out of hand. Her reply—“I am dwelling among my clan”— stresses that she relies on a different support system, based on kinship, not patronage. Moreover, she is “a great woman” (’iâ gdôlâ in 2 Kgs 4:8), i.e., a person of high status. Holding a preeminent position within her clan gives her influence enough, without the need for a patron at court. Elisha, not satisfied with her reply, discovers that she is lacking in one respect. She has no children. He therefore informs her that she will bear a son, and by doing so he does succeed in reversing their patronage relationship, making himself the dominant party, as in the Elijah story. She does not need his influence in the royal court, but Elisha is a prophet, and has influence in an even higher court, that of the divine king. The patronage relationship, thus established, continues to function for some years, until events take a dramatic turn. The boy falls ill and dies. The woman hastens to the prophet and grasps his legs—the gesture of a supplicant. Her attitude, however, reveals an ongoing concern with status. Immediately beforehand, she had turned aside the polite inquiry of Gehazi, Elisha’s servant, by stating that the boy was well. Unwilling to go through the servant, she approaches Elisha directly, and when she addresses him it is not with words of supplication but of reproach (4:28): “Did I ask a son of my lord? Did I not say ‘Do not deceive me’?” It was he who chose to reverse their roles, and now he has failed to fulfill the promises of his patronage. Elisha understands and proceeds to correct his error, praying to God until the child is revived.

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Seen against the background of a rich and powerful woman’s pride and her earlier rejection of intervention at court, the biblical narrative uses the motif of reversal of fortune to emphasize its message. Not only is the prophet’s patronage more effective than kinship or high status; the prophet, albeit intermediary and not primary, is a more powerful patron than even a king because as an official of God, he can use his influence to bestow benefits uniquely within divine power, such as the birth of a child and revival of the dead.24 The woman’s reversal of fortune continues. Elisha, acting as a good patron, warns her of an imminent famine. The famine is a decision of the divine ruler: the prophet, with insider knowledge of government policy, as it were, is able to protect a privileged client from its effects. She flees the country for seven years, only to find on her return that her land has been occupied by others in her absence.25 Presumably, she is also by now a widow, since she went out “she and her house” (2 Kgs 8:2), but now petitions the king alone for his aid in restoring “her house and field” (8:3, 8). In the absence of Elisha, it is his servant Gehazi who helps her by informing the king of Elisha’s patronage of her. The woman’s circumstances have been reduced to the point where she now needs the prophet’s influence in the earthly court, but the narrative leaves the task of intervening at this lower level to the prophet’s servant, that same servant whom in an earlier meeting with the prophet she had circumvented.

Conclusions If our examples have been few, they are drawn from a wide spectrum of societies in the region, in the second and first millennia. They are not evidence of widespread practice on the Roman model, republican or imperial, nor of a parallel system alongside the formal structures of government, as anthropologists have demonstrated for many traditional societies. Further-

24 The latter power is described in 1 Sam 2:6: “The LORD puts to death and makes live; he brings down to the Netherworld and he brings up.” 25 The assumption by some commentators that the property had been taken over by the crown, in trust or otherwise (e.g., Gray 1970: 527; Jones 1984: 440), is anachronistic.

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more, they reveal only the operation of patronage; they give no hint as to its moral ideology. These limitations are not altogether unexpected, given the narrow criteria that we have adopted on the one hand and the nature of our sources on the other. The former are necessary to dispel unwarranted assumptions but result in a lean harvest. It has not been our intention, however, to multiply examples but, rather, to present a heuristic model which it is hoped other researchers will apply to identify further verifiable cases of patronage in the primary sources and so slowly build up a picture of its true impact on the societies of the ancient Near East. As regards the sources, it is significant that our cases come from the two genres most apt to reveal informal arrangements, namely literary narratives and letters. By their nature, narratives and letters will not give a systematic picture of the phenomena mentioned in them. Nonetheless, these few cases are sufficient to show that the concept of patronage, although never given distinct expression, was not alien to the ancient Near East. The expectations of patronage can be seen to color interpersonal reactions, in the context of both political negotiations and social courtesies. Once we eschew the assumption of a “patronage society” and confine ourselves to textual evidence, patronage is bound to remain a shadowy phenomenon, reflected in the sources rather than displayed by them. Nevertheless, it is a useful reminder that ancient Near Eastern societies had available to them more subtle modes of distribution than are dreamt of in the philosophy of ration lists.

10 Adultery in Ancient Near Eastern Law Abstract The biblical and cuneiform sources reveal a common legal tradition in the treatment of adultery. Apparent differences are due to the method of presentation used by the ancient law codes. Adultery was an offense against the husband by two parties: the wife and the paramour. His legal remedies against them sometimes coincided or were linked for reasons of policy, but they were on a different basis. Adultery was at the same time a sin which could result in divine punishment. Premarital infidelity was subject to analogous rules.

Introduction

A

dultery is dealt with by a number of the ancient Near Eastern law codes, both cuneiform and biblical. Provisions are to be found in Co1 dex Ur-Namma (CU) 7, Codex Eshnunna (CE) 28, Codex Hammurabi (CH) 129, Tablet A of the Middle Assyrian Laws (MAL) 13-16, 22-23, the Hittite Laws (HL) 197-198, the Priestly Code in Lev 18:20 and 20:10, and the Deuteronomic Code in Deut 22:22. Evidence for the law in practice is sparse but can be gleaned from a variety of sources which will be dis2 cussed in the course of this article.

* Originally published in Revue Biblique 97 (1990): 542-80. Copyright © J. Gabalda et Cie, Éditeurs. Used by permission. 1 Kramer (1983) has proposed that the code was in fact the product of Ur-Namma’s son and successor ulgi. 2 Egypt provides no legal sources on the subject of adultery. There are two stories that mention adultery: The Two Brothers (translation by Lichtheim 1976: 203-211) and King Cheops and the Magicians (translation by Simpson 1973: 16-18 [2nd tale]). The first is a fantasy tale which is of doubtful evidentiary value, but the second may

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At first sight, these sources present a homogeneous picture. The basic conception of adultery is the same throughout: consensual sexual intercourse by a married woman with a man other than her husband. In contrast to modern western systems, intercourse by a married man with a woman other than his wife was not regarded as adultery, unless of course that 3 woman was married. Nevertheless, the question of differences between the ancient legal systems has given rise to considerable scholarly debate. A dividing line has been drawn between the biblical system on the one hand, and the cuneiform systems on the other.

Biblical and Cuneiform Law 4

The theory was proposed by W. Kornfeld and later expanded upon by M. 5 Greenberg that whereas in the other ancient Near Eastern systems adultery is a private wrong against the husband, in biblical law it is an offense against God. Thus whereas in the former case the husband may prosecute the offenders or may waive prosecution at his choice, and may pardon his wife or mitigate her punishment, in the latter prosecution is mandatory and the penalty is invariably death for both the wife and the adulterer, with no possibility of pardon. 6 Variants on this basic theory have been proposed by H. McKeating 7 and A. Phillips. McKeating accepts that the death penalty is mandatory in biblical law, but only in the Deuteronomic and Holiness codes. Previously, it had been at the husband’s discretion, as in the rest of the ancient Near East. Biblical law thus demonstrates an historical development away from the common system.

3 4 5 6 7

reflect contemporary legal practice (see n. 84 below). A wisdom text, The Instructions of Any (translation by Lichtheim 1976: 137) refers to adultery as “a great deadly crime when it is heard” (cf. Prov 7:23). It might, however, be censured as immoral in certain circumstances. See Westbrook 1984. Kornfeld 1950. Greenberg 1960: 12-13; and Greenberg 1986: 1-4. McKeating 1979. Phillips 1981.

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Phillips likewise explains the biblical law in terms of historical development. The death sentence was mandatory, but originally this applied only to the adulterer. The wife was either divorced or pardoned by her husband at his discretion, a procedure which lay within the realm of family law and was not a matter for the courts at all. The effect of the Deuteronomic reform (and subsequently the Priestly Code) was to apply the mandatory death sentence to the wife as well. The above theory in all its variations suffers from the same weakness: it relies not on evidence from the facts but on their silence. Three main arguments are presented: 1. The right of mitigation or pardon by the husband or by the king, which is mentioned in the cuneiform codes, does not oc8 cur in the biblical laws. According to Greenberg, the biblical 9 laws provide that the adulterous couple “must be put to death,” but his translation is misleading. The Hebrew verb could 10 equally well be translated “shall” or even “may.” Its evidence is therefore neutral on this question. 2. In the incident in Genesis 20, where Abimelech takes Abraham’s wife Sarah and almost has intercourse with her, his offense is treated as a sin against God; there is not a word about 11 the wrong done to Abraham. 3. In the same incident, there is no suggestion that Sarah might in any way be liable for her adultery with Abimelech, and the 12 same applies to Bathsheba for her adultery with David. The second and third points, however, are equally explicable in terms of adultery being a wrong against the husband, to be prosecuted at his discretion. Abraham acquiesced in Sarah’s adultery: indeed, he colluded in the deception of Abimelech as to her status, by presenting her as his sister. Bathsheba’s husband was dead—killed at David’s order—before he could

8 9 10 11 12

Greenberg 1960: 12-13; Kornfeld 1950: 94-95. Greenberg 1960: 12. See Buss 1973: 55-56. Greenberg 1960: 12. Phillips 1981: 14-15.

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discover his wife’s adultery, and therefore was not in a position to prosecute. In any case, since the adulterer in both these instances was a monarch, the idea of his prosecution in a court of law would be somewhat academic. On the other hand, the theory is faced with explicit evidence to the contrary, which its proponents are at pains to explain away. 1. Prov 6:32-35, in warning the foolish against adultery, states: The fury of the husband will be passionate; He will show no pity on his day of vengeance. He will not have regard for any ransom; He will refuse your bribe, however great. The passage assumes that the penalty for adultery was vengeance by the husband, which he could commute to ransom at his own discretion. So far from being ineluctable, therefore, punishment was no more than a private arrangement between the wronged husband and the adulterer. Greenberg feels entitled to disregard this evidence on the ground that it represents an extra-legal agreement, the verb “to avenge” (nqm) indicating an extraordi13 nary, usually extra-legal remedy. But nqm indicates a strictly legal 14 remedy in Exod 21:20, and the alternative of ransom still remains to be explained. If adultery was a breach of God’s law which had to punished with death by an earthly court, then the possibility of the husband taking personal vengeance would be irrelevant, and his agreement to accept ransom in lieu of vengeance would be void and most probably illegal also. The point is well taken by Phillips, who argues that the ransom in question was illegal hush-money to cover up the offense. He points out that the two Hebrew terms used for ransom, kpr and d, can be used of bribes to per15 vert justice. So they can, if given to the wrong person, such as a judge or an official. But if given to a litigant, as the husband is, kpr is a perfectly

13 Greenberg 1986: 4. 14 As Greenberg himself argues (1962: 738) with reference to this passage, stating that the verb referred to the operation of Israelite justice. For a discussion of the legal meaning of nqm see Westbrook 1988d. 15 Phillips 1981: 17-18.

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legitimate part of the legal process, which is expressly sanctioned by a law code in Exod 21:30, while d, when paid by one king to another to persuade the latter to come to the former’s aid in pursuance of an existing treaty of friendship (1 Kgs 15:19) or vassalage (2 Kgs 16:8), would seem to be a legitimate instrument of international law. 2. In Gen 38:24, Judah, having been informed that his daughter-in-law has become pregnant while awaiting marriage to his infant son, orders that she be taken out and immolated. This apparent discretion on the part of the wronged party is explained by Phillips as the paterfamilias exercising his 16 patriarchal powers. But Judah is not the paterfamilias; he is the father-inlaw, and his daughter-in-law is not even living in his house, but in her own father’s. Given the minority of the groom (Shelah), Judah may clearly be seen to be acting on the latter’s behalf. And since Tamar is only betrothed, not married at the time, the groom’s rights cannot derive from some informal “family law.” (As we shall see below, her offense in these circumstances still falls squarely within the normal rules of adultery.) The contrary view, that the biblical law is the same as in the rest of the ancient Near East, i.e., an offense against the husband, with prosecution at 17 18 his discretion, has been proposed by B. Jackson and S. Loewenstamm, mainly on the basis of Prov 6:32-35. As regards the silence of the biblical codes on the question of pardon, Loewenstamm points out that they are equally silent as to the identity of the prosecutor. Prov 6:32-35 shows him to be the husband, who may waive his right or accept ransom in lieu. The situation in adultery is comparable to that in murder, where the death pen19 alty is imposed, but its execution is in the hands of the avenger of blood. The evidence presented above clearly favors the views of Jackson and Loewenstamm. Nonetheless, the considerations of the opposing school of thought should not be dismissed altogether. The silence of the biblical codes where the cuneiform codes are explicit, as noted by these eminent scholars, while not supporting their hypothesis, is a phenomenon worthy of 16 Phillips 1970: 117, n. 34. Phillips offers an alternative argument: that the reference to burning is a priestly gloss (1970: 129). But no ground for excising this section of the text is given other than its inconsistency with the author’s theory 17 Jackson 1975: 60. 18 Loewenstamm 1980b. 19 Loewenstamm 1980b: 148-49.

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some consideration. Furthermore, acceptance of the fact that the biblical law is a component part of a wider tradition raises the broader question of what the tradition is and how the individual legal systems relate to it. It is only by understanding the nature of that tradition that we may elucidate the complexities of the ancient Near Eastern law of adultery and their reflection in the individual systems of the area.

The Scientific Tradition The similarity between the adultery laws of the various cuneiform and biblical law codes is not a coincidence. It derives from the nature of the codes themselves. In spite of their modern appellation, the codes were not legislation in the modern sense but scientific treatises on the existing laws, which consisted mostly of customary law with an admixture of more re20 cent precedents and administrative measures. Their scientific method had likewise little in common with modern science; it was based on the Mesopotamian scientific tradition, sometimes contemptuously referred to as a science of lists. Lacking the ability to define terms or create abstract categories, the method employed was to compile long lists of examples illustrating the principles involved, without actually expressing them. To enhance the heuristic value of these examples in the case of law, an actual judgment was taken and cast into the form of a hypothetical set of facts with its accompanying decision, then further hypothetical variations added, usually along certain set patterns. In this way a scholarly legal problem was created which could be used to instruct pupils in the Mesopotamian 21 equivalent of a university, the scribal school.

20 See Kraus 1960; Westbrook 1988a: 84-97. Contra Preiser 1969; Petschow 1986: 1823. Kraus (1984) recanted his original view, making reference to Preiser’s article. In our view the article in question does not justify any change of opinion, since it adds nothing new to the debate. It merely summarizes the opposing views and declares ex cathedra that one is more convincing than the other. The author apparently has no knowledge of the primary sources or of the cultural context in which those sources are embedded; instead he applies anachronistic analogies. For a rebutter and summary of the debate, see now Westbrook 1989a. 21 Bottéro 1982.

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For example, an owner’s liability for his goring ox could be considered along a series of different lines: firstly, if the owner had been warned or not of the ox’s propensity to gore; secondly, what the status of the ox’s victim was (head of household, wife, son, daughter, or slave); thirdly, if the victim was another ox, which raised different questions of liability. Furthermore, combinations of all these different lines of inquiry could be constructed so as to create a discussion that was at least far-ranging, if by its nature it could never be comprehensive. By the second millennium (if not earlier) a canon of such scholarly problems had been created, and it was upon this scientific tradition that the Mesopotamian law codes drew in committing the law to writing. With the spread of cuneiform writing, the Mesopotamian scientific tradition was 22 carried throughout the ancient Near East and beyond. Local law codes in 23 24 Hatti, Canaan, and even, to a lesser extent, in early Greece and Rome, applied the same methods and drew upon the same canon of scholarly problems. Because these law codes could only have a fraction of their discussion committed to writing, each code contains no more than a few aspects of a given scholarly problem, sometimes overlapping with the aspects preserved in other codes, sometimes not. Moreover, a given system may pursue the discussion in a particular direction, considering variants not discussed elsewhere. It is by combining the similar and not-so-similar provisions of the various codes that the whole problem and thus the underlying law may be revealed and any peculiarities of the individual systems disclosed. This approach is, to be sure, in some sense an argument from silence, but it is a positive argument, that refuses to see contradictions in mere omissions from sources that are by their nature incomplete, when in all other respects 25 they are complementary. Adultery forms part of a complex of interrelated scholarly problems 26 discussing social offenses such as seduction and rape. And it is itself a 22 Westbrook 1988a: 92-93. 23 For an example of Near Eastern influence in the Law Code of Gortyn, see Muhl 1933: 79-81. 24 Westbrook 1988a: 97-118. 25 Westbrook 1988d: 5-6. 26 For a survey of sexual offenses, see Finkelstein 1966.

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complex problem, containing several interrelated cases, upon which the discussions of the law codes are built. We shall consider each case in detail.

The Treatment of Adultery in the Law Codes 1. The first case sets out the basic crime of adultery and the appropriate sanction. It is found in three codes: MAL, Leviticus, and Deuteronomy. MAL 13 If the wife of a man goes out of her house and goes to a man where he is dwelling (and) he has intercourse with her knowing that she is the wife of a man, the 27 man and the woman shall be killed. Lev 20:10 A man who commits adultery (verb n’p) with the wife of a man, the man who commits adultery with the wife of his neighbor shall be killed—the adulterer and 28 the adulteress. 29

Deut 22:22 If a man is discovered to have slept with a married woman, both shall die—the man sleeping with the woman and the woman. You shall purge evil from Israel. All three laws contain the basic elements of adultery: a married woman, a man (married or not), intercourse, consent. The sanction is death for both, stated in the most categorical terms. There is no mention of the husband in any role or of the possibility of pardon. Differences between the three are that Leviticus uses a technical term for adultery, Deuteronomy describes the physical act, and MAL does

27 Literally: “they shall kill” (idukk), i.e., the 3rd masc. pl. impersonal form. 28 Note the literary structure of the verse, which in its partial repetition creates a “word chain,” a device sometimes found in biblical poetry. See Berlin 1987: 141-47. 29 Daube (1971) argued that the verb yimm’ indicated that the culprit was caught in the act. But see in refutation Dempster 1984.

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likewise but with additional circumstantial material—which is not surprising, as MAL is the most detailed of all the codes, cuneiform as well as biblical. MAL gives two extra details: the location of the act—which plays an evidentiary rather than a substantive role in the offense (as we shall see presently)—and the paramour’s knowledge of the woman’s status. The latter point is mentioned because in MAL this case is part of a larger discussion: it is to be contrasted with another set of circumstances where the paramour was totally in ignorance. This brings us to the second case, which is presented in two codes, CU and MAL. 30

2. CU 7 reads: “If a married woman of her own initiative leads a man 31 and sleeps with him, the man (i.e., the husband) shall kill that woman; he shall let that man go free.” The extremely terse formulation, if taken literally, would leave us with an absurd law: the paramour would only have to prove than he was seduced in order to escape entirely the consequences of his adultery. That more lay behind the law than was expressed is shown when we complement it with the details in MAL’s treatment of the same case. MAL 14 If a man has intercourse with the wife of a man in a tavern or in the square, knowing that she is a man’s wife, whatever the husband states is to be done to his wife shall be done to the paramour. If he has intercourse with her not knowing that she is the man’s wife, the paramour is free (of liability). The husband shall establish (the case against) his wife and do 32 with her(!) as he wishes.

30 Gurney and Kramer 1965: 13; Finkelstein 1969b: 68; Yildiz 1981: 90, 92. Cf. Lambert 1968: 96. Paragraph number follows Yildiz’ edition, but the text presented here is Yildiz C. See note 51 below. The Sumerian text reads: t u k u m - b i d am -g u ru  -a / m e -t e - a-n i - t a / l ú b a - an -ú s / ú r -r a -n a b a- an -n á / m u n u s-b i / l ú i g a z- e / n i t a -b a / a m a < a r> -g i -b i / i -g a r. 31 Literally, “lies in his lap.” 32 ki-i lib-bi- u e-pa-a-[s]u. For this phrase, cf. the declaration of king Shaushgamuwa of Amurru on agreeing to restore to king Ammistamru of Ugarit his adulterous wife:

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A woman has given herself to a man in one of the typical haunts of a pros33 titute, i.e., in circumstances in which his ignorance of her status is credible. Only if he in fact knew her to be a married woman is he to be punished for adultery. The principle is, in our view, the same in both the Sumerian and the Assyrian law. A wife plays the part of a single woman in order to initiate intercourse with an outsider: punishment therefore falls entirely upon her and not upon her unwitting partner. The Assyrian law expresses it with a very concrete example; the Sumerian law only alludes to the circumstances with the enigmatic verb “leads.” In both the result is the same: death for the wife, freedom for the man. Thus far we have seen two cases: the statement of principle in which both the wife and the paramour die, and a special circumstance in which only the wife dies. A case where only the paramour dies does not arise, and for good reason. Adultery is an offense against the husband. It is an infringement by a third party of his marital rights over his wife. If the husband acquiesces in that infringement then there cannot have been a wrong against him. Consequently, punishment of the paramour is conditional upon punishment of the wife. All three texts which lay down the principle of adultery emphasize this point, stating that both guilty parties are to be killed. The formulation of Lev 20:10 is of particular note in this regard. Phillips has made much of the fact that the law at first concerns the paramour alone but then adds as a rider “the adulterer and the adulteress,” suggesting that this rider was a subsequent amendment to the original law, 34 expanding its scope. But there is no need to assume an historical devel35 The formulation, as opment expressed through clumsy drafting. 36 McKeating surmised, is designed to show that the paramour’s death is dependent upon the wife’s.

33 34 35

36

“Take her and do with her as you wish. If you wish, kill her or throw her into the sea!” (in PRU IV, RS 17.228: 10-14 [p. 142]). With reference to a prostitute from the town square; cf. CL 30 and ana itti u 7 II 2323a (see Landsberger 1937: 96). For the immoral reputation of a tavern, cf. CH 110. Phillips 1981: 6. On the contrary, the laws of the priestly source show a polished, literary quality that stands apart from the traditional law-code formulation. See n. 28 above and compare, for example, the chiastic structure of Lev 24:17-21. McKeating 1979: 58-59.

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A further aspect of this dependence is considered by MAL 14a. In the event that the paramour was aware of the wife’s true status, his punishment is still linked to that which the husband imposes on his wife. The reason for this linkage has rightly been seen by commentators as a safe37 guard against collusion between husband and wife. The suspicion is that the husband himself sent his wife out to prostitute herself, and if she is not punished for adultery when her clients are, the corrupt couple can easily blackmail their victims, on a false claim as much as on a real one. The husband’s lack of acquiescence in his wife’s conduct is therefore tested by this device of linkage. The text also reveals the role of the husband and the possibility that adultery may be punished other than by death, points to which we shall return below. Firstly, however, we must examine more deeply the question of collusion, which is a vital factor in the third case. 3. Where a wife and her paramour are caught in flagranti delicto, three possibilities are envisaged. a) The husband kills the adulterers on the spot. This is discussed in HL, CE, and MAL. HL 197 . . . If the husband finds them (the adulterers) and kills them, there is no liability upon him. CE 28 If he establishes a contract and kirrum with her father and mother and marries her, she is a wife. The day she is 38 seized in the lap of a man she shall die; she shall not live.

37 Driver and Miles 1935: 44-45; Cardascia 1969: 118-19. 38 Yaron (1988b: 284-85) has suggested that this clause could refer to the paramour, rather than the wife. Grammatically speaking, this interpretation is possible, since the 3rd singular in the Old Babylonian dialect does not distinguish between masculine and feminine. It seems to us highly unlikely, however. CE 27-28 is concerned with the question of the woman’s legal position. As we shall see below, the penalties on the wife and the paramour for adultery were inherently different and did not need to be considered in the same discussion. See also the remarks of Roth 1988: 206.

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The phrase “shall die . . . shall not live” is found in CE in other cases 39 where the culprit is caught in flagranti delicto and has been explained by 40 Szlechter as the right of the injured party to kill the culprit on the spot. MAL 15 is a difficult text. To interpret the first part, which concerns us here, it is necessary to consider the whole law, which reads: If a man seizes a man with his wife, (and if) it has been established and proved (against) him: (on condition that) both are killed, there 41 is no liability upon him. If he seizes (him) and brings (him) before the king or the judges, (and if) it has been established and proved (against) him: if the husband of the woman kills his wife, he shall kill the man; if he cuts off his wife’s nose, he shall turn the man into a eunuch and his whole face shall be mutilated; but if he frees his wife, he shall free the man. The problematic clause in the first paragraph reads literally: “they have established him and have proved him; it is both of them that they kill; his liability is not” (ubta’er ukta’in kilalli unma idukk unu aran u la

u). According to Driver and Miles, the husband here is inflicting summary vengeance on the couple caught in flagranti delicto, but nonetheless some form of trial procedure is needed beforehand, to safeguard from liability 42 the husband and those who joined him in exacting vengeance. Cardascia supports this view, adducing the example of Hephaistos from the Odyssey and the case of killing a burglar in the Twelve Tables, where the neighbors 43 have to be called in to witness the act of summary justice. The difficulty is that the phrase ‘establish and prove,’ which is found repeatedly in MAL, elsewhere refers to the burden of proving an accusation before the trial 39 CE 12-13: the case of a burglar seized in a field or house at night. Cf. Exod 22:1-2. 40 Szlechter 1954: 110, 123. Yaron objects (1988b: 260-62) that the phrase in its literal meaning “does not connect up” with the question of whether the killing was justified. But such is frequently the case with technical legal phrases, and Yaron’s own suggestion—that it is a stylistic conceit devoid of legal meaning—is a counsel of despair. 41 arnu. Possibly “penalty.” See CAD A/2 294; and Hengstl 1980. 42 Driver and Miles 1935: 45-46. 43 Cardascia 1969: 121.

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44

court, which then pronounces sentence. But the latter procedure is presented as the alternative option for the husband in the second part of the text. We suggest therefore that the establishing and proving refer to a procedure ex post facto of the husband killing the lovers on the spot, in a trial in which he is the defendant. The burden is on the husband to prove the circumstances in which the killing of the paramour took place (since it is the latter’s relatives who would be the accusers in a murder trial), as expressed by the third person plural impersonal form of the verbs with the object ‘him,’ i.e., the paramour. If the husband can discharge this burden and on condition that both the paramour and his wife were killed—again 45 expressed by the impersonal form of the verb but with the emphatic -ma on “both of them” to show that it is a condition—it is a complete defense. Whichever interpretation is adopted, it is clear that it is the husband’s liability for homicide that is in issue in this part of the paragraph. HL 197 and MAL 15a therefore represent the same rule, providing a defense to a husband who kills both his wife and her paramour upon catching them in flagranti delicto, instead of bringing them before the court. On the evidence of the Assyrian law, the plural object (“them”) in the Hittite law may be taken to be a necessary condition for escaping liability and not merely a narrative element. CE 28 mentions killing only the wife, but again we cannot infer from this that Eshnunna knew a different rule. CE 28 strictly speaking belongs to a different standard problem, concerning the validity of marriage and mentions the right to kill the wife seized in adultery only in passing as a consequence of that validity. It is not surprising, therefore, that the paragraph concentrates on the fate of the wife and does not mention other conditions associated with adultery. For that matter, it may be assumed that a valid marriage was a condition for the husband’s defense in HL 197 and MAL 15a, although the point is omitted. b) The husband, on catching the lovers, hauls them before the court and demands the death penalty for both. This we have already seen in the 44 MAL 1, 9, 16, 20, 21, 40, etc. [Editors’ note: see now Westbrook 2003c on this phrase in MAL.] 45 The durative tense (idukk) need not express consecutio temporum, but may likewise refer to the condition.

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second part of MAL 15; it also occurs in HL 198 which we shall discuss below, but for the moment it is important to note CH 129, the first part of which belongs in this category: “If the wife of a man is seized while lying with a man, they shall be bound and thrown into the water . . . .” The continuation of this law brings us to the third possibility where the husband demands death for the paramour alone. c) CH 129 continues: “. . . If the wife’s master lets his wife live, the king shall indeed let his servant live.” The right of the husband to pardon his wife is assumed by this law. Its concern is to link a royal pardon of the paramour to the husband’s pardon of his wife as an almost automatic process. The same concern informs MAL 15 above, which as usual enters into more detail, linking the court’s punishment of the paramour with the de46 gree of punishment inflicted by the husband on his wife. The reason for the court’s solicitude for the paramour is not merely a sense of equity, although that undoubtedly plays some part. As we have seen above, acquiescence by the husband would nullify the adultery, while 47 failure to punish his wife severely enough might suggest collusion. In the present circumstances there is a further danger: that of entrapment. An innocent person is invited to the couple’s house, possibly upon what he thinks is legitimate business, and is there entrapped when the husband claims to have seized him in flagranti delicto. An explicit reference to this danger is found in the Law Code of Gortyn. The latter is a Greek code from Crete, usually dated to the fifth 48 century B.C.E. Its style and content reveal it to be an heir to the Mesopotamian scientific tradition, retaining the method of the Near Eastern academies and occasionally an echo of their canon of scholarly problems. Such an echo is found in col. II, lines 20-24, 36-46:

46 Could the different gradation of penalty also be linked to the alternative jurisdictions, i.e., before the king—death; before the judges—mutilation? Cf. the discussion below on the jurisdiction of the local court in pre-marital infidelity. 47 A further motivation in exacting punishment on the paramour was the amount of ransom that might be elicited from him (see below). The necessity of exacting parallel mutilation on his wife would serve to dampen the colluding husband’s greed in this respect. 48 Willetts 1967.

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If someone is taken in adultery with a free woman in a father’s, brother’s, or the husband’s house, he shall pay a hundred staters; but if in another’s, fifty; . . . but if he should declare that he has 49 been entrapped, the captor is to swear, in a case involving fifty staters or more, each calling down solemn curses upon himself . . . that he took him in adultery and did not entrap him. In this peripheral code the solution is different, but there is the same awareness of the dangers inherent in a claim to have caught someone in the act of adultery. Returning to the ancient Near East, HL adopts the same solution in principle to this problem but adds a further factor. 198 If he (the husband) brings them to the gate of the palace and says, “My wife shall not die,” and he lets his wife live, he shall let the paramour live, and he shall clothe his head. If he says, “Let them both die,” and they kneel at the wheel, the king may kill them; the king may let them live. The first part of the law follows the pattern that we have seen in CH and MAL. The husband cannot claim death for the paramour alone. To show that his case is genuine, he must also be prepared to have his wife killed. But the second part, where the husband does claim death for both culprits, introduces a new element—the right of the king to pardon them nonetheless. This has nothing to do with the pardon linked to the husband’s action. It is an independent prerogative of the king, which is found elsewhere in HL. According to §§187-188, the king may pardon acts of bestiality, which were otherwise punishable by death. In these cases, the culprit remained ritually impure. It is possible that in §198 the pardoned adulterer did not escape all consequences of his offense. Such a right of pardon may well have existed in other systems, but it only finds expression in the Hittite Laws.

49 Verb dolsasthai. As Willetts points out, the verb is in the middle voice because the relatives stand to profit from the deception (1967: 60 ad lines 31-37). The allusion is to ransom: see n. 47 above and see further below.

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To summarize so far: the discussion of adultery in the ancient Near Eastern law codes is fragmented into a series of standard problems. We have seen the following cases: the basic principle of adultery, the seduction of an unwitting man, and the claim to have caught the adulterous partners in flagranti delicto—which in turn contains three sub-cases: justified killing of the culprits on the spot, legal proceedings against both culprits, legal proceedings against the paramour alone. With the exception of MAL, the individual codes do not cover all the 50 cases that comprised the traditional discussion. CH omits the first two cases, dealing only with seizure in flagranti delicto and within that case omitting the possibility of self-help. CU covers no more than the second case, that of the seductress, omitting the first and the third. HL deals with the second and third cases. The two biblical codes cover only the first case. Furthermore, several of the codes, such as CU and HL, are extremely terse in their treatment of the problems that they do discuss. Vital details from the underlying oral discussion are omitted in the written version or 51 find only the slightest allusion—sufficient for the initiated, of course. Both these difficulties can be overcome to some extent by combining the versions, using the information from one code to fill in gaps in the others. Genuine differences also come to light in this way, such as the unique royal prerogative of pardon in HL 198. In the light of this analysis, the failure of the biblical laws to mention the husband’s role or the possibility of pardon by him is readily explained. The first case—the basic case of adultery—which they represent, does not traditionally mention these elements. They appear only in the second and third cases, where they are relevant to questions of collusion and entrapment.

50 MAL includes two other cases, not discussed here, with further complications involving journeys, procuresses, etc.: see §§22 and 23. Paragraph 16 is broken at a key point and any interpretation is speculative. See Cardascia 1969: 124-26. 51 CU 7 illustrates the pitfalls of our reliance on extant copies. The text exists in three versions. Two versions read: “he shall kill ( i -g a z- e ) . . . he shall establish (freedom) (i -g á-g á).” The third version (Yildiz C) reveals the subject of the verb: lú i -g a z- e “the husband shall kill.” The identity of the subject was so obvious to the contemporary audience that two of the three extant versions dispensed with it. (For references, see n. 30 above.)

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Remedies The victim of adultery was the husband, who was wronged by two parties: his wife and her paramour. So far we have seen cases where the husband’s remedies against the two were linked. Nonetheless, they were in essence separate, being based on different principles. 1. Against the wife The husband’s right to punish his wife was based on the character of ancient Near Eastern marriage, which saw the husband as the master of his 52 53 wife and her adultery as an offense akin to treason. The parallel is well brought out in CH 129, where the husband’s pardon of his wife is likened to a king’s pardon of his subject. The husband’s rights against his wife did not, however, amount to jurisdiction over her, but were subject to the control of the courts. In particular, the husband was required to prove his charge of adultery, even when he caught the lovers in flagranti delicto, as we have seen in MAL 15. In the Odyssey (8.266-359) it is related that Hephaistos trapped his wife Aphrodite in bed with Ares by binding them with invisible fetters. He then summoned the gods to witness the spectacle and hear his claim for 54 damages. This device must have been an old-established literary topos, for in a literary account of an adultery trial from Nippur in the Old Babylonian period, the husband binds the lovers to the bed and then brings them in that condition, bed and all, before the court. Curiously, the husband further charges her with several counts of stealing from his 55 stores. These accusations seem absurdly petty compared to the principal 52 Akkadian blum, Hebrew ba‘al, ’dôn. 53 In Egypt, Israel and Ugarit, the wife’s offense against her husband is referred to as the “great sin.” See Rabinowitz 1959: 73; Moran 1959: 280-81. 54 Cf. the remarks of Roth (1988: 195) on later Greek law. 55 Following the interpretation of Greengus 1969-1970. The parallel to the Odyssey is noted by Greengus (1969-1970: 37). Van Dijk (1963) had earlier interpreted it as a case of divorce by reason of the husband’s homosexuality, but his scenario does not produce a coherent narrative and does not accord with our knowledge of Mesopotamian social conditions. Recently, Durand (1977-1978) has offered a different interpretation of the wife’s misconduct. The wife quarreled with her husband (line 12:

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offense, but may be connected with matters more evidentiary than substantial. By revealing her bad character, they undermine the wife’s credibility as a witness, and thereby any defense that the apparently compromising circumstances were in fact the entrapment of innocents. If the husband failed to catch his wife in the act, he might still be able to prove her adultery by circumstantial evidence, e.g., her pregnancy dur56 ing his absence. Where he was unable to bring concrete evidence, the husband might have recourse to divine judgment. According to CH 131 and Num 5:11-31, the suspicious husband could force his wife to take an exculpatory oath (which would bring down divine retribution upon her if she were lying) and in the latter source also to undergo the ordeal of bitter 57 waters. While the husband was entitled to impose the ultimate sanction on his wife, he could in his discretion choose a lesser penalty, such as mutilation, 58 as we have seen in MAL 15. Since adultery belongs not only to the realm of criminal law but intersects with marriage law, divorce must also have been an option, although not mentioned specifically by the law codes. Certainly, in cases where the wife was guilty of misconduct amounting to less than adultery, such as immodesty, the husband was entitled to divorce 59 her without compensation and to keep her dowry for himself. It may be

56 57 58 59

u g u -l ú -k a i n -d ab5 = ina mui mutim iabit) and denied him sexual intercourse (line 13: su - l ú in im gin á - a i n -k é —“she bound the body of the husband with respect to the matter of the bed”). Because the husband became hostile to her (line 16: m u lú u g u . n a a l. d ab5 .b a. a ), he was awarded a divorce without penalty of divorce-money. Durand’s interpretation strains the literal meaning of the Sumerian phrases and contains a non-sequitur. The husband is entitled to a penalty-free divorce because of her misconduct, not because he quarreled with his wife. Durand compares the use of the term “hate” in CH 142, but the verb “to hate” (zêru) in CH is a technical legal term used solely in conjunction with a verb of action and designed to show that the action in question was taken for subjective reasons and without objective justification (see Westbrook 1986b). On the lesser acts of misconduct, Durand rejects Greengus’ “burglarized his storehouse” on the grounds that the wife, as mistress of the house, would have access to her husband’s storehouse. But his own translation— “she pierced his wall,” i.e., tried to escape, assumes that the mistress of the house was a prisoner in her own home. As in the case of Judah and Tamar (Gen 38:24) discussed below. For a recent discussion of this ceremony, see Frymer-Kensky 1984. And see n. 32 above. See Westbrook 1986b.

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presumed that the same course was open to the husband where her misconduct did amount to adultery. Hephaistos’ demand for releasing his wife and her paramour is merely that his father-in-law restore to him the 60 marriage payment that he had made for his wife. This is not a penalty confined to the Greek sphere, as can be seen from the Nippur adultery trial discussed above, where it is stated that the court determined his/her divorce-money, which we take to mean money payable by the wife (or her 61 family) to the husband, since she was the guilty party. The connection between the Greek and Sumerian payments is that in Mesopotamia, divorce-money, in the absence of contractual agreement, was customarily fixed at the level of the marriage payment made by the groom to the bride’s father, although normally it is the husband who pays the divorce62 money. In the Nippur trial (if Greengus’ interpretation of the partially broken and ambiguous terminology is correct), the court imposes further punishment on the wife: her pudenda were to be shaved, her nose was to be bored 63 with an arrow, and she was to be led thus around the city. The divorced

60 Od. 8.318-319; Greek eedna (a payment to the bride’s father for the right to marry his daughter) = Akkadian teratu(m), Hebrew mhar, Hittite ku

ata, Sumerian k ù . d am . t u k u / n í g -m í -ú s - sá . 61 Line 19: k ù . d a m . t ak4 . n i . For cases of the wife paying divorce money, see Greengus 1969-1970: 39 n. 15. Unfortunately, the rest of the line is badly damaged. The text is published by van Dijk 1963. Van Dijk restores the rest of the line [x m a-n a k ]ù - [b ab b a r], but the traces are too slight to give any positive indication. It is nonetheless preferable to Greengus’ second suggestion (1969-1970: 39 n. 16), “They decreed [not to pay] her divorce money,” since the verb in line 20 (g a r ) suggests the setting of a price. 62 Cf. CH 138. See Westbrook 1988b: 69-70. 63 Greengus 1969-1970: 34 and 41. Lines 21-26: [ . . . ] ù? . su r. r a g al4 . l a. a / u m [b i ]n i n . k u5 . ru . n e / k i ri ( K A ) . n i gik ak . si . s á i n . b u rù . u  / u ruki n i g i n . e . d è / lu g al . e [b a] . an . su m . The pronouns could be masculine, in which case it is the paramour upon whom these punishments are being inflicted—or at least part of them, since according to Greengus (1969-1970: 39 n. 17) ù . su r. r a refers to female genitalia. Greengus (1969-1970: 40-41) also raises the possibility that the shaving was a preliminary to slavery, rather than for humiliation. But for that purpose one shaves heads, not pudenda. Roth (1983: 278) has read the beginning of line 21 (correctly, according to the copy) k e- z e -e r -x, which would suggest that the woman is to be shaved “like (?) a prostitute.”

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wife was thus subjected to public humiliation, perhaps—if the shaving of 64 the pudenda were to have any effect—being paraded naked. The association of divorce with stripping the wife naked is also made in BRM 4 52, an Old Babylonian tablet from Hana. Lines 11-14 read: And if his wife Bitti-Dagan says to her husband Kikkinu, “You are not my husband,” she shall go out naked; they will cause her to go 65 up to the roof of the palace. This is a penalty clause designed to deter the wife from exercising her right to pronounce the divorce formula. The rationale of the penalty would appear to be that the wife’s action is deemed a betrayal on a par with adultery. Contemporary Babylonian contracts often impose as penalty for the same act defenestration or drowning of the wife, the latter at least being the typical mode of execution of an adulteress in Babylonia, as we have 66 seen from CH 129. More direct evidence of divorce plus stripping naked as a punishment for adultery may be gleaned from the prophetical books of the Bible. Several of the prophets use the metaphor of marriage to describe God’s 67 relationship with Israel or Judah. The latter, in worshipping other gods, are like an unfaithful wife, and the terms “adultery” (n’p) and “whoring” (znh) are used in this context.

64 It is no objection to Greengus’ interpretation that punishment of the paramour is not mentioned. The text is concerned exclusively with relations between husband and wife. The punishment of the paramour certainly took place, but it was not the issue addressed in this school text (see Greengus 1969-1970: 43-44 and Roth 1983: 27982). 65 ù um-ma fbi-it-ti-dda-gan DAM-su / a-na ki-ik-ki-ni DAM - a / u-ul DAM-mi at-ta i-qaab-bi / e-ri- i- a ú-i a-na É ru-uk-ba-at / É -GAL ú- e-el-lu- i. The meaning of the last clause is obscure. CAD E 320 suggests that the purpose is to expose her. 66 See Westbrook 1988b: 82-83. In some “testaments” from Nuzi, the wife’s remarrying after her husband’s death was also considered an act of betrayal and was penalized with stripping and expulsion (see Chiera HSS 5 71:34-35, JEN 5 444:19-23). These contractual provisions were concerned to prevent the wife depriving her husband’s family of the benefit of her dowry by leaving to remarry. Cf. Westbrook 1988b: 71 n. 13, and see further Wilcke 1984: 303-13. 67 See generally Neher 1954.

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An explicit reference to divorce as the penalty for adultery appears in Jer 3:8: “. . . because the unfaithful one, Israel, had committed adultery, I 68 had divorced her and given her her document of severance.” No further consequences are mentioned, but if the divorce is an allusion to Israel’s conquest and exile by Assyria, then in terms of the metaphor the divorcee was being stripped of her possessions and driven from the matrimonial home. Jer 13:26 does speak of God exposing Jerusalem’s hem over her face, so that her shame is revealed, and the following verse refers to her 69 adultery, but whether this reflects the process of a divorce is not clear. The metaphor is extended in Ezek 16:37-41, where God informs his unfaithful wife, Jerusalem, that he will judge her for adultery and murder (the sacrifice of her children, v. 21), by handing her over to a gathering of her paramours to be stripped of all her clothes and finery until she is naked, and then to be stoned and dismembered with swords. Note that reality intrudes into the metaphor with two further punishments—the destruction of platform and towers (v. 39) and the burning of houses (v. 41)—which 70 regard Jerusalem as a real city, not a wife. They are therefore irrelevant to the question of adultery. The use of the paramours as the executors of the wife’s punishment may seem strange, if necessary for the political message behind the metaphor, but it should be remembered that while the husband could not punish the paramour without punishing his wife, the opposite was not true. The husband was perfectly entitled to punish his wife and forego his rights against the paramour. W. Eichrodt takes the stoning as the judicial punishment for adultery 71 alone but achieves this result by the unacceptable method of excising the 72 reference to murder from the text. The point is that there are two separate offenses and two separate punishments: adultery, for which stripping is appropriate, and murder, for which stoning and dismemberment are appropriate. 68 l in this context is the technical legal term “to divorce.” Cf. Deut 24:1, 3, and 4. 69 Some commentators (e.g., Carroll 1986: 304) consider that the verse refers to rape. This interpretation may apply to v. 22, where the verbs are in the passive, but cannot apply to the verse under discussion, since the subject of the verb “to expose” is God himself. 70 Greenberg 1983: 287-88. 71 Eichrodt 1970: 209. Cf. McKeating 1979: 61-62. 72 Eichrodt 1970: 198.

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There is no mention of divorce in the passage, but it may have been understood as the context of stripping or may have been unnecessary in this case since the wife was to be executed. The connection between divorce for adultery and stripping naked is provided by Hos 2:4-5. Take issue with your mother, take issue. For “she is not my wife and I am not her husband.” Let her remove her whoring from her face and her adultery from between her breasts. Lest I strip her naked and set her forth as the day she was born, place her like a desert and put her like a waterless land, and cause her to die of thirst. It was first pointed by C. Kuhl that the phrase “she is not my wife and I am not her husband” is the formula of words whereby marriage is dissolved, as we have seen in BRM 4 52 above, and as is common throughout the 73 ancient Near East. The reference is therefore to a procedure whereby a man divorces his wife on the grounds of adultery and expels her naked 74 from the matrimonial home. The further reference to her dying of thirst is unlikely to be punishment, no such punishment being attested in the Bible or in any other ancient Near Eastern source. We suggest that it is an allusion to the fact that she has no provisions, not even those that proved so inadequate for Hagar in similar circumstances (Gen 21:14-16). CH 141 permits a man whose wife has committed grave marital offenses (not amounting to adultery) to divorce her without paying her anything, not even arrn a “her (provisions for the) journey.” In these prophetic passages, therefore, we see a metaphor drawn from everyday life of the husband exercising a right to divorce his adulterous wife and drive her from the matrimonial home penniless and possibly naked. Presumably he could have claimed the ultimate penalty but chose not 75 to do so, which suggests that, as McKeating has argued, divorce and humiliation may have been a more common punishment for adultery than the terse provisions of the codes would imply. 73 Kuhl 1934: 102-109. See also Gordon 1936: 277-80. For a discussion of the divorceformula, see Westbrook 1988b: 69, 80. 74 See further the excursus to this article: “Hosea’s Divorce.” 75 McKeating 1979: 61-65.

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The fate of the adulterous wife actually becomes the subject of a contractual clause in a small number of Neo-Babylonian marriage documents 76 discussed by M. Roth. The clause reads: “Should fPN (wife) be caught/seen with another man, she will die by the iron dagger.” As Roth 77 points out, a clause that regulates adultery is curious and unexpected in a marriage agreement. Throughout the ancient Near East, the death penalty for adultery was an inherent right deriving from the status of marriage. Unless the death penalty had ceased to be such an automatic right in the society that produced these documents—an unlikely hypothesis—there would seem no reason to include it in a contractual clause. Roth discusses various possible interpretations, such as the right of the husband to exercise self-help with his personal weapon, the prescription of a public execution, and a reference to a particular type of trial, and finds none of them conclusive. The legal purpose of the clause therefore remains unresolved. Our tentative suggestion is that the phrase “caught/seen with another man,” although Roth rightly associates it with adultery, might allude to compromising but ambiguous circumstances where actual adultery would be difficult to prove. The clause deems them adultery by consent of the contracting parties, thus allowing the husband to apply the death penalty, rather than divorce without compensation for mere immodest 78 conduct. Roth argues that employment of the verbs “catch” (ka du) or “see” (amru) in the clause explicitly assumes discovery in flagranti delicto, pointing out that the phraseology is similar to that found in the law 79 codes. But the phrase indicating in flagranti delicto in the law codes is in fact not quite the same; the language is more explicit. In CE 28 the wife is caught ‘‘in the lap of a man,” i.e., a euphemism for sexual intercourse, and in CH 129, 131, and 132 she is caught (or not caught) “lying together” with another man. Likewise in the Nippur trial the wife was seized “upon” (UGU) a man, and in another Old Babylonian case, UET 5 203, the wife is 80 apparently (the text is partly broken) caught in the lap of her paramour. Only in MAL 15 is the phrasing ambiguous: the husband catches a man

76 77 78 79 80

Roth 1988. Roth 1988: 187. See n. 59 above. Roth 1988: 194 and n. 19. See Roth 1988: 196-97 and n. 26.

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“with” (i tu) his wife. According to Cardascia, the man has been surprised in the company of the wife but not in the actual act of adultery, and there is 81 therefore room for doubt. It is in this case, as we have seen, that the husband is expressly required to prove the circumstances, even if he kills the adulterers himself. It should also be noted that where in MAL more explicit language is necessary, it is used. In paragraph 12 of the same tablet, a case of rape, witnesses are required to prove that they either “caught the man on top of the wife” (ina mui a

ati a’la ik ud ) or that he was having intercourse with the woman. (The point is that the rapist is liable to the death penalty whether he achieved penetration or not.) Use of the term (caught) “with (itti) a man” in the Neo-Babylonian clause, therefore, might be the key to its contractual purpose. Whereas divorce is a personal legal act of the husband, it is not clear that he personally executed the more severe penalties of mutilation or death. Prima facie, MAL 15 does give the husband the right to do so in 82 Assyrian law. In the two trial reports from southern Mesopotamia discussed above, however, the task appears to be left to the public authority. In the Nippur Trial (lines 16-26) it is stated that “they (impersonal plural) shaved her pudendum (and) bored her nose with an arrow” and that “the 83 king gave her over to be led around the city.” In UET 5 203, the husband, having seized the adulterers in flagranti delicto, brought them before the 84 king, who “gave them to the stake.” 2. Against the Paramour The husband’s rights against the paramour were not on the same basis as those against his adulterous wife. The paramour had committed a serious wrong, an injury to a vital interest of the husband. It is classified by some scholars as an injury to the husband’s property, at least as regards the

81 Cardascia 1969: 123. 82 MAL 57-59, on the execution of punishments on the wife, are unfortunately badly broken, but they appear to allow the husband to perform them under official supervision. See the reconstruction of Cardascia 1969: 255-58. 83 Or him, i.e., the paramour. See n. 63 above. 84 In King Cheops and the Magicians (see n. 2 above), it is the Egyptian king, before whom the husband brings his case, who orders the wife to be immolated.

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85

Mesopotamian systems, but this is too reductionist a view. To plow with one’s neighbor’s ox, or even to injure or steal it, did not produce penalties anything like as drastic as sleeping with his wife. Nor, for that matter, did 86 defloration of his slave woman. Rather than try to dissect the complex psychological amalgam of honor, status, property, and morality that made up the husband’s interest, it is better to think of adultery as sui generis, an independent delict comparable but not reducible to other serious delicts such as homicide, wounding, and theft. For the latter delicts, we have argued at length elsewhere that through87 out the ancient Near East the same basic system of remedies existed. In principle the injured party (or his family) had a dual right against the culprit (or his family): to exact revenge or to accept ransom offered in lieu of revenge. This remedy was a judicial remedy, not a measure of self-help. The courts fixed the appropriate revenge in each case, having regard to the circumstances, and their decision represented a limit which the plaintiff might not overstep, although he was always free to accept ransom instead. In what were perceived to be less severe cases the courts would actually set the ransom themselves, so that only if that fixed ransom were not paid would the right to revenge revive. Now this whole structure of remedies, however, is assumed in the law codes; it is not spelled out systematically. Accordingly, the various paragraphs of the different codes sometimes concentrate on one aspect—setting the appropriate revenge (such as talion)— and sometimes on the other—giving a tariff of fixed rates of ransom. In all cases the hidden assumption is that the alternative—ransom or revenge— still exists. But that possibility is revealed only occasionally in the sources, almost by accident, and incidentally to some other concern. Applying this system to adultery, we would follow Loewenstamm’s opinion discussed above that the paramour’s offense lay in the most serious category of delicts, such as murder, and thus gave the injured husband the right to take revenge by demanding the death of the paramour himself, or to accept ransom of the latter’s life, should a satisfactory sum be offered. The “death penalty” imposed by the codes, biblical and cuneiform, 85 Driver and Miles 1935: 37; Kornfeld 1950: 94. 86 CE 31: “If a man has deflowered a man’s slave-woman, he shall pay one third of a mina of silver and the slave-woman remains her master’s.” 87 Westbrook 1988d: 45-46.

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is therefore nothing more than the limit, imposed in principle on the husband’s right to revenge by the courts. It could in particular circumstances be set lower, as indeed we have seen in MAL 15 (mutilation), and it does not in itself exclude ransom. Direct evidence for the application of the revenge/ransom system to adultery comes not from cuneiform sources but from the periphery. Both the Greek and Hebrew texts provide us with explicit examples. In the passage from the Law Code of Gortyn discussed above, the paramour had to pay 50 or 100 staters for his offense. What those sums represent is revealed by lines 28-36: Let him (the plaintiff) proclaim in the presence of three witness to the relatives of the one caught in (the house) that he is to be ran88 somed within five days . . . and if he should not be ransomed, those who caught him may deal with him as they wish. In other words, they are a fixed ransom payable in lieu of revenge. Likewise, in the incident from the Odyssey discussed above, where the god Hephaistos binds his wife and her paramour to the bed, the issue is resolved by ransom. Another god offers to stand surety for payment by the 89 paramour of “all that is fitting” in return for his release. (As the gods are immortal, there can be no question of killing Ares, the paramour.) Note that this payment is different in nature from the payment demanded by Hephaistos in respect of his wife’s offense. In the Bible, we have already discussed the passage in Prov 6:32-35, where the outraged husband insists on revenge, spurning all offers of ransom. This evidence of practice is complemented by a law from the Priestly Code. In the RSV translation, Lev 19:20-21 reads: If a man lies carnally with a woman who is a slave, betrothed to another man and not yet ransomed or given her freedom, an inquiry shall be held. They shall not be put to death, because she was not free, but he shall bring a guilt offering for himself to the LORD. 88 Verb analu. 89 Od. 8.347-348 (aisima panta) and Od. 8.355-356.

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The passage has been considered by us in detail in an earlier study. The following is a summary of that discussion. There are two hapax legomena in the passage: nerepet, translated “betrothed,” and biqqret, translated “inquiry.” We translate nerepet “pledged,” on the assumption that the root rp is connected with ‘rb “security.” What is pledged is the slave who is an ’i

â, which we translate “wife,” not “woman,” and this wife is pledged not “to another man” (l’î in the Masoretic text), but by changing the pointing slightly, “to the man” (l’î )—that is, the man who had lain carnally with her. Thus the situation is in our translation: “If a man has intercourse with a wife, she being a slave pledged to the man . . . .” In other words, a husband has been forced to give his wife to a creditor in pledge, and the creditor has slept with her. In the apodosis, we take biqqret to mean “claim in rem” like its Akkadian counterpart buqrum, and translate “. . . there is a claim in rem. They shall not be killed because she was not free.” In other words, the husband can claim back his wife (and thus cancel the debt). Why would it be different if she had been ransomed or freed? The difference is not that it would then have been adultery; it would have been adultery in either case. The difference is one of remedies. If the woman is a slave, then the husband can only claim back his wife. If she is free, the husband can claim from the paramour/creditor the normal penalty for adultery with a free woman—death. The slave status of the wife mitigates the penalty for adultery, and the courts therefore impose a fixed ransom in lieu of revenge. That ransom is fixed, logically enough, at the level of the husband’s debt. Thus the death penalty is assumed by this law to be a right in the husband which is commutable to ransom.

Adultery as a Sin Adultery is not only an offense against the husband but also a sin against 91 the gods, which may be visited with divine punishment. Divine punishment is particularly appropriate for an offense which is typically committed in secret and unlike murder or theft may leave no physical 90 Westbrook 1988d: 101-109. 91 Loewenstamm 1980b: 147-48.

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traces. Curiously, in all the relevant sources, divine retribution is directed solely against the paramour. In the cuneiform sources, several references are contained in urpu, a compendium of incantations whereby a sinner who is suffering divine pun92 ishment (presumably in the form of sickness) seeks relief from the gods. Among the sinners is the man “who entered the house of his companion, (sexually) approached the wife of his companion” (II 47-48) and the man whose sin was “to go in secret to his friend’s wife” (IV 6). In a hymn to Ninurta, alongside various types of oppressors who have sinned against the god is the adulterer: “One who has intercourse with the wife of a man: his 93 sin/punishment is grievous.” Similarly, in a hymn to Shamash, the adulterer is among those whom the god will punish: “One who casts his [eye] 94 upon his companion’s wife will [die] before his appointed time.” From these few references it is impossible to tell whether divine punishment occurs only when the offender has escaped human justice or is a sin to be atoned for in addition to whatever reparation is made to the husband. In the Bible, the latter is the case, at least when reparation is in the form of ransom rather than revenge. In Lev 19:20-21, it will be recalled that the adulterer had only to return the slave woman to her husband in lieu of ransom. Nonetheless, his act was still regarded as a sin against God, for which he had to make atonement in the form of sin-offering (’ m, v. 21). Furthermore, a number of instances in the Bible suggest that even where the offense against the husband was negated by his acquiescence, the act remained a sin against God that would receive divine punishment. In Gen 26:6-11, Isaac, while resident in Gerar, represents his wife as his sister. The deception is unmasked by the local king, Abimelech, who bitterly upbraids Isaac, since “someone might have slept with your wife and 95 you would have brought upon us sin” (’ m, v. 10). In an earlier incident in which Abraham practiced the same deception on the Egyptians 92 Edition in Reiner 1958. 93 Lambert BWL 119 (= KAR 119), lines 3-4: n am . tag . g a d u g u d . àm = aran u kabtumma. Edition in Lambert 1960a: 119. 94 Lambert BWL 130, lines 88-89; edition in Lambert 1960a: 130-31. Cf. Job 31:9-12. 95 Cf. Gen 20:1-14, where the same incident is recounted as between Abraham and Abimelech. The latter in v. 9 rebukes Abraham for bringing “upon me and upon my kingdom a great sin.” See n. 53 above.

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(Gen 12:10-12), the Pharaoh does actually take Sarah as his wife, in all innocence. Nonetheless, God afflicts Pharaoh and his household with plague, and when Pharaoh discovers the reason, he forthwith expels Abraham and Sarah, likewise upbraiding Abraham for his deceit. In both cases, the concern is with divine, not human punishment. Abimelech’s complaint that unwitting adultery would have brought sin “upon us” (Gen 26:10) suggests that the divine punishment might be visited not merely upon the adulterer himself but upon the whole society. The doctrine is canvassed in the priestly source, which places adultery in the context of sexual offenses such as incest and bestiality (Leviticus 18 and 20). The point about the latter offenses is that in the ancient Near East they were conceived of as causing pollution, which was likely to bring divine wrath down upon the whole area in which the polluting event took place. Drastic measures therefore had to be taken to kill or expel the culprits and 96 ritually purify the scene of their sin. The priestly source deals with adultery in two laws, and at first sight seems needlessly repetitive. In Lev 20:10, as we have seen, the technical term for adultery is used, and the punishment is death for both partners. In Lev 18:20, however, there is no punishment; merely an admonition not to do a polluting act which is described in the following terms: “You shall not give your lying to your companion’s wife for seed, to pollute yourself with her.” The reason for this strange mode of describing adultery is, we suggest, that it is not adultery in the strict legal sense. The paramour agrees to sleep with his companion’s wife with the consent of the husband, evidently in order to provide “seed,” i.e., offspring for a childless couple. There is therefore no prospect of legal proceedings by the husband or of the matter ever coming to light. Nonetheless, the priestly source warns, it 97 is a sin and likely to be punished by God. Indeed, since it causes pollution, it may bring about calamities on the whole nation (Lev 18:28). Finally, a curious form of divine punishment inflicted upon the paramour relies on the principle of vicarious talion. This version of talionic 96 See Finkelstein 1981: 28; Frymer-Kensky 1983; and Westbrook 1988d: 77-83. 97 Cf. the cases of incest in Lev 18:14-16 and 20:20-21 which involve the wife of a relative. Such cases would have been adultery and would therefore seem not to require any further prohibition, unless the question of adultery had been rendered nugatory by the husband’s consent and collusion. (I thank Dr. Peretz Segal for drawing my attention to the possibility of collusion here.) Note that the punishment is childlessness.

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punishment, well attested in the law codes, is applied when the victim was a subordinate member of a family and the offender a head of family. The offender is punished by having the same injury that the victim suffered 98 inflicted on an equivalent member of his own family. In terms of adultery, it means having the paramour’s own wife handed over to others for sexual purposes. In 2 Sam 12:11-12, after king David has committed adultery with Bathsheba (and had her husband killed), he is informed by Nathan of the various divine punishments which are to befall him, including the following: Thus says God: I shall cause evil for you from your own house. I shall take your wives before your eyes and give them to another, and he will lie with them in the light of the sun itself. For you did it in secret, but I shall do this before all Israel and before the sun. Although the allusion is to coming political events, they are interpreted in a legal framework, in which the sexual abuse of David’s wives is justified as being his legitimate punishment imposed by a divine tribunal. The phrase “light of the sun” (although it also is given a literal meaning here) is a legal term signifying a legitimate act, as its use in land-sale documents 99 from Ugarit demonstrates. The same sentiments are echoed by Job (31:9-11) : 100

If I was tempted to a married woman and lurked at my neighbor’s door, may my wife grind for another, may others crouch 101 over her. For it is a defilement; it is an offense solely my own.

98 E.g., in CH 230, where a house collapses due to the builder’s negligence and kills the householder’s son, the builder’s son is put to death. See Westbrook 1988d: 55-64, 89100. 99 E.g., PRU III, RS 15.119, reverse lines 6'-11' (pp. 86-87): “. . . Yaheshar has acquired a watchtower from Iddaranu son of Astehe for 20 (shekels) of silver. The watchtower is bound in the sun of the day (ina am i mi) to Yaheshar and his sons forever.” 100 The context demands this translation of Hebrew ’i

â. Cf. the discussion of Lev 19:20-21 above. 101 For this interpretation of ‘wn plîlîm, see Westbrook 1986a: 58-61. Contra Berlin (1989): “an offense for which one is legally accountable.”

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Job would expect God to punish him for adultery by delivering his wife to others for sexual abuse, apparently as a slave-concubine. Strange as this type of vicarious talion may seem to modern eyes, according to MAL it was even to be applied by a human court. In paragraph 55, where a man rapes a virgin, the girl’s father may take the rapist’s wife 102 and hand her over for sexual abuse, and not return her. Again, the reference, is probably to slave-concubinage.

Pre-Marital Infidelity Pre-marital infidelity is dealt with in three laws in the codes (CH 142, Deut 22:13-21 and 22:23-24), each representing different, but very closely related, scholarly problems or cases. In two of them (CH 142, Deut 22:2324) the litigation actually takes place before the marriage, so that a preliminary question arises of the potential husband’s interest at this point. Once the marriage payment (Hebrew mhar, Akkadian teratu(m), Hittite ku

ata) had been made by the groom or his father to the bride’s father, it created a status very close to marriage in its legal effects, and therefore most accurately described by Driver and Miles as “inchoate mar103 riage.” The bride usually remained in her father’s house and either side might still refuse to complete the marriage (subject to payment of compensation), but as far as third parties were concerned the couple were already married and are referred to as husband and wife. In Hebrew the verb ’r is used to denote this status, and in Hittite the verb hamenk, but Akkadian 104 lacks any technical term and must use circumlocutions. In these circumstances, it is to be expected that the law of adultery would apply, mutatis mutandis, to the inchoate wife. The fact that she lives with her father does not decrease her inchoate husband’s interest in her fidelity: perhaps it even increases it, since there is the factor of her virginity to consider. Where the inchoate husband is a minor and payment

102 See Cardascia 1969: 251-52. 103 Driver and Miles 1952: 248-49. 104 CH 130: “the wife of a man who is a virgin and is living in her father’s house.” CE 26, describing the same circumstances, merely refers to the bringing of the marriage payment. For the effects of inchoate marriage see Westbrook, 1988b: 34-36.

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was made by his father, it is the latter who will represent his interests at 105 law. The first case to be considered very closely parallels adultery in marriage. It concerns intercourse during inchoate marriage with a known paramour. Deut 22:23-24 If there be a young maiden inchoately married (m’râ) to a man and a man finds her in the city and sleeps with her, you (pl.) shall take them both out to the city gate and stone them to death— the girl for not crying out in the city and the man for dishonoring his neighbor’s wife. You shall purge evil from Israel. The law goes on to consider the alternative of the same incident occurring in the open fields where the girl’s cries would be of no avail, in which case it is rape. The rape of an inchoately married girl is a canonical scholarly problem which is recorded in several codes (CU 6, CE 26, CH 130). The Deuteronomic law extends the discussion to include consensual intercourse, but there are indications that this was part of the original scholarly problem. Firstly there is the structure of the discussion in CU 6-7. Two extremes are considered: a man rapes an inchoately married girl; a married woman seduces an unwitting man. It is standard method for the law codes, in the interests of economy, to pick one or two examples that reveal the range of the discussion, while assuming knowledge in the reader of the intermediate 106 examples. Among the intermediate examples here must have been the rape of a wife and the seduction of an inchoately married girl. Secondly, the rape of a wife is in fact considered in the Hittite Laws, but using the same evidentiary test for consent as is applied to the inchoately married girl in Deuteronomy. HL 197 If a man seizes a woman in the mountains: it is the man’s guilt and he shall be killed. But if he seizes her in the 105 This form of inchoate marriage is called kalltum in Akkadian. See Westbrook 1988b: 36-38. 106 See Westbrook 1988b: 46, 81, discussing CH 142-143.

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house, it is the woman’s guilt and the woman shall be killed. If the husband finds them, he may kill them; there shall be no punishment for him. Thirdly. in CH 130, the rapist of an inchoately married woman is to be killed, while “that woman shall go free.” This last phrase infers that there are circumstances in which she would not, the most obvious being where she was a willing partner. It is likely therefore, that all these systems adopted a similar approach to the inchoately married girl and her paramour. The elements of the Deuteronomic law, then, are as follows: a) the unfaithful woman is inchoately married; b) both parties are killed, as in adultery, with the same implications for acquiescence by the inchoate husband; c) the jurisdiction appears to be that of a local court. The law is addressed to a body of persons, who are to execute judgment at the local city gate; d) execution is public. No role is assigned to the inchoate husband, either in punishing or pardoning the inchoate wife. This is not surprising, since at this stage she is not under his control and the question of collusion does not arise. On the other hand, the paramour’s offense is stated to be against the latter’s interest (“for dishonoring his neighbor’s wife”), and discretion to demand punishment in pursuit of that interest also lay in his hands, as an example from practice illustrates. In Genesis 38, Judah, having seen his first two sons die after marriage to Tamar, tells the latter to remain in her father’s house until his third son, Shelah, should be old enough to marry her in accordance with the levirate rule. Suspecting that Judah will not keep his word, however, Tamar arranges to have herself impregnated by the unwitting Judah. The narrative continues (v. 24): After three months Judah was told “your daughter-in-law Tamar has been fornicating (verb znh) and she is pregnant as the result of her fornication.” Judah said, “Take (pl.) her out and let her be burnt.”

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Tamar is inchoately married to Shelah by reason of the levirate bond, and accordingly is expressly referred to as Judah’s daughter-in-law and he 107 as her father-in-law (v. 13). She is not living in his house and is therefore not under his authority. Accordingly, Judah’s right to punish her can only arise from the fact that he is the injured party, representing the interest of his son, the inchoate husband, who is still a minor. Since it was his right and his decision, Judah could, theoretically, have refrained from insisting on her punishment or have claimed a less severe punishment. The next case from the codes also provides an example of the inchoate husband’s right. It concerns the ex post facto discovery of infidelity with a paramour (or paramours) unknown. CH 142 If a woman hates her (inchoate) husband and says “You shall not marry me,” her case shall be decided in her local court, and if she is chaste and has no sin and her husband is going out and greatly deprecating her, that woman has no fault; she shall take her dowry and go off to her father’s house. 143 If she is not chaste and is going out, scattering her house, deprecating her husband, they shall cast that woman into the water. The elements of the law are: 108

a) the woman is inchoately married. Her offenses are in the past and need not necessarily have all been within the period of the inchoate marriage. The law does not contemplate a distinction, which would be impossible to establish in practice, and may have regarded her deception as turning any previous act of fornication into one of infidelity against her later acquired inchoate husband; 107 Any marriage payment originally made by Judah on behalf of his son Er would have remained valid for Onan and then for Shelah. Cf. MAL 30, 43. 108 The question whether the woman is inchoately or fully married has been the subject of much debate. We have argued for the former (Westbrook 1988b: 14-16, 45-46), inter alia because of the difficulty of explaining otherwise how a woman can refuse to marry her “husband.” For criticism, see Locher 1986: 290-95.

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b) if guilty of infidelity, she is killed; c) the jurisdiction is that of a local court; d) execution is public, by the same method prescribed by CH for adultery (§129); e) the question of infidelity emerges from litigation between the woman and her inchoate husband, in which each of the parties charges the other with misconduct (“deprecating,” verb um û). If the woman’s charges are justified, she is entitled to refuse marriage with no financial loss. If they are not, she will lose her 109 dowry to the husband. If, however, it emerges, as in §143, that the woman’s refusal to marry is due to some illicit liaison, i.e., the husband’s charges are justified, she suffers death, which should therefore be understood as a right in the inchoate husband. The infidelity is nonspecific: she is said to be “unchaste” (l narat) and to be “going out” (waat), a verb which, as Finkelstein has noted, has in the appropriate context 110 connotations of promiscuity. The further mention of her “scattering her house,” i.e., of being financially irresponsible, recalls the misdemeanors in the Nippur adultery trial and may have served the same purpose of undermining her 111 credibility. For the final case we return to Deuteronomy and move forward in time, to litigation after completion of the marriage. As in CH 142, however, it refers to the ex post facto discovery of pre-marital infidelity with a paramour unknown.

109 See Westbrook 1988b: 46-47. 110 Finkelstein 1966: 362-63. 111 Koschaker (1924: 206 n. 1) suggested that in CH 142-143 the girl’s virginity would be checked by a physical examination, but curiously enough, although it would seem to us the most obvious method of proof, there is no evidence of such a procedure in the ancient Near East. The Talmud, which discusses the question of virginity in connection with the law of Deut 22:13-21 (discussed below), might be expected to provide details of just such a practice. Instead, we are told (Ketubot 10b) that Rabban Gamliel tested for virginity by seating the girl on a cask of wine. If she was no longer a virgin, one could smell the wine on her breath!

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Writings of Westbrook, Vol. 1: The Shared Tradition Deut 22:13-21 If a man marries a woman and has intercourse with her and hates her and slanders her with false accusations, saying, “I married this woman and had intercourse with her and did not find in her signs of virginity,” but the girl’s father and mother take the signs of the girl’s virginity and bring them to the city elders at the gate and the girl’s father says to the elders, “I gave my daughter to this man in marriage and he hated her and has made false accusations, saying, ‘I did not find the signs of virginity in your daughter,’ but these are the signs of my daughter’s virginity,” and they display the sheet before the city elders: The city elders shall take the man and whip him and impose a penalty of a hundred (shekels of) silver upon him and give it to the girl’s father because he slandered a virgin of Israel. She shall be his wife: he cannot divorce her all his life. But if the accusation is true—the signs of virginity were not found in the girl—they shall bring the girl out to the door of her father’s house, and men of her city shall stone her to death because she did a shameful thing in Israel to fornicate (verb znh) in the house of her father. You shall 112 purge evil from your midst. a) It is most likely that the woman had been inchoately married at the time when she committed fornication, since this would be the standard practice for a maiden being given by her father in marriage for the first time. The ruling does not, however, rely on that contingency, and in any case, her fornication (with person or persons unknown) could have been prior to any period of inchoate marriage. Nonetheless, the law’s indifference to the wife’s previous status is not an extremist moralistic innovation 113 of the Deuteronomist, as Rofé surmises. The distinction between an inchoately married and unattached virgin would thereby be eliminated, and the distinction is expressly preserved by Deut 22:23-29, with a corresponding mitigation for the rapist of the unattached virgin. Mere seduction of the latter

112 The pericope is discussed in exhaustive detail by Locher 1986. 113 Rofé 1986: 3-5.

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is not mentioned, but logic and the parallel of Exod 22:15-16 suggest that his penalty would be compulsory marriage. It is hardly to be supposed, then, that the seducer of an unbetrothed virgin was forced to marry her while at the same time the girl herself was to be executed. The point is that, as in CH 142, when an unchaste girl marries (or becomes inchoately married for that matter), there is the added element of deception which aggravates her offense, turning it into one of infidelity. b) If guilty of infidelity, she is killed. c) The jurisdiction is that of a local court. The emphasis on the local court in all three cases is curious and indicative of their belonging to a closely-related complex of scholarly problems. Possibly it signifies that, in contrast to adultery, where the death penalty was within the jurisdiction of the king, with premarital infidelity the local court had jurisdiction to award the 114 death penalty. The reason for such a distinction, if it existed, is obscure. d) Execution is public, with the extra provision that it is to take place at the door of her father’s house. It seems to us that the purpose of the latter provision was to shame the father, who was a party to the litigation and who can be said to have failed in his responsibility toward the future husband, with whom he had made the marriage contract. Some enigmatic but suggestive evidence comes from a small group of Old Babylonian marriage contracts, in which a 115 guardian has been appointed over the bride. In one of these (CT 48 56) the guardian is said to be responsible, inter alia, “for her sins” (ana . . . gullul a)—presumably to the other contracting party, i.e., the groom, and, since the marriage is completed from the standpoint of the document and the bride is therefore under her husband’s guardianship, probably with 114 Cf. CE 48, in the context of homicide and wounding: “And for . . . from one third mina to one mina, they shall cause him to submit to the jurisdiction, but a capital case is for the king.” And see n. 46 above. 115 Discussed in Westbrook 1988d: 33-34 and translated in the Appendix thereto.

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Writings of Westbrook, Vol. 1: The Shared Tradition reference to pre-marital conduct. The nature of the responsibility is not specified, but whatever responsibility a guardian has by contract, a natural parent would have by virtue of his status. e) The question of infidelity arises during litigation between the husband and the wife’s father. As in CH 142, two results are contemplated: that the husband’s accusations are untrue, in which case he loses the suit and suffers a penalty; that they are true, in which case the wife suffers death. Some scholars have commented on the lack of symmetry between the results, in contradiction with the talionic rule that the false accuser is to 116 suffer the penalty contemplated for the accused. This is to assume too mechanical an application of the talionic principle by the ancient jurists. Talion only applied where appropriate, and here it was not. The different status of husband and wife and the impracticality of forcing the wrongly accused wife into widowhood militate against it. The husband who wrongly accuses his wife of adultery, forcing her to vindicate herself by oath or ordeal, it is to be noted, suffers no conse117 quences whatsoever.

The reason why the litigation is between the husband and the wife’s father, not the wife herself, has already been adumbrated. It is the father’s failure in his responsibility to the husband to safeguard his daughter’s honor until marriage which is at issue, a point which suggests that here also the husband’s interest may have arisen out of inchoate marriage. In all these three cases (and in the example from practice) then, premarital infidelity is treated on the same principle as adultery, namely as an injury to the interest of the (inchoate) husband. His remedy against the (inchoate) wife may include some remedy against her father, who was responsible for her at the time the offense was committed. His remedy against the paramour, where known, is the same as for adultery, and although the sources give no indication thereof, we would deduce from that

116 Reviewed by Locher 1986: 315-23, 373-80. 117 CH 131, Num 5:11-31. See Démare-Lafont 1987a: 49-52.

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parallelism that it was in substance a right to revenge with the concomitant alternative of ransom.

Summary and Conclusions The law of adultery in the ancient Near East was a complex affair. It was at the same time an offense against the husband, for which he could claim certain remedies, and a sin, which might bring down divine punishment. Acquiescence by the husband would nullify the offense but not necessarily the sin. The husband’s remedies against his wife and her paramour were often coordinated for reasons of public policy but were in essence different. The husband was entitled to punish his wife for a breach of her marital duty of fidelity to him. He was entitled to seek revenge against the paramour up to the (very ample) limit allowed by law and could, in his discretion, accept ransom in lieu of revenge. The inchoate husband was entitled, on the same principles as for adultery, to remedies for pre-marital infidelity during the period when the wife was still under her father’s authority. The above principles were common to all the legal systems of the ancient Near East for which we have evidence. That evidence, however, comes from sources that are fragmentary both in preservation and in their very nature. They were written for the initiated and assume knowledge of most of the matters which the modern researcher seeks to discover. To extract from them the substantive law, it is necessary to look beyond the surface of the texts: to take into account the conceptual world of the ancient Near Eastern jurists and to appreciate occasional inferences and oblique allusions to the underlying reality.

Excursus: Hosea’s Divorce (Hos 2:4-22) The idea that divorce is involved in these verses has been strongly attacked 118 by F. I. Andersen and D. N. Freedman. They present two main arguments. Firstly, the consequences are not consistent with the biblical law of 118 Andersen and Freedman 1980: 218-90.

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adultery, according to which adultery was a capital crime with no possibility of pardon. That, of course, is an issue which this study has sought to resolve, and it is hoped that by this stage sufficient evidence has been adduced to show that such an absolute position is incorrect for biblical law. In particular, the argument ignores the clear evidence of the parallel metaphor in Jer 3:8 that divorce was a possible consequence of adultery. Their second argument is that the husband’s exhortations to and continued dealings with the wife after pronouncement of the formula are not consonant with her having been divorced. The immediate answer to this argument is that in vv. 16-22 the parties remarry, which assumes an intervening divorce. Andersen and Freedman’s reply is that in general the legal background to the chapter is not realistic and that “Hos. 2:16-22 requires miraculous transformation into a first marriage ‘as in the time of her 119 youth’ (v. 17). Here we go beyond historical realities.” Apart from being a counsel of despair, there is an inherent improbability in such reasoning. If God’s relationship with Israel is to be explained by a metaphor drawing upon the everyday life of the audience, then that metaphor, to be effective, must reflect accurately the reality known to the audience. If the narrator were to invent the legal rules on which the metaphor is based, it would cease to be a valid metaphor. Furthermore, although it is beyond the scope of this study to address all the problems of Hosea’s marriage, even in an excursus, there seems to us no overwhelming difficulty in interpreting the events of chapter 2 in the light of a divorce at its inception, providing two factors are borne in mind. Firstly, as in the previous example from Ezekiel, it must be recognized that 120 reality sometimes intrudes into the metaphor. Secondly, as R. Gordis has shown, there is in the chapter a process of “identification” whereby 121 God and Israel replace Hosea and his wife as the paradigmatic couple. We would add that as a result of this identification, the threat of divorce ceases to be a contingency and becomes instead a plan of future action, ultimately resulting in reconciliation. The chapter can then be schematically analyzed into a number of incidents:

119 Andersen and Freedman 1980: 222. 120 See n. 70 above. 121 Gordis 1954: 19-20.

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I. v. 4: Hosea cites a formula which is strikingly similar to those used to effect divorce throughout the ancient Near East. In the cuneiform sources, the formula is “You are not my wife,” and at Elephantine, “She is not my wife.” Apart 122 from being more prolix, the difference lies in its being phrased in the third person, a variation which is not surprising in view of the fact that it is addressed to the prophet’s children rather than to his wife. It is therefore a reference to the formula rather than the formula itself. As such, it is in our interpretation an allusion to the possibility of divorce, subject to the contingency provided by the following clause, namely that the children take issue with their mother to make her desist from her adulterous conduct. The reference to the familiar divorce formula is thus a statement that her present conduct is a matter for divorce. II. v. 5: Hosea goes on to threaten particular consequences for such a divorce. Normally, the divorced wife would receive a financial settlement, but if the husband claims grounds, the most serious of which is adultery, then he may inflict upon her harsh punishments instead, as we have seen in this study. III. vv. 6-7a: A further consequence would be repudiation of the children of the marriage, as the illegitimate product of adul123 terous unions. IV. vv. 7b-9: The wife has previously declared her plan to avoid the consequences of a divorce with grounds by seeking shelter with her paramours. The husband therefore declares that he will frustrate such efforts, to the point that she will 122 Prolixity in itself does not signify any difference in meaning. Cf. the Elephantine divorce formula, which occurs in both brief and prolix forms: “I hate my wife X” (Cowley 15 [= TAD B2.6] and Kraeling 2 [= TAD B3.3]); and “I hate my wife X; she shall not be my wife” (Kraeling 7 [= TAD B3.8]). On the other hand, the biblical phrase is directly parallel to the Elephantine marriage formula “She is my wife and I am her husband,” to which divorce is but the contrarius actus. 123 Gordis claims that the process of identification with God starts in v. 6 with the punishment inflicted on the children. But it would be a right of the husband, where the children are found not to be his offspring.

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V.

VI.

VII.

VIII.

IX. X.

eventually wish to return to him. It is important to note that the husband’s actions in this regard have no legal content and do not require any legal relationship between the parties. Furthermore, the husband at this point has become identified with God—hence the supernatural means employed. vv. 10-11: The husband explains that he was the real provider, and he will take back his marital gifts. This would be his right under divorce for grounds, but here reality intrudes, since the image is one of agricultural fertility being withdrawn. The consequences will therefore only be felt after divorce, at the appropriate agricultural seasons. v. 12: The husband will also expose her faults to her paramours, so that none will come to her aid. Here again is an action without legal content (but which is not absent even from present-day divorces). v. 13: The husband will put an end to her festivals and celebrations. This may be the result of her destitute condition or possibly an act of God, i.e., an intrusion of reality. In either case the act again has no legal content. v. 14: The husband will destroy the vines and fig trees that she obtained as wages from her paramours. This would be in pursuit of the husband’s rights over her property (he would be able to confiscate her dowry and assets acquired 124 during the marriage), but reality intrudes with the image of crops destroyed by wild beasts. v. 15: The husband will thus punish her for her misdeeds during the marriage. v. 17: The husband will then effect a reconciliation with his ex-wife and offer her courting-gifts.

124 Cf. The Law Code of Gortyn II 45-55, in which the proceeds from the wife’s labors are included in the property settlement pursuant to divorce: If a husband and wife should be divorced, she is to have her own property which she came with to her husband and half of the produce, if there be any from her own property, and half of whatever she has woven within, whatever there may be, plus five staters if the husband be the cause of divorce (Willetts 1967: 40).

Adultery in Ancient Near Eastern Law XI. vv. 18-19: The two parties will agree to remarry. XII. v. 20: Intrusion of reality. God will make an agreement bringing peace and security. The beneficiaries of the agreement are not stated, but Andersen and Freedman’s suggestion that they are the children of the original mar125 riage is attractive. In Babylonian marriage contracts involving a woman with children from a previous marriage, the second husband often makes property arrangements for 126 the benefit of those children. If Hosea’s children had been expelled with their mother, such an arrangement would be apposite here. XIII. vv. 21-22: The husband rebetroths his ex-wife, with various virtues as the marriage payment (mhar). Andersen and Freedman object that these attributes must be promises for the marriage and not once-for-all payments at the time of 127 engagement. But herein lies the key factor that proves this betrothal to be a second marriage. When a girl is married for the first time, it is her father who receives the marriage payment. But a widow or divorcee who remarries is sui iuris and could only receive the payment for herself (unless she had returned to her father’s house, which obvi128 ously did not happen in the present case). Such receipts would become part of her marital property, which in turn is subsumed into the marital assets of the couple during the subsistence of the marriage. The virtues of righteousness, justice, mercy, pity, and faithfulness would thus be shared by both. XIV. vv. 23-25: Consummation of the marriage and acceptance back of the children.

125 126 127 128

Andersen and Freedman 1980: 281. See Westbrook 1988b: 63. Andersen and Freedman 1980: 283. See Westbrook 1988b: 61-62.

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11 Witchcraft and the Law in the Ancient Near East Abstract This article examines how the problem of witchcraft was handled in the law codes and in other legal texts. A fairly coherent picture emerges. The amateur practice of witchcraft was treated as a serious crime against an individual such as homicide, with the right of restitution or revenge. Like homicide it created some pollution in the society. Violations by professional practitioners, typically women, were treated as polluting crimes as against the gods, such as incest and bestiality.

Introduction

I

t is a great pleasure to dedicate this modest study to Professor Haase, whose contributions have done so much to improve our understanding of cuneiform law. Witchcraft is an almost universal phenomenon, deeply rooted in folk culture. In the first millennium B.C.E. in Mesopotamia it was the subject of a major learned treatise, called Maqlû (“Burning”), but there are many references to witchcraft throughout cuneiform literature, going back at least as far as the late third millennium.1 Witchcraft is seldom mentioned in the legal sources, but the spread of references is wide enough to show that the legal systems of the region were concerned with its effects, and did occasionally intervene. It is a recurring theme in the cuneiform law codes, albeit in sparse measure: the * Originally published in Recht gestern und heute: Festschrift zum 85. Geburtstag von Richard Haase (ed. J. Hengstl und U. Sick; Wiesbaden: Harrassowitz, 2006), 45-52. Used by permission. 1 For witchcraft in Mesopotamia, see Thomsen 2001: 23-35; among the Hittites, Haas 1994: 882-88; in the Bible, Kuemmerlin-McLean 1992: 468-71.

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laws of Ur-Namma (CU), Hammurabi (CH), the Middle Assyrian Laws (MAL), the Hittite Laws (HL), and the Neo-Babylonian Laws (NBL) all have one or more paragraphs dealing with diverse aspects of witchcraft. The Edict of Telipinu devotes a paragraph to witchcraft, which is also the subject of several records of litigation. Outside the cuneiform sphere, the Hebrew Bible has a few pertinent regulations. In view of the paucity of legal sources, I will not attempt to reconstruct the law of a single system or trace its development. The purpose of this brief essay is rather to gain an overview of the legal measures recorded and to see if they exhibit any general pattern.

Witchcraft and Legality Magic can be white or black, according to whether its purpose was to benefit or to harm. Witchcraft was black magic directed against an individual. It was considered capable of bringing sickness or even death. The victim had several means of defense (or counter-attack): 1. He could invoke the aid of the gods through prayer, or seek a judgment by the gods against the sorcerer. 2. He could use magic to counter magic, e.g., by amulets, apotropaic figurines and the like. 3. He could employ the services of a specialist, namely an exorcist, to destroy or render ineffective the magic directed against him. 4. He could sue the perpetrator in a human court. The first incantation in Maqlû (I 1-36) describes a petition of a victim of witchcraft to the gods to judge his case. As Abusch rightly notes, the case turns upon a witch’s false accusation of the victim before the gods, which has led them to inflict him with certain injuries (1987: 138-39). The opening lines read: 1 I have called upon you Gods of the Night . . . 4 Because a witch (kaaptu) has bewitched me (ukaipanni), 5 A deceitful woman (el ntu) has accused me (ubbiranni),

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6 Has (thereby) caused my god and goddess to be estranged from me (and) 7 I have become sickening in the sight of those who behold me, 8 I am therefore unable to rest day or night . . . 13 Stand by me ye Great Gods and give heed to my suit, 14 Judge my case and grant me an (oracular) decision! . . . 18 Because evil did she perform against me, and baseless charges has she conjured up against me, 19 May she die, but I live!2 Abusch argues that the opening lines do not constitute an indictment of the witch. The speaker’s description of the witch’s activities (lines 4-12) carries no legal force beyond that of setting out the grounds for his request; it is intended, that is, to explain and justify the plaintiff’s request to the divine court that it convene and hear his case. The description simply presents the facts of the case as they appear at the beginning of the trial. These facts constitute neither proof of the witch’s guilt nor an accusation against her. In fact, the witch would not deny these facts. She and the speaker would differ solely on their interpretation, and she would claim that her actions were legally justified and that he was guilty of an undefined crime (2002: 9). Abusch’ analysis reveals a certain confusion as to the nature of pleas in litigation. The fact that the defendant would deny the harm or claim that it is the plaintiff’s fault is irrelevant. Denial of a claim in no way invalidates it (nor does a counter-claim); only the judgment can do that. There is no reason to treat the opening part of the plea as neutral by severing it from the demand for justice in lines 13-14 or the remedy sought in lines 18-19. The victim opens his case with the claim, formulated in parallelism,

2 Edition in Meier 1937. Translation in Abusch 2002: 8-9; also in Abusch 1987: 99.

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that the person who has caused him harm has done so by witchcraft and deceit.3 Witchcraft is thus a form of harm no less than homicide or wounding, for which redress can be claimed in the divine courts. As Maqlû I also informs us, the plaintiff may bring a figurine of the witch before the gods just as he would bring a defendant before the human court: 15 I have made a figurine of my sorcerer and of my sorceress (kaapa u kaapta), 16 of my wizard and of my witch ( pia u mutepista), 17 I have laid it at your feet and stated my case (adibbub dn).

Witchcraft as a Public Danger Figurines are a stock accessory of both magic and exorcism, but the reason for using a figurine in what is supposed to be a lawsuit is probably that the identity of the sorcerer was unknown to the plaintiff. The problem of identifying sorcerers also exercised the human authorities, as exemplified by the Edict of Telipinu (§50):4 (As regards) sorcery in Hatti, you shall keep purifying things of it. Whoever practices sorcery within a family, do you seize him/her out of the family and bring him/her to the palace gate. Whoever does not bring him/her, it will come out badly for that man and his house. Hoffner translates: “Whoever in the royal family practices sorcery” (1995: 237-38), but the word “royal” is added gratuitously. It is true that the earlier part of the Edict concerns crimes committed within the royal family, but thereafter the focus of attention widens, to palace officials, then to matters in which the palace has a concern, such as the security of the 3 According to Abusch, even black magic “was not necessarily objectionable from a legal point of view; that is, a witch or sorcerer could perform magical activities (later associated with black magic) without being culpable” (2002: 8). The victim’s claim, however, equates black magic with perjury before the gods. 4 Edition in Hoffmann 1984.

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royal granaries. The last two regulations, after the space of nearly a whole column in which the text is too broken for the meaning or the context to be established, deal with homicide and witchcraft. The first provision establishes the customary rule for any homicide not specifically within the royal family and makes the point that the palace will take no payment in addition to the penalty exacted by the victim’s family. The final provision concerns witchcraft outside the royal circle, as confirmed by the provision that the perpetrator be brought to the palace gate.5 The interest of the palace in suppressing witchcraft is confirmed by MAL A 47, where the king intervenes to force an eye-witness to witchcraft who has been denounced by a hearsay witness to present his testimony. King, prince, and royal exorcist are all involved in the case. The paragraph gives the impression that witchcraft was seen as a public danger, requiring mobilization of government power in order to suppress it. In a recent survey of criminal law in the Ancient Near East, I distinguished between three broad categories of offence: wrongs against a hierarchical superior; serious wrongs against the person, honor, or property of an individual; and minor harm to an individual’s person or property (2003b: 75-82). The third category is a matter for compensation and does not concern us here. Where the first category is an offence against a god, it creates impurity which may endanger the surrounding area or even the whole society. The remedy is therefore death or banishment of the offender and possibly his family, and purification rituals. Offences in this category include breach of taboos and sexual aberrations such as incest and bestiality. The second category comprises crimes such as homicide, injury, theft, rape, and adultery. The remedy was a private right in the victim or his family to revenge or ransom to buy off revenge. The level of revenge and of ransom could sometimes be fixed by the courts. Some of the more morally serious offences, in particular homicide and adultery, might involve a certain degree of pollution, at least of the parties involved. On the basis of the Telipinu Edict and MAL A 47 discussed above, and of certain biblical texts, I included witchcraft in the first category as an

5 The mention of a family as the context probably refers to the duty to denounce one’s own relatives: cf. Deut 13:6-11.

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offence against the gods. Certainly, it was associated with impurity.6 Indeed, unlike homicide or adultery, where impurity was a side-product, the very essence of witchcraft was to create impurity. As Haas puts it: “Behexungen mobilisieren und stören dämonische Schadenstoffe auf, die den Behexten in den Zustand der Unreinheit versetzen” (1994: 884). In the light of other sources, however, it may be necessary to qualify that categorization somewhat.

Witchcraft as a Private Wrong In CH 2, a man accuses another of sorcery, but is unable to bring evidence (of a normal, rational nature). They are therefore sent to the river ordeal. If the one accused of sorcery fails the ordeal (and dies), his accuser takes his house; if he passes the ordeal, the accuser is killed and he takes the accuser’s house. The law does not state any relationship between the accuser and the accused, which might lead to the conclusion that he could be an officious member of the public. This would be in accord with the public nature of the offence and the need to encourage its suppression. On the other hand, a parallel law in CU 13 demands only 3 shekels as the penalty for false accusation, which seems remarkably light in view of the seriousness of the offence. Another possibility, therefore, is that the accusation is made in the heated exchange between parties to a dispute, even litigants in an existing lawsuit over some other matter. In his political autobiography, Hattusili III recounts that before he became emperor, Arma-Tarhuntaa, a relative and political enemy, together with his wife and son, began to use witchcraft (alwanzatar) upon him, and “he even filled Samuha, city of the god, with witchcraft” (II 7479).7 Hattusili responds by bringing a lawsuit against Arma-Tarhuntaa in the court of the king, his brother. The court found all three guilty of witchcraft and “my brother turned him over (piran nai) to me together with his house, his wife and his son” (III 20-21). Hattusili, however, 6 Hittite papratar; see Hoffner 1973: 84; Hutter 1988: 30-31 (line 18). Deut 18:8-12 refers to witchcraft as an abomination (t ‘ bâ) that provokes divine anger. 7 Edition in Otten 1981.

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decided to be merciful: “because Arma-Tarhuntaa belonged to my family and was old, I let him go” (arha daliyamun). He also returned to him half his property and released a son who was not involved, but sent the wife and guilty son into exile (III 22-30). Although Hattusili is careful to mention the defilement of a holy city, it would seem that the court regarded the offence as being against him alone, and gave the culprits into his hands to do with as he thought fit. The judgment fits the pattern of a second category offence, where the punishment is the victim’s right of revenge. It would fit into the highest level of culpability in that category, since the whole family of the culprit is handed over to the victim, including an innocent member (although with a recommendation for mercy: III 21-22) and no limitation is placed on his revenge. The significance of banishment is ambiguous here: on the one hand, it was used for crimes of pollution and regarded as equal in measure to execution;8 on the other, it was a recognized way of dealing with political opponents. As regards mercy, in crimes like adultery it is the prerogative of the victim, whereas in first category crimes like bestiality it is the prerogative of the king.9 In his account of the affair of the Tawananna, Mursili II accuses his stepmother, the Queen Mother, of having killed his wife by means of witchcraft. Although king, he refrains from exercising his prerogative as judge. Instead, he refers the question of her punishment to a higher court, that of the gods “my masters” (be-lume-ia), through oracular consultation. “And she was determined by oracle for me to execute; she was determined by oracle for me for removal from office.”10 Mursili did not then have the Tawananna executed; he only removed her from the office of high priestess and, indeed, gave her an estate for her sustenance. Again, the court determines the limits of the victim’s rights and hands the culprit over to the victim for implementation at his discretion. 8 “As the rule for sexual abominations has been from olden times in the lands: in a town where they customarily executed, let them continue to execute, and in a town where they customarily banished, let them continue to banish. The town should purify itself afterwards” (B l Madgalti III 11-14). 9 For adultery, HL 197-198, but the king has a further prerogative of mercy if the husband refuses to pardon the offenders. For bestiality, HL 187, 199. 10 CTH 71 (KBo IV 8 + “Izmir” 1277): lines 7-8. Edition in Hoffner 1984: 187-92. See also the edition and commentary of Cornelius 1975: 27-45.

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The classification of witchcraft as a second category offence on a par with homicide and adultery also explains the penalty imposed in HL 170: If a free man kills a snake and speaks the name of another, he shall give 40 shekels of silver. If it is a slave, he himself shall die. As Hoffner points out, the death penalty is not prescribed for a free man, but the penalty is relatively high (1997: 189 ad §44b). It makes sense if regarded as a fixed ransom imposed by the court in lieu of revenge. It is a measure of mitigation justified by the fact that no actual harm to the intended victim has yet occurred. The right of the victim to have the culprit executed, however, would revive if the culprit were unwilling or unable to pay the sum demanded.11 In HL 44b and 111 (leaving the residues from a purification ritual on a person’s property and making a figurine, respectively) the performing of acts of sorcery without proof of actual harm is deemed sufficiently serious to be referred to the king’s jurisdiction, presumably because the royal court has the authority to impose the death penalty. If the same system applied to the slave, it would have worked in the reverse order, in that the victim was in principle entitled to have him executed but might spare him if the slave’s owner offered a sufficient sum to ransom his life. The slave’s offence was more serious because it was against a hierarchical superior (assuming the victim always to be a free man).12 The discrepancy between CH 2 and CU 13 may also be explained by this analysis: CH emphasized the revenge aspect and parity of punishment for the offence itself and for a false accusation (death plus forfeiture of property), whereas CU, focusing solely on a false accusation in the course of a dispute, regarded it as a less serious offence meriting a low fixed

11 See Westbrook 2003d: 78. 12 The law codes did not always articulate aspects of the law that would have been selfevident to a contemporary. The dichotomy between free man/payment and slave/death is, however, typical of their reasoning by “polar cases with maximal variation” (Eichler 1987: 72-75). It suggests intermediate categories of free man/death and slave/payment. It should also be noted that the phrase “he himself shall die” suggests that the same fate would apply to the free man if he did not make the payment, which could in fact have been in slaves (cf. HL 1-4).

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ransom, without indicating what measure of revenge was allowed as the alternative. At the same time, the highly toxic nature of witchcraft gives it strong affinities with first category offences. HL 44b is an apt illustration: leaving the polluted residues from a purification ritual (kuptar) elsewhere than in a designated incineration dump is regarded as so serious a matter that it could result in death for the culprit.

Professionals and Amateurs The involvement of the palace that emerges from sources like the Telipinu Edict and MAL A 47 goes beyond what would be expected in a case of homicide or adultery. Perhaps another distinction is at play here that is not articulated in the sources: between professional sorcerer and amateur. In the case of Arma-Tarhuntaa discussed above, the culprit was a politician; he was not a sorcerer by profession, nor were the members of his family. They resorted to witchcraft as part of their political campaign against Hattusili. The same is true in the Tawananna affair, when Mursili accused the Queen Mother of causing his wife’s death by witchcraft. Again, she was an amateur, but in this case she also hired a professional, a woman who pronounced spells (hukmae-incantations) against Mursili’s wife.13 Similarly, Maqlû (III 121-122) raises the possibility of someone commissioning a professional witch ( pitu) or sorceress (s irtu). Sefati and Klein note that “Whereas the law codes, as a rule, do not distinguish between men and women in the laws pertaining to sorcery (i.e., black magic), in the cultic-ritual and other sources the role of women in sorcery far exceeds that of men” (2001: 570). They find that women are the archetypal sorcerers from the Old Babylonian period onward, with men only slowly emerging alongside them during the first millennium and never with more than a subsidiary role. Many of the first-millennium sources mention men alongside women as a formulaic merism.

13 KUB XIV 4 Rs III 7-8; edition in Cornelius 1975. See Bin-Nun 1975: 186. The only legal record of a witchcraft trial, Bo. 557 (edition in Werner 1967: 64-67), is unfortunately too broken to determine the status of the parties.

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I would place a slightly different emphasis on these conclusions, namely that anyone can practice witchcraft, but that as a profession, it was regarded as essentially a female reserve, into which men would occasionally enter. A modern analogy, apart from the word “witch” itself, is the English use of “nurse” in pre-feminist parlance of the twentieth century. Although originally gender-neutral, it came to refer exclusively to women, so that a man practicing the profession of nursing was called a “male nurse.” Where men and women are mentioned together, therefore, it is a marker of professional sorcerers. An Old Babylonian correspondence concerning a bitter lawsuit between father and son over a straightforward commercial dispute shows how the image of a female witch served as a stereotype. The father refers to the son’s wife and mother-in-law as “your witches” whom he will have imprisoned, and the son responds with a like threat.14 It is more than doubtful that the good ladies were professionals, but they could be called witches by way of insult. A closer look at the law codes shows that they do distinguish between men and women, on a logical basis. Where the culprit is unequivocally male, the sorcery is amateur, as in CU 13 and CH 2, where one party to a dispute has resorted to sorcery, and HL 170, where a man, even a slave, can perform a simple magical procedure against an enemy.15 Where it is ambiguous, as in HL 111 (someone: kuiki), it is likely to be amateur, as anyone can form a clay doll, the most basic of magical practices. In HL 44b the subject is again ambiguous (kuiki) and presumably professional, but not a professional sorcerer. Rather, the culprit is an exorcist who has performed a legitimate purification ritual but then acted improperly in disposing of the resulting polluted residues.16 14 AbB 9 268 and 269. See Walters 1970: 27-38. 15 Vgl. Haas: “Behexung und Enthexung geschieht, falls professionell ausgeführt, nicht durch eine singuläre, sondern durch eine Kette magischer Handlungen” (1994: 889). 16 NBL 7 apparently concerns a similar problem, involving a woman who is a professional but not, apparently, a witch: “A woman who performs n peu or a ritual purification (takpirtu) in a man’s field or boat or oven or anything, (concerning) the trees (literally, ‘wood’—what is growing in the field) on which she performs, she shall give the owner of the field three times its yield. If she does the purification on a boat, in an oven, or anything else, she shall give threefold the losses caused to the object (text: ‘field’). If she is seized in the doorway of a man’s house, she shall be killed.”

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The one law code provision that expressly mentions men and women is MAL A 47. The reason, I suggest, is to make it clear that the law is directed against professionals. As in the couplets of Maqlû, the female practitioner indicates a professional witch and the male is added as a merism, for the sake of completeness. It is also this law that involves the palace in the suppression of witchcraft. In the public interest, the palace was concerned to catch professional witches before they could do harm. Outside the law codes, the Edict of Telipinu, as we have seen, also prescribes preventive measures by the palace. It is directed against a person who “knows witchcraft” (alwanzatar akki), which would indicate an expert rather than an isolated attempt.17 The person to be denounced as a practitioner of sorcery is usually translated “him,” but the Hittite enclitic pronoun denotes common gender, and so could apply to a male or female. Finally, it is worth comparing three biblical texts. Deut 18:9-11 gives an exclusively male list of forbidden professions (“one who passes his son or daughter through fire, a diviner, soothsayer, augur, sorcerer, charmcaster, medium, or necromancer”), some of whom, however, would be regarded as legitimate forms of magician elsewhere.18 On the other hand, Lev 20:27 prescribes public stoning for a type of professional medium, whose gender is identified as “a man or a woman,” whereas the only known example of this type of medium in the narratives is a woman: the “witch” of Endor (1 Sam 28:7ff.). Finally, Exod 22:18 orders the local authority to execute without the possibility of pardon a witch, without doubt a female professional.19

Summary and Conclusions The classification of crimes in the Ancient Near East into three categories is a modern heuristic tool, which should not be applied too rigidly to the ancient sources. Likewise, the distinction between professional and amateur sorcerers is not made explicitly in the sources and is likely to have had 17 Hoffman translates “sich auf Zauberei versteht” (1984: 55). 18 Discussed by Kuemmerlin-McLean 1992: 468-69. 19 For the interpretation of the law as a directive to the local authority, see Westbrook 1986a: 62-66; and Westbrook 1997: 66-67.

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shades and gradations rather than a sharp dividing line. Nonetheless, applying both distinctions to the legal sources does produce a coherent picture. Amateur, opportunistic acts of sorcery tended to be treated as a serious crime analogous to homicide or adultery, which gave the right of revenge or ransom to the victim, while creating some pollution which might have public repercussions. The work of professional sorcerers, typically women, was a source of public concern and could lead to repressive measures analogous to the treatment of polluting crimes like incest and bestiality.

12 The Trial Scene in the Iliad Abstract The trial on Achilles’ shield is typically understood in one of two ways: as a factual dispute (has the killer paid the ransom money or not?); or as a legal dispute (is ransom money allowed in this case?). This article opts essentially for the legal interpretation but contests the idea that the courts of this period were forums of arbitration and made no binding decisions. Instead, these courts likely functioned much like their ancient Near Eastern counterparts, who had coercive powers. One such power was the establishment of limits on the revenge or ransom that victims of a crime (or their families) could demand. It is the question of just such a limit that forms the core of the dispute in this trial.

T

he description of the homicide trial depicted on the shield of Achilles is one of the most disputed passages in the Iliad, both as to its translation and the legal significance of the trial. A typical modern translation reads:1 In the assembly place were people gathered. There a dispute had arisen: two men were disputing about the recompense (poin) for a dead man. The one was claiming to have paid it in full, making his statement to the people, but the other was refusing to receive anything; both wished to obtain trial at the hands of a judge. The

* Originally published in Harvard Studies in Classical Philology 94 (1992): 53-76. Copyright © Department of the Classics, Harvard University. Used by permission. * My thanks are due to Prof. R. Wallace, who read the first draft and made many useful criticisms, and to Profs. J. Russo and R. Woodard for their helpful comments. Responsibility, as usual, rests with the author. 1 MacDowell 1978: 19.

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Writings of Westbrook, Vol. 1: The Shared Tradition people were cheering them both on, supporting both sides; and heralds quieted the people. The elders sat on polished stones in a sacred circle, and held in their hands sceptres from the loud-voiced heralds; with these they were then hurrying forward and giving their judgments in turn. And in the middle lay two talents of gold, to give to the one who delivered judgment most rightly among them (18.497-508).

The same translator admits that lines 499-500 could be rendered: “the one was claiming to have paid it in full . . . , but the other was denying that he had received anything.”2 Therein lies the crux of the dispute. The traditional view, following the latter translation, is that the litigation concerns a question of fact: whether the blood-money for a homicide (poin), i.e., the ransom payable by the killer to the victim’s family in lieu of revenge, has been paid or not.3 The other view is that it is a legal question: whether the blood money is acceptable or not.4 In legal terms, the second hypothesis seems immediately preferable. As already pointed out by Leaf, it is difficult to see why there should be such popular ferment, with heralds and councilors and prizes for forensic eloquence, about a simple matter of the payment of a debt, which could only be settled, if at all, by oaths and witnesses.5 And as Andersen remarks, there does not seem to be much room for difference of opinion among the elders on a mere question of fact.6 It must be an issue of principle that taxes the wisdom of the court. The question then arises, however, what is the precise legal issue before the court? Gagarin supposes that a disagreement exists between the relatives of the victim. One relative has agreed to accept compensation and has done so, but another disagrees with this decision and takes the dispute to a public forum.7 But then we would expect the dispute to be between the 2 MacDowell 1978: 19. 3 E.g., Calhoun 1927: 18; Bonner and Smith 1930: 32-35; Hommel 1969: 16; Primmer 1970: 11-13; Cantarella 1976: 73-74. 4 Leaf 1887: 122-32; Benveniste 1969: 240-42; Andersen 1976: 12-15; MacDowell 1978: 19-20; Gagarin 1981: 13-16; Gagarin 1986: 32-33; Hammond 1985: 80-81. 5 Leaf 1887: 123, followed by Benveniste 1969: 241-42. 6 Andersen 1976: 12-15. 7 Gagarin 1981: 13-16; Gagarin 1986: 31-33.

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two relatives, or at least for the other relative to be joined. Gargarin’s explanation that Homer’s comments “only hint at the full complexity of the case”8 may be questioned on methodological grounds. In the absence of their explicit mention in the text, circumstances cannot be assumed because the case described was never a real event. It is a fiction, a work of literature that has no reality (however realistic the description may be) outside the mind of the author who created it.9 The more commonly accepted viewpoint is that the issue is simply the lengths to which revenge may be taken,10 or as Muellner puts it, whether the murdered man’s kinsman has the right actually to refuse the murderer’s offer of poin.11 But poin is a sum offered by the murderer as ransom for his life, to stave off the revenge to which the victim’s kinsman is entitled. Its level is therefore what is acceptable to the kinsman or, more realistically, what may be arrived at by bargaining between the parties. How did the court intervene in this process and impose one party’s terms on the other (or did it impose its own terms on both)? In what circumstances would it intervene and on what criteria? Although there are frequent references to homicide, revenge, and ransom in the Homeric poems, they give no hint of the exercise of such judicial powers. To answer these questions, we propose to look beyond the Homeric literature itself to the neighboring societies of the ancient Near East. Their copious sources provide the detailed working model of a legal system in which revenge and ransom are an integral part of the judicial process. In the context of that model, the legal issues in the trial will, it is hoped, become clear, and the details of the scene form a coherent picture.

The Ancient Near Eastern Model The societies of the ancient Near East for which we have written records are diverse in language and culture, but they appear to some considerable extent to have shared a common legal tradition. The underlying structure 8 9 10 11

Gagarin 1986: 33. See Waldock 1966: 11-24; and Wallace and Westbrook 1989: 364-65. MacDowell 1978: 20. Muellner 1976: 106.

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of their legal systems was the same, while the content of the law drew upon a canon of traditional learning that had originated in Mesopotamia in the third millennium or earlier and spread across the fertile crescent to Anatolia and the Mediterranean coast.12 This tradition was very tenacious, lasting well into the first millennium, when new ideas from the Eastern Mediterranean began to create a different conception of law.13 Already in the earliest records from the third millennium, the states of the ancient Near East are revealed as tightly organized societies, with a complex bureaucracy to support the process of government and a system of courts to administer justice.14 The courts dealt with private wrongs and offences against the collectivity, and in both cases handed down judgments that could involve harsh punishments such as mutilation and death. Their jurisdiction could hardly have been voluntary under the circumstances but must have relied on some powers of coercion. The problem of coercion arises at two stages: bringing one’s opponent to court and enforcement of the court’s judgment. The former would appear to have been the harder task. We have no evidence of any summons mechanism by the local courts (although it may have existed) or of any powers of arrest, and often the plaintiff would have had to rely on his own powers or the help of family and neighbors. Petitions to the king do appeal to his coercive power, which is also executive, and the king’s response is sometimes to summon the parties before him,15 sometimes to judge in the absence of the defendant,16 a power which the local courts may also have 12 See n. 25 below. 13 See Westbrook 1989a: 218-22. 14 For a survey of the early materials, see Kramer 1963: chapter three, and the literature cited thereto. 15 E.g., in a letter from king Hammurabi to a royal official in a provincial town (ca. 18th century: “To Sin-iddinam, speak: thus says Hammurabi: concerning Ili-ippalsam, the overseer of the bakers, who is engaged in a claim for a field against Sin-gimlanni, son of Bitum-rabi the chamberlain, and Lipit-Ishtar, scribe of Tarbatum’s steward, and about whom you wrote; I have just sent Ili-ippalsam the overseer of bakers on a mission to Ur to make sacrifice. As soon as he has completed the sacrifice at Ur, send him to me at Babylon together with his opponents Sin-Gimlanni and Lipit-Ishtar so that their case may be concluded” (AbB 2 9 [Frankena 1966: no. 9]). 16 E.g., AbB 2 24 (Frankena 1966: no. 24), where a merchant petitions Hammurabi over an unpaid loan of grain, outstanding for three years. Hammurabi examines the loan

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had, and which would provide a powerful incentive to the defendant to come to court in the first place. For we do have plentiful evidence of the court’s power to enforce its judgments.17 Refusal to obey the court’s judgment is severely punished by the Hittite Laws: 173 If anyone rejects the judgment of the king, his house shall be razed. If anyone rejects the judgment of a district official they shall cut off his head.18 The courts of the ancient Near East were therefore more than mere arbitrators of disputes voluntarily submitted to them. They formed a coercive framework, and it is within this framework that the criminal law recorded in the sources is to be interpreted. The types of wrong which in modern systems would be subject to criminal law, such as homicide, wounding, rape, and theft, also formed a separate category in the ancient Near Eastern systems, but with very different consequences. These wrongs (together with adultery) were not subject to punishment by the State; instead, they gave rise to a dual right in the victim or his family: to take revenge on the culprit and/or his family, or to accept ransom in lieu of revenge. Paragraph 49 of the Edict of the Hittite King Telipinu illustrates the principle in the case of homicide:

document and gives orders to his official that the grain plus interest be collected from the debtor and given to the merchant. In 2 Sam 12:1-6, the prophet Nathan informs king David that in a provincial town a rich man has committed an abuse of power, taking a lamb from a poor man. David is outraged and immediately pronounces sentence on the offender. See further Westbrook 1988d: 30-35. 17 The court of the city of Nippur in the early second millennium, for example, handed down a judgment in an adultery case whereby the guilty lovers were stripped, mutilated, and paraded around the town. They had been brought to the court strapped to the bed on which they had been caught in flagranti delicto: Greengus 1969: 33-44. At the royal level, in an Old Babylonian letter, for example, the king dispatches a soldier with the successful plaintiff to help her recover property from the defendant’s house: YOS 2 25 (edition in Westbrook 1988b: 136-37). 18 Cf. Deut 17:12: “The man who willfully disobeys the priest . . . or the judge—that man shall die.”

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Writings of Westbrook, Vol. 1: The Shared Tradition A matter of blood is as follows. Whoever does blood, whatever the owner of the blood says. If he says, “Let him die!” he shall die. If he says, “Let him pay ransom!” he shall pay ransom. But to the king, nothing.

The “owner of the blood” is the closest male relative of the victim. He is known by the same name in neo-Assyrian,19 as the “owner of the life” in the Middle Assyrian Laws (B 2), and in the Bible as the “redeemer of the blood,” i.e., the one who brings it back within the family. The theory is that the blood of the victim has been lost to his family and must be returned. This can be achieved by killing the culprit. As a letter from the Babylonian king to the Pharaoh puts it: “. . . the men who killed my subjects—kill them! Return their blood!”20 If, on the other hand, the victim’s family opts for ransom, the amount will be negotiated with the culprit and an agreement thereon drafted in the form of a legal contract, as illustrated by a neo-Assyrian document (ADD 321):21 A son of B shall give C daughter of D, the scribe, in lieu of the blood. He shall wash the blood. If he does not give the woman, they will kill him on B’s grave. Whichever of them breaks the contract shall pay ten mina of silver. Thus far, the criminal law gives the impression of being very much a private affair between the affected families. How did it fit into the structure of a coercive judicial system? The answer is that revenge was conceived of as a legal remedy, not the mere expression of a personal vendetta. Paragraph 49 of the Telipinu Edict above gives only the theoretical principle; in practice, the rights of the parties were subject to the jurisdiction of the law courts. With homicide and other serious crimes, the court determined not only the facts of the case but also the legal questions:

19 Assyrian bl dmi. Contra CAD B 80, but see Roth 1987: 363-65. 20 El-Amarna no. 8:25-29 (14th century). Edition in Knudtzon 1907-15 (1964): 84-88. 21 Edition in Kwasman 1988: no. 341.

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a) whether the plaintiff was entitled to revenge at all; b) the appropriate revenge or ransom to which the plaintiff was entitled. The plaintiff was not entitled to revenge if the killing was justified. According to Exod 22:1, the burglar who is killed breaking in at night “has no blood,” i.e., there is no blood to be returned to his family through revenge.22 Where a husband kills his wife and her lover caught in flagranti delicto, HL 197 rules that “there is no penalty on him.” If the plaintiff is entitled to revenge in principle, its measure is not left to his discretion but is fixed by the court in accordance with the gravity of the crime. Indeed, the idea of unbridled revenge was regarded with aversion. Two passages from the Bible are indicative of this point. First, there is the boast of Lamech in Gen 4:23-24: “I have slain a man for a wound on me, a boy for a blow on me. Cain shall be avenged sevenfold, but Lamech seventy-sevenfold.” The second passage is the account of Samson’s revenge on the Philistines for the wrong that his betrothed’s father had done him in giving his bride to another. He burns their crops and commits a great slaughter among them (Judg 15:1-8). In both cases, revenge is enforced by self-help and limited only by the avenger’s discretion. But both passages are legends describing what was perceived to have been the unsatisfactory situation before the advent of civilized society: Lamech was one of the wicked generation before the Flood, and Samson lived in what was regarded as a period of anarchy, when “each man did what was right in his own eyes.” The court’s role was therefore to limit revenge to what was just in the circumstances of the case.23 At its worst, revenge could be collective, on the culprit and his family, but this would be rare. The more usual choice would be between revenge on the culprit himself and vicarious revenge on a subordinate member of his family, which was regarded as a mitigated penalty. It also needed to be determined what form the revenge was to take: death, mutilation, pain (beating or whipping), humiliation, etc. In this 22 See Schoneveld 1973: 335-40. The rule concerning the burglar killed at night recurs in several law codes: CE 13 and Twelve Tables VIII 12. 23 For a detailed discussion of the courts’ role in the revenge/ransom system, see Westbrook 1988d: 39-83.

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connection the famous talionic rule was but one criterion by which the just limitation on revenge was determined. It will be recalled, however, that the plaintiff’s right was a dual one: to revenge or ransom. In principle, it was the plaintiff’s free choice, but here again the courts intervened, imposing a fixed ransom where they considered that the gravity of the offence did not merit free bargaining. The plaintiff’s right to revenge was not thereby extinguished, but it was rendered secondary. It was only realizable if the defendant was unable or unwilling to pay the ransom set by the court. The formulae for the fixing of ransom are various: a number of slaves, a weight of silver, a multiple of the thing stolen in case of theft, the whole of the defendant’s property, or the whole of a debt owed by the plaintiff to the defendant. The appropriate limitations on revenge or ransom in a large variety of cases are discussed in the law codes. In order to understand that discussion, it is necessary first to appreciate the particular nature of the law codes themselves. The seven extant cuneiform codes and two biblical codes24 form a special genre of literature through which transmission of the common legal tradition, in all its vagaries, can be seen. Although referred to by modern scholars as law codes, they were not legislation. Rather, they were scientific treatises on the law, albeit not scientific in the modern sense. They comprised mainly judicial decisions which had been reformulated and expanded for heuristic purposes to make scholarly legal problems. A canon of such problems formed a repository of wisdom upon which all the ancient Near Eastern law codes drew. In this sense, the codes represent a literary tradition rather than a direct description of their respective legal systems. The individual problems may have begun life as real judgments, but they had long since been divorced from their original context. Where such a problem appears in a code, it signifies neither that it is a common case nor that it is a central rule of law; rather, it illustrates some principle of justice which a wise judge would follow. Indeed, many of the original decisions must have found their way into the

24 Codex Ur-Namma (CU), Codex Lipit-Ishtar (CL), Codex Eshnunna (CE), Codex Hammurabi (CH), Hittite Laws (HL), Middle Assyrian Laws (MAL), Neo-Babylonian Laws (NBL), Exodus 21-22, Deuteronomy 21-22.

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canon precisely because they dealt with some particularly unusual or difficult legal problem.25 The difficulty with these scholarly problems from the modern point of view is that they do not express the principles that they embody; ancient jurisprudence was incapable of doing that. The ancient court would draw wisdom from them as it sought to do justice in the case before it, but being isolated examples with complex fact situations they could seldom, if ever, act as direct precedents. Furthermore, no single law code reproduces the whole of a particular scholarly problem. Different fragments are scattered across the various codes, so that the original problem has to be reconstructed like a vase from the remaining shards. On the subject of homicide, five classic examples from the canon of scholarly problems are recorded in the codes: the maltreated distrainee, the pregnant woman, the goring ox, the tragic accident, and the violent quarrel. For the sake of brevity, we shall confine ourselves to two examples. 1. The responsibility of the owner of an ox that has caused a person’s death by goring is discussed by CE 54-58, CH 250-252 and Exod 21:2832. In all three the possibility is considered that the owner had previously been warned by the local authority of his ox’s propensity to gore, but the consequences differ radically. CE and CH set fixed ransoms at the very low rate usually associated with vicarious revenge (CH 251: “. . . if it gores the son of a man and causes his death, he shall pay half a mina of silver”), whereas Exodus insists that the culprit be killed, or “if ransom be imposed upon him, he shall pay all that is imposed upon him to redeem his life”—i.e., ransom is limited only by the plaintiff’s discretion, as in aggravated homicide. Furthermore, vicarious revenge is excluded even when the victim is a subordinate member of the family: “if it gores a son or a daughter, the same rule shall be applied to him.”

25 For a detailed discussion of the nature of the law codes, see Westbrook 1988a: 82-97. The academic character of the law codes has been strongly disputed by legal historians, but in our view their arguments ignore the cultural context of the codes. For a summary of the arguments and our latest contribution to the polemic, see Westbrook 1989a and the bibliography cited therein.

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2. The violent quarrel that leads to injury or death is discussed in four passages: CH 206-207 If a man strikes a man in a brawl and inflicts a wound on him, the man shall swear “I did not strike knowingly,” and he shall pay the doctor. If he dies from being struck, he shall swear; if it was the son of a man, he shall pay half a mina of silver. HL 1 If someone kills a man or a woman as the result of a quarrel/fight, he shall . . . him and give four slaves, male or female. HL 10 If someone wounds a man and makes him ill, he shall nurse him. He shall give a man in his place who will work in his house until he is well. When he is well, he shall give him six shekels of silver, and he shall pay the doctor’s fee. Exod 21:18-19 If men quarrel and one strikes his neighbor with a stone or fist and he does not die but falls to a bed, if he rises and walks out and about on his stick, the striker is free of liability. He shall only pay for his not working and heal him. The first point to note is the leniency of the penalties. In the case of injury it is based on the principle of indemnifying the injured party for his actual loss. This is in total contrast to the treatment of injury elsewhere in the codes, where it invariably is subject to talionic revenge or fixed ransom in lieu of revenge. It is this difference in the basis of payment to which Exodus refers when it states that the striker is “free of liability.” The exception is HL 10, which adds a fixed payment to the indemnity. But it is an exception that proves the rule, as this paragraph, unlike the others, omits the element of quarrel—a significant omission, as we shall see. The penalty for causing death in these circumstances is also relatively low: in HL, less than for kidnapping,26 and in CH, a sum which evidently represents fixed ransom in lieu of vicarious revenge.

26 Six slaves for the kidnapping of a free man, according to HL 19b.

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Accordingly, there must be mitigating factors in the circumstances described in the protasis of these laws. We can identify two: i) A violent quarrel. The examples cover a fairly wide range: CH talks of a brawl (risbatum), while the Exodus text uses a term associated with verbal abuse rather than physical blows (rîb). HL uses a term which can refer to a quarrel or a fight (sullatar). The impression therefore is of a violent quarrel which can erupt into fighting. It does not at first sight appear the most obvious choice for a mitigating circumstance, but as Driver and Miles have discerned, the point seems to be that it is a situation for which both parties may be blamed.27 In modern terms we would say that the culprit suffered provocation; the ancient jurisprudence expressed it by referring to a concrete example. This can be illustrated by the report of an actual trial from Nuzi, a town in northern Mesopotamia, from the fifteenth century:28 Unaya son of Hampizi went before the judges in a lawsuit with Aqawatil son of Tarmiya. Unaya said: “Aqawatil struck me in the open fields.” The tongue of Aqawatil stated to the judges: “Yes, we fought with one another.” Because their statements were in agreement, saying “We fought each other,” the judges examined the injuries of both. The head of Unaya with one blow and blood had been let. . . . their blows . . . . Unaya won the case, and the judges made Aqawatil pay in accordance with his statement a penalty of 30 shekels of silver: one ox, one ass, and one sheep. ii) The mental state of the culprit. This is expressly stated by CH to be the fact that the culprit struck “not knowingly.” The phrase cannot mean that the culprit did not intend to strike the blow, since in the context of a fight his act could hardly be 27 Driver and Miles 1952: vol. 1, 412. 28 SMN 2131. Edition in Pfeiffer and Speiser 1936: 47.

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Writings of Westbrook, Vol. 1: The Shared Tradition accidental. It must mean, as Driver and Miles rightly point out, that he did not intend the injury or death that resulted.29 It was, from the culprit’s point of view, an unforeseen consequence. The other law codes do not directly mention the mental element, but Exodus refers to the blow being struck “with a stone or a fist.” The reason for this apparently superfluous detail is, we suggest, to distinguish the present case, where the consequences of the blow were not expected to be serious, from the use of a deadly weapon, where the consequence would be predictable.

Accordingly, where both mitigating factors are present, revenge for homicide is limited, being subordinated to a fixed ransom. But the burden of proving their existence lies with the culprit who would benefit from this limitation.30 CH requires him to take an oath to establish the second factor;31 the other systems may have relied on the credibility of his evidence combined with presumptions raised by the surrounding circumstances. Where the culprit cannot discharge the burden of proof, the plaintiff will be entitled to the option of revenge, as is illustrated by the story of the widow of Tekoah in 2 Sam 14:6-7. The story is related to king David by a woman who represents herself as a widow from the village of Tekoah: Your servant had two sons and they both fought together in the open field, and there was no one to separate them and the one struck the other and caused his death. Now the whole clan has risen up against your servant, saying: “Hand over the one who

29 Driver and Miles 1952: vol. 1, 412. 30 In modern criminal law, the burden is in principle on the prosecution to prove the defendant’s guilty mental state, but there are some instances, e.g., a defense of insanity, where the burden may be on the defendant. This is the established rule in English law since McNaghten’s Case (1843): see Cross 1974: 85. In U.S. jurisdictions, attitudes to the McNaghten rule are more ambiguous: see Gard 1972: vol. 3, 13. 31 Taking the oath was not an easy option. The consequences of divine wrath were feared, and litigants would often settle rather than face the procedure. See Loewenstamm 1980a: 341-45.

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struck his brother that we may put him to death for the life of his brother whom he killed.” The widow and the clan offer conflicting versions of the facts. The widow asserts that there was a fight and implies that the culprit did not intend to kill with his blow (“struck . . . caused death”—ymt),32 whereas the clan claims that he did (“struck . . . killed”—hrg). As the alleged fight took place away from the village and there were no witnesses, the widow cannot discharge the burden of proof on behalf of her son, and no mitigation is possible. Her only recourse therefore is to petition the king to exercise his prerogative of mercy. The king does so, thereby incidentally demonstrating his authority over the revenge system.

The Mycenaean Context Can the ancient Near Eastern model be applied to the trial scene in the Iliad? It is not a question of some distant parallel applied for didactic purposes. The sources in question derive from Greece’s neighbors and span both the time of Homer and the era in which his poems are set. The traditions carried by those sources are not those of a particular society or societies but were widespread, covering all the legal systems of the area for which pertinent records are preserved (with the possible exception of Egypt). It is not impossible therefore that these traditions could have entered the Greek sphere, just as Near Eastern myths and, later, the alphabet are known to have done.33 Their ability to elucidate a Greek source would not then be coincidental. A specific instance from a different area of law has recently been provided by Russo and Knox, who explain Agamemnon’s decision to test his troops in Il. 2.73-75 by reference to the rule in Deut 20:8 that cowards are to be dismissed before a battle. This is the traditional rule (thémis) that

32 Cf. Exod 21:18 discussed above: “Struck . . . not die.” 33 For reception of the alphabet, see Naveh 1982: 175-86; Bernal 1990: esp. 53-70. For the reception of myth, see Burkert 1979: 7-10, 20-22, 80-83, 99-142; and Jacobsen 1984: 20-22. For a more general (and controversial) view of the West Semitic impact on Mycenaean Greece, see Astour 1965.

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Agamemnon is applying.34 The Deuteronomic law, however, mentions other categories who are released from military service. In particular, “the man who has betrothed a wife and not married her shall go and return to his home, lest he die in war and another marry her” (v. 7). In the myth of Keret from the Canaanite city of Ugarit (ca. fourteenth century), Keret musters a huge army for his divinely ordered campaign. So total is the conscription that “the sick man is carried in bed, the blind man gropes his way. Even the newly betrothed goes forth; he leads his wife to another, his beloved to a stranger.”35 In the list of unlikely conscripts, the place of the newly betrothed is comprehensible because of the traditional legal rule that allowed his exemption in normal circumstances. If we combine these three sources, then—a seventh-century biblical text, a fourteenth-century Canaanite myth, and the Iliad verse—we can discern the existence of a widespread and long-standing legal tradition common to the Greek and Near Eastern spheres, whereby various categories of men might be exempted from a military campaign. It is significant that the tradition finds its way into a law code in Deuteronomy, while in the Iliad it is referred to as a thémis. That a collection of the latter existed for reference by judges36 is implied by Il. 1.236-238: “. . . the sons of the Achaeans who give judgment . . . who keep the thémistes in Zeus’ name.” While no date could be placed on the process of reception posited by us, the evidence of the Linear B documents shows that it was feasible at least as early as the Mycenaean period. The latter attest to an administrative structure which would provide a suitable context for the ancient Near Eastern model and at the same time indicate specific connections with the text of the trial scene. The Linear B tablets reveal a highly centralized society with a large, bureaucratic administration, on the same general pattern that we have seen in the states of the ancient Near East. Ucitel has shown close parallels with the administration of Ur in the neo-Sumerian period (end of third millennium), without, of course, supposing any particular connection.37 The 34 Russo and Knox 1989: 174-80. Dumezil (1985: 26-29) points out that this is to be the first major engagement of the war. 35 Col. II, lines 98-103; col. IV, lines 186-191. Edition in Ginsberg 1946. 36 For the suggestion that the ancient Near Eastern law codes may have had the same function, see Westbrook 1985a: 253-58. 37 Ucitel 1988: 19-30.

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central authority of the Mycenaean state is represented by palace and temple, but there is also a local administration called the dmos. Lejeune has shown that while dmos can refer to a section of the population, in the administrative context it has a legal personality and as such possesses land, part of which it appears to hold as communal land, and the rest of which it assigns to individual usufructuaries.38 The nature of the archive is such that we learn nothing of the substantive law, but the organized society that it reveals is likely to have had an equally well-organized administration of justice, especially when one remembers that the rigorous separation of legal and executive powers is a relatively recent invention. It certainly is a context in which the courts could have had the same role with respect to homicide as in the ancient Near East. Furthermore, Muellner has identified the dmos in the sense of a collective legal entity with the word dmos in the trial scene (line 500).39 The legal implications of this identification, into which Muellner does not enter, will be discussed below. For present purposes, suffice it to say that, if Muellner is correct, then we have in the trial scene an addition to the small number of attestations to Mycenaean culture so far discovered in the Homeric poems.40

The Trial Scene and Homeric Homicide Law Before we apply the ancient Near Eastern evidence to the trial scene, there is a major objection that needs to be considered. There are many other references to homicide in the Homeric poems, and the consensus among scholars is that the underlying legal system reflected in them is one of arbitration. Disputes were submitted voluntarily to the court, whose judgments could not be binding against the will of the parties.41 In this context, the law of homicide was one of private vendetta. The relatives of the victim were entitled to revenge, and although they might

38 39 40 41

Lejeune 1965: 3-16. Muellner 1976: 104. Discussed by Page 1959: 218-51; and Kirk 1975: 833-37. E.g., Biscardy 1982: 275-78; Bonner and Smith 1930: 11-19, 29-31; Calhoun 1927: 17-18; Gagarin 1986: 42-43; Hommel 1969: 30-31; Steinwenter 1925: 29-30.

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accept ransom instead, they were in no way obliged to do so. Once ransom had been accepted, however, they could not continue the vendetta. If they did so, they committed a wrongful act which justified a new vendetta. The external constraints in this system of private vengeance were not legal but at most social, through the expression of public opinion.42 The killer, therefore, could not look to the courts for protection, but if the offer of ransom were unacceptable, his only safety lay in flight, a course of action frequently mentioned in Homer in connection with homicide. It is the “factual” rather than the “legal” interpretation of the trial scene—i.e., the issue is whether ransom was paid or not rather than whether it is payable or not—that best fits this system. For if ransom is purely within the discretion of the victim’s relatives, what is there to litigate about? There seems no reason for the relatives to refer the matter to a court. Steinwenter has attempted to overcome this difficulty by arguing that the relative’s rejection of the killer’s offer in the trial scene is a mere formality, necessary to found the litigation, which in fact will be nothing more than arbitration.43 But what need is there for arbitration when one of the parties has no bargaining power whatsoever? Steinwenter’s suggestion44 that pressure of public opinion forced the victim’s relatives to lay the dispute before the court is contradicted by his own insistence that the verdict will be a proposal for composition that is not binding in itself, but only because it is acceptable to both sides.45 It must therefore be admitted that the trial scene, on the “legal” interpretation, seems inconsistent with the other references in Homer. The traditional approach to reconciling these references is to suppose a historical development. On this view the trial scene belongs to the later strata of the Iliad.46 It represents a transitional stage47 between the old private vendetta and the transformation of the law under Drakon into true criminal law.48

42 43 44 45 46 47 48

Cantarella 1976: 5-6. Steinwenter 1948: 13. Steinwenter 1948: 13. Steinwenter 1948: 15. Steinwenter 1925: 34-36. Andersen 1976: 12. Cantarella 1976: cf. 7-8 and 73-74.

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The resolution of apparently conflicting laws by arranging them historically should be treated with a certain degree of skepticism. There is no external evidence for the process postulated, and it is noteworthy that the evidence of the copious Near Eastern sources, with a history of nearly three thousand years, is also negative. Furthermore, there is the problem of where exactly to place these stages in the course of Greek history. The Mycenaean age, on the evidence of the Linear B texts, would seem less suitable for the earlier stage than the following Dark Age, which would suggest a reverse development. Of course, the earlier stage could be projected back into the pre-Mycenaean period, but then we begin to leave the sphere of Greek history proper and enter the murky depths of an IndoEuropean tradition. It is not surprising that the protagonists of historical development are vague as to its absolute chronology. We would therefore propose a different approach, namely, that the trial scene and the other Homeric references indeed represent the same law, but seen from different perspectives. a) The trial scene is part of a tableau of events from everyday life, depicted on the shield of Achilles. It takes its place alongside such banal occurrences as a wedding procession and agricultural labor. It is set at the level of the local village, not of the royal court, and concerns the lot of the common man. All this is in strong contrast with the normal course of the epic genre, which focuses upon the affairs of the upper stratum of society—of kings and princes, or at least of nobles. Kings and princes are not necessarily above the law, but they are usually in a better position to avoid its consequences than ordinary mortals. Where they are involved in homicide, the results may not reflect the ordinary workings of the law. For example, flight was undoubtedly an option to which an ordinary killer might have recourse (as he did in the ancient Near East), but it is unlikely that many would follow the example of Prince Tlepolemus who, after killing his uncle, builds a navy and raises an army before fleeing to escape the revenge of his fellow princes.49 Clearly, his whole conduct and the potential sanctions against him are in the realm of the political, not the legal.

49 Il. 2.661-666.

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It is worth comparing at this point the case of Absalom in the Bible. Enraged at the rape of his sister Tamar, he arranges for his retainers to kill the culprit, his half-brother Amnon, and then flees with them, taking refuge with king Talmi of Gashur.50 If this were our only evidence for homicide in the Bible, we might conclude that it was a reflection on the legal system, or lack of one. It is only because we have a control in the form of the different literary genres within the Bible, such as the laws and narrative accounts of litigation in practice, that we can recognize the Absalom incident for the unusual case that it is. The operation of the characters outside the bounds set for ordinary men is emphasized by the fact that king David is finally induced to pardon his son by the case of the widow of Tekoah, through which he is forced to compare his attitude to his own son with his willingness to pardon a stranger in a banal case involving commoners, where the possibility of flight does not even arise.51 Indeed, given the striking similarity of Absalom’s actions to those of Tlepolemus, it seems to us that the motif of killing, flight, and refuge is an oldestablished literary topos, whose frequency in Homer reflects less the statistics of social reality than the usefulness of a literary device which adds background to the poem’s characters and explains their transfer from one location to another. b) A seemingly unambiguous statement of the law is made by Ajax in his argument with Achilles in Il. 9.632-636: . . . a man accepts ransom from the slayer of his brother, or for his dead son; and the slayer remains in his own land for the paying of a great price, and the kinsman’s heart and proud spirit are restrained by the taking of ransom. Ajax’s words would at first sight appear to make the question of ransom purely one for the avenger’s discretion, with flight as the only alternative, and no role for the courts. In their context, however, they are not a comprehensive statement of the law of homicide; they merely express the theoretical principle, as does the Edict of Telipinu, to which they bear a 50 2 Samuel 13 51 2 Sam 14:19-21, and see above.

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close similarity. And as in the Edict of Telipinu, they cover in practice only aggravated homicide. As Vatin points out, Ajax is using a fortiori reasoning.52 Ajax’s point is that even for the most serious of crimes, deliberate murder, ransom is an honorable alternative that is voluntarily accepted, and therefore Achilles should voluntarily accept ransom for Agamemnon’s offence, which was certainly less serious, albeit deliberate. If Ajax’s statement were to cover mitigated homicide, such as accidental death, it would lose all its impact. c) For aggravated homicide, the choice of revenge or ransom is purely in the hands of the avenger. The question of some limitation being imposed only applies if there is some gradation of homicide. That possibility has been raised with reference to the killer’s volition. The orthodox view, as expressed by Latte, is that there was no distinction in Homeric law between intent and accident in homicide. The principle was one of “Erfolgshaftung,” i.e., strict liability.53 Already Leist, however, argued that for involuntary homicide the relatives could be forced to accept poin,54 and Daube has more recently poured scorn on the theory of Erfolgshaftung as romantic mythology derived from a nineteenth-century belief in the steady progress of mankind and a notion of ancient heroes as elemental force of nature, hitting back without question.55 The controversy centers on the meaning of the term ouk ethéln, which occurs twice in the Homeric poems. In Il. 23.86-90, Patroclus recalls how as a boy he fled his homeland because in his folly he killed another boy over a game of dice, ouk ethéln, “not willingly,” but kholtheís, “in anger.” Since Patroclus was still obliged to flee, it has been argued that lack of intention played no role in his culpability.56 The situation is comparable rather to the scholarly problem from the Near Eastern law codes where one person kills another “not knowingly.” As we have seen, there must be two elements in mitigation, a threshold situation for which the killer was not entirely to blame, i.e., a

52 53 54 55 56

Vatin 1982: 276. Latte 1933: cols. 280-81. Leist 1884: 328-34. Daube 1969: 171-72. Latte 1933: cols. 280-81; Bonner and Smith 1930: 21; and Cantarella 1976: 33-34.

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fight or a quarrel in which he was provoked, and lack of intention to strike a fatal blow. Patroclus hints at both: he killed because of anger over some incident in the game, and while he certainly must have wished to strike the other boy, he did not wish his death, i.e., he did not intend the consequence of his blow. But again, as we have seen in the case of the widow of Tekoah, all this may be insufficient to escape liability. The burden is on the defendant to prove these mitigating circumstances. Patroclus’ case is therefore more than uncertain, and flight a sensible course. Nonetheless, Patroclus’ very mention of his lack of intention shows an awareness of the distinction between intended and unintended homicide and may have been designated to lessen his moral, if not his legal, culpability. It may well have been the grounds on which he was granted asylum and an honorable place at the court of Achilles’ father. Of course, one can also dismiss his statement as a mere personal remark without any legal implication, but it is curious that Patroclus should raise the very two factors that are regarded as mitigating in the Near Eastern legal tradition on homicide. In Od. 22.31, Odysseus, acting the part of a drunken beggar, takes his bow and, declaring that he will hit an unusual target, shoots and kills Antinous, leader of the Suitors. The latter assume that he killed ouk ethélonta, “not willingly.” Nonetheless, they declare that he will die for it (25-30). Again this example is taken to show that intention plays no legal role.57 Daube interprets the passage as meaning that they believed him to have acted not without intent but without set purpose. They do attribute intent to him, but intent that is the result, not of rational planning, but of a drunken fit, just as Patroclus’ killing was the result, in Daube’s view, of uncontrolled anger.58 While agreeing with Daube on the invalidity of the Erfolgshaftung theory, we cannot follow his interpretation in this particular instance. It places a heavy burden on the term “not willing” and attributes to the Suitors some very hair-splitting distinctions on the subject of volition. In their context, the words ouk ethélonta refer to the Suitors’ perception of the danger to themselves, or rather, lack of danger. They think that the stranger, being drunk did not intend the consequences of his act, and therefore the most they have to fear is another wild shot from him. Lack of 57 E.g., Gagarin 1981: 11. 58 Daube 1969: 171-72.

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intention is irrelevant to Odysseus’ liability for homicide, however, first because there are no other mitigating circumstances, such as provocation, and second because it was caused by inebriation, which serves to negate mitigation, as he has earlier been warned by the Suitors, citing the case of the drunken centaur who raped the bride at a wedding feast (21.228-310).59 Accordingly, they condemn him to death (22.27-30). In summary, neither of these two cases provides a firm basis for the Erfolgshaftung theory. In spite of their lack of volition, Patroclus is in danger of being held liable because of the burden of proof, and Odysseus is considered liable because of the absence of mitigating circumstances. The possibility of some gradation of homicide based on the mental condition of the offender therefore remains open.

The Trial Let us re-examine the terms used in lines 499-500. We would translate as literally as possible: The one was claiming (eúkheto) to pay (apondoûnai) all (pánta) expounding (piphaúskn) to the dmos; the other was refusing (anaíneto) to take (helésthai)60 anything. Note that we have not translated either of the aorist infinitives with the past tense, as is often done. As the aorist is an aspect, not a tense, it is

59 The connection is noted by Daube 1969: 171-72. It is disputed by Gagarin (1981: 12) on two grounds: (1) the incident of the drunken centaur is more than a hundred lines earlier; (2) it does not imply that the same degree of intentionality underlines a drunken rape and a drunken accident. But however many lines separate Odysseus’ act from the centaur’s, they are part of the same scene. Indeed, the mention of the centaur has no point, unless it is to lay the groundwork for Odysseus’ culpability for a drunken act. If inebriation goes to the question of mitigation rather than of intention, as we have argued, then any difference in intentionality between rape and homicide is irrelevant. 60 Muellner 1976: 102 suggests that helésthai cannot have the sense of “to accept.” But the verb is used in the Iliad in the sense of accepting something offered, as in 7.482 and 9.709:    —”they took the gift of sleep.”

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unnecessary to do so, unless one wishes to assign a chronological order to the actions. Muellner has pointed out that the verb eúkhomai, used only here in the Homeric corpus in a legal sense, has a direct parallel in what appears to be a record of litigation over land in a Linear B tablet from Pylos.61 Lines 5-6 of PY Ep 704 read: 62 Erita the priestess has and claims (e-u-ke-to-qe) to have etonijo land for the god, but the dmos says that she has a holding from the common land in usufruct. According to Muellner, the parallelism of eúkheto and phasí shows that the verb eúkhomai in a legal context must mean “to state, assert, claim.”63 We would add that since the facts are not in issue in this case (the priestess is expressly stated to be holding the land), her claim may rather be one of right than of fact. She claims the right to hold the land in question absolutely as a temple prebend rather than in usufruct. On the basis of this parallel, the killer in our Homeric passage is claiming the right to pay ransom (poin) in full (pánta). This cannot refer simply to any amount that the killer chooses to offer. The concept of a full payment assumes the possibility of a sum fixed by objective criteria, which would constitute the whole amount payable. Applying the Near Eastern evidence, we would expect: (a) that the ransom would be fixed by the court, in accordance with the objective criteria of traditional law; and (b) that the basis for such a claim by the killer would be that the case is one of mitigated homicide. If his claim is accepted, then the right to avenge will be subordinated to the payment of ransom, only becoming available again if the killer cannot or will not pay the amount so fixed. Our expectations are confirmed by the following phrase. The killer, in making his claim, is expounding (piphaúskn) his case to the dmos. This is 61 Muellner 1976: 102-104. 62 e-ri-ta i-je-re-ja e-ke e-u-ke-to-qe e-to-ni-jo e-ke-e te-o da-mo-de-mi pa-si ko-to-na-o ke-ke-me-na-o o-na-to e-ke-e. Edition in Bennett and Olivier 1973: 126. 63 Muellner 1976: 104. Muellner also prays in aid use of the verb in Homer for assertions of pedigree (e.g., Il. 14.113-114), rejecting as artificial Benveniste’s attempt (1969: 237, 240) to interpret such assertions as self-consecrations in the manner of Roman devotio.

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usually translated “the people,” identifying it with the rowdy mass of spectators gathered in the town square.64 But the latter are consistently referred to in this passage as laoí (479, 502). As we have seen, Muellner has identified the dmos here with the dmos of the Linear B texts, where besides meaning the common people it sometimes refers to a unit of local administration which holds and assigns common land.65 In the Pylos litigation the dmos would appear to have this role, and in a parallel record of the same case the term kotonooko (literally: “plotholder”) is substituted, referring to a body of local notables.66 We would therefore translate dmos in the Pylos document and dmos in the trial scene as “village” or “commune,” referring not to the population but to the community as a legal entity represented by a body of notables. The killer thus expounds his case to the “village,” represented by the college of elders who in lines 503-508 are called upon to give judgment in the case. The reason why the killer and not the other party is said to be arguing before this court is that the burden of proof is upon him to establish the existence of mitigating circumstances, as we have seen from our discussion of the Near Eastern sources. The other party, the avenger, has the dual right to ransom or revenge. By refusing to take ransom, he asserts that the case is one of aggravated homicide and that he therefore has a free choice between ransom and revenge, and he chooses the latter.67

64 Wolff in particular (1946: 41-42) constructs a scenario in which the people’s applause of each speech by an elder is decisive of the outcome. But this requires the people to listen in silence, which they are obviously not doing; they are cheering on the rival parties (not the judges!) and having to be held back by the heralds while the elders speak. 65 Muellner 1976: 102-104. 66 PY Eb 297: i-je-re-ja e-ke-qe e-u-ke-to-qe e-to-ni-jo e-ke-e te-o ko-to-no-o-ko-de koto-na-o ke-ke-me-na-o o-na-ta e-ke-e. Edition in Bennett and Oliver 1973: 94. See Lejeune 1965: 11-16. From PY Ep 301.2-4, Lejeune concludes that the college of notables was twelve in number. The term geronsi (“council of elders”?) also appears at Pylos (PY An 261). The relationship between the two bodies is not clear. 67 Cf. the Gibeonites in 2 Sam 21:4-6 who, when asked by king David what remedy he can offer them for the massacre perpetrated upon them by his predecessor king Saul, reject ransom and demand instead vicarious revenge: the execution of Saul’s seven sons.

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The dispute therefore is about what limit the court should impose on the right of revenge or ransom in order to ensure that its exercise will be appropriate to the gravity of the wrong. This is the archetypal role of a court, as we have seen from the Near Eastern law codes, where finding the appropriate limit is the epitome of legal wisdom. It is an ideal choice for representing a model lawsuit.68 Our interpretation has been arrived at by placing the trial scene in the context of our knowledge of other legal systems, Mycenaean and Near Eastern. The terms of the dispute can be seen to fit that context exactly. But our conclusions do not rest entirely upon analogy. On the contrary, the text itself states explicitly what we have implied. For the following line (501) reads: “They both wished to obtain from a judge69 a peîrar.” The term peîrar is usually translated here “judgment,” “decision,” or the like, but that is no more than a guess based on context, and an unlikely one, since in no other reference does peîrar have anything like this meaning.70 The term is a problematic one, it is true, but one meaning is

68 The Near Eastern idea that such limitation represents the triumph of civilization over chaos (i.e., unbridled revenge) is graphically reflected in the detail of the heralds holding back the noisy crowd, i.e., forming a boundary within which the elders can give their judgments in good order. Cf. the different descriptions of the opposing armies in Il. 3.1-9: the Trojans are a noisy rabble, clamoring like cranes, while Achaeans advance in disciplined silence. I am grateful to Professor J. Russo for drawing my attention to this passage. 69 ístr, literally “one who knows” (see Nagy 1990: 250-52, 258-59). Without entering into a discussion of the meaning of this difficult term, which would take us beyond the bounds of our topic, we regard as most plausible the view that the ístr was that one of the elders whose opinion was ultimately adopted as the judgment of the whole body, and who thereby gained the two talents of gold put up by the litigants as a court fee. See H. H. Pflüger 1942: 146-48. On this view, the ístr would naturally be the judge most knowledgeable of the traditional law. 70 Nothdurft (1978: 25-40) proposes a radical new interpretation: that peîrar refers to the means rather than the end. To turn this interpretation into “judgment” in the trial scene, however, Nothdurft is forced to supply an extra word (peîrar) díks (“means of achieving judgment”) and then assume that it had dropped out of the phrase at some earlier stage (1978: 33-34). More reasonable is Hommel’s translation (1969: 16): “Nun begehrten beide, vor dem (Rechts)-kundigen zu einem Ende (ihres Streits) zu gelangen,” although the result is a somewhat banal and unnecessary statement.

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undisputed, that of a “limit,” as in peírata gaís, “the limits of the earth.” 71 Thus both parties literally wished to obtain from the judge a limit.72

71 E.g., Od. 4.563. On etymological grounds, Heubeck (1972: 139-40) proposes a basic meaning of “(äusserstes) Ende, Grenze.” 72 It might be argued that the plaintiff sought the absence of any limit, but this is incorrect. The court’s judgment would set a limit on his rights by the very act of defining them; he wishes that limit to be revenge, not fixed ransom. His revenge would still be limited: to the culprit himself or perhaps a member of his family. It is worth noting here the difference between judicial revenge and revenge in war in the Iliad, where no limits apply. As Cantarella points out (1976: 18-20), the battles in the Iliad are presented as a series of related acts of revenge. Legitimate vengeance in these circumstances, however, was not confined to the original killer, but was satisfied by striking indiscriminately at all members of his group (e.g., Il. 14.449-474). See further the discussion of revenge in war and within the legal system in Westbrook 1988d: 9299.

13 Penelope’s Dowry and Odysseus’ Kingship Abstract A great deal of difficulty surrounds any attempt to reconstruct a legal system from the disjointed allusions to law within Homeric poetry. By understanding these allusions in the light of ancient Near Eastern legal traditions, however, a coherent system can be reconstructed. This study of Penelope’s dowry and its attendant arrangements presents a case in point. Moreoever, it demonstrates that a proper legal understanding of how a dowry functioned helps to explain certain actions on the part of Odysseus, his son, and Penelope’s subsequent suitors.


Introduction

T

he Homeric poems contain references to legal rules and practice but in the form of fragmentary, unconnected allusions. Attempts to recreate a system from these references alone are doomed to failure. They will inevitably create an imaginary legal universe, where literary topos is identified with legal rule, and legal institutions are artificial constructs. Fragmentary references can only be understood when placed in the context of a working legal system. In exposing the underlying principles that they represent, the proper context not only enables us to judge whether the visible fragments are internally consistent but also reveals the application of hitherto unrecognized rules in the narrative. The proper context, however, is lacking. There are virtually no contemporary sources of Greek law, at any time from the Mycenaean period, in which the poems are set, to the seventh century, when the process of composition is presumed by most scholars to be complete.
Originally published in Symposion 2001 (eds. R. W. Wallace and M. Gagarin; Wien: Österreichischen Akademie der Wissenschaften, 2005), 3-23. Used by permission.

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The nearest well-documented system is classical Athenian law. Scholars are understandably reluctant to force its sophisticated technicalities upon the very different society described in the Homeric poems. Instead, recourse is had to ethnographic data which, having no historical connection whatsoever, can only serve to support the feasibility of putative structures. It cannot serve as confirmation that imagined laws existed in reality. I propose as a more satisfactory substitute not a single system; rather, a whole legal tradition. The societies of the ancient Near East were diverse in language and culture, but they appear to some considerable extent to have shared a common legal tradition.1 The underlying structure of their legal systems was the same, while the content of the law drew upon a canon of received wisdom that had originated in Mesopotamia in the third millennium or earlier and had spread across the fertile crescent to Anatolia and the Mediterranean coast. The tradition was very tenacious, lasting well into the first millennium.2

1 There is no fixed criterion for determining what constitutes a “society.” If we separate Near Eastern sources by political units (i.e., by kingdom and reign, or even dynasty), then over the course of three thousand years the number runs into hundreds. At the other end of the scale, intelligible records are confined to no more than a dozen or so languages: Sumerian, Akkadian (which divides into Assyrian and Babylonian), Elamite, Persian, Hurrian, Hittite, Luwian, Urartian, Aramaic, Ugaritic, Phoenician, Hebrew, Egyptian. There was, however, no necessary correlation between society and language. A more practical, if rough, guide is by archives: the sources tend to cluster into archives covering not more than three generations. A few examples will illustrate the complexity of the situation. 1) Old Assyrian archives (18th century) come almost exclusively from Assyrian merchant colonies in Anatolia, mainly Kanesh. Written in Assyrian, they inform us of the community of expatriate merchants, of the local Anatolian kingdom (language unknown), and of the capital city, Assur. 2) The city of Alalakh on the Orontes in Syria has produced two archives, from the 18th and 15th centuries, with several layers of destruction in between. The earlier layer uses the Old Babylonian dialect and the later Middle Babylonian with an admixture of Hurrian, reflecting its position as a vassal of Mitanni. The native language, unrecovered except for isolated terms, was a West Semitic dialect. 3) The archives from Elephantine represent a Persian garrison town in 5th-century Egypt. They are the records of Egyptians, Arameans, Jews, Persians and sundry other ethnic groups, written in Aramaic and Demotic. 2 See Malul 1990; Muffs 1969; Westbrook 1990b, 1994e, and 2000b.

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The ancient Near Eastern legal tradition was thus contemporary with Homeric society, whichever period is taken as applicable, and in close geographical proximity. At all material times there were extensive contacts between the two areas and demonstrable cultural influences.3 I have argued elsewhere that those influences included elements of legal culture.4 When seen in the context of ancient Near Eastern law, Homeric law presents a coherent, viable system that fits into the mainstream tradition. The variants that it displays are no greater than those exhibited by any individual system within the ancient Near East. Furthermore, the tradition acts as a control for classical Athenian law, identifying elements that already existed in earlier periods. As an example, I propose to examine the case of Penelope’s dowry. Using the Near Eastern legal tradition and Athenian law as a framework, I hope to show the legal coherence of her dowry arrangements, their wider constitutional significance, and how they were used to subtle effect in the narrative. The results will be further evidence, I hope, that the widespread ancient Near Eastern legal tradition did not stop dead at the shores of the Eastern Mediterranean.

Marriage and Marital Property in the Ancient Near East One of the advantages of the huge amount of legal material available from the ancient Near East is that we can avoid reliance on isolated parallels. This survey, being concerned with a common tradition, is based either on rules that recur in more than one system or on principles or concepts that are illustrated by rules from different systems, even though individual solutions may vary and even conflict. Marriage, which created a relationship of status between husband and wife, was preceded by betrothal, a contract normally between the groom and the father of the bride. Betrothal could be sealed by a payment—the so-called “bride-price”—by the groom to the bride’s father. Marriage and purchase were in fact two distinct institutions, and the payment had nothing to do with a price. It would be better to refer to it as a betrothal 3 E.g., Burkert 1992 for the area of myth. 4 Westbrook 1992b. See also Westbrook 1988a, 1990b, 1999f; and Yaron 1974.

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payment, since it inaugurated a special state of betrothal.5 To avoid confusion, however, the conventional term will be retained here. The “brideprice” was not necessary, but it was desirable, because it secured for the groom an exclusive right to the bride. As far as outsiders were concerned they were already married, pending the groom’s exercise of his right to claim the bride from her father’s house.6 The various languages of the region all have a special technical term for bride-price, e.g., teratu (Akkadian), n í g . mí .ú s .s á (Sumerian), mhar (Hebrew, Aramaic), kussata (Hittite). Some languages (e.g., Hebrew, Ugaritic) also have a verbal form from the same root. The dowry was in essence a gift from the bride’s father to the bride, which could be enhanced by gifts from other sources. Economically, it represented her share of the inheritance, but legally it differed fundamentally from male inheritance. As in Athenian law (and exactly as in Od. 14.208-209), sons had a vested right to their father’s estate, which they divided by lot after his death, but a father was not obliged in law to provide his daughter with a dowry; it was theoretically a voluntary gift.7 The terminology reflects the distinction. Technical terms for dowry are derived from words for gift or in some cases are simply a word for gift, e.g., nudunnû, eriktu (Akkadian), sa g. rig 7 , níg. ba (Sumerian), iwaru (Hittite), illuîm (Hebrew), l (Ugaritic). Frequently, no special term at all is used, the context supplying the special purpose for the transfer of property. The dowry entered the husband’s house with the bride and was thus transferred to him. It disappeared into his assets for the duration of the marriage. The duality of the transfer is reflected in a slight ambiguity of language. Sometimes the father is said to give it to his daughter, the bride, who brings it with her to the husband’s house. At other times he is said to give it to the husband with his daughter.8 5 The legal principles are discussed in Westbrook 1988b: 53-60. 6 Called “inchoate marriage” by Driver and Miles 1952: 249-50. LE 26: “If a man brings the ‘bride-price’ for the daughter of a man and another abducts her and deflowers her without asking her father and mother, it is a capital offense—he shall die.” 7 See Kraus 1969; Westbrook 1994b: 273-75; cf. MacDowell 1978: 91-93. 8 Compare the following clauses: “All this is the dowry of A daughter of B, which her father B has given to her and caused to enter the house of C for his son D [groom]” (BE 6/1 84:32-39; edition in Westbrook 1988b: 113); “A has given to B [groom] the dowry of his daughter C with C . . .” (Nbn. 243:10-12; edition in Roth 1989: no. 12);

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Except for a small and significant part, to which I shall return, the husband had control and management of the dowry property. What the wife had was a right to restoration of the dowry on termination of the marriage. Her right was not to the return of specific items but to their full value. If she could be said to retain ownership in the dowry, it was only in the sense of a contingent ownership in a fund. If by the end of the marriage the husband had dissipated dowry assets, the shortfall had to be made good from his own property.9 If a wife survived her husband, the dowry served to provide for her during her widowhood. On her death, it would be inherited by her children and her children only. The sources emphasize that neither the husband, his family, nor his children by another marriage were entitled to inherit the dowry.10 If, on the other hand, the widow remarried, her children from both marriages were entitled to share after her death. In the meantime, the second husband controlled the dowry assets just like the first. It is important to note that if she predeceased her second husband, her children would have to wait until his death in order to inherit her dowry.11 The “bride-price” has no equivalent in Athenian law, but the contours of the law of dowry will be very familiar. The Athenian proix had the same legal basis and followed the same devolution.12 So also did the wife’s

9

10

11

12

“A [bride’s mother] has given as dowry to B [groom] torques and rings (worth) 20 shekels of silver belonging to her daughter C” (VAS 6 61:5-8; edition in Roth 1989: no. 8); “[Groom speaking:] ‘Your daughter A has brought into me in her hand . . .’” (Porten and Yardeni 1989: B2.6 [= Cowley 15], line 6). NBL 12: “A wife whose husband took her dowry and she has no sons or daughters and her husband dies: a dowry as much as the dowry shall be given to her from her husband’s estate.” LH 162: “If a man marries a wife and she does not provide him with children and the woman dies . . ., her husband shall have no claim to the woman’s dowry; her dowry belongs only to her father’s house.” Cf. LE 17-18; MAL A 27. MAL A 29: “If a woman enters her husband’s house, her dowry and whatever she brings from her father’s house, or her father-in-law gave her upon her entry, are reserved for her sons; her father-in-law’s sons have no claim.” LH 167: “If a man marries a wife and she bears him children and the woman dies, and after her death he marries a second woman and she bears children: after the father’s death, the sons shall not divide according to mothers; they shall take the dowries of their (respective) mothers and divide equally the property of the father’s house.” Harrison 1968: 46-49, 55-57.

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marital property at Gortyn.13 The most notable difference with Athens is that the ancient Near Eastern widow seems to have had somewhat more independence, becoming head of household if her children were still young, not necessarily being obliged to return to her father’s house (except in some cases where childless), and having control over her dowry and her own remarriage.14

Homeric Marital Property References to marital property in the Homeric poems fit neatly into the above pattern. The “bride-price,” which is designated by the term hedna (see below), is normally given by the groom to the bride’s father (Od. 8.318-319).15 Payment secures the bride against third parties (Od. 6.159; 15.16-18; 16.390-392; 21.160-162) and entitles the groom to claim the bride at the father-in-law’s house (Il. 22.471-472). It is not a necessary item; some marriages are said to be “without ‘bride-price’” (anaednon).16 13 III 17-20 (see n. 14 below); III 31-34: if a wife dies childless, (the husband) is to return her property to the relatives (epiballontes). 14 The position of the widow at Gortyn seems to have been closer to the Near Eastern model. According to III 17-20: if a man dies leaving children, if the wife so desires, she may marry, keeping her own property and whatever her husband may have given her. 15 In the case of Penelope it is unclear whether the recipient is herself, Telemachus, or her father and brothers, in the event that she returns to the family home. See Lacey 1968. 16 Lacey suggests that these were all uxorilocal marriages, “bride-price” applying only to virilocal marriages. The division of marriages into two rigid categories on the basis of a limited sample illustrates one of the problems that arise from creating a system out of the Homeric references alone: the danger of equating literary topos with legal category. The many references from the ancient Near East show that the connection between uxorilocal marriage and the absence of “bride-price” is legally speaking fortuitous. It is obviously more likely to occur in such a marriage, where the groom tends to be poorer and his father-in-law is more interested in his services. It is a favorite topos of heroic stories, but even there the absence of “bride-price” is more apparent than real. When Saul offers his daughter in marriage to David, he informs him: “the king has no desire for ‘bride-price’ (mhar) but for a hundred foreskins of the Philistines, to have revenge on the king’s enemies,” i.e., a deed of heroism (1 Sam 18:25). David obliges and duly takes up residence in Saul’s palace with his bride. Some years

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Dowry is not designated by a technical term; instead words for gift are used (meilia, doron), with the context revealing that the gift in question was a dowry, namely that the bride’s father is giving it to the groom. The father is said to give it either directly to the groom (Il. 6.191-193; Od. 7.311-315; cf. Hymn to Aphrodite 139-140) or indirectly through his daughter (Il. 9.147-148; 22.51), hence the epithet alochos poludoros for Penelope (Od. 24.294; and for Andromache: Il. 6.394). The dowry is subsumed into the husband’s assets and is used by him. A clear example is Priam’s decision to ransom two sons of his who have been captured: “We will certainly ransom them with bronze and gold, for there is much of that in my house; for many gifts did the old Altes, of glorious name, give to his daughter” (Il. 22.51). Priam’s policy is to limit the amount available for ransom to the value of the son’s mother’s dowry (a sensible approach, given the number of wives and sons that he has). The funds, however, are in his possession. The first person plural verb could refer to Priam and his wife jointly but could equally be unspecific or (the most likely hypothesis) refer to Priam and Hector, whom Priam is addressing at that moment. There is no evidence as to the devolution of the dowry after termination of the marriage.

Penelope and Marital Property There are two passages where the term hedna is used regarding Penelope, on the contingency of her returning to her father’s house and the latter giving her in marriage to one of the suitors. In Od. 1.276-278 (= 2.196-197) it is stated:

later, however, when he is embroiled in civil war with Saul’s son, he is able successfully to claim that the latter hand over to him “my wife . . . whom I betrothed for a hundred foreskins of the Philistines” (2 Sam 3:14). David’s heroic deed thus had the legal effect of a “bride-price.” Closer examination of the examples in Homer show that where the term “without ‘bride-price’” is used, there is in fact a quid pro quo: Othryoneus offers Priam military service in exchange for Cassandra (Il. 13.363-382), and Agamemnon makes his offer to Achilles in anticipation of the same (Il. 9.144148). Nor would the latter arrangement appear in any case to be uxorilocal.

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Writings of Westbrook, Vol. 1: The Shared Tradition Let her go back to the hall of her powerful father, and there they will prepare a wedding feast and make ready the gifts (    ) in their abundance, all that should go with a beloved daughter.17

According to Od. 2.52-54: They (the suitors) shrink from going to the house of her father, Icarius, that he may himself see to his daughter’s bride-gifts (eednosaito), and give her to whom he will. The possibility that in the context the term should be interpreted as dowry, or at least as a gift from the bride’s father to the groom (as Murray’s translation suggests), has led to a lively debate on the nature of marital gifts. According to Finley, hedna was a general term for gifts accompanying marriage in either direction. The system was one of gift-exchange, in which the groom’s gifts to the girl’s father were intended to provoke a counter-gift commensurate in value, together with the girl herself.18 Snodgrass rejects Finley’s schema, pointing out that there are no cases in Homer (with one dubious exception) of parity between the groom’s gifts and the bride’s father’s gifts that would suggest gift-exchange. Instead, there are at least two forms of marital gift, bride-price and dowry. Anthropological evidence adduced by Snodgrass shows that their coexistence in the same legal system is unlikely. His conclusion is that Homer does not present a coherent system but describes a mixture of practices, derived from a diversity of historical sources.19 Against Snodgrass, Morris argues that the marriage practices described by Homer are consistent, but he reaches this conclusion only by denying the existence of dowry altogether in Homeric society. In his analysis, hedna are in all cases gifts from the groom; dora are gifts exchanged in

17 Unless otherwise stated, the English translation of all passages cited from the Iliad and the Odyssey is that of Murray (revised by Wyatt and Dimock, respectively), Loeb Classical Library, 1995. 18 Finley 1955. 19 Snodgrass 1988.

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both directions, a distribution apparently found also among the Trobriand Islanders.20 From the Near Eastern perspective, a debate centered on reservations about the compatibility of “bride-price” and dowry is bemusing. A typical marriage involved both, not to mention the possibility of gifts from other relatives to the bride, from husband to wife, from groom to members of the bride’s family—even a settlement by the groom’s father on the groom.21 In marriage negotiations between the rulers of Egypt and Babylonia (14th century), for example, the Babylonian king shamelessly tries to bid up the “bride-price” for his daughter (“If during this summer, in the months of Tammuz or Ab, you send the gold I wrote you about, I will give you my daughter”), while the Pharaoh tries to shame his counterpart by suggesting that he has a mercenary attitude to marriage (“It is a fine thing that you give your daughters in order to acquire a nugget of gold from your neighbors!”). Nonetheless, when the marriage takes place, it is accompanied by a sumptuous dowry, not to mention further gifts from the Egyptian side. 22 There was also a non-binding custom whereby the bride’s father would return the “bride-price” to the groom as a supplement to the dowry.23 In assuming a contradiction, Finley and Snodgrass confuse the economic and legal aspects of marital gifts. The dowry is a share of the paternal estate and has essentially an economic function: its purpose is to 20 Morris 1986. It seems to me that this is an abuse of ethnographic material, pressed into service to support an artificial construct. Morris admits the existence of a trousseau, an archaic version of later pherne, but wrongly attributes it to Laothoe in Il. 22.51. An archaic form of pherne does in fact exist in the poems and is discussed below. 21 If the wife dies childless, dowry and “bride-price” are to be returned to source. The law codes even provide for the one sum to be set off against the other, e.g., LH 164: “If his father-in-law has not returned the ‘bride-price’ to him, he (the husband) shall deduct the value of her ‘bride-price’ from her dowry and return her dowry to her father’s house. For gifts from relatives, see Renger 1973. For gifts from the husband, see Ezekiel 16. For settlement on the groom, see NBL 8: “A man who gives his daughter to the son of a man and (the latter’s) father assigns and gives his son property in his tablet, and the father-in-law assigns the dowry of his daughter and they write tablets in mutual agreement, they shall not alter their tablets.” 22 EA 4:36-50; EA 1:61-62; EA 13, 14. Translations in Moran 1992. 23 E.g., CT 48 50:15-20: “A [bride’s father] has received 10 shekels of silver, her ‘brideprice,’ has kissed (it/her?) and bound it in the hem of his daughter B—it has (thus) been returned to C [groom]” (translation from Westbrook 1988b: 122).

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help set up a household for the new couple, to maintain the wife during widowhood, and to provide the issue of the marriage with an inheritance. The essential function of the “bride-price,” in contrast, is legal: its purpose is to secure the bride against the claims of outsiders. There is no reason for them to be equal in value or to be compared on that basis. If the “bride-price” has a specific legal function, then it is understandable that it would be described by a dedicated technical term. In the Homeric poems, the term hedna in all cases except the two passages under discussion unambiguously describes a payment from the suitor to the bride’s father.24 In the context of the Near Eastern parallels, this fact suggests that hedna is indeed a technical legal term, not a vague description of marital gifts going in either direction. In interpreting these two ambiguous passages, therefore, we agree with those scholars who regard hedna as a “bride-price” that Penelope’s father demanded for her rather than dowry that he gave with her.25 There is a further reason for rejecting the notion that Penelope’s father was about to dower her. The marriage in question was Penelope’s second, and she would already have a dowry from her first marriage. It might well have been acceptable for a widow (or her family) to demand a “brideprice” from her subsequent spouse(s),26 but it could not be expected of her family that they provide her new husband with what was in practice an inheritance share every time she remarried. Following both the Near Eastern and the later Athenian pattern,27 we would expect Penelope to take her dowry from her first marriage with her when she left the matrimonial home to enter her second marriage. Given Penelope’s high status and the fact that she is called poludoros, we may assume that she brought a substantial dowry into her marriage to Odysseus. We can immediately identify two items. In the ancient Near East, a small part of the dowry did not follow the normal path described above. Instead, the wife retained control of the 24 The term anaednos has the same function, indicating that the bride’s father foregoes payment of hedna from the suitor; see Finley 1955: 182. 25 Perysinakis 1991; Wagner-Hasel 1988. 26 The ancient Near Eastern sources provide no direct evidence on this point. At Elephantine the father of a lady named Miphtahiah receives a bride-price for what appears to be her second marriage. See Porten and Yardeni 1989: 15 ad B2.6. 27 See Harrison 1968: 56-57.

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property. By the same token, she bore the risk of it perishing, the husband or his heirs having no duty to reimburse her on termination of the marriage. In Rabbinic law it is called melog. The same term is found in Ugaritic in 13th century Syria (mlg) and in Akkadian at Nuzi, in eastern Mesopotamia, in the 15th century (mul gu).28 It is clearly also comparable to Athenian pherne. The latter, however, seems to have been regarded as something entirely separate from the dowry, a trousseau of purely personal items.29 In the Near East, it was regarded as a component of the dowry, although sometimes listed separately, and devolved together with the rest of the dowry. Furthermore, it could include any property, even land, although most commonly it consisted of slaves. The personal slaves Dolius and the daughter of Actor, who, we are told, were given to Penelope by her father before she entered Odysseus’ house, fit into this category. Penelope’s gift of a brooch to Odysseus before his departure may adumbrate further personal wealth from the same source (Od. 19.256-257). At the same time, these items could only account for a fraction of her dowry. The content of the rest of the dowry is bound to remain speculative, in the absence of direct evidence. I suggest, however, that from the logic of its legal context we may deduce the presence of one very substantial asset. A slight hint emerges from the epithet given to Icarius. Although a shadowy figure, who does not appear to be present in Ithaca nor to have any interest in his grandson’s welfare, he is described as her greatly powerful father (Od. 1.276: patros mega dunamenoio). I would postulate that the power in question was political and that the primary asset of the dowry that Icarius gave Odysseus through his daughter Penelope was the kingship of Ithaca.

Odysseus’ Kingship The nature of Odysseus’ rule over Ithaca has long been regarded as problematic. He is called a king (basileus) and his son Telemachus is acknowledged to have an hereditary right to the throne (Od. 1.386-387). Yet even when Odysseus is believed to be dead, Telemachus is unable to 28 See Levine 1968; Westbrook 1994b: 274-75. 29 Harrison 1968: 46-47; cf. Finley 1955: 183.

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assume power. The position of Laertes is even stranger. It is not clear why and when he relinquished the throne to Odysseus, nor why he should not return to it in Odysseus’ absence. Notwithstanding the emphasis on his old age, he is by no means incompetent to rule: he still manages the estate (Od. 16.138-145) and he would be able to address the assembly (Od. 4.739741). Odysseus’ absence has left a power vacuum in Ithaca. In the words of Laertes: “wanton and reckless men now possess it” (Od. 24.282). These are the suitors, whose behavior Eurymachus in a key passage reveals to have had ulterior motives: But he now lies dead who was to blame for everything, namely Antinous; for it was he who set on foot these deeds, not so much through desire or need of the marriage, but with another purpose, that in the land of . . . Ithaca he might be king (basileuoi), and might lie in wait for your son and kill him (Od. 22.48-53). Finley described the situation as follows: “The king is dead! The struggle for the throne is open! Not, however, by straight violence; the suitors give Penelope the right to choose Odysseus’ successor by choosing her spouse.”30 Therein lies the difficulty, not in the suitors’ goal, but in the curious means that they adopt to achieve it. Finley found it strange that such a power should have been placed in the hands of a woman. There is nothing about Penelope, he noted, that could have won her this right as a personal triumph. In the absence of a rational explanation, Finley concluded that Homer is neither clear nor quite consistent about the legal picture.31 Halverson, on the other hand, denies that Odysseus had the functions of a king at all. In his view there was no throne, no office of king, indeed no real Ithacan state. It is true that Odysseus is called basileus, but “king” is a mistranslation. Odysseus was the leading man of the region, but his position was one of status, not an office, a position based above all on wealth. As others in Ithaca are called basileus (in particular two of the suitors, Antinous and Eurymachus), he was merely the greatest basileus of 30 Finley 1979: 97. 31 Finley 1979: 101-102.

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the area. There was therefore no succession struggle; the suitors were contending for Penelope herself and nothing more. At most, acquisition of Odysseus’ wife (and his wealth) would give the successful suitor something of Odysseus’ prestige and Eurymachus’ statement has to be interpreted in this light.32 Before considering these opposing positions, some remarks are in order on the nature of Homeric kingship, against the Near Eastern background. First, monarchy was the standard form of government throughout the ancient Near East, including Anatolia and the eastern Mediterranean. Oligarchies did exist but were rare and were generally regarded as a more primitive form of government.33 Secondly, the same term was applied to any political ruler from a petty chieftain to an emperor. 34 Thirdly, that term still applied to a ruler when he himself was subordinate to another ruler. In a world of empires based often on loose vassalage or spheres of influence, there existed political hierarchies of kings.35 As the dispatch of a diplomat from Mari in the 18th century cynically reports:36 32 Halverson 1986; cf. Drews 1983: 129. 33 For example, among the semi-nomadic Kaskean peoples of Anatolia, whom the Hittites noted as not having kingship (Goetze 1967: 88.). For the biblical narrator, the premonarchic period was a time of anarchy, when “each man did what was right in his own eyes” (Judg 21:25). Oligarchy was characteristic of local, rather than central, government. 34 The earliest term, in Sumerian, is LUGAL, literally “big man.” It continues to be used as a logogram in later cuneiform texts in other languages, e.g., Akkadian, Hittite. As an alternative, the logogram LÚ “man” is sometimes used, in the sense of head of household, the concept of king being of a householder writ large (e.g., Hammurabi is called “the man of Babylon”). The Akkadian term is arru, Hittite hassu, West Semitic mlk, all explicitly made equivalent in lexical lists. In Old Babylonian legal documents, LUGAL is sometimes used as the logogram for “owner” (Akkadian b lu). The Akkadian term arru, however, is never used to mean private owner. 35 A clear terminological distinction is made between king and mayor (Akkadian rabi nu, azannu), who was an official within the administrative hierarchy with a limited term of office, albeit head of the local council. The distinction is blurred in a significant manner in the Amarna Letters (14th century), in correspondence between the Egyptian ruler and his vassals, the petty kings of Syria-Palestine. He refers to them as kings, while they often refer to themselves as his mayors (azannu), in an attempt to suggest that they are a part of the internal Egyptian administration, which is patently not the case. 36 Dossin 1938: 117.

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Writings of Westbrook, Vol. 1: The Shared Tradition There is no king who is powerful by himself: ten to fifteen kings follow Hammurabi, the man of Babylon; as many follow Rim-Sin, the man of Larsa; as many follow Ibal-pi-el, the man of Eshnunna; as many Amut-pi-el, the man of Qatna; and twenty kings follow Yarim-Lim, the man of Yamhad.

Thus there is no problem in the existence of other kings (basileis) in Ithaca or in two of the suitors, Antinous and Eurymachus, being called kings. They could still be subordinate to king Odysseus.37 Indeed, a hierarchical structure is the only possible explanation of Eurymachus’ claim that Antinous was scheming to become basileus, when both Antinous and himself already have that title (22.48-53; 18.64-65). A relationship of overlord and vassal also explains how the remote but powerful Icarius could have had Ithaca, together with its kings, in his gift.38 Homeric kingship is conceived of as monarchy: the incumbent rules alone, not as part of an oligarchy, and permanently, not for a limited term of office.39 His function as a war leader is emphasized, of course, but he also has peacetime functions, which are listed in Agamemnon’s offer of territory to Achilles: And seven well-peopled cities will I give him . . ., and in them dwell men rich in flocks and rich in cattle, men who will honor him with gifts as though he were a god, and beneath his scepter will bring his ordinances to prosperous fulfillment (Il. 9.149-156).

37 The poem ends with a solemn oath between the suitors’ relatives and Odysseus confirming Odysseus as king for ever (24.482-486, 546). This is the typical pattern of a vassal treaty from the ancient Near East. See e.g., Parpola and Watanabe 1988: passim. 38 The Odyssey gives no other clues as to what the contemporary audience knew of Icarius. He was certainly not an invention of the poem but must already have existed independently in myth. Later legends about him, which connect him with Sparta or Acarnia, are unreliable. Of the many children that they attribute to him, only Penelope is mentioned in the Odyssey, while the later legends fail to include Penelope’s sister, Iphthime, who is mentioned in the poem (4.797). 39 Agamemnon’s leadership of the Trojan expedition is not relevant, being an ad hoc arrangement necessarily limited in duration and without territory. Agamemnon was, of course, a king in his own right, with his own kingdom.

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Behind the poetic hyperbole lie two very prosaic functions of government: the receipt of revenues and the administration of justice. The same two functions are attributed to Odysseus: in 2.230-234 we are informed that he did justice as a sceptered king, and in 23.354-30 he looks forward after his restoration to receiving revenues from the Achaeans. Odysseus’ kingship may have been modest, but he had real political authority. The question remains whether Odysseus’ kingship is the true target of the suitors’ machinations. Halverson argues that, notwithstanding Eurymachus’ statement, the suitors cannot be after the kingship, since (a) they contemplate dividing Odysseus’ oikos among all 108 of them, and (b) Penelope’s marriage entails her departure from the house and thus her separation from Odysseus’ estate.40 Both arguments confuse personal property, Odysseus’ oikos, with political privileges, Odysseus’ kingship. Telemachus expressly distinguishes between them: It is no bad thing to be king (basileuemen). Straightway one’s house grows rich and oneself is held in greater honor. However, there are other kings of the Achaeans in plenty in seagirt Ithaca, both young and old. One of these, it may chance, will have this honor, since noble Odysseus is dead. But I will be lord (anax) of our own house and of the slaves that noble Odysseus plundered for me (Od. 1.392-398). Eurymachus makes the same distinction: Telemachus, this matter surely lies on the knees of the gods, who of the Achaeans shall be king (basileusei) in seagirt Ithaca; but as for your possessions (ktemata), keep them yourself, and be lord (anassois) in your own house (Od. 1.400-402). In the same way, when Odysseus in Hades asks after his property, the answer he receives distinguishes between his lands (temenea), which Telemachus holds unchallenged, and his geras, which no one has (Od. 11.174-185). Geras in Homer is an entitlement: a benefit received as one’s due either by way of reward for services rendered or by reason of one’s 40 Halverson 1986: 122-23.

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position or status. The distinction is thrown into relief by Achilles’ bitter criticism of Agamemnon (Il. 1.158-168). Whenever the Achaeans sack a city, Achilles receives as a reward for fighting in the battle a small share of the booty, whereas Agamemnon receives a much larger share, simply by reason of being the leader of the expedition. Both shares are called geras. Other examples of a reward are the command of the Trojan armies, which Achilles mockingly suggests that Aeneas hopes to receive from Priam in return for slaying him (Il. 20.178-183), and the payment expected by a bath attendant (Od. 20.296-298). Entitlements arising from status or office are, for example, offerings to the gods (Il. 4.49) or the portion of meat due to a king (Od. 4.65-66). When Odysseus wishes for the nobles dining at Alcinous’ court that each may hand down to his children his property (ktemata) and the geras that the people have given him (Od. 7.149-150), the former must refer to their personal estates and the latter to the feudal dues that they receive by virtue of their status. Accordingly, I interpret the geras in our passage simply as Odysseus’ royal revenues.41 He had expected Laertes and Telemachus to receive them on his behalf, but evidently they have been in abeyance since his departure. The fate of the kingship is not therefore dependent upon the fate of Odysseus’ personal estate. Failure to obtain Odysseus’ personal estate would not prevent a suitor from exercising kingship from his own estate. Nevertheless, if the kingship were heritable in the same way as the oikos, we would expect whoever acquires Odysseus’ oikos at the same time to acquire his kingship. Marriage to Penelope would be an irrelevancy. As Halverson points out, a departing widow would not take with her her late husband’s estate, to which she had no inheritance claim.42 She would, however, take with her her dowry. For this reason I consider that the dowry, rather than the line of male succession, was the source of Odysseus’ kingship. The transfer of political power through the medium of a dowry is attested both in ancient Near Eastern and Homeric sources. The Bible

41 Wagner-Hasel similarly interprets geras in this context as a material privilege, the right to receive honorific gifts and to exploit labor for work on the temenos, like the time of which Bellerophon received a share (1988: 54-55). See below for her reasons for drawing this analogy. 42 Halverson 1986: 122.

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contains a striking example: in 1 Kgs 9:16 we are told that when king Solomon married an Egyptian princess, the Pharaoh captured the city of Gezer and gave it as a dowry to his daughter. In the same way, Agamemnon offers seven cities as the main part of a munificent dowry that is to accompany whichever of his three daughters Achilles chooses to take in marriage (Il. 9.147-156).43 A slightly different but equally cogent example is where Bellerophon marries the daughter of the Lycian king, who shares half the time of his kingship with him (Il. 6.191-194). Time cannot be honor in the abstract here; as Wagner-Hasel points out, it must refer to material privileges. The offer in this case is not separate territory, but coregency.44

The Devolution of Penelope’s Dowry In both ancient Near Eastern sources and later Athenian law, we have seen the same general pattern of devolution of a dowry. It is subsumed into the husband’s assets; it resurfaces on his death; if the widow remarries the process is repeated; on the wife’s death (or her husband’s, if later) it is inherited by her children from both marriages. If we place Odysseus’ kingship in the context of that pattern, a coherent picture emerges of the events on Ithaca and the actions and motivations of the principal protagonists. The first question to be resolved is the curious position of Odysseus’ father and son, neither of whom seems able to exercise kingship in his absence. Finkelberg explains their lack of a role—and the dependence of the kingship on marriage to Penelope—by positing an ancient tradition of dynastic succession through the female line, from mother to daughter. In each generation the only way a man can become king is by marrying the incumbent queen’s daughter. The incumbent king’s son can never qualify as his father’s successor for reasons of incest. This would disqualify both 43 Murray’s translation (see n. 17 above)—“And seven cities will I give him”—might give the impression that this was a separate gift offered directly to Achilles, but there is in fact no (dative) pronoun in the Greek. The passage immediately follows (linked by de, not kai) the offer of dowry at large (lines 147-148). Of course, the dowry will pass into Achilles’ possession on marriage. 44 Wagner-Hasel 1988: 54-55.

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Laertes and Telemachus.45 Unfortunately, Finkelberg’s logic is not supported by the text, which explicitly concedes to Telemachus at least a hereditary right to the kingship (Od. 1.386-387). There is in any case no need to presume the existence, or survival, of some anomalous, otherwise unattested system of succession alongside agnatic inheritance. The attested rules of dowry permit a different approach, which differentiates between the status of Laertes and that of Telemachus.46 If Odysseus had received the kingship of Ithaca as dowry from Penelope’s father, then the inaction of Laertes is simply explained. Laertes cannot exercise kingship. He has no claim to reoccupy the throne, because he never was king. Laertes states that he once acted as lord (anasson) of the Cephallenians (Od. 24.375-378), but it is clear that he was only a military commander on that occasion.47 Anax is a more flexible term than basileus, covering everything from a king to the owner of a dog (Od. 10.216, cf. 9.440). Elsewhere, Laertes is referred to as having been one of the elders (Od. 21.20), which would exclude a higher office. Laertes was thus a military commander and a high-ranking member of society, but not a king. There are many references to him being wealthy (Od. 1.430; 15.483; 24.137; 24.206-207). His son Odysseus was also a military commander and gained great wealth in terms of herds of animals (Od. 14.96-108). Part of his wealth derived from booty, as Odysseus himself states: “Thus my house (oikos) at once grew rich” (Od. 14.230-234). Telemachus refers to the slaves that Odysseus plundered for him (Od. 1.398). The potential sources for the rest of Odysseus’ personal property were capitalized revenues from his kingship and his father’s estate. Since Laertes appears to have only one farm remaining from his great wealth (Od. 24.206-207), it is reasonable to presume that he had transferred the 45 Finkelberg 1991: 307. 46 Postulating the remnants of an archaic matrilineal succession creates almost as many problems as it resolves. Finkelberg constructs a highly complex schema for heroic sources outside of Homer, involving a kingship by marriage rotating among patrilineal clans. Discussion of her system is beyond the scope of this article, but it might be worth investigating whether dowry could provide a solution to some of the cases she presents. 47 Cf. Il. 20.180-182: Achilles mocks Aeneas for hoping that by killing Achilles he will become anax of the Trojans: Priam will never grant him that privilege (geras), since the latter has sons and is not stupid. See also Wender 1978: 53-54.

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residue to his son inter vivos (cf. Od. 24.337-344).48 We are informed that Laertes was still overseeing the work on Odysseus’ farmland in his absence (Od. 16.138-145), but apparently he had left the house to Penelope’s management while Telemachus was still a child. The role of Telemachus is more complex. Initially, his age holds the key to his position. Homeric kingship was based upon two conditions: strength and legitimacy. The former is exemplified by military leadership, often, as Finley points out, associated with the term iphi (“by force”).49 The second derives from rightful succession, symbolized by the scepter.50 Odysseus had fulfilled the first condition by being a hero and military leader and the second from possession of his wife’s dowry as husband and head of household.51 Telemachus fulfilled the condition of legitimacy, as Antinous expressly acknowledges: “which thing (kingship) is by birth your heritage (patroion)” (Od. 1.386-387). Use of the term patroion might suggest that it was inherited from his father, but the term is used in the Odyssey in a general sense of property to which one is entitled (and may pass on to one’s own issue), not in the strict sense of an inheritance from the father, as opposed to one from the mother. Od. 17.79-80 shows that it can include property acquired other than by inheritance, i.e., the gifts that Telemachus received from Menelaus. As will be seen below, a better explanation of the unfolding events is legitimacy based on Telemachus being heir to the kingship through his mother Penelope. Nonetheless, being a child, Telemachus could not yet fulfill the other condition, however legitimate his claim to the throne.

48 This is a well-known procedure in the ancient Near East, if rare, for obvious practical reasons. One has only to think of the case of the Prodigal Son in the New Testament. More frequent is the assignment of an irrevocably fixed inheritance share, with actual possession postponed until after the testator’s death. 49 Finley 1979: 96. 50 Cf. Agammemnon, Il. 2.100-108; Achilles, Il. 9.155-156. 51 In the false autobiography he gives to Eumaeus, Odysseus hints at his true situation: his own ancestry, not being the direct line of succession, got him only a small portion of land and a dwelling. “But I took to me a wife from a house that had wide possessions, winning her by my valor: for I was no weakling, nor a coward in battle” (Od. 14.199-212). At the end of the poem, Zeus reestablishes Odysseus’ kingship on a new basis: an oath of loyalty sworn to him by the nobles (Od. 24.482-486, 546-547). This constitutional practice also has strong ancient Near Eastern parallels: see n. 35 above.

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In Odysseus’ absence, any one of the suitors might be able to seize the throne by force, but he would then be faced with 107 powerful opponents, each with an equal claim. To settle the matter among themselves, the suitors had to resolve the question of legitimacy. Their plan was as follows. Telemachus was heir to Odysseus’ personal fortune and to the kingship through his mother, Penelope. He was, however, still a child. If a suitor married Penelope, he would become head of that household and would be entitled to control of her dowry, i.e., the kingship. Penelope’s dowry was in theory heritable by her heirs, namely Telemachus and any issue of her second marriage with the successful suitor, but only on the death of the second husband (not of Penelope if she predeceased him). Furthermore, unlike an ordinary estate, kingship was indivisible—only one son could inherit it.52 Consequently, the suitor who married Penelope would have a good chance of excluding Telemachus in his own lifetime and thereafter in favor of his own son. Telemachus would inherit only his father’s personal assets. This is the suitors’ plan—summarized by Telemachus himself when he wryly notes that the suitors are eager, and Eurymachus most of all, to marry Penelope and so acquire the geras of Odysseus (Od. 15.518-522). Wagner-Hasel notes the importance of this passage in showing that the transfer of geras must involve the female line. She considers, however, only two possibilities. The first is that it was inheritable through the female line, which she rightly rejects. The second is that Odysseus’ marriage must have been uxorilocal, as in the case of Bellerophon, creating a quasifamilial relationship that enabled Odysseus to share in the privileges of the host household.53 There is no indication whatsoever that Odysseus’ marriage was uxorilocal nor, in my view, would it make the slightest difference if it were. Bellerophon was not absorbed into the privileges of his father-in-law’s household in some mysterious way; he was assigned a 52 The co-regency of Bellerophon and his father-in-law is an exception made possible by their belonging to different generations. Bellerophon will ultimately succeed to the old king’s throne anyway. Telemachus and the suitors, in spite of differences in age, belong to the same generation. They can only be rivals. In the ancient Near East, coregency is not attested, except possibly between Amenhotep III and Amenhotep IV (Akhenaten), i.e., father and son. Division between brothers meant division of the territory into two kingdoms. 53 Wagner-Hasel 1988: 56-58.

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discrete share, exactly in the manner of a dowry. A fortiori Odysseus on Ithaca, his homeland. When the poem opens, the plan is in disarray. The suitors have two problems. First, Penelope by her deception over Laertes’ shroud has successfully stalled them for three years. The suitors are attempting to counter her delaying tactics by devouring her son’s inheritance—Odysseus’ personal estate—thereby forcing her hand. Secondly, Telemachus has reached manhood. He asserts himself before the suitors, ostensibly about their depredation of his personal estate, but all understand the implications for the kingship, hence Antinous’ furious reaction: May the son of Cronos never make you king in seagirt Ithaca, which thing is by birth your heritage (Od. 1.386-387). Antinous makes clear that Telemachus lacks the necessary strength for kingship, at which point Telemachus retreats, ceding his right to the kingship and asserting his claim only to the paternal estate (Od. 1.392-398). Telemachus’ concession, however, turns out to lack credibility. For even if he excludes himself from the kingship, he remains able and willing to bar others from it, as long as Penelope refuses to marry and he allows her to stay in the house in which he is now head of household. The suitors’ new tactic is therefore to separate Penelope from Telemachus. She must be persuaded to leave his house, taking her dowry, the kingship, with her. Penelope, however, refuses to leave, a right accorded to a woman in her situation by both Near Eastern and Athenian law.54 Telemachus, for his part, refuses to send her away. His excuse is that he would suffer a penalty payable to Icarius, divine wrath, and general censure, if he were to send her away against her will (Od. 2.132-137).55 From the suitors’ viewpoint, it 54 MacDowell 1978: 88-89; LH 172: “If her sons harass her (the widow) to make her leave the house, the judges shall investigate her case and impose a penalty on the sons; the woman shall not leave her husband’s house.” 55 As Wagner-Hasel points out, the sum payable is a penalty, not return of the dowry (1988: 45). The dowry would be returnable even if she left of her own free will. In LH 172 (see n. 54 above) the court imposes a penalty on sons who try to drive out their widowed mother; if she leaves of her own accord, however, she takes only her dowry with her.

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looks like collusion between mother and son. For their mutual refusal once more gains time, which Telemachus could use to garner military support in order to end the occupation of his house.56 Such is the state of affairs when Odysseus makes inquiry of his mother in Hades (Od. 11.174-196). While purporting to ask about each of his family in turn—his mother, Laertes, Telemachus, and Penelope—Odysseus alludes to the political situation in Ithaca. He first posits two alternative scenarios: a) His geras (which I have interpreted as his royal right to revenues) is still with Laertes and Telemachus. Their joint role does not presume political power; quite the contrary. The two together can only be acting as his representatives to receive or collect the revenues due, on the basis that his absence is temporary.57 They would not be able to perform the other main peacetime role of a king—dispensing justice—on his behalf. b) A stranger has his geras, because he has been given up for dead. Odysseus does not explain how a stranger, not acting as his representative, could have access to the royal revenues, without usurping his throne or Telemachus’ right to it. The process that he assumes, however, emerges from the second set of alternatives that he posits. Ostensibly concerning Penelope’s marriage, they might be taken as regarding her personal status alone. In my view, however, they merely repeat the first set of alternatives as to the political situation, from the point of view of Penelope. Odysseus posits that: i) Penelope remains head of household in his absence, and guardian of Telemachus. The assumption is that Odysseus’ return is expected and the implication is that his throne is safe. 56 He has two potential sources of support against the nobles: from the populace and from abroad (Od. 2.60-79, 314-317). His first attempt to garner support in the assembly is a failure—he does not even get a ship and crew in order to seek news of his father: Od. 2.1-257. Nonetheless, the threat to the suitors remains, particularly when they learn that he has assembled a crew after all. 57 Collecting debts for the government may have been a typical task allotted to a callow youth on his way to manhood: cf. Odysseus’ mission in Od. 21.16-21.

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ii) Penelope has remarried. The new spouse would become head of household and thus be entitled to the royal revenues, through her dowry. Telemachus’ ultimate right to the throne would not necessarily be excluded, because he is still Penelope’s first heir. Odysseus’ questions thus reveal a naive optimism about the constitutional machinery of Ithaca. He supposes that Penelope’s second husband will play the role of regent accorded to him by possession of her dowry, taking its income without prejudice to Telemachus’ prospects of succession. He could not be expected to guess that a far uglier situation has developed, an oligarchic conspiracy to usurp the throne that will give the usurper the power to exclude Telemachus altogether. Nor does his mother’s answer tell him the full truth, although it drops strong hints that all is not well. His mother answers his questions chiastically, dealing with each member of the family in turn: Penelope, Telemachus, Laertes, his mother. She reveals that: a) Penelope remains loyal to him and unmarried. This good news should mean that his throne is safe. b) No one has his geras. Here is an unexpected turn of events which hints at anarchy. c) Penelope is no longer head of household, because Telemachus has reached manhood. He holds Odysseus’ estate (temenea) unchallenged (hekelos), which is strictly speaking the truth, since the suitors have publicly conceded his right to inherit Odysseus’ personal property, while consuming his inheritance. It implies that he is not so secure elsewhere, in particular in the matter of geras. d) Laertes has withdrawn from public life altogether. Faced with this impasse, the suitors decide once more to change their tactics. With some hesitation, they agree upon a more drastic step—the assassination of Telemachus. Although an unlawful act, it will not delegitimize their bid for the throne, since they regard legitimacy as a matter between themselves, not relevant vis-à-vis an outsider to their

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group.58 Their first attempt proves unsuccessful, but it achieves the desired result. Penelope finally gives in to their demands and agrees in principle to marry one of them. Her motive is to save Telemachus’ life, by removing him as a bar and potential rival for the kingship.59

Summary Odysseus’ kingship is mentioned explicitly only twice in the poem but in a way that frames the whole narrative of events in Ithaca. At the beginning, Telemachus’ challenge to the suitors is interpreted as a bid for the kingship, and at the end, Eurymachus, on the point of death, reveals that marriage to Penelope was really a tactic to gain the kingship. In between, there is an indirect allusion when Odysseus inquires whether Laertes and Telemachus have his geras, which we have interpreted as royal revenues, and is informed that no one has them. Telemachus, however, reveals his awareness of the suitors’ plan when he states that Eurymachus is the most eager to marry his mother and to have the geras of Odysseus (Od. 15.518522).60 Otherwise, the issue of kingship is not raised. The protagonists give the impression that the suit is entirely about the charms of Penelope. Nonetheless, it is my view that kingship was the hidden agenda behind the struggle for Penelope, which remains the underlying, unspoken assumption

58 For this reason also they can contemplate the illegal act of dividing the dead Telemachus’ estate among themselves or awarding his house to the winner (by an ironic reversal in one version, as a dowry for Penelope: Od. 2.335-336). Nonetheless, some have scruples about killing a legitimate heir to the throne (Od. 16.400-401). There is also the fear that if Telemachus tells the assembly of the failed first attempt, he will be able to stir the people to act against them (16.371-386), thus fulfilling the condition of strength that earlier he had failed to meet. Eurymachus falsely denies Penelope’s accusations (16.434-447). 59 Penelope engages in one final ruse: to recover some of the losses to Odysseus’ personal wealth by beguiling precious gifts from the suitors. It is for this reason that Odysseus, observing her incognito, approves of her action (Od. 18.281-283). 60 Ironically, Eurymachus is the only suitor to enjoy any of Penelope’s dowry, but it is the wrong part. He seduces Penelope’s maid, Melantho, the daughter of her personal slave, Dolius (Od. 18.320-325).

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of all until Eurymachus finally blurts it out.61 The reason is that the kingship of Ithaca was not a direct, automatic consequence of marrying Penelope. Rather, marriage was an essential pre-condition, a gateway to legitimacy that would enable a powerful noble to gain the acceptance of his fellow nobles and to push aside the legitimate but impotent heir to the throne.62 The rules of dowry were well understood by Homer’s contemporary audience; there was no need to spell out the implications. Devolution by dowry, however, was less direct and less certain than normal agnatic inheritance. Its vagaries provided convolutions for the plot, opportunities for moves and countermoves that added to its dramatic tension.

61 It is noteworthy that Penelope’s suitors are frequently described as the suitors “of the glorious queen” (agakleites basileies). 62 The order of events in Eurymachus’ accusation of Antinous is significant: “that he might rule as king (basileuoi), yet might lie in wait for your son and kill him” (Od. 22.52-53). Interestingly, Athene urges on Telemachus a similar sequence: if his father is dead, he should marry off his mother and then kill the suitors (1.289-296).

14 The Coherence of the Lex Aquilia Abstract A longstanding crux among legal historians has been the thematic relationship between Chapters I, II, and III of the Lex Aquilia. By analyzing the Lex Aquilia against the background of ancient Near Eastern law codes, this article argues that its chapters follow a standard organizational technique found in these codes. Further, the chapters are structured around a single theme: points in time upon which assessments of damages can be based. It was only later that the Lex Aquilia took on the aura of fundamental law on liability for wrongful damage.

Introduction

W

hen in 1816 Niebuhr’s discovery of the Gaius palimpsest also brought to light the missing second chapter of the Lex Aquilia, the newly revealed text should have laid to rest centuries of speculation and argument.1 It did not. For, contrary to all expectations, the second chapter as summarized by Gaius did not form a bridge between the killing of Chapter I and the wounding of Chapter III; it dealt with a totally unrelated topic, the fraudulent adstipulator.2

* Originally published in Revue Internationale des Droits de l’Antiquité 42 (1995): 43771. Used by permission. 1 An earlier version of this paper was presented in Oxford to the 1993 meeting of the Société Internationale de l’Histoire des Droits de l’Antiquité (SIHDA). It was read in manuscript by Professor P. Birks and Dr. A. Wygant, for whose comments and criticisms I am grateful. Responsibility for the content rests as usual with the author. 2 For a review of earlier theories as to the content of Chapter II, see Cannata 1994: 15152.

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Speculation as to the relationship between the three parts of this law has therefore continued. According to Daube, their order is the result of an historical accident.3 The law originally consisted of the first two chapters only, on different topics. When the third was added to supplement the first, the text of the existing law was already too familiar and too fixed, in inscription or in people’s minds, for the new chapter to be inserted between its members, and it was therefore tacked on the end. Daube cannot adduce examples of this process, although he applies his reasoning elsewhere, to explain the apparently curious order of the laws in a number of biblical passages.4 In fact, there exists one example not mentioned by Daube which would seem to support the feasibility of his hypothesis. In the Great Code of Gortyn, the provisions are organized by topic, but at the end there are two sets of supplementary provisions, the first being independent and the second relating to various rules already formulated in the main body of the text.5 The reason for this order would appear obvious: the Code being inscribed on a stone wall, it was not physically possible to insert later provisions in their logical place among the earlier ones. The supplementary provisions, however, are separated from their earlier counterparts by a great deal of text; the third chapter of the Lex Aquilia by but a single short provision. A change of order would not therefore meet any comparable practical obstacle. Daube surmises that the first two paragraphs constituted only a small fraction of the earlier statute from which they were taken to form the present version through the addition of a third.6 In those circumstances, however, the problem of rearranging an existing text carved on stone no longer applies. The underlying difficulty with Daube’s thesis is that, while it seeks to provide a plausible explanation for the separation of Chapters I and III, it 3 Daube 1936: 266-68; 1948: 154-56; and 1947: 74-85. 4 Daube 1947: 85-98. In our view, the order of the biblical examples yields to a far different explanation. See the discussion of the organization of ancient Near Eastern law codes below (under “The Background to the Lex”). As regards the theft laws of Exod 21:37-22:3, discussed by Daube (1947: 91-95), we have offered an entirely different interpretation; see Westbrook 1988d: 111-28. 5 Col. IX 24-Col. X 32 and Col. XI 24-Col. XII 19, respectively. Edition in Willets 1967. 6 Daube 1947: 84-85.

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fails to account in any way for the connection between Chapters I and II. Daube can only suggest the model of a lex satura,7 a statute comprising miscellaneous reforms—which begs the question why these two provisions, unrelated in substance, should have been thrown together, and in such intimacy that they could not then be parted by a provision with a better claim. The difficulty is equally acute in Pringsheim’s proposal, which claims to see in our textual witnesses the traces of a highly systematic process of historical evolution.8 Pringsheim suggested that the law passed through no less than six stages of amendments by successive legislators. Chapter I was first followed by a new statute, Chapter II, and then by four other enactments, which were ultimately combined to form Chapter III: i) wounding slaves and fourfooted pecudes, ii) killing and wounding fourfooted animals who are not pecudes, iii) killing and wounding other animals, iv) damage to inanimate objects. While many objections could be made to his treatment of Chapter III, such as its failure to distinguish between legislation and juristic interpretation, at least it may be said that the stages represented by Chapters I and III follow a logical pattern of expansion. Not so the insertion of Chapter II as stage two, which as Pringsheim admitted is “rather odd.”9 His explanation, that it is easier to understand on the assumption that there were six independent enactments, of which it formed one, effectively undermines his own logic, since it abandons the idea of rational expansion on which his division of Chapter III into chronological steps depends. In this regard Pugsley is more consistent. He takes the model of the lex satura to extremes, denying a connection between any of the three chapters.10 Again, we are not concerned with his interpretation of Chapter III (although it does depend on an approach that we regard as methodologically unacceptable, namely emendation of the text on the basis of the author’s theory rather than of independent criteria). Our objection is to the assumption, common to all these three authors, that because the organization of the Lex Aquilia is not immediately apparent, it did not exist. Given 7 8 9 10

Daube 1936: 267-68. Pringsheim 1959. Pringsheim 1959: 238. Pugsley 1969b.

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the amount of effort that has been expended by modern scholars to arrange the fragments of the XII Tables in a rational order, it is remarkable how readily the opposite has been assumed for the Lex Aquilia, whose order is known to us and was regarded as fixed by the Roman jurists themselves.

The Text It is of course impossible to reconstruct the original text itself from our present sources, not least because the language in them has undergone a process of modernization.11 The best we can hope to attain is its most faithful representation in the extant sources, by relying on the most direct textual witnesses.12 Chapter I presents the least difficulty, since it is reproduced in similar versions in Gaius’ Institutes and in the Digest, where Gaius is purported to quote the text directly: D. 9.2.2 pr. (Gaius ad edictum provinciale): a servum servamve alienum alienamve quadrupedem vel pecudem iniuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto. a

Gaius Inst. III 210: «ut qui».

For Chapter II we have only a paraphrase by Gaius, which will have to serve as our text: Gaius Inst. III 215: Capite secundo adstipulatorem qui pecuniam in fraudem stipulatoris acceptam fecerit, quanti ea res est, tanti actio constituitur.

11 For example the term eras has been replaced by dominus: Dig. 9.2. 11.6. Attempts at reconstruction inevitably rely on substitution of the author’s words for those of the extant sources. See Kelly 1964: 73-83; and 1971: 235-41. 12 Cf. the remarks of Crook (1984: 67-77) and his proposed text for Chapters I and III.

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Chapter III exists in several conflicting versions, but only D. 9.2.27.5 purports to be a direct quotation by Ulpian of the whole text:13 D. 9.2.27.5 (Ulpianus ad edictum): « »a si quis alteri damnum faxit quod usserit fregerit ruperit iniuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto. a

ceterarum rerum praeter hominem et pecudem occisos

Following Lenel, we have omitted the opening clause.14 The phrase praeter hominem et pecudem occisos has long been regarded as suspect, not least because it is ungrammatical.15 Lenel rejected ceterarum rerum on the grounds that “other things” could not refer hack to Chapter II, since it concerned a debt, not a thing. Honoré, however, regards these words as genuine, referring not to things other than slaves and animals but to “matters other than those comprised under the first two chapters of the statute.”16 In the absence of a substantive link between Chapter I and Chapter II, however, the phrase is meaningless. Any provision would be bound to deal with “other matters” than the first two chapters because they deal with entirely different matters themselves. It only makes sense on the assumption either that Chapter II has been omitted, which was of course the situation in Justinian’s day, or at least is to be disregarded, which seems to have been the attitude of Gaius.17 13 Gaius Inst. III 217-218 and Justinian Inst. 4.13.14 are paraphrases. 14 Lenel 1922. 15 See already Pernice 1867: 14. For a summary of the arguments, see Honoré 1972: 138-41. 16 Honoré 1972: 141-45. 17 Gaius states: “Capite tertio de omni cetero damno cavetur” (Inst. III 217), but fails to give other examples of loss by fraud, even though this sentence immediately follows his discussion of Chapter II. His examples are all extensions of the principle in Chapter 1 (on damnum = “loss,” see Daube 1948: 93-156). As evidence for the antiquity of the phrase, Honoré adduces Dig. 21.1.42, citing the aedilician edict de feris. The edict contained two specific provisions, dealing with killing and wounding a free man, followed by a residuary clause introduced by ceterarum rerum dealing with all other cases (Honoré 1972: 144). It may equally well be argued, however, that this edict provided the compilers with the model for interpolat-

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The special feature of this version is the verb erit; G. III 218 has fuerit and D. 9.2.29.8 (Ulpian) has fuit. Although the latter two represent the classical jurists’ understanding that damages were to be assessed by reference to the preceding thirty days, the form erit is still to be preferred, without reference to the content of the clause,18 because it is both a direct quotation and the lectio difficilior. It would have been unthinkable to a jurist in Ulpian’s day or subsequently that the third chapter could refer to a future period of time. At the same time, the discussion among classical jurists of Sabinus’ proposal to imply the term “highest” in the third chapter and their attempt to justify it by an historical fiction reveals a certain disquiet which may point to an innovative interpretation, changing the direction of the clause, as Daube surmised.19 Nonetheless, Ankum argues that the word erit is no more than a scribal error in the manuscript that now constitutes our primary witness.20 His grounds are threefold. Firstly, he points out that while the passage in Gaius’ Institutes is admittedly a paraphrase, D. 9.2.29.8, containing fuit, purports to be a direct quotation of Ulpian no less than in the passage under discussion.21 They are not pari passu, however. Our passage cites the whole law; 29.8 only the offensive clause—in the context of Sabinus’ tendentious interpretation! It should be added for good measure that the exact same limitations, i.e., discussion of the one clause and acceptance of Sabinus’ interpretation, characterize Gaius’ paraphrase in III 218. Secondly, Ankum argues that it is fuit or fuerit that should be regarded as the lectio difficilior, since the phrase quanti ea res erit is far more common in the Digest and the scribe was therefore likely to write erit in

18

19 20 21

ing the phrase in 9.2.27.5, since “other cases” is obviously restricted to other cases of damage by wild beasts kept contrary to the edict. It is thus parallel to a Lex Aquilia untrammeled by an intervening provision on an entirely different matter. The question is not whether the compilers invented the phrase but how it is used in the particular context. This distinction applies a fortiori to the other examples of ceterarum rerum adduced by Nörr 1986: 213-16, which are not genitives of respect. The theory that the law originally referred to the next thirty days, propounded by Daube (1936), has been the subject of much debate. See Ankum 1983: 172-80, for a summary of the copious literature. Daube 1936: 262-63. Ankum 1983. Ankum 1983: 178.

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error instead of fuit, rather than the other way round.22 The term lectio difficilior used in this way is a misnomer. Properly speaking, it indicates a writing against the accepted meaning of the passage, which erit clearly is (and was at all material times: of the Florentine manuscript and of Justinian’s and Ulpian’s compilations) and fuit and fuerit are not. Ankum’s argument amounts to no more than a possible rationale for scribal error. That possibility is not strong enough to overcome the stringencies of the lectio difficilior: the phrase quanti ea res erit is frequent but not universal, and its use is therefore not inevitable. It does explain, however, how the interpretation of “last thirty days” could have prevailed among the classical jurists in spite of the express wording of the lex. It was possible to relate erit to the idea of what the facts at the coming trial would prove to be (as regards the highest value in the thirty days preceding the damage), which is the meaning the phrase quanti ea res erit has in the condemnatio of a classical formulary action,23 but which is irrelevant to the question of the point in time to which the value should be imputed.24 The use of such reasoning would account for Gaius’ choice of fuerit in his paraphrase, namely “the highest it shall turn out to have been in the preceding thirty days.”25 22 Ankum 1983: 177. 23 As e.g., in Gaius Inst. IV 47. See Buckland and Stein 1966: 658. 24 The same reasoning has been used by some scholars to suggest that the phrase originally related to purely procedural matters connected with the trial. Thus Iliffe suggests: “The thirty day period in the third chapter may have referred to the period between the first appearance in iure and the second. The parties may have been required to make an aestimatio on the first appearance and then have been allowed to prove extra damage when the case was heard by the iudex. Alternatively, they may not have needed to do more than, as we should say, ‘show cause’ on the first appearance” (1958: 503-505). Similarly, for Kelly the thirty days represent “the time within which compensation—on the perfectly simple basis of quanti ea res erit—shall be payable” before the judgment debtor became liable to mantes iniectio (1971: 239-41). It is not clear to us why procedural provisions that must have been of general application under the legis actio should be linked to one particular action. It is certainly not the case with comparable provisions in the Twelve Tables, such as in ius vocatio. 25 As Pernice (1867: 15) put it in arguing for Gaius’ fuerit as the original verb: “. . . und sodann erhielten wir damit den vollkommen sachgemessen Sinn: wieviel die Sache werth gewesen sein wird, d.h. wieviel der Richter finden wird, daß die Sache werth gewesen sei.” (It would also account for Gaius’ gratuitous use of fuerit over fuit in his discussion of Chapter I in Inst. III 214.)

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Ankum’s final argument is that the sixth-century Greek translation of D. 9.2.27.5 in the Basilica has the verb in the past tense () and the translator therefore had the word fuit before him. It should be remembered, however, that the lectio difficilior is no less valid an approach to translations than to original transcriptions. As with ancient copyists, there was a tendency for ancient translators to harmonize “difficult” words or phrases in the original with the accepted interpretation of the passage in their day.26 For a Byzantine translator of this text, to use the future tense would be to mistranslate, since the resulting law would have made no sense to him.

The Structure of the Lex A formal analysis of the text thus established gives rise to two simple observations. Firstly, it presents two casuistic laws, beginning si quis. It does not necessarily follow, but it is reasonable to suppose that the middle law originally had a similar form, at least casuistic, if perhaps beginning si adstipulator, rather than si quis.27 Secondly, there is one feature that all three laws have in common, namely a clause beginning quanti. In the successive clauses, however, the

26 See e.g., Barthélemy (1979: IX): “When a text was particularly difficult, there was a tendency for ancient scribes and translators to simplify the text by employing more fitting lexical, grammatical, and stylistic forms (these modifications are often spoken of as ‘facilitating’).” Nörr (1986: 217) suggests that erit might have been a mistranslation of an archaic Latin verb, especially since archaic Latin lacked precision in dealing with consecutio temporum. Be that as it may, the concept of past, present, and future time was certainly not lacking in early Rome, and it is pointless to speculate about the ambiguities of a putative Urtext that we do not have, when consecutio temporium is clearly expressed by the received text that we do have. 27 Cf. the reconstruction of Cannata 1994: 151. Gaius mentions two further provisions of the Lex Aquilia, a double penalty against one who denies the accusation (Dig. 9.2.2.1, Inst. III 216, cf. Ulpian Dig. 9.2.23.10 and Paulus Dig. 9.2.24) and noxal liability (Inst. IV 76, cf. Ulpian Dig. 9.4.2.1). It is difficult to know what form these provisions took, whether separate chapters like the first three or sub-clauses within those chapters or suggestive terms in the three chapters that were interpreted as laying down these rules. Since both are secondary rules, not special to the Lex Aquilia, the first possibility is the least likely. On the insertion of subordinate rules, see n. 36 below.

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tense of the respective verbs follows a strict chronological order: quanti id fuit, quanti ea res est, quanti ea res erit. In our view, that sequence is the key to understanding the structure of the Lex Aquilia. The connection between the three laws lies not in their protasis, in the circumstances to which they apply. It lies in the apodosis. The purpose of the apodosis in all three laws is to establish not liability for the wrongs described in the protasis but the point in time upon which assessment of damages is to be based. In the first and third laws, the element of time (and the rationale for the tense of the verb) is clear. Express reference is made to a point in time preceding commission of the wrong (up to a year) and to one following it (thirty days). In the second law, the element of time is not so evident, since the time of the offence would naturally be the moment at which to assess damages in most laws. It could be of significance only if there were something in the circumstances of the protasis that could give rise to a claim that the time of the offence was not appropriate. Given the emphasis on time in the two surrounding laws, it is reasonable to suppose that there was such a claim, and circumstances can be posited to which it would apply. (It should be stressed that we have insufficient information about the nature of the fraud and the loss occasioned by it to establish more than the feasibility of a time-conditioned assessment.) Adstipulatio was used to ensure the performance of a promise in the absence, or after the death, of the principal stipulator.28 Gaius informs us that acceptilatio was a sort of imaginary payment (III 169), which means that it could be used for remission of obligations not performed. Thus if acceptilatio of an obligation were made by the adstipulator before its due date, for example, the question might arise whether damages should be assessed as of the time of the acceptilatio or as of the due date.29 28 G. III 117; see Buckland and Stein 1966: 443-44. 29 This conventional view of acceptilatio has been challenged by Lévy-Bruhl, who argued that acceptilatio in Chapter II meant receipt of a real payment and that the fraud was therefore nothing more than failure to pay over to the debtor the sum received (1958: 507-17). His reasoning is that the phrase acceptum facere “ne décèle aucune idée de fiction. Elle désigne le comportement du créancier qui se déclare satisfait” (1958: 510). The second proposition, however, does not complement the first. The phrase describes the creditor’s state of mind, not an objective state of facts. Precisely because it will apply whether the debt has actually been paid or not, it is an

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To summarize so far: the Lex Aquilia has a logical structure. Three examples are given of different circumstances which give rise to a different point in time for assessment of damages: prior to the wrong, at the same time as the wrong, and subsequent to the wrong.

The Background to the Lex To a scholar trained in classical Roman law, the appearance of these three clauses in chronological sequence would seem to be nothing more than coincidence. When placed against the background of ancient Near Eastern law codes, however, it can be seen in an entirely different light. The nine extant law codes from the ancient Near East, seven preserved in cuneiform script and two found in the Hebrew Bible, show, in both form and content, the marks of a common intellectual tradition.30 As to form, ideal vehicle for a fictional payment. Cf. Watson, who points out that acceptum facere is a technical legal term, which always means “to make an acceptilatio” (1991: 196). Real payment is a possibility, it is true, but for the purposes of the acceptilatio it is irrelevant. Furthermore, the existence of such a fiction has a clear rationale: it is sometimes expedient for creditors to remit obligations. In the context of adstipulatio, the most obvious example of fraud that springs to mind is remission of an obligation in pursuance of a corrupt bargain. This is dismissed by Lévy-Bruhl as “rarissime” (1958: 511), an assessment that we would question, but in any case the validity of legal rules does not depend on statistics, and, however rare, the possibility is a real and present danger of the sort that laws exist to guard against. Failure to pay over the debt to the principal creditor, on the other hand, is fraud not in respect of the acceptilatio but of a collateral contract (cf. Cannata 1994: 154). Both aspects will be covered by the classical contract of mandate, but the one that is likely not to have been covered in an earlier period (unless one believes that mandate sprang into existence overnight and fully grown) is the fraud wherein the adstipulator acts legally in form but not in substance. It will only be caught by the principles of good faith developed by the jurists of the late Republic. 30 The seven cuneiform codes are: Codex Ur-Namma (Sumerian, 21st century B.C.E.), Codex Lipit-Ishtar (Sumerian, 20th), Codex Eshnunna (Akkadian, 18th), Codex Hammurabi (Akkadian, 18th), Hittite Laws (Hittite 16th-13th), Middle Assyrian Laws (Akkadian, 12th), Neo-Babylonian Laws (Akkadian, 6th). A recent translation of all these codes is to be found in Borger et al. 1982 and Roth 1997. The two Hebrew codes are found inserted into the narrative of the Pentateuch. They are (part of) the “Covenant Code” (Exod 21:1-22:19) and the Deuteronomic Code, which consists of

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they all consist of endless lists of individual cases, formulated casuistically, for the most part after the pattern: “if a man does x, the legal consequence is y.” When first deciphered, the codes were regarded as little more than random concatenations of such cases, a satura legum, but more recent research has shown them to be endowed with a tight organizational structure, in which various techniques are used to draw several disparate examples together so as to mark the parameters of a given theme. Rhetorical devices include chiasm, progression, and what may be called “extreme opposites.”31 A particularly popular form of progression is the chronological sequence. Thus Codex Eshnunna 25-35 discusses the theme of marriage by culling examples from its various stages: betrothal, marriage, and children,32 while contractual provisions in Codex Hammurabi 241-272 follow the rhythm of agricultural work, from planting to harvest.33 In a sequence in Deut 20:1-21:9 on the theme of war, four laws deal successively with the mustering of the army, declaring war, conduct of a siege, and banditry after the supposed cessation of hostilities.34 An example brief enough to be cited in full is furnished by Codex Hammurabi 1-5: 1 If a man accuses a man of murder and does not prove it, his accuser shall be killed. 2 If a man accuses a man of witchcraft and does not prove it, the one accused of witchcraft shall go to the river and “leap the river.” If it overcomes him, his accuser shall take his house; if the river clears the man of guilt, the one who accused him of witchcraft shall be killed. The one who “leapt the river” shall take his accuser’s house.

31 32 33 34

provisions scattered through the book of Deuteronomy, with the main concentration in chapters 15, 21, and 22. The Deuteronomic Code is usually associated with the reign of king Josiah (7th century), and the Covenant Code is thought to be somewhat earlier, although not even an approximate date can be assigned with confidence. See esp. Petschow 1965; 1968; and Eichler 1987. Petschow 1968: 137-38. Petschow 1965: 166. Westbrook 1995d: 168-72.

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Writings of Westbrook, Vol. 1: The Shared Tradition 3 If a man comes forward to give false testimony in a lawsuit and does not prove what he said, if it is a capital case that man shall be killed. 4 If he comes forward with evidence concerning barley or silver, he shall bear the penalty of that case. 5 If a judge gives a judgment, renders a decision, and has a sealed document drafted but afterwards changes his judgment: they shall prove that the judge changed the judgment he gave, and he shall pay 12-fold whatever claim is in that case and be expelled from his judge’s seat in the assembly. He shall not sit again with the judges in a lawsuit.

The unit discusses the topic of litigation by choosing examples from the three chronological stages of a lawsuit: accusation, testimony, and judgment. In the sequences discussed so far, the theme linking the individual rules is found in the circumstances to which they apply. The common factor of a group of laws need not, however, be confined to the facts in their protasis. In Exod 21:12-17 we find the following four laws: 12-14 He who strikes a man so that he dies shall be put to death. As for him who did not lie in wait, but God forced his hand, I shall establish for you a place to which he may flee. But if a man plots against his neighbor to kill him with cunning, you shall take him from my altar to die. 15 He who strikes his father or mother shall be put to death. 16 He who steals a man and sells him or in whose hands he is found shall be put to death. 17 He who curses his father or mother shall be put to death. The only link between these laws is in their legal consequence: they are all cases involving the death penalty. The tradition exemplified by these scattered examples that we have considered so far was not confined to the Near Eastern codes but appears to have cast its shadow further westward. The Great Code of Gortyn was referred to above as a possible model for Daube’s theory of subsequent additions. It also may serve as a model for our thesis, since it not only shares the basic casuistic form of the Near Eastern codes but also shows

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signs of similar structural patterns.35 Thus we find the chronological sequence: Seduction (II 16-20) Adultery (II 20-45) Divorce (II 45-III 16) Widowhood (III 17-37) Children (III 44-IV 23). It is interesting to compare a sequence from the Laws of Eshnunna that we have already mentioned: Seduction/rape of betrothed (§§25-26) Adultery (§§27-28) Desertion (§§29-30) Children (§§32-35). In both cases, it should be noted that there is a gap in the paragraphs that constitute the sequence. The reason is the same: the chronological sequence is broken by another familiar sequence: that of free/slave (III 37-44 and §31 respectively).36 At Rome, the only law of greater antiquity than the Lex Aquilia is (by conventional dating) the Twelve Tables. For the most part, the order in which the individual provisions of the Twelve Tables are arranged in modern editions exists only for the purposes of convenience; it has no claim to historical authenticity. One sequence that could be regarded as authentic is that of the provisions on personal injury now found in VIII 2-4. Although the text given by Gaius in III 223 is not a direct quotation, its accuracy is confirmed by direct quotations of its individual laws by other authors.37 If the order given by Gaius is correct, then, it follows a familiar pattern in the 35 On the structural coherence of the Gortyn code, see Gagarin 1982. 36 Free/slave sequences usually concern the status of the victim, but in the provisions of the Hittite Laws 93-100 we find the sequence: burglary of house, burglary of granary, arson of house, arson of barn, on which is imposed a free/slave sequence concerning the culprit which lays down noxal liability. Noxal liability might possibly have been dealt with in the Lex Aquilia in a similar way. See n. 27 above. 37 E.g., Festus 550.3; Gell. NA 20.1.12, 14; Paulus, Collatio II 5 5.

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Near Eastern codes, namely a list of injuries by body part in the protasis and a (generally) declining severity of penalty in the apodosis, with intervening sub-sequences of free man, slave, as victim.38 We have argued elsewhere (on grounds of form and substance, but not of structure) that the Twelve Tables belong to the same scholastic legal tradition as that of the ancient Near Eastern codes.39 The evidence for the Lex Aquilia also belonging to this tradition seems to us as strong if not stronger. Three laws in casuistic form are organized in a pattern that is not identical to any particular law from the ancient Near Eastern codes, but matches exactly the type of structures in which the latter are organized. Structure is all the more significant because it is purely a product of intellectual effort; it cannot be dismissed as the coincidental recurrence of an everyday legal problem, as is sometimes claimed with regard to similarities of content between laws in different codes.40

The Nature of the Lex The interpretation here proposed for the Lex Aquilia faces an immediate objection in respect of function. It is difficult to believe that a legislative reform, even a technical reform of the assessment of damages, would have been structured in this way. The assembly of three different cases as examples of different means of assessment and their arrangement in a chronological order is more appropriate to an academic discussion than to a statutory enactment. The reason, in our view, is precisely that: the text of the Lex Aquilia was in origin an academic document. To return to the law codes of the ancient Near East, a series of studies in recent years has shown that they were not, as first assumed, legislation of any sort, but scholarly treatises on the law which were purely descriptive in character. They belong to a wider tradition of Mesopotamian science whereby intellectual inquiry was pur-

38 See e.g., Codex Eshnunna 42-47, esp. 42, Codex Hammurabi 196-205, and Hittite Laws 7-9 and 11-16. Cf. Westbrook 1988a: 106-108. 39 Westbrook 1988a. 40 E.g., David 1950: 153-54. Cf. the response of Yaron 1966. The nature of possible connections between similar laws is discussed by Malul 1990: esp. 133-39.

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sued by the compilation of lists—lists of legal cases and their resolution, of omens and their meaning, of medical symptoms and their prognosis, of words and grammatical forms.41 The casuistic formulation is both characteristic of this genre of literature and marks its limitations. Lacking all-embracing categories, definitions, or any of the analytic tools at our command, Mesopotamian science could only compile endless lists of examples and relied on structure, on its organization of those examples, to give some analytical shape to the discussion. As Eichler concludes with regard to the organization of the paragraphs of Codex Eshnunna, “This structure would rather seem to add further support for placing the Eshnunna law compilation within the orbit of Mesopotamian tradition. The features of the structure suggest a legal textbook, featuring a ‘socratic’ methodology, designed for the teaching of Mesopotamian legal thought and the appreciation of the complexities of legal situations.”42 The Lex Aquilia, if it derives from this background, would have begun life as part of a body of learning, a scholastic document or oral tradition. Its classification as a lex is a reflection of subsequent events which removed it from its original context and gave it a new role as the basis of the law of wrongful damage. To understand the process involved, we may refer again to the Near Eastern sources, and to the one ancient legal system that continued in use in Hellenistic times. The Bible, as we have noted, contains two law codes which are based on the tradition of Mesopotamian science, having strong connections in content with earlier cuneiform codes and being cast in its characteristic “scientific” style, the casuistic formulation. They were, therefore, originally independent sources or oral traditions but were incorporated into a historical narrative that attributed their origin to an act of divine legislation in the Sinai desert prior to settlement of the Israelites in the promised land. The process of incorporation is a complex and much disputed problem but

41 See our earlier discussion of this question in Westbrook 1988a: 82-97, and further in Westbrook 1989a, with a summary of the opposing views. Two recent studies take up more extreme positions in favor of the legislative character of the codes on the one hand and of their scholastic character on the other: respectively, Leemans 1991: 40920, and Malul 1990: 105 n. 13. 42 Eichler 1987: 81. See also Westbrook 1995d: 159-63.

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must have been complete by the 4th century B.C.E ., before the closing of the biblical canon. The Mishnah is a compilation, committed to writing in the early 3rd century A.D., of the jurisprudence of the Tannaim, Rabbinical jurists who were active from the mid-first century B.C.E. The Mishnah regards the biblical laws as still valid, indeed as holy writ, but its use of them completely transforms their meaning. Casuistic laws applying to very narrow cases are reinterpreted as broad basic statements of the law which they touch upon. From then on the old laws are interpreted as if they were recent, general legislation, often in complete contradiction with their earlier meaning or with an entirely new emphasis. For example, Deut 24:1-4 presents a complicated case of divorce and remarriage: 1 If a man marries a woman and it happens that she finds no favor in his eyes because he found something of unseemliness in her and he writes her a bill of divorce and gives it into her hand and sends her from his house, 2 and she goes forth from his house and goes and becomes the wife of another, 3 and the latter hates her and writes her a bill of divorce and gives it into her hand and sends her from his house, or the latter husband who marries her dies: 4 her first husband cannot take her again as his wife, after she has been made unclean to him . . . . The purpose of the law is to prevent remarriage by the original husband when there has been an intervening marriage by the wife. The rationale of this prohibition and the exact circumstances to which it applied have been much debated.43 It is clear, however, that the question of divorce is subsidiary to the main point of the law: the divorce procedure is mentioned in passing, in the recital of circumstances in the protasis; it is not regulated in the apodosis. In the Mishnah and later jurisprudence, on the other hand, this text is taken to be the basic law on divorce as such. Its opening clause, “If a man marries a woman and it happens that she finds 43 The literature is summarized by Pressler 1993: 45-62, to which should be added Otto 1991: 290-306.

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no favor in his eyes because he found something of unseemliness in her” is interpreted by the Tannaitic jurists as follows (Giin 9.11): The School of Shammai say, A man may not divorce his wife unless he has found in her something improper, as it is said, because he found something of unseemliness in her. But the School of Hillel say, Even if she spoiled a dish for him, as it is said, because he found something of unseemliness in her (i.e., understanding the phrase to mean “unseemliness or something else”). Rabbi Akiba says, Even if he found another more beautiful than she, as it is said, And it happens that she finds no favor in his eyes. The background to this transformation is an intellectual revolution in which ancient Israel was caught up when it became part of the Hellenistic world: the replacement of Mesopotamian scientific thought by Greek philosophy.44 The ability that the latter gave to define terms and create universal categories allowed jurists to create a new legal system, but not ex nihilo—rather by placing existing legal material in an entirely different intellectual framework, so as to change in effect its substantive meaning. The same process was, we suggest, at work at Rome during the late Republic, where the influence of Greek thought is too well known to require demonstration.45 In the case of the Lex Aquilia, this meant that a 44 See Westbrook 1988a: 119-21; and 1989a: 218-22. Daube has demonstrated the reliance of Tannaitic jurisprudence on Greek systems of logic in their interpretation of biblical texts (Daube 1992). It is important to understand that our thesis proposes a more fundamental change than does Daube’s. Being unaware of the earlier phase represented by Mesopotamian science, Daube assumes that the biblical codes were legislation and that Rabbinical interpretation was merely a more sophisticated version of existing canons of statutory interpretation. 45 For an overview, see Rawson 1989: 448-76. We would draw particular attention to Rawson’s discussion of the unconscious infiltration of Greek thought on the one hand (1989: 448-49) and the influence of Greek scientific method on the other: “A Greek treatise on almost any subject, a techne or, as the Romans were to say, an ars (as both subject and treatise were known) first defines its subject, and then subdivides it, going on to deal separately and in order with the various parts, kinds or aspects. This is a method that goes back through the great philosophers to the sophists, who first taught the Greeks to think and speak in an orderly fashion. In the first century B.C. at Rome Varro treated agriculture on this model, criticizing all his predecessors, including

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very specialized rule on the assessment of compensation was elevated to the status of a basic statement on the law of wrongful damage.

The Origins of the Lex The assumption that the Lex Aquilia was a legislative reform raises the question, what was the object of the reform? Two answers have been proposed. The first is associated with the date found most frequently in textbooks (albeit with varying degrees of skepticism) for promulgation of the lex, namely 287/6 B.C.E.46 According to Beinart, the law was passed by the plebs after their third secession in order to exact reparations from the patricians.47 Beinart surmises that the secession was attended by disorders, during which plebeians suffered undue attacks on their property at the hands of the patricians. Since it was difficult to prove who had been the author of particular attacks, the retrospective provisions of the law (if one assumes both Chapters I and III to be retrospective) served as a sort of collective fine for any previous damage inflicted by the defendant’s brothers-in-arms. Beinart’s theory has not found acceptance, for two reasons. Firstly, as von Lübtow points out, there is nothing in the law’s provisions of a political character or of substantive connection with secession of the plebs.48 Nor, we would add, is there anything to suggest that the law had any bearing whatsoever on the struggle between the orders.49

46 47 48 49

Cato, for not starting with an accurate definition of the subject and for including irrelevant material. In fact, it seems pretty clear that it was only from the start of the first century that Greek method was used by the Romans for organizing treatises on any subject—rhetoric, grammar and the rest” (1989: 456-57). Tellegen-Couperus 1993: 50-51; cf. Lee 1956: 393. Beinart 1956: 70-80. Von Lübtow 1971: 15-16. In attempting to find some social dispute to explain the origin of the Lex Aquilia, however, von Lübtow appears to adopt the very approach that he has just rejected in Beinart’s theory. He suggests that the occasion for the law was disputes between patricians and wealthy plebeians over ager publicus, “bei denen gegenseitige Gewaltakte stattgefunden hatten, deren zivilrechtliche Sühne eine zusammenfassende, abschließende Regelung verlangte” (1971: 16).

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Secondly, the sources that suggest a connection, namely the assertions of certain Byzantine jurists, are not to be relied upon.50 They have been dismissed as historical fantasies, concocted from scraps of information such as Ulpian’s remark (D. 9.2.1.1) that the Lex Aquilia was a plebiscite and Pomponius’ account (D. 1.2.2.8)51 of how plebiscites became binding on the whole people by the Lex Hortensia after a secession of the plebs.52 We would add that Cicero at the end of the Republic seems to know nothing of a tradition linking the Lex Aquilia with civil strife and general destruction; on the contrary, he contrasts its provisions, suited to ancient times when killing was a rarity, with provisions enacted in his own day against the background of civil war to give a remedy against armed hands, for which the Lex Aquilia was inadequate.53 It is unlikely therefore that the Lex Aquilia was a measure of political reform. The second object proposed for the Lex Aquilia’s reforming zeal is to protect the interests not of disaffected plebeians but of wealthy creditors. According to Honoré, the main point of the legislation was to substitute for the fixed penalties of the earlier law an assessment of damages based on the value of the thing killed or the actual loss suffered through burning, breaking, or tearing another’s property.54 Fixed penalties such as those in the Twelve Tables of 150 asses for breaking a slave’s bone and 25 asses for cutting down a tree ceased to be of use to property owners when inflation destroyed their value. Honoré accordingly attributes the passing of the Lex Aquilia to the period of high inflation at the end of second Punic war. 50 Theophilus states that the law was passed at the time of the dissension (diastasis) between the plebs and the patricians (Paraphrasis 4.3.15), and the scholiast to the Basilica that it was the work of Aquilius, who was the plebs’ leader when they rebelled against the patricians and seceded from them (Schol. ad Bas. 60.3.1). 51 Cf. Livy III 55; Gaius Inst. I 3; Justinian Inst. 1.2.4. 52 Gordon 1976: 315-21; Honoré 1972: 145-46; and von Lübtow 1971: 15-16. 53 9. et cum sciret de damno legem esse Aquiliam, tamen hoc ita existimavit, apud maiores nostros, cum et res et cupiditates minores essent et familiae non magnae magno metu continerentur, at perraro fieret, ut homo occideretur, idque nefarium ac singulare facinus putaretur, nihil opus fuisse iudicio de vi coactis armatisque hominibus . . . 10. his temporibus, cum ex bello diuturno atque domestico res in eam consuetudinem venisset, ut homines minore religione armis uterentur, necesse putavit esse . . . et poenam graviorem constituere, ut metu comprimeretur audacia, et illam latebram tollere DAMNUM INIURIA (pro Tullio, 4). 54 Honoré 1972: 147-50.

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The difficulty with Honoré’s proposal is that the provisions of the Lex Aquilia are singularly ill-suited to the purpose of compensating for the effects of inflation. It is pointless to look back to the previous year for the highest value of a slave when inflation ensures that his value will always be highest at the latest possible date.55 Even the next thirty days provision of Chapter III will be of little help: the only fair measure in a time of high inflation is value at the time of judgment. Ironically, Chapter II appears the most suited to the task attributed by Honoré to the lex, but only perhaps because of our uncertainty as to the details of that provision. Birks suggests that Chapter II was indeed promulgated to deal with the effects of inflation, albeit of a different kind. It was designed to prevent corrupt bargains between debtor and adstipulator to accept repayment of a loan made in asses in silver coins of a higher denomination, such as denarii, at less than the going commercial rate of exchange between the silver and bronze coins. This could only have occurred during the inflationary conditions of the Punic wars, when the exchange rate was “floating,” i.e., a matter for free bargaining. Thereafter, return to currency stability made the law obsolete.56 Stipulatio, however, was an obligation stricti iuris, with all the rigor in favor of the creditor thereby implied. Even assuming that a situation existed wherein the exchange rate was a matter for bargaining between creditor and debtor at the time of repayment 57 and further that the adstipulator had a discretion to bargain with the debtor over repayment in terms that did not amount to datio in solutum,58 then it is still not clear why legis55 Inflation is to be distinguished from seasonal fluctuation of prices, which is identified by Cardascia (1974: 62-64) as the rationale for the retrospective highest value in Chapter I. 56 Birks 1994: 181-88. 57 Birks (1994: 184) imagines the following scenario: “The debt of 5000 asses in this state of affairs might require a payment of only, say, 300 denarii, though the exact number will not be discoverable except through a bargain between the parties. . . . The honest debtor will offer what he perceives to be the going rate, say 300 denarii, and he will insist that, if he pays that sum, the debt must also be artificially discharged. . . . The discussion will very likely end in compromise. The debtor will pay 325.” 58 “The conscientious adstipulator will do his best to defend his principal’s interest. He will try to push the debtor up to, say, 350. . . . If these same parties are less than perfectly honest they will see that the unstable currency conditions leave room for secret advantage to themselves. The adstipulator will be easily tempted to do a deal with the

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lation would have been necessary to remedy a wrong that any intelligent creditor could have avoided by formulating his stipulatio more tightly, so as to bar payment in unfavorable coinage. To return to Chapters I and III, it is true that, even without the factor of inflation, the Aquilian measure of damages appears to be more sophisticated than that of the Twelve Tables, and certainly by Ulpian’s day it had superseded the latter in areas where they were deemed to overlap.59 It would be rash to assume however, as for example Daube does,60 that the one was necessarily a reform of the other. The relationship between the two laws can be put in perspective by recourse once more to sources from the ancient Near East. The example that served Daube as a model for the idea of emerging damage in Chapter III is the case in Exod 21:18-19, where a man injured in a fight is paid compensation, after his recovery, for his medical expenses and loss of work. That case is a standard scholarly legal problem that recurs in other ancient Near Eastern law codes, namely paragraph 206 of Codex Hammurabi and paragraph 10 of the Hittite Laws.61 Those same law codes, however, contain another legal problem on wounding, which takes the standard form of a list of injuries with either talionic punishment or a tariff of fixed payments according to the part affected: eye destroyed, bone broken, face slapped, etc. We have argued elsewhere that the fixed payments are not by way of compensation, but just as talio represents a limit on permissible revenge, so fixed payments set a limit on the ransom payable in lieu of revenge.62 Thus two measures of damage coexist in the same law code.63 The reason, we suggest, is that they are concerned with separate offences. The one deals with injury where there is a low level of culpability or damages or

59 60 61 62 63

debtor. He will discharge the debt at a not wholly implausible 280 denarii, so long as he receives 20 into his own pocket” (Birks 1994: 184). Dig. 9.2.1. Note, however, that Ulpian merely says derogavit; he does not suggest that the passing of the statute abrogated existing laws. Daube 1936: 255. Westbrook 1988a: 95-97. Westbrook 1988d: 39-77. Paragraph 10 of the Hittite Laws for good measure adds a small fixed payment to the compensation. §104, incidentally, sets a fixed payment for cutting down trees, while §98 applies indemnification of loss where the culprit burns down a house.

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some mitigating circumstance, and the other with assaults that represent an affront to the victim’s dignity, as the case of the slap in the face graphically illustrates.64 The one therefore emphasizes indemnification as the measure of damages, while the other emphasizes revenge, as exemplified by talio. In our view it is no accident that the same dichotomy (expressed by the terms contumelia and culpa) is found in the developed actions of iniuria and damnum iniuria datum; it represents the original scope of apparently overlapping provisions of the Twelve Tables and the Lex Aquilia, with talio and fixed payments on the one hand, and indemnification on the other. To summarize: the view that the Lex Aquilia was a legislative reform is unsupported by evidence linking it to any historical object of reform. In particular, there is no basis for supposing that it embodied a political reform such as might be implied by the use of a plebiscite. The evidence for the latter proposition is, as we have seen, a statement attributed to Ulpian in the Digest. Ulpian’s statement is of an antiquarian character. On the one hand, it may reflect a long-standing tradition. On the other, it is possible that the tradition itself is no more than a historical fiction, that at some point the law’s origins had been attributed to a plebiscite as a sort of pedigree, a way of accounting for its authority by reference to the customary mode of legislation in the late Republic.65

64 Our arguments are set out in Westbrook 1992b: 61-64. On the voluntary nature of the second category, see Cardascia 1985: 200-207. 65 Methodologically, a distinction should be made between the received text of a law and an historical notice about a law. The former is a primary source which has been transmitted because of its function, namely its use by succeeding generations of lawyers as a source of law. Even if we question the authenticity of parts of the present text, there is no reason for us to dismiss the whole as a fabrication. The historical notice, on the other hand, is not a primary source, nor can it claim any ongoing legal function. Ulpian’s statement about the legislative pedigree of the Lex Aquilia is of no legal significance: it was not necessary for citation or for establishing the validity of such an old law, which Ulpian in any case examined through the prism of the praetorian edict. It therefore falls within the second category: it is an historiographical assertion about an event that took place more than five hundred years earlier. We must judge it by the same criteria by which we judge the works of native Roman historians (one of which was possibly the source of Ulpian’s statement). Those works can certainty not be read uncritically, as if their sources were primary, their purpose objective, and their under-

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Assuming, nonetheless, that at some point during the Republic a plebiscite was promulgated at the instance of one Aquilius, there is no need to suppose that it was a reform ex nihilo. For on the one hand the use of the plebiscite mode in this case lacks any demonstrable political or economic implications, and on the other the narrow technicality of its contents and the pedantry of its formulation are unequal to the role of a considered innovation. Rather, they evoke the adoption of an existing scholarly text or oral tradition. Honoré points out that the terminus post quem for the plebiscite could theoretically be as early as 449 B.C.E.,66 but it is unnecessary to seek an early date if the plebiscite is not itself the origin of its provisions. They go back to an indefinable point in early Roman history, being an element of traditional legal learning that for some reason had not been canonized in the Twelve Tables.67

Conclusion The Lex Aquilia is a source that goes back to a shadowy period of Roman law for which native historiographical traditions are unreliable. We do however possess a text which, if not entirely in its original form, retains enough thereof to discern the original focus of the law and the sequence of its clauses. That sequence has generally been regarded as arbitrary, but when placed against the background of far more copiously documented scholastic legal traditions from the ancient Near East, attests to a coherent set of provisions. They follow an organizational pattern widely employed in the ancient Near Eastern law codes, namely the chronological sequence. The organization of the ancient Near Eastern law codes is predicated upon the fact that they were not legislation in the modern sense but academic treatises, a part of a more general scientific tradition in which the same type of organizational patterns prevailed. While some of those patterns would not be inconceivable in a legislative reform, the sequence standing of former times not tainted by the projection backwards of conditions prevailing in the writer’s own time. 66 Honoré 1972: 146; see also Thomas 1976: 19. Biscardi (1967: 75-88) argues for an early date on the basis of Gaius Inst. IV 37. 67 Ulpian provides a terminus ante quem by citing an interpretation of the consul M. Iunius Brutus (Dig. 9.2.27.22), a jurist of the 2nd century B.C.E.

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found in the Lex Aquilia is too pure an example of this type of academic discourse. Its structure was a consequence of its academic character. The Lex Aquilia of classical Roman law was therefore the culmination of a two-fold process of transformation. On the one hand it developed from three technical rules on a narrow question of the point in time to which the assessment of damages should be referred to the general basis of liability for wrongful damage. On the other, it acquired the status of normative legislation, through insertion into a known legislative form and by juristic interpretation within that conceptual framework. Neither development affected the integrity of the original text; rather, they were achieved by a change in attitude to the ancient source, a shift in the way the text was read. In this respect Roman law reflects the same process that was undergone by the one ancient Near Eastern system to acquire a classical form, namely biblical law. For behind both cases lay an intellectual revolution, in which Greek philosophy replaced Mesopotamian science as the basis of jurisprudence. The original coherence of the Lex Aquilia, therefore, and its subsequent rereading, are emblematic of Roman intellectual as well as legal history.

15 Restrictions on Alienation of Property in Early Roman Law Abstract This article seeks to demonstrate how an understanding of ancient Near Eastern law can help to elucidate early Roman law. Two conundrums from the Twelve Tables are solved by analyzing them within the context provided by Near Eastern legal practices involving redemption of land and release of slaves.

T

he starting point of this paper is a premise—the premise that certain legal traditions that were widespread throughout the ancient Near East found their way into the earliest Roman law.1 To justify such a premise a great deal of evidence would be required, far beyond the scope of this paper, whose aim is therefore more modest. We intend only to show through two examples how the application of our premise can help to elucidate some of the more enigmatic provisions of the Twelve Tables and thereby demonstrate its feasibility. The ancient Near Eastern traditions to which we are referring concern the law of property. The legal systems of that region contained special rules protecting the family (in the extended sense) from the danger of permanently losing its principal assets due to temporary economic * Originally published in New Perspectives in the Roman Law of Property: Essays for Barry Nicholas (ed. P. Birks; Oxford: Oxford University Press, 1989), 207-13. Copyright © Oxford University Press. Used by permission. 1 On the reception of ancient Near Eastern law into early Roman law, see Yaron 1974; and Westbrook 1988a. The particular connection predicated here was the subject of a paper given by the author to the annual conference of the Société Internationale de l’Histoire des Droits de l’Antiquité (SIHDA) in Stockholm in September 1986.

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difficulties.2 Their purpose was to preserve the family as an economic unit by safeguarding its primary sources of income. Therefore only certain types of property were protected and the beneficiary was the family as a whole, rather than their immediate owner. As to the types of property involved, we have positive evidence in the case of land, temple prebends, and slaves.3 There is indirect evidence that large farm animals and boats were also included in this category, at least on occasion.4 All these items, it will be noted, make up the core of the male inheritance.5 The beneficiary of the rules might well be the original owner but was not necessarily so. If he were unable to realize his rights, then they passed to his potential heirs—sons, brothers, cousins—and in any case survived his death. Two examples of these rules will serve: redemption of land and release of slaves. The former right was a conditional one: if land had been sold for less than its real value, a member of the seller’s family could later force the present owner to resell it to him at the same low price.6 Only purchase at the full value would allow permanent alienation of the land, because it would not prejudice the economic survival of the family. The important point for the law was to maintain the distinction between sale and pledge. If the owner of land pledged it against a loan, he retained the possibility of its return on repayment; if he sold it outright, this possibility was lost. If failure to repay the loan resulted in forfeiture of the land, the creditor had in effect bought the land at less than its true value, since the loan would seldom amount to anything like the full value of the land pledged to secure

2 For a detailed account of these rules, see Westbrook 1985b. 3 For land and slaves, see below. Temple prebends were treated like land for the purposes of sale and inheritance, and at least one redemption-purchase of a prebend is recorded (BE 6/2 66). 4 Sale documents in the same formulation as those for land, slaves, and prebends are occasionally also found for oxen, cows, and boats. In our view these documents record a ceremony designed to overcome rules restricting transfer of ownership. See Westbrook 1985b: 119-24. 5 The female equivalent of inheritance, the dowry, consists mostly of inanimate moveables, albeit sometimes of considerable worth. Land, slaves, etc., are a rarity confined to the rich. 6 See Westbrook 1985b: 109-11.

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it. The right of redemption, however, gave forced sale by a debtor the status of pledge. The buyer who purchased at the full price, on the other hand, needed evidence thereof in order to prevent the seller or his heirs from claiming the right to redeem at a later date. This was achieved at a ceremony in which the full price was weighed out and handed over before witnesses, and their testimony in turn was given greater longevity by a sealed document recording the ceremony and the witnesses present, which could ensure security of tenure for generations to come. As a sale document from Susa (MDP 22 44) puts it: “Not redemption, not pledge; full price. Like a father buys for his son, A has bought . . . [this property] for generations [i.e., for ever].”7 In the case of slaves, the right to redeem existed as with land, at least for certain categories of slave, and on the same conditions. But here there was an added factor: the slave might be a member of the seller’s own family, or the seller himself. Accordingly, additional rules are found which effect the automatic release of such slaves after a certain number of years’ service, when the debt was deemed to have been paid off by the slave’s labor.8 Again, the point was to distinguish between pledge, for which antichretic contracts were common,9 and outright sale in which all hope of freeing the slave would be lost. In the case of close members of the family or of self-sale, the laws assume that they would only be sold under dire circumstances of indebtedness. We may now set out our premise in detail: the category of res mancipi in early Roman law was distinguished from all other property in that it was subject to similar restrictive rules as we have seen from the ancient Near East. The ceremony of mancipatio was designed to overcome these rules by evidencing sale at the full value, which as we have seen, nullified the rights of the seller and his heirs. Failure to use mancipatio would not invalidate a sale but would leave the buyer without a guarantee of ownership in perpetuity, since there existed in theory at least the possibility of redemption, release, or the like at some future date. By classical times these 7 Westbrook 1985b: 109-11. 8 See below and cf. Deut 15:18: “It shall not seem hard to you to free him [the slave], for he has worked double the hire of a hired man for you for six years.” 9 See Eichler 1973: 37-46.

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restrictive rules had entirely disappeared, leaving only the mancipatio ceremony as an empty shell, an irksome formality that was applied automatically and without any rationale. Now we turn to two examples from the Twelve Tables where this premise may be applied. The first is VI 1: cum nexum faciet mancipiumque uti lingua nuncupassit, ita ius esto. It has justifiably been called a “strikingly clear yet strangely and intractably obscure clause.”10 A literal translation would be: “When he does nexum and mancipium, as the tongue shall have declared, so be the right.” To take this as affirming the legal validity of whatever ceremony is used is not only too banal, but it offends against the literal sense, expressed by the enclitic –que, that mancipium and nexum are cumulative, not alternative. For on the face of it, they are not two possible examples from a long list, but the two components of a particular legal act.11 Reluctance to regard them as such derives not from a close reading of the text but from considerations of legal logic. From the sparse information available we can conclude at least that nexum at the time of the Twelve Tables was a real obligation involving the pledging of a person as security for a loan. The person pledged was obliged to work for the creditor until the loan was repaid.12 Mancipium, by contrast, was the outright alienation of property to a buyer. A slave thus sold would remain the buyer’s property, and the seller could have no legal influence over his subsequent fate. Our literal rendering, then, would appear to contemplate the legally impossible: a transaction which combines pledge with outright alienation. The paradox may be resolved, however, if we return to our basic premise and examine the ancient Near Eastern sources. There we find special types of contract which actually combine pledge and sale, but which are explicable in the context of the rules protecting family property that we outlined above. The most explicit examples come from the Middle Assyrian Period (15th to 12th century B.C.E.). Loan contracts are secured by various types 10 Watson 1975b: 144. 11 The classical explanation, that the clause authorizes the insertion of subordinate clauses in the mancipatio (see Buckland and Stein 1966: 237), is more jurisprudential than historical. It gives the term nexum a general meaning more suitable to classical law (following Manilius: Varro L. 7.105). 12 Cf. Watson 1975b: 118-19.

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of pledge, namely land, members of the debtor’s family, slaves (e.g., ARU 46),13 and in one instance an ox (ARU 59). For example, ARU 24 reads: A has received x talents of tin as a loan from B. He will repay the capital, the tin, within seven months. If the due date passes, the tin will bear interest. . . . His field, sons, and house are security for the tin. He will pay the tin to the bearer of his tablet. Other such contracts contain a further clause explicitly stating the fate of the pledge should the debtor fail to repay the loan by the due date. They are classified by Koschaker14 into two types, depending on the consequences stipulated. In the first, termed Verfallspfand, ownership in the pledge passes automatically to the creditor. Thus, in ARU 55 we read: A and B have borrowed x homer of barley from C. [They will repay the capital, the barley, within y months]. If [the due date] passes, they will repay [. . .] z mina of tin. C will hold their field, house, threshing-floors, wells, sons, or daughters as pledge. If the due date passes, their pledges are acquired. There is no withdrawal or claim. A and B have received the tin, the purchase-price of their pledges: they are paid, quit. They will clear their pledges of claims, measure with the royal line, and write a “firm” tablet before the king. Forfeiture of the pledge is expressed here in terms of sale, with typical sale clauses including a payment clause, although the only express payment that the document records is the sum of the original loan. It looks very much then as if the creditor has obtained what the law of redemption was supposed to prevent: the outright purchase of land or persons for the mere price of the loan for which it was security. That the law was not so, however, is shown by a further tablet that was drawn up at the stage of forfeiture itself.15 The text relates that a specified area of land was pledged 13 Published in David and Ebeling 1929. 14 Koschaker 1928: 102-108. 15 KAJ 150, edited and discussed by Koschaker (1928: 103) and by Westbrook (1985b: 117).

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as security for the relatively small sum of 30 mina of tin, the due date passed, and the field was duly alienated to the creditor. But it continues: “He [debtor] claimed the price of his field, and he received the balance of his tin: he received 100 mina apart from the contents of his tablet.” In other words, the creditor did indeed “purchase” the pledged land by way of forfeiture, but he still had to pay the full price for it, by giving the debtor the difference between the value of the loan and that of the field. An express statement of this rule is found in the contemporary Middle Assyrian Laws. Paragraph C + G 7 reads: [If a slave(?) an ox(?)]16 or anything taken as a pledge is dwelling in the house of an Assyrian, and the due date passes, [after it has p]assed, if the loan amounts to as much as his price, he is acquired and taken; if the loan does not am[ount] to as much as his price, [the creditor] may acquire and take him but may not reduce [the price(?)]—he shall ded[uct] the capital of the loan . . . . In other words, the creditor must pay the debtor the difference between the loan and the pledge’s full value if he is to gain full ownership of the pledge, unless the loan and the pledge are already equal in value. The second type of contract is called by Koschaker Lösungspfand. ARU 46 is an example thereof: A has borrowed x mina of tin and y homer of barley . . . from B. He shall repay the capital, the tin, and the barley, within 6 months. If the due date passes, the tin will bear interest. If he does not repay the barley, he shall pay tin for barley at the going rate. If he does not pay tin, the tin will bear interest. B will take and hold A’s slave C and a house of his in his town as pledge. On the day that he repays the tin and its interest, he redeems his pledges. Here then we have a clause allowing the debtor to redeem his pledge even after the due date on payment of the loan capital plus interest. It is not clear that this clause was inserted entirely for the benefit of the debtor. 16 Restorations proposed on the basis of context. Cf. Cardascia 1969: 307.

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Possibly the creditor did not wish to make the extra capital expenditure in order to acquire the pledge in perpetuity. While the creditor could not claim full ownership of the pledge, therefore, the debtor equally could not claim the balance of its value from him. And while awaiting redemption, the creditor still had a profitable investment. This consideration is illustrated by ARU 38, a Lösungspfand where the debtor does not have to pay interest but at the same time must wait six years to redeem the land pledged. To summarize, in both types of pledge, contract ownership in the pledge passes to the creditor on expiration of the term for repayment. The difference is that in Lösungspfand the pledge is acquired at the price of the loan and therefore remains redeemable, while Verfallspfand contains a mechanism for acquisition of the land in perpetuity by paying its full value. In our submission it is this mechanism, this grafting of outright sale on to pledge, that forms the background to VI 1 in the Twelve Tables and resolves the paradox of two incompatible transactions, pledge and sale, being lumped together in the protasis. The situation contemplated is where the creditor is prepared to turn nexum into mancipium either by giving a loan equal in value to the pledge17 or by paying the difference if the pledge is not redeemed by the due date. The meaning of the apodosis of VI 1, that is, the purpose of the law, is more difficult to ascertain, since the ancient Near Eastern sources provide us with a context but no direct parallel. Our remarks on this point, therefore, are bound to be more speculative and are offered with due reserve. To begin on relatively sure ground, we know that the active party in the ceremony of mancipatio was the buyer, who made a formal declaration of acquisition. It is therefore reasonable to suppose that the subject of the verb faciet and of the declaration is the creditor/buyer, and from this to conclude that the law is regulating his actions in some way, possibly defining his rights by reference to the terms of his declaration. The most plausible form that this would take, it seems to us, would be a regulation preventing the creditor from claiming the right to buy the pledge definitively (on payment of the balance) where the debtor has defaulted, 17 In the extant sources nexum is a pledge of persons, but there is no intrinsic reason why it could not have applied to other pledgeable items such as land or animals.

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unless the transaction had expressly been declared a Verfallspfand at the outset. Our second example from the Twelve Tables is IV 2: si pater filium ter venum duit, filius a patre liber esto. Here again, a literal translation produces an apparently inescapable contradiction. “If a father sells a son three times, the son is free of the father.” How could the father, having sold his son, get him back not once but twice in order to be able to resell him? Watson suggests that pledge, in the form of nexum, is behind the transaction, and the son could thus return to his father’s potestas in spite of having been sold by mancipatio.18 He does not explain, however, how pledge can be identified with sale or why the transaction was not simply called nexum. Yaron assumes the existence of a regulation by law or legal custom, whereby the mancipium relationship is limited in time, and mentions ancient Near Eastern parallels.19 Kelly argues that venum duit does not refer to mancipatio, but to sale in a limited sense of to lease, but can cite only a weak parallel from a non-legal source.20 Instead of choosing between these conflicting suggestions we wish to combine the leading elements in them: that the background to the transaction was the satisfaction of debts, that the sale in question is of the same nature as the slave-sales regulated in ancient Near Eastern laws, but that it is not mancipatio. If we place this composite hypothesis in the context of our foregoing discussion, a coherent picture emerges. In the ancient Near East when a man sold members of his family into slavery, it was not a commercial transaction for the full value but a necessity brought about by debt, and the right of redemption could therefore be invoked. For example, Codex Hammurabi 119 reads: If a man is seized by a debt and gives his slave-woman who has borne him sons for sale,21 the owner of the slave-woman may pay the silver that the merchant paid and redeem his slave-woman.

18 19 20 21

Watson 1975b: 118-19. Yaron 1968: esp. 71 n. 34. Kelly 1974: 183-86, citing Cato, De Agr. 149. The Akkadian phrase is literally “to give for silver” (ana kaspim nadnum), a standard expression for sale.

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The point here is that the slave-woman is regarded as a member of the family in these circumstances and her sale deemed non-commercial. But some legal systems, at least, went further. According to Exod 21:2: If you buy a Hebrew slave, he shall work six years and in the seventh go free for nothing (i.e., without repaying the debt). Similarly in Codex Hammurabi 117: If a man is seized by a debt and gives his wife, son, and daughter for sale22 or in kitum, they shall serve the household of their buyer or holder in kitum for three years; in the fourth year their emancipation shall be established. The term kitum is still unclear but appears to refer to some sort of pledge with a right of redemption limited in time.23 It is important to note that it is in parallel with straightforward sale; both are equally affected by the emancipation rule. Clearly, for persons in such straits as to be forced to sell their own family, even redemption might remain a hollow right and more radical measures were needed.24 The situation in IV 2 is, we submit, that a father has likewise had to sell his son into slavery under pressure of debt. The unusual terminology— venum duit—is used advisedly; the sale was not at full value and therefore in this early period was not mancipatio, in spite of the nature of its object. Accordingly, the right of redemption still existed, but possibly also, as Yaron surmised, a rule effecting automatic emancipation (and cancellation of the debt) after a fixed period. We know from the ancient Near Eastern sources that even such drastic measures were sometimes ineffective: in Jeremiah 34:8-11 it is related that king Zedekiah decreed a general release

22 The phrase is the same as in CH 119 (see previous note), but the verb “to give” has a double predicate “for silver” and “for kitum.” 23 See the discussion by Kraus 1984: 266-77. 24 A further measure was a general, retrospective cancellation of debts. This was typically proclaimed by a king on his accession to the throne or in a national emergency. For a Babylonian example see ANET3 526-28, and the literature cited therein.

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of slaves,25 but that subsequently the same persons were re-enslaved for debt. Emancipation had brought only temporary relief. The same is true, it would appear, of the father in IV 2, from the very circumstances of his having to resell his son. It is therefore more likely that the son had returned to him by automatic emancipation than by redemption. Where such a sale recurs three times, it is obvious that the family must be totally impoverished. There is therefore little point in the son remaining in his father’s potestas. He has no prospect of an inheritance, only of being exploited by his father’s creditors. A rule releasing him from potestas will at least ensure that his emancipation will not again be nullified by his father’s chronic indebtedness.

25 See previous note.

16 Vitae Necisque Potestas Abstract The Latin expression vitae necisque potestas means “power of life and death” and is used in a variety of classical legal and literary texts. This article locates the origins of this phrase in legal language from the ancient Near East. It also attempts to demonstrate how the transmission of scholastic traditions from the Near East to the Mediterranean world may have led to the incorporation of this phrase in early Roman law.

T

he purpose of this article is to trace the vicissitudes of a notorious phrase and its congeners. The Latin phrase vitae necisque potestas, “power of life and death,” is replete with paradox. It was intimately associated with Roman law but at the same time was so beloved of Roman poets, historians, and philosophers that its legal meaning has become lost in a tangle of figurative and metaphorical usages.1 The essential feature of the phrase, which gives it its dramatic appeal, is its duality: “life and death” or more precisely “life and killing” (nex). But that duality reveals an inherent imbalance. It accords the right to change another’s state from live to dead (necis potestas), but there appears to be no concomitant right to change from dead to live, for the obvious reason that it is impossible to raise the dead. Our objection may seem not only pedantic but unnecessary, for, it will be argued, the duality surely refers to the element of choice: to kill or not to kill. From a legal point of view, however, the duality of expression is superfluous in such a case, * Originally published in Historia 48/2 (1999): 203-23. Copyright © Franz Steiner Verlag. Used by Permission. 1 E.g., Livy 2.35; Manilius Astr. 4.24; Pliny Nat. 29.11; Sen. Ep. Mor. 4.8, Phoenissae 103; Tac. Hist. 4.62.

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because every legal right in the form of a power by definition involves that same element of choice—to do or not to do. The right to kill in itself gives the right-holder the choice between killing and not killing. The phrase is used in Roman sources primarily in respect of three relationships: master and slave, ruler and subject, and father and son (or daughter). In the first of these, master and slave, both law and practice are straightforward. The standard statement of the law is found in a passage of Gaius, a jurist of the 2nd century A.D., which is repeated in later legal sources:2 In potestate itaque sunt servi dominorum. quae quidem potestas iuris gentium est. nam apud omnes peraeque gentes animadvertere possumus dominis in servos vitae necisque potestatem esse . . . sed hoc tempore neque civibus Romanis nec ullis aliis hominibus, qui sub imperio populi Romani sunt, licet supra modum et sine causa in servos suos saevire. nam, ex constitutione sacratissimi imperatoris Antonini, qui sine causa servum suum occiderit non minus teneri iubetur quam qui alienum servum occiderit. Gaius’ understanding of the phrase is clear: a master may kill his slave without cause, at a whim, and not be answerable at law for his action. He also informs us that this principle was valid law until fairly recently, when it was moderated by express legislation. That Gaius’ account conformed to practice is confirmed by a tale told by Seneca in his essay On Anger (3.40.1-3). A certain Vedius Pollio, while the emperor Augustus was dining at his house, ordered a slave boy who had broken a cup to be fed to his lampreys. The boy took advantage of the emperor’s presence to beg not for his life, but that he be given a less horrible death. The interest of the story for us is the assumption of Vedius Pollio that even in the presence of his

2 “Slaves are under the power of their masters. This power is part of the law of peoples, for it is observable that among all peoples alike masters have power of life and death over their slaves. . . . But at the present day neither Roman citizens nor any other persons subject to Roman rule are allowed to treat their slaves with excessive and causeless harshness. For by a constitution of the late emperor Antoninus it is laid down that one who kills his own slave without cause is as much amenable to justice as one who kills another’s” (I 52-53 = Dig. 1.6.1.1; Justinian Inst. 1.8.1-2).

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ruler he could with impunity kill his slaves for no cause other than his own anger. It is not surprising therefore that the phrase when used of rulers does not generally have a positive sense. A phrase that characterizes political power as arbitrary and unlimited is consonant with absolutism rather than with constitutional authority. For Cicero it is the essence of tyranny:3 sunt enim omnes, qui in populum vitae necisque potestatem habent, tyranni, sed se . . . malunt reges vocari. Far be it, then, from Roman authors to associate the phrase with their own constitutional machinery; it was regarded rather as characteristic of barbarian rulers. According to Sallustius, the deposed Numidian ruler Adherbal bewailed the fact that in seeking to exercise his royal functions, his power of life and death depended on the assistance of others.4 Caesar, who has a predilection for the phrase in describing barbarian customs, attributes it to the Haeduan vergobretus and to German leaders appointed to conduct a war (Bell. gall. 1.16; 6.23). At Rome, the only named ruler to whom the power is attributed is Nero, and for good reason:5 et usque ad Neronem quidem senatus auctoritas valuit, qui sordidum et impurum principem

3 “. . . for all who have the power of life and death over a people are tyrants, but they prefer to be called kings” (Rep. 3.23). The image of the tyrant is behind two examples of a fanciful adaptation of the phrase. Quintilian (Decl. min. 309) raises the imaginary case of a deflowered virgin to whom the law gives the right to choose between having her ravisher executed and having him marry her. The girl first chooses marriage but, the ravisher having denied the charge and lost his case, changes her mind and opts for execution. The unhappy young man protests: potestatem tibi vitae ac necis lex dedit; ultra regnum omne, ultra tyranidem omnem est hoc diu licere. Pliny (Nat. 29.11), with scathing sarcasm, applies it to the power of fashionable doctors over their patients: imperatorem illico vitae nostrae necisque fieri. 4 . . . incertus . . . an regno consulam, quoius vitae necisque potestas ex opibus alienis pendet (Bell. Iug. 14.23). Cf. the reproach addressed to kings in Seneca’s Thyestes: vos quibus rector maris atque terrae ius dedit magnum necis atque vitae, ponite inflatos tumidosque vultus (607-609). 5 “Even as late as the time of Nero, the power of the Senate prevailed, and the Senate did not fear to deliver speeches against a base and filthy emperor and condemn him who held the power of life and death and imperial authority” (SHA 13.8). Seneca, addressing the youthful Nero, puts the following reminder into his head: ego vitae necisque gentibus arbiter. As the following lines confirm, however, this does not refer to power over Roman citizens but over foreign nations (Sen. Clem. 1.1.2).

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damnare non timuit, cum sententiae in eum dictae sint, qui vitae necisque potestatem atque imperium tunc tenebat. It is significant that the text distinguishes constitutional authority (imperium) from the arbitrary vitae necisque potestas. Seneca, in his essay On Anger, appears to attribute the latter power to a judge, but on a level of abstraction that precludes direct connection with a Roman judicial office.6 The content of the phrase in the third relationship, that of father and son, is less clear. On the one hand, the phrase is deeply rooted in the legal relationship between them, as is shown by the formula used in the ancient ceremony of adrogatio, a type of adoption. The Pontifex Maximus proposed to a council of the people (comitia curiata) that the adoption be approved in the following words: 7 velitis, iubeatis, uti L. Valerius L. Titio tam iure legeque filius siet, quam si ex eo patre matreque familias eius natus esset, utique ei vitae necisque in eum potestas siet, uti patri endo filio est. On the other hand, the extent of that power was not necessarily the same as that of a master over his slave. It is true that Dionysius of Halicarnassus attributes to Romulus a law giving a father total power over his son (2.26.4; cf. Dio Chrys. 15.20), including the right to kill him, but a legal source is rightly puzzled by the resulting inconsistency, even in early law. According to the Theodosian code: 8 libertati a maioribus tantum inpensum 6 Seneca’s discussion follows an example of abusive exercise of the death penalty which has as its subject a named Roman commander (1.18.3-19.8), presumably acting under the much wider discretion afforded by military discipline. It is not clear that the example is intended as an illustration of arbitrary power: the commander provides due grounds, albeit specious in Seneca’s eyes, for the death sentences that he orders. Also beyond the constitutional sphere are Manilius’ references to laws (leges) and scales (examen) of life and death. These powers are in the celestial sphere, belonging to Fate and the constellation Libra respectively. They assume judgments that are logical, equitable, and well-founded, even if from the perspective of humans they appear arbitrary (Astronomica 4.24; 5.49-50). 7 “By your permission and order, may Lucius Valerius be a son to Lucius Titius in law and statute, as if he had been born from that father and mother, and may he (Titius) have the power of life and death over him (Valerius), as a father has over a son” (Gell. NA 5.19.9; cf. Cicero Dom. 77.11; Seneca Major Controv. 3.3). 8 “So much importance was attached to freedom by our forbears that fathers, to whom was granted the right of life and the power of death over their children, were not allowed to rob them of their freedom” (4.9[8].6.pr.). The fragmentary Autun

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est, ut patribus, quibus vitae in liberos necisque potestas permissa est, eripere libertatem non liceret. For later law, the power was a dead letter, although abrogated by no specific statute, unlike the power of a master. A constitution of Constantine includes within the ambit of parricide the case of fathers killing sons (Cod. Theod. 9.15.1), which had been notably absent from the earlier Lex Pompeia de Parricidiis.9 Not all killing was parricide, however. A text in Justinian’s Digest attributed to Ulpian (3rd A.D.) states:10 inauditum filium pater occidere non potest, sed accusare eum apud praefectum praesidemve provinciae debet. Even if it is, as has been suggested, an interpolation by Justinian’s compilers,11 it attests to the persistent idea that a father could kill his son for cause, arrogating to himself the jurisdiction of a court of law for this purpose. Although the principle that a son’s serious crimes were under the jurisdiction of the courts, not the family, may have been established by the time of Constantine (Cod. Theod. 9.13.1.), a residual right of the father to kill his son for cause appears to have survived even in the later law. The Digest records with approval a decision recorded by Marcianus:12 Divus Hadrianus fertur, cum in venatione filium suum quidam necaverat, qui novercam adulterabat, in insulam eum deportasse,

9 10 11 12

commentary on Gaius first equates the powers of master and father, but then appears to distinguish them. Apparently, the author considers that in the case of a father, just cause is needed, but it is not clear from the broken context whether he regards this requirement as stemming from the Twelve Tables or from subsequent reform: domino vel parenti et occidere eum et mortuum dedere in noxam . . . patria potestas potest . . . n . . . cum patris potestas talis est ut habeat vitae et necis potestatem. de filio hoc tractari crudele est, sed . . . non est post . . . r . . . occidere sine iusta causa, ut constituit lex XII tabularum (Gaius Augustod. 4.85-86). Dig. 48.9.1 (Marcianus). It is curious that Justinian’s compilers failed to update the law in this case by interpolation. “A father cannot kill his son without a hearing but must accuse him before the prefect or provincial governor” (Dig. 48.8.2). Sachers 1953: col. 1087. “It is said that when a certain man had killed in the course of a hunt his son, who had been committing adultery with his stepmother, the late emperor Hadrian exiled him to an island, because he killed him more by the law of a brigand than by the right of a father; for paternal power ought to depend on compassion not cruelty” (Dig. 48.9.5).

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It is implied that the father had a right to kill his son because of the son’s offence and was only punished because he went about it in an unacceptable way. Indeed, when we look back at the earlier accounts of fathers killing sons, the question of justified punishment for an offence is always the key element. In an imaginary case used by Quintilian as material for a declamation, the same offence, actually incest with his natural mother, leads to the son’s death in the family home at his father’s hands, after torture to ascertain the truth, the father invoking vitae necisque potestas (Decl. mai. 19.5). Likewise, three famous historical cases, reported in multiple sources, purport to reflect practice during the Republic. Our concern is not with the genuineness of the reports but with the assumptions on which they operate.13 Disregarding the conflicting details of the different versions, then, the three stories are: a) a tribune of the plebs, Spurius Cassius, after he had relinquished his office, was tried and executed by his own father for the crime of seeking the kingship (Val. Max. 5.8.2; Livy 2.41.10); b) Aulus Fulvius was killed by his own father when he went to join the Catiline conspiracy (Val. Max. 5.8.5; Sallust. Bell. Cat. 39.5; Dio Cass. 37.36.4); c) Quintus Fabius Maximus had his son killed, apparently for some sexual misconduct (Val. Max. 6.1.5; Oros. 5.16.8).

13 For this reason we have excluded from consideration isolated late accounts, such as Oros. 4.13.18. Other sources cited by Sachers 1953: col. 1086-87, as evidence of the father’s right to kill his son, all concern a consul, dictator, military commander, etc., carrying out his public duty to punish a culprit in spite of the fact that the latter happens to be his son, e.g., Livy 4.29.5; 8.7.8; Cic. Fin. 1.7.23-24. Harris (1986: 82-87) adduces several further incidents where vitae necisque potestas might have been in issue. He attempts to assess the historicity of the incidents reported—in our view an impossible task. All of them were literary topoi that served a purpose in relation to the author’s contemporary audience.

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Only in the third case is it reported that the father suffered punishment for his act (Livy 2.41.10; Oros. 5.16.8). The assumption in all cases is that the father had the right to kill his son for the commission of an offence for which he would otherwise have been tried and executed by the public authorities. The father’s right is called into question only where it is less clear that the offence or the evidence justified the father’s action.14 Daughters were presumed by later writers to have been subject to the same vitae necisque potestas as sons in early law,15 but the few accounts of early practice as there are place the father’s action in the context of preserving his daughter’s chastity. One Aufidianus is supposed to have killed his daughter for unchastity with a slave, along with the slave himself (Val. Max. 6.1.3), and one Philiscus is likewise said to have killed his daughter for illicit intercourse (Val. Max. 6.1.6). In Livy’s dramatic account, Verginius slew his daughter to save her from being raped by the tyrannical decemvir Appius Claudius (3.48.4-7). Livy has him ask the revolutionary mob not to regard him as a parricide, assigning guilt for the deed rather to Claudius himself (3.50.5-7). Control over the daughter’s sexuality through vitae necisque potestas raises the question of a husband’s power over his wife. Although the phrase is never used of husband-wife relations, at least not at Rome,16 tradition had it that in early law a husband could kill his wife for drinking wine, otherwise a public offence, or for adultery (Dion. Hal. 2.25.6; Gell. NA 10.23.3-5; Pliny Nat. 14.14.89-91). The significance of the latter right will become evident when we examine ancient Near Eastern sources. Nothing in the law and practice discussed above serves to resolve the imbalances that we noted in the phrase itself: that one can only kill, not bring alive, and that the choice of killing or not killing does not require the duality of expression. In spite of its legal functions, which tend to require terminological rigor, the dual phrase seems to be no more than a pleonasm. 14 Cf. Seneca’s account of a relatively recent case in which a father tried his son for parricide by family council and condemned him to exile rather than opting for the usual form of execution for parricides (Sen. Clem. 1.15.2-7). The preceding story of a father who was almost lynched for flogging his son to death lacks sufficient details to draw conclusions as to vitae necisque potestas (Sen. Clem. 1.15.1). 15 Coll. 4.8.1 (Papinian) attributes the father’s power to the leges regiae. See the discussion of adultery below. 16 Cf. Caes. Bell. gall. 6.19 on Gallic husbands.

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Harris claims that its duality is nonetheless significant and can be explained by connecting the phrase with two practices: exposure of infants at birth and a father’s recognition of his new-born child (filium tollere).17 By recognition in the first few days during which an infant might be exposed, the father was giving it life. There are at least three objections to this. 1. The phrase is never associated with exposure of infants. Indeed, its most established legal use in the father-son relationship is in the ceremony of adrogatio, the adoption of an adult. Harris’ response—that the phrase was never thought of as applying exclusively to infants—raises the question whether it was thought of as applying to infants at all. The question of infant exposure or recognition could not be more irrelevant to the legal relationship being created by the ceremony. 2. Exposure was not necessarily the prerogative of the father. In Dig. 40.4.29, for example, it was carried out by the mother. Mothers are never endowed with vitae necisque potestas. 3. The phrase does not apply only to fathers, but, as we have seen, applies equally to slave owners, who could have no possible connection with the decision to expose or recognize infants; and a fortiori to political rulers. Accordingly, Harris’ explanation must be rejected as too speculative, since it is based on no evidence but merely on a situation to which the wording of the phrase might logically apply. Nevertheless, Harris’ approach is valuable, in that it points to the necessity to find a separate function for vitae necisque potestas. No evidence for such a function has been found in Roman sources, but, as we shall see, there is abundant evidence from the ancient Near East. *

*

*

In a short article published more than thirty years ago, Yaron drew attention to the similarity between the phrase vitae necisque potestas and a

17 Harris 1986: 93-95.

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widespread expression from the ancient Near East.18 It is often said of a king that “he kills; he makes live.” For example, Hittite Laws 187 reads: “If a man sins with a bull, it is an abomination; he shall die. They shall bring him to the royal gate. The king may kill him; the king may make him live.19 But he shall not come near the king.” Through this and the many other examples of the phrase, the true content of its second leg, “make live,” is revealed. It refers to the king’s prerogative of pardon. The reason for the dual character of the phrase thus becomes apparent. It expresses a choice, not between action and inaction but between two different types of action: to execute the criminal or to pardon him. The two acts are theoretically independent of each other, and, as in modern legal systems, might be in the hands of different persons. For example, a letter to king Ashurbanipal praises the benefits of his rule: 20 “He for whose crime death had been ordered, my lord the king has made live; he who had been a prisoner for many years, you have redeemed; he who had been ill for many days has recovered.” There still remains the inherent imbalance that we noted in the Latin phrase, namely that in spite of its wording, the power is only to cause death, not to bring to life. Again, closer scrutiny of the ancient Near Eastern sources provides this missing element. The first point to note is that there exists one type of ruler for whom aspects of the power are perfectly feasible. The Bible tells us (1 Sam 2:6): “The LORD puts to death and makes live; he brings down to the Netherworld and he brings up.” Mere mortals, on the other hand, cannot make the dead live. Or can they?21 The law has remarkable powers: it can make a man a woman or a 18 Yaron 1962b: 243-51. 19 hui nuzzi, the causative form in Hittite from the verb “to live.” In the Semitic languages, the intensive stem of the verb (a form that does not exist in Hittite) is used. 20 ABL 2; edition in Pfeiffer 1935: no. 160. Lines 21-22: a  a uni ana mute qabûni

arru b l ubtallissu. Cf. CAD B 61-62 and Q 38. The separate nature of the two acts also emerges from the distributive use of the phrase, e.g., Esarhaddon’s Succession Treaty (SAA 2 6), lines 193-194: “he shall put to death him who is worthy of death ( a duki); he shall pardon him who is worthy of pardon ( a ballui).” Edition in Parpola and Watanabe 1988: 36. 21 The letter to Ashurbanipal cited above gives the ruler only an indirect role in the curing of the sick, for which the intransitive verb “to live” (= to recover) is used.

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woman a man, a live man dead or a dead man live—in law, that is. Consider the following law in Deut 17:6: “The dead man shall be put to death on the word of two or three witnesses; he shall not be put to death on the word of one witness.” The apparent absurdity of this literal translation disappears once we realize that it is legal death that is in issue.22 A man who has been found guilty of a capital offence is deemed dead in the eyes of the law; his physical death must await his execution, which is not a foregone conclusion. For, as the prophet Ezekiel puts it (18:32): “Do not desire the death of the dead, says the Lord GOD; so repent and live.” The concept is illustrated by a letter to king Ashurbanipal from one of his officers. The letter begins by reporting success in a minor skirmish, but it then emerges that the officer is in disgrace due to an earlier military disaster:23 “Since Birat was sacked and its gods carried off, I am dead (m tu anku). Had I but seen the golden ring of my lord the king, I would have lived (abtalu). But behold, when I sent my messenger to my lord the king, I did not see the ring of my lord the king, and I did not live (ul ablu). I am dead (m tu anku); let my lord the king not forsake me!” Clearly, the death in question is figurative, referring to the officer’s disgrace. The king has punished him in some way, and the officer seeks a reversal of that order. There is hyperbole in the officer’s statement in that he compares his punishment to a death sentence, but the principle is not affected. The sequence of events narrated is: 1) punishment; 2) petition for remission of punishment (messenger, see the king’s ring); and 3) rejection of petition (not see the king’s ring). “Dead” refers to the original punishment, whereas “live” and “not live” refer to the petition and its failure. Of course, as a result of that failure, the officer remains in his previous status, hence repetition of the term “dead.” In Isa 38:1 (= 2 Kgs 20:1) king Hezekiah falls seriously ill. God informs him through the prophet Isaiah: “Put your house in order, for you are dead and you shall not live.” As in the letter of the Assyrian officer, 22 Standard translations ignore the word “dead man” (m t) in the Hebrew text, even though the Septuagint tries to take account of it (apothn skn: “dying man”). E.g., “the death sentence shall be executed” (Oxford Bible); “a person shall be put to death” (JPS); “on ne pourra être condamné à mort” (Bible de Jerusalem). Note that the Hebrew root *mt meaning “man” is not attested in the singular. 23 ABL 259; edition in Pfeiffer 1935: no. 22: reverse 1-10.

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“dead” refers to Hezekiah’s status as a condemned man. Sickness was regarded in the ancient Near East as, inter alia, divine punishment for sin, and a mortal illness was therefore a death sentence.24 “You are dead” thus means that Hezekiah has been found guilty of a capital sin by the divine judge. “You shall not live” means that he can expect no mercy. Hezekiah, however, refuses to take God at his word and begs for mercy (vv. 2-3), with the result that God eventually relents somewhat and grants Hezekiah another fifteen years of life (vv. 4-5). The message is that prayer and repentance may soften even the harshest decision, at least where the divine king is concerned. In the light of these examples, we see that the notion “make live” is a perfectly logical counterpart to “kill.” The condemned man is, legally speaking, dead, and the effect of pardon is to bring him back to life again.25 It should be noted in passing that we have moved in these examples from transitive to intransitive verbs, from “kill” and “make live” to “die” and “live.” All this means is that death sentence and pardon are being looked at from the condemned man’s point of view, rather than that of the judge. So far we have been examining the dual phrase, but there is no reason why “live” or “make live” should not be used alone to indicate pardon, or even to indicate by ellipsis the whole process of condemnation and pardon, if the context is sufficiently suggestive. In the “Nippur Homicide Trial,” an account from the early second millennium B.C.E. of a trial for murder before the Assembly of the city of Nippur, three men conspired to kill a fourth and, when they had done the deed, informed the victim’s wife.26 She kept her silence. All four were brought to trial. One group in the assembly argued as follows: “As men who have killed a man they are not live men (l ú .l ú .ù i n .g a z. e . à m l ú .t i .l a n u .m e .e). Those three males and that female shall be killed before the chair (of the victim).” Another group, however, argued that mercy should be shown to the wife: “Even if Ninda 24 See e.g., urpu (edition in Reiner 1958), a series of incantations designed to remove sin from a sick man by means of confession and ritual purification. Cf. Num 27:3 and 2 Kgs 5:20-27. 25 Yaron already surmised this possibility: “by his god-like intervention [the sovereign] ‘keeps alive,’ perhaps even ‘restores to life,’ the offender who has been condemned to death” (1962b: 248). 26 Edition in Jacobsen 1970: 193-214.

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daughter of Lu-Ninurta may have killed her husband, a woman, what can she do, that she should be killed?” The Assembly then considered the wife’s case and decided that she should be executed with the others. In this account, the facts had been proven; the only issue before the court was the possibility of clemency. It is therefore appropriate that the culprits are referred to by the group arguing against mercy not as “dead” but as “not live,” i.e., not worthy of mercy.27 More than a thousand years later, a striking illustration of this elliptical usage is given in a report of a trial for high treason.28 King Nebuchadnezzar II, having discovered a plot against him by a certain Babu-aa-iddina, “proved against him in the popular assembly the crimes that he had committed and looked upon him angrily and pronounced his not-living (l balssu iqbi), and his throat was cut” (lines 17-20). The narrative omits mention of the death sentence, which is self-evident in a case of treason, and focuses on the king’s prerogative of pardon, which presupposes a death sentence. The death penalty for treason resulted from a conviction by a court (the popular assembly, not the king); “not-living” resulted from the king’s decision to deny mercy. Finally, the same metonymy explains an enigmatic biblical law. Exod 22:17 reads: “You shall not make a witch live.” The law, in our interpretation, is addressed to the local authorities.29 It is understood that witchcraft is a capital offence. The purpose of the law is to forbid the local authorities to exercise a prerogative of mercy with regard to witches. The effect of elliptical usage of one part of the dual phrase is to cast emphasis on that aspect. In certain contexts, when used as a speech formula, that emphasis is such as to give the phrase a slightly different nuance. In 2 Kgs 10:19, king Jehu issues an order summoning the priests of Baal, without exception, and adds: “Anyone who is missing shall not live.” We understand from this that the penalty for disobedience is death, but it adds little to emphasize that the king will not pardon the offender. The 27 Cf. ABL 620 (edition in Waterman 1930-36: no. 620): “I am one of killing; I am not one of making live.” 28 AfO 17 2; edition in Weidner 1954-56a. 29 Westbrook 1986a: 62-66.

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emphasis lies rather in its focus on the final stage of judgment to the exclusion of the preceding stages. In the context of a speech formula expressing a peremptory order, truncation of the legal phrase is symbolic of truncation of the judicial process. The offender will be put to death summarily, without trial, without being able to offer an explanation or excuse. Failure to appear is proof of his guilt; there is no need for legal niceties and no question of pardon. The same is true in Gen 31:32 when Jacob, accused by Laban of stealing his household gods, accepts a search of members of his household, declaring: “With whomever your gods are found shall not live.” The use of the truncated phrase as a peremptory order is not confined to the Bible. In a letter from Mari dating to the 18th century, an official reports,30 “I assembled the sheikhs of the cities of the Binu-Yamina and I gave them the following strict order: 31 ‘Whoever you are, if a single individual leaves your city and you do not seize him and bring him to me, in truth you shall not live.’” Finally, returning to the Bible, in Exod 19:12-13, we find the full dual phrase but separated in a way that changes its emphasis. Moses, about to ascend Mount Sinai, is instructed to warn the people: “Do not go up onto the mountain or touch its edge. Anyone who touches the mountain shall be killed. No hand shall touch him, but he shall surely be stoned or shot. Whether beast or man, he shall not live.” There is to be no trial but instant death for trespassers, as postponement of the element “shall not live” until after the mode of execution indicates. It is not clear who was to carry out the stoning or shooting. The order seems to allude to the posting of guards, but another possibility, that we shall now examine, is that it entitled ordinary Israelites to take law into their own hands. In all the examples that we have examined from the ancient Near East the power of life and death is vested in the hands of the king or his delegates. The phrase is never used in connection with masters of slaves nor 30 ARM 2 92; edition in Jean 1950:122. 31 a pu unuti. CAD translates apu “to issue orders” (/1 450) but for no apparent reason creates a second lemma (/1 451) with three examples—one uncertain, one in broken context, and this passage, which it translates “I informed(?) them . . . .” In my opinion, the first meaning applies here also. Confirmation is provided by examples of the noun ipu, “ruling, strict order, reprimand” given in CAD /2 93.

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with fathers (with one partial exception that we shall discuss below). In cuneiform sources there is no hint that a master had the right to kill his slave under any circumstances.32 The one explicit biblical law on the subject, Exod 21:20-21, punishes a master whose slave dies in consequence of legitimate punishment, unless death was not reasonably foreseeable. In the case of a father, the law is explicit: Deut 21:18-21 requires a father desiring the execution of his wicked son to apply for a court order, and Codex Hammurabi 168-169 has the same requirement even for disinheritance. There are, however, two key texts where the phrase is used in connection with private individuals. The first is a passage in the book of Zechariah (13:3): “But if a man continues to prophesy, his father and mother who bore him shall say to him, ‘You shall not live, for you have spoken falsehood in the name of the Lord,’ and his father and mother who bore him shall pierce him through because of his prophesying.” False prophesy was a form of apostasy, a serious public offence for which the death penalty is prescribed in the laws of Deuteronomy (18:20, cf. 13:5, 9-10; 17:2-5). According to those laws, execution was to be by the community and only after a public trial, with procedural safeguards for the defendants, or after a formal inquiry by the public authorities (13:1-16; 17:2-7). In the prophetic passage, however, the situation is considered so serious that the culprit’s parents are given the right to execute summary justice themselves, without going through the normal procedures. They assert that right by means of the speech formula “You shall not live,” which as we have seen is normally used by rulers when they order summary execution.33 For a brief moment, and in special circumstances, the 32 In the Hittite Instructions for Temple Officials, there is mention of killing a slave (1ines 29-30): “If a slave should anger his master, either they kill him, or they harm his nose, his eyes, his ears.” The unexpected shift to third person plural in the verbs of punishment shows, however, that the punishment was to be carried out by someone other than the master. (A full translation of the complete text is available in ANET3 207-10.) 33 The difficulty of this phrase for commentators, and the strained rationalizations that result, are illustrated by a recent example: “. . . the sentence here is expressed somewhat less directly, perhaps to ameliorate the harsh and extraordinary circumstances

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parents are given the authority of a ruler or judge over a criminal: their own son. The second text consists of three paragraphs of Codex Eshnunna, a law code from a kingdom to the north of Babylonia that slightly predates the Codex Hammurabi: 12 A man who is seized in the field of an ordinary citizen, in the sheaves at noon, shall pay 10 shekels of silver. He who is seized in the sheaves at night: he shall die, he shall not live. 13 A man who is seized in the house of an ordinary citizen, in the house at noon, shall pay 10 shekels of silver. He who is seized in the house at night: he shall die, he shall not live. 28 . . . If he makes the contract and libation with her father and mother and marries her, she is a wife. The day she is seized in the lap of a man she shall die, she shall not live. Two situations are described which are familiar from the many parallels in laws from not only the ancient Near East but also Greece and Rome. The first is the burglar caught at night, and the second is the wife caught in adultery. All the parallels share a common feature—the culprit is caught in flagranti delicto—and offer the same legal solution: the victim is entitled to kill the culprit on the spot without trial and is not liable for murder. The case of the burglar is found in the laws of Exodus,34 of Solon,35 and of the Roman Twelve Tables.36 In all three the distinction is made between seizure by day, when the victim is not entitled to kill the burglar but only to claim the normal penalties for theft, and seizure by night, when he can kill whereby parents are called upon to execute their own children” (Meyers and Meyers 1993: 374). 34 “If the thief is caught breaking in and is struck dead, he has no blood. If the sun has risen on him, he has blood. He shall surely pay. If he cannot, he shall be sold for his theft” (Exod 22:1-2). 35 “For a theft in day-time of more than fifty drachmas a man might be arrested summarily and put into custody of the Eleven. If he stole anything, however small, by night, the person aggrieved might lawfully pursue and kill or wound him, or else put him into the hands of the Eleven, at his own option” (Demosthenes, In Timocratem 113). 36 SI NOX FURTUM FAXSIT, SI IM OCCISIT, IURE CAESUS ESTO. LUCI . . . SI SE TELO DEFENDIT, . . . ENDOQUE PLORATO (VIII 12-13).

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with impunity. The case of adultery is found in the Hittite Laws37 and the Middle Assyrian Laws.38 In both, the husband has the right to kill his wife and her lover should he catch them in flagranti delicto, provided he kills both. At Rome, the right of the husband in early law is described by Aulus Gellius, quoting M. Cato, thus:39 in adulterio uxorem tuam si prehendisses, sine iudicio inpune necares. Augustan legislation (lex Julia de adulteriis coercendis) shifted the right from the woman’s husband to her father but retained the old (i.e., ancient Near Eastern) learning on the circumstances, namely that he was entitled to kill the lover provided he killed the woman at the same time.40 In our view, these parallels are no accident. The two cases are scholastic legal problems from Mesopotamian scribal schools, part of a body of learning that spread across the ancient Near East and even found its way into the Mediterranean countries.41 The solution that we would expect in the Eshnunna laws is summary execution by the householder or husband, and by now we can see that the enigmatic formula “he shall die, he shall not live” is entirely appropriate. Here the formula is not truncated, but that is not surprising, as it is not a speech formula and the context in itself does not explain the right. Theft and adultery are not public offences that have

37 “. . . if the husband finds them (the adulterers) and kills them, there is no liability upon him” (§197). 38 MAL A 15 is a difficult text, the interpretation of which is the subject of debate among scholars. I translate as follows: “If a man seizes a man with his wife (and if) it has been established and proved with respect to him: (on condition that) both are killed, there is no liability upon him.” See further Westbrook 1990b: 551-54. 39 “If you should take your wife in adultery, you may with impunity kill her without trial” (Gell. NA 10.23.5). 40 Coll. 4.2.3-4, 6-7 (Paul); Dig. 48.5.21(20) (Papinian); Dig. 48.5.24(23).pr.-4 (Ulpian). In Coll. 4.8.1, Papinian is asked the following question: cum patri lex regia dederit in filia vitae necisque potestatem, quo bonum fuit lege conprehendi, ut potestas fieret etiam filiam occidendi. Many commentators have assumed lex to refer to the Twelve Tables (e.g., Watson 1975b: 42 n. 12), but since the extract is from Papinian’s book On Adulteries and since it is given in the context of a discussion of the lex Julia, it would seem much more reasonable to conclude that it is the Augustan statute that is meant. See Rabello 1979: 36 n.39. 41 The influence of ancient Near Eastern intellectual traditions on early Roman law is discussed in detail below.

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to be stopped at all costs, in which action might be expected of a private person.42 If a private person is to be given the authority of a ruler, a reference to the full formula is necessary. “Shall die” establishes that the culprit is liable to the death penalty; “shall not live” establishes the modalities of its execution, namely summarily at the hands of the victim. Were the victim to spare the culprit and bring him or her before a court, it is not clear that the result would be the same in both cases. The comparative evidence suggests that the adulterous wife might still suffer the death penalty but that the thief would receive a lesser punishment.43 To summarize the Near Eastern evidence: the dual formula was used in three situations. Firstly, and primarily, it was used to describe the dual right of rulers to condemn to death or to pardon a person guilty of a capital offence. In this situation, however, the right had one vital feature which has yet to be been mentioned. As Yaron emphasizes, the phrase refers not to some tyrannical whim but to a proper judicial discretion, the exercise of mercy as part of the normal, and desirable, functions of a sovereign subject to the rule of law.44 This is only to be expected since ancient Near Eastern sovereigns were thought to have received a divine mandate to do justice

42 Compare the case of Pinhas in Num 25:7-8, who brought to an end a plague by summarily killing apostates. 43 The continuation of Middle Assyrian Laws A 15 cited above reads: “If he (the husband) seizes (the lover) and brings him before the king or the judges, (and if) it has been established and proved with respect to him: if the husband of the woman will kill his wife, he shall kill the man; if he cuts off his wife’s nose, he shall turn the man into a eunuch and his whole face shall be mutilated; but if he frees his wife, he shall free the man.” Codex Hammurabi 129 contains a similar rule. Yaron in a recent article claims antonymic use of the phrase “he shall die; he shall not live” is an empty flourish (Yaron 1993b). While admitting that the right to kill the culprit caught in flagranti delicto is the most satisfactory legal explanation of the phrase in the Eshnunna provisions, he finally rejects that solution because the wording of the phrase “does not connect up.” Curiously, Yaron fails to cite his earlier article on vitae necisque potestas, which provides the basis for our attempt in this article to demonstrate a connection between law and phraseology. It is true that the antonymic repetition could well be merely for emphasis in many of the texts in which it is used, but in a legal context we are entitled to look for a legal meaning, to assume more than a rhetorical flourish. This aspect of the problem is discussed by us in Westbrook 1997. 44 Yaron 1962b: 248.

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and the legitimacy of their rule depended upon fulfillment of their divine mandate.45 The second situation is where a ruler in the proper context uses a truncated version of the formula as a speech formula denying mercy. From that context, the formula may be understood to refer to the ruler’s right to impose summary execution for manifest infringement of a law or order. Thirdly, in exceptional circumstances, the phrase may indicate the right of a private person to execute summary justice by killing a criminal himself. In those cases the right will constitute a defense to a subsequent charge of murder. *

*

*

What then was its relationship with the Latin phrase and the very different institution attested at Rome? Yaron issues the following disclaimer: “A connection between the Eastern notions and Roman vnp is not suggested,—not because it is in itself impossible or unlikely, but rather because there is no evidence available to establish it. Since that is so, our case rests simply on the existence of similar notions in similar situations.”46 On the face of it, however, neither the notions nor the situations are so very similar. The symbol of a legitimate king in one sphere is the symbol of tyranny in the other. A legal function attributed to Near Eastern kings is matched by a different legal function attributed to Roman masters and fathers. In the ancient Near East, the phrase is not associated with masters, who are not endowed with the right to kill their slaves, whether at will or for cause. With one partial exception that we have seen, the same applies to fathers. On the other hand, a key element of the institution in ancient Near Eastern sources, the right to pardon, is totally absent from the Roman sources.

45 King Hammurabi, for example, states in the prologue to his law code: “(the gods) Anu and Enlil, in order to ensure the welfare of the people, named me, Hammurabi, the pious prince who fears the gods, to make justice in the land, to destroy the evil and the wicked, that the strong might not oppress the weak.” (Col. I, lines 27-49). See Wiseman 1962. 46 Yaron 1962b: 248.

Vitae Necisque Potestas

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Yaron suggests47 that the sovereign nature of early Roman patria potestas provides a sufficient analogy, but to what? Not to early Roman kings, of whom the phrase is never used. Comparison between the two institutions can be drawn only on the basis of a historical development, which presupposes a historical connection. In our opinion, Yaron’s caution is unwarranted and detracts from the importance of his insight. The key similarity of the phrases is in their form—that curious duality, illogical in Roman usage but logical in Near Eastern usage, through which the missing element in the Roman usage is revealed. That combination of similar form and complementary meaning is in itself evidence of a literary dependency. The literary dependency indicated by the dual phrase strongly correlates with the influence of ancient Near Eastern intellectual traditions on early Roman law as attested in the phenomenon of “law codes.”48 In the ancient Near East, there was a recognizably distinct genre of literature that modern scholars refer to as law codes. In spite of being widely scattered in time (from the third to the first millennium) and place (Sumer, Babylonia, Assyria, Hatti, and biblical Israel), the nine extant examples show a striking similarity on several levels.49 The most immediate resemblance is in style: all are casuistic collections, that is to say lists of hypothetical cases (“If a man does X . . .”) followed by an appropriate legal ruling (“his punishment shall be Y”). At a second level, they all share the same method of reasoning. Paragraphs are not concatenated at random but are organized in groups that follow certain set patterns. For example, a single case will be considered over the course of several paragraphs by varying the circumstances so as to alter the legal ruling, with frequent use of certain standard variations, e.g., if the victim 47 Yaron 1962b: 248-49. 48 The following discussion summarizes our previous, detailed studies of this topic: Westbrook 1985a; 1988a; 1990b: 547-56; 1995a. See also Yaron 1974. 49 Codex Ur-Namma, from the city of Ur in southern Mesopotamia (21st century); Codex Lipit-Ishtar, from the city of Isin in southern Mesopotamia (20th century); Codex Eshnunna, from the eponymous city in central Mesopotamia (18th century); Codex Hammurabi, from Babylon in central Mesopotamia (18th century); Middle Assyrian Laws, from Assur in northern Mesopotamia (11th century); Hittite Laws, from Hattusas in Anatolia (various versions from 17th to 12th century); Covenant Code = Exod 21:1-22:16, from Israel (9th century?); Deuteronomic Code = Deut 21:1-25:16, from Israel (7th century).

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were free or slave, male or female, etc. Thirdly, the same content is repeated from code to code, in varying degrees. Most frequently, the same basic case is found, albeit with different variants; sometimes the same variants are found; occasionally the very same legal ruling; and in a few instances the phraseology is so close as to be virtually a translation, leaving no doubt as to their dependency on a common literature. 50 Furthermore, crucial legal distinctions and evidentiary presumptions are also repeated, showing dependency on a common jurisprudence.51 The connection between these codes did not lie in the realm of legal systems or institutions but of ideas. The Near Eastern codes were not legislation as we understand it today. They belonged to a wider genre of “scientific” literature, which included divinatory, medical, and lexical texts.52 All were presented in the form of lists of examples—in the case of the omens and their meaning and medical symptoms and their diagnosis, in casuistic form like the codes. This was Mesopotamian science: the attempt to understand phenomena by listing them in endless groups of associated examples. The law codes were lists of legal problems with their solutions, based upon a core of precedents expanded by extrapolation to theoretical variations. A canon of standard problems, such as the goring ox, the burglar caught at night, the wife caught in adultery, were used for didactic purposes and transmitted (orally) from generation to generation, which explains their recurrence in various law codes. As part of the wider scientific tradition, the legal canon spread from Mesopotamia across the ancient Near East, occasionally finding written expression in documents such as those that we call law codes.53

50 The most striking example is the rule concerning an ox goring an ox, which results in virtually identical texts in Codex Eshnunna 53 (in Akkadian) and Exod 21:35 (in Hebrew). See Malul 1990: 113-52. 51 For example, the distinction between day and night in guilt for killing a burglar, discussed above; the distinction between town and countryside in presuming acquiescence of a woman in intercourse (Hittite Laws 197 and Deut 22:23-26); the status of a woman who is betrothed but not married in cases of sexual misconduct (Codex Ur-Namma 6, Codex Eshnunna 26, Codex Hammurabi 130, Deut 22:23-4). 52 See Bottéro 1992: 156-84. 53 The law codes of necessity contain only a small part of the body of knowledge that must have existed in the scholastic legal tradition. The reason for creating written codes varied. Codex Hammurabi, for example, was a royal apologia, designed to dem-

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The characteristic features of the Near Eastern codes are shared by early Roman laws such as the Twelve Tables and the Lex Aquilia. Examples from the canon of standard legal problems are found both within the law codes and in other sources recording traditions of early law. We have seen in our discussion above two such examples—the burglar caught by night and the woman taken in adultery—that relate directly to rights associated with the dual phrase. We therefore consider the Roman codes to have been a manifestation of the same scholastic tradition that lay behind the Near Eastern codes. Accordingly, we suggest that the various rights conceptualized by the dual phrase vitae necisque potestas may initially have entered Roman law as part of that scholastic tradition. Quite apart from the evidence of the law codes, the time for reception of the dual phrase must be located in early Roman history, for two reasons. Firstly, the hoary antiquity attributed to the phrase by Roman tradition is confirmed by its role in the archaic ceremony of adrogatio.54 Secondly, whereas the Near Eastern institution shows a clear and logical development by analogy from the royal prerogative, Roman usage is confused and contradictory, pointing to an inner-Roman development, or rather distortion, which may be linked to the vicissitudes of Roman history. For the central aspect of the Near Eastern institution, the prerogative of the ruler to pardon, would be most appropriate to the period of the kings, and by the same token the absence of this central aspect in the Roman version is accounted for by the caesura in Roman history that replacement of monarchy by the republic represents.55 The period of the kings is notorious for the predominance of legend over historical evidence. Moreover, if the connection was through an intellectual tradition, it would be unwise to seek a specific point of reception. Nonetheless, it can be said that the period of the last kings, with their onstrate primarily to the gods that Hammurabi had fulfilled his divine mandate to be a just king; see Finkelstein 1961: 91-104. 54 The comitia curiata, which was responsible for adrogatio, goes back to the period of the kings. See Heurgon 1993: 216-18; and Linke 1995: 56-63. 55 It is no objection to say that the Twelve Tables and the Lex Aquilia are located by later tradition in the Republican period. The traditional dates for their promulgation can in no way be relied upon, and even if they are accurate, they do not preclude the possibility, highly likely in our view, of the legal traditions that they contain going back to a much earlier date.

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Etruscan background, provides especially propitious conditions. On the one hand, the Pyrgi inscription attests to the penetration of Near Eastern elements into the constitutional structure of neighboring Etruscan kingdoms.56 On the other, several scholars have identified the last Roman kings, of Etruscan origin, as the conduit through which the central elements of an ancient Near Eastern religio-political institution, the New Year Festival, were introduced into Rome.57 The reason, according to Cornell, was that the sixth-century kings, in their search for legitimacy and charismatic authority, adopted Greek and Near Eastern models of kingship.58 The dual formula, embodying a ruler’s prerogatives of punishment and pardon, would have furnished just such a model. *

*

*

A reconstruction of the early history of the dual phrase at Rome can, in the absence of contemporary native evidence, only be speculative. If it is descended from the Near Eastern institution, however, then evidence from the latter sphere places our speculations on a slightly firmer footing. We tentatively suggest the following scenario. 1. The prerogative of the kings of early Rome to execute and pardon, conceptualized in a dual phrase of ancient Near Eastern origin—vitae necisque potestas—disappeared with the Republic, under which an entirely different system of appeal (provocatio ad populum) prevailed.59 56 For a recent translation of the Phoenician text, see Schmitz 1995. 57 Versnel sees the ludi Romani as an Etruscan New Year Festival of Near Eastern origin in which the king acted the part of Iuppiter (1970: 255-84). Cornell identifies the central ritual of the New Year festival—the “sacred marriage” between the king and a goddess—in the legend of Servius Tullius’ relationship with the goddess Fortuna (1995: 146-48). For a recent study of the Babylonian New Year Festival, see Black 1981. On the sacred marriage ritual by Near Eastern kings, see Renger 1975. 58 Cornell in fact denies that the rule of the so-called Etruscan kings resulted in Etruscan political or cultural domination of Rome (1995: 151-72), but this does not affect our argument, since he still attributes to those same kings the introduction of Near Eastern institutions into the Roman kingship. 59 The history of provocatio in the Republic is the subject of scholarly controversy, but it is agreed that purported instances in the regal period are fictions. See Bleicken 1959: esp. 333-39; and Lintott 1972.

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2. A right of summary execution by private citizens, conceived under the same rubric, existed in certain narrow circumstances, such as the thief caught by night, the wife caught in adultery, and those guilty of serious crimes caught by their parents. The right of parents became institutionalized, as evidenced by the use of the dual phrase in the formula of the adrogatio ceremony, and a faint echo of this right to kill for cause still existed in later law.60 3. A right of summary execution must also have existed for masters of slaves, but it is doubtful that originally it could be exercised without cause. One of the main factors tempering the harshness of slavery in ancient Near Eastern law was that a major source of slaves was citizens selling themselves or their children for debt. A curious feature of classical Roman law, by contrast, was the virtual absence of debt slavery.61 Early law had recognized the sale of children of citizens into slavery, probably for debt, as the protasis of IV 2 in the Twelve Tables reveals: si pater ter filium venum duit . . . .62 There had also existed the widespread practice of taking citizens into debt bondage (nexum) which, if it was not slavery in strict law, in social reality amounted to the same.63 Nexum, however, was abolished by the Lex Poetelia towards the end of 60 Compare the case reported by Valerius Maximus (6.3.8): publicia autem . . . item Licinia, quae . . . viros suos veneno necaverunt, propinquorum decreto strangulatae sunt. Non enim putaverunt severissimi viri in tam evidenti scelere longum publicae quaestionis tempus exspectandum. itaque quarum innocentium defensores fuissent, sontium mature vindices extiterunt. 61 The statement of principle for classical law is found in Paulus, Sent. 5.1: qui contemplatione extremae necessitatis aut alimentorum gratia filios suos vendiderint, statui ingenuitatis eorum non praeiudicant: homo enim liber nullo pretio aestimatur. Codex Theodosianus, as we have seen, projected this view back into early history (4.9[8].6.pr.). An exception, however, remained for the sale of newborn babies; see Buckland 1908: 421-22; and Yaron 1965. 62 On the connection between this provision and debt slavery, in the light of ancient Near Eastern sources, see Westbrook 1989b. 63 On the social reality behind nexum and the background to its abolition, see Richard 1986: 124-27; and Raaflaub 1986: 208-17. On the legal nature of nexum, see MacCormack 1967: 350-55.

412

Writings of Westbrook, Vol. 1: The Shared Tradition the fourth century, and by the late Republic the sale of children had become a mere fiction to effect emancipation from patria potestas (Gaius Inst. I 132). Instead, expansion of the empire from the third century on radically changed the nature of slaveholding. The main source of slaves became foreign captives (and later their offspring), thereby opening the way to a much harsher attitude to slaves and the abandonment of all restraint on masters’ powers.64 For the classical jurists, the prisoner of war was the archetype of a slave and his captive status the legal basis of slavery, by a mode of reasoning which brings us full circle to the rationale for the power of life and death in ancient Near Eastern jurisprudence. Florentinus takes it as axiomatic that the origin of slavery was captivity in war: 65 servi ex eo appellati sunt, quod imperatores captivos vendere ac per hoc servare nec occidere solent: mancipia vero dicta, quod ab hostibus manu capiantur. On the other hand, according to Ulpian “slavery is equated with death.”66 The resolution of the apparent contradiction between these two statements lies in the concept which we have seen was central to the dual prerogative in the ancient Near East, that of legal death. For Ulpian elsewhere states:67 in omnibus partibus iuris is, qui reversus non est ab hostibus, quasi tunc decessisse videtur, cum captus est. Although Roman law was interested only in Roman citizens captured by foreign enemies, the same principle would be equally valid for foreign captives of Roman arms. As Bradley puts it, the enslaved captive was

64 Bradley 1987; and 1994: 13-14, 31-33, 39-42. 65 “Slaves (servi) are so called because generals have a custom of selling their prisoners and thereby preserving rather than killing them; and indeed they are said to be mancipia, because they are captives in the hand (manus) of their enemies” (Dig. 1.5.4.2). 66 servitus morti adsimulatur: Dig. 35.1.59.2. Cf. Dig. 50.17.209 (Ulpian). 67 “In every branch of the law, a person who fails to return from enemy hands is regarded as having died at the moment when he was captured” (Dig. 49.15.18). The doctrine of postliminium may therefore be regarded as the equivalent of pardon in that it brought back to life a person who was legally dead.

Vitae Necisque Potestas regarded as being in a condition of suspended death at the discretion of his captor.68 4. By the late Republic, the master-slave relationship was the only legal relationship in which vitae necisque potestas was still a living institution. Based on the experience of that relationship, the phrase became a metaphor for unbridled tyranny in the political sphere, being now understood as the right of summary execution without cause.

68 Bradley 1994: 26.

413

Abbreviations A AAASH AASOR AB ABAW AbB ABL

ADD AEM ÄF AfK AfO AfO Beiheft AHDO AHw AION AJSL AnBib ANET3

AnOr AnSt AOAT AoF AOS

tablets in the collections of the Oriental Institute, University of Chicago Acta Antiqua Academiae Scientiarum Hungaricae Annual of the American Schools of Oriental Research Anchor Bible Abhandlungen der Bayerischen Akademie der Wissenschaften Altbabylonische Briefe im Umschrift and Übersetzung Harper, R., ed. 1892-1914. Assyrian and Babylonian Letters Belonging to the Kouyunjik Collections of the British Museum. 14 vols. Chicago: University of Chicago Press. Johns, C. H. W. 1898-1924. Assyrian Deeds and Documents. 4 vols. Cambridge: Deighton, Bell. Archives Epistolaires de Mari Ägyptologische Forschungen Archiv für Keilschriftforschung Archiv für Orientforschung Archiv für Orientforschung Beiheft Archives d’histoire du droit oriental Soden, W. von. 1965-1981. Akkadisches Handwörterbuch. 3 vols. Wiesbaden: Harrassowitz. Annali dell’Istituto Universitario Orientale di Napoli American Journal of Semitic Languages and Literature Analecta biblica Pritchard, J. B., ed. 1969. Ancient Near Eastern Texts Relating to the Old Testament. 3d ed. with supplement. Princeton: Princeton University Press. Analecta orientalia Anatolian Studies Alter Orient und Altes Testament Altorientalische Forschungen American Oriental Series

416

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Aristotle Ath. Pol. ARM Arnaud Emar 6

Arnaud Textes syriens ArOr ARU

AS ASAW ASJ ASOR ASORSup AT AuOr AuOrSup Authorized Version

AV b. B. Qam. b. Gi. b. Soah BA BA BaghM BASOR BASP BBB BBSt. BE Beckman and Hoffner 1996

Aristotle, Athenain politeia Archives Royales de Mari Arnaud, D. 1986. Recherches au pays d’Atata, Emar VI. Vol. 3: Textes sumériens et accadiens. Paris: Éditions Recherches sur les civilisations. Arnaud, D. 1991 Textes syriens de l’âge du bronze récent. AuOrSup 1. Barcelona: Editorial Ausa. Archív Orientáliní Kohler, J., and A. Ungnad. 1913. Assyrische Rechtsurkunden, in Umschrift und Übersetzung nebst einem Index der Personen-Namen und Rechtserläuterungen. Leipzig: Pfeiffer. Assyriological Studies Abhandlungen der Sächsischen Akademie der Wissenschaften Acta Sumerologica American Schools of Oriental Research American Schools of Oriental Research Supplement Series Alalakh Tablets Aula Orientalis Aula Orientalis Supplement Series Authorized Version. See Hall, F., et al., eds. 1924. The Holy Bible, Reprinted according to the Authorized Version, 1611. London and New York: Nonesuch Press; Lincoln MacVeagh; Dial Press. Anniversary Volume Babylonian Talmud Bava Qamma Babylonian Talmud Giin Babylonian Talmud Soah Babylonische Archive Biblical Archaeologist Baghdader Mitteilungen Bulletin of the American Schools of Oriental Research Bulletin of the American Society of Papyrologists Bonner Biblische Beiträge King, L. W. 1912. Babylonian Boundary Stones, London: British Museum. Babylonian Expedition of the University of Pennsylvania, Series A: Cuneiform Texts Beckman, G. M., and H. A. Hoffner, Jr. 1996. Hittite Diplomatic Texts. SBLWAW 7. Atlanta: Scholars Press.

Abbreviations Beckman Emar

Bib Bible de Jérusalem BICSSup BiMes BIN BISNELC BM BO Bo. Boyer Contribution BRM BT

BWANT BZ BzA BZAR BZAW c(a). CAD

Caesar Bell. gall. Camb. Cato de agr. CBS CC CE CH CHANE chap(s).

417

Beckman, G. M. 1996. Texts from the Vicinity of Emar in the Collection of Jonathan Rosen. HANEM 2. Padua: Sargon. Biblica École Biblique et Archéologique Française. 1974. La Bible de Jérusalem: La Sainte Bible. Paris: Éditions du Cerf. Bulletin of the Institute of Classical Studies Supplement Bibliotheca Mesopotamica Babylonian Inscriptions in the Collection of J. B. Nies Bar-Ilan Studies in Near Eastern Languages and Culture tablets in the collections of the British Museum Bibliotheca Orientalis field numbers of tablets excavated at Boghazköi Boyer, G. 1928. Contribution à l’histoire juridique de la 1ère dynastie babylonienne. Paris: Geuthner. Babylonian Records in the Library of J. Pierpoint Morgan Kutscher, R. 1989. The Brockman Tablets of the University of Haifa. Vol. 1. Royal Inscriptions. Haifa: Haifa University Press; Harrassowitz: Wiesbaden. Beiträge zur Wissenschaft von Alten und Neuen Testament Biblische Zeitschrift Beiträge zur Assyriologie Beihefte zur Zeitschrift für altorientalische und biblische Rechtgeschichte Beihefte zur Zeitschrift für die alttestamentliche Wissenschaft circa Oppenheim, A. L., et al., eds.1956-. The Assyrian Dictionary of the Oriental Institute of Chicago. Chicago: Oriental Institute of the University of Chicago. Caesar, de bello gallico = Gallic War Strassmaier, J. N. 1890. Inschriften von Cambyses, König von Babylon (529-521 v. Chr.). Leipzig: Pfeiffer. Cato, de agri cultura origins tablets in the collections of the University Museum of the University of Pennsylvania, Philadelphia Covenant Code Code of Eshnunna Code of Hammurabi Culture and History of the Ancient Near East chapter(s)

418

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CHD

Cicero Att. Cicero de leg. Cicero Dom. Cicero Fin. Cicero pro Balbo Cicero pro Tullio Cicero Rep. Cicero Verr. CL Claud. Rap. Pros. aCM Cod. Theod. col(s). Coll. ConBOT Cowley CQ CRRAI CSA CT CT Nebraska CTH CTN CU Cyr. D. Dalley Edinburgh

Dar.

Güterbock, H. G., and H. A. Hoffner, Jr. 1980-. The Hittite Dictionary of the Oriental Institute of the University of Chicago. Chicago: The Oriental Institute. Cicero, Epistulae ad Atticum Cicero, de legibus Cicero, de domo sua Cicero, de finibus bonorum et malorum Cicero, pro L. Balbo Cicero, pro M. Tullio Cicero, de re publica Cicero, In Verrem Code of Lipit-Ishtar Claudian, de Raptu Proserpinae Cuneiform Monographs Theodosian Code; Codex Theodosianus column(s) Mosaicarum et Romanarum legum collatio Coniectanea Biblica Old Testament Series Cowley, A. 1923. The Aramaic Papyri of the Fifth Century B.C. Oxford: Oxford University Press. Classical Quarterly Compte-rendu de la Rencontre Assyriologique International Cahiers de la Société Asiatique Cuneiform Texts from Babylonian Tablets in the British Museum Forde, N. W. 1967. Nebraska Cuneiform Tests of the Sumerian Ur Dynasty. Lawrence, Kansas: Coronado Press. Laroche, E. 1971. Catalogue des textes hittites. Études et commentaires 75. Paris: Klincksieck. Cuneiform Texts from Nimrud Code of Ur-Namma Strassmaier, J. N. 1890. Inschriften von Cyrus, König von Babylon (538-529 v. Chr.). Leipzig: Pfeiffer. Corpus Juris Civilis, Digesta (author as applicable) Dalley, S. 1979. A Catalogue of the Akkadian Cuneiform Tablets in the Collections of the Royal Scottish Museum, Edinburgh, with Copies of Texts. Royal Scottish Museum Art and Archaeology 2. Edinburgh: Royal Scottish Museum. Strassmaier, J. N. 1890. Inschriften von Darius, König von Babylon (521-485 v. Chr.). Leipzig: Pfeiffer.

Abbreviations Demosthenes Timocr. Dig. Dio Cass. Diodorus Siculus Bib. Hist. Dion. Hal. DN EA

Ea ed(s). EI Ent. Erimhu

FAOS ff. FIOL FIRA Florentinus Dig. G. GAG

Gaius Augustod. Gaius Dig. Gaius Inst. Gaius Prov. Edict Gell. NA GN GRBS GRBM Gurney MB Texts

419

Demosthenes, In Timocratem Corpus Juris Civilis, Digesta (author as applicable) Cassius Dio Diodorus Siculus, Biblioteca Historica Dionysius (of) Halicarnassus divine name El-Amarna Letters, as edited in Knudtzon, J. A., ed. 19071915. Die El-Amarna-Tafeln. 2 vols. Vorderasiatische Bibliothek. Leipzig: Hinrichs. lexical series ea A = nâqu; published in MSL XIV editor(s) Eretz-Israel Entemena lexical series er i m u = anantu; published in MSL XVII Freiburger Altorientalische Studien and following The Formation and Interpretation of Old Testament Literature Riccobono, S., and J. Baviera, eds. 1968. Fontes iuris Romani anteiustiniani. 3 vols. Florenz: Barbèra. Corpus Juris Civilis, Digesta (Florentinus) Gaius, Institutiones Soden, W. von. 1969. Grundriss der Akkadischen Grammatik. 2 vols. Analecta Orientalia 33 and 47. Rome: Pontifical Biblical Institute. Fragmenta interpretationis Gai institutionum Augustodunensia Corpus Juris Civilis, Digesta (Gaius) Gaius, Institutiones Gaius, Ad Edictum Praetoris Provinciale = Commentary on the Provincial Edict Gellius, noctes Atticae geographic name Greek, Roman, and Byzantine Studies Greek, Roman, and Byzantine Monographs Gurney, O. R. 1983. The Middle Babylonian Legal and Economic Texts from Ur. London: British School of Archaeology in Iraq.

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HAL3

HANEM HANES HdO HG Hg. Hh. HL HSCP HSM HSS HTR HUCA IBHS IBoT ICC ICK

IEJ Il. IM IOS ITT

J. Westenholz Emar JANES JAOS JBL JCS

Köhler, L., Baumgartner, W., and Stamm, J. J. 1967-96. Hebräisches und Aramäisches Lexikon zum Alten Testament. 3d ed. Edited by W. Baumgartner. Leiden: Brill. History of the Ancient Near East Monographs History of the Ancient Near East Studies Handbuch der Orientalistik Kohler J., A. Ungnad et al. 1904-23. Hammurabis Gesetz. 6 vols. Leipzig: Pfeiffer. lexical series AR.gud = imrú = ballu; published in MSL VXI lexical series AR.ra = ubullu; published in MSL V-XI Hittite Laws Harvard Studies in Classical Philology Harvard Semitic Monographs Harvard Semitic Studies Harvard Theological Review Hebrew Union College Annual Waltke, B. K., and M. O’Conner. 1990. An Introduction to Biblical Syntax. Winona Lake, Ind.: Eisenbrauns. Istanbul Arkeoloji Müzelerinde Bulunan Bo azköy Tabletleri International Critical Commentary Hrozn B. 1952-62. Inscriptions cunéiformes du Kultépé. Translated by M. David. 2 vols. Archív Orientální Monografie 14. Praha: Státni pedogogické nakl. Israel Exploration Journal Homer, The Iliad tablets in the collections of the Iraq Museum, Baghdad Israel Oriental Society Constantinople Arkeoloji Müzeleri [Constantinople Archaeological Museum]. 1910-21. Inventaire des tablettes de Tello conservées au Musée impérial ottoman. 5 vols. Paris: Leroux. Westenholz, J. G. 2000. Cuneiform Inscriptions in the Collection of the Bible Lands Museum Jerusalem: The Emar Tablets. CM 13. Groningen: Styx. Journal of the Ancient Near East Society of Columbia University Journal of the American Oriental Society Journal of Biblical Literature Journal of Cuneiform Studies

Abbreviations Jean Tell Sifr

421

Jean, Ch.-F. 1931. Tell Sifr textes cunéiformes conservés au British Museum. Paris: Geuthner. JEN Joint Expedition with the Iraq Museum at Nuzi JEOL Jaarbericht van het Vooraziatisch-Egyptisch Genootschap “Ex Oriente Lux” JESHO Journal of the Economic and Social History of the Orient JHS Journal of Hebrew Scriptures JJP Journal of Juristic Papyrology JJS Journal of Jewish Studies JLA Jewish Law Annual JNES Journal of Near Eastern Studies JNSL Journal of Northwest Semitic Languages Jones and Snyder Jones, T. B., and J. W. Snyder. 1991. Sumerian Economic Texts from the Third Ur Dynasty. Minneapolis: University of Minnesota Press. JPS Jewish Publication Society. 1985. Tanakh. New York: Jewish Publication Society. JPS Torah Comm. Jewish Publication Society Torah Commentary JQR Jewish Quarterly Review JRS Journal of Roman Studies JSOT Journal for the Study of the Old Testament JSOTSup Journal for the Study of the Old Testament Supplement Series JSS Journal of Semitic Studies Justinian Inst. Justinian, Institutiones KadmosSup Kadmos (Zeitschrift für vor- und frühgriechische Epigraphik) Supplement KAH Keilschrifttexte aus Assur historischen Inhalts KAJ Keilschrifttexte aus Assur juristischen Inhalts KAR Keilschrifttexte aus Assur religiösen Inhalts KAV Keilschrifttexte aus Assur verschiedenen Inhalts KBo Keilschrifturkunden von Boghazköi K Kodex ammurabi = Code of Hammurabi Kienast Altass. Kienast, B. 1984. Das altassyrische Kaufvertragsrecht. Kaufvertragsrecht FAOS 1. Altassyrische Texte und Untersuchungen 1. Stuttgart: Steiner. Kraeling Kraeling, E. 1953. The Brooklyn Museum Aramaic Papyri: New Documents of the Fifth Century B.C. from the Jewish Colony at Elephantine. Publications of the Department of Egyptian Art. New Haven: Yale University Press. Reprinted New York: Arno Press, 1969.

422

Writings of Westbrook, Vol. 1: The Shared Tradition

Kramer AV

Kraus AV

KTS KUB Lambert BWL LAPO LCL LHB/OTS LIH Livy LQR LSJ

LTBA

Lucilius LXX m. Gi. m. Ketub. m. Yebam. m. Yoma MA MAL MAL A MANE Manilius Astr. MAOG Marcianus Dig. MB

Eichler, B. L., J. W. Heimerdinger, and Å. W. Sjöberg, eds. 1976. Kramer Anniversary Volume: Cuneiform Studies in Honor of Samuel Noah Kramer. AOAT 25. Kevelaer: Butzon & Bercker. Driel, G. van, et. al., eds. 1982. Zikir umim: Assyriological Studies Presented to F. R. Kraus on the Occasion of His Seventieth Birthday. Leiden: Brill. Keilschrifttexte in den Antiken-Museen zu Stambul Keilschrifturkunden aus Boghazköi Lambert, W. G. 1960. Babylonian Wisdom Literature. Oxford: Clarendon. Littératures anciennes du Proche Orient Loeb Classical Library Library of Hebrew Bible / Old Testament Studies King, L. W. 1898-1900. The Letters and Inscriptions of ammurabi, King of Babylon. London: Luzac. Titus Lilvius, Ab urbe condita libri Law Quarterly Review Liddell, H. G., R. Scott, H. S. Jones et al., eds. 1996. A Greek-English Lexicon. Oxford and New York: Clarendon Press; University of Oxford Press. Soden, W. von, and Staatliche Museen zu Berlin, Vorderasiatische Abteilung. 1933-. Die lexikalischen Tafelserien der Babylonier und Assyrer in den Berliner Museen. 2 vols. Berlin: Vorderasiatische Abteilung der Staatliche Museen zu Berlin. Gaius Lucilius, The Twelve Tables Septuagint Mishnah Giin Mishnah Ketubbot Mishnah Yebamot Mishnah Yoma = Mishnah Kippurim Middle Assyrian Middle Assyrian Laws Middle Assyrian Laws, Tablet A (and so forth through N) Sources and Monographs. Monographs on the Ancient Near East Manilius, astronomica Mitteilungen der Altorientalischen Gesellschaft Corpus Juris Civilis, Digesta (Marcianus) Middle Babylonian

Abbreviations MDP MEFR Meissner BAP Mek. MIO MKNAW MSL

MT MVAG MVN n(n). N.A.B.U. NA Nabnitu NB NBL Nbn. NCB NCBT ND New English Bible

NF / n.F. no(s).

423

Mémoires de la Délégation en Perse Mélanges d’archéologie et d’histoire de l’école français de Rome Meissner, B. 1893. Beiträge zum altbabylonischen Privatrecht. Leipzig: Hinrichs. Mekhilta Mitteilungen des Instituts für Orientforschung Mededelingen der Koninklijke Nederlandse Akademie van Wetenschappen Materialien zum sumerischen Lexikon I = Landsberger 1937 VI = Landsberger 1958 VIII/1 = Kilmer, Gordon, and Landsberger 1960 VIII/2 = Kilmer and Landsberger 1962 IX = Civil and Landsberger 1967 XII = Civil 1969 XIII = Civil 1971 XIV = Civil 1979 XVI = Finkel and Civil 1982 XVII = Cavigneaux et al. 1985 Masoretic Text Mitteilungen der Vorderasiatisch-Ägyptischen Gesellschaft Materiali per il vocabolario neo-sumerico note(s) Nouvelles Assyriologiques Brèves et Utilitaires Neo-Assyrian lexical series SIG7 + ALAM = nabntu published in MSL XVI Neo-Babylonian Neo-Babylonian Laws Strassmaier, J. N. 1889. Inschriften von Nabonidus, König von Babylon (555-538 v. Chr.). Leipzig: Pfeiffer. New Century Bible tablets in the Newell Collection of Babylonian Tablets, Yale University Library field numbers of tablets excavated at Nimrud (Kalhu) Joint Committee on the New Translation of the Bible. 1970. The New English Bible with the Apocrypha. London and New York: Oxford University Press; Cambridge University Press. Neue Folge number(s)

424

Writings of Westbrook, Vol. 1: The Shared Tradition

NRVN

NS / ns NSG

NT OA OB OBC OBO OBT Tell Rimah

Od. OECT OIP OLA OLZ Or (NS) OrAnt Oros. OTL OtSt Ovid Fast. Ovid Metam. Oxford Bible

Papinian Dig. Paulus Dig. Paulus Sent. PBS Petschow MB Rechtsurkunden

Çi , M., and H. Kizilyay. 1965. Neusumerische Rechts- und Verwaltungsurkunden aus Nippur I. TTKY 6/7. Ankara: Türk tarih kurumu basimevi. New Series Falkenstein, A. 1956-1957. Die neusumerischen Gerichtsurkunden. 3 vols. ABAW philosophisch-historische Klasse n.F. 39, 40, 44. Munich: Bayerische Akademie der Wissenschaften. field numbers of tablets excavated at Nippur by the Oriental Institute and other institutions Old Assyrian Old Babylonian Orientalia Biblica et Christiana Orbis Biblicus et Orientalis Dalley, S., C. B. F. Walker, and J. D. Hawkins. 1976. Old Babylonian Texts from Tell al Rimah. London: British School of Archaeology in Iraq. Homer, The Odyssey Oxford Editions of Cuneiform Texts Oriental Institute Publications Orientalia Lovaniensia Analecta Orientalische Literaturzeitung Orientalia (Nova Series) Oriens antiquus Orosius Old Testament Library Oudtestamentische Studiën Ovid, Fasti Ovid, Metamorphoses May, H. G., and B. M. Metzger, eds. 1962. The Holy Bible: Revised Standard Version. London and New York: Oxford University Press. Corpus Juris Civilis, Digesta (Papinian) Corpus Juris Civilis, Digesta (Paulus) Paulus, Sententiae Publications of the Babylonian Section, University Museum, University of Pennsylvania Petschow, H. 1974. Mittelbabylonische Rechts- und Wirtschaftsurkunden der Hilprecht-Sammlung Jena. ASAW philosophisch-historische Klasse 64/4. Berlin: Akademie-Verlag.

Abbreviations Philo Spec. Laws PIHANS pl. Plautus Asin. Plautus Merc. Plautus Pseud. Plautus Rud. Pliny Nat. PN Pomponius Dig. PRU PY Quintilian Decl. mai. Quintilian Decl. min. Quintilian Inst. RA RAI RB RHA RHPR RIDA Riftin

RlA RN RS RSO RSV

SAA SAAS Sallust. Bell. Cat. Sallust. Bell. Iug.

425

Philo of Alexandria, On Special Laws Uitgaven van het Nederlands Historisch-archeologische Instituut te Istanbul plate Plautus, Asinaria Plautus, Mercator Plautus, Pseudolus Plautus, Rudens Pliny (the Elder), Naturalis historia personal name Corpus Juris Civilis, Digesta (Pomponius) Le Palais Royal d’Ugarit Pylos (site where numerous Linear B texts were discovered; on additional sigla, see Bennett 1953). Quintilianus, Declamationes maiores Quintilianus, Declamationes minores Quintilian, Institutio oratoria Revue d’Assyriologique et d’Archéologie orientale Rencontre Assyriologique Internationale Revue Biblique Revue hittite et asianique Revue d’Histoire et de Philosophie Religieuses Revue internationale du droit de l’antiquité Riftin, A. P. 1937. Staro-Vavilonskie iuridicheskie i administrativnye dokumenty v sobraniiakh SSSR. Moscow: Izd-vo Akademii nauk SSSR. Reallexikon der Assyriologie. Edited by E. Ebeling, et al. 16 vols. Berlin: de Gruyter, 1928–. royal name field numbers of tablets excavated at Ras Shamra Rivista degli studi orientali Revised Standard Version. See Burrows, M., et al., ed. 1952. The Holy Bible: Revised Standard Version. Toronto and New York: T. Nelson. State Archives of Assyria State Archives of Assyria Studies Sallustius, Bellum catilinae Sallustius, Bellum iugurthinum

426

Writings of Westbrook, Vol. 1: The Shared Tradition

San NicolòPetschow Bab. Rechtsurkunden SANE SBH

SBLDS SBLSymS SBLWAW SBS SCCNH Schol. ad Bas. SDHI SDIOAP Sen. Clem. Sen. Controv. Sen. Ep. Mor. SHA Sigrist Kutscher Mem. Vol.

Sigrist Messenger Texts SJLA SLB SMEA SMN SNATBM

Sollberger Corpus

San Nicolò, M., and H. Petschow. 1960. Babylonische Rechtsurkunden aus dem 6. Jahrhundert v. Chr. ABAW philosophisch-historische Klasse n.F. 51. Munich: Bayerische Akademie der Wissenschaften. Sources from the Ancient Near East Reisner, G. A. 1986. Sumerisch-babylonische Hymnen nach Thontafeln griechischer Zeit. Königliche Museen zu Berlin. Mitteilungen aus den orientalischen Sammlungen 10. Berlin: Spemann Society of Biblical Literature Dissertation Series Society of Biblical Literature Symposium Series Society of Biblical Literature Writings from the Ancient World Stuttgarter Bibelstudien Studies on the Civilization and Culture of Nuzi and the Hurrians Scholiast on the Basilica Studia et documenta historiae et iuris Studia et documenta ad iura orientis antiqui pertinentia Seneca minor, de clementia Seneca maior, controversiae Seneca minor, epistulae morales ad Lucilium scriptores historiae Augustae Rainey, A., et al., eds. 1993. Kinatttu a d râti. Raphael Kutscher Memorial Volume. Tel Aviv Occasional Publications 1. Tel Aviv: Institute of Archaeology of Tel Aviv University. Sigrist, M. 1990. Messenger Texts from the British Museum. Potomac, Md.: Capital Decisions. Studies in Judaism in Late Antiquity Studia ad tabulas cuneiformes collectas a F. M. Th. de Liagre Böhl pertinentia. Studi Micenei e Egeo-Anatolici tablets excavated at Nuzi, in the Semitic Museum, Harvard University, Cambridge, Mass. Ozaki (Gomi), T., and S. Sato. 1990. Selected NeoSumerian Administrative Texts from the British Museum. Soken kenkyu shiryo 7. Abiko: Research Institute, ChuoGakuin University. Sollberger, E. 1956. Corpus des inscriptions “royales” présargoniques de Laga. Geneva: Dros.

Abbreviations SR SRU

Statius Theb. StBoT Strabo Geo. StudBib Studies Landsberger SubBi Szlechter TJA

T. Tac. Hist. TAD

TAPA TCL TCM TCS Theophilus Para. TIM TLB trans. transl. TTKY TUAT TuM

TvR UCP UET

427

Studies in Religion/Sciences religieuses Edzard, D. O. 1968. Sumerische Rechtsurkunden des III. Jahrtausends aus der Zeit vor der III. Dynastie von Ur. ABAW philosophisch-historische Klasse n.F. 67. Munich: Bayerische Akademie der Wissenschaften, with Beck. Publius Papinius Statius, Thebaid Studien zu den Bo azöy-Texten Strabo, Geographica Studia Biblica Güterbock, H. G., and T. Jacobsen, eds. 1965. Studies in Honour of Benno Landsberger on His Seventy-Fifth Birthday. AS 16. Chicago: University of Chicago Press. Subsidia biblica Szlechter, E. 1963. Tablettes juridiques et administratives de la IIIe dynastie d’Ur. Publications de l’Institut de droit romain de l’Université de Paris 21. Paris: Recueil Sirey. (Twelve) Tables Tacitus, Historiae Porten, B., and A. Yardeni, eds. 1989. Textbook of Aramaic Documents from Ancient Egypt. 2 vols. Texts and Studies for Students. Jerusalem: Hebrew University, Department of the History of the Jewish People; Winona Lake, Ind.: Eisenbrauns. Transactions of the American Philosophical Society Textes cunéiformes du Louvre Textes cunéiformes de Mari Texts from Cuneiform Sources Theophilus, Paraphrasis Texts in the Iraq Museum Tabulae cuneiformes a F. M. Th. de Liagre Böhl collectae translated by translation Türk Tarih Kurumu Yayinlari(ndan) Texte aus der Umwelt des Alten Testaments Texte und Materialien der Frau Professor Hilprecht Collection of Babylonian Antiquities im Eigentum der Universität Jena Tijdschrift voor Rechtsgeschiedenis University of California Publications in Semitic Philology Ur Excavations, Texts

428

Writings of Westbrook, Vol. 1: The Shared Tradition

UF Ukg. Ulpian Dig. Urk. IV

US v(v). Val. Max. Varro L. VAS Vienna Convention on the Law of Treaties Virgil Aen. VS VSAW VT VTSup Waterman, Bus. Doc. Westenholz OSP

WMANT WO WVDOH WZKM Xenophon Cyn. YBC

Ugarit-Forschungen Urkagina = Uru-inimgina = Irikagina (the preferred reading of this name) Corpus Juris Civilis, Digesta (Ulpian) Sethe, K., and Helck, W., eds. 1906-09; 1955-58. Urkunden des ägyptischen Altertums IV: Urkunden der 18. Dynastie. 22 vols. Leipzig: Heinrich (vols. 1-16, 1906-1909); Berlin: Akademie-Verlag (vols. 17-22, 1955-1958). United States (Supreme Court) Reporter verse(s) Valerius Maximus, Factorum et Dictorum Memorabilium Libri Novem Varro, de lingua latina Vorderasiatische Schriftdenkmäler United Nations, International Law Commission. 1969. Vienna Convention on the Law of Treaties: drafted 1969, revised and adopted 1980. Virgil, Aeneid = VAS Verhandlungen der Sächsischen Akademie der Wissenschaften Vetus Testamentum Supplements to Vetus Testamentum Waterman, L. 1916. Business Documents of the Hammurapi Period. Ancient Mesopotamian Tests and Studies. London: Ams Press (= AJSL 29-30 [1912-1914]) Westenholz, A. 1975 & 1987. Old Sumerian and Old Akkadian Texts in Philadelphia Chiefly from Nippur (1 = BiMes 1, Malibu, Calif.: Undena Publications; 2 = Carsten Niebuhr Institute Publications 3, Copenhagen: Carsten Niebuhr Institute of Ancient Near Eastern Studies). Wissenschaftliche Monographien zum Alten und Neuen Testament Die Welt des Orients Wissenschaftliche Veröffentlichungen der deutschen Orientgesellschaft Wiener Zeitschrift für die Kunde des Morgenlands Xenophon, Cynegeticus tablets in the Babylonian Collection, Yale University Library

Abbreviations YNER YOS YOSR ZA ZAH ZÄS ZAW ZDMG ZSSR (Rom. Abt.) ZVR ZVS

429

Yale Near Eastern Researches Series Yale Oriental Series Yale Oriental Series, Researches Zeitschrift für Assyriologie Zeitschrift für Althebräistik Zeitschrift für die Ägyptische Sprache und Altertumskunde Zeitschrift für die alttestamentliche Wissenschaft Zeitschrift der Deutschen Morgenländischen Gesellschaft Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) Zeitschrift für vergleichende Rechtswissenschaft Zeitschrift für vergleichende Sprachforschung

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Szlechter, E. 1950 “Essai d’explication des clauses: muttatam gullubu abbuttam aknu et abbuttam gullubu.” ArOr 17: 391-418. 1954 Les Lois d’Eshnunna. Publications de l’institut de droit romain de l’université de Paris 12. Paris: Recueil Sirey. 1965 “La ‘loi’ dans la Mésopotamie ancienne.” RIDA 12: 55-77. Tadmor, H. 1977 “A Lexicographical Text from Hazor.” IEJ 27: 98-102. Thompson, T. 1995 “‘House of David’: An Eponymic Referent to Yahweh as Godfather.” Scandinavian Journal of the Old Testament 9: 59-74. Thomsen, M. L. 2001 “Witchcraft and Magic in Mesopotamia.” Pages 1-96 in Witchcraft and Magic in Europe: Biblical and Pagan Societies. Edited by F. R. Cryer and M. L. Thomsen. Philadelphia: University of Pennsylvania Press. Thureau-Dangin, F. 1924 “La correspondance de Hammurapi avec ama-hasir.” RA 21: 1-58. 1937 “Trois contrats de Ras-Shamra.” Syria 18: 245-55. Uchitel, A. 1988 “The Archives of Mycenaean Greece and the Ancient Near East.” Pages 19-30 in Society and Economy in the Eastern Mediterranean, c. 1500-1000 B.C.: Proceedings of the International Symposium Held at the University of Haifa from the 28th of April to the 2nd of May, 1985. Edited M. Heltzer and E. Lipi ski. OLA 23. Leuven: Peeters. Vatin, C. 1982 “Poin, Tim, Thoi dans le droit homérique.” Ktèma 7: 275-80. Veenhof, K. 1982 “A Deed of Manumission and Adoption from the Later Old Assyrian Period.” Pages 359-85 in Zikir umim: Assyriological Studies Presented to F. R. Kraus on the Occasion of His Seventieth Birthday. Edited by G. van Driel. Leiden: Brill. 1995 “‘In Accordance with the Words of the Stele’: Evidence for Old Assyrian Legislation.” Chicago-Kent Law Review 70: 1717-44. Verboven, K. 2002 The Economy of Friends: Economic Aspects of Amicitia and Patronage in the Late Republic. Collection Latomus 269. Brussels: Éditions Latomus. Versnel, H. S. 1970 Triumphus: An Inquiry into the Origin, Development and Meaning of the Roman Triumph. Leiden: Brill.

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Studies in Roman Private Law. London and Rio Grande, Ohio: Hambledon. Weidner, E. F. 1937 “Das Alter der mittelassyrischen Gesetztexte.” AfO 12: 46-54. 1952-53 “Keilschrifttexte nach Kopien von T.G. Pinches.” AfO 16: 35-46. 1954-56a “Die astrologische Serie Enûma Anu Enlil (Fortsetzung).” AfO 17: 7189. 1954-56b “Hochverrat gegen Nebukadnezar II.” AfO 17: 1-9. 1954-56c “Hof- und Harems-Erlässe assyrischer Könige aus dem 2. Jahrtausend v.Chr.” AfO 17: 257-93. Weinfeld, M. 1972 Deuteronomy and the Deuteronomic School. Oxford: Clarendon. 1977 “Judge and Officer in Ancient Israel and the Ancient Near East.” IOS 7: 65-88. 1983 “Social and Cultic Institutions in the Priestly Source against Their Ancient Near Eastern Background.” Pages 95-129 in Proceedings of the Eighth World Congress of Jewish Studies Held at the Hebrew University of Jerusalem, August 16-21, 1981: Panel Sessions, Biblical Studies, and Hebrew Language. Publication of the World Union of Jewish Studies. Jerusalem: Magnes. 1985 Justice and Righteousness in Israel and the Nations. Equality and Freedom in Ancient Israel in Light of Social Justice in the Ancient Near East. Jerusalem: Magnes (in Hebrew). 1995 Social Justice in Ancient Israel and in the Ancient Near East. Jerusalem: Magnes; Minneapolis: Fortress. Weingreen, J. 1966 “The Case of the Daughters of Zelophahad.” VT 16: 518-22. Wender, D. 1978 The Last Scenes of the Odyssey. Mnemosyne, biblio classica Batava, Supplementum 52. Leiden: Brill. Werner, R. 1967 Hethitische Gerichtsprotokolle. StBoT 4. Wiesbaden: Harrassowitz. Westbrook, R. 1971a “Jubilee Laws.” Israel Law Review 6: 209-26. Reprinted at pages 3657 in Property and the Family in Biblical Law. JSOTSup 113. Sheffield: Sheffield Academic. 1971b “Purchase of the Cave of Machpelah.” Israel Law Review 6: 29-38. Reprinted at pages 24-35 in Property and the Family in Biblical Law. JSOTSup 113. Sheffield: Sheffield Academic.

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“The Trial Scene in the Iliad.” HSCP 94: 53-76. “The Deposit Law of Exodus 22,6-12.” ZAW 106: 390-403. “Mitgift.” Pages 273-83 in vol. 8 of Reallexikon der Assyriologie. Edited by E. Ebeling et al. 16 vols. Berlin: de Gruyter, 1928-. “The Old Babylonian Term nap aru.” JCS 46: 41-46. Review of C. Carmichael, ed., Collected Works of David Daube, Vol. 1: Talmudic Law. ZSSR (Rom. Abt.) 111: 702-3. “What Is the Covenant Code?” Pages 13-34 in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development. Edited by B. M. Levinson. JSOTSup 181. Sheffield: Sheffield Academic. Reprinted 2006. “The Coherence of the Lex Aquilia.” RIDA 42: 437-71. “A Death in the Family: Codex Eshnunna 17-18 Revisited.” Studies in Honour of Reuven Yaron. Edited by M. Rabello. Israel Law Review 29: 32-42. “Muntehe.” Pages 425-26 in vol. 8 of Reallexikon der Assyriologie. Edited by E. Ebeling et al. 16 vols. Berlin: de Gruyter, 1928-. “Riddles in Deuteronomic Law.” Pages 159-74 in Bundesdokument und Gesetz: Studien zum Deuteronomium. Edited by G. Braulik. Herders Biblische Studien 4. Freiburg: Herder. “Slave and Master in Ancient Near Eastern Law.” Chicago-Kent Law Review 70: 631- 76. “Social Justice in the Ancient Near East.” Pages 149-63 in Social Justice in the Ancient World. Edited by K. Irani and M. Silver. Westport, Conn.: Greenwood Press. “Biblical Law.” Pages 1-17 in An Introduction to the History and Sources of Jewish Law. Edited by N. S. Hecht et al. Oxford: Oxford University Press. “zíz.da/ki tum.” WZKM 86: 449-59. “A Matter of Life and Death.” JANES 25: 61-70. “Codex Hammurabi and the Ends of the Earth.” Pages 101-3 in vol. 3 of Landscapes: Territories, Frontiers and Horizons in the Ancient Near East. Edited by L. Milano et al. HANEM 3. Padova: Sargon. “International Law in the Amarna Age.” Pages 28-41 in Amarna Diplomacy: The Beginning of International Relations. Edited by R. Cohen and R. Westbrook. Baltimore: Johns Hopkins University Press. “Legalistic Glosses in Biblical Narratives.” Israel Law Review 33: 787-97. “Lois Sumériennes.” Columns 204-15 in Supplément au Dictionnaire de la Bible. Edited by J. Briend and M. Quesnel. Paris: Letouzey et Ané.

1994c 1994d 1994e

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Wieacker, F. 1956 “Zwölftafelprobleme.” RIDA 3: 459-91. 1967 “Die XII Tafeln in ihrem Jahrhundert.” Pages 291-362 in Les origines de la république romaine. Entretiens sur l’antiquité classique. Vandoeuvres: Fondation Hardt pour l’études de l’antiquité classique. Wilcke, C. 1969 “ku-li.” ZA 59: 65-99. 1985 “Familiengründung im alten Babylonien.” Pages 213-317 in Geschlechtsreife und Legitimation zur Zeugung. Veröffentlichungen des Instituts für Historische Anthropologie 1. Edited by E. W. Müller. Freiburg and Munich: Alber. Willetts, R. F., ed. 1967 The Law Code of Gortyn. KadmosSup 1. Berlin: de Gruyter. Williams, J. 1964 “Concerning One of the Apodictic Formulas.” VT 14: 484-89. Wiseman, D. J. 1953 The Alalakh Tablets. British School of Archaeology in Ankara, Occasional Publications 2. London: British School of Archaeology in Ankara. 1962 “The Laws of Hammurabi Again.” JSS 7: 161-72. Wolf, J. G. 1970 “Lanx und Licium: Das Ritual der Haussuchung im altrömischen Recht.” Pages 59-79 in Sympotica Franz Wieacker: Sexagenario Sasbachwaldeni a suis libata. Göttingen: Vandenhoeck & Ruprecht. Wolff, H. J. 1946 “The Origin of Judicial Litigation among the Greeks.” Traditio 4: 3187. Reprinted at pages 1-90 in Wolff, H. J. Beiträge zur Rechtsgeschichte Altgriechenlands und des hellenisch-römischen Ägyptens. Weimar: Böhlaus Nachfolger, 1961 (in German). Wright, D. P. 2003 “The Laws of Hammurabi as a Source for the Covenant Collection (Exodus 20:23-23:19).” Maarav 10: 11-87. 2006 “The Laws of Hammurabi and the Covenant Code: A Response to Bruce Wells.” Maarav 10: 209-58. Yaron, R. 1959 “Redemption of Persons in the Ancient Near East.” RIDA 6: 155-76. 1960 “Minutiae on Roman Divorce.” TvR 28:1-12. 1962a “Forms in the Laws of Eshnunna.” RIDA 9: 137-53. 1962b “Vitae Necisque Potestas.” TvR 30: 243-51. 1965 “Varia on Adoption.” JJP 15: 171-83.

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1988b 1993a

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Index of Authors

Abusch, I. T., 290-91 Andersen, F. I., 283-84, 287 Andersen, Ø., 304, 318 Ankum, H., 360-62 Arnaud, D., 149, 176-78, 186, 190191, 206 Astour, M. C., 315 Baentsch, B., 98 Barthelemy, D., 362 Basile, M. E., xv Benjamin, D. C., 220 Bennet, E. L., 324-25 Benveniste, E., 304, 324 Berchem, D. van, 46-47 Berlin, A., 252 Bin-Nun, S. R., 297 Birks, P. B. H., 21, 53-54, 355, 374375, 379 Biscardi, A., 377 Black, H. C., xiv Black, J., 410 Bleicken, J., 410 Bonner, R. J., 304, 317, 321 Borger, R., 127, 364 Bottéro, J., 8, 15-16, 36, 39, 41, 73, 91, 106, 108, 110, 121, 134, 138, 156, 164, 179, 250, 408 Boyer, G., 168 Bracton, H. de, xv Bradley, K., 412-13 Buckland, W. W., 361, 363, 382, 411

Burkert, W., 315, 331 Buss, M. J., 247 Butz, K., 83, 85 Calhoun, G. M., 304, 317 Campbell, J. K., 218-19 Cannata, C. A., 355, 362, 364 Cantarella, E., 304, 318, 321, 327 Cardascia, G., 12, 79, 85, 105, 255256, 260, 268, 275, 374, 376, 384 Carroll, R. P., 265 Charpin, D., 192 Childs, B. S., 114 Civil, M., 18 Claeys, E., xv Cooper, J. S., 87, 89-90, 107, 144, 146, 227 Cornelius, F., 295, 297 Cornell, T., 410 Coulanges, N. D. Fustel de, 223 Crawford, M. H., 21, 131 Crifò, G., 22 Crook, J. A., 358 Cross, R., 314 Dandamaev, M. A., 161, 173, 181, 184, 188, 201, 205 Dandeker, C., 224 Daube, D., 22, 58-59, 68, 100, 252, 321-23, 356-57, 359-60, 366, 371, 375

474

Writings of Westbrook, Vol. 1: The Shared Tradition

David, M., 26, 38, 167, 187, 199, 368, 383 Dearman, J. A., 145 Deller, K., 202 Demare, S., 75-76, 86, 282 Dempster, S., 252 Diakonov, I. M., 166 Diamond, A. S., 105 Dijk, J. van., 261, 263 Donlan, S. P., xv Donner, H., 47 Dossin, G., 85, 341 Downer, L. J., xv Drews, R., 341 Driver, G. R., 4, 7, 34, 80, 82, 84, 105, 197, 202-3, 205, 255-56, 269, 275, 313-14, 332 Ducos, M., 46, 95 Dumezil, G., 316 Durand, J.-M., 261-62 Ebeling, E., 187 Edzard, D. O., 88, 104, 173, 180, 199 Ehelolf, H., 73 Eichler, B., 122, 137-38, 168, 188, 190, 296, 365, 369, 381 Eichrodt, W., 265 Eilers, W., 73, 76 Eissfeldt, O., 3 Ellis, M. de J., 5 Epsztein, L., 143 Falkenstein, A., 175, 177-78, 181, 188 Ferenczy, E., 46 Ferron, J., 46-47 Finet, A., 165 Finkelberg, M., 345-46 Finkelstein, J. J., 3, 5, 9, 37, 73, 88, 90, 105, 122, 125, 138, 145, 158, 229, 251, 253, 273, 279, 409 Finley, M. I., 336-40, 347

Fitzpatrick-McKinley, A., xiv Fohrer, G., 92 Foster, B., 226-27 Frankena, R., 174, 306 Freedman, D. N., 283-84, 287 Fried, L. S., xiv Frymer-Kensky, T., 262, 273 Gagarin, M., 94, 304-5, 317, 322-23, 329, 367 Gard, S. A., 314 Gelb, I., 166 Geller, M. J., 4 George, A. R., 87 Ginsberg, H. L., 316 Gioffredi, C., 23 Goetze, A., 12, 30, 108, 115 Gordis, R., 284-85 Gordon, C. H., 266, 373 Gray, J., 242 Greenberg, M., 179, 189-91, 206, 246-48, 265 Greenfield, J. C., 31 Greengus, S., xv, 27, 26-64, 307 Gurney, O. R., 197, 227, 229-30, 253 Gwaltney, W. C., 31 Haas, V., 289 Haase, R., 109, 289 Hallo, W. W., 103, 137-38 Halpin, A. K. W., 53-54 Halverson, J., 341, 343-44 Hammond, N. G. L., 304 Harper, R., 397-98, 400 Harris, W., 396 Harrison, A., 333, 338-39 Hengstl, J., 256, 289 Heubeck, A., 327 Heurgon, J., 47-48, 409 Hoffmann, I., 87, 292 Hoffner, H. A., Jr., 12, 116, 292-93, 295-96

Index of Authors Holmes, O. W., xiv Hommel, H., 304, 317, 326 Honoré, A., 359, 373-74, 377 Hurowitz, V. A., xi, 31 Hutter, M., 293 Iliffe, J., 361 Jackson, B. S., 101, 249 Jacobsen, T., 16, 31, 315, 399 Jean, Ch.-F., 401 Jepsen, A., 98 Jeyes, U., 127 Jirku, A., 98 Johnson, T., 224 Jolowicz, F., 22, 55 Jones, G. H., 242 Kapelrud, A. S., 31 Kaser, M., 23 Kelly, J. M., 358, 361, 386 Kemp, B. J., 220 Kienast, B., 180 King, L., 203 Kirk, G. S., 317 Kizilyay, H., 210 Klein, J., 297 Klíma, J., 75-76, 86 Knox, R., 315-16 Knudtzon, J. A., 308 Kohler, J., 187 Kornfeld, W., 246-47, 269 Koroec, V., 12 Koschaker, P., 5, 26, 34, 73, 115, 279, 383-84 Kramer, S. N., 32, 245, 253, 306 Kraus, F. R., 5, 7-9, 19, 34-36, 43, 73, 76, 87-88, 106, 112, 152, 154, 156, 164, 169, 201, 250, 332, 387 Kruchten, J. M., 87 Kuemmerlin-McLean, J. K., 289, 299 Kuhl, C., 266

475

Kühne, C., 171 Kunkel, W., 22 Kwasman, T., 104, 176, 203, 308 Lacey, W., 334 Lambert, M., 15, 87, 253 Lambert, W. G., 14-15, 171, 272 Landsberger, B., 3, 5, 7, 34, 73, 85, 180, 200, 210 Latte, K., 321 Leaf, W., 304 Leemans, W. F., 10, 16, 86, 229, 369 Leichty, E., 8, 10-11, 14, 20, 35, 37, 50 Leist, B. W., 321 Lejeune, M., 317, 325 Lemche, N. P., 223-25 Lenclud, G., 231 Lenel, O., 55, 359 Levine, B., 339 Lévy-Bruhl, H., 363-64 Lewy, J., 88, 152, 189 Lichtheim, M., 245-46 Linke, B., 409 Lintott, A., 410 Liverani, M., 134-37, 224, 233-34 Lloyd, G. E. R., 95 Locher, C., 41, 111, 278, 280, 282 Loewenstamm, S., 249, 269, 271, 314 MacCormack, G., 49 MacDowell, D. M., 128, 303-5, 332, 349 Maekawa, K., 88, 146 Maine, H., 102 Malul, M., 118, 183, 200, 330, 368369, 408 Marcks, E., xvi Matthews, V. H., 220 McKeating, H., 246, 254, 265-66 Magdalene, F. R., xiii

476

Writings of Westbrook, Vol. 1: The Shared Tradition

Meier, G., 291 Mendelsohn, I., 177, 201, 205, 209, 214 Mendenhall, G., 99 Meyers, C. L., 403 Meyers, E. M., 403 Mieroop, M. Van de, 193, 208-9 Miles, J. C., 4, 7, 34, 80, 82, 84, 105, 197, 202-3, 205, 255-56, 269, 275, 313-14, 332 Moran, W. L., 229, 238, 261, 337 Morgenstern, J., 103 Morris, I., 336-37 Moyer, J. C., 31 Muellner, L. C., 305, 317, 323-25 Muffs, J., 104, 113, 330 Müller, D. H., 26, 28-29, 34 Nagy, G., 326 Naveh, J., 315 Neher, A., 264 Neugebauer, O., 126 Nicholas, B., 22, 55, 379 Nobrega, V. L. de, 57 Nörr, D., 71, 130, 360, 362 Noth, M., 92, 114 Nothdurft, W., 326 Nougayrol, J., 9, 158 Oliver, H., 88 Olivier, J.-P., 324 Oppenheim, A. L., 178 Ostwald, M., 128 Otten, H., 294 Otto, E., xv, 99-100, 104, 113, 115, 370 Page, D. L., 317 Parpola, S., 10-11, 104, 124, 127, 342, 397 Paul, S., 6, 38, 92, 104, 143 Pernice, A., 359, 361 Perysinakis, I., 338 Peters, E. L., 218

Petschow, H. P. H., xiv, 37, 74-76, 104, 250, 365 Pettinato, G., 29 Pfeiffer, R. H., 313, 397-98 Phillips, A., 246-49, 254 Pitt-Rivers, J. A., 218-19 Porten, B., 182, 333, 338 Postgate, J., 198, 229 Preiser, W., 77, 86, 250 Primmer, A., 304 Pringsheim, F., 357 Pugsley, D., 58-59, 68, 357 Raaflaub, K., 411 Rabello, A. M., 404 Rebuffat, R., 46-47 Reiner, E., 212-13, 272, 399 Renger, J., 73, 75, 123, 209-10, 337, 410 Richard, J., 411 Ries, G., xiv, 78 Rofé, A., 280 Roller, M., 230 Röllig, W., 47 Roth, M., 184, 188, 255, 261, 263264, 267, 308, 333, 364 Russo, J., 303, 315-16, 326 Sachers, E., 393-94 Saller, R. P., 230 San Nicolò, M., 27, 76, 124 Schaeffer, C. F.-A., 185 Schiller, A. A., 22 Schloen, J. D., 220 Schmitz, P., 410 Schoneveld, J., 309 Schorr, M., 81, 104, 183, 188 Schroeder, P., 83, 85 Schuler, E. von, 77, 87, 112 Schwienhorst-Schönberger, L., 101, 116-17 Scullard, H. H., 46, 217 Sefati, Y., 297

Index of Authors Segal, S. P., 107, 273 Sellin, E., 92 Selms, A. van, 38 Sick, U., 76 Siegel, B. J., 174 Simon, D. V., 52-54 Simpson, W. K., 245 Smith, G., 304, 317, 321 Snaith, N. H., 19 Snodgrass, A., 336-37 Speiser, E. A., 313 Speleers, L., 188 Steible, H., 146, 151, 194 Steinkeller, P., 181, 200 Steinwenter, A., 317-18 Stol, M., 201-2 Stroud, R. S., 94 Szlechter, E., 86, 205, 256 Tadmor, H., 9, 103 Thompson, T., 224-25 Thomsen, M. L., 289 Thorne, S. E., xv Thureau-Dangin, F., 147, 185 Ucitel, A., 316 Ungnad, A., 187 Vatin, C., 321 Veenhof, K., 126, 183 Verboven, K., 217 Versnel, H. S., 410 Viberg, Å., 205 Visscher, F. de, 58-59, 68 Volterra, E., 26-28 Wagner-Hasel, B., 338, 344-45, 348-49

477

Waldock, A. J. A., 305 Wallace, R., 305, 329 Wallace-Hadrill, A., 218, 223-24 Walters, S. D., 298 Watanabe, K., 342, 397 Waterbury, J., 218, 224 Waterman, L., 81, 400 Watson, A., 24-25, 27, 49, 52, 57, 131, 364, 382, 386, 404 Weidner, E., 11, 87, 179, 400 Weinfeld, M., 6, 7, 10, 31, 87, 143 Weingreen, J., 19 Wender, D., 346 Werner, R., 297 Westrup, C. W., 22, 25-26 Wieacker, F., 22-24 Wilcke, C., 7, 62-63, 203, 221, 264 Willetts, R. F., 94, 258-59, 286 Wiseman, D., 103, 187, 212-13, 406 Wolf, J. G., 58 Wolff, H. J., 325 Woodard, R., 152, 155, 195, 303 Wright, D. P., xv, xvii Yardeni, A., 182, 333, 338 Yaron, R., 4, 19, 26, 38, 48-49, 5152, 111, 115, 197, 255-56, 331, 368, 379, 386-87, 396-97, 399, 405-7, 411 Yildiz, F., 103, 113, 253, 260 Yoffee, N., 212 Zaccagnini, C., 233 Zuckerman, A., 218 Zulueta, F. de, 58

Index of Subjects

Abraham, 28, 171, 210, 247, 272-73 Absalom, 320 academic method, ancient, xiii, 8, 12, 19, 35-36, 40, 73-74, 7677, 106, 108, 112, 125, 164, 248, 311, 368, 377-78; see also scientific treatise acceptilatio, 363-64 accusations, 136, 256, 261, 280, 282, 291, 294, 296, 352-53, 362, 366, 393 Achilles, 303, 320-22, 335, 342, 344-47 shield of, 303, 319 acquisitions, 66, 172-73, 189, 341, 385 actio furti concepti, 57-58, 67-68 adjudication, xviii administration, 89, 146, 224, 235, 306 administration of justice, 94, 306, 317, 343 administrative documents, 92, 106, 111, 174 adoption, 12-13, 95, 180, 184-85, 377, 392, 396 adrogatio, 392, 396, 409, 411 adstipulatio, 364 adstipulator, 355, 363-64, 374

adultery, 43, 103, 129, 155, 245-46, 245-87, 293, 295, 297, 299, 307, 393, 395, 403-4, 408-11 aestimatio, 361 Agamemnon, 315-16, 321, 335, 342, 344-45 ager publicus, 372 agriculture, 70, 80, 84, 86, 110, 151, 153-54, 158, 168, 209, 222, 243, 286, 309, 319, 365, 371 Ajax, 320-21 Akkadian, 29-32, 34, 42, 55, 103, 113, 120, 144, 151-53, 162-63, 165, 171, 198, 204, 221, 261, 263, 271, 275-76, 330, 332, 339, 341, 364, 386, 408 Alalakh, xi, 103, 164, 187, 212-13, 330 Alexander the Great, 29, 162 alphabet, 315 Amalekites, 17 Amarna, xi, 223, 233, 341 ana itti u, 3, 254 Anatolia, xi, 29-30, 143, 161-63, 306, 330, 341, 407 Antinous, 322, 340, 342, 347, 349, 353 ao. furti oblati, 57 apodictic style, 97-100, 110-14, 116

480

Writings of Westbrook, Vol. 1: The Shared Tradition

apostasy, 402 appeal, 10, 93, 143, 222, 227, 232233, 306, 389, 410 Aramaic, 104, 162-63, 330, 332 arbitration, 303, 317-18 archaeology, 11, 26, 29 archives, 11, 164, 179, 206, 208, 233, 317, 330 argument from silence, 10, 86, 106, 123, 251 Aristotle, 47, 93, 129 arrest, 24, 188, 210-11, 261, 306 arson, 367 assassinations, 351 assembly, 22, 77, 107, 303, 340, 350, 352, 366, 368, 399-400 Assurbanipal, 9, 11 Assyria, 9, 126, 162-63, 265, 330, 407 king of, 10-11, 124, 126-27 asylum, 322 Athens, 87, 93-94, 334 Augustus, 390 authority, persuasive, 12 Babylon, Babylonia, 4, 9, 12, 27, 32, 34, 37, 40, 87, 90, 127, 145, 148, 152, 162-63, 194, 212, 227, 236, 264, 306, 337, 341342, 403, 407 king of, 308, 337 scholarship of, 30 banishment, 87, 208, 265, 293-95, 395 bargain, 364, 374 basileus, 339-40, 342, 346 beneficiary, 152-53, 218, 230, 287, 380 bestiality, 113-14, 259, 273, 293, 295, 299 betrayal, 264

betrothal, xvii, 39, 41-43, 138, 185, 249, 270-71, 287, 309, 316, 331-32, 335, 365, 367, 408 blasphemy, 20 bloodguilt, 88 bribery, 229, 248 bride-price, 41-42, 331-38 building stories, 31 burden of proof, 314-15, 323, 325 burning, 25, 55, 249, 265, 373 Canaan, 9, 28-30, 92, 233, 251 canon, canonical literature, xvi, 12, 16, 18, 40, 51, 126, 129, 131132, 251, 258, 276, 306, 310311, 330, 370, 408-9 case law, 15, 36 casuistic style, 4, 8, 15, 18-22, 3339, 49, 88, 94, 97-101, 110-22, 127, 129-32, 164, 362, 366, 368-69, 407-8 causation, 105 ceterarum rerum, 359, 360 childlessness, 78, 273, 334, 337 children, 7-8, 35, 77, 89, 131, 143, 145, 148, 154, 165-66, 168, 174, 176, 178-80, 183, 186-88, 191, 194, 196, 198, 201, 205-6, 241-42, 265, 285, 287, 333-34, 342, 344-45, 347-348, 365, 392, 396, 403, 411-12 abandoned, 179-80 Chinese T’ang Code, 49 chronology, 32, 319 Cicero, 24, 27, 48, 50, 130, 373, 391 citizenship, 43, 143-45, 151, 153-58, 160, 165, 171, 174, 192, 194, 211, 214, 220, 224, 227-30, 390-1, 403, 411-12 city-states, 146, 148, 162 civil law, xvi, 100, 105

Index of Subjects Code Napoleon, 4 Code of Eshnunna, xv, xvii, 3-4, 6, 8, 13-14, 19, 32, 38, 41, 49, 56, 78, 88, 90, 105, 111-12, 115, 120, 130, 135, 148, 154, 163, 175, 210-12 245, 255-57, 267, 269, 275-76, 281, 309-11, 33233, 342, 364-365, 367-69, 403405, 407-8 Code of Hammurabi, xi, xiii-xv, 3-9, 12-14, 16, 26-27, 32-45, 49, 51-52, 55-67, 73-86, 89-90, 105, 111-15, 120-22, 133-38, 144-45, 148-150, 154, 163, 166, 169-70, 174-77, 180, 183, 186-87, 192-194, 200-2, 205-7, 210-11, 245, 254, 258-67, 274282, 289, 294-98, 310-13, 333, 337, 349, 364-65, 368, 375, 386-87, 402-408 Code of Lipit-Ishtar, xvii, 3-5, 14, 32, 38, 64, 120, 150, 163, 167, 175, 182, 211, 254, 310, 364, 407 Code of Ur-Namma, 3, 5, 14, 32, 4142, 78, 84-85, 103-5, 113, 120, 144, 163, 211, 245, 253, 260, 276, 289, 294, 296, 298, 310, 364, 407-8 colonies, 46, 330 comitia curiata, 392, 409 commissioners, 234, 238 common law, 4, 34, 36, 41, 45, 50 commoners, 43, 45, 56, 146, 165, 320 complaints, 229, 232, 273 compromise, 100, 374 concubines, 186 condemnatio, 361 conditional sentence, 22-23, 33 confessions, 399

481

congregation (Heb. ‘dâ), 17, 20, 87 conservatism, 40, 102 conspiracy, 230, 351, 394 constitutional law, 390, 393 contracts, xvi, 33, 42, 80-88, 90, 148, 151, 153, 155, 161, 167-73, 176, 179-92, 198-99, 203-4, 206, 216, 255, 281-82, 308, 331, 364, 382, 384-85, 403 breach of, 80-82, 189 exchange, 145, 152, 177-78, 218, 227, 233, 294, 335, 374 promissory notes, 201 sale, 59-60, 62, 66-67, 98, 100, 146, 148-49, 156, 168-70, 173-75, 177-78, 184-85, 191-95, 197-203, 206-7, 209, 212, 222, 293, 380-82, 385-87, 403 service, 180 wet-nursing, 175 courts, 12, 61, 74-75, 82, 88, 94-95, 99, 102-3, 125-26, 128, 148, 153, 169, 185, 191-93, 214, 218, 247-48, 261, 269-71, 293, 303, 306-10, 317-18, 320, 393 courthouses, 11 divine, 227, 291-92 local, 99-100, 258, 277-81, 306 supreme, 10 Covenant Code, xiii, xvi, 3, 6, 20, 26, 32, 49, 66-67, 69, 71, 92, 97-118, 120, 130, 163, 172, 364-65, 407 covenants, 196, 223 creation accounts, 31 creditors, xiii, 24, 93, 109, 147-48, 156, 159, 167-69, 175-76, 187191, 195-99, 207-10, 271, 363364, 373-75, 380, 382-85, 388 Crete, 94, 258

482

Writings of Westbrook, Vol. 1: The Shared Tradition

crime, criminal, xvi, 43, 46, 62, 67, 99-100, 105, 113, 119, 151, 155-156, 169, 171, 202, 225, 246, 252, 262, 284, 289, 291295, 299, 303, 307-9, 314, 318, 321, 393-94, 397, 400, 403, 406, 411 culpability, 66, 137, 295, 321, 322323, 375-76 curse, cursing, 20, 75, 113, 125, 259, 366 customary law, folk law, 23, 78, 250 damages, xvii, 58, 60, 62-63, 65-69, 82, 131, 261, 360, 363-64, 368, 373, 375-76, 378 d mos, 317, 324-25 Daniel, 128 Darius I, 128 daughters, 18, 38, 41, 70, 77, 150, 167, 169, 173, 176-78, 181-84, 191-92, 194, 198, 203, 208, 251, 263, 280, 282, 299, 308, 311, 332-37, 339, 345, 352, 383, 387, 390, 395, 400 daughters of Zelophehad, 18 daughters-in-law, 136, 249, 277-78 David, 17, 26, 38, 167, 187, 199, 209-10, 225, 247, 274, 307, 314, 320, 325, 334-35, 368, 383 death, 30, 44-45, 101, 136, 145, 181-84, 188, 201, 212, 240, 264, 290, 297, 311-15, 321-22, 332-33, 345, 347-48, 352, 363, 380, 389-413; see also penalties and punishment: capital debt, xiv, xvi, xix-xx, 24, 63, 147160, 166-70, 175-179, 185-87, 190-95, 198, 207-210, 214-15, 229, 271, 304, 310, 359, 363364, 374-75, 381, 386-88, 411

debt cancellation, 93, 107, 112, 125, 128, 143, 152, 160, 192-98, 215, 271, 387 debt-slavery, xiii, 88, 172, 175-78 186-187, 192-99, 204-5, 207208, 214-16 release from, 158-59, 185-89 195-96, 207 Decemvirs, 22-23, 26, 28 defamation, 57 default, 148-49, 168, 199 defendants, 25, 87, 257, 291-92, 306-7, 310, 314, 322, 372, 402 delicts, 24, 28, 33, 52-53, 55, 61, 90, 109, 113, 161, 177, 203, 208, 215, 269 demands, legal, 145, 291 democracy, 128, 230 Demosthenes, 87, 94, 128 Demotic, 104, 330 deposit, 64, 101 detention, 169 Deuteronomic Code, xvi, 14, 33, 69, 95, 110, 117, 120, 163, 197, 245-47, 276-77, 316, 364-65, 407 Deuteronomy, 3, 6, 33, 42-43, 51, 92, 120, 128, 150, 159, 163, 252, 276, 279, 310, 315-16, 365, 381, 402 Diodorus Siculus, 10 diplomacy, xvi, 171, 235, 238, 341 disobedience, 90, 237, 307, 400 distraint, 45, 168-70, 175-76, 206, 311 divination, 9-10, 14-15, 20, 50, 124, 127, 299, 408 divine judgment, 10, 19, 262 divine justice, 11, 158, 262, 272 divine sanctions, 210

Index of Subjects division, 17, 38, 82, 177, 182, 332333, 348 divorce, 42, 51, 166, 170, 180, 261268, 280, 283-87, 370-71 documents of practice, xiv, xvi, xviii, 13, 62, 76, 78, 80-81, 86, 163 dowry, 13, 77-78, 166, 262, 264, 278-79, 286, 329-53, 380 Drakon, laws of, 87, 93-95, 120, 318 duress, 170, 179 duty, duties, 65, 94, 134, 150, 157, 159, 167, 183, 187, 209, 219, 232-36, 240, 283, 293, 339, 394 Ebla, 29, 103 economy, economics, 197, 276 Edict of Ammi-aduqa, 19, 90, 112, 155 Edict of Horemheb, 87, 89 Edict of Samsu-iluna, 16 Edict of Telipinu, 89, 94, 290, 292293, 298, 307-8, 320-21 Edict of Tudhaliya, 87, 155, 157-58, 164, 195 edicts, royal (see debt cancellation) Egypt, Egyptians, 10, 28, 30, 69, 87, 89, 92, 121, 161-62, 171, 174, 223, 233-39, 245, 261, 272-73, 308, 315, 330, 337, 345 elderly, care of, 183 elders, 149, 176-77, 186, 213, 280, 304, 325-26, 346 Elephantine, 182-83, 285, 330 Elijah, 240-41 Elisha, 176, 240-42 Emar, xi, 113, 148-49, 164, 176-78, 186, 190-91, 206 enactments, 50, 357, 368 enforcements, 102, 216, 307 England, law of, 7, 12, 57, 314, 336

483

entitlements, 233, 237, 343-44 Esarhaddon, 127, 232, 239, 397 ethnicity, 31, 152, 171, 192, 330 eunuchs, 233, 256, 405 Eurymachus, 340-43, 348, 352-53 eviction, 202 evidence circumstantial, 67, 262 testimonial, 67, 122, 136, 293, 366, 381 ex latere emptoris/venditoris, 117 exemption decrees, 316 Exodus, xiii, xvi, 6, 26, 32, 44, 51, 130, 150, 163, 310-14, 366, 387, 403 extispicy, 9, 50, 127 extradition, 212, 214 Ezekiel, 30, 284, 337, 398 false accusation, 34, 52, 60, 280, 290, 294, 296 fathers, 18, 41-42, 48, 71, 77-78, 107, 127, 131, 145, 149-50, 166, 173, 180-87, 190, 199, 209, 212, 216, 221-22, 226, 232-33, 238-39, 249, 255, 259, 263, 275-83, 287, 298, 309, 322, 331-39, 345-50, 353, 366, 381, 386-96, 402-4, 406 fathers-in-law, 38, 136, 263, 278, 333-34, 337, 348 feuds, 102, 105 fighting, xvii, 19, 20, 43-44, 98, 100, 236, 312-15, 322, 375 firstborn son, 76 Foedus Cassianum, 48 fool, foolishness, 321 foreign culture, 30 foreign influence in the law, 25 foreign traditions, 30 foreigners, 171, 174, 191-92, 196, 215

484

Writings of Westbrook, Vol. 1: The Shared Tradition

forfeiture, 137, 167, 170, 191, 198199, 204, 296, 380, 383-84 fraud, 66, 153-54, 359, 363-64 fugitives, 211-14 funerals, 24-25, 90, 146 furtum conceptum, 57, 68 Gaius, 52, 57-58, 68-69, 71, 132, 355, 358-63, 367, 390, 393 gate, gate area, 41, 229, 276-77, 292-93, 397 judicial role of, 236, 259, 280 gender, 299 Genesis, 171, 247, 277 gifts inter vivos, 347 marital, 77, 286, 336-38 Gilgamesh, 31, 37 god, gods, 5, 11, 14-15, 31, 47, 60, 88-89, 125-27, 143-44, 149, 153, 157-58, 165, 173, 180, 202, 205, 212-13, 221-22, 228, 261, 264, 270-72, 290-95, 324, 342-44, 398, 401, 406, 409 household, 401 gold, 24, 47, 144, 190-91, 235, 304, 326, 335, 337 good faith, buyer in, 59-60, 66, 364 goring ox, 13, 45, 49, 70, 113, 117, 129-30, 251, 311, 408 governors, 187, 393 Greeks, 46, 371 guardianship, 86, 185, 281-82, 350 Hades, 343, 350 Hadrian, 393 Hammurabi, xi, 5-9, 16-17, 28, 34, 51, 75-79, 89, 105, 114-15, 120-25, 133-34, 145-48, 152, 156, 229, 289, 306, 310, 341342, 365, 406, 409 Harab myth, 31 Hattusili III, 294, 297

Hebrew Bible, xvi, 29-30, 143, 162, 223, 290, 364 Hellenism, Hellenistic, 162, 369, 371 herding, 346 Herodotus, 47 Hezekiah, 398-99 hire, 79-84, 193, 197, 207, 228, 297, 381 Hittite Laws, xvii, 3, 11, 14, 32, 4245, 64, 66-67, 77, 90, 105, 107-17, 120, 157, 163, 189, 191, 211, 245, 255-60, 276, 289, 295-98, 307, 309-10, 312313, 364, 367, 375, 397, 404, 407-8 Hittites, 9, 29-30, 50, 92, 105, 158, 162, 234, 237, 289, 341 Homer, 305, 315, 318, 320, 324, 335-36, 340, 343, 346, 353 homicide, 78, 87, 93-94, 98, 113-14, 156, 195, 203, 257, 269, 281, 289, 292-93, 295, 297, 299, 303-8, 311, 314, 317-25; see also murder homosexuality, 261; see also sex, sexual horticulture, 70 Hosea, 266, 283-87 husbands, 13, 16, 43, 63-64, 77-78, 101, 166, 170, 176, 180, 185, 187, 198, 204, 208, 216, 240, 245-49, 252-75, 277-79, 281287, 295, 309, 331-39, 344-51, 370, 395, 400, 404-5 Icarius, 336, 339, 342, 349 Idrimi, 212-13 Iliad, xii, 303-27, 336 in flagranti delicto, 255-58, 260-61, 267-68, 307, 309, 403-5 in perpetuity, 201-2, 381, 385 incantations, 272, 290, 399

Index of Subjects incest, 273, 289, 293, 299, 345, 394 indemnification, 213, 312, 375-76 indictments, 291 Indo-European, 26, 30, 162, 319 inheritance, 9, 12, 18, 24, 33, 60, 63, 76-78, 89-90, 113, 145, 147, 159, 166, 178, 181-84, 186, 190, 195-96, 209, 212, 258, 295, 332-33, 337-40, 343-44, 346-53, 380, 388 disinheritance, 402 succession, 346-47, 353 testate, 182 injury, 43-45, 53, 55-57, 71, 101, 108, 129, 135, 268, 274, 282, 290, 293, 312-14, 367-68, 375; see also torts innocent purchaser, see good faith, buyer in innovation, 13, 77-79, 85, 87, 93, 109, 280, 377 instructions, 112 intent, legal, 44, 103, 113, 321-23 innocence of, 89, 269, 311, 321, 323, 356, 376, 404 interest, 70, 86, 90, 138, 151-54, 168, 187, 195, 307, 310, 383-85 international law, 171, 175, 215, 249; see also diplomacy investigations, 201, 217 Irikagina, see Uru-inimgina Isaac, 272 Isaiah, 398 Ishtar, 30, 176 Israel, ancient, xi, 9, 18, 29-30, 69, 87, 92, 97-98, 103, 117, 129, 143, 187, 196, 214, 220, 223224, 252, 261, 264-65, 274, 276, 280, 284, 371, 407 iudex, 48, 361

485

ius, xv, 23, 50, 53, 361, 363, 382, 391 iusta causa, 393 Jacob, 68, 401 Jeremiah, 30, 88, 159, 196-97, 387 Jerusalem, 30, 158, 265, 398 Job, 272, 274-75 Joseph, 68, 174 Josiah, 92, 365 Judah, man by name of, 174, 249, 262, 277-78 Judah, territory of, 88, 196, 224 264 judges, xiv, xvi, 5, 7-8, 10-11, 14, 16, 34, 48, 59, 75, 78, 90, 122123, 128, 136, 157, 201, 210, 248, 256-58, 265, 290, 295, 303, 306-7, 310, 313, 316, 325-27, 329 349, 366, 376, 392, 399, 403, 405; see also courts; royal judges judgments, 5, 7, 9-10, 15-16, 34-35, 39-40, 54, 75-76, 90-91, 99, 102, 105, 109, 112, 120, 123, 125-26, 133, 136, 159, 178, 229, 237, 250, 277, 290-91, 295, 304-7, 310, 316-17, 325327, 361, 366, 374, 392, 401; see also verdicts jurisdiction, 97, 99-100, 110-11, 113, 191, 258, 261, 277, 279, 281, 296, 306, 308, 393; see also courts in rem, 208, 271 jurists, xv, 6, 27, 55, 68-69, 71, 114, 119, 129-32, 196, 282-83, 358, 360-61, 364, 370-71, 373, 377, 390, 412; see also Roman commentators Justinian, Digest of, 114-15, 132, 358, 360, 376, 393

486

Writings of Westbrook, Vol. 1: The Shared Tradition

kidnapping, 61, 113-14, 174, 215, 312 king as judge, 10; see also royal decisions king, kings, 5, 7, 10-11, 14, 16-17, 32, 34, 43, 48, 51, 62, 75, 77, 86-88, 94, 107, 109, 123-28, 133-34, 137-39, 143-48, 151-160, 165, 178, 181, 184, 187, 191-97, 200203, 214-15, 224, 228, 231-42, 247, 256-61, 268, 281, 293-96, 306-8, 315, 334, 339-53, 383, 387, 394, 397-98, 400-5, 409-10 Kizzuwatna, 212 Labeo, 54-55 Laertes, 340, 344, 346-47, 349-52 Lagash, 87, 89, 146, 151, 195 lance et licio, 58-59, 68 land tenure, 48, 381; see also property; real property law (see also case law; civil law; common law; constitutional law; crime; customary law; international law; law codes; legislation; litigation; private law; sources of law; substantive law; theoretical law) enforcement of, 306 Israelite, 99, 103-4 local, 9, 12 positive, 4, 12, 34, 51, 77 law codes, xiii, xvi-xix, 3-20, 21, 2829, 31-33, 36-40, 43, 49, 57, 67, 73-95, 97-118, 119-29, 134-39, 147, 150-55, 161-64, 167, 174175, 180, 193, 197, 201, 205-6, 211, 214-15, 245, 249, 251-62, 267-269, 274, 276, 289, 296-98, 309-16, 321, 326, 337, 355, 364, 368-69, 375, 377, 403-9

biblical, xvi, 6-7, 13, 17-18, 3233, 56, 69, 110, 120, 130, 249, 250, 260, 310, 371 codification of, 21, 73-74, 76, 132, 137 epilogues in, 5-6, 14, 34, 51, 74, 89, 120, 123, 133-34 prologues in, xi, 5-6, 14, 193, 406 Laws of Gortyn, 23, 94, 120, 251, 258, 270, 286, 334, 356, 366367 lawsuit, 11, 34, 75, 122, 136, 147, 292, 294, 298, 313, 326, 366; see also litigation lawyers, xiv, 12, 15, 20, 86, 124, 133, 376 legal authority, xiv lectio difficilior, 360-62 legal library, 11 legal reference works, 11 legis actio, 25, 361 legislation, xiii-xiv, 5, 21-25, 28, 36, 50, 69, 73-95, 98, 106-8, 119, 123-25, 128-30, 146, 154, 164, 193, 250, 310, 357, 368-73, 376-78, 390, 404, 408 lending, 62-63, 93, 148, 151, 153-54, 159, 168, 176-77, 185, 187, 193, 198-99, 204, 207-9, 270, 306, 374, 380, 382-85; see also creditors; debt Levites, 197 Leviticus, 4, 20, 149, 159, 252, 273 lex, 21, 23, 25, 50, 85, 130, 355, 357, 361, 369, 372, 374, 391, 393, 404 Lex Aquilia, 52, 57, 355-78, 409 Lex Hortensia, 373 Lex Poetelia, 411 lexical texts, 408

Index of Subjects liability, 39, 62-64, 67-71, 95, 101, 103, 114, 138, 161, 201, 203, 251-57, 312, 321-23, 355, 363, 367, 378, 404 Erfolgshaftung, 103, 321-23 Linear B, 316, 319, 324-25 lingua franca, 163 lists, list-making, xiii, xvii, xix, 7, 10, 15, 34, 37, 44, 55, 57, 6567, 73, 78, 90, 94, 112, 119, 121-22, 126-27, 135, 138, 156, 166-67, 204, 222, 243, 250, 299, 316, 341, 365, 368-69, 375, 382, 407-8 creation of, 14-20 literary traditions, 114, 310 litigation, xii, xiv, 10-11, 16, 78, 86, 111, 123, 128, 136, 147, 161, 177, 256-57, 261, 263, 267-68, 279, 291, 297, 303-5, 313, 315319, 325-26, 361, 399, 400-4 difficult cases, 3, 10, 14-15, 17 reports of, 16, 177, 268 mancipatio, 381, 382, 385, 386, 387 marriage, xvii, 13, 18, 33, 38, 42, 87, 115, 136-37, 150, 161, 166, 170174, 185, 187-89, 249, 255-257, 261-267, 275-87, 309, 316, 323, 331-40, 343, 345-46, 348-50, 352-53, 365, 370, 391, 403, 410; see also husbands; wives intermarriage, 24 remarriage, 287, 334, 345, 370 mayors, 145, 187, 213, 220, 228-31, 235-36, 341 medical texts, 8, 37, 112 Menelaus, 347 merchants, 16, 62, 109, 148, 153, 186, 202-3, 306-7, 330, 386 messengers, 124, 235, 238, 398 metaphor, 139, 233, 264-66, 284, 413

487

method, methodology, 369 Middle Assyrian Laws, xvii, 3, 11, 13-14, 32-33, 63, 73, 86, 111, 114, 120, 163, 198, 204-5, 245, 252-62, 267-70, 275, 278, 289, 293, 297-98, 308, 310, 333, 364, 384, 404-7 Middle Babylonian period, 162, 164, 179, 197, 203, 212, 330 Midianites, 17, 174 military, 16-17, 89, 137, 147, 158, 173, 187, 212, 238, 241, 307, 316, 319, 326, 335, 344, 346347, 350, 365, 392, 394, 398 m aru(m), 88, 90, 151 miscarriage, xvii, 109; see also pregnancy Mishnah, 56, 71, 87, 131, 370 Mittani, 162, 164, 236, 238, 330 morality, 33, 75, 98, 218-19, 243, 269, 322 Moses, 17-19, 28, 92, 179, 401 mothers, 41, 101, 151, 173, 182-84, 209, 240, 255, 266, 280, 285, 287, 332-33, 335, 345, 347-53, 366, 392, 394, 396, 402-3 mothers-in-law, 298 mult biltu, 127 murder, 16, 33-34, 51, 61, 87-88, 89, 113, 116, 122, 136, 151, 155, 158, 195, 249, 257, 265, 269, 271, 321, 365, 399, 403, 406; see also homicide mu knu(m), 43, 45, 56 Mycenaea, 92, 315-17, 319, 326, 329 myths, 31, 223, 315-16, 331, 342 narrative, 14, 33, 88, 97-98, 120, 129, 161, 225, 240, 242-43, 257, 261, 277, 299, 320, 329, 331, 352, 364, 369, 400

488

Writings of Westbrook, Vol. 1: The Shared Tradition

Nebuchadnezzar, 400 Neo-Assyrian period, 11, 127, 152, 163, 176, 187, 198, 202-3, 232 Neo-Babylonian Laws, 3, 13-14, 19, 32, 77-78, 120, 163, 201, 289, 298, 310, 333, 337, 364 Neo-Babylonian period, 3, 13, 19, 32, 78, 120, 163-64, 167, 173, 179, 181, 184, 201, 205, 267268, 289, 310, 364 Neo-Sumerian period, 85, 162, 164, 172, 175, 177, 181, 188, 200, 210 Nippur, 16, 111, 144-45, 178, 194, 210, 227-30, 261, 263, 267-68, 279, 307, 399 Nippur Homicide Trial, 399 nomos, 128 noxal liability, 362, 367 Numbers, 4, 17, 399 Nuzi, 113, 152, 164, 168, 173, 179, 189-91, 206, 264, 313, 339 oaths, 62, 101, 124, 128, 178, 180, 181-82, 184, 210, 212-13, 223, 234, 282, 304, 314, 342, 347 exculpatory, 262 promissory, 201 obligations, 147, 201, 218-19, 223, 232, 234, 239, 363-64 Odysseus, 322-23, 329, 331, 333, 337-53 Old Assyrian period, 162, 183, 189, 330 Old Babylonian period, xiv-xv, 8, 10, 13, 78, 85, 88-89, 152, 156-58, 162-64, 167-69, 174-75, 177, 180, 183, 185, 187-88, 193, 200, 205-6, 208, 210, 212, 221, 226, 255, 261, 264, 267, 281, 297-98, 307, 330, 341

omens, omen series, 8-11, 14-16, 18, 20, 35-37, 73, 77, 112, 121, 126-27, 138, 369, 408; see also lists, list-making omissions, 227, 235, 251 oracles, 17, 19, 291, 295 oral tradition, 14, 56, 130, 369, 377; see also literary traditions ordeals, 262, 282, 294 ordinances, 18, 94, 342 orphans, 144-45, 159; see also children: abandoned palace, 11, 16, 60, 87, 89, 111, 153154, 161, 166, 193, 211, 213, 222, 226, 259, 264, 292-93, 297-98, 317, 334 Palestine, 29; see also Syria-Palestine Papinian, 395, 404 parataxis, 22 pardon, 48-49, 63, 94, 246-47, 249, 252, 258-61, 284, 295, 299, 320, 397, 399-401, 405-6, 409410, 412 party, parties, 11, 15, 35, 40, 56, 61, 63-66, 76, 82, 94, 99, 111, 151, 188-90, 203, 209, 231, 245, 249, 261-63, 267, 277-79, 281, 284287, 293-94, 297-98, 305-8, 313, 317-18, 325-27, 361, 374, 385 injured, 147, 256, 269, 278, 312 third, 42, 63, 161, 169, 176-77, 206-10, 225, 229, 254, 275 partnerships, 153, 233 Passover, 19 paterfamilias, 27, 43, 99, 136, 143, 145, 166, 186, 232, 249, 251, 334, 341, 347, 349-51 patria potestas, 393-94, 407, 412 patricians, 22-23, 25, 372-73 Patroclus, 321-23

Index of Subjects payments, 42, 44, 55, 62-63, 66-67, 76, 81-82, 85, 99-100, 107-8, 146-47, 150, 154-56, 159-60, 167-69, 185, 188-91, 199, 202-3, 209, 215, 221, 230-31, 237, 241, 263, 270, 275, 278, 287, 292, 296, 304, 312, 324, 331-32, 338, 344, 363-64, 374-376, 383-85 peculium, 188, 191 penalties and punishment, xvii, 7, 12, 22, 33, 35, 39, 44-45, 5269, 76, 78, 85, 98-100, 105-9, 114, 121-22, 136, 147, 153, 167-69, 171, 175, 180-84, 190192, 197, 203-13, 237, 245-48, 254-58, 262-74, 277-78, 280285, 292-296, 306-9, 312-13, 349, 362, 366, 368, 373, 375, 394-95, 398-407, 410 capital, 13, 20, 48, 60, 63, 70, 78, 98-99, 100, 113, 154, 174, 208, 246-49, 257, 267-71, 274, 281, 296, 332, 366, 392, 397-402, 405 stoning, 17, 70, 265, 299, 401 drowning, 264 corporal, 191, 216 flogging, 309, 395 mutilation, 258, 262, 268, 270, 306, 309 humiliation, 263-64, 266, 309 monetary, xiii, 13, 62, 155, 337 vicarious, 45, 92, 207, 273, 275, 309, 311-12, 325 Penelope, 329, 331, 333-35, 337-53 suitors of, 329, 335-36, 340-43, 348-53 perjury, 291 personal property, 343, 346, 351 personal status, 350

489

petitions, 107, 147, 157-58, 160, 193, 229, 240, 290, 315, 398 Philistines, 309, 334-35 physical injury, xiii, 13, 21, 44, 5253, 55, 57, 104, 113-14, 126, 175, 233, 309, 320, 327, 345, 400, 407-8; see also torts: damage to person physicians, 43-44, 124, 232, 312, 391 plaintiff, 61, 75, 82-83, 269-70, 291292, 306-7, 309-11, 314, 327 plebeians, 372-73, 394 pledge, 148, 151, 154, 166-68, 170171, 176, 188, 190, 193-194, 197-99, 204, 364, 380-87 antichretic, 168, 187, 190, 198 biblical treatment of, 172, 176, 185-86, 208, 270-71 Plutarch, 128, 223 poin, 303-5, 321, 324 politics, political, 19, 31, 76, 109110, 128, 143, 158, 217, 220, 230-31, 234-35, 243, 265, 274, 294-95, 297, 319, 330, 339, 341, 343-44, 350, 372-73, 376377, 391, 396, 410, 413 pollution, 158, 273, 293, 295, 299 Pomponius, 373 Pontifex Maximus, 392 postliminium, doctrine of, 412 prayer, praying, 75, 221-22, 290, 324, 399 prebends, 324, 380 precedents, 14-17, 19, 74, 91, 111 pregnancy, xvii, 101, 109, 249, 262, 277, 311; see also miscarriage presumptions, 28, 75, 118, 314, 408 Priam, 335, 344, 346 Priestly Code, 4, 245, 247, 270 priestly source, 254, 273

490

Writings of Westbrook, Vol. 1: The Shared Tradition

priests, priestesses, 4, 15, 30, 47, 249, 254, 273, 307, 400 princes, 127, 196, 233, 240, 293, 319, 406 princesses, 345 principles of law, 15, 23, 91 prison, prisoners, 16-17, 169, 174, 180, 262, 397, 412 prisoners of war, 180, 412 private law, 23-25 private legal documents, 124, 152; see also documents of practice procedure, legal, 10-11, 17-18, 24, 68, 86, 94, 101, 123, 172, 210, 247, 256-57, 266, 279, 298, 314, 347, 370, 402 prohibitions, 24, 46, 51, 211, 214, 216, 273, 370 property (see also real property) alienation of, 27, 159, 167, 214, 380, 382, 384 damage to, 70 lost, 59-60, 65 marital, 13, 287, 334 prosecute, prosecution, 87, 89, 246, 248-49, 314 prostitution, 254-55, 263 Proverbs, 156 provincial administration, 40, 49, 64, 66, 92, 306-7, 393 quanti ea res erit, 359-61, 363 quanti id fuit, 363 queens, 227, 345, 353 Rabbis, Rabbinic literature, 31, 69, 71, 107, 120, 129-31, 339, 370-71 ransom, 16, 54, 94, 156, 172, 177, 187, 195, 248-49, 258-59, 335; see also revenge and ransom rape, 39, 41-43, 155, 251, 265, 268, 275-76, 293, 307, 320, 323, 367

ratio decidendi, 16, 35 real estate (see also real property) foreclosure, 147, 176 real property, xvi-xvii, 10, 31, 52, 70-71, 74, 78-86, 89-90, 108, 115-16, 120, 127-31, 134-37, 147-61, 167, 173, 184-86, 188, 194-98, 202, 213, 234-35, 239, 242, 256, 266, 276, 298, 306, 313-314, 317, 320, 324-25, 339-40, 347, 369, 379-81, 383385, 403, 406 receipts, 146, 189, 287, 343, 363 redeemer, 186-88, 308 redemption, 16-17, 64, 143, 148-51, 160, 164, 185-93, 197-99, 202, 204-6, 215-16, 249, 311, 379388 redress, 102, 143, 229, 292 Rekhmireh, 10 relief, judicial, 213-14, 221; see also damages religion, religious, 24, 29, 31, 37, 47, 50, 92, 97-98, 101, 107, 117, 120, 157-58, 196, 219, 223, 226 remedies, 54, 57, 150, 245, 248, 261, 269, 271, 282-83, 291, 293, 308, 325, 373, 375 repayment, 148, 153, 168, 198, 207, 374, 380, 385 resident alien (Akk. ub ru; Heb. gr), 149, 171, 185, 212, 214215 res mancipi, 58-59, 381 res nec mancipi, 58 revenge and ransom, system of, 53, 61, 63, 92, 106-7, 155, 169, 194, 207-8, 269-72, 283, 293, 295-95, 299, 303-21, 324-27, 375-76

Index of Subjects revenue, 343-44, 346, 350-52 Rib-Hadda, 237 righteousness, in a legal sense, 287 rights, xvii, 22, 25, 33, 51, 111, 134, 144-48, 167, 171-74, 187, 191, 214-19, 227, 232, 234, 237, 249, 254, 261, 265, 268, 286, 295, 308, 327, 380-81, 385, 409 Roman commentators, 27 Roman law, archaic, 27 Roman Republic, 21, 27, 46, 69, 130, 223, 230, 364, 371, 373, 376-77, 394, 410, 412-13 Romans, 27, 48, 55, 371-72 royal apology, 5-7, 125, 408 royal archives, 11 royal courts, 10, 36, 89, 241, 296, 319 royal decisions, 15; see also king as judge royal inscriptions, 5-6, 11, 14, 152, 161 royal judges, 3, 10, 14-15 Ruth, 150 Sabbath, sabbatical, 17-18 Sabinus, 360 sages, 31 arru(m), 341, 397 Samson, 309 sanctions, xvii, 33, 97, 146, 218, 252, 262, 319 Sarah, 171, 247, 272-73 Sargonic period, 162, 199 Saul, 325, 334-35 scientific treatise, 3, 8-10, 12, 14-15, 19, 21, 26, 29, 31, 36-37, 3940, 46, 49-51, 60, 67-70, 91, 95, 109-10, 112, 117, 121-134, 138, 222, 250-51, 258, 310, 368-69, 371, 377-78, 408

491

scribe, scribal, 3, 8-14, 21, 29-30, 37, 40, 46, 50, 74, 77, 116, 124, 179, 190, 203, 226-27, 249-50, 264, 306, 308, 360-61, 404 scribal curriculum, 12; see also canon, canonical literature Sea Peoples, 30 seals, sealing, 77, 122, 136, 149, 182, 184, 186, 331, 366, 381 seduction, 42, 251, 260, 276, 280, 352 seizing, 43, 59, 65, 127, 150, 175176, 192, 210, 212-13, 256, 276, 292, 348, 401, 404-5 self-help, 53, 61, 260, 267, 269, 309; see also remedies self-sale, 171, 177, 381 servitude, 151, 169, 190, 234; see also debt-slavery settlements, 33, 99-100, 102, 178, 285-86, 337, 369 sex, sexual, 208, 216, 246, 251, 262, 267, 273-75, 293, 295, 394, 408 Sextus Aelius, 71 Shamash, 11 Shulgi, 32 si adorat furto, 51 siblings, 88 silver, 12, 16, 43-44, 56, 62, 70, 88, 108, 122, 135-36, 144, 148-49, 152-53, 168-69, 173, 176-91, 198-202, 207, 211-12, 222, 227, 235, 269, 274, 280, 295, 308-13, 333, 337, 366, 374, 386-87, 403 sin, sinful, 20, 31, 93, 208, 240, 245, 247, 261, 271-73, 278, 281, 283, 397, 399 Sippar, 158, 179

492

Writings of Westbrook, Vol. 1: The Shared Tradition

slaves, slavery, 7, 33, 35, 44-45, 52, 56-57, 63, 70, 100, 108, 111, 117, 136, 143-44, 147-51, 155160, 161-216, 219, 234, 251, 263, 269, 270-72, 295-96, 298, 310, 312, 339, 343, 346, 352, 357, 359, 367-68, 373-74, 379384, 386-88, 390-92, 395-96, 401-2, 406, 408, 411-12 chattel, 165, 170, 172-75, 191, 199, 205-6, 216 female, 70, 196, 201 manumission, 132, 170, 181-84, 215-16, 387-88, 412 marks of, 180, 210-12 release from, 181-97 runaways, 200 social justice, 143-60, 170-72, 179, 187, 192, 214 Socrates, 128 Solomon, 345 sons, 18, 111, 149, 155, 167, 177178, 189-90, 194-96, 206, 210, 232, 274, 277, 314, 316, 325, 332-33, 335, 346, 349, 380, 383, 386, 393-95 sons-in-law, 38 sorcery, 290-92, 294, 296-99 sources of law, 19, 23, 74, 95, 111112, 119, 376 source-criticism, biblical, 18 Sparta, 342 spoils of war, 17, 135, 159, 172-73, 344, 346 status, 33, 40, 42-45, 56, 70, 103-7, 144, 148, 165-67, 170-71, 174, 179, 183-84, 192, 201-15, 228, 234-37, 240-42, 247, 251-55, 267-71, 275, 280-82, 297, 331, 338, 340, 344, 367, 372, 378, 381, 398-99, 408, 412

statutes, 7, 18, 21, 28, 53, 59, 74, 86-87, 91-92, 95, 128, 130, 356-57, 359, 375, 392-93, 404; see also law codes step-siblings, 320 stewards, 306 stipulatio, 375 substantive law, 12, 42, 45, 60, 89, 90, 95, 108, 117, 129, 283, 317 succession, dynastic, 89, 341, 344345, 347, 351 sufes, 48 sui iuris, 287 Sumer, Sumerian, 3, 12, 18, 30-32, 42, 79, 84, 104, 110, 113, 120, 144, 146, 150-52, 162-64, 167, 172-73, 175, 179, 198-99, 221, 253-54, 262-63, 330, 332, 341, 364 Sumerian Family Laws, 3 Sumerian Laws, 3 umma izbu, 8, 11, 14, 20, 35; see also omens, omen series summons, 306 Shurpu (urpu), 4, 272, 399 Syria, 29, 46, 103, 143, 149, 164, 330, 339 Syria-Palestine, 103, 161, 163, 341; see also Palestine talio, 13, 20, 46, 52, 375-76 Talmud, 279; see also Rabbis, Rabbinic literature Tamar (daughter of David), 320 Tamar (wife of Judah), 249, 262, 277-78 tam tu texts, 15 Tammuz, 30, 337 taverness, 154 taxation, 108, 154, 195 Tehip-tilla, 179, 189, 191, 206 Tekoah, widow of, 314-15, 320, 322

Index of Subjects Telemachus, 334, 339, 343-44, 346353 temple, 16-17, 30, 47-48, 75, 89, 161, 166, 173, 201, 208, 222, 317, 324, 380; see also priests, priestesses Ten Commandments, 51 tenancy, 77, 80-81, 107, 111, 122, 137, 153-54, 157 testimony (see evidence: testimonial) theft, 12, 21, 33, 51-52, 57-70, 77, 84-85, 98-101, 107, 109, 129, 131, 151, 155-56, 169, 174, 177-78, 195, 203, 213, 225, 261, 269, 271, 293, 307, 310, 356, 366, 392, 401, 403, 405, 411 possession of stolen goods, 67 Theodosian Code, 392 Theophilus, 373 theoretical law, 19, 64 thesmos, 128 tithe, 47 title, 196-97, 201 Torah, 32, 69, 120, 129, 364 torts damage to person, 69 damage to property, 70 damage to reputation, 38, 52-57, 229, 265, 280-82, 293, 298, 375-76 negligence, 71, 80, 83-84, 108, 274 recklessness, 340 torture, 394 treason, 261, 400 treaties, 6, 46-48, 124, 212-14, 223, 234, 249, 342; see also international law trespass, 130, 134

493

Tribonian, 115 tribunes, xiv, 274, 394 tribute, 235 Twelve Tables, 21-71, 119-20, 129132, 256, 309, 358, 361, 367368, 373-77, 379, 382, 386, 393, 403-4, 409 Ugarit, 113, 157-58, 164, 185, 220, 253, 261, 274, 316 Ulpian, 359-62, 373, 375-77, 393, 404, 412 United States, law of, xi, xiv, xix, 12, 225, 314 unlawful death, 20; see also homicide; intent, legal: innocence of Urartu, 29 Urgesetz, 26, 28-29, 39-40 Uru-inimgina, 87-89, 107, 146, 151, 155, 158, 164, 194 Uruk, 154 Urukagina, see Uru-inimgina usufruct, 324 venue, xii verdicts, 4, 17, 20, 101, 122-23, 126, 136-37, 159, 196, 280, 318, 401, 407-8; see also judgments; litigation victims, 10, 43-45, 53, 61, 70, 102, 108, 113, 138, 155, 169, 171, 174, 177-78, 225, 251, 255, 261, 274, 290-93, 295-96, 299, 303-8, 311, 317-18, 367-68, 376, 399, 403, 405, 407 virginity, 41, 275, 279, 280-81, 391; see also sex, sexual vitae necisque potestas, 48, 389, 391-92, 394-96, 405, 409-10, 413 warranty, 181, 200-2

494

Writings of Westbrook, Vol. 1: The Shared Tradition

weights, 154 Wen-Amon, 171 Western Asia, 30, 103, 224, 234 widowhood, 78, 144-45, 159, 176, 240, 242, 287, 314-15, 320, 322, 333-34, 338, 344-45, 349 wisdom, 8-9, 117, 125, 129, 246, 304, 310-11, 326, 330; see also sages witchcraft, 33, 89, 113-14, 122, 136, 289-99, 365, 400; see also sorcery withdrawal, legal, 383 witnesses, 57, 59-60, 68, 86, 153, 168, 185, 238, 268, 304, 315, 357-58, 381 need for two witnesses, 398

wives, 16, 38, 41-43, 51, 63-64, 7778, 87, 143, 150, 154-55, 166, 168-71, 176-78, 180, 184-85, 189, 191-92, 194-95, 198, 200, 204-5, 208, 245-48, 251-59, 261-77, 280, 282-86, 294-95, 297-98, 309, 316, 331, 333-35, 337-38, 341, 345, 347, 370-71, 387, 395, 399-400, 403-5, 408, 411 wounding, 20, 43, 100-1, 116, 269, 281, 292, 307, 309, 312, 355, 357, 359, 375, 403 Zaleucus of Locri, 46, 129 Zechariah, 402 Zedekiah, 88, 158, 164, 196-97, 387 Zeus, 316, 347

Index of Ancient Sources

The sources listed below are arranged in the following order: Cuneiform, Biblical, Greek and Roman, Egyptian, Phoenician, Aramaic, and Rabbinic.

Cuneiform AbB 1 27 .......................................... 206 1 50 ............................................ 74 2 24 .......................................... 306 2 9 ............................................ 306 5 166 ........................................ 221 5 224 ........................................ 222 6 80 .......................................... 174 9 268 ........................................ 298 9 269 ........................................ 298 ABL 2 ..........................................397-98 259 ........................................... 398 620 ........................................... 400 ADD 321 ...................................203, 308 AfO 16 37 (pl. III) ........................... 179 AHDO 1 106-108................................. 189

Ammi-aduqa, Edict of §3 ..............................................152 §5 ................................................90 §7 ....................................... 90, 153 §8 ..................................... 152, 153 §9 ..............................................153 §10..............................................90 §§11-12 ....................................154 §17..................................... 90, 154 §18..............................................90 §20................................... 154, 194 §21............................................194 §22..............................................90 ana ittiu ............................see MSL I ARM 2 92...........................................401 8 71...........................................168 Arnaud Emar 6 16 ..............................................190 86 ..............................................190 123............................................149 205..................... 149, 176, 185-86 211............................................206 215............................................177

496

Writings of Westbrook, Vol. 1: The Shared Tradition

216 ........................................... 191 217 ........................................... 191 257 ........................................... 178 ARU 24 ............................................. 383 38 ............................................. 385 46 ............................................. 384 55 ............................................. 383 59 ............................................. 383 133 ........................................... 187 AT 2 ............................................... 213 3 ............................................... 212 28 ............................................. 187 28-31........................................ 187 BaghM 16 373-374 .............................. 202 BBSt. 9 ............................................... 203 BE 6/1 84 ................................. 78, 332 6/1 101 ....................................... 78 6/2 8 ......................................... 188 6/2 48 ....................................... 180 6/2 66 ....................................... 380 BM 74652 ....................................... 179 (= AfO 16 37, pl. III) 80318 ....................................... 158 Bo. 557 ........................................... 297 BRM 4 52 ..................................264, 266

Camb. 334............................................173 Çi and Kizilyay NRVN 1 ................................................210 Code of Eshnunna §§1-4 ........................................112 §§1-11 ........................................90 §§10-11 ....................................112 §12............................. 19, 256, 403 §§12-13 ........................... xvii, 256 §13................................... 309, 403 §14............................................112 §§15-16 ....................................111 §§17-18 ....................................333 §18..............................................78 §19..............................................19 §§25-26 ....................................367 §§25-35 ....................................365 §26.....................41, 276, 332, 408 §§27-28 ........................... 255, 367 §28...................255, 257, 267, 403 §§29-30 ....................................367 §31................................... 269, 367 §§32-35 ....................................367 §§36-37 ....................................115 §§39..........................................148 §41............................................154 §42..................................... 56, 368 §§42-47 ....................................368 §45..............................................56 §46..................................... 56, 135 §48............................................281 §51............................................210 §§51-52 ....................................111 §53...................xvii, 4, 13, 38, 408 §54..................................... 13, 311 §§54-58 ....................................311

Index of Ancient Sources Code of Hammurabi prologue I 27-49................................. 406 epilogue XLVII 1-2 ............................... 7 (XLVII = reverse XXIV) XLVII 1-5 .....................75, 112 XLVII 33-35 ......................... 75 XLVII 59-61 ....................... 144 XLVII 59-63 ......................... 75 XLVIII 3-17.......................... 74 (XLVIII = reverse XXV) XLVIII 3-19........................ 133 XLVIII 8-19.......................... 51 XLVIII 20-21...................... 145 XLVIII 20-24...................... 187 XLVIII 59-72...................... 120 XLIX 18-35 ...................125-26 (XLIX = reverse XXVI) §§1-4..................................xvii, 52 §§1-5....................122-23, 135-36, 365-66 §2 .............................294, 296, 298 §8 ..........................................60-61 §9 ............................................... 67 §§9-11........................................ 61 §§9-12...................................59-60 §12 ......................27, 62, 138, 258, 261, 264, 267 §14 ...................................114, 174 §§15-16.................................... 211 §17 .................... 78, 175, 183, 211 §30 ........................................... 137 §§30-31.................................... 137 §31 ........................................... 137 §32 ............................... 16-17, 187 §§36-40.................................... 111 §42 ............................................. 80 §43 ........................................79-80 §44 ....................................... 79, 81

497

§53..................................... 84, 177 §§53-54 ....................................177 §55..............................................84 §§55-56 ......................................83 §56..............................................84 §58..............................................85 §60..............................................82 §62..............................................82 §§62-63 ......................................82 §63..............................................82 §64..............................................80 §65..............................................80 §110..........................................254 §111..........................................154 §§115-116 ................................175 §116...................................... 206-7 §117................ xiii, 150, 154, 169, 176, 192, 194, 387 §118.................................... 169-70 §119................... 148, 186, 386-87 §125..........................................115 §128............................................27 §129........................138, 258, 261, 264, 267, 405 §§129-130 ................................138 §130............. 41, 138, 275-77, 408 §131.........................262, 267, 282 §132..........................................267 §138..........................................263 §141................................. 166, 266 §142.............262, 275-76, 278-79, 281-82 §§142-143 .................262, 275-76, 278-79, 281-82 §§155-156 ..........................136-37 §160..............................................4 §161............................................38 §162..........................................333 §163..........................................147 §164................................. 115, 337 §167..........................................333

498

Writings of Westbrook, Vol. 1: The Shared Tradition

§§168-169 ............................... 402 §171 .................................175, 183 §§171-172 ................................. 78 §172 ................................... 13, 349 §176 ........................................... 78 §185 ........................................... 26 §§185-186 ............................... 180 §195 ......................................... 114 §§196-205 ............................... 368 §202 ........................................... 55 §203 ........................................... 56 §204 ........................................... 56 §205 ........................................... 56 §206 .................................xvii, 375 §§206-207 ............................... 312 §§206-208 ................................. 43 §§209-211 ............................. 7, 35 §§209-214 ............................... xvii §§226-227 ............................... 210 §§229-231 .....................7, 35, 136 §230 ......................................... 274 §§241-272 ............................... 365 §§250-252 ............................... 311 §251 ......................................... 311 §255 ........................................... 85 §265 ........................................... 60 §§268-277 ................................. 90 §§278-279 ............................... 200 §279 ......................................... 201 §280 ......................................... 203 §§280-281 ............................... 202 §282 ......................................... 205 Code of Lipit-Ishtar prologue................................... 193 §§12-13.................................... 211 §14 ........................................... 150 §§15-16.................................... 167 §17 ........................................... xvii

§25................................... xvii, 175 §29..........................................4, 38 §30............................................254 §31............................................182 §b ................................................18 Code of Ur-Namma prologue ...................................144 §1 ..............................................113 §6 ............................... 41, 276, 408 §§6-7 ........................................276 §7 .............................103, 253, 260 §13...........................294, 296, 298 §14............................................211 §28................................. 78, 79, 84 §29........................................79, 85 CT 2 8 ...............................................81 2 33...........................................185 6 29...........................................212 8 2a .............................................78 8 22c .........................................104 8 48a .........................................183 33 36...........................................81 48 50.........................................337 48 56.........................................281 CTH 71 ..............................................295 CTN 2 248.........................................198 Cyr. 307............................................181 Dar. 53 ..............................................201

Index of Ancient Sources El-Amarna 1 ............................................... 337 4 ............................................... 337 7 ............................................... 236 8 ............................................... 308 13 ............................................. 337 14 ............................................. 337 19 .....................................236, 238 74 ............................................. 237 76 ............................................. 237 88 ........................................237-38 90 ............................................. 237 126 ........................................... 237 137 ........................................... 237 147 ........................................... 234 156 ........................................... 236 157 ........................................... 236 158 ............................. 236, 238-39 160 ........................................... 235 161 ........................................... 235 162 ......................................236-37 167 ........................................... 239 169 ........................................... 239 198 ........................................... 238 Entemena Ent. 79.4.2-5............................ 151 Gurney MB Texts 1 ............................................... 197 Hattusili III, Apology of II 74-79 .................................... 294 III 20-21................................... 294 III 21-22................................... 295 III 22-30................................... 294 Hittite Instructions for Temple Officials 29-30........................................ 402

499

Hittite Instructions to the Commander of the Border Guards (= Bl Madgalti) III A 11-14 ...............................295 Hittite Laws §1 ..............................................312 §§1-4 ............................... 203, 296 §5 .......................................... 108-9 §6 ..................................... 108, 116 §§7-8 ........................................108 §§7-9 ........................................368 §9 ..............................................107 §10....................xvii, 43, 108, 116, 312, 375 §§11-12 ....................................108 §§11-16 ....................................368 §13............................................108 §§15-16 ....................................116 §17............................................xvii §§17-18 ....................................109 §19b..........................................312 §§22-23 ....................................211 §24............................................211 §44b................................. 296, 298 §45........................................ 108-9 §47............................................108 §47b..........................................109 §48............................................116 §55..................................... 77, 157 §56............................................111 §§57-59 ................................64, 67 §§57-71 ......................................64 §59..............................................77 §§60-62 ......................................65 §§63-65 ................................64, 67 §66..............................................65 §§67-69 ................................65, 67 §70........................................ 66-67 §71..............................................65

500

Writings of Westbrook, Vol. 1: The Shared Tradition

§92 ........................................... 107 §§93-100.................................. 367 §98 ........................................... 375 §104 ......................................... 375 §§106-107 ............................... xvii §111 .................................296, 298 §§164-166 ............................... 116 §166 ......................................... 107 §170 .................................295, 298 §172 ......................................... 189 §173 ......................................... 307 §§176b-186 ............................... 90 §§178-185 ............................... 112 §187 .........................114, 295, 397 §§187-188 .......................114, 259 §191 ........................................... 68 §194 ......................................... 208 §196 ......................................... 107 §197 ................. xvii, 42, 255, 257, 276, 295, 309, 404, 408 §197-198..........................245, 295 §198 ....................................258-60 §199 .................................107, 295 §§199-200 ............................... 114 §III ........................................108-9 §IV ...................................108, 116 §§V-VII ................................... 108 §IX ...................................108, 116 §§X-XI..................................... 108 §XII.......................................... 108 §§XIV-XV............................... 116 §§XVI-XVII............................ 109 §XXV ...................................... 108 §XXXV ................................... 109 §XXXVII................................. 108 §XXXIXb ................................ 109 §XL.......................................... 116 HSS 5 40 .......................................... 168 5 71 .......................................... 264

Iraq 17 no. 2 (NT 97) ......................178 Irikagina (= Uru-inimgina) see Sollberger Corpus Izmir 1277..........................................295 JCS 17 77 (no. 5)...............................74 Jean Tell Sifr 58 ................................................76 JEN 179............................................173 312............................................190 444............................................264 446-465 ....................................179 449............................................206 452............................................206 455............................................190 456............................................190 457............................................206 458............................................189 462............................................206 463............................................189 610................................... 179, 191 611................................... 179, 189 613................................... 179, 190 KAH 1 2 iii 16-iv 3 .............................90 KAJ 7 ................................................187 66 ........................................ 167-68 150...................................... 383-84 167............................................187

Index of Ancient Sources KAR 119 ........................................... 272 KBo IV 8 .......................................... 295 VI 4 .................................12, 107-8 Keret Myth II 98-103.................................. 316 IV 186-191 .............................. 316 Kienast Kisurra 88 ............................................. 180 Kraus AV 359-85...................................... 183 KUB XIV 4 ....................................... 297 Kutscher Brockmon Tablets 90 iv ......................................... 172 Kwasman NA Legal 401 ........................................... 176 Lambert BWL 119 (= KAR 119) .................... 272 130-131.................................... 272 259 (= AJSL 28 242) .............. 171 Maqlû I 1-19 ..................................290-91 I 1-36 ....................................... 290 I 4-12 ....................................... 291 I 13-14 ..................................... 291 I 15-17 ..................................... 292 I 18-19 ..................................... 291 III 121-122 .............................. 297 MDP 22 44 ........................................ 381

501

Middle Assyrian Laws Tablet A §1 .........................................257 §§3-4......................................63 §§3-6......................................63 §5 ..................................... 63-64 §6 ...........................................64 §8 .........................................xvii §9 .........................................257 §12 .......................................268 §13 .......................................252 §§13-16................................245 §14 .............................. 253, 255 §15 .................. 257-58, 261-62, 267-68, 270, 404-5 §15a......................................257 §16 .............................. 257, 260 §20 .......................................257 §21 .......................................257 §§22-23....................... 245, 260 §27 ................................ 13, 333 §29 ................................ 13, 333 §30 .......................................278 §32 .........................................13 §40 ................19, 111, 114, 257 §43 .......................................278 §44 ................................... 204-5 §47 ................ 114, 293, 297-98 §§50-51................................xvii §55 .............................. xvii, 275 §56 .......................................xvii §§57-59................................268 §59 .......................................204 Tablet B §2 .........................................308 §6 ...........................................19 Tablet C+G §3 .........................................198 §7 .........................................384

502

Writings of Westbrook, Vol. 1: The Shared Tradition

MSL I 2 IV 7'-14'................................ 200 3 III 28-57................................ 180 7 II 23-28................................. 180 MVN 3 219 .......................................... 62 Nbn. 243 ........................................... 333 697 ........................................... 184 Neo-Babylonian Laws §6 ............................................. 201 §7 ............................................. 298 §8 ............................................. 337 §§8-13........................................ 13 §12 ............................... 77-78, 333

I 58-60 ......................................229 I 67-68 ......................................229 RS 8.208.........................................184 15.119.......................................274 17.130.......................................157 17.228................................. 253-54 SAA 2 6 .............................................397 10 226.......................................232 10 227.......................................232 10 294................................. 232-33 10 362.......................................127 San Nicolò-Petschow Bab. Rechtsurkunden 17 ..............................................104

Nippur Homicide Trial.......... 16, 399 NSG 32 ............................................. 175 41 ............................................. 178 42 ............................................. 177 75 ............................................. 181 99 ............................................. 181 178 ........................................... 181 205 ........................................... 181 OBT Tell Rimah 150 ........................................... 226 Petschow MB Rechtsurkunden 1 ............................................... 104 Poor Man of Nippur I 1-10 ....................................... 144 I 1-22 ....................................... 227 I 34-40 ..................................... 228

SMN 2131..........................................313 Sollberger Corpus Ukg. 4.11.32-4.12.11...............146 Ukg. 4.12..................................194 Ukg. 4.12.13-22.......................151 Ukg. 4.13-22 ............................194 Ukg. 5................................... 89-90 Ukg. 5.11..................................194 Ukg. 5.11.1-18 .........................146 Ukg. 5.11.20-29.............. 151, 194 Ukg. 5.20-29 ............................194 Ukg. 6.......................................107 SRU 40-42 ........................................173 43 ..................................... 104, 180 49 ..............................................199

Index of Ancient Sources

503

Steinkeller Sale Documents 45 ............................................. 181 S.3 ............................................ 200

YNER 5 (= Eichler 1973) 5 33...........................................188 5 34...........................................188

umma izbu III 5-7..................................... 8, 35

YOS 2 25...........................................307 5 141.........................................209 8 31...........................................177 8 35...........................................209 12 74.........................................175 13 5...........................................200 13 248.......................................175

urpu II 47-48 .................................... 272 IV 6 .......................................... 272 TCL 10 40 .......................................... 88 Telipinu, Edict of §49 ........................... 88, 94, 307-8 §§49-50...................................... 89 §50 ........................................... 292 Tudhaliya, Edict of I 1-11 ....................................... 157 II 3-8 ........................................ 195 II 3-10 ...................................... 155 UET 3 51 .......................................... 188 5 9 ............................................ 169 5 203 ...................................267-68 5 420 .......................................... 86 VAS 6 61 .......................................... 333 7 21 ............................................ 81 7 22 ............................................ 81 8 62-63....................................... 81 Waterman Bus. Doc. 48 ............................................... 81 YBC 2177 ............................................. 3

ZVR 44 no. 55.......................... 167, 199 ZA 55 71...........................261-63, 268 (= adultery trial from Nippur)

Biblical Genesis 4:23-24 .....................................309 6:9-9:17 ......................................31 12 ..............................................171 12:10-12 ...................................272 20 ..............................................247 20:1-14 .....................................272 20:9...........................................272 21:14-16 ...................................266 24:2-4 .......................................210 26:10.........................................273 26:6-11 .....................................272 31:22-35 .....................................68 31:32.........................................401 37:25-28 ...................................174 38 ..............................................277 38:13.........................................278 38:24........................249, 262, 277

504

Writings of Westbrook, Vol. 1: The Shared Tradition

Exodus 19:12-13................................... 401 21-22........................120, 130, 310 21:1 .......................................... 112 21:1-22:16 .............3, 32, 163, 407 21:1-22:19 .........................92, 364 21:2 .......................... xiii, 150, 192 21:2-6....................................... 117 21:5-6...............................172, 205 21:7-8....................................... 199 21:12 .......................... 110, 113-14 21:12-17................................... 366 21:13-14................................... 114 21:15-17................................... 110 21:16 ........................................ 174 21:18 ........................................ 315 21:18-19......xvii, 44, 100, 312, 375 21:18-32................................... 100 21:20 ................. 92, 206, 248, 402 21:20-21............ 92, 100, 206, 402 21:22 .....................................100-1 21:22-25...........................xvii, 100 21:23 .....................................100-1 21:24-25................................100-1 21:26-27................................... 100 21:27 .......................................... 67 21:28 ........................................ 311 21:28-32..................................... 69 21:29 .................................. 13, 113 21:30 ........................................ 249 21:33 .................................. 70, 100 21:33-34..................................... 70 21:35 ............... xvii, 4, 13, 38, 408 21:35-36..................................... 70 21:37-22:3 ............................... 100 22:1 .......................................... 309 22:1-2...................... xvii, 256, 403 22:2 .......................................... 177 22:3 ............................................ 67 22:4-5....................................... xvii 22:5-6......................................... 70

22:6-8 .......................................101 22:6-14 .....................................101 22:8...........................................101 22:9...........................................101 22:9-10 .....................................101 22:10.................................. 99, 101 22:11.........................................101 22:13.........................................101 22:14.........................................100 22:15-16 .......................... xvii, 281 22:16...........................................97 22:17.........................................400 22:17-19 ............................ 97, 110 22:18.........................................299 Leviticus 18 ..............................................273 18:14-16 ...................................273 18:20................................ 245, 273 18:28.........................................273 19:20-21 ..................270, 272, 274 19:28...........................................24 20 ..............................................273 20:10........................245, 254, 273 20:20-21 ...................................273 20:27.........................................299 24:10-13 .....................................19 24:10-23 .....................................19 24:14...........................................20 24:15-16 .....................................20 24:17-21 ............................ 20, 254 25 ..............................................172 25:9...........................................159 25:10.........................................195 25:39-40 ...................................207 25:44-46 ...................................196 25:46.........................................207 25:47-49 .......................... 149, 185 25:49.........................................188 25:54.........................................195

Index of Ancient Sources Numbers 5:11-31.............................262, 282 9:6-14......................................... 19 9:11-12....................................... 19 9:13 ............................................ 19 9:14 ............................................ 19 15:32-37..................................... 17 25:7-8....................................... 405 27:1-11....................................... 18 27:3 .......................................... 399 27:7 ............................................ 18 27:8-11....................................... 18 31 ............................................... 17 31:25-28..................................... 17 36 ............................................... 18 Deuteronomy 13:1-16..................................... 402 13:5 .......................................... 402 13:6-11..................................... 293 13:9-10..................................... 402 15 .....................................120, 365 15:1-2......................................... 93 15:1-3....................................... 159 15:1-11..................................... 128 15:9-10....................................... 93 15:12 ........................................ 150 15:12-17................................... 192 15:12-18................................... 117 15:18 ........................150, 192, 381 17:2-5....................................... 402 17:2-7....................................... 402 17:6 .......................................... 398 17:12 ........................................ 307 18:8-12..................................... 293 18:9-11..................................... 299 18:20 ........................................ 402 19:16-21.............................xvii, 52 20:1-21:9 ................................. 365 20:7 .......................................... 316 20:8 .......................................... 315

505

21 ..............................................365 21:10-14 ...................................173 21:1-25:16................................407 21:10-25:16................................33 21:18-21 ...................................402 21-22 ........................................310 21-25 ....................................4, 120 22 ..............................................365 22:13-21 .....................275, 279-80 22:22.........................................245 22:23-24 .............................275-76 22:23-26 ............................ 41, 408 22:23-27 ...................................xvii 22:23-29 ...................................280 22:28-29 ...................................xvii 23:16-17 ...................................213 24:1...........................................265 24:1-4 .......................................370 24:3...........................................265 24:4...........................................265 24:7...........................................174 24:16...........................................92 25:11-12 ...................................xvii Judges 15:1-8 .......................................309 1 Samuel 2:6.................................... 242, 397 18:25.........................................334 22:2...........................................210 25:2-42 .....................................225 25:7-8 .......................................225 28:7...........................................299 30 ................................................17 30:9-10 .......................................17 30:11-15 ...................................209 30:24...........................................17 30:25...........................................18

506

Writings of Westbrook, Vol. 1: The Shared Tradition

2 Samuel 3:14 .......................................... 335 12:1-6....................................... 307 12:11-12................................... 274 13 ............................................. 320 14:6-7....................................... 314 14:19-21................................... 320 21:4-6....................................... 325 1 Kings 9:16 .......................................... 345 12:1-20..................................... 158 15:19 ........................................ 249 17:8-24..................................... 240 17:18 ........................................ 240 17:20 ........................................ 240 17:24 ........................................ 240

7:18.............................................30 13:26.........................................265 34:1-10 .....................................158 34:8-11 ...................... 88, 196, 387 34:10-11 ...................................159 34:14.........................................197 34:17.........................................197 Ezekiel 8:14.............................................30 16 ..............................................337 16:21.........................................265 16:22.........................................265 16:37-41 ...................................265 16:39.........................................265 16:41.........................................265 18:32.........................................398

Isaiah 10:2 .......................................... 159 38:1 .......................................... 398 38:2-3....................................... 399 38:4-5....................................... 399

Hosea 2 ................................................284 2:4.............................................285 2:4-22 .......................................283 2:5.............................................285 2:6.............................................285 2:6-7a........................................285 2:7b-9 .......................................285 2:10-11 .....................................286 2:12...........................................286 2:13...........................................286 2:14...........................................286 2:15...........................................286 2:16-22 .....................................284 2:17...........................................286 2:18-19 .....................................287 2:20...........................................287 2:21-22 .....................................287 2:23-25 .....................................287

Jeremiah 3:8 ....................................265, 284

Zechariah 13:3...........................................402

2 Kings 4:1 ............................................ 176 4:8 ............................................ 241 4:8-37....................................... 240 4:28 .......................................... 241 5:20-27..................................... 399 8:1-6......................................... 240 8:2 ............................................ 242 8:3 ............................................ 242 8:8 ............................................ 242 10:19 ........................................ 400 16:8 .......................................... 249 20:1 .......................................... 398

Index of Ancient Sources

507

Job 31:9-11..................................... 274

Topica 3.13-14.........................130 Topica 4.26-28.........................130

Proverbs 6:30-31..................................... 156 6:32-35....................... 248-49, 270 7:23 .......................................... 246 9:1 .............................................. 31

Demosthenes Contra Markartatum 51 ...........94 In Aristocratem 51.....................87 In Timocratem 113 ..................403 In Timocratem 149-151...........128

Ruth 4:3-6......................................... 150

Dio Cass. 37.36.4......................................394

Daniel 6:9 ............................................ 128

Diodorus Siculus Bib. Hist. I 75.............................10

Greek and Roman Aristotle Ath. Pol. 6.1............................... 93 Frag. 548 Rose ........................ 129 Politica ...................................... 47 Caesar Bell. gall. 1.16 ......................... 391 Bell. gall. 6.19 ......................... 395 Bell. gall. 6.23 ......................... 391 Cato de agr. 149 .............................. 386 Cicero de leg. 2.23.59 ..................... 27, 50 de leg. 2.23.59-24.61 ................ 24 de leg. 2.4.9 ............................... 50 Dom. 77.11 .............................. 392 Fin. 1.7.23-24.......................... 394 pro Balbo 53.............................. 48 pro Tullio 4.............................. 373 Rep. 3.23.................................. 391 Topica 2.9-10 .......................... 130

Dionysius of Halicarnassus 2.25.6........................................395 2.26.4........................................392 2.9-11 .............................. 223, 392 6.95.2..........................................48 Festus 550.3.........................................367 Florentinus Dig. 1.5.4.2 ..............................412 Gaius Augustod. 4.85-86 ...................393 Dig. 1.6.1.1 ..............................390 Dig. 9.2.2 .................................358 Dig. 9.2.2.1 ..............................362 Dig. 9.2.27.5 ..............359-60, 362 Dig. 9.2.29.8 ............................360 Dig. 21.1.42 .............................359 Inst. I 3 .....................................373 Inst. I 52-53..............................390 Inst. I 132 .................................412 Inst. II 32 ............................131-32 Inst. III 117 ..............................363 Inst. III 169 ..............................363

508

Writings of Westbrook, Vol. 1: The Shared Tradition

Inst. III 186.......................... 57, 68 Inst. III 191................................ 68 Inst. III 193-194 ........................ 58 Inst. III 210.............................. 358 Inst. III 214.............................. 361 Inst. III 215.............................. 358 Inst. III 216.............................. 362 Inst. III 217.............................. 359 Inst. III 217-218 ...................... 359 Inst. III 218.............................. 360 Inst. III 223........................52, 367 Inst. IV 37................................ 377 Inst. IV 47................................ 361 Inst. IV 76................................ 362 Gellius noctes Atticae 5.19.9............... 392 noctes Atticae 10.23.3-5 ......... 395 noctes Atticae 10.23.5............. 404 noctes Atticae 20.1.12............. 367 noctes Atticae 20.1.13............... 55 noctes Atticae 20.1.14............. 367 Herodotus 1,1966 ........................................ 47 Hymn to Aphrodite 139-140.................................... 335 Iliad 1.158-168................................. 344 1.236-238................................. 316 2.73-75..................................... 315 2.100-108................................. 347 2.661-666................................. 319 3.1-9......................................... 326 4.49 .......................................... 344 6.191-193................................. 335 6.191-194................................. 345 6.394 ........................................ 335 7.482 ........................................ 323

9.144-148 .................................335 9.147-148 ........................ 335, 345 9.147-156 .................................345 9.149-156 .................................342 9.155-156 .................................347 9.632-636 .................................320 9.709.........................................323 13.363-382 ...............................335 14.113-114 ...............................324 14.449-474 ...............................327 18.479.......................................325 18.499-500 ...................... 304, 323 18.500.......................................317 18.501.......................................326 18.502.......................................325 18.503-508 ...............................325 20.178-183 ...............................344 20.180-182 ...............................346 22.471-472 ...............................334 22.51................................ 335, 337 23.86-90 ...................................321 Justinian Inst. 1.2.4 .................................373 Inst. 1.8.1-2 ..............................390 Inst. 4.13.14 .............................359 Juvenal Satire V 14-19..........................231 Satire V 80-85..........................231 Laws of Drakon lines 13-19..................................94 lines 19-20..................................94 Laws of Gortyn II 16-20.....................................367 II 20-24.....................................258 II 20-45.....................................367 II 28-36.....................................270 II 36-46...............................258-59

Index of Ancient Sources II 45-55 .................................... 286 II 45-III 16............................... 367 III 17-20................................... 334 III 17-37................................... 367 III 31-34................................... 334 III 37-44................................... 367 III 44-IV 23 ............................. 367 IX 24-X 32 .............................. 356 XI 19-23 .................................... 95 XI 24-XII 19............................ 356 Lex Aquilia Chapter I ........... 355, 357-59, 361, 363, 374-75 Chapter II.................. 355, 357-59, 363, 374-75 Chapter III ..............355, 357, 359, 374-75 Linear B Inscriptions PY An 261............................... 325 PY Eb 297 ............................... 325 PY Ep 301 ............................... 325 PY Ep 704 ............................... 324 Livy 2.33.9 ......................................... 48 2.35 .......................................... 389 2.41.10 ................................394-95 3.34 .......................................... 130 3.34.6 ......................................... 21 3.48.4-7.................................... 395 3.50.5-7.................................... 395 3.55 .......................................... 373 4.29.5 ....................................... 394 8.7.8 ......................................... 394 Manilius Astronomica 4.24 ............389, 392 Astronomica 5.49-50 .............. 392

509

Marcianus Dig. 48.9.1 ...............................393 Dig. 48.9.5 ...............................393 Odyssey 1.276.........................................339 1.276-278 .................................335 1.386-387 .......... 339, 346-47, 349 1.392-398 ........................ 343, 349 1.398.........................................346 1.400-402 .................................343 1.430.........................................346 2.1-257 .....................................350 2.52-54 .....................................336 2.60-79 .....................................350 2.132-137 .................................349 2.196-197 .................................335 2.230-234 .................................343 2.314-317 .................................350 2.335-336 .................................352 4.65-66 .....................................344 4.563.........................................327 4.797.........................................342 6.159.........................................334 7.311-315 .................................335 8.266-359 .................................261 8.318-319 ........................ 263, 334 8.347-348 .................................270 8.355-356 .................................270 9.440.........................................346 10.216.......................................346 11.174-185 ...............................343 11.174-196 ...............................350 14.96-108 .................................346 14.199-212 ...............................347 14.208-209 ...............................332 14.230-234 ...............................346 15.16-18 ...................................334 15.483.......................................346 15.518-522 ...............................348 16.138-145 ...................... 340, 347

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16.390-392 .............................. 334 16.400-401 .............................. 352 17.79-80................................... 347 18.64-65................................... 342 18.281-283 .............................. 352 18.320-325 .............................. 352 19.256-257 .............................. 339 20.296-298 .............................. 344 21.16-21................................... 350 21.20 ........................................ 346 21.160-162 .............................. 334 21.228-310 .............................. 323 22.27-30................................... 323 22.31 ........................................ 322 22.48-53...........................340, 342 22.52-53................................... 353 23.354-30................................. 343 24.137 ...................................... 346 24.206-207 .............................. 346 24.282 ...................................... 340 24.294 ...................................... 335 24.337-344 .............................. 347 24.375-378 .............................. 346 24.482-486 ......................342, 347 24.546 ...................................... 342 24.546-547 .............................. 347

Dig. 9.2.24 ...............................362 Sent. 5.1....................................411 Sent. 5.4.6...................................28 Plato Crito 11 ....................................128 Plautus Asinaria II, 2, 104 .....................55 Pliny the Elder Nat. 14.14.89-91 ......................395 Nat. 29.11........................ 389, 391 Plutarch Solon XV.3 ..............................128 Polybius 3.22.4-13 ....................................46 Pomponius Dig. 1.2.2.8 ..............................373 Quintilian Decl. mai. 19.5.........................394 Decl. min. 309..........................391

Orosius 4.13.18 ..................................... 394 5.16.8 ..................................394-95

Sallustius Bell. Cat. 39.5 ..........................394 Bell. Iug. 14.23 ........................391

Papinian Coll. 4.8.1 ........................395, 404 Dig. 48.5.21(20)...................... 404 On Adulteries .......................... 404

SHA 13.8...........................................391

Paulus Coll. 2.5.5 ................................ 367 Coll. 4.2.3-4 ............................ 404 Coll. 4.2.6-7 ............................ 404

Seneca major Controv. 3.3 .............................392 Seneca minor Clem. 1.1.2 ...............................391 Clem. 1.15.1 .............................395

Index of Ancient Sources Clem. 1.15.2-7......................... 395 Ep. Mor. 4.8 ............................ 389 On Anger 1.18.3-19.8 ............. 392 On Anger 3.40.1-3 .................. 390 Phoenissae 103 ....................... 389 Thyestes 607-609 .................... 391 Tacitus Hist. 4.62 ................................. 389 Theodosian Code 4.9(8).6.pr........................392, 411 9.13.1 ....................................... 393 9.15.1 ....................................... 393 Theophilus Paraphrasis 4.3.15 ................. 373 Twelve Tables (paragraph numbers follow FIRA, rather than Crawford 1996; e.g., VIII 12-13 in FIRA = I, 17-18 in Crawford 1996) III 3 ............................................ 24 IV 2 ............................ 386-88, 411 IV 3 ............................................ 51 VI 1 ..................................382, 385 VIII 1 .............................23, 28, 51 VIII 2-4..............................57, 367 VIII 4 ......................................... 52 VIII 12 ..................................... 309 VIII 12-13................................ 403 VIII 14 .................................... 131 VIII 16 ...............................69, 131 VIII 19 ....................................... 69 VIII 20 ....................................... 69 X 2 ............................................. 24 X 4 ............................................. 24 X 5 ............................................. 24 X 8 ............................................. 24 XI 1 ............................................ 24

511

Ulpian Dig. 9.2.1 .................................375 Dig. 9.2.1.1 ..............................373 Dig. 9.2.23.10 ..........................362 Dig. 9.2.27.22 ..........................377 Dig. 9.4.2.1 ..............................362 Dig. 35.1.59.2 ..........................412 Dig. 48.5.24(23).pr.-4 .............404 Dig. 48.8.2 ...............................393 Dig. 49.15.18 ...........................412 Dig. 50.17.209 .........................412 Valerius Maximus 5.8.2..........................................394 5.8.5..........................................394 6.1.3..........................................395 6.1.5..........................................394 6.1.6..........................................395 6.3.8..........................................411 Varro L. 7.105 ....................................382

Egyptian Instructions of Any .......................246 King Cheops and the Magicians.............................245 The Two Brothers.........................245

Phoenician Pyrgi inscription...............47-48, 410

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Aramaic

Rabbinic

Kraeling 5 (= TAD B3.6) ....................... 182

Mishnah Bava Qamma 1.1 .........71, 130-31 Bava Qamma 8.6 .......................56 Giin 9.11 ................................371 Ketubot 3.5.................................87

TAD B2.6 (= Cowley 15) .......285, 333, 338 B3.3 (= Kraeling 2)................. 285 B3.6.......................................... 182 B3.8 (= Kraeling 7)................. 285

Talmud Ketubot 10b..............................279

Law from the Tigris to the Tiber: The Writings of Raymond Westbrook Volume 2: Cuneiform and Biblical Sources

Raymond Westbrook October 1, 1946 – July 23, 2009

Law from the Tigris to the Tiber: The Writings of Raymond Westbrook Volume 2

Cuneiform and Biblical Sources

Raymond Westbrook Edited by Bruce Wells and Rachel Magdalene

Eisenbrauns Winona Lake, Indiana 2009

Copyright ç 2009 by Eisenbrauns All rights reserved. Printed in the United States of America. www.eisenbrauns.com

Library of Congress Cataloging-in-Publication Data Westbrook, Raymond. Law from the Tigris to the Tiber : the writings of Raymond Westbrook. / Raymond Westbrook ; edited by Bruce Wells and Rachel Magdalene. v. cm. Includes bibliographical references and index. Contents: v. 1. The Shared tradition — v. 2. Cuneiform and biblical sources. ISBN 978-1-57506-177-1 (set (2 vols.); hardback : alk. paper) — ISBN 978-1-57506-175-7 (volume 1; hardback : alk. paper) — ISBN 978-1-57506176-4 (volume 2; hardback : alk. paper) 1. Law—Middle East—History. 2. Law, Ancient. 3. Jewish law. 4. Roman law. 5. Law, Greek. I. Wells, Bruce. II. Magdalene, F. Rachel. III. Title. KL147.W477 2009 340.5u394—dc22 2009040568 The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48–1984. †‘

Contents Preface ...........................................................................................................vii About the Editors............................................................................................ix Introduction: Law as Method ........................................................................ xi Part One: Cuneiform Sources 1. The Edict of Tudhaliya IV................................................................ 3 2. Hard Times: CT 45 37 .................................................................... 41 3. The Liability of an Innocent Purchaser of Stolen Goods in Early Mesopotamian Law ........................ 49 4. The Old Babylonian Term naparum............................................. 69 5. The Phrase “His Heart Is Satisfied” in Ancient Near Eastern Legal Sources ................................... 79 6. The Case of the Elusive Debtors: CT 4 6a and CT 6 34b............. 91 7. Social Justice and Creative Jurisprudence in Late Bronze Age Syria ...............................101 8. A Death in the Family: Codex Eshnunna 17-18 Revisited......... 127 9. The Adoption Laws of Codex Hammurabi ................................. 139 10. The Female Slave .......................................................................... 149 11. A Sumerian Freedman .................................................................. 175 12. The Quality of Freedom in Neo-Babylonian Manumissions ..... 185 13. Judges in the Cuneiform Sources .................................................197 14. Evidentiary Procedure in the Middle Assyrian Laws .................211 15. zi z 2 .d a / kitum ......................................................................... 231 16. The Enforcement of Morals in Mesopotamian Law ...................243 17. A Matter of Life and Death ..........................................................251 18. International Law in the Amarna Age.......................................... 265 19. Babylonian Diplomacy in the Amarna Letters ............................285 Part Two: Biblical Sources 20. Biblical Law ..................................................................................299 21. The Laws of Biblical Israel...........................................................317 22. Lex Talionis and Exodus 21:22-25 ..............................................341

23. The Deposit Law of Exodus 21:6-12 ........................................... 361 24. Who Led the Scapegoat in Leviticus 16:21? ...............................379 25. The Prohibition on Restoration of Marriage in Deuteronomy 24:1-4...................................... 387 26. Riddles in Deuteronomic Law......................................................405 27. The Trial of Jeremiah .................................................................... 425 28. Legalistic “Glosses” in Biblical Narratives ................................. 439 Abbreviations...............................................................................................451 Bibliography ................................................................................................466 Index of Authors...........................................................................................515 Index of Subjects..........................................................................................520 Index of Ancient Sources.............................................................................535

Preface On July 23, 2009, as the preparations for this collection were nearing completion, Raymond Westbrook, the W. W. Spence Professor of Semitic Languages in the Department of Near Eastern Studies at Johns Hopkins University, passed away. We had been contemplating the production of these volumes for some time and began work on them in earnest about one year ago, spurred in part by the progression of his illness. Although we had hoped to deliver the completed collection as a surprise, his rapid decline did not permit us to do that. Instead, we made Professor Westbrook aware of the project several weeks before his passing. We are, however, deeply saddened that he was not able to see it in its final form. He was an important role model and mentor for us over the years, and we offer these volumes as a modest tribute to his scholarly achievements, his impact on the field, and his particular contributions to our academic development. Raymond Westbrook earned his B.A. in Law from Oxford University in 1968, studying with David Daube, H. L. A. Hart, and other prominent legal scholars. He then took his Ll.M. at Hebrew University of Jerusalem, where he worked with Reuven Yaron. Westbrook was called to the Bar of England and Wales in 1976 and practiced law for a brief time. His Ph.D. in Assyriology was completed in 1982 at Yale University under J. J. Finkelstein and C. Wilcke. He arrived at Johns Hopkins in 1987, after he had taught in the Faculty of Law at Hebrew University of Jerusalem. Westbrook published three books, edited or co-edited five additional volumes, and produced over 90 articles. His books include Studies in Biblical and Cuneiform Law (Gabalda, 1988); Old Babylonian Marriage Law (Berger, 1988); and Property and the Family in Biblical Law (Sheffield Academic Press, 1991). Among his edited volumes are Amarna Diplomacy: The Beginnings of International Relations (with R. Cohen; Johns Hopkins University Press, 2000); Security for Debt in Ancient Near Eastern Law (with R. Jasnow; Brill, 2001); A History of Ancient Near Eastern Law (Brill, 2003); Women and Property in Ancient Near Eastern and Mediterranean Societies (with D. Lyons; Center for Hellenic Studies,

viii 2005); and Isaiah’s Vision of Peace in Biblical and Modern International Relations: Swords into Plowshares (with R. Cohen; Palgrave Macmillan, 2008). A complete list of his publications (at least through 2008) can be found in the bibliography in volume 2. Deciding the contents of these volumes took some time. In the end, we felt it best to focus on the 25 years of his work that followed directly after the completion of his dissertation in 1982 and to publish what we believe were his most significant works from that period, whether or not previously reprinted. Thus, exceedingly short articles, reviews, dictionary entries, and articles in handbooks and the like are generally excluded. Due to its import, we have included one article published in 1977 and thereby have the exception that proves the rule. The volumes’ structure emerged relatively quickly. Westbrook published across a broad scope. Nonetheless, we felt that these articles could be readily divided into five major areas: 1) his theoretical work on the shared legal tradition of the so-called law codes of the ancient Near East and classical world; 2) his study of particular substantive bodies of law across this large region; 3) the application of his theory and method to Greek and Roman law; 4) his general work on cuneiform legal sources; and 5) his general work on biblical law. These categories were then divided into two volumes named respectively The Shared Tradition and Cuneiform and Biblical Sources. Such division is not rigid, however, as Westbrook used sources from the ancient Near East, Greece, and Rome as appropriate, whatever topic was before him. We wish to thank Jim Eisenbraun, publisher of Eisenbrauns, for his ready enthusiasm for the project since its inception. He was always at hand to answer our questions, to guide us, and to lend support. Our colleague, Cornelia Wunsch, willingly assisted with a host of difficult tasks that arose throughout the course of our work; the volumes are greatly improved thanks to her generous labors on our behalf. Finally, because this project was produced for the most part in the Wells’ home, we would also both like to thank Marcy Wells, Bruce’s wife, for her many gifts of hospitality, which made this project possible.

Bruce Wells F. Rachel Magdalene Munich, August 22, 2009

About the Editors Bruce Wells received his Ph.D. in Near Eastern Studies in 2003 from The John Hopkins University. He is Assistant Professor of Hebrew Bible in the Department of Theology at Saint Joseph’s University in Philadelphia. He is currently on a one-year leave at the Ludwig-Maximilians-Universität in Munich as a Research Fellow with the Alexander von Humboldt Foundation. Wells is the author of The Law of Testimony in the Pentateuchal Codes (Harrassowitz, 2004) and co-author with Raymond Westbrook of Everyday Law in Biblical Israel: An Introduction (Westminster John Knox, 2009). F. Rachel Magdalene holds a J.D. from the University of Colorado School of Law and a Ph.D. in Biblical Interpretation (Hebrew Bible) from the University of Denver and Iliff School of Theology Joint Ph.D. Program. She also did supplemental doctoral studies in Assyriology, Hebrew Bible, and ancient comparative law at The Johns Hopkins University. She practiced tax and securities law for twelve years before pursuing her Ph.D. She is currently Visiting Research Scholar at the Universität Leipzig and Guest of the Faculty at Humboldt-Universität zu Berlin. She has taught biblical studies, religious studies, and law at both the undergraduate and graduate levels. Magdalene is the author of On the Scales of Righteousness: Neo-Babylonian Trial Law and the Book of Job (Brown Judaic Studies, 2007); co-author with James P. Kutner of Study Guide to Due Diligence: Process, Participants and Liability (College for Financial Planning Press, 1988); and an editor on G. K. Scott, et al., eds., Due Diligence: Process, Participants and Liability (Longman Financial Services, 1988).

Introduction Law as Method F. Rachel Magdalene*

I

n the summer of 1999, Raymond Westbrook left us the key to his office. He was, as usual, going to spend the summer in Europe. His filing cabinet was left open for us. We could look at and use whatever we needed in furtherance of our studies and what later became our dissertations. We worked in his office almost every day and quite a few evenings besides. We were primarily in search of ancient Near Eastern litigation texts, of which we found countless. Along the way, we discovered all sorts of wonderful things tucked away in books and folders: articles and book chapters eventually to be published, innumerable text editions, book and article corrections and comments, bibliographies, class lecture notes, drafts of his notebooks from his student days, and the like. We also found political proposals, poetry, children’s stories (with illustrations!), cookbook materials, letters to friends and colleagues, and more. We understood only then the depth and breadth of Westbrook’s mind. Yet, working in that environment, surrounded by his large collection of books and papers, we realized that he was fundamentally a legal historian. As we observed in the first volume of this collection, Westbrook was for many the foremost authority on ancient Near Eastern law. He was, however, not only a specialist in Assyriology but also an important scholar of biblical studies and classics. His work on legal history in each of these areas was prolific.

* With contributions from Bruce Wells.

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His scholarship, beginning with his dissertation and monograph (a study of Old Babylonian marriage law) up to the last articles and book chapters, reflects the development of his particular theory of the nature of early law and the hermeneutical method that arises therefrom. This method was an important cornerstone of his careful and detailed analyses of ancient texts from across the Near Eastern and Mediterranean world. As we also stated in the first volume, given Westbrook’s varied constituencies, his publications have appeared in a wide variety of venues, including edited volumes and the journals of Assyriology, Bible, classics, history, law, and gender studies. This diversity of venues has allowed many to read his work. It makes it difficult, however, to locate all his pieces and to grasp the full impact of his approach. The varied topics and venues tend to present a scattered picture. Nonetheless, there is a unifying principle to his work, that is, his interest in the origins of law and its earliest expression in the circum-Mediterranean and the outer reaches of western Asia. Westbrook was a legal historian through and through. We believe that this collection brings that organizing, unifying principle to light. Moreover, this second volume of the collection, which focuses upon the application of his theory of ancient law and the interpretative method that arises from that theory to particular problems and texts of the cuneiform and biblical legal sources, highlights his legal historical thinking particularly well. Consequently, we have entitled this volume simply Cuneiform and Biblical Sources. One can observe, of course, in this volume, Westbrook’s facility with the many languages written in cuneiform script, as well as Hebrew, Aramaic, Greek, and Latin. We argue, however, that what is most apparent in this volume is his thinking as a legal historian—or, as he liked to call himself, “an intellectual historian whose area is ancient law” or a “scholar of ancient comparative law.”

The Ancient Comparative Legal Historian Each field of study has its own foci, principles, methods, terminology, and so forth. If we were to examine the fields of history, law, biblical studies, Assyriology, and classics, we would quickly discover some of the differences in the loci, assumptions, structures, approaches, terms of art, etc., of each of these areas of intellectual pursuit. Anyone who works in an

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interdisciplinary field knows how trying it can be to do so, because one has to master the different fundamentals of each field to be able to work within it. Westbrook’s work is situated between the five fields just mentioned above, which was quite a scholarly feat, one worthy of admiration. Unfortunately, this breadth often led scholars within each of those separate fields to question his work because they believed his primary allegiance or knowledge belonged to another area. To offer just few examples, we have heard over the years, biblical scholars asserting, in various formulations, that Westbrook was really an Assyriologist, not fully trained in biblical studies. We have heard Assyriologists maintain that Westbrook was not a classic Assyriologist, certainly not a philologist. Others said, “He is just a lawyer.” We have also heard legal historians aver that his work was “esoteric” and “irrelevant” because it dealt with law before the Greeks and Romans were dominant. Westbrook did not fit easily into any category because of the nature of his interdisciplinary work, and, consequently, no field ever truly adopted him as entirely their own. It is accurate to say that his primary intellectual focus was not on the philology of the cuneiform languages, nor on producing text edition volumes, which are critical aspects of Assyriology; yet, his published work, dissertation, papers, and class lectures certainly indicate that he had an easy facility in those areas. Moreover, while Westbrook was a member of the bars of England and Wales and practiced law for some years, he preferred the life of a scholar—an Assyriological scholar to be exact. He did teach law, Assyriology, and classics over the course of his career, but his first love was teaching students to be Assyriologists and Near Eastern historians. In these senses, he was an Assyriologist. Nonetheless, Westbrook’s specialty was ancient law, he thought in the categories of law, he used the methods of law, and he embraced the language of law in his writings. It is this organization and expression of his thinking that leads us to maintain that Westbrook was fundamentally a legal historian, using to great success the critical tools of Assyriology, Bible, and classics to probe the substantive and procedural law of the ancient world. Hence, all the fields were important to him. He said repeatedly to us when we were students at Hopkins that one had to know deeply the languages, history, and cultures of the people one studied and one had to be well versed in the principles of law to study ancient comparative law. It would irritate him if he perceived that we were failing to take a particular area seriously enough.

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Ancient Comparative Law and Legal Method

All of Westbrook’s work reflects, to one degree or another, how he structured this thinking around legal historical concepts, but let us examine first the basic structure of his A History of Ancient Near Eastern Law—a work he masterminded, edited, and wrote a great deal of—because it is a later and more encompassing work.1 Westbrook provided a model form to authors that he wished each chapter to follow. It involved discussing such things as: 1. the sources for legal historical work, including the so-called law codes, other scholastic documents, royal edicts or decrees, inscriptions, reliefs, priestly decrees, administrative orders, petitions, trial transcripts and related documents, private legal documents, kudurrus, seals, letters, and literary sources; 2. constitutional and administrative law, including the organization of power and organs of government, such as the king, basic administrative structures, census-taking, central and provincial or local administration, temple administration, the courts, and compulsory service on the part of freemen; 3. legal procedure, including the standing of parties, the rules and organization of trial, evidentiary law, oaths and ordeals, settlements, releases of liability, appeals, and so forth; 4. personal status law, including citizenship, class, gender, age, and the institution of slavery; 5. the major substantive legal areas, including family law (marriage, children, adoption), property and inheritance law (types of property, land tenure and servitudes, wills and intestate succession, eligible heirs and shares, marital gifts, inter vivos gifts, and gifts in anticipation of death), contracts (capacity, sale, loan, pledge and distraint, suretyship, debt and social justice, prebends, the hire of persons, animals, or land, lease/rental, partnership, and apprenticeship), and criminal law (treason, homicide, assault or injury, sexual offenses, theft, damage to property, perjury, witchcraft, runaway slaves, and punishment); 1 Westbrook, ed., 2003.

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6. institutions with particular legal effect that are limited or special to that particular geographic area and chronological period, such as religious and professional organizations, oracles, and letters to the dead; and 7. international law, including special sources (treaties, royal correspondence, letters to gods, historiographic texts, political declarations, oracular queries, etc.), the international system generally, specific imperials powers and other types of states, political relations, treaties generally, and customary international law (such as the law of war and treatment of foreign nationals). Westbrook’s detailed use of legal terms and categories and his particular ordering of the discussions, all reflect his legal historical thinking. One might argue, of course, that other Assyriological, biblical, and classical scholars use such categories, and, on one level of their discussions, that is often correct. One can certainly find studies from classics, Bible, and Assyriology that use legal terms, such as homicide, marriage, adultery, theft, accusation, complaint, summons, verdict, punishment, and so forth. Yet, if one were to compare the broad works that examine a larger body of law within these fields done by those not also trained in law, one would typically discover the use of profoundly different categories in the content and ordering of these works. They are usually organized by the presence of particular ancient vocabulary or document typologies,2 rather than by legal concepts, which can mask legal historical concepts.3

2 See, e.g., Veenker 1967; and Jas 1996. E. Dombradi’s study (1996) of Old Babylonian suits is predominantly philological, but the second half of the study does organize itself around legal administration and procedure. K. Radner’s work (1997) on NeoAssyrian private legal documents is also similarly organized. S. E. Holtz’s work (2009) is organized primarily by document typology. 3 Compare San Nicolò (1932) and Wells (2004: 108-26), both of whom have legal historical analyses of Neo-Babylonian conditional verdict documents, with Holtz (2009: 133-65), whose work focuses more on vocabulary and document typologies than on legal categories. Holtz labels these same documents as “summons[es] to establish a case.” While the documents certainly are about establishing (Akkadian kunnu) a case, we find the term “summons(es)” problematic from a legal point of view.

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Westbrook’s difficulty with analyses oriented around ancient terminology relates to several key points. First, dissimilar words or expressions can often convey the same legal idea4 (e.g., in English we can use accurately either “complainant” or “plaintiff” to describe the party who brings a civil lawsuit).5 Furthermore, instances exist when it is quite difficult to determine whether there are substantive legal differences represented in the use of particular ancient words or whether they function as simple synonyms. In discussing the Old Babylonian courts’ use of the words burrum, kunnum, and nasum to describe the actions of both witnesses and judges with regard to facts at issue in a case, Westbrook asks: “In modern systems, … witnesses prove facts but only judges can establish facts. Is there a different concept of the court’s role at issue here, or merely an ambiguity of language, which did not disturb the pragmatic [Old] Babylonian mind?”6 Consequently, one has to be quite careful, per Westbrook, to take fundamental legal principles into account and not rely solely on philological study. Using legal historical concepts helps one to see legal connections that might otherwise be overlooked. Westbrook also viewed legal thinking as critical in the project of philology, at least when it came to legal terminology. We can observe this clearly in his discussion of the Akkadian term ezbu in his article “A Matter of Life and Death,” where he asserts that ezbu usually means “to leave, abandon”; literally, it refers to physical motion by the subject away from the object, which would normally be stationary. As a technical legal term in the context of marriage, it means “to divorce.” The connection between leaving and divorce might seem obvious, except that divorce was achieved in the legal systems that used this term not by physical motion but by the pronouncement of verba solemnia. Where a husband divorced his

4 Westbrook 1999e: 123. 5 We can observe this in the definition of complainant in Black et al. (1990: 285): “One who applies to the courts for legal redress by filing a complaint (i.e. plaintiff).” We, of course, recognize that English has a significantly larger vocabulary than does Akkadian; nevertheless, we believe that the principle still holds (see Magdalene 2007: 39-40). 6 Westbrook 1999e: 123.

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wife, at least, it was not he but the wife, the object of the verb ezbu, who physically left the matrimonial home. The legal meaning of the term is thus the opposite of its literal meaning, a paradox expressed by MAL A 37: “If a man will divorce (literally: ‘leave’) his wife,…she shall go out empty.7 He concludes this point by stating: A legal context thus provides a new set of clothes, so to speak, for the naked phrase. Those clothes are invisible, insofar as there is no morphological change in the phrase, but they nonetheless make a very real difference in the way the phrase is read, because they allow it to have a different function, namely to describe not a physical phenomenon but the application of certain legal rules.8 Thus, he is able to state his general view of the importance of applying legal principles when attempting to comprehend the meaning of legal language: Where a phrase functions as a legal idiom, it takes effect within the confines of a world created by legal rules. Unless the logic of that legal world is taken into consideration, it may be difficult to connect the phrase with its context; indeed, a literal translation may produce bizarre results.9 He maintained, in fact, that “the starting point for any [legal] philological investigation should . . . be the presumption raised by legal logic, by their terminological connection, and by strong external parallels.”10 Westbrook was also concerned with the problem of applying literary methods alone to the exegesis of legal texts. In his article “Law of Biblical Israel,” where he again discusses the nature of the biblical “law codes” and difficulties of the evolutionary model of their development, he stresses: 7 8 9 10

Westbrook 1997: 63 (= chap. 17, pp. 254-55 in this volume). Emphasis added. Westbrook 1997: 63 (= chap. 17, p. 255 in this volume). Westbrook 1997: 65 (= chap. 17, p. 257 in this volume). Westbrook 1997: 63 (= chap. 17, p. 254 in this volume).

xviii Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The literary model divorces the text from any relationship with the law in force. This is of great advantage to biblical scholars, who are trained in literary criticism and not in jurisprudence. Not all literature is alike, however, and legal literature is simply not the same as scientific literature or myth or historiography.11 All legal historical assertions made by those working on the ancient texts of the circum-Mediterranean and larger western Asia must satisfy the logic of law.12 Westbrook’s view of law was very much based in the analytical school of jurisprudence founded by H. L. A. Hart, with whom Westbrook studied briefly at Oxford.13 As a mature scholar, he preferred, however, the analytical legal philosophy of H. Kelsen.14 Law was a coherent whole with a fairly uniform “grammar,” as he expressed it to us. One can see that position in his discussion of the failure of diachronic literary methods and the need for all legal historical work to satisfy legal logic: We shall seek to show that the law is an organic whole, consistent in its individual parts, that may be explained without recourse to a diachronic deconstruction of its text. In doing so, we shall apply principally the method of legal logic, on the grounds that in a legal text, the sole criterion for resolving ambiguities of language is the most appropriate legal meaning. For that purpose it must be assumed that the law is coherent, and only if all attempts fail should recourse be had to explanations based upon error, inelegant editing, or unresolved difficulties arising from the historical development of legal conceptions.15 11 Westbrook 2008a: 108 (= chap. 21, pp. 328-39 in this volume). 12 In many of his articles, Westbrook discussed the importance of legal logic, and the failure “to satisfy legal logic” was often the basis for his critique of a given legal solution. For a good example of this, and even the specific use of that phrase, see Westbrook 1991a: 219 (= chap. 5, p. 80 in this volume). 13 See most importantly Hart 1961; and Hart 1983. See further Gavison 1987. 14 See most importantly Kelsen 1961; Kelsen 1967; and Kelsen 1991. See further Paulson and Paulson 1998; and Paulson and Stolleis 2005. 15 Westbrook 1994a: 391 (= chap. 23, p. 362 in this volume). Westbrook did believe that some editing had occurred within biblical legal material, but diachronic analysis also

Introduction: Law as Method

xix

Westbrook, therefore, maintained that one simply could not do legal history well if one were not trained in law and history, as well as in the languages, literatures, and cultures of the peoples under study. Legal history was, for him, first about law and society and only secondarily about philology and literature. Thus, Westbrook was a comparative legal historian of the ancient world.

This Volume There are twenty-eight articles contained in this volume. We believe that these articles demonstrate clearly Westbrook’s legal philosophy, the theory of ancient law that arose from it, the hermeneutical principles he used in analyzing ancient legal texts, and how he applied this method to specific legal problems to arrive at interesting, creative, and oft times quite persuasive solutions. The first 19 articles comprise Part I (“Cuneiform Sources”) and focus, obviously, on the texts written in the various cuneiform based languages of the ancient Near East. The last nine articles comprise Part II (“Biblical Sources”). Here, Westbrook applies his method to the study of biblical law. Throughout these twenty-eight articles, Westbrook demonstrates how understanding the highly consistent legal logic or legal grammar of the ancient world assists in solving numerous legal puzzles. As in the first volume, a number of Westbrook’s articles were originally accompanied by abstracts, and we have again written abstracts for those that were not. The articles that have original abstracts are: “The Edict of Tudhaliya IV” (chap. 1), “The Phrase ‘His Heart Is Satisfied’ in Ancient Near Eastern Legal Sources” (chap. 5), “The Case of the Elusive Debtors: CT 4 6a and CT 6 34b” (chap. 6), “Social Justice and Creative Jurisprudence in Late Bronze Age Syria” (chap. 7), “The Quality of Freedom in Neo-Babylonian Manumissions” (chap. 12), “The Enforcement of Morals in Mesopotamian Law” (chap. 16), “Babylonian Diplomacy” (chap. 19), “Lex Talionis and Exodus 21:22-25” (chap. 22), and “The Deposit Law of Exodus 22:6-12” (chap. 23). The remaining articles are accompanied by abstracts written by the editors of this collection. had to be based on sound legal logic. See Westbrook 1999c (= chap. 28 in this volume); cf. Westbrook and Wilcke 1974-77 (= chap. 3 in this volume).

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Once again, we have edited according to American spelling, grammar, and punctuation. We have also continued to use the author-date style of citation in all of the footnotes. Finally, this volume, like the first, contains a comprehensive list of all of the scholarly literature cited in these twentyeight articles. This bibliography, in combination with that of the first volume, should serve as a valuable resource in and of itself for those interested in ancient Near Eastern law. To be sure, this collection is our way of honoring the memory and work of our teacher, friend, and colleague, Raymond Westbrook. But our hope is that it will be much more than that. We thus conclude with the same statement of purpose with which we ended our introduction in volume 1: While the production of this collection and the uniformity of format that it seeks to achieve should help to make Westbrook’s writings more accessible and usable, the more important purpose is to give his views a full airing and to reinvigorate the conversations that his scholarship originally stimulated. In sum, we believe and hope that this volume will make a significant and lasting contribution not only to the study of its more immediate topic—the legal systems of the ancient Near East—but also to the study of the larger history of law.16

16 See B. Wells, “Introduction: The Idea of a Shared Tradition,” p. xx, in volume 1.

1 The Edict of Tudhaliya IV Abstract A revised translation of this text reveals it to be not a law code that includes reforms but a royal edict that deals with the traditional subjects of such decrees: debt-release and administrative reforms. The content of those sections that can be interpreted is: (I 1ff.) introduction relating the circumstances of the reform; (II 1ff.) debt-release provisions; (III 1-11) provisions concerning access to royal granaries and the local authorities’ responsibility for losses therefrom; (IV 4ff.) provisions against oppression of certain classes of royal tenants. Included within the linguistic and philological commentary is an excursus dealing with the problematic verb akuwi-. It is argued that this form is a reflex of the Proto-IndoEuropean root *sekw- “to follow” and bears remarkable semantic similarity to its Latin cognate sequi.


Introduction

T

he edict of the Hittite king Tudhaliya IV (1265-1240 B.C.E.) was edited by von Schuler in 1959 in an article on legislation in the Hittite and wider cuneiform sphere. The learned editor had recognized the importance of this text to the question of lawmaking in the ancient Near East and attempted to relate it both to other edicts and to the cuneiform law codes. Nonetheless, the obscurity of its language in key passages made the text an unsatisfactory basis for sweeping theoretical conclusions. The purpose of this article is to offer a new translation and legal interpretation,




* Co-authored with Roger D. Woodard. Originally published in the Journal of the American Oriental Society 110 (1990): 641-59. Copyright © American Oriental Society. Used by permission. * We would like to express our thanks to Professor H. Craig Melchert and to Professor James W. Poultney for their valuable comments and suggestions. Responsibility for any errors remains with the authors.

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources

which, although by no means clarifying all parts of the text, does, it is hoped, present a coherent and credible picture of its general character and main provisions. The two main sources of theoretical law in the sphere of cuneiform civilization are the law code and the royal edict. The former, six principal examples of which are preserved at some length,1 covers the whole gamut of legal relations, including property, contract, crime and delict (tort), family law, and procedural and administrative law. There has been considerable debate, however, as to whether the codes are true normative legislation or merely academic treatises on the law.2 There is no doubt as to the legislative character of the edicts:3 they are reforms expressly dated to a specific point in time at which their provisions come into effect and there is ample evidence, direct and indirect, of their effect upon legal relations (Westbrook 1989a: 214-17). On the other hand, the subject matter of the edicts is much narrower than that of the codes. They cover three main topics: reform of the royal administration, price-fixing, and retrospective debt release, none of which could be said to represent the central institutions of a legal system. The edict of Tudhaliya IV begins with a narrative typical of royal edicts, in which former abuses are described and the motivation for reform is given.4 The text unfortunately breaks off at this point and, when it resumes at the top of column II, appears to be discussing details of homicide and theft, topics outside the normal purview of the royal edict. Hence the importance attributed by von Schuler (1959: 445) to this text, which on

1 Codex Ur-Namma (CU), Codex Lipit-Ishtar (CL), Codex Eshnunna (CE), Codex Hammurabi (CH), Middle Assyrian Laws (MAL), Hittite Laws (HL). 2 For bibliography and a summary of the arguments, see Westbrook 1989a. 3 There are many fragments of edicts preserved and many more references to edicts that are not extant. The Old Babylonian material has been collected by Kraus (1984: 16110). The most complete examples, apart from the text under discussion, are: Uruinimgina (Lagash), edition in Cooper 1986; Ammi-#aduqa (Babylon), edition in Kraus 1984: 168-83; Horemheb (Egypt), edition in Kruchten 1981; Telipinu (Hatti), edition in Hoffman (1984). 4 Cf. cols. I-VII in Uru-inimgina’s edict (Sollberger Corpus Ukg. 5.1-7 = La 9.1 cols. IVII in Cooper 1986: 70-71); and Telipinu paragraphs 7-27. Each narrative provision of Horemheb’s edict is preceded by a statement of the former abuse; see Kruchten (1981: 194-98, section C).

The Edict of Tudhaliya IV

5

this interpretation would seem to be a law code that shows the characteristics of normative legislation. Von Schuler’s interpretation, however, was founded on his translation of the text, which we now wish to call into question. In our view, the text is nothing other than a royal edict, and its content is within the parameters of what is normally found in texts of this genre. It is nonetheless significant in its own right, since it contains two types of edict provisions: reforms of the royal administration and the details of a debt release. This is the first instance of a debt release in the Hittite sphere, since the other Hittite edict, that of Telipinu, is concerned only with administrative reforms. Furthermore, it casts new light on the mechanics of a general debt release, since it covers aspects not dealt with in the debt release decrees from Babylonia. For the convenience of the reader, a copy of the transliterated text follows. The present text differs from that offered by von Schuler (1959: 44648) only in minor detail. KUB XIII 9 + KUB XL 62 Column I 1 2 3 4 5 6 7 8 9 10 11 12

UM-MA Ta-ba-ar-na ITu-ut-a-li-ya LUGAL GAL ma-a-an URUA-a-u-wa ar-ni-in-k[u-u]n uru Ha-at-tu-i [ú-wa?-] nu-un nu-kán DINGERME a-a-nu-nu-un [nu-] mu LÚME URU a-at-ti u-u-ma-an-za a-ru-ú-e-e-ki-u[-w]a-an da-a-i mu ki-an me-mi-ir d

I

-wa an-ze-el BE-LÍ-NI LÚla-a-i-ya-la-a zi-ik nu-wa-a-a-a[n?] a-an-né-e-na-an-ni []a?-an-nu-wa-an-zi Ú-UL tar-ra-at-ta [ka?-]a-a-a-wa-kán i-da-la-u-i-e UKÙME-i-i [ ] x-ni ar-a ar-ni-in-ki-ir " I. A ] ú-pa-a-ti"I.A Ù LÚME a-ri-ku-wa-a [ [ -t]i? e-e-ta UTU

13 [ 14 [ 15 [

] x-te-e-a ] ] x-ta

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources

16 [

] mi-i

Column II 1 na-a-ta pa-ra-a Ú-UL tar-na-i nu-u-i EGIR-pa 2 PU-U - U a-pé-e-né-e-u-u-wa-da-an A.À pa-a-i 3 4 5 6 7 8 9 10 11 12 13 14 15

ma-a-an e-e-a-na-a-a-ku-i-ki ar-ni-ik-zi-il pí-ya-an ar-zi nu-za-ta SAG.DU-ZU wa-a-ta na-a-u A.ÀLAM na-a-ma LÚ.ULÙLU! na-a-ta pa-ra-a Ú-UL ku-i-ki tar-na-i ma-a-na-a-za QA-DU DAMME- U DUMUME- U da-a-an ar-zi na-an-i-i-ta pa-ra-a tar-na-i ma-a-an ta-i-iz-zi-la-a-a ku-i-ki ar-ni-ik-ze-el pí-ya-an ar-zi nu ma-a-an A.À na-a-ta pa-ra-a Ú-UL tar-na-an-zi ma-a-an ÌR-ma da-ya-at na-an ta-i-az-zi-la-an-ni ar-zi na-a ma-a-an ta-u-wa-a-a-an-za na-an-i-i-ta pa-ra-a Ú-UL tar-na-an-zi ma-a-na-a Ú-UL ta-u-wa-a-a-an-za na-an-i-i-ta pa-ra-a tar-na-an-zi

16 17 18 19

ták-ku EL-LAM-ma ku-i-ki da-i-ya-zi nu da-i-ya-zi-la-a ar-ni-ik-ze-el n[u ] x n[a-a]n Ú-UL ta-u-wa-a-a-an-zi [ ] na-an-zi

Column III 1 [ 2 [ 3 4 5 6

]x ] e?-[]a-ri

[ ] x [É ].GAL "I.A.TIM ku-i-e-e m[a-n]i-[y]a-a-e-e-kán-z[i ma]-a-an ki-nu-zu-zi na-a-ma[-ad?-du?-z]a? LÚSIG5 na-an ki-nu-ud-du L[ÚAGRI]G?-ma LÚ.MEa-at-tal-wa-la-a

The Edict of Tudhaliya IV 7

7

LÚ

8 9 10 11

APIN .LAL-a LUGAL-wa-a ARÀ"[-an P]A-NI ZI- U le-e ku-i-ki kinu-uz-zi ku-i ki-nu-uz-zi-ma []u-me-e-a-an LÚME URULIM e-ep-tin na-an LUGAL-wa-a a-a-ki [ú]-wa-te-et-tin ma-a-an Ú-UL-ma ú-wa-da-te-e-ni nu ARÀ"-an LÚME URULIM ar-ni-in-kán-zi gi-nu-ut-ma-an ku-[i] na-an a-ku-wa-an-zi

12 13 14 15 16 17 18 19 20

ku-i-za-an ke-e-da-a LUGAL-wa-a ud-da-na-a ka-ru-ú-u-i-ya-zi na-a-za na-a-u LÚa-ra-i-i mu-un-na-a-i nu[-u]-i ma-a-ka-an pa-a-i nu-za-ta na-a-u[L]Úma-ni-ya-a-a-an-da-a-a LÚ "A.LA- U pa-ra-a Ú-UL tar-na-i ne-ez-za-an ud-da-ni-i EGIR-an ták-a-an Ú-UL ap-pí-ya-zi ap-pí-iz-zi-ya-an-na ut-tar i-i-ya-a-ta-ri nu-u 2-i-la-pát a-ku-wa-an-zi an-da-ma ma-a-an a-an-na-an DI-ar ku-i-ki EGIR-pa da-a-i nu a-pa-a-at ut-tar SIG5-in pár-ku-wa-an-zi

Column IV 2 3 4 5 6 7 8

[ ]a?-t[a-a]n-t[i] [ -]mi na-an-ta [ I] -TU ZI-KU-NU-ma-a-ma-a [ I .T]U? EN GITUKUL -ma PA-NI ZI- U da-a-i [ ] x-an? ta-u-wa-a-a-an-zi [ ] x x [ n]a-a-za ku-it ku-it da-a-an ar-zi u-u-ma-an ta-a-an pé-e-ki-iz-zi

9 [ ] QA-TI I I I 10 U A-li-i-i-ni DUMU AN .UR.LÚ DUMU.DUMU- Ú A GI.AR .NU I 11 KAB.ZU.ZU [ ]A Zu-wa-a EN GI.KIN.TI

Translation Column I 1 Thus speaks the Tabarna Tudhaliya, the great king: 2-3 When I had destroyed Assuwa and returned to Hattusa,

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources

4 5 6 7-8 9 10 11 12

I refurbished the gods; the men of Hatti all began to bow down to me, and they spoke as follows: O great king, you are our lord, a leader of campaigns (?). Are you not able to judge in matters of justice? Behold, evil people [ ] have utterly destroyed [ ] the feudal holdings (?) and the arikuwa tenants [ ] was.

13 14 15 16

[ [ [ [

] ] ] ]

Column II 1 . . . he shall not release [it/them], but 2 he shall give back to him just such a field [as] its substitute. 3 4 5 6 7

And if someone has given ransom for blood, and he has purchased himself from you; whether [the ransom be] a field or a person, no one shall release [it]. If he (i.e., the holder of the ransom) has taken those things along with his (i.e., the offender’s) wives [and] sons, 8 he will release him/it to him. And if 9 someone has given ransom for theft: 10 if [it is] a field, they shall not release [it]; 11 but if a slave has stolen, and he (i.e., the ransom holder) holds him for the theft— 12 if he has been blinded, 13 they will not release him (i.e., the slave) to him (i.e., the former master), 14-15 if he has not been blinded, then they will release him to him.

The Edict of Tudhaliya IV 16 17 18 19

9

But if some free man steals and a ransom for theft [he has given] [ ] and they will not blind him they shall [ ]

Column III 1 [ 2 [ 3 4 5 6 7 8 9 10 11

]... ] he sits

[ ] who administer the palaces, if such a one opens the granary of the king, or if he sends on his behalf a superior officer [to open it], then allow him to open it. But a steward, doorkeepers, a farmer—let none such open the granary of the king against his (i.e., the king’s) will. But who does so open it, you, the men of the city, seize him and bring him to the gate of the king. But if you do not bring [him], the men of the city will make reparation for the granary, and they will track down the one who forced it open. lines 12-20 omitted

Column IV 4 5 6 7 8

[ ] but by your own will, them [ ] but he takes [from] a GITUKUL man against his will [ ] they shall blind him, and him [ ] and whatever he has taken [ ], he will give it all double.

9 Completed. 10 Hand of Alihhini, son of AN.UR.LÚ, grandson of GI .AR.NU, 11 student of Zuwa, chief of the artisans.

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Linguistic and Philological Commentary

I6 LÚ

laiyala. The noun laa- denotes both “military campaign” and “journey.” Likewise, when intransitive, the verb la()iyai- has the meaning “to travel, go on an expedition,” etc.; in its transitive use, the verb means “to attack, make war on,” etc. (CHD 3:4-10). The editors of the CHD suggest, however, that laiyala- consistently occurs in the nonmilitary sense of “traveler,” with the possible exception of its occurrence in this text. Either interpretation is consistent with our reading of the text. I 7-8 nu-wa-an annenanni annuwanzi UL tarratta. “Are you not able to judge in matters of justice?” We interpret this phrase as a rhetorical question, which serves as introduction to and justification of the forthcoming royal pronouncements on the matter of debt release. I 11 upati. See von Schuler 1959: 452. For LÚarikuwa-, Friedrich (1952: 185) offers “niedere Bevölkerungsklasse”; see Goetze 1967: 230-32. II 2 apeneuwadan. For apeneuwandan “just such,” see von Schuler 1959: 452. II 4 nu-za-ta SAG.DU-ZU wata. Literally, “he has purchased his own head/person from you”; that is, “he has purchased himself . . . .” Following Goetze (1930: 74), von Schuler (1959: 452) emends the text to read wa-ata “he has transgressed” (pret. 3rd sing. of wata-). There is no epigraphical indication for this emendation, and we interpret wata as simply the pret. 3rd sing. of wa- “to purchase” (see Friedrich 1952: 248).5 The verb is clearly reflexive in sense as marked by the enclitic particle -za. Beyond this, SAG.DU almost certainly functions here as a reflexive pronoun as it does at times in Akkadian. See CAD Q 106-7 2b): kime ami SAG.DU-su mssu ina aru “. . . as the sun watches over himself 5 This analysis of the verb, which we believe to be crucial for a proper understanding of the text, was first brought to our attention by Professor Melchert.

The Edict of Tudhaliya IV

11

and his land” (KBo I 5 i 50f., 56f.); and cf. 2a): qaqqassa ana ÁM iddin “she sold herself” (literally “her head”; unpublished Old Akkadian text). Typological studies reveal that it is not uncommon for languages to utilize as a reflexive pronoun a word for “head” or “soul.” Thus Basque, for example, uses buru “head” for a reflexive, and Fula makes use of hoore “head”; for a discussion, see Faltz 1985: 33ff. The inclusion of the second person pronoun -ta at first strikes the reader as curious, though, of course, the alternation between second and third person is not uncommon in colloquial speech. Compare the interchange of second and third person verbs in III 8-11. II 7 mn-a-za QA-DU DAMME- U DUMUME- U dn arzi. “If he (i.e., the holder of the ransom) has taken those things along with his (i.e., the offender’s) wives [and] sons . . .” If -a is construed as a nominative denoting the holder of the ransom, the verb d- is then left without an object, and there is no specification of the entity by which DAMME- U and ME DUMU - U are accompanied; consequently, we interpret the enclitic pronoun as an accusative common plural of the later type6 which has as its antecedent the common nouns of line 5, i.e., A.À and LÚ.ULÙLU. The use of a plural pronoun with what is, strictly speaking, a singular antecedent (“whether [the ransom be] a field or a person”) could quite naturally be the result of either one of at least two factors: (1) a casual grammatical style, which is exhibited elsewhere in the document (see the discussion of II 4), i.e., the composer may simply be referring collectively to the conjoined referents of line 5; (2) the possibility that the terms A.À and LÚ.ULÙLU merely indicate the nature of the ransom and are not meant to specify the number of items offered (i.e., “whether field or person”). In the latter case, the composer would be betraying his awareness that a multiplicity of items is frequently involved. In the Hittite Laws, one finds that, as a consequence of slaying a man or a woman in a quarrel, an offender is required to present a ransom of four persons (HL 1);7 if the blood crime is deemed less severe, the penalty levied is either two persons or one (HL 2-4).

6 CHD 3:9 identifies this text as Middle Hittite written in New Hittite script. 7 4 SAG.DU pi (Friedrich 1971: 16); literally, “he will give 4 heads.”

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II 8 n-an-i-ta par tarnai. “He will release him/it to him.” It seems clearly to be the case that the enclitic pronoun -an refers to the debt which is to be released by the ransom holder, though that the common singular of the pronoun should be used is surprising given the plurality of items which are held.8 Note that lines II 1 and 10 reveal that the object need not be expressed with par tarnai. II 13/15 n-an-i-ta. The animate pronoun -an most probably refers to ÌR-a “slave.” II 16 takku ELLAM-ma kuiki daiyazi. “If some free man steals . . . .” Along with von Schuler (1959: 453), we interpret Akkadian ELLAM as nominative. An identical use of the accusative case for the nominative occurs in KBo VI 4 I 9: [ták]-ku LÚ-a da-me-da-ni A.À A.GÀR an-da a-ki ták-ku LÚ EL.LAM “If a man dies in a foreign field/meadow, if he [is] a free man” (see Friedrich 1971: 50-51; 1974: 174). This matter will be further addressed below in the Legal Commentary. II 17 nu daiyazila arnikzel. “And a ransom for theft [he has given].” The phrase piyan arzi, “he has given,” must here be supplied from context.9 8 In a personal communication, Professor Melchert has suggested to us that the antecedent of -an is perhaps to be understood as arnikzil. Though the gender of arnikzil is, of course, as with other nouns in -il, conventionally identified as neuter, Melchert holds that nouns in -il are, in fact, likely to be animate. 9 Unless, of course, this phrase occurred in the lacuna at the beginning of line 18. Within the lacuna, preceding what can reasonably be read as na-an, the topmost portion of four (or, perhaps, five) signs is visible. The final character could conceivably be zi, though this reading is not straightforward. However, as von Schuler (1959: 446) indicates in his transcription, the initial character of the line looks most like nu. If the final sign were zi, the amount of space which precedes it—that is the space available for writing pí-ya-an ar-—would appear to be just slightly less than that utilized for writing these four characters at the beginning of II 4. Could the initial sign of line 18 be a somewhat compressed pí? The sign preceding the final visible character could be an, but, if the copy is proportionately accurate, there would appear to be insufficient space for ar. The very small remnant of the second preserved sign does not suggest ya.

The Edict of Tudhaliya IV

13

II 19 [n-an-i-ta para (UL) tar]nanzi. Perhaps line 19 is to be so restored, after II 13 and 15, though it is not possible to determine, of course, whether some entity is to be released or not to be released. Von Schuler (1959: 453) restores the text without the UL.10 III 3, 4 [. . . É]GAL "I.A.TIM kuie (4) m[an]i[y]ae-kanz[i] “. . . who administer the palaces,” or perhaps “ . . . of the palaces—[those] who govern.” On the use of manniya- “to govern” without an object, see CHD 3:165-66. III 5 n-ama[. . . z]a LÚSIG5 peyazi. Von Schuler (1959: 453) restores as n-ama-du-za, i.e., “If he sends on his behalf a superior officer to you.” III 7 [. . . P]A-N1 ZI- U. “Against his (i.e., the king’s) will.” In other words, without the king’s express consent. III 11 n-an akuwanzi. “They will track him down.” The meaning of the verb akuwi- has proved quite problematic to identify (see, for example, Friedrich 1952: 177). Goetze (1967: 202-3) examines various occurrences of the form and concludes his examination with the remark, “Mit der allgemeinen Bedeutung ‘zur Ruhe bringen’ wird man allen Belegen von akuw- gerecht.” However, he returns to a consideration of this verb in his review of Güterbock 1946 (see Goetze 1949: 182), and there states, after summarizing the contexts in which the verb occurs: “It is hard to find the common denominator of all this. For the time being, the best I can find is ‘suspend.’ If this proves correct, a difference must exist between our verb and gang-; the latter may imply balancing.” We believe that akuwi- is a reflex of the Proto-Indo-European root *sekw- “to follow” and in the present text has the sense “to track down” or “to pursue.” The city officials, having made reparation to the king out of their own pockets, are to pursue the thief in order to recover their own expenditures. As will be discussed further in the Legal Commentary below, 10 Perhaps because line 17 is shorter than line 15? Lines 13 (with UL) and 15 (without UL) are, however, almost the same length.

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there is a close parallel to this injunction in the Code of Hammurabi. In the Excursus we will treat the verb akuwi- in detail and offer what we believe to be compelling evidence for its identification with Proto-IndoEuropean *sekw-. IV 5 GI

EN TUKUL , literally, “owner of the weapon.” to LÚ GITUKUL and apparently designates a type of investigation of GITUKUL, see Beal 1988.

The term is comparable fief-holder. For a recent

Excursus akuwi- “to pursue Among the reflexes of PIE *sekw- are the following: Sanskrit acate “to accompany, follow”; Avestan ha aite “to accompany”; and Greek 6; Latin sequor; Old Irish sechur; Lithuanian sèkti; Lettish sekt—each with the common, basic meaning “to follow.” For orthographic reasons, there may be some objection to our inclusion of akuwi- in this set. It has been held that reflexes of the Indo-European voiceless stops are represented in Hittite orthography as geminate consonants, i.e., *akkuwi- would be expected from the root *sekw-. The evidence clearly suggests, however, that this is not always the case. Note that the Hittite reflex of the homophonous PIE root *sekw- “to see, to show” (Pokorny 1959: 897-98) is likewise spelled with only a single stop: akuwi- “to see”; akuwa “eyes” (Friedrich 1952: 177-78).11 This nongeminate spelling of the Hittite reflex of PIE *kw was also noted by Schindler (1967: 290). In his discussion of Hittite nekuz “night,”12 Schindler writes: Aus der Einfachschreibung des -k- in nekuz lassen sich selbstverständlich keine Schlüsse auf ursprüngliche Media (aspirata) 11 Some investigators, including Pokorny (1959: 897), have proposed that the two PIE homophones are ultimately to be traced to a single root (for a recent discussion of this issue, see Baldi 1974). For an opposing opinion, see Chantraine (1968-1980: 2:361). 12 The PIE etymon of which nekuz is a reflex has been traditionally reconstructed as *nekw-t- (Pokorny 1959: 762-63). Schindler is responding inter alios to Sturtevant (1942: 27), who proposes *gwh for the final consonant of the root.

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ziehen. Vgl. a-(a-)ku-wa “Augen” zu *sekw- “sehen” und e-ku-zi, 3. Pl. a-ku-wa-an-zi “trinken,” das doch wohl zu lat. aqua gehört.13 While it appears to be generally the case that PIE voiceless stops give rise to orthographic geminates in Hittite, the above observations along with the not uncommon variation between geminate and nongeminate spelling of Hittite consonants call for a careful quantitative study of this aspect of Hittite orthography. The Hittite reflex of *sekw- “to follow” is unlike the other IE reflexes cited above in that it consistently shows the o-grade of the root. These latter verb forms each exhibit the e-grade, though the o-grade is found in, for example, Greek 1, “to help” and Latin socius “companion” ( - 3 , 7? 1- 
  3 - /. But, always slaying, lordly Agamemnon pursued (the Trojans), exhorting the Argives. 14 On the present indicative third person plural form akuwanza rather than akuwanzi, cf. third plural eza for ezi, and see the discussion in Friedrich (1971: 103).

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Also of particular interest is Iliad 11.473-75, 1@ $ 2$ :A E 
  + 1E 0 :. 1 B, ;  ;

 = ´ 
 E / And if again pursuing [ ?   D  E D ? E + 4 > A C E E. The scent (pl.) of the hare in winter remains for a long time because of the length of the nights. Perhaps it is the case that the Hittite term has been similarly expanded to mean “to smell” and the participle “smelled” has acquired the nuance “scented, fragrant, aromatic,” etc. H. KUB XVII 10 II 16 (Laroche 1965: 92-93) 15 ka-a-a GIa-ma-am-ma ki-it-ta[ 16 a-ku-ú-wa-an e-e-tu ka-a-a GIMA [ki-it-ta nu GIMA] 17 ma-a-a-a-an mi-li-id-du Ù A dT[e-li-pí-nu ZI-KA] 18 QA-TAM-MA mi-li-te-e-et[u] 15 Behold, amama lies here[ 16 let it be aromatic/fragrant. Behold, a fig [lies here;

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 17 Just as [the fig] is sweet, let [your soul, Telipi]nu, 18 so be sweet. ZÉ-ER-TUM-ma-az ma-a-a-a-an YÀ- U À-it [ar-zi GETIN-ma-az ma-a-a-a-an] 20 GETIN-an À-it ar-zi zi-ik-ka dTe-li-pí-nu [ 21 i-ta-an-za-ni-it À-it QA-TAM-MA a-a-u ar-a[k]

19

GI GI

19 Just as the olive [holds] oil within it, [and just as the grape/raisin] 20 holds wine within it, so you, O Telipinu, [ 21 hold goodness in (your) heart and soul. As other investigators have pointed out, e.g., Güterbock (1968: 68), it is clear that the structure of lines 17-20, which refer to particular properties of the fig, olive, and grape/raisin,21 parallels that of lines 15 and 16. This parallelism indicates that the missing portion of line 15 states that “ . . . something should be akuwan like amama” (Güterbock 1968: 68). Though some scholars have proposed that Hittite GIam(m)am(m)a is to be identified with Akkadian amaammu “sesame,” Güterbock (1968: 67ff.) has cogently argued that, rather than “sesame” (for which the Hittite term appears to be apama-), GIam(m)am(m)a- denotes some other food. Noting its characteristics as revealed by an examination of the relevant texts— “amama is the fruit of a tree, it contains oil, and something is thrown away when it is broken”—Güterbock (1968: 70) suggests that GI am(m)am(m)a- may be the name of some type of nut; he indicates that the walnut, hazelnut, pistachio and almond are all possibilities, as they grow in Anatolia.22 Given the interpretation of akuwi- which we propose, the identification of GIam(m)am(m)a- as akuwan may further characterize this fruit as “aromatic, fragrant” and is perhaps a reference to the aroma characteristic of roasted nuts—particularly almonds.

21 On the possibility that “raisin” rather than “grape” should be restored here, see Güterbock (1968: 66 n. 1). 22 On this interpretation, see more recently Hoffner (1974: 126-27).

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am(m)am(m)a- is, in fact, as Güterbock (1968: 70) points out, included in a list of “roasted items” (KBo X 34 I). GI

I. KUB XXXIII 38 I 6 (Laroche 1965: 144-45) 5 ki-it-ta nu[ 6 a-ku-wa-an ki-[ 7 A dMA" ud-da-a-a[r a-ku-wa-an(?)] QA-TAM[-MA] 8 e-e-[ ] 5 here lies [ 6 fragrant/aromatic [ 7-8 so may the words of the mother goddess be [fragrant/aromatic]. This very fragmentary text appears to be quite similar in form to the previously examined passage from the Telipinu myth, and, accordingly, akuwan is here likely also to modify the name of some food.23 J. KUB XVII 7 + XXXIII 93 II 12 (Güterbock1951: 148) d 6 [ Ku-mar-bi-i] D[INGI]R.ME-a adda-a e-e-zi 7 [ ] x dKu-mar-bi-in a-u-ta 8 [ ] a-ru-ni i-ya-an-ni-e 6 [ seated. 7 [ 8 [ 9 10 11 12 13

Kumarb]i, father of the g[od]s, is ] he saw Kumarbi ] he went to the sea

[(nu dIm-pa-lu-ri-i)] INIM.ME-ar a-ru-ni EGIR-pa [(me-mi-i-ki-u-w)a-an (d)]a-a-i EN- YA-mu-kán ku-it [ ]-at nu-za-kán a-ru-na-an ta-pu-a [ ]-kán x-x a-ku?-wa-ya-nu-un d [ K]u-mar-bi-i DINGIR.ME-a adda-a e-e-zi

23 Güterbock (1968: 68 n. 13) comes to the same conclusion regarding this similarity.

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 9 10 11 12 13

and to the sea [(Imbaluri)] again began [(to speak)] the words: My lord, what to me [ ] and by the sea [ ] I have seen/traced (?) [ ]Kumarbi, father of the gods, is seated.

Güterbock (1946: 14, 57) tentatively translated a-ku?-wa-ya-nu-un as “erblickte,” i.e., the form is identified with akuwi- “to see,” while in Güterbock 1951 (p. 194), the word is left untranslated. Goetze (1949: 182), stating that “Güterbock [1946: 57] has correctly pointed out that akuwayanun should be combined with akuwayat KUB XVII 8 IV 32” (see below), argues that this form of the preterite (akuwaya-) is distinct from that for the verb meaning “to see,” which occurs in the third singular as akuwit (KUB VII 57 I 4). Goetze thus interprets a-ku?-wa-ya-nu-un as being a form of that verb which is the subject of this excursus and suggests that its meaning in this text is “to commit to memory.” This suggestion is, of course, purely conjectural. Given the fragmentary condition of the text, the precise sense of akuwi- is not determinable, but a meaning “to trace, seek (out)” or the like is completely possible, if this is, in fact, not a form of the verb “to see” (cf. line 7). K. KUB XVII 8 IV 32 (Laroche 1965: 168) 30 [ ]x-an-za la-ap-pí-ya-a na-a-i-i-a-[an 31 [ ]i-ya-u-wa-ni-i-ki-iz-zi ZÍZ-ma pé-e?[ 32 [ ]x-ti-az a-ku-wa-ya-at nu-za "UR.SA[G 33 [ -]a?-na-a UZUSA da-a-a 30 31 32 33

[ [ [ [

] the fever, and for him [ ]he is healed. Spelt . . . [ ] . . . he saw/sought (?), and the mountain[ ] . . . he took sinew [

Goetze (1967: 202; 1949: 182) conjectures that akuwayat in line 32 is another instance of the verb with which we are here concerned rather than an occurrence of akuwi- “to see”; however, the fragmentary context again makes secure identification and interpretation impossible.

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L. KUB VII 1 II 39 + KBo III 8 II 5 (Kronasser 1961: 150; 1962a: 111) 38 ma-a-na-a SIG5-at-da-ma na-at-i-kán ar-a da-a-i an-da-ma 39 a-ku-wa-a-ru pa-i nu-u-a-an 2 EME."I.A nu-kán an-da 40 UZUu-t-y i-ga-a-ri na-at TUR-li ka-li-li(-?)ul-li-a 41 kat-t[a-an] da-a-i nu, etc. . . . 38 And if he (i.e., the child) becomes healthy, then (s)he will take it (i.e., a cultic object) away from him, and 39 let her/him anda akuwi-, (s)he will give (?), and 2 tongues, and 40 (s)he will insert [it?] in the flesh. For the child . . . 41 (s)he will place it under, etc. . . . Goetze (1967: 203) translates the imperative anda akuwaru in line 39 as “soll aufgehoben werden”; acknowledging Goetze, Kronasser (1961: 151, 154) similarly renders the phrase “soll aufbewahrt werden.” These translations are, again, rather conjectural and are, of course, offered on the basis of the particular context in which the form here occurs—a context which would allow many possible interpretations. The problem of interpretation is compounded by the fact that the text of line 39 appears to be corrupt, as is indicated by several factors. (1) The use of an imperative (akuwaru) in the description of the ritual is unexpected. Elsewhere in the ritual, the indicative is used to describe the procedure to be followed and the imperative is limited to occurrences of reported speech. In addition, it should be pointed out that, although Kronasser did not indicate it in his transcription, the final sign of a-ku-wa-a-ru is damaged and only partially legible. The reading ru is not a necessary one, given the traces which remain. (2) The occurrence of pai after akuwaru is, of course, quite problematic, as is (3) the absence of a verb in nuan 2 EME."I.A.24 If, in fact, the verb of line 39, is a form of anda akuwi-, then perhaps the sense is something like “then this will follow (in the ritual).” The meaning “to follow in order” is attested for Latin insequor.25 24 Is pai to be construed as the verb of this sentence, which the scribe has in some way displaced to the left? 25 Goetze (1967: 203) also identifies an occurrence of anda akuwi- in KBo IV 2 I 4. The verb describes an action to be carried out on a clay figurine using the wing of an

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In his discussion of akuwi-, Goetze (1967: 203) also cites “akuwekizzi VII 41 Vs 11 bei fehlendem Subjekt and Objekt, sodaß sich nichts Sicheres sagen lässt” and the “verstümmelt XII 56 III 3.” Otten (1961: 116-17) interprets the former as an instance of the homophonous verb meaning “to see.” M.-N. KUB VII 41 Vs 11; KUB XII 56 III 3 10b ki-i É-ir ku-wa-at tu-a-it-t[a 11 a-ra-a ne-pí-i ku-wa-at a-ku-e-ki-iz-zi 10b Why does this house gasp? 11 Why does it look up to heaven? Goetze’s latter citation, XII 56 III 3, reads simply a-a-ku-wa[. Otten (1961: 114-15) identifies KUB VII 41 and the fragmentary tablet XII 56 as variants of a single text. Another variant, Bo 2072, has a-ku-wa-a corresponding to the a-a-ku-wa[ of XII 56 and, thus, indicates that this is not a verb but is instead a form of the noun meaning “eye.”26 It has been argued above that the Hittite verb akuwi- is a reflex of the PIE root *sekw- “to follow.” The meanings here proposed for Hittite akuwi- are the following: (1) “to pursue, track down”; (2) “to punish, persecute”; (3) “to search, seek out”; (4) “to trace (the outline of )”; and as a participle (5) “scented, aromatic”—the sense of which develops from the meaning “to smell, sniff out” (i.e., “that which is smelled”). Each of these meanings is attested for reflexes of *sekw- in the various Indo-European languages; moreover, the Latin reflex sequi shows remarkable agreement, sharing four of the five meanings exhibited by the proposed Hittite cognate. It has long been recognized that Hittite akuwi- is capable of occurring in quite disparate contexts. Our analysis of this verb provides a plausible sense for this problematic form as it is found in each of these

eagle, and Goetze proposes the translation “einwickeln.” However, the initial portion of the word is damaged; Kronasser (1962b: 90) reads the form as x'-x' -ku-i(-?)i-kán- i, and with appropriate tentativeness identifies the verb as possibly ikanzi or, perhaps, arkuikanzi. 26 A third copy of the text, KBo X 45 II 48, reads a-ku-wa (Otten 1961: 125).

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varied contexts and clearly links each of these meanings to a common denominator. The naturalness of this solution, which rests upon the above cited agreements between akuwi- and the various Indo-European reflexes of *sekw-, argues persuasively, in our opinion, for the correctness of the analysis proposed in this excursus.

Legal Commentary Column I 1ff. Most of our knowledge of royal edicts comes from the debt release decrees of the Old Babylonian kings. These were typically promulgated on a king’s accession to the throne,27 but also at irregular intervals during the reign.28 The ostensible motivation was religious: by reestablishing equity and ending abuses the ruler pleases the god of justice29 and thereby secures the legitimacy of his reign.30 It is clear, therefore, why a ruler would begin his reign with such a decree, but the sources are silent as to the reason for subsequent decrees. It has been suggested by Bottéro (1961) that fundamental imbalances in the economy led to a build-up of social and economic discontent that had to be relieved by the periodic cancellation of debts. The only express account, however, of the circumstances leading to such a decree is given in the biblical narrative. When the Babylonian army was besieging Jerusalem, king Zedekiah ordered a release of debt-slaves, presumably to obtain divine favor, but possibly also to raise morale in the face of a military emergency (Jer 34:1-10). Obviously, these were not the most typical circumstances for promulgating a decree.

27 Recorded in the first or second year-date of the king, e.g., Hammurabi year 2: “The year that he established equity for the land” (n íg - si - sá k al am -m a in -g a r). 28 See Kraus (1984: 16-110); Finkelstein (1965: 243-46). They are not, however, periodic, as Finkelstein claims. See Westbrook (1971a: 209-25). 29 Note the reference in BM 80318 (edition in Finkelstein 1965: 233-36): “When my lord raised high the Golden Torch for Sippar, instituting the misharum (i.e., debt-release decree) for Shamash who loves him” (lines 1-3). 30 As Hammurabi explains, he was named ruler by the gods “in order to cause equity to prevail in the land, to destroy the wicked and the evil, that the strong might not oppress the weak” (CH prologue I 31-33).

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The present text is important, therefore, in that it expressly states the reason for the decree. Abuses had been committed during the king’s absence on campaign, and on his return a group of citizens petitioned him— in fairly bold terms—for their removal. Answering petitions was part of the everyday functions of an ancient Near Eastern king, in his capacity as head of the system of administration of justice. Again most of our information comes from Mesopotamia and the Bible, where such petitions are usually from individuals.31 Group petitions are rare. An example from the Bible, with a dire warning as to the consequences of disregarding public opinion, is the people’s petition (led by Jeroboam) to king Rehoboam to relieve them of public duties (presumably taxation or corvée duties ) in 1 Kgs 12:1-20. In practice, group petition could alter royal policy, as two examples from the Hittite sphere show. In RS 17.130 (Nougayrol 1956: 103-5), the Hittite emperor is petitioned by his vassal, the king of Ugarit, on behalf of the “sons of Ugarit,” i.e., the free citizenry, and grants a seasonal restriction on the activities of certain Hittite merchants at Ugarit. A more direct parallel to our text is the account of a successful petition in HL 55: When the sons of Hatti, the feudal tenants, came and bowed down 32 to the king’s father and said: “No one pays hire; they say to us, ‘You are feudal tenants,’” the king’s father (decreed) in the assembly and issued a sealed document (saying): “Go! You shall be as your colleagues.” Our text is therefore evidence that pressure of “public opinion,” through the customary medium of the group petition, was a factor in the occasional decision to promulgate a reforming edict. Nonetheless, there is also an allusion to religious motives. Tudhaliya mentions that on his return 31 There are many references to petitions in the correspondence of the Old Babylonian kings: e.g., AbB 2 no. 74 where two brothers petition King Abi-eshuh after the local court failed to act in their case. The biblical narratives also mention petitions to the king, e.g., 2 Sam 14:4-11, where the Tekoan woman makes a personal plea to King David. 32 Note that the procedure is described in the same terms as in our text. The petitioners bow (verb aruwi-) to the king and speak.

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he “refurbished” (verb aanu-) the gods. It is difficult to see the relevance of this statement to the narrative unless it is to suggest that part of the “refurbishment” was to correct injustices displeasing to the gods. Column II 3-8. These provisions represent the meeting-point between two areas of law: release of debts and the revenge/ransom system of punishment for criminal offenses. 1. The royal decrees that cancel debts are also concerned to annul transactions based upon the debt, such as pledge and debt-slavery. For example, paragraph 20 of the edict of King Ammi-#aduqa of Babylon (Kraus 1984: 20) provides: If a son of Numhia, a son of Emut-Balum, a son of Idamaraz, etc., is bound by a debt or sells, gives ana kitim, or pledges himself, his wife or his [children], because the king has established equity for the land, he is released—his freedom is established. It is to be noted that the release annuls outright sale as well as less permanent arrangements such as pledge. The kind of sale covered, which arises from a debt, is one that masks the true nature of the transaction, namely distraint for nonpayment of debt. A person who is forced to sell his property to his creditor at the price of the debt loses the inherent benefit of pledge, i.e., its redeemability, while failing to gain the usual benefit of outright sale, i.e., receipt of the property’s full value, since the amount of the debt will seldom equal the value of the property pledged or distrained because of it. The legal systems of the ancient Near East had two measures for dealing with this problem. Firstly, a right of redemption was allowed for family land and certain types of slaves (especially family members). The debtor/seller or his successors could buy back the property at a later date at the same (low) price for which it had been sold (see Westbrook 1985b). But sometimes even this sum was beyond the reach of the debtor, and in that case his only hope was that a debt-release would be decreed, in which case his property (or his own freedom, if he had sold himself) would be eligible for restoration to him by reason of the original debt being canceled. Lev 25:25-28 shows the two measures in effect: If your brother grows poor and sells his estate, his redeemer who is most closely related to him may come and redeem his brother’s

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources property. A man who has no redeemer but who obtains enough to redeem it shall calculate the years of purchase and return the balance to the man to whom he sold and he may return to his estate. If he does not obtain enough to return to him, the property shall remain in the hand of its purchaser until the Jubilee year. It will be released in the Jubilee and he will return to his estate.

The provisions are complicated by the fact that the levitical author had changed the debt-release into a cyclical event, recurring automatically every fifty years, which affects calculation of the price (Westbrook 1971a: 221). The principle, however, remains clear: where family property is sold under financial constraint it may be redeemed, and if this is not possible, the same circumstances make it eligible eventually for automatic release. 2. Homicide gives rise to a dual right in the victim’s family: to take revenge on the culprit within the limits recognized by law, which usually means killing him, or to accept ransom for sparing the culprit’s life. This principle, effective throughout the ancient Near East, finds its clearest expression in paragraph 49 of the edict of King Telipinu: Whoever does blood (i.e., commits homicide), whatever the owner of the blood (i.e., the avenger) says. If he says “Let him die!” then let him die. If he says “Let him pay ransom!” then let him pay ransom. In cases of aggravated homicide, such as murder, the victim’s family has discretion whether to accept ransom and as to the amount of ransom acceptable. For less serious degrees of homicide, such as those involving negligence, the courts will often insist on ransom and set a limit on the amount that may be demanded.33 In either case, however, the culprit is in a constrained situation where he may be forced to sell his property or his freedom at a discount in order to buy his own life. The whole of his property could be sacrificed in this way, as MAL B 2 demonstrates:

33 For a detailed discussion of the principle, see Westbrook (1988d: 39-71). The payments of slaves for homicide in HL 1-4 represent fixed ransom.

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If one among brothers who have not divided takes a life, he shall be given to the owner of the life (i.e., the avenger). If he chooses, the owner of the life may kill him, or if he chooses, he may come to terms and take his inheritance share. Where brothers have not yet divided the estate of their father, the avenger is entitled to the equivalent of the guilty brother’s inheritance share—in other words, all his property. The ransom agreement is a contract like any other and therefore gives rise to a debt which must be paid or satisfied in some other way,34 whether by transfer of the debtor’s property, his family, or his own person. 3. Because a ransom agreement is a kind of forced sale, the question arises whether the measures for the protection of debtors outlined above would also be available to the payer of ransom. Insofar as a debt release is concerned, it is this question that is addressed by the lines of the edict under discussion. The edict distinguishes between two cases. In the first, a person has committed homicide and has paid a ransom for his own life: he has “bought himself.” Can the property that he handed over as the price of his life be released by the decree? The edict answers in the negative, even if the property be land or persons, which could refer to slaves, or possibly to dependent members of his family. The second case is harder to determine, because of the ambiguity of the enclitic pronouns in the protasis and apodosis. Our tentative interpretation is that the creditor (i.e., the avenger) has made a general seizure of the homicide’s property and family. The change in subject and verb (“has taken” instead of “bought himself”) suggests that this was a unilateral act rather than a bargain arrived at between the parties, possibly to force the homicide’s hand in negotiations. A comparable situation arises in a NeoAssyrian document: 35

34 As the Neo-Assyrian contract ADD 321 provides: “A son of B shall give C daughter of D, the scribe, in lieu of the blood. He shall wash the blood. If he does not give the woman, they will kill him on B’s grave. Whichever of them breaks the contract shall pay 10 mina of silver.” 35 ADD 164. Edited in Postgate 1976: no. 44; and Kwasman 1988: no. 108.

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources A judgment which the sartennu imposed upon Hani. 300 sheep with their penalty belonging to the crown prince are to the debit of36 Hani. The blood of a shepherd, 2 talents of copper per man, is his penalty. Hani, together with his family and his fields is taken in lieu of the 300 sheep with their penalty (and) instead of the blood of the shepherds. Whoever seeks him, whether his captain or officer or anyone belonging to them, shall give 300 sheep with their penalty and the blood of a shepherd, 2 talents of copper per man for the men (and) redeem Hani. He shall see the river ordeal.

The apparent culprit in a case of robbery and murder, Hani, is held together with his family and land pending payment of ransom. The ransom in question has been fixed by a court (or official, at least), which need not have been the case in the Hittite edict. Creditors commonly used self-help, seizing goods or even members of the debtor’s family to force payment. For example, an Old Babylonian letter recounts the following:37 To Ahu-kinum, speak. Thus says Awil-Ammur. After you went away on a journey Imgur-Sin came and, with the statement “He owes me one-third of a mina of silver,” distrained your wife and daughter. Come and get your wife and daughter released before they die from being kept in detention. Please! The edict decrees the release of “him/it to him” (line 8: na-an-i-i-ta). The latter is presumably the homicide himself and the former, on our interpretation, would be the totality of aforementioned property and the homicide’s family. It may, however, refer solely to the property, on the assumption that the family is automatically entitled to release. From the edict of Ammi-#aduqa it can be seen that fine distinctions were made between transactions that were eligible for annulment and those 36 Literally, “at the disposal of.” The term is taken from Neo-Assyrian debit notes where the debtor has the loan at his disposal and therefore is indebted to the creditor in that sum. Here, the culprit Hani has had the sheep at his disposal only in the sense that he stole them. His debts arise ex delicto rather than ex contractu. 37 UET 5 9. It is in fact a model letter, i.e., a scribal exercise. See Kraus (1959: 28-29). If distraint turned out to be unjustified, the consequences could be serious for the creditor: see CE 22-24. And see further Jackson and Watkins (1984: 411-19).

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that were not. That edict distinguishes basically between arms-length commercial transactions (not eligible) and noncommercial transactions (eligible).38 The present text reveals another dimension to this jurisprudential activity, extending it to transactions arising from debts ex delicto. Column II 8-10. The revenge/ransom system applies equally to theft (see Westbrook 1988d: 120-26). Except in aggravated cases such as kidnapping,39 the courts systematically imposed a fixed ransom on the thief, usually in the form of a multiple of the thing stolen.40 In practical terms this could lead to the thief relinquishing his property or his freedom to pay the ransom. As Prov 6:31 says of the thief: “If he is found he shall pay seven-fold; he shall give all the property of his house.” Similar considerations apply, as in the foregoing case of homicide. Real estate given to satisfy a demand of ransom is not eligible for release. By implication, release would apply to the thief himself and his family. Column II 11-15. The Hittite Laws recognize the possibility of noxal surrender, i.e., where a slave has committed an offense, his master has the option of handing the slave over to the victim or of redeeming him (Haase 1961). HL 95 reads: If a slave burgles a house, he shall give (it back) completely (?).41 He shall pay 6 shekels of silver for the theft. He may cut off the slave’s nose and ears, and they shall give him back to his master. If he steals much, they shall obligate him for a large amount; if he 38 See paragraph 3 for loans that are annulled (at interest or ana melqtim), and paragraph 8 for loans that are not (price of goods sold, investment in a trading journey, partnership). 39 The penalty prescribed is death in CH 14 and Exod 21:16. HL 19 requires payment of six slaves. This is extraordinarily high (more than for homicide) and suggests that it was ransom for the kidnapper’s life. 40 E.g., CH 8: “If a man steals an ox or a sheep or an ass or a pig or a boat, if it belongs to the temple or palace, he shall restore thirty-fold; if it belongs to a private citizen, he shall restore ten-fold. If the thief cannot make restitution, he shall be killed.” Cf. Exod 21:37, which demands four- and five-fold payments according to the type of animal stolen, and HL 57-69 which has a much more elaborate system based on the same principle. 41 J. Friedrich (1971: 47) translates “. . . gibt er (es) ganz richtig (zurück).” Haase (1957: 40-44) argues that akuwaar should be translated “unverändert”; Goetze (1969a: 193) renders “the respective goods.”

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources steals little, they shall obligate him for a small amount. If his master says, “I will pay ransom for him,” he shall pay ransom. But if he refuses, he shall surrender that slave.

The victim of a slave who steals is entitled to mutilate him and keep him as his own slave unless the master is willing to redeem the slave by paying a penalty for the theft: 6 shekels on average, but apparently a greater or lesser sum can be set by the court depending on the scale of the theft.42 In the present case, a slave has stolen and noxal surrender has been made, due to the unwillingness or (more likely) inability of the master to redeem his slave. Theoretically, the owner who is unable to redeem may still look to a debt-release to obtain the restoration of his property, as in the case of Lev 25:25-28 discussed above. Here, where the debt is ex delicto, a distinction is again made. If while in the victim’s power the slave has been blinded as punishment for the theft, he is not eligible for release, but otherwise he is. The rationale would appear to lie in the seriousness of the offense. HL 95 gives the golden mean, not only in terms of noxal payment but also of the mutilation that may be inflicted. As blinding is the most serious possible mutilation, it may be deduced that the theft was of a correspondingly serious character and therefore the noxal payment set by the court would have been more than a slave-owner could normally afford to pay.43 Where failure to pay is thus due more to the gravity of the penalty than to the impecuniousness of the owner, the latter is not allowed to take advantage of a general debt-release. Column II 16-19. This paragraph is close in formation to HL, using takku, rather than man as in the preceding paragraphs, to designate the 42 Haase (1957: 43) argues that two different penalties are involved: the fixed sum where the stolen goods are returned unaltered, and the sliding scale where the goods have been sold or otherwise altered. But there is no indication of the latter condition in the text. 43 Blinding is known to have been practiced in Sumer on prisoners-of-war who were made slaves, obviously for safety reasons. In the edict here too, then, blinding may have been motivated by fear of the slave’s violent character. See Kutscher (1989: 74, 80): “He blinded the young men whom he reached in their cities and gave (?) them as [slaves] in the orchard of Enlil and Ninil and in the orchards of the great gods” (translating text BT 4 [col. IV, lines 15-22], an inscription of the king, u-Sin).

The Edict of Tudhaliya IV

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conditional clause of the protasis, which may indeed have been extracted from a provision concerning theft in a law code. As pointed out above, we follow von Schuler in taking ELLAM (free man) as a nominative, since it is most likely that the free status of the thief is in issue, as opposed to his slave status in the preceding paragraphs. If ELLAM were the object of the verb, it would introduce the wholly new offense of kidnapping. It is not possible to interpret the paragraph with confidence, due to the broken condition of the text. Probably it repeats the principle of the preceding paragraph, mutatis mutandis, for a free man. Thus ransom was paid rather than noxal surrender being made. But it is not clear then why there should be any question of blinding. It is also curious that the verb “to blind” is in the present-future rather than a past participle as in lines 12 and 14. Column III 1-11. The subject is no longer release of debts but administrative measures concerning the royal estate, apparently royal storehouses in provincial cities.44 The edict, directed towards the local authorities, distinguishes between two types of royal officials: high officials, who have authority ex officio to open a royal storehouse at their discretion, and lower officials, who may open it only with special permission. If a storehouse is opened without authorization, it is the duty of the local authority to arrest the culprit and bring him before the king. Failure to do so makes the local officials personally responsible for making good the loss. This will apply to any deficit in the inventory, not merely unauthorized withdrawals by officials, and doubtless there was a regular audit for this purpose. Although the storehouse is called the king’s storehouse, its administration was in the hands of the local authorities, who were regarded as depositees of the king’s property. Their responsibility is the same as that of the ordinary depositee in CH 125: If a man gives his property for safekeeping and his property is lost from the place where he gave it together with the proprietor’s property through a breach or climbing in, the negligent proprietor shall make full reparation to the owner of the goods for the property that was given him for safekeeping. The proprietor shall continue to seek out his lost property and take it from the thief.

44 Cf. paragraphs 37-40 of the Telipinu edict.

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Where the depositee has been negligent but not dishonest, as witnessed by the loss of his own property as well, he bears primary responsibility for the goods stored with him45 and must seek to recoup his loss as best he can by locating the thief. In the edict, the same facility is accorded to the negligent local officials against the true culprit.46 Column III 12-20. We can make no connected sense of these lines and therefore offer no interpretation. Column IV 1-8. In these fragmentary lines, the edict appears to return to the theme of the preamble, namely cases of oppression of feudal tenants. If the oppressors are private creditors, then these provisions may be concerned with devices to evade the effects of the edict itself, as in paragraph 7 of Ammi-#aduqa’s edict (Kraus 1984: 172): If a man gives grain or silver as an interest-bearing loan and has a tablet drafted but keeps the tablet himself and says “I did not give it as an interest-bearing or melqtum loan; the grain or silver that I gave you I gave as payment of a price or as an investment or for some other purpose,” the man who borrowed the grain or silver from the merchant shall bring witnesses to the wording of the tablet that the lender denied and they shall testify before the god. Because he changed his tablet and denied the transaction, he shall pay six-fold. If he cannot meet this obligation, he shall die. In our text, the punishment of blinding may suggest that whatever oppression was involved was regarded as a form of theft. If the oppression is by an official, then the edicts of King Uruinimgina of Lagash and Horemheb of Egypt both provide parallels. Misappropriation by officials is graphically described in Uru-inimgina’s edict:

45 Were he dishonest, the depositee would have to repay double: CH 120. 46 It was common for local authorities to be made responsible for loss caused by undetected criminals. According to CH 22-24, the city and its mayor must compensate citizens for loss of property or life caused by brigands who are not caught. HL IV imposes the same duty on the city nearest to the scene of an unsolved murder.

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The . . . administrators felled trees in the orchards of the poor and bundled off the fruit.47 No penalty is mentioned for this practice, which Uru-inimgina claimed to have abolished. Horemheb’s edict is more explicit. Paragraph III 21-22 recounts that certain officials have been in the habit of requisitioning labor for the saffron-harvest and decrees that this is an abuse which is henceforth prohibited. If an official is found to be still requisitioning labor for this purpose, his nose will be cut off, he will be sent to Tjarou and the fruits of the work performed for him will be confiscated (Kruchten 1981: 194). Likewise, paragraph IV 24-27 forbids officers from appropriating animal skins, on pain of receiving one hundred blows, five open wounds, and having the misappropriated skin confiscated (Kruchten 1981: 196).

47 Sollberger Corpus Ukg. 5.5 = La 9.1 col. V in Cooper 1986: 71. Cf. CH 34, which prescribes the death penalty for an officer who takes a soldier’s property, oppresses him, hires him out, delivers him up to a powerful person in a lawsuit, or takes a gift given to the soldier by the king.

2 Hard Times: CT 45 37 Abstract The unusual phrase, ina marutim ina m sirim, turns up in the Old Babylonian litigation document, CT 45 37. This article analyzes the phrase against the background of Mesopotamian legal traditions dealing with sale under duress and m arum-decrees. The conclusion is that, in the light of those traditions, the plaintiff’s suit should be seen as a claim that the sale at issue has been cancelled by a recent m arum-decree and that it qualifies for such cancellation because it was made during “hard times.”


A

s a tribute to Professor Veenhof, who has contributed so much to our understanding of early Mesopotamian society, I wish to discuss the implications of an Old Babylonian litigation document, and in particular of one obscure line in it. CT 45 37 reads: 1 2 3 4 5 6 7 8 9

a-na 1 SAG.GEMÉ sa-di-ir-du-mu-uq-a d DUMU.MÍ be-el-ti-É.*GAL*-li-um-m[i] a ni-i-ì-[lí-a(?) LUKUR d]UTU DUMU.MÍ nu-ur-dZA-BA4-BA4 a a-na ERE-ti-dUTU DUMU.MÍ sin-ta-ia-ar a-na *KÙ.BABBAR-im a-[n]a* i-im ga-me-er id-di-nu i-tu MU.15.KAM il-li-ku dEN.ZU-i-me-a-[an-ni] d d DUMU MARDUK-na-ir a a-bu-u nu-úr- ZA-B[A4-BA4] m a-da-an-u-li-ik-u-ud a-pí-ir *AGA.U[ .*ME] im-u-ur um-ma u-ú-ma 1 GEMÉ sa-di-i[r-du-mu-uq-a]


Originally published in Veenhof Anniversary Volume: Studies Presented to Klaas R. Veenhof on the Occasion of his Sixty-fifth Birthday (W. H. van Soldt and J. G. Dercksen, eds.; PIHANS 89; Leiden: Nederlands Instituut voor het Nabije Oosten, 2001), 547-51. Used by permission.

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 10 a a-a-at a-bi-ia i-na qá-ti mERE-ti-dUTU D[UMU.MÍ sin-ta-ia-ar] 11 i-ba-a-i a-pir *AGA.U.*ME a-na DI.KU5.ME i-ru-d[a-a-unu-ti-ma] 12 DI.KU5.ME ù li-pí-it-i8-tár UGULA MAR.TU DUMU ra-bu-ut-sin 13 di-nam i-na É dUTU ki-a-am iq-bu-u-nu-i-im 14 i-na É dUTU i-na KÁ PA.PA-im ú-a-ar-t[i . . .] 15 mERE-ti-dUTU DUMU.MÍ sin-ta-ia-ar 16 ki-a-am i-qa-ab-bi ù i-ma-tu a LUKUR.dUTU.ME 17 GEMÉ an-ni-tam i-na ma-ru-u-tim i-na me-si-ri-im 18 KÙ.BABBAR-am i-im ga-me-er i-qu-ul-ma 19 lu-ú i-a-am-i 20 mERE-ti-dUTU DUMU.MÍ sin-ta-ia-ar 21 ù sin-i-me-a-an-ni DUMU {{SAL}} d markuk-na-ir 22 i-na É dUTU im-ta-ag-ru-ma 23 1 GÍN KÙ.BABBAR ta-am-gu-ur-ti É dUTU 24 mERE-ti-dUTU a-na sin-i-me-a-an-ni 25 id-di-in a-na U4.KÚR.È a-na 1 SAG.GEMÉ 26 msa-di-ir-du-mu-uq-a msin-i-me-a-an-ni 27 a-na ERE-ti-dUTU ú-[ul i-]ra-ga-am 28 MU dUTU dA-A d[MARDUK ù sa-am-su]-i-lu-na LUGAL 29 IN.P[ÀD ] Witnesses (11?), date (Samsu-iluna 27).

Notes I am grateful to the trustees of the British Museum for allowing me to collate the tablet. The symbols *. . .* mark a reading based on collation. Line 2. The use of a metronymic with the Assyrian month Belti-ekallim suggests that this was the (house-born?) daughter of a foreign slavewoman, not a debt slave. Line 3. One would expect the common nad tum name Ni-niu, but to my knowledge ì is not used in its spelling. The restored name is speculative, based on the analogy of Ni-DN. Cf. PBS 11/3 55:7. Line 5. Copy has a-na ki-di-im.

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Line 14. Cf. an oath to be sworn i-na pa-ni pa-pa-i-im in Waterman Bus. Doc. 34, lines 9 and 10. I am grateful to Professors Veenhof and Stol for this reading and reference.

Translation Concerning a female slave, Sadir-dumuqsha, daughter of Belti-ekallimummi, belonging to Nishi-ilisha(?), nad tum of Shamash (and) daughter of Nur-Zababa, whom she sold for the full price to Ereshti-Shamash, daughter of Sin-tayyar. After 15 years had passed, Sin-ishme’anni son of Marduk-nair, whose father was Nur-Zababa, approached Adanshulikshud, the commander of the soldiers. He said: “A female slave, Sadirdumuqsha, who belongs to my aunt, is in the possession of EreshtiShamash, daughter of Sin-tayyar.” The commander of the soldiers sent them to the judges. The judges and Lipit-Ishtar, the general son of Rabut-Sin, pronounced judgment upon them in the Temple of Shamash as follows: “In the Temple of Shamash, in the Gate of the Shrine, of the ‘Girl’ . . ., Ereshti-Shamash shall say thus: as for the purchased property of the nad tums, she paid ina marutim ina m sirim the silver as full price for that female slave and she truly bought her.” Ereshti-Shamash, daughter of Sin-tayyar, and Sinishme’anni, son of Marduk-nair, reached a compromise in the Temple of Shamash, and Ereshti-Shamash paid Sin-ishme’anni one shekel of silver as the compromise payment of the Temple of Shamash. Sin-ishme’anni has sworn the oath of Shamash, Aya, Marduk, and king Samsu-iluna that in the future he will not sue Ereshti-Shamash for the female slave Sadirdumuqsha.” (Witnesses, date.)

Legal Commentary The facts of the case may be summarized as follows. A nad tum sold her female slave to another woman, but fifteen years later, the seller’s nephew (and presumably, heir) brought suit against the buyer, claiming that she had not acquired ownership of the slave still in her possession. The court imposed an oath on the buyer and prescribed its terms. She was to swear that in buying the slave she had paid the full price ina marutim ina

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m sirim. Taking the oath would have won the case for the buyer; instead she reached a compromise settlement with the plaintiff, whereby she paid him one shekel in satisfaction of his claim. On what basis did the plaintiff claim that the sale was invalid? The key to this question lies in the phrase containing the buyer’s rebuttal, which I have left untranslated for the moment. CAD offers two translations in the respective entries under each word: “he paid the full price with bad grace and under duress”; and “with great difficulties, he paid the silver, at full price.”1 Neither would appear to offer a legal rationale for the validity of the purchase. As long as the buyer had paid the price, it is of no legal significance that she had done so unwillingly or had had difficulty in raising the funds. If she had paid under duress, it would be grounds for the buyer to challenge the contract, not the seller. Before offering my own translation of the phrase, it is necessary to review the principles of Old Babylonian law of sale that would have been applicable to this case. The text emphasizes twice (lines 5 and 18) that the buyer had paid the full price ( m gamer), although the amount is not named. As San Nicolò established, Old Babylonian sale was in principle cash sale: for ownership to pass, it was necessary for the whole of the price to have been paid.2 Hence the ubiquitous reference to payment of the full price in Old Babylonian sale documents. In the present document, therefore, the issue might be incomplete payment, the compromise payment perhaps representing the unpaid balance. The formulation of the claim, however, does not support this interpretation. In litigation reports where the claim is based on a balance outstanding, there is usually an explicit reference to that fact. In YOS 12 320, for example, the seller’s heir sues the buyer of a slave-girl but formulates his claim as follows: When A. bought the female slave from B., my father, A. did not pay him the silver in full (ú-ul ú-ga-am-me-er-um). The balance (i-zi-ib-ti) of the silver of the slave remains in A.’s possession.3 1 CAD M/1 317; and M/2 28. 2 San Nicolò 1921: 7-8, 15-16. 3 Lines 8-13. In this and other Larsa texts, the term ezibtum is used. Cf. CT 8 17a from Sippar, where apiltum is used with the same meaning. Cf. YOS 8 150 for another way of expressing a claim of incomplete payment.

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It could be that mere mention of payment of the full price is sufficient to indicate a dispute over payment, but in our document the actual amount paid is also absent.4 Furthermore, the mysterious clause accompanying the assertion remains unexplained. It implies that the issue in dispute was less prosaic than an unpaid bill. In an earlier study I suggested that the term “full price” could have a second meaning: the full value of the property sold.5 The background to this meaning lies in social laws such as CH 119: If a debt seizes a man and he sells his female slave who has born him children, the owner of the slave may pay the silver that the merchant paid and redeem his slave. CE 39 similarly allows redemption of a house sold by a man who has “become weak” (i.e., impoverished). Redemption is allowed under certain conditions, the main one being that the seller was acting under pressure of debts. I argued that as a necessary corollary thereto, the sale had to be at under-value, as being essentially a disguised forfeiture of the property for debt. Redemption was therefore the right to buy back the property at the same low price for which it had been bought. The opposite side of the coin would be that a sale at full value protected the buyer from the possibility of later redemption. In the Old Babylonian period this occasionally finds expression in sale documents, as in the phrase found at Susa “not redemption, not pledge, full price (ul ipiru ul manzaznu  mu gamru)”; “as a father buys for his son, X has bought . . . in perpetuity.”6 On this hypothesis, the buyer’s oath in the present document would reply to a claim that the purchase price was below the true value of the slave, who could thus be redeemed. A claim of redemption, however, would accept that the sale was valid and that ownership had passed. It would seek to reverse that condition by repayment of the purchase price. The plaintiff’s position in the present

4 Cf. CT 48 19, where the grounds of claim are not specified but the witnesses attest (lines 14-15): i-bu a 1/3 MA.NA KÙ.BABBAR ga-am-ra-am ma-i-ru ú-u-nim-ma. 5 Westbrook 1991b: 90-117. 6 Discussed by Eichler 1973: 78-80, but see Westbrook 1991b: 102-7.

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document is that there was no valid sale, and there seems to be no question of his making any payment to the buyer. The application of a debt-release decree (m arum), however, could also depend on whether full value was paid or not. Such decrees looked at the substance of a transaction, not its form, and were alert to attempts to evade them by legal fictions.7 If, on the one hand, the “sale” were really the forfeiture of a pledge securing a debt that had been annulled by the decree, it would be void, and the price would not be repayable at all. Thus in YOS 14 146, land “which A. bought from B. and C. was reclaimed on the basis of the king’s order, and he (A.) bought it again.”8 If, on the other hand, the sale were for full value, it would be untouched by the decree. A fragment identified by its editor as a duplicate of paragraph 3' of the Edict of Samsu-iluna reads: “[If a house-born slave of(/or?) a citizen of Numia, a citizen of Emutbal, a citizen of Idamaraz,] a citizen of Uruk, etc., or a citizen of the land is sold, given in penal pledge, or left in antichretic pledge for the [full] price (ana  m [gamer]), his release shall not be established.”9 The possibility that a m arum-decree lay behind our document leads us to consider the circumstances in which the sale of the slave was made. The judges require the buyer to swear that she paid the full price ina marutim ina m sirim. CAD offers for m sirum the translation “hard times,” which is equally suitable for marutum. It has a parallel in the phrase “year of hardship” (MU KALAG.GA) found in sale documents at Emar, where persons are forced in a year of famine to sell their property or

7 See, e.g., paragraphs 5 and 7 of the Edict of Ammi-aduqa (edition in Kraus 1984). Special tribunals determined which sales of land were subject to the decree; see Finkelstein 1965. 8 Lines 6-12: a it-ti B. ù C. A. i-a-a-mu i-na LUGAL ib-ba-qí-ir-ma i-tu-ur-ma i-a-am. A claim of invalidity on the same basis may have been behind CT 6 42a, where the sellers (for the second time) claimed land from the buyers but were rejected and forced to swear an oath relinquishing all claims “after Sumu-la-el had established justice.” See Kraus 1984: 51-52. 9 Edited in Hallo 1995: 79-93.

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even their children.10 On this interpretation, the phrase refers not to the buyer’s difficulties but to general conditions affecting the seller. It is significant that, although the purchase in question was from a single individual, who (on the basis of restoration) is specifically designated as a nad tum, the terms of the oath refer to the nad tums as a group.11 It indicates that there was an economic crisis affecting the nad tums that led to a sell-off of their property by the poorer among them.12 This crisis could have been the occasion for a m arum-decree, not necessarily for the whole land but perhaps specifically directed to the local area or to the nad tums as a group.13 The plaintiff’s case would then have been that the buyer took advantage of those adverse circumstances to pay a nad tum less than the true value for her slave.14 In doing so the buyer fell foul of the decree, and the sale was therefore invalid. The court obliges the buyer to take an oath denying that specific allegation. The court expected the buyer to know, at least in her conscience, what would have constituted the full value of the slave, and, if she were uncertain, the gods of the oath would surely know. Rather than tempt divine will on the question, she chose to compromise and pay off the plaintiff with a small sum.

10 See Arnaud Emar 6 nos. 20, 138, 158 (land), and 83 (child). Cf. Arnaud Emar 6 121, where the debtor himself enters into slavery. 11 From her name and independent status, the buyer also is almost certainly a nad tum of Shamash. See Harris 1975: 308. 12 Not all nad tums were rich; Samsu-iluna had to deal with the problem of poverty in their ranks; see Janssen 1991: 3-40. For the exploitation of poorer nad tums by richer ones, see Stol 1998: 100-1; and cf. CT 47 63, lines 1-35. 13 Kraus (1984) does not record evidence of a decree around the time of Samsuiluna 12, when the sale took place. Another possibility is that the courts had a general equitable power to nullify unconscionable bargains. This is a more speculative hypothesis, but one suggested by the social justice provisions of the law codes, unrelated to any specific decree. See Westbrook 1998a: 215-17. 14 Indebtedness may also have been in issue; it is to be noted that m sirum is derived from the noun es rum, one meaning of which is “to press for payment.” CAD creates a separate lemma; see CAD E 332 (es ru A).

3 The Liability of an Innocent Purchaser of Stolen Goods in Early Mesopotamian Law Abstract The laws in Codex Hammurabi that deal with theft reveal several apparent contradictions. It may well be that two different systems of law are the source for these provisions and thus for the tensions among them. When the provisions are separated according to system, however, each set exhibits internal coherence.*

T

he conflicting claims of the owner of stolen goods and a third party who has purchased them not knowing them to be stolen pose a problem for every legal system. In early Mesopotamian sources we find the problem dealt with at greatest length by §§9-13 of Codex Hammurabi: §9 (col. VI 70-VII 47) um-ma a-wi-lum / (VII 1)a mi-im-mu-u al-qú / mi-im-ma-u al-qá-am / i-na qá-ti a-wi-lim / (5)i-a-ba-at / a-wi-lum a u-ulqum / i-na qá-ti-u / a-ab-tu / na-di-na-nu-um-mi id-di-nam / (10) ma-ar i-bi-mi / a-a-am / iq-ta-bi / ù be-el u-ul-qí-im / i-bi mu-de / (15)u-ul-qí-ya-mi / lu-ub-lam / iq-ta-bi / a-a-a-ma-nu-um / na-di-in / (20)id-di-nu-um / ù i-bi / a i-na ma-ri-u-nu / i-amu it-ba-lam / ù be-el u-ul-qí-im / (25)i-bi mu-de u-ul-qí-u / itba-lam / da-a-a-nu / a-wa-a-ti-u-nu / i-im-ma-ru-ma / (30)i-bu a ma-ri-u-nu / i-mu-um / i-a-mu / ù i-bu mu-de / u-ul-qí-im / (35) mu-du-sú-nu / ma-ar i-lim / i-qá-ab-bu-ma / na-di-n-nu-um / ar-ra-aq id-da-ak / (40)be-el u-ul-qí-im / u-lu-uq-u / i-le-qé / * Co-authored with Claus Wilcke. Originally published in Archiv für Orientforschung 25 (1974-1977): 111-21. Used by permission.

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Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources a-a-a-ma-nu-um / i-na bi-it / (45)na-di-na-nim / KU3.BABBAR iqú-lu / i-le-qé If a man, whose property is lost, seizes his missing property in the hands of a man, (and) the man in whose hands the lost property is seized says, “A seller sold it to me, (and) I have bought it in front of witnesses,” while the owner of the lost property says, “I shall bring witnesses who know my lost property,” (and) the buyer brings the seller who sold it to him and the witnesses in whose presence he bought it, while the owner of the lost property brings the witnesses who know his lost property, the judges shall examine their case. The witnesses in whose presence the purchase was made and the witnesses who know the lost property shall declare their knowledge before the god. The seller is a thief. He shall be put to death. The owner of the lost property shall take his lost property. The buyer shall take the money he paid from the estate of the seller. §10 (col. VII 48-61) um-ma a-a-a-ma-nu-um / na-di-in / (50)id-di-nu-um / ù i-bi a i-na ma-ri-u-nu / i-a-mu / la it-ba-lam / be-el u-ul-qí-im-ma / (55)i-bi mu-de / u-ul-qí-u it-ba-lam / a-a-a-ma-nu-um / ar-raaq id-da-ak / be-el u-ul-qí-im / (60)u-lu-uq-u / i-le-qé If the buyer does not bring the seller who sold it to him and(/or?) the witnesses in whose presence he bought it (while) the owner of the lost property brings the witnesses who know his lost property, the buyer is a thief. He shall be put to death. The owner of the lost property shall take his lost property. §11 (col. VII 62-VIII 3) um-ma be-el u-ul-qí-im / i-bi mu-de / u-ul-qí-u / la it-balam / (VIII 1)sà-ar / tu-u-a-am-ma id-KI / id-da-ak If the owner of the lost property does not bring witnesses who know his lost property, he is a liar and has made a false accusation. He shall be put to death. §12 (col. VIII 4-13) um-ma na-di-na-nu-um /

(5)

a-na i-im-tim / it-ta-la-ak / a-a-

The Liability of an Innocent Purchaser of Stolen Goods

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a-ma-nu-um / i-na bi-it / na-di-na-nim / (10)ru-gu-um-me-e / di-nim u-a-ti / A.RA2 5-u i-le-qé If the seller has died, the buyer may take five-fold the claim of that very case from the estate of the seller. §13 (col. VIII 14-24) um-ma a-wi-lum u-ú / (15)i-bu-u la qer-bu / da-a-a-nu a-danam / a-na ITU.6.KAM / i-a-ak-ka-nu-um-ma / um-ma i-na (20) ITU.6.KAM / i-bi-u la ir-di-am / a-wi-lum u-ú / sà-ar / a-ra-an di-nim u-a-ti / it-ta-na-a-i If that man’s witnesses are not near at hand, the judges shall set a term of six months for him, and if he did not bring his witnesses hither within six months, that man is a liar. He shall bear the penalty of that very case. The law presented in these paragraphs of CH gives rise to a number of problems which have been studied at great length by Müller, Koschaker, San Nicolò, Driver and Miles, and Petschow.1 All these authors agree in stressing two points: (a) the obvious contradiction between the death penalty applied in §§9-11 and the mere ten-fold indemnity to be paid by the thief of private property according to §8; (b) the discrepancy between the liability of the thief in §9 to the buyer for the “money he paid” (kasap iqulu) and that of his heirs in §12 for five times “the claim of that very case.” Müller, Koschaker, and San Nicolò sought to explain the contradiction in the first case by the assumption of two different levels in CH, §§9ff. representing the earlier, and §8 a later stage in the development of the law. They were followed with some hesitation by Driver and Miles, whereas Petschow, while not excluding this possibility, suggests “daß grundsätzlich die Todesstrafe für Diebstahl . . . galt wie auch in §7 und §§9ff., daß aber in der Praxis regelmäßig Kompensation in Vermögenswerten erfolgte, deren Festsetzung durch den Bestohlenen mit dem Druckmittel der Kapitalstrafe in beliebiger Höhe erfolgen konnte.”2 1 Müller 1903: 81-89; Koschaker 1917: 95-100; San Nicolò 1921: 176-204; Driver and Miles 1952: 95-105; and Petschow 1965: 149-51. 2 Petschow 1965: 150.

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In the second of the two cases, Koschaker again proposed the existence of two levels, this time with §12 belonging to the later one: “Ich glaube daher die Behauptung wagen zu dürfen, daß §12 in das System des §§9f. beschriebenen Anfangs nicht hineinpaßt und darin scheint mir ein gewichtiges Argument für seine Überarbeitung durch die Redaktoren zu liegen . . . . Wie aber §12 in der Fassung der Vorlage ausgesehen hat, entzieht sich jeder Beurteilung.”3 Again he is followed by San Nicolò and tentatively by Driver and Miles. Petschow does not touch upon this question. None of the authors found a ratio for the five-fold indemnity of §12, although Koschaker came very near to the solution that we shall offer in pointing out the connection between §12 and §8, namely, that both provide fines based on the number five.4 In our view the true relationship of §§9-11 to §12(-§13) can only be appreciated when seen in the light of that of §6(-§7) to §8, which deal with theft and receiving stolen goods. §6 (col. VI 31-40) um-ma a-wi-lum / NIG2.GA DINGIR / ù E2.GAL / i-ri-iq / (35)awi-lum u-ú / id-da-ak / ù a u-úr-qá-am / i-na qá-ti-u / im-u-ru / (40) id-da-ak If a man steals property belonging to a god or the state, that man shall be put to death. And he who has received the stolen property from his hands shall be put to death. §7 (col. VI 41-56) um-ma a-wi-lum / lu KU3.BABBAR / lu GUKIN / lu IR3 lu (45) GEME2 / lu GU4 lu UDU / lu ANE / ù lu mi-im-ma um-u / i-na qá-at DUMU a-wi-lim! (text: LUM) / ù lu IR3 a-wi-lim / (50)ba-lum i-bi ù ri-ik-sa-tim i-ta-am / ù lu a-na ma-a-ru-tim / im-u-ur / (55) a-wi-lum u-ú / ar-ra-aq id-da-ak If a man buys any silver, gold, slave or slave-woman, ox, sheep, or ass, or anything else from the hand of a “son-of-a-man” or a man’s slave without witnesses and contract—or if he received it for custody—this man is a thief. He shall be put to death. 3 Koschaker 1917: 81. 4 Koschaker 1917: 98.

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§8 (col. VI 57-69) um-ma a-wi-lum / lu GU4 lu UDU / lu ANE lu A / ù lu giMA2 (60) / i-ri-iq / um-ma a i-lim / um-ma a E2.GAL / A.RA2 30-u / ina-ad-di-in / (65)um-ma a MADA2 / A.RA2 10-u i-ri-a-ab / umma ar-ra-qá-nu-um / a na-da-nim la i-u / id-da-ak If a man steals an ox, sheep, ass, pig, or boat—if it is property of a god (or) if it is property of the state—he shall give (it back) thirty-fold. If it is property of a subject 5 he shall restore (it) tenfold. If the thief in question has not the means to pay (the indemnity) he shall be put to death. There is a sharp contrast between §6 and §8, the former providing the death penalty for theft of goods belonging to the temple or the state, while the latter fixes a pecuniary penalty—remarkably high—to be paid by the thief for apparently the same facts. Equally, §8 rules ten-fold damages in the case of theft of private property while the death penalty is decreed by §§9-11 for acts to be regarded as simple theft.6 From D. H. Müller7 onwards, commentators have sought to explain the different provisions of §6 and §8 in terms of the different kinds of temple/state goods involved, since they are described as NIG2.GA (= makk rum/namk rum) in §6 but by way of an enumeration of movable goods in §8. Koschaker considered those of §6 as “unter besonderem Verschluß,” 8 and Driver and Miles regarded them as “property . . . sacra . . . stolen from within the precincts of the temple or palace whereas in §8 it is described as various cattle or a ship, i.e. movable property kept without the precincts and so is only profana.”9 This division between res sacrae and res profanae is still maintained by Petschow,10 but San Nicolò (seemingly

5 We follow the opinion of Yaron 1969: 83-95, and especially of Kraus 1973: 92-117, slightly modifying his view of 1958: chapter 10 (that muk num in this context means no more than private person, as opposed to state and temple). 6 See Müller 1903: 81ff.; Koschaker 1917: 74; and San Nicolò 1938: 213r. 7 Müller 1903: 79. 8 Koschaker 1917: 74 n. 2. 9 Driver and Miles 1952: 81. 10 Petschow 1965: 149-50; and Petschow’s contribution to Klíma et al. 1971: 258.

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overlooked by Driver and Miles but quoted by Petschow)11 had already shown in 1932 that §6 is the “ältere Normierung des gleichen Tatbestandes [sc. like §8] . . ., die den neueren Satzungen vorausgeschickt wurde.”12 His argument was simply that NIG2.GA (makk rum/namk rum) is in no way restricted to res sacrae but is any property. To this we may add: (i) nowhere in §6 is special custody or the temple/palace precincts mentioned, and nothing in §8 points to the goods being stolen outside sacred territory; (ii) res sacrae stolen from within the temple precinct may also be movable property; and (iii) there is a stylistic difference between §6 and §8.13 Our conclusion is that we are indeed faced with two separate sets of laws dealing with theft and related offenses: on the one hand §6(-§7) and §§9-11, which are based on the death penalty, and on the other §8 and §12(-§13), which are based on a scheme of multiple damages. Whatever their exact historical or geographical relation, the two sets of laws plainly derive from two different systems of law. Accordingly we see little point in attempting to elucidate the meaning of individual paragraphs from one group in terms of paragraphs from the other group. Instead we shall attempt to analyze the working of each system separately and the function of the individual paragraphs within the system.14 Beginning with the multiple damages group, we have seen in §8 that simple theft is punished with a ten-fold penalty while theft of temple or palace property is punished with thirty-fold. To these may be added §265, where the shepherd who changes the mark on animals entrusted to him and sells them must pay the owner ten-fold damages. In §12, we are told that the purchaser of stolen goods may take five-fold “the claim of that very case” from the estate of the seller if the latter is deceased. Our explanation of this rule is that the innocent purchaser is being allowed to recoup, at least in part, the payment of multiple damages that he himself has had to 11 Petschow 1965: 149-50 n. 21. 12 San Nicolò 1932: 327-28; see also Jackson 1975: 72-73. 13 §6 is formulated with the utmost economy of words but leaves no doubt as to its meaning. On the other hand, §8 gives a list of individual items, where §6 used only one word (NIG2.GA = makk ru/namk ru), and it is not clear from the wording itself if the enumeration in §8 is intended to express the idea of tangible movables in general. This is the intention in §7, but the meaning there is made clear through the addition of u l mimma umu “or anything else.” 14 See Koschaker’s statement above (with n. 3) and below.

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make to the owner. “That very case” is the one in which the owner has succeeded in exacting from the purchaser not only restitution of the goods but also multiple damages. Thus the multiple damages system applies in principle to the purchaser, albeit innocent, of stolen goods as much as to the actual thief. But the purchaser can, of course, recover this payment from the seller/thief no less than the price paid for the goods that he has forfeited. §12 presents us with this system at work but deals with a further complication. The seller/thief is dead, and it would be unfair to hold his heirs fully responsible for the personal liability of their late father. The paragraph therefore attempts a compromise by letting the two innocent parties share the burden of the ten-fold damages which the owner is entitled to receive according to §8. On this basis we can understand the enigmatic provisions of §13. We are not told, whether it concerns the owner or the purchaser, but the latter seems to be the most suitable candidate, both because of the context of the paragraph and because it is more likely that the witnesses of the sale would be itinerant and therefore not at hand. The purchaser, then, must “bear the penalty of that very case.” The phrase is unsuitable for the death penalty,15 which CH does not hesitate elsewhere to impose in explicit terms. But it is to be expected in a case where the penalty that the thief would otherwise bear is variable, e. g., being either ten-fold or thirty-fold. We conclude, therefore, that §13 also fits into the system of multiple damages, inasmuch as it relates to the purchaser of stolen goods. We must now turn to the contemporary private legal documents to see whether anything like the system posited by us existed in practice.16 That a system of multiple damages did exist in practice as a penalty for theft is attested by documents coming from the third dynasty of Ur, some three hundred years before the Code of Hammurabi. In NSG 186 (edited in Falkenstein 1956-57: vol. 2, no. 186), there is a mention of ten-fold restitution of sheep which appear to have been stolen. In UET 3 25 fish owned by the state and embezzled by an official are to be returned fourteen-fold, and another entry on the same tablet requires the restoration of an unknown amount of money for stolen asses which were temple property. 15 See already Koschaker 1917: 99-100, referring to an even earlier article by Carl Stooß. 16 Leemans (1957) has collected a number of documents relating to our topic; see below on UCP 10/1 107 and n. 36.

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It is from the same period that we find the first of our documents relating to the consequences of purchasing stolen goods. MVN 3 219 comes (according to its editor) from Nippur and is available in two slightly differing formulations. We shall follow the tablet, adding the variants on the envelope in brackets.17 3 u d u n i g2 -sa10 -b i (/
) 1 (gi n 2) 15 e k u3 .b ab b ar / Bu-kà-núm d am .g ar3 / DINGER.E2 ù I-di-lum-ra / i n -n e- i-s a10 / (5)Na-a-u-bal KAB-g i -b i -i m / udu-bi udu- zu - a b a -an -k u4 / Bu-kà-núm ù Na-a-u-bal / IMzu b a- an -k u4 - re -e / 7 g i n2 k u3 .babbar a2-d a- u d u - e3 (/a2 -d a a2 ) b a-l a2 / (10)1 g i n2 15  e k u3 .babbar (/
) / n ig2 -sa10 -u d u -e3 b a-l a2 / DINGER.E2 ù I-dì-lum / s u-s u -d e3 / Na-a-u-bal-ra(/
) b a -an ( i)-ku4 -r e- e2 / (15)mu-l u g al -b i i n -p a3 -d e3 - e2 / m e - ki-lul-la (a b ra ) / m A- ri - a k u ru  d a / m d Ut u - an -d u l3 (d a m-g ar 3 ) / m Lu2 -g i ri x (KA) -z al (IM) / m Lu2 - k al l a (k u3 -d i m) / (20) m DA- an- ZI.BU NIM(/ar3 - ar3 ) / lu2 -i n i m -m a- b i -m e / i t i  eg u r10 -k u5 mu d Am ar - d s u’en l ug al 3 sheep, their purchase-price being 1 shekels 15 grains of silver, Bukanum, the merchant, has bought from DINGIR.E2 and Idi-ilum. Na ubal is the guarantor.18 17 The symbol (/
) in the transcription indicates that the sign followed by it was not written on the envelope. The line divisions of the envelope which differ from those on the tablet are not indicated. As tablet and envelope are completely preserved, any sign outside the brackets is found on both tablet and envelope unless it is followed by the symbol (/...) indicating a variant reading of the envelope. Signs inside the brackets are to be found only on the envelope. 18 On the guarantor appearing in contracts of sale and hire, see Falkenstein 1956-57: vol. 1, 125-26; and vol. 3, s.v. lu2 -g i-n a -ab - tu m . See also Szlechter TJA 68, line 7. This is the most frequent writing, but as Falkenstein notes, g i - is sometimes replaced by k i -; this is also the case in CT Nebraska 63, lines 8-12; DU (= túm) is written for tum in UET 3 47, line 7, and in NRVN 1 214, line 8. Clearly used in the same function is the word l u2-KA-g i -n a which is nowhere fully preserved (but see MSL XII 137: lú = a IV 272-273, KA -g i-n a = mu-ki/kinnu; KA -g i -n a = mu-qi/qip-pu), but which is attested in UET 3 19, line 2 (reverse), [l]u2 - KA -g i -n a ; in NRVN 1 216, line 10, l u2-KA -[g i -n a ]; and in NRVN 1 217,

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These sheep have been “turned into” stolen sheep.19 Bukanum and Na ubal have been “turned into” thieves.20 Seven shekels of silver have line 6, l u2-KA -g i -[n a] (this man has sealed the contract). Compare also the expression PN i b2-g i -n e/n e2 in UET 3 33, lines 11-12 and in NRVN 1 104, lines 15-16. The third word for guarantor that is found in Neo-Sumerian documents is the KAB -g i -b i - i m of our document, which also appears in NRVN 1 213, line 8, [K]AB -g i -b i- im (contract sealed by him and the seller); cf. MSL XII 58: OB ProtoLú 697, KAB -g i - en / n a , with note by Civil 1969 (= MSL XII): 72-73. The function of the guarantor is best described by Falkenstein (1956-57: vol. 1, 126): “der für die Erfüllung eines Vertrages einsteht und auch nach dessen Erfüllung im Falle einer Vertragsanfechtung aufzutreten hat. Das g i -n a- tu m ist dann der Betrag, der im Falle, daß der Vertrag nicht erfüllt wurde, zu leisten war.” Recently published documents further inform us that he seems to be a member of the seller’s party in contracts of sale who vouches for the correctness of the sales since he is mentioned several times besides the “man who weighed the silver,” who vouches for the correct payment by the purchaser; see MAOG 4 191, line 7, PN k u 3 -d im2 k u3 -l a -a b i - im (see Falkenstein 1956-57: vol. 1, 125 n. 3); NRVN 1 213, line 9, PN d am g ar3 k u3 - l a2 - a-b i - i m; NRVN 1 216, line 8, PN x-[x x] (?); and CT Nebraska 63, lines 12-13, PN k u3 -d im2 k u3 -l a2 - a-b i -i m. UET 3 19, lines 16-17, [d am] -g a r3 si m u g -b i / [x x]- a-n i (= PN?) could be a similar expression. This man is mentioned also without the appearance of a guarantor to the sale in Ur-III documents and earlier; see SRU 57:7 and Krecher ZA 63 no. 19:10-11, and the commentaries in both cases. 19 This phrase seems to mean that the sheep had been found (by the court?) to be stolen, though not by the purchasers. See also nn. 20-21. 20 For l u2 -IM - zu / zu “thief,” see Falkenstein 1956-57: vol. 2, 74 n. 6, and the references for “to turn into a thief” collected by him (1956-57: vol. 3, s.v. l u2 - i m - zu b a- an -k u4 -(r e- e ); thus there is no case-morpheme to be expected (at least in script) after IM-zu. The reading of IM in this word may be n i2 , since the very late source TCL 6 35, col. II line 23, of the series Erimhu glosses it with n i . But we know of no etymological explanation of n i2 in this place. Therefore Falkenstein’s interpretation (1956-57: vol. 2, 74 n. 6) of l u2 -im - zu as “ein substantivierter Satz ‘der Mann hat gestohlen’” seems still probable. Without any analogy or phonetic reason we see no need to consider a possible neo-Sumerian *n i2 -zu as developed from the Old Sumerian word for thief, n u - zu . This is attested in the Abu alabi and Adab versions of the “Instructions of uruppak” as compared with the OB version, line 34; see OIP 99 59, col. III line 5 (copy no. 256 III 5 [Abu alabi ]; photo of the Adab tablet on p. 58 fig. 30 II 10b-12 = Luckenbill 1930: no. 56 II 4b-6 [Adab]; Alster 1974: 11, 20, 36/53 line 34 [OB]): Abu alabi nu-zu uum? na-nam Adab nu-zu [pi]rig? na-nam Old Babylonian IM-zu pirig? na-n[am]/na-am3

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been paid for the crime committed21 regarding the sheep. 1 shekels 15 grains of silver have been paid as the purchase-price for the sheep. DINGIR.E2 and Idi-ilum have been made obligated22 to Na ubal to restore (the money paid). (To do so) they have sworn by the life of the king. (Six witnesses); they are the witnesses for it. (Date: –/XII, Amarsuena, Year 1). Bukanum, the merchant, is very clearly an innocent purchaser of sheep which are later found to be stolen property. He has been found guilty of “theft” in this extenuated sense and has had to restore the sheep to their owner. Most probably he, or rather his guarantor, also had to pay the fine of seven shekels of silver. As the document is not at all interested in this stage of the case, it is simply summarized by the words “turned into a thief.” The second stage is that the purchaser recoups from the guarantor the price he had paid and perhaps the seven shekels if the guarantor did not pay it directly. The machinery of payment is not described, since the document is only interested in the fact that the sums have been paid. The third stage, that with which the document is actually concerned, is the obligation of the sellers to restore the money to the guarantor. The legal principle behind this case, then, is the same as that which we have posited for §§12-13. The innocent purchaser has been obliged not Abu alabi Adab Old Babylonian

ul-dab5 u3-dab5 ul-dab5

geme2 geme2 sag

na-nam na-nam2 na-nam

“The thief—he is verily a dragon?/lion?—after being caught is certainly a slave(woman).” We might note en passant that n u - zu “thief” is the second attested n u -compositum with a verbal base (see Edzard 1963: 102ff.). For the rather broad meaning of the word “thief” in ancient Oriental sources, see San Nicolò 1938: 212-13; Falkenstein 1956-57: vol. 2, 74 n. 6; Finkelstein 1969b: 79; and Petschow 1975: 248. 21 We assume the term a2 -d a to be related to za - a2 -d a in Sollberger Corpus Ukg. 6.3.11 and 6.3.24, for which see Falkenstein 1957-58: 91; and Hruka 1973: 121. Its relationship to n i r -d a =  rtu “delict” (see Falkenstein 1956-57: vol. 2, 129-30; vol. 3, 7 and 149; Sjöberg 1973: 34 [line 95] and 45; and MVN 3 342) remains unclear. 22 Note the remarkable use of the verb k u4 in this sentence: that which the people are turned into is construed as a LAL-ed - e form. (On the latter, see Edzard 1967: 41-44.)

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only to restore the stolen article but also to pay heavy damages and subsequently seeks to recoup his losses from the seller(s). The fact that the purchaser’s liability is not based on any mens rea, but is strict, is symbolized by the words “turned into a thief.” The same distinction appears to be behind the phraseology of a northern Babylonian document contemporary with Hammurabi: UCP 10/1 107, from the time of Ibalpi’el II and coming from Nerebtum, which reports a trial for theft.23 Here the thief—apparently a free man—admits his crime; he loses his freedom, at least in part, since the judges give him to the man from whom he has stolen a-na ki-it-ti-im. Finkelstein translates “for penal servitude” (relating this expression to kinattu “servants”?), but we suggest that it is an affirmative clause meaning “truly,” in actual fact,24 i.e., the thief is not merely fixed with constructive liability by reason of his possession of the stolen goods. We also suggest the reading ziz2 for a 2 , thus yielding zi z 2 -d a rather than a 2 -d a, and the reading ki-a!-ti-im rather than ki-it-ti-im. One further point about MVN 3 219 is that there is no express mention of multiple damages. It should be noted, however, that the denominator for this purpose will not necessarily be the same as the price paid by the purchaser of the stolen goods. It is also possible that the monetary penalty in this case was a fixed sum, as for example, in CU 25, CL 9, and CH 259. At all events, there is no question of the death penalty here; the consequences of theft are dealt with in purely financial terms. Other documents from the neo-Sumerian period seem to reflect a somewhat different procedural machinery from that which we have seen in MVN 3 219 and posited for CH 12-13. In NSG 127 (edited in Falkenstein 1956-57: vol. 2, no. 127), A. in reply to a charge of theft of sheep states that he has bought them from B., i.e., sets up a defense of innocent purchaser. B. denies any knowledge of the sale, but A. is able to produce witnesses. A. and one of the witnesses have to take the oath. Subsequent proceedings are not recorded, but the document shows at least the purchaser’s ability to join his seller to the action in which he is the defendant, and it suggests that if the purchaser can prove his accusation, the liability 23 Translated in ANET3 455. 24 See CAD K 472, s.v. kittu A 2. Another possibility is that ana kittim here means “as rightful property.”

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for the penal damages will shift from him to the seller, although he still may have to restore the stolen goods. More explicit is the tablet, Kramer AV (= AOAT 25) 447 no. 10 (see Sollberger 1976), where a man obviously accused25 of theft promises under oath to provide “the thief of Lunanna’s stolen sheep,” or else he himself would be the thief. If the accused’s liability arose from his possession of the stolen goods, then the text shows the means by which he could relieve himself of that liability.25a The same pattern is found in two northern Babylonian documents from Old Babylonian times. In a letter to a resident of aduppum, modern Tell armal, the sender asks the addressee to send him two persons because “cattle belonging to B. were lost, and they have been found in the possession of D. and the merchant . They said, ‘There are sellers who sold them to us; W. and L., who sold them to us, live in aduppum.’ Now these two people shall answer their opponents.”26 It seems that the local authorities— not the purchasers, it is to be noted—are trying to get hold of the sellers in order to confront them with the charges made in connection with the property they sold. Nothing is mentioned of documents or witnesses; it is possible that the accused have produced witnesses of the sale. In the light of the facts of the case, D’s and ’s statement is tantamount to an accusation that W. and L. had stolen the cattle. In the second document, AfO 25 72-83,27 the purchaser actually succeeds in producing the seller, who admits the sale and thereby frees the purchaser from the claim brought against him (lines 19-21: qá-ti owner itti purchaser it-ta-sà-a). But the seller does not expressly confess the theft, and presumably, the case proceeds as between (purported) owner and seller. The final document that requires consideration in this context is TIM 4 33 from Malgium(?) from the time of Kuduzulu of Elam.28 According to this tablet someone stole some sesame and brought it to a woman. This 25 The verb is b a -d a - l a2 (cf. Akkadian ubburum); the accused is therefore not yet convicted. 25a An Old Sumerian Document (SRU 98) mentions an ordeal “because of a stolen slave from Isin” (b ar - sag - zu - a -INki-k a ); for the missing second -k a, see SRU 99, line 9, and passim in this document. 26 Goetze, Sumer 14 no. 28, lines 4ff (see Goetze 1958). 27 See Kümmel 1974-77. 28 On the approximate date (before Hammurabi 30), see van Dijk 1970: 63ff.

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woman in turn passed the sesame to a harlot. The owners were able to trace the sesame to the house of the first woman. She and the thief are brought before the judges. He admits the crime, but she denies any knowledge of the theft. As her daughter assists her with an oath, she is released. The thief is condemned to a payment of (most probably according to the traces) ten shekels of silver, and [if he cannot pay(?)] he shall be put to death.29 A number of points should be noted: (1) the thief is available, and proceedings are taken against him; (2) the penalty for theft is pecuniary, although the consequences of insolvency are not; (3) the ultimate receiver of the stolen sesame is not mentioned at all among the persons accused— she does not even face a claim of restitution, but this may be because the goods stolen were fungibles; and (4) in the case of the seller of the stolen goods, a distinction is made between innocent receipt and receipt of goods knowing them to be stolen, and on this basis she is able to avoid liability. Thus the burden of satisfying the owners of the stolen goods falls on the thief alone and, more significantly, the risk of the thief’s inability to discharge this burden falls on the owner alone. We should mention in addition a document from Tell armal, JCS 14 28 no. 60 (see Simmons 1960) from the time of Ibalpi’el II. A man evidently accused of theft claims that his partner gave the goods to him and subsequently fled to Babylon. The accused is then condemned to pay a certain sum which in part is provided by the mayor of his home town. It is then ruled that if the missing partner turns up, the owner of the lost property may seize him, but the partner who has already paid damages is not allowed to sue his fraudulent partner (perhaps until the owner of the lost property is fully paid—the text is fragmentary). Thus the innocent receiver was held liable only for part of the owner’s claim, leaving the owner the responsibility of recouping the rest from the thief. The text does not state what proportion of the claim the payment amounted to, but it seems most likely that the limits of liability in this case were affected by the special rules of the law of partnership. For example, if it were considered that the innocent partner was only a part-owner of the goods (i.e., to the extent of his share in the partnership), it might further be considered right that he

29 See Petschow 1975: 248.

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should be liable only in part (to the extent pro rata of that share) for liability attaching to partnership assets. The innocent partner would of course have a claim against the defalcating partner and probably not only on losses arising out of the present case, but the owner is expressly given priority for the satisfaction of his claim to the residue of damages. On this interpretation, the liability of an innocent partner would be more strict but at the same time narrower than that of an innocent purchaser: he is liable for damages arising from stolen goods not acquired by himself and possibly without his knowledge, but only to the extent of his interest in the partnership. Having surveyed the relevant source material, let us pause to consider some of the policy aspects involved in imposing liability on an innocent purchaser. The typical situation in which a legal system has to render justice is where the stolen property has been bought and resold by a number of persons, is discovered in the hands of the ultimate purchaser by the original owner, but by this time the thief has either disappeared or, if found, has already dissipated the proceeds of his crime and is insolvent. Most legal systems require the innocent party to restore the article to its owner, at least if it is in a recognizable form, but how does a system whose law of theft provides both retribution and compensation by means of multiple restitution deal with such a situation? On the one hand, the interest of the owner of the stolen goods is to seek his remedy against the person most able to pay, which usually means the purchaser, and it is also most convenient for him to be able to claim his penal damages in the same proceedings as his claim for restitution of the stolen article. On the other hand, the interest of the purchaser is that he should be able to buy freely on the open market without lengthy investigations of title. And it is in the interest of the state, both for the suppression of crime and the encouragement of commerce, that the law should distinguish between innocent receipt of stolen goods and theft or complicity therein. On this view the innocent purchaser should not bear the burden of the thief’s absence or insolvency. Any rule of law therefore is likely to reflect a compromise between the various conflicting interests. The documents of legal practice appear indeed to offer several differing compromises of this nature, while our only legislative source on this problem itself represents an even more complex situation, where compromise is required between the owner, the innocent purchaser, and the innocent heirs of the seller/thief.

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In our view the differences in the documents show different rules at work only because the law, in its search for a compromise, offers the innocent purchaser a choice of tactics. The law, we suggest, was as follows: the innocent purchaser in whose hands stolen property was found was primarily liable, apart from specific restitution, to pay multiple damages for the theft. He could shift this liability to the actual thief or possibly the handler,30 who was usually (though not necessarily) the person who sold the goods to him, but the burden of proof would be on the purchaser. The purchaser might well be reluctant to make an accusation of theft against the seller if there were insufficient evidence, in which case he might face a further penalty for false accusation, or if the seller were someone with whom he had long-standing commercial relations. In such circumstances he would prefer to accept liability as a “constructive thief” and seek to recoup his losses in a contractual action against his seller for failing to pass good title, assuming that his contract of purchase allowed for this sort of possibility. Thus in MVN 3 219, where there is no suggestion that the sellers actually stole the sheep, the action is basically contractual; whereas in the Tell armal text (JCS 14 28 no. 60), where there is a clear implication of the seller’s complicity in the theft, the help of the public authority is enlisted to investigate the matter. In the first case, the purchasers are constructive thieves and bring a separate action against their sellers; in the second the purchasers seek to avoid primary liability by accusing their sellers. And in TIM 4 33, where the real thief is caught by the owner’s efforts, the innocent purchaser is not involved at all. In certain cases the law gave the purchaser a third possibility. According to CH 279, in the case of sales of slaves the seller must satisfy claims made against the purchaser (reverse col. XXIII 70-71 na-di-na-an-u baaq-ri-u i-ip-pa-al). As has been shown,31 similar phraseology occurs in late Old Babylonian sale contracts in the contractual term that the seller is responsible for claims (to the object of the sale), often with the rider “according to the royal decree.” It is reasonable to suppose, then, that CH 279 30 That is, a person who receives stolen goods, knowing them to have been stolen, or who is responsible for disposing of them; cf. English Theft Act, 1968, s. 22. French: receleur. German: Hehler. 31 Wilcke 1976: 260-62 with n. 17.

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originally represented just such a decree. In effect, it inserts into the contract warranty of good title, what in modern law would be called a statutory implied term, but this term imposes upon the seller a more active duty than merely paying compensation for its breach. The way it worked in practice is shown by the tablet published Kümmel (AfO 25 72-83), which concerns an action over the title to a slave and undoubtedly turned on such a term in the purchaser’s contract. The purchaser can oblige the seller to step into his shoes as defendant against the original owner and thereby free himself from liability altogether (except perhaps for specific restitution if the seller’s defense fails). To achieve this, as it appears from the text, the purchaser must actually produce the seller, and the latter must admit the sale or have it proved against him. Thus the primary liability is still on the purchaser, i.e., he bears the risk of the seller being unavailable, but at least he avoids the danger of making a false accusation of theft against the seller. Indeed, as Petschow has pointed out,32 the procedure in CH 279 applies to claims in general concerning the object of the sale and not necessarily to claims based on an accusation of theft.33 In summary, the purchaser’s strict liability is tempered by his ability either (i) to avoid the penalty altogether by producing the real thief in his place, or (ii) to sue the seller to recoup the payment of the penalty, or (iii) where specially decreed or even by contractual agreement,34 to. require the seller, thief or not, to replace him as defendant. CH 12, with which we began this discussion, seems to belong to the second case, although the very ambiguity of the situation, where it may be impossible to ascertain the real thief, the late seller, or some unknown seller to him, may be one reason for the compromise ruling. Although we call the claim contractual, it is unwise to press this analogy too far—in particular, we do not know if contractual liabilities inevitably survived their bearer in Mesopotamian law. 32 Petschow apud Wilcke 1976: 260-61 and n. 17. 33 Wilcke’s remark (1976: 260-61 n. 17), to the effect that §279 does not cover the case of theft because it does not impose the death penalty as in §9, should now be read in the light of our discussion of §§6-13 in terms of separate sources and in particular of the possibility that §§9ff. are intended to demonstrate points of principle and procedure and not to fix a certain punishment for theft; see below, esp. n. 35. 34 As in contracts of sale from Dilbat, Larsa, and Ur; see San Nicolò 1921: 138ff. and 196 ff.; Matou 1950: 44-47; and Kraus 1955: 121ff. For the late Old Babylonian contracts, see Wilcke 1976: 260ff.

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It remains for us to consider the group of laws in CH 6-7 and 9-11, where the death penalty is the punishment both for thief and purchaser of the stolen goods. The paragraphs in question are not internally consistent, for if §§9-11 impose the death penalty for simple theft, there is absolutely no need to have special provision for the theft of temple property as in §6, or for any other form of aggravated theft, for that matter. Furthermore, it. would be an extraordinarily harsh legal system that imposed the death penalty in every case of theft. A closer perusal of §§9-11, however, reveals the somewhat theoretical character of its provisions. In §9 there is the simplistic equation of seller with thief, without further consideration of the circumstances. And such a neat case, where the owner receives his property and the buyer his money, will hardly ever occur in practice. The seller may be absent, insolvent, or dead, or some other obstruction will prevent the innocent purchaser from being satisfied in this manner. The owner may require more adequate compensation than simple restitution if his property has deteriorated in the hands of the thief or the buyer, or if he has incurred costs for the rental of a substitute. These are the kinds of practical considerations by contrast that are reflected in the provisions of §12 and §13. We suspect, therefore, that in spite of its casuistic form we have before us in §9 an intellectual construct, a simple or “standard” case designed to illustrate basic principles. If one is constrained to use casuistic formulation, then the best way to formulate a general principle is surely to state the simplest possible case. Our interpretation applies equally to §§10-11, which are altogether too neatly balanced, considering, as an abstract discussion should, all aspects of the theoretical problem: if the purchaser were in bad faith, if the alleged owner were in bad faith, and if both were in good faith. Furthermore it may be that the prime interest of whoever compiled CH lay, as far as this legal problem was concerned, not in the substantive law but in the procedural machinery employed in the courts. Thus §§12-13 could be added to the basic discussion in §§9-11 to illustrate the procedure in more complex situations without any concern over their differing penalties for theft.35 35 Confirmation that the whole of §§9ff. is somewhat didactic in purpose comes from the explanatory asides (only found elsewhere in CH in §7): §9, col. VII lines 38-39, n din num arr q “the seller is a thief”; §10, col. VII lines 57-58, ayy m num

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Even if §§9-11 is an academic discussion, however, the question remains as to why the death penalty was adopted, and the question applies equally to §6 and §7, which show no outward signs at least of being merely theoretical. In the sources relating to our problem we find no hint of the death penalty; the principle of a pecuniary penalty for theft prevails throughout. There is only one text that is not totally in harmony with the others: TIM 4 33, imposing the death penalty (if correctly interpreted) in the case of the thief’s insolvency, as opposed to UCP 10/1 107 and NSG 203 (lines 1-6), where the thief is given into the power of the person from whom he stole. But this exception is in accord with §8 of CH, although certainly earlier than the code and from an area not under the jurisdiction of Babylon. On the other hand, the sources are unevenly distributed: they are found in small groups with large gaps of time and space in between. Those from southern Babylonia come from the Ur-III period, while the sources from northern Babylonia are all Old Babylonian.36 The latter are in two groups: arr q “the purchaser is a thief”; §11, col. VIII lines 1-2, sar tuamma id-KI “He is a liar and has made a false accusation”; §13, col. VIII lines 21-22, awlum  s r “this man is a liar”; and §7, col. VI 55-56, awlum  arr q “that man is a thief.” This type of phrase should not be equated with the occasional clause in justification of conviction of the aum-type, which always repeats facts mentioned in the conditional clause of the paragraph; see §107, reverse col. II lines 9-10; §136, reverse col. VI lines 68-70; §146, reverse col. VIII line 52; §194, reverse col. XVII lines 3538; §232, reverse col. XIX lines 87-89; §235, reverse col. XX line 18. 36 If we look at the Old Babylonian documents related to theft collected and studied by Leemans (1957), we find three coming from northern Babylonia which are later than Hammurabi. First, in CT 8 6b a man who had “stolen and eaten” (a . . . i-ri-qú-ma iku-lu), i.e., taken in possession and harvested a field, swears not to claim this field again. There is no penalty mentioned nor any compensation for the crops. Second, TLB 1 144 shows a person standing bail for a robber and thus freeing him from the place where he is confined. Lines 34-36 read: u -d u8! -a! PN2 d u m u PN3 / PN4 d u m u PN5 / il-qé-ma! (text: E) / a-ar pa-du ú-e-í-u; “if PN4, does not bring PN2 (to the court?) within five days he shall answer his (i.e., his own or that of PN2?) liability (pí-a-as-sú i-ip-pa-al)”; cf. the neo-Sumerian document ITT 3/2 6225, discussed by Falkenstein (1956-57: vol. 1, 117 n. 2, and 135). Third, TCL 1 164 deals with lost cattle found in the hands of three men (PN1/2/3) who are brought before the abb  bim in Babylon and report to them (we read line 14 with AHw 146-47, under dab bu[m], [id]-da-ab-ba-a-ma, but perhaps sing. + ventive). They have to replace (ri-a-ba-am) the cattle. Leemans’ suggestion that ri bum here includes also a fine

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documents slightly earlier than Hammurabi or contemporaneous with his early years all coming from the left bank of the Tigris, i.e., broadly speaking the Diyala region,*and documents later than Hammurabi coming from

*

finds support in the reading and restoration we suggest for lines 17-24: [m]A-wi-ili[t]ar [ . . . ] / [d u m u ] Ib-ni-dama [ . . . ] / (19)q[á-ti PN1] / d u m[u PN2 issu-ma] (or: q[ t t PN1] / d u m[u PN2 ilqe]) / (21)1 g u4 -m u -3 [ . . . ] / a-na I-din-dmarduk d u b -s a r- e r en2 / ki-i-
a !-at PN1 d u m u PN2 / id-di-in; “Awil-I[t]ar [the . . . ], [son of] Ibni-ama [the . . . ], [pulled off the] h[and of PN1] son [of PN2] (or: [stood] b[ail for PN1 . . . ]) [and] gave one three-year-old ox and . . . (silver?) to Iddin-Marduk the army scribe as compensation (for the liability) of PN1 son of PN2.” Since the cattle had been found in the hands of PN1, PN3, and PN5 (line 7: a . . . ik-ka-a-du-ma), they could be returned in specie and ki tum must mean an additional payment. Our reading ki-i-
a !-at (instead of ki-i-
da-at) is based on the same emendation made by CAD K 460 to VAS 8 26, line 15, and to TIM 5 62, line 10 (see Hirsch 1970: 114), both with similar context. The fine to be paid is not necessarily a penalty for theft— the word does not occur in TCL 1 164. It could just as well be compensation for loss to the owner arising from the absence of the cattle or payment accruing to the finders from their gratuitous use. We may now add two more documents from northern Babylonia dealing with theft. First is TLB 1 243, dated Apil-Sin 5, which could even represent the multiple damages system discussed above; the upper part of the tablet is missing. It reads:
x [ . . . ] / 3 u d u -n[i t]a2 [ . . . ] / a u-ur-qí-im / mNa-i-ilim i-ba-tu-ma / (5')1 sag n i t a 2 A-na-dla-ga-ma-al-tak-la-ku / a-na ki-a-tim m(!)Ma-ru-um d u m u An-ne-ilum / a-na Na-i-ilim / i-di-nu-ú / (10')a-na ba-aq-ri s ag -n i t a2 / mMa-ru-um / i-za-az / (9[+ x] witnesses, among them Be-la-ki  ag in a Dil-batki and I-din-dura s an g a dUra); “[Because . . . ] Na -ilim had seized three sheep . . ., which were stolen (property), and Maruum, the son of Anni-ilum, then gave the slave Ana-Lagamal-taklaku as compensation to Na -ilim, Maruum will stand for vindications of the slave.” Unfortunately the reasons for Maruum’s liability—though somehow related to theft—remain unclear; again we meet the term ki tum (both references should be added to the lexica). YOS 13 28, dated Ammi-ditana 28, is the second document. It was studied by Finkelstein (1972: 13f.) and mentions a stolen cow and its calf. The person liable for its replacement is not the thief—presumably unknown—but most probably the man from whom the animals have been stolen. He may bring a cow with its calf within ten days; otherwise he will be punished (lines 13-15 should perhaps be restored as: a-na U4.10.KAM [ú-ul ub-ba-lam] / a-r[a-an 1 ab2 q]á-du a m a r -g[a]-a / [a-na-a]!-i; “[If I do not bring (them)] within 10 days [I shall be]ar the -pun[ishment for the cow] and its calf”). This punishment is severe: he has to give his wife to the “owner” of the cattle. This may very well be due to the fact that the animals seem to be state property since the “owner,” Uriya m r Warassa, is a state official engaged in agricultural work.

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Sippar and Lagaba, i.e., the land between the Euphrates and the Tigris. It is conceivable that the death penalty and with it the laws of §6 and §7, if not §§9-11, did apply in central northern Babylonia before the compilation of CH, but for lack of any documentary evidence it can be neither proved nor disproved. There is, however, another possibility—that these laws were never in force in the Babylonian states and derive from the nomadic background of the Hammurabi dynasty. This might account for their inclusion in the Code alongside flatly contradictory laws well attested in early Mesopotamian practice.

Among the documents from southern Babylonia cited by Leemans (1957), two (Riftin 46 and YOS 8 129) deal with murder and are therefore beyond our scope. In YOS 8 129, lines 8-12 read: i-na u-ub-tim / a s ag -i r3 a U-bar-d ama / id-du-ú-ku / it-ti-ia lu il-ik / sag -i r3 -ma i-du-uk; “In the robbery in which the slave of Ubarama was killed (?), he indeed went together with me. He did kill that very slave.” YOS 8 129 records only the conviction of the thieves and makes no mention of their punishment. To these could be added CT 48 23, said to be from the south, possibly Isin, which is a personal account of the theft of a pig.

4 The Old Babylonian Term naparum Abstract Various proposals have been made for the meaning of the Akkadian term naparu(m) but with no consensus having been reached. An examination of the term’s use in both lexical lists and Codex Eshnunna, however, points to the meaning “visitor.” Understanding the term in this way allows a straightforward interpretation of CE 36 to emerge, with the naparum as a guest lodger with whom goods have been deposited for safekeeping.

I

n the Old Babylonian sources, the term naparum is found on a dozen or so occasions in the phrase b t naparim but only twice in independent use, in paragraphs 36 and 41 of Codex Eshnunna.1 In the former, liability is placed upon a naparum for the loss of goods entrusted to him for safekeeping, and in the latter, the naparum is one of three types of persons whose beer a taverness must sell for them at the going rate. There is no consensus as to the meaning of the word. Goetze in his edition of CE proposed “place of redemption” in paragraph 362 and “one awaiting redemption” in paragraph 41.3 His interpretation was based on

* Originally published in the Journal of Cuneiform Studies 46 (1994): 41-46. Used by permission. 1 The term appears once at Ugarit (RS 15.123 + 16.152, line 5) in an exchange of land; see note 18 below. The feminine form napartu occurs once at Mari (ARM 10 59, reverse line 2) and as an Akkadogram in Hittite texts, where it means a type of wife (see CAD N/1 324-25). An abstract form, napar tu, also occurs several times in obscure contexts (see CAD N/1 326). 2 Goetze 1956: 98. He is followed by AHw 742: “Ort des Lösens,” as one of three possibilities. 3 Goetze 1956: 107.

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the verb paru “to redeem”; he did not attempt to justify either translation in its context. Finkelstein saw the naparum as a person of high status who was immune from search and seizure and whose house, the b t naparim, served as a refuge for persons to whom he extended his authority, or alternatively as a place of detention, or as a bonded warehouse for goods, the common element being the responsibility of the naparum for the safety of things or persons in his care.4 His approach was followed by Landsberger5 and adopted hesitantly by CAD, which does not offer a translation, only the description “(person with certain privileges).”6 Kraus, however, rejected the Finkelstein-Landsberger thesis in strong terms, dismissing the special social class posited by them as a fiction.7 Taking as his starting point the phrase b t naparim, he concluded that the references pointed unambiguously to the simple notion of an inn or lodging for strangers.8 In no case did it serve as a refuge or sanctuary, nor could the mention of deposit in CE 36 give evidence to conclude that it was anything so elaborate as a bonded warehouse. Kraus’ interpretation on this point is borne out by an examination of the references to b t naparim. While several of the Babylonian references are obscure and could be taken, with a little imagination, to refer to some special establishment,9 the Mari letters offer a number of examples that leave its meaning beyond doubt. Thus, in a series of dispatches, an official 4 Finkelstein 1965: 238; and 1970: 252-53. 5 Landsberger 1968: 98-99. His rendering, “ein Immuner,” has been taken up in various German translations, e.g., in TUAT. 6 CAD N/1 324. But note “sojourner” in the citation of CE 41 under mudû, CAD M/2 167, which is closer to the sense proposed in this study but in our view would be more suitable, with its biblical connotations, for the term ubarum found in the same paragraph of CE. See our discussion of the latter term below. 7 Kraus 1976. 8 Cf. Rowton 1968: 280; Charpin 1988: 142; and Veenhof 1991: 295-95. 9 PBS 7 101 (= AbB 11 101) cited by Finkelstein 1965: 238 n. 17; and CT 4 29c (= AbB 2 97). On the other hand, in TCL 18 91, also cited by Finkelstein, it seems to us that the writer of the letter is concerned about losing his lodgings (which he is not at present using) before the due date for relinquishing them (lines 12-17). In the text edited in Finkelstein 1965 (Studies Landsberger 235, BM 80318), a senior official breaks the petitioner’s tablets in his b t naparim. This could be some special establishment, but it could well be simply his lodgings if, as is likely, the official was a peripatetic official who had come to Sippar specially to enforce the royal m arum-edict.

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reports on his instructions to see to the accommodation of an allied army on its passage through the city: “Let them enter the town and give them b tt napari. To Simahlane (their general) give a comfortable b t napari in the citadel itself.”10 In another Mari letter, the writer reports the case of a father who made the journey to town to visit his sick son and stayed until the son recovered. “When his son recovered, he planned to move to Rahatum in the evening. On the day that he planned to move, he took an extended siesta in [his] b t nap[arim], and his son cut his throat with a dagger.”11 Similarly, in a Babylonian letter, the writer, who is due to arrive in ten days’ time, sends his servant on ahead and asks the addressee to make the following arrangements pending his arrival: “Show my servant who brings you my tablet a b t napari that is nice and roomy and let him look after (it).”12 On the other hand, when Kraus goes on to consider the use of naparum alone, he argues that it must be a nomen loci synonymous with b t naparim,13 on the pattern of atammu and b t atammi. Thus in CE 36, goods are deposited with the “inn,” the institution personified, like the babtum or the ekallum. Unfortunately, in CE 41, naparu appears in a list of persons, and in the later lexical lists it is universally regarded as a type of person. Kraus can only overcome these difficulties by special pleading—that the list is not to be understood as a list of like concepts, and that the lexical references may be a late error. There is one reference that might seem to support his view: in ARM 2 72:36, a foreign envoy is confined to the “gate of his naparum” (bb naptar u), but in our view the word “gate” can simply be seen here as a metonym for house. The expression is thus no more than a variant of b t naparim. 10 a-na! a-da-a-i-im-ma li-ru-ba-am-ma E2i.a na-ap-à-ri i-di-in-u-nu-ti-im [a-na] sima-a-la-a-ni-e [i-na ki-]ir-i-im-ma E2 na-ap-à-ri ták-la-am i-di-in-um (RA 66 116:18-23 [A 2830]). Cf. RA 66 116 and 119 (A 826 and A 2801; ed. in Dossin 1972). 11 DUMU-u i-nu-u-ma nu-ba-tam a-na ra-a-timki nu-ku-ri-im pa-nam i-ku-nu i-na u4mi-im sa a-na nu-ku-ri-[im] pa-nam i-ku-nu mu-u-la-lam i-na E2 na-ap-[à-ri-u] úa-ar-bi-im-ma il-qe-ma DUMU-u ki-a-as-su i-na GIR2.ZABAR ik-ki-ìs (ARM 2 129: 10-18). 12 ú-a-ri a tup-pí ub-la-kum bi-it na-ap-á-ri a ki-ma a-bu ù nu-up-pu-u ku-li-imu-ma li-i-ú-ur (VAS 16 21:18-21 [= AbB 6 21]). 13 Kraus 1976: 168-71, following Goetze and AHw (see n. 2 above).

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It is most probable therefore that the naparum is the person who either gives or receives the hospitality of the b t naparim, i.e., the host or the guest. Kraus insists that if he is wrong in his interpretation as a nomen loci, then it can only be the host.14 Von Soden, who had earlier reached similar conclusions as to the nature of the b t naparim, is more ambiguous. He calls the naparum an “auswärtige Gastfreund,”15 which suggests a foreign guest,16 but proceeds to qualify him as one “bei dem man am fremdem Ort absteigt,” i.e., a foreigner who acts as host to passing countrymen with whom he has a reciprocal relationship. Such a role hints at the Homeric xe nos and appears to be an attempt to import that social phenomenon into Old Babylonian society.17 In our view, there is no need to introduce such complications. Naparu simply means “visitor” in all the Old Babylonian sources, the b t naparim being no more than the house or quarters in which a visitor happens to lodge. It is derived from the verb paru, not in the usual sense of “to redeem, loosen,” but in the less frequent but sufficiently well attested sense of “to depart.”18 The naparu is therefore that most favored of guests, one whose stay is only temporary, and whose departure can be relied upon.19 To test this hypothesis, we shall examine firstly the evidence of the lexical texts, and then the two relevant paragraphs of CE, to see if our in-

14 Kraus 1976: 171. 15 Von Soden 1949: 371-72. Cf. AHw 742, “eine Art von Gastfreund” (second alternative); and Rowton 1968: no. 380, “guest-associate.” 16 The term Gastfreund is ambiguous as to “guest” or “host.” See Grimm and Grimm 1878: col. 1476. 17 Von Soden’s definition continues: “. . . dessen Schutz man dort in Anspruch nimmt und dessen Gastlichkeit man selbstverständlich nicht nur im eignen Hause mit Dank vergilt, sondern auch durch tätige Anteilnahme an seinem Schicksal, wenn er einer solchen bedarf.” The third definition canvassed in AHw 742, “(eine Art von) Vertrautem,” seems to be based on the same analogy. 18 See the references under AHw 850 meaning 14. At Ugarit, where it appears in a single document to describe persons exchanging land (see n. 1 above), Nougayrol (1955: 223) explains its meaning on the basis of paru = “to depart” (“déloger, s’en aller”): “Les naparu seraient ainsi des ‘délogeants,’ des hôtes temporaires, (provisoirement) dénués de domicile personnel” (1955: 219). 19 The napras/mapras form is normally used as nomen loci, temporis, et instrumenti, but as Kraus admits (1976: 171), it is occasionally used to designate persons, e.g., narmtum.

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terpretation can provide a satisfactory legal meaning in both instances. It would appear that by the first millennium, naparum was no longer a part of the living language but was confined to lexical lists. In spite of the difficulties that these late lists present, it can be shown that in our case they do preserve genuinely old traditions. In MSL XIV 211-212 (A = nâqu I/2 134), we find the following equivalency: ni-gìn LAGAB.LAGAB nap-tá-rum á e2. The association of the Sumerian verb “to wander” with naparum (when spoken) of the house confirms, we suggest, the proposed derivation from parum in the sense of “to leave.” A naparum was associated with someone who did not remain in the house but passed through on his journey. The association of ideas in a late synonym list is harder to discern. In LTBA 2 2:356-357 (var. 1 vi 20-21), our term is given as synonymous with susapinnu20 “paranymph,” “best man.” Equally mysterious is the synonym given in an astrological commentary (AfO 14 pl. 7 ii 11): á gi  .t u k u l .u r2 “he who (wears) a weapon at his side.” Weidner linked the two by suggesting that the paranymphs carried these special weapons, possibly as a phallic allusion.21 His hypothesis is confirmed by a bilingual hymn to Ishtar, which states: “I (Ishtar) am the susapinnu with the pointed dagger at his side.”22 It assumes, however, but does not demonstrate, that naparu was such an armed paranymph. As we have seen, there is nothing in the Old Babylonian sources that would remotely connect the term with that function or with marriage at all, for that matter. My tentative suggestion is that the susapinnu, as a wedding guest, shares some of the characteristics of a temporary visitor (to the bride’s home, when he accompanies the groom, and where they may live for a short period),23 or that there is possibly a weak play on words between naparu and patru, “dagger,” which is how the weapon is described in the Ishtar hymn. 20 And with anzan nu, a term of unknown meaning. 21 Weidner 1954-56a: 78. Cf. Hh. VII 14-15 (MSL VI 85); and Hg. 55 (MSL VI 109): kakki suni. 22 SBH 56, lines 58-59: su-s[a-pi-i]n-nu pat-ri zaq-tu a ina su-nu ak-nu [anku]. 23 Cf. Wilcke 1969: 77-78; and Greengus 1966: 70. Malul (1989), in discussing the susapinnu, emphasizes the role of the naparu as a custodian (of the bride?)—hence the sword (Malul 1989: 258-59, 274-75). On the association of naparu with guarding, see our discussion of lú = a below.

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Our main source, however, is a section of lú = a, which provides us with direct evidence of the term’s meaning. Col. III 11'-19' of ND 4373 (MSL XII 141-142) is a separate section containing the following terms: gi r5 KA4? -e -n e g a- an -u ri3 (E) g a- an -d u8 e-e -n e ga-ur5 -ra g a- an -t u lu2-t u g2-b al lu2-DUN - A lu2-u-DU-a

= = = = = = = = = =

ú-ba-ru i-á-ra-a-nu nap-a-ru MIN MIN á-á-bu MIN nap-pi-lu a- ra qa-a-te a-lik i-di

Naparu is given as the equivalent of three Sumerian terms. The first and second belong to a frozen verbal form used as the active participle, which is often found in bilingual lexical texts.24 The third, on the other hand, is found already in the Sargonic period in an economic document. Westenholz OSP 133, from the Philadelphia Onion Archive, records in lines 13-16 the following disbursement of onions:25 0.1 su m-sikil 0.0.1 su m-g az / dum u-lug al m ar -  a- i / i3 g en -n a- a /  e -n e u -b a -t i We would translate: “60 liters of ‘pure’ onions, 10 liters of ‘crush-onions,’ the Prince of Marai, when he came, received as a visitor.”26 24 See i zi = itu 97-169 (MSL XIII 163-166); line 102 g a - an -d u8 = nap-a-ru. 25 Westenholz 1987. Westenholz notes the connection with naparu here and also in Westenholz OSP 55, line 21 (context unclear), without translating the term. 26 Westenholz (1987: 164) translates: “the Prince received, when he went to Marai” (following Gelb 1965: 60). At first sight this translation seems more in keeping with the rest of the archive, where onions are often disbursed for journeys (k a sk al .  e3 ), especially to Agade (e.g., Westenholz OSP 129 iii 2-3: en si2 A -g a-d eki d u -n i ). According to Westenholz, the same applies to members of the royal family: lu g a l- ig i n i m - t a i3 - i m -g en -n a -a “when the king went down from the upper country” (Westenholz OSP 135:4-5), “when the king’s daughter went to the temple of Enlil”

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If our interpretation, suggested by the context, is correct, then it is confirmation both of the meaning here proposed for naparu and of its antiquity. We also assume e -(e)-n e (= naparu) to have been the original lexical entry to which the first two terms were later added.27 Of these, g a- an -d u8 is clearly based on the equivalency du8 = paru and confirms at least that naparu was regarded as a person. The next expression, g a an -u ri3 (“one who guards”), is more difficult to explain. It could simply be a play on the Sumerian sign E, but there is another possibility, that the association derives from the scribe’s familiarity with a law similar to that of CE 36, where the naparum had the function of a depositee of goods for safekeeping. The connection is by no means as strange as it might sound. Codex Eshnunna, like all the cuneiform law codes, was the product of a scribal school, in the same scholarly tradition as the lexical

(Westenholz OSP 170:3-6), but in these cases it seems to us more likely that it was the arrival of royalty rather than their departure that was the occasion for disbursement, since the king comes from an outside location in the one case, and in the other the temple of Enlil was located in Nippur, where the disbursements were made. By the same token, it seems to us more likely that a prince of Marai, a distant land on the southeastern border of the Sargonic empire (Steinkeller 1982: 237-65), would have received supplies at Nippur on his way north on a diplomatic mission to Agade than that a prince of Agade would have received a relatively small supply of onions for a journey to a distant neighbor (Steinkeller 1982: 259). In Westenholz OSP 129, a delegation from Marai in the city of Uru receives onions from the Nippur office. Westenholz connects the prince’s journey to Marai with his marriage to a princess there (Westenholz OSP 154), but the latter text does not mention Marai at all, and it was standard practice in diplomatic marriages, if such it was, for the bride to travel to the groom’s country, where the wedding would take place. (The one exception, in unusual circumstances, was the unfortunate son of Shuppiluliuma.) If anything, Steinkeller’s tentative suggestion of “princess” in Westenholz OSP 133 (1982: 259) would be more apt. Against us is the absence of the (ventive?) prefix -m- in the verb g en , which in itself might seem superfluous to describe a visitor, but both of these factors can be explained if it is the case that Nippur was not the foreign prince’s final destination but he was just passing through—which exactly fits the sense of naparu that we have proposed in this study. 27 As Cavigneaux points out, the canonical version of lú = a considerably increases the number of lemmas for certain terms, adding rare and exotic synonyms (1983: 629c). None of the three terms appear in the extant earlier versions of this lexical series, but, it should be added, neither does the grammatical form represented by the first two.

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lists.28 Another of its paragraphs recurs in a first-millennium law code as far distant as Israe1;29 so it is perfectly possible for Neo-Assyrian scribes to have been familiar with the tradition that it represents. Further information about the meaning of naparu is provided by the context in which it appears in this lexical section. It is flanked by two terms, ubaru and aabu (the meaning of isaranu is unknown), both of which refer to types of temporary residents. Aabu is a tenant, who holds a lease for a limited term. Ubaru denotes a resident alien, a foreigner who is accorded the privilege of residing as a free person in the city.30 In a bilingual hymn he refers to himself thus: “I am a foreigner (nakrku); I am an ubaru.”31 Such a person could be of high standing: a document from Nuzi 32 records an official gift by the city of a chariot to an ubaru from Hanigalbat on the occasion of a festival. Nonetheless, his status was entirely dependent upon the local sovereign’s pleasure. As a bilingual proverb puts it: “an ubaru in another city is a slave.”33 The association of naparu with ubaru is not fortuitous, since it is found already in CE 41, thus providing direct evidence of the connection between the lexical and legal scholarly traditions adumbrated above. CE 41 reads: If an ubarum, a naparum, or a mudû 34 will give his beer, the taverness shall sell the beer for him at the current rate.

28 Kraus 1960: 288-90, 293-95; Finkelstein 1981: 17-18; Westbrook 1988a: 89-90; Malul 1990b: 129. 29 CE 53 = Exod 21:35, discussed most recently by Malul 1990b: 134-52. 30 Kühne 1973: 29 n. 128. Lewy (1956: 59 n. 250) derives the noun from the root w-b-r “to sojourn abroad.” 31 BzA 10/1 11:10; edition in Meek 1913: 22-24. 32 AASOR 16 50 no. 83 (SMN 2058). 33 Lambert 1960a: 259, lines 16-17. 34 The social standing of this class of persons is not known. CAD M/2, 167 translates “acquaintance, person known (but in no definite relationship).” Goetze (1956: 111) surmises: “The mudûm may be merely a visitor from outside, a citizen’s ‘acquaintance’ who enjoys for a limited time the privileges of hospitality and for whom the host who knows him and his circumstances stands responsible.”

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Beer is a basic commodity that is supplied to persons by way of rations35 or payment.36 If the recipient did not wish to consume the whole quantity himself, then he would of necessity turn to the taverness to dispose of it for him. The rule would then impose upon the taverness the duty to obtain a fair price on her client’s behalf. Goetze concluded as much but could not see the rationale for such a rule,37 and Yaron dismisses it as a peculiar and inherently improbable situation which would not have gained the attention of the legislator.38 But if the three persons in question were examples of outsiders, such as a resident alien or a visitor, then the rationale becomes clear. Such persons would be open to exploitation by local merchants, with their better contacts and knowledge of market conditions.39 The authorities were prepared to intervene against the dishonest taverness, as they did in CH 108 and in paragraph 8 of the edict of king Ammi-aduqa.40 There remains to be considered CE 36, a paragraph on the basis of which far-reaching conclusions have been made as to the development of responsibility in early Mesopotamian law, but in which the significance of the peculiar use of naparum has been totally disregarded.41 The paragraph reads: If a man gave his goods to a naparum for a deposit, and—the house not having been broken into, the threshold not having been scraped off, the window not having been torn out—he caused the goods of the deposit, which he had given to him, to be lost, his goods he shall replace (variant: to him).

35 Renger 1984: 85-86. Renger points out that since beer was apt to spoil, it was usually distributed in the form of beer bread or of barley, which could be taken to the tavern keeper who would exchange it for beer. Note the receipt of barley by an ubaru from Hanigalbat in SMN 3399:15 (see Lacheman 1940: 20). 36 E.g., as rent: VAS 16 62:16 (= AbB 6 62). 37 Goetze 1956: 116-17. 38 Yaron 1988b: 235, also summarizing previous literature on the paragraph. 39 Cf. Cassin 1958: 28, who argues that the palace is seeking to protect the interests of social classes who are financially dependent upon it. 40 Edition in Kraus 1984: 180-81. 41 See Goetze 1956: 101-5; Yaron 1988b: 250-51; and Otto 1988b: 1-31. Yaron and Otto leave the term naparum untranslated.

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At first sight, it might seem logical to understand the naparum here as the host, thus introducing the interesting legal problem of the liability of innkeepers for the safety of their guests’ possessions. But that is exactly what the paragraph does not discuss. The question of the innkeeper’s liability in his capacity as innkeeper only arises if the guest had retained in his possession the goods subsequently lost, while staying on the innkeeper’s premises. The moment the guest deposits his goods with the innkeeper, the latter becomes a simple depositee, with the same responsibilities as any other depositee. His status as an innkeeper is irrelevant to the question of liability for loss of the goods deposited with him. It is highly unlikely, therefore, that the special category of innkeeper would have been introduced in this paragraph, when it adds nothing of legal consequence to the position of the depositee. If the naparum is understood to be a visitor, on the other hand, then the reason for his liability and the curious sequence of negative circumstances by which it is qualified may be explained as follows. A visitor staying in lodgings receives an item for safekeeping. It is not reasonable that he be held responsible for the security arrangements of the building itself, over which he has no control. Accordingly, if there is physical evidence that the loss was caused by a thief breaking into the building, he will not be liable. In the absence of such evidence, however, it is only right and proper that the visitor should pay compensation for items committed to him which he has lost, presumably through his own carelessness.

5 The Phrase “His Heart Is Satisfied” in Ancient Near Eastern Legal Sources Abstract The phrase "his heart is satisfied" is found frequently in Akkadian, Sumerian, Aramaic, and Demotic legal documents. This article deals with its occurrence in the first three sources and seeks to show that it functioned as a conclusive evidence clause as to the receipt by the declarant of a specific quantity, weight, measure, etc. Paragraph 264 of Codex Hammurabi is also explained on this basis.

T

he term “his heart is satisfied” presents us with a paradox. On the one hand, it is one of the most widespread legal phrases in the ancient Near East, being found in Sumerian ( a 3 -g a - n i al -du10 ), Akkadian (libbau b), Aramaic (yb lbby), and Demotic versions.1 On the other, it seems, at first sight, utterly superfluous. It is unnecessary both as a receipt (since it frequently follows an express statement that the receiver has been paid) and as a quitclaim (since it frequently precedes an express statement that no claims may be made). Nor, as Muffs has shown in his classic study of the phrase, can it have anything to do

* Originally published in the Journal of the American Oriental Society 111 (1991): 21924. Copyright © American Oriental Society. Used by permission. * This paper was first presented to the 198th meeting of the American Oriental Society in Chicago in 1988. I am grateful to the participants for their useful comments and criticisms. Responsibility for the views expressed herein rests, as usual, with the author. 1 This paper will not discuss the Demotic sources, which are outside the author’s area of competence. It is hoped that an Egyptologist will test the author’s thesis on the Demotic material.

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with volition (as might be suggested by the similar-sounding expression “in the joy of his heart”). 2 Small wonder, then, that Muffs analyzes it as a “many-faceted term of considerable subtlety,” 3 containing some aspects of practically all the other contractual clauses and forming a kind of bridge between them. The result is, unfortunately, altogether too complex and fails to satisfy legal logic. Muffs identifies three principal types of transaction in which the phrase has its typical function: sale, settlement of litigation, and receipt of the bride-price. 4 In all three, one party relinquishes rights in return for a quid pro quo: The seller relinquishes his rights over his property in return for payment of the price, the litigant foregoes his claims in return for payment or the rendering of an oath, and the father of the bride gives his daughter away in marriage in return for the bride-price. To take the case of sale, the relevant clauses are, for example: We have sold it to you and you have paid us its price . . . and our heart is satisfied with the price you have paid us. We have sold and transferred (description of property) to you and we have removed ourselves from it from this day and forever. 5 According to Muffs, “the mere objective notation that the full price was paid may still not insure that transaction against future claims by the seller or litigant: he may claim that he was not actually ‘satisfied’ with the amount received and still demand more payment. In order to prevent that eventuality, the scribes also recorded the personal ac2 3 4 5

Muffs 1969: 140-41. Muffs 1969: 45. Muffs 1969: 30-35, 51-56, 63-77, 81-83. TAD B3.4 (= Kraeling 1953: no. 3), lines 5-11, cited in Muffs 1969: 33-35. An example from the cuneiform sphere is the Old Babylonian document CT 8 26b: (1-5) [Dimensions and location of field], (6-8) A has bought the field from B, (9-10) he has weighed out its full price, (11-12) his heart is satisfied with the price of his field, the silver, (13-15) his transaction is complete, they shall not raise claims in the future: (16-17) they have sworn the oath, etc. For an example from the Middle Babylonian period, see Arnaud Emar 6 150, line 18.

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knowledgement by the former right-holder that he had received the payment in full and that he is satisfied therewith.”6 This interpretation has the merit of attributing separate functions to the phrase under discussion and to the no-contest clause: the former relinquishes the seller’s claims as regards payment; the latter as regards the property. It has the disadvantage of being legally redundant. A completed contract of sale by definition includes an agreed price. Any demand for extra payments after completion of the contract (and a fortiori after conveyance of the property sold) would have no basis in law.7 There is, therefore, no need whatsoever for a clause guarding against this eventuality. The same applies to the other types of transaction, namely, settlement of litigation and receipt of bride-price. The contractual acceptance of a specific sum in settlement of a claim or in return for giving the bride in marriage fixes the parties’ rights and duties in law. Any claim for further payment will be void and unenforceable. In the cuneiform sources, the phrase is also found in several other types of transaction, such as a simple receipt. 8 For example, Meissner BAP 27 reads: A has received from his brothers B and C 10 shekels of silver that were assigned to him in his inheritance-share document. His heart is satisfied. He will not contest it again. (Oath, witnesses.) In such cases the only right relinquished is that which forms the subject of the no-contest clause, i.e., not to challenge receipt of the money due

6 Muffs 1969: 44. 7 It would have no basis in this or any system. No legal system could logically recognize contractual obligations and at the same time enforce claims contrary to the contractual terms on the sole grounds of a unilateral change of heart in one of the parties. The same reasoning does not apply to the no-contest clause, which is designed to counter a later denial that the transaction ever took place or that it was valid. In asking for more, the seller admits the existence and the validity of the transaction. 8 See Muffs 1969: 77-86. The other examples given (all from cuneiform sources) are a division of inheritance and payment for expenses for a common wall.

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in the inheritance tablet. 9 Using Muffs’ analysis, it is difficult to see what extra element is furnished by the phrase “his heart is satisfied.”10 A further category of cases does not fit Muffs’ analysis at all, and he is forced to classify these texts as “atypical.” Thus, in TAD B2.6 (= Cowley 15), 11 a groom lists the items of dowry received by him with their value, and after the grand total declares (lines 14-15): And the value of the goods . . . I have received and my heart is satisfied therewith. Here the phrase cannot refer to the relinquishing of a right, as the groom relinquishes nothing in return for the dowry. Instead, Muffs postulates that the phrase triggers an obligation on the part of the groom—to return the dowry in case of divorce. This duty is, in fact, stated expressly in the penalty clauses of the same document; for Muffs, our phrase links it with the acknowledgement of receipt. By declaring himself satisfied with the amount received, the groom relinquishes any future claim against his wife that he did not receive the goods and thus acknowledges his obligation to return the dowry in full.12

9 The same is true of division of inheritance; BAP 101 states: “(1-4) [Dimensions and location of property], (5-8) the inheritance share of A that he divided with B and C, (812) it is completely divided; his inheritance share is complete; his heart is satisfied; he shall not raise claims.” (13-16) [Oath, etc.]. 10 Muffs suggests (1969: 79-80) that the phrase (libbau ab) originally had an independent existence as a quitclaim and was then incorporated into other instruments. By the end of the Old Babylonian period it had become a “stereotypic fossil.” We have our reservations about arguments based on the premise that because the modern historian can find no consistent meaning for a legal phrase, it must have been meaningless to the ancient scribes who used it. 11 Cowley 1923: no. 15; cited by Muffs 1969: 58-59. 12 Muffs 1969: 58-62. The argumentation is hard to follow due to some confusion in the use of legal terminology. Thus, it is stated (Muffs 1969: 61-62): “By declaring, ‘My heart is satisfied with the amount received,’ he relinquishes any claim, suit, or litigation he might raise against his wife in the future; thus, by relinquishing any claim he might have against his wife, he acknowledges the claim of his wife against him: the obligation to return the dowry in full.” The husband’s defense against the wife’s claim for return of the dowry seems to have become identified with some unspecified claim by the husband against the wife.

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A similar analysis is applied to the second case. In Cowley 2,13 two agents undertake to deliver their principal’s grain to a third party: (3) You have consigned to us barley, (4-8) [amounts and consignees] (9) and our heart is satisfied therewith. We shall deliver the (10-11) grain to A and B as written in this document . . . . By this declaration of satisfaction, it is argued, the agents bar themselves from claiming in later litigation with the owner that delivery to them was short, and in so declaring trigger their obligation to deliver in full, which is detailed in the following clauses.14 In both these cases, Muffs’ analysis, for all the anomalies it is forced to assume in the meaning of the phrase, still fails to give it a necessary function in the document. There is really no need for a link between the receipt and performance clauses; they appear perfectly sufficient as they stand to create the contractual obligations that they prescribe. Finally, paragraph 264 of Codex Hammurabi uses the phrase in the context of a herding contract: If a shepherd to whom cattle or sheep have been given to herd is in receipt of his full wages (and) his heart is satisfied, (but) he lets (the number of) cattle or sheep fall (and) lessens the offspring, he shall give offspring and produce according to his contract. 13 Muffs 1969: 56. 14 Muffs 1969: 58: “ . . . the promises of the agents to perform lack sufficient obligatory basis as long as some possibility of litigation remains. The potential claims of the agents can be obviated in only one way: by a declaration of receipt and quittance. The agents are, therefore, obligated upon receipt of the consignment from the owner to check the goods received in order to determine whether the goods actually received tally with each other; the agents declare that their heart was satisfied with the goods received; they do not want or demand any more from the owner. If they now deliver less than the amount stipulated, they hereby admit that it is not the owner’s fault: they have no claims against him; the responsibility to deliver the goods in full, therefore, is all theirs. Thus, in this context at least, the relinquishment of all future claims and litigations against the owner is by implication equivalent to the acceptance of an obligation to be performed.” Our remarks in note 12 above as to confusion in the legal terminology apply equally to this passage.

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Here, also, Muffs argues that satisfaction of the shepherd’s claim to payment is what triggers his obligation in negligence. Thus, if the wage is not fully paid, the shepherd is not fully liable to the owner for his loss.15 Such a contractual rule seems to us unlikely. The shepherd, having taken another’s animals into his charge, must be liable for negligence in the performance of his contractual duties. At most he could set off any wages owed to him against the debt owed to the owner. (This might often have the same end result as partial liability, but it is a very different concept in law.) In the light of Muffs’ difficulties, Yaron proposes a much simpler, universal meaning for the phrase “his heart is satisfied.”16 In his view it is a mere receipt. It acknowledges annulment of the existing obligation and thus bars the receiver of a benefit under that obligation from raising any future claim. 17 To the obvious objection that this role is already fulfilled by the receipt and no-contest clauses, Yaron’s answer would seem to be a denial that the different phrases in these legal documents have distinct, separate functions.18 This conclusion is not impossible, but it is an argument of last resort. If distinct phrases are used cumulatively in a legal document, then our starting point at least must be to assume that they each have a distinct purpose,19 unless the evidence is manifestly to the contrary. 20 In

15 16 17 18

Muffs 1969: 87-90, following Driver and Miles 1952: 456-57. Yaron 1970: 408-16. Yaron 1970: 409. Yaron 1970: 411: “La supposition que toute phrase énoncée dans un document légal privé doit avoir un rôle distinct, spécifique, est l’une de celles que je ne suis pas prêt à appuyer.” 19 Compare the approach of Wilcke (1985: 74-77), who takes minor grammatical changes in the formulae and even variations in the order of clauses to reflect developments in law. This seems to us to veer too far in the opposite direction. 20 Yaron has a special explanation for each of these two “atypical” cases in the Elephantine documents. As regards the marriage document, TAD B2.6 (= Cowley 15), Yaron suggests (1970: 412) that in declaring himself satisfied with the dowry, the groom renounces claims to any additional item, in particular, any part of the dowry promised but not yet delivered. This is a possibility, but note that the groom actually declares himself satisfied with the value of the dowry.

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our view, the phrase “his heart is satisfied” had a simple, but distinct and very important purpose. Let us return to the case of sale. The phrase is found after a statement of the weight or quantity of the price and, usually, also the fact that it has been paid or received. In our view it is simply an acknowledgement by the seller that he has checked the weight or quantity of the items received and that they tally exactly with the amount purported to have been paid by the buyer. The phrase is best translated here, “he has no complaint (of short measure).” Its legal function is then that of a conclusive evidence clause, which bars the seller from claiming later that he in fact received short measure, even if subsequent verification should prove that this was truly the case. It is not the same as the payment/receipt clause, as the latter records fulfillment by the buyer of his obligation in principle. Nor is it the same as the no-contest clause, since it is not a quitclaim. The nocontest clause bars the seller’s right to challenge the existence or validity of the contract; our phrase is not concerned with such legal issues but with the practical performance of one particular part of the contract. Nor, it should be pointed out, is the idea of satisfaction the same as that posited by Muffs. In the latter’s analysis, as we have seen above, the buyer’s “satisfaction” is an emotional one, referring to satisfaction with the terms of the bargain. In our analysis, the “satisfaction” is purely empirical, relating to what has been observed, as befits a clause dealing with the performance stage of the contract rather than the stage of conclusion of contract. This analysis applies equally well to the other transactions that we have discussed: settlements, receipts, and supposedly “atypical” cases. Documents recording the settlement of litigation are of two types. In the first, found in both Aramaic and Akkadian sources, a dispute is resolved by one of the litigants being awarded or accepting a quantity or

In the case of the consignment document, Cowley 2, Yaron proposes to restore the missing half line at the end of the consignment clause with a statement of receipt by the agents of their wages—to which the satisfaction clause would then apply. This is again a possibility, but highly speculative in view of the absence of any traces or link with the extant text, and in view of the general tenor of the text.

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weight of goods or a measure of land, declaring his heart satisfied therewith, and sometimes undertaking to raise no further claims.21 Our phrase can be seen to have the same function here as in sale: to acknowledge the accuracy of the quantity, weight, or measure received. In the second type, represented by the mrq documents from Elephantine, the litigant declares his heart satisfied, not with the actual items, but with an oath rendered by the other party concerning the disputed items. In Cowley 14 the oath concerns the division of common property. 22 In Cowley 6 it concerns the boundaries of a house alleged by the oath-taker to have been alienated by the addressee of the oath. 23 This use of the phrase here emphasizes its function as a conclusive evidence clause. The litigant, in declaring his heart satisfied—not with the calculations concerning division of property or measurement of 21 E.g., Cowley 20: [A and B sued C and D for goods claimed to have been deposited and not returned. A and B declare:] (8) “Then you were examined and you satisfied our hearts concerning these goods (9-10) and our heart is satisfied therewith from this day forever. I, A, and B, we are removed from you from this day forever. Neither we nor our children can sue you, etc.” VAS 8 101: (1-4) A sued B and they judged them and her (A’s) claim was accepted. (56) Her heart is satisfied. She shall not return and raise claims against B. [Oath, etc.] TCL 1 112: (Before the judges) (16-19) they litigated over the expenses for (cultivating) 1 ikû of field and A received (them). His heart is satisfied . . . . 22 See Muffs 1969: 32. (4-7) “ . . . Then an oath was imposed upon you and you swore to me concerning them (i.e., the property) by the goddess Sati, and my heart was satisfied with that oath that you took for me concerning those goods of yours; and I hereby remove myself from you from this day forever. I will not be able to sue you . . . .” 23 Cowley 6: (A declares) . . . (4-7) “You have sworn to me by the god Ya’u ... about my land in regard to which I lodged a complaint against you before X and his fellow-judges, and they imposed upon you an oath to me, to swear by Ya’u in regard to this land, that it was no longer the land of myself, A. (7-11) Now these are the boundaries of this land in regard to which you swore to me (description). (11-13) You have sworn to me by Ya’u and have satisfied my heart concerning this land. I shall not be able to sue, etc. . . . .”

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land, but with an oath taken as to those calculations—is barred from subsequently questioning their accuracy, even if the calculations are shown to be incorrect. The next category of documents is that of simple receipts. In the light of our interpretation, the function of the phrase in such documents is obvious and needs no further comment. We come now to those instances classified by Muffs as atypical. The first is the receipt of a dowry by the groom in the context of a marriage document (TAD B2.6 [= Cowley 15]). It can now be seen that the groom’s declaration of satisfaction with the value (presumably total and individual, since the items are so carefully listed) has nothing to do with any contingent obligation to return the dowry but is simply an acknowledgement that the value stated is accurate. Should he at some time be obliged to return the dowry, this acknowledgement will be of great assistance in ensuring full performance of that obligation. The receipt of grain by agents in Cowley 2 can also be seen to reflect a perfectly typical use of the phrase. As Muffs correctly noted,24 the agents are acknowledging that the grain received by them tallies with the quantity stated in their contract. This acknowledgement does not create an obligation to deliver to the third party—that is the essence of the contract—but if they deliver short, it will prevent them from shifting the blame onto the original owner. Finally, we turn to the use of the phrase in CH 264. Here, its function is not so apparent, because the context is very different from that of private legal documents. It is necessary, therefore, to explain the background. The usual arrangement under Old Babylonian herding contracts was for the shepherd to be remunerated with a share of the profits, by taking any growth in the flock in excess of an agreed minimum. If the shepherd was unable to produce the agreed minimum, he was obliged to make up the deficit himself. 25 Naturally, this form of remuneration would fall due only at the end of the contractual period, when the sheep were brought in for shearing.26 24 Muffs 1969: 58. 25 Postgate 1975: 1-10; and Finkelstein 1968: 30-36. Cf. Kraus 1966: 48-52, 58-63. 26 Postgate 1975: 4.

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There are, however, occasional references to fixed wages, either in silver, rations, or in kind.27 The shepherd would still be expected to furnish a minimum growth in the flock and be liable for losses, which would be deducted from his wages.28 Again, it is most likely that these wages would be paid, or at least payment completed, at the end of the contractual period;29 hence the ease of deducting losses from the shepherd’s remuneration. The statement in CH 264 that the shepherd “is in receipt of 30 his full wages (and) his heart is satisfied” (idu gamrtim mair libbau b) tells us three things: first, he is paid a fixed wage; second, it is payable in advance; and, third, he has not complained of non-payment (or short payment). This last fact raises an evidentiary presumption that full payment has, in fact, been received by him. If he, then, fails to furnish his contractual minimum, the effect of the presumption is to bar him from claiming that there are unpaid wages against which he can set off the shortfall. The rationale of the presumption is to prevent the shepherd from employing an allegation of non-payment (or short payment) as a tactic in his defense to a claim of contractual negligence where he had not previously raised it as an independent claim. By way of postscript to this discussion we should note the associated phrase “he shall satisfy his heart,” which occurs in a small number of cuneiform legal sources and appears to be an undertaking that actual delivery will tally with legitimate expectations. We would suggest that it imposes the burden of proof as to actual payment upon the payor. 27 Postgate 1975: 9-10. E.g., VAS 9 59-60: (1-7) A has hired B from himself for one year to herd the sheep of C. (8-11) He will measure out 8 kor of grain as wages for one year and will weigh out 1 shekel of silver for wool-ration. (12-13) He entered (into service) on 24th Nisan. 28 UCP 10/1 58 (cf. Finkelstein 1968: 33; Postgate 1975: 5 n. 2): (1-6) A hired B for one year in the month of Ab. (7-9) 5 kor of grain are his wages, 2.2 kor his grain-ration, 1 shekel of silver his wool-ration. (9-12) Of the sheep that are the increase, he shall give 80 out of 100(?) and he shall be responsible for any lost: (13-14) He shall pay it by forfeiting from his wages (i-na-ad-di-u i-na i-di-u i-te-el-li). 29 Note the consecutio temporum in VAS 9 59-60, note 27, above. 30 Note that the verb “receive” is in the (active) stative, not in the preterite tense.

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Thus in CH 178 an unmarried priestess is to relinquish her inheritance share to her brothers in return for an equivalent income in the form of rations: “they shall give her grain, oil, and wool like the value of her inheritance share and shall satisfy her heart.” If they fail to give her these rations and do not “satisfy her heart,” she may give her property to a farmer and take the full income herself. The point of the phrase here, we suggest, is that it is for the brothers to prove that actual delivery was proportionate to the inheritance share, not for the sister to prove that it was inadequate. Likewise in CT 8 34b (= Schorr 1913: no. 202) a husband assigns property to a wife who may (during widowhood) give it to such of her sons as will support her and satisfy her heart (ipallai u libbaa uabbu). Again, it is the son claiming the inheritance who will have to prove actual delivery of rations in satisfaction of the customary norms. Finally, in BE 6/2 14 the joint owner of a wall will have to satisfy the heart of the co-owner with silver representing a proportionate share of the expenses of building the wall, and the burden of proving that his payment represents a full share, therefore, rests upon the payor. 31

31 In the few business documents in which the phrase occurs, the context is insufficient to show why assignment of the burden of proof to the payor should have been necessary. These documents all concern payments outstanding in grain or silver for items sold (BE 6/2 27) or hired (BIN 7 192) or upon loans to be returned with interest, usually at harvest-time (BE 6/2 16, 20, 25, 27; cf. YOS 8 111).

6 The Case of the Elusive Debtors: CT 4 6a and CT 6 34b Abstract A dossier of two Old Babylonian litigation records is explained as a creditor’s attempts to claim penal damages arising from breach of a contract to supply goods and his two debtors’ maneuvers to avoid immediate payment. The interpretation also reaffirms the interpretation of the disputed term mit rum as an additional equal amount.

Introduction1

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wo Old Babylonian legal documents, CT 4 6a and CT 6 34b, form a dossier relating to the same litigation. A creditor (C), the well-known financier Erib-Sin, is suing two debtors, Sin-iddinam (D1) and Etel-pi-Sin (D2), over a debt arising from the non-performance of their contractual obligation to him. The documents are depositions before witnesses by each of the debtors in turn, following a formal confrontation by the creditor.2 Although only one of the documents is dated, it is clear from their content that CT 4 6a, the confrontation with D1, preceded CT 6 34b, the confrontation with D2. The dossier, which has attracted the attention of numerous scholars, has most recently been studied by Zaccagnini (1996: 104-107) and by * Originally published in Zeitschrift für Assyriologie 93 (2003): 199-207. Copyright © Walter de Gruyter. Used by permission. 1 The abbreviations in this article follow those of CAD. [Editors’ note: see p. 451 for the complete list of abbreviations used in this volume.] 2 For a discussion of the legal act of ab tum, see Dombradi 1996: vol. 1, 295-302.

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Dombradi (2000: 40-64). Their efforts have considerably advanced our understanding of the texts but have resulted in radically different interpretations of their content, centering around the enigmatic term mit rum, which is used several times in CT 6 34 b. The purpose of this article is to build upon their insights in order to reconstruct more clearly the original transaction and the course of the dispute. For the full text of the two documents, we refer the reader to the meticulous edition of Dombradi (2000: 41-46, 59-61). We will reproduce here only excerpts that are germane to our discussion.

Contract and Breach In CT 6 34b, lines 7-11, C makes the following claim against D2: . . . 2 GIN2 KU3.BABBAR a-na UDU.NITA2 nu-da-ma-qá-am a-na ka-i-im ù D1 ad-di-in-ma UDU.NITA2 ú-ul tu-a-bi-la-nim I gave you and D1 two shekels of silver for a ram nudammaqam, and you (pl.) did not deliver the ram to me. Dombradi (2000: 46-55), after a thorough review of possible contract types, argues that the transaction here described was a partnership between all three parties, creditor and debtors. The purpose of the loan was to purchase a ram for their mutual benefit, on the analogy of an ana mim contract (Lieferungskauf), although not using that technical terminology. From her description, it seems to have been not so much a credit transaction as a mandate by one partner to the two others.3

3 She compares it to the medieval commenda partnership, although she admits that it lacks the element of sharing profit or loss on a joint venture. Rather, the two agents’ profit would have been in the margin between the capital supplied and the purchase price of the ram.

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Dombradi relies on two pieces of evidence in the text. Firstly, in line 12, the term “partner” is used of one of the parties, and secondly, the curious term nudammaqam, which she has confirmed by collation as the correct reading of the signs at the end of line 8. She translates “wir werden für mich etwas Gutes tun,” thereby implying a mutuality of purpose.4 Neither argument is sustainable. The term “partner” is used by C, who in addressing D2 actually refers to D1 as “your partner” (tappaka), thereby excluding himself from the partnership (otherwise he would have said “our partner”). The partnership is thus between D1 and D2, with C standing outside as the creditor. Likewise, the translation of nudammaqam would create not a partnership for mutual benefit but a societas leonina (“for me”), where one partner has all the profit and the others only the risk. The translation is in any case at best awkward, verging on the syntactically implausible in any language. Dombradi is forced into an artificial translation of nudammaqam by the fact that it appears to be a non-motion verb with a ventive ending.5 There is, however, another solution to this problem, which is suggested by Dombradi’s own insight that the word is inserted here in parenthesis to allude to the type of the transaction agreed. It is a peculiarity of the use of the ventive that where two verbs are joined by the copula, only the second being a verb of motion, the first may nonetheless take the ventive as well. For example: aammam-ma . . . attallakam “I will buy and come hither.”6 The parenthetical quality of nudammaqam suggests that it is being used here elliptically—that it is only the first of two verbs joined by a copula, the second part of the clause remaining unstated. The second verb is revealed three lines later:  bulum. The full phrase would have read nudammaqam-ma nuabbalam*—“we will make it (i.e., the ram) good and deliver it.”7

4 Dombradi analyzes the verb as an intransitive D-stem with a personal ventive ending (2000: 43-44). 5 See the detailed discussion in Dombradi 2000: 43-45. 6 GAG §82c; see now Kouwenberg 2002: 218-222, who calls it the anticipatory ventive. 7 Although Kraus (1987: 35) took this as a case of dummuqum without a second verb joined by the copula, his translation assumes an elliptical use of nudammaqam here: “Wir werden einen guten Hammel (liefern).” Ellipsis is found in Old Babylonian contractual clauses, as in the phrase “if X hates,” which is sometimes used instead of the

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Thus interpreted, the term has a parallel in the Old Babylonian matrimonial adoption contract recorded in CT 47 40. A woman adopts a girl as daughter and daughter-in-law from her parents, pays them in advance her betrothal payment (teratum) and undertakes that udammaqi-ma ana m tim inaddii, “she will make her good and give her to a husband.” Landsberger (1968: 94) translated the verb dummuqum “ausstaffieren,” a surmise justified by the context, but perhaps a trifle too specific.8 The point of the arrangement is that the adoptress will raise the adoptee, making the necessary investment, whether material, social, or moral, to turn her into a suitably marriageable woman. In the same way, in our case the partners D1 and D2 agreed to deliver a ram with value added, possibly by purchase but more probably by breeding and fattening a lamb.9 For this purpose they received two shekels from the creditor.10 The arrangement is closely analogous to the receipt of advance payment for the supply of goods to be manufactured, as in VAS 8 86: A and B have received ( u b a -an -t i- me) one shekel of silver from C. From the financially sound and reliable one . . . . In the month of Elul they shall give sixteen sar of bricks. If they do not give, they shall pay two shekels of silver. The contract is dated to the month of Adar; so they have six months in which to make the delivery. The silver advanced is regarded as a debt, as shown by the use of technical terminology, with payment in the manner of datio in solutum (see Skaist 1994: 22-25). Note that the contract contains two clauses relating to performance—a two-fold penalty for failure to defull formula “if X hates and says [verba solemnia of divorce].” See Westbrook 1986b: 399-401. 8 Not relevant to our discussion is the well-attested use in letters of dummuqum in hendiadys with another verb with the meaning “do a favor and (action of second verb)”; see CAD D 63; and Kraus 1987: 26, 34. Contracts are about obligations, not favors. 9 In our view, Kraus’ translation—”Wir werden einen guten Hammel (liefern)”—while interpreting the phrase as elliptical (see n. 7 above), misses the point of the speaker using a verb rather than an adjective (quote in Kraus 1987: 35). 10 As suggested by Leemans’ translation (1991: 318): “pour rendre bon un bélier.” Whether this was a tadmiqtum transaction is of little consequence, since we know so little about that type of contract.

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liver and a joint liability clause. The effect of the latter is to enable the creditor to collect the whole of the debt or penalty from any single debtor, without regard to the existence of co-debtors (Landsberger 1937: 120-123; Skaist 1994: 231-237). The litigation in our dossier concerned breach of a similar contract to supply, and in the same way, the injured party sought payment of silver, not performance of the contract. Whether the contract also contained the two extra clauses, of double repayment and joint liability, depends upon our analysis of the parties’ statements. As we shall see, the presence or absence of these clauses is crucial to our understanding of the course of the litigation.

The First Claim D1 and D2 have borrowed two shekels from C in return for a promise to supply a ram, which they have failed to honor. C brings suit with regard to the debt but meets with complications. His first step is against D1, as recorded in CT 4 6a. D1 replies to C’s (unstated) claim with three offers to pay: a) one shekel on deposit with a third party, which C may take from the latter; b) two shekels if D2 fails to acknowledge11 and pay one shekel “of receipt” (a U-TI-A); 12 c) one shekel received from C, on a contingency involving an order by two other persons.13 11 Following Dombradi’s interpretation (2000: 45-46) of the verb burrum here and in CT 6 34b as bestätigen. 12 The logogram may represent either namartu, “goods/sum received,” in which case it tells us nothing of the transaction behind it, or melq tum, a type of loan. According to the Edict of Ammi-aduqa §7, it is a type of loan which, like ubullum, is subject to annulment by a royal debt-release decree. Otherwise, it is seldom attested, and its nature is not clear. It could relate to the type of transaction recorded in VAS 8 86, but cf. our remarks on tadmiqtum in n. 10 above. 13 Lines 20-25: “As for the one shekel of sealed silver that you gave me, if A and B declare/order (reading i-qá-bu-ma), I will pay one shekel of silver.” Notwithstanding

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According to Zaccagnini’s analysis (1996: 106-7), payment a) does not belong to the transaction that is the subject of CT 6 34b, while according to Dombradi (2000: 61), it is payment c) that does not belong. We see no good reason to exclude either. It is true that we cannot identify the parties in payments a) and c), nor are we told their connection with the litigants, nor the nature of the contingency in c). None of this means that they were not interrelated. It should be enough that they are part of D1’s statement before witnesses in a record of litigation. Methodologically, we must assume that all the matters in this document relate to the same claim, unless we have evidence to the contrary. The fact that one payment would not fit a presupposed calculation is no such evidence. On the face of it, then, the document tells us that: a) D1 and D2 have received one shekel each from C; b) if D2 fails to acknowledge and pay his shekel a U-TI-A, then D1 must pay two shekels; c) D1 agrees to pay C in total a maximum of four shekels (two that he admits to owing directly and two on the contingency of D2’s default). The payments in this document thus fit the pattern of a loan with a twofold penalty. The only objection might be that D2 appears to owe only one shekel, but we do not know what payment terms lie behind the enigmatic qualifying phrase a U-TI-A (literally, “of receipt”).

The Second Claim The problem with D1’s convoluted offer is that it does not include any immediate payment. C is referred in all cases to third parties. He indeed appears to have obtained nothing, for his next move is to turn to D2, confronting him with D1’s statement, albeit formulated in somewhat different terms. According to CT 6 34b (lines 12-24), C declares: Dombradi’s collation, her reading is admittedly speculative. Our own collation did not resolve the problem: the final sign is over-written by the date formula. We agree with Dombradi, contra Zaccagnini, that B (Sin-iddinam) is not identical with D1.

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“I seized your partner D1, and he said: ‘If D2 acknowledges it, he will give you one shekel of silver mit ru, and I will give you one shekel of silver mit ru. If he does not acknowledge it to you, I will give you two shekels of silver mit ru. Earlier commentators (e.g., Landsberger 1924: 24-25) interpreted the offer in a straightforward way: each debtor is to pay one shekel of the debt of two shekels; but if the one defaults, then the other is responsible for the whole debt. Obvious as this solution may seem, on our reconstruction of the contract, it does not make commercial sense, since the creditor only gets back his capital, with no provision for interest or other compensation for being kept out of his money—not to mention any penalty for a blatant failure to perform. In principle, the purpose of a contractual remedy is to fulfill the injured party’s legitimate expectations, not to return him to the status quo ante. In this case, expectations are particularly important, since the debtors had a duty to create value added. Aside from the rationale of the claim, the premise of repayment in simplum ignores two factors of a formal nature. They are D1’s statement in CT 4 6a, discussed above, and the repeated use of the term mit ru, which would seem to be superfluous. The basic meaning of mit rum is “of equal amount” (CAD M/2 137, meaning 1c). Landsberger (1924: 24) understood it in this text as indicating the proportionate share of each partner—“. . . den (auf ihn/mich entfallenden) Teil(?) davon.”14 As Dombradi (2000: 55) points out, however, since the term also refers to the two shekels, it cannot mean an equal share. Furthermore, as Zaccagnini (1996: 106 n. 53) notes, Landsberger’s interpretation forces him into the inaccuracy of translating the second mit ru as “my share.” Dombradi (2000: 55-59) argues instead that mit ru, “its equivalent” (“sein Gegenwert”), in all instances refers to the value of the ram that the partners failed to supply.15 The difficulty with this interpretation is that the same ram would then be worth one shekel in two instances and two shekels in the third. (In fact, if the creditor is to realize any profit, the ram 14 Likewise, Leemans (1991: 318) explained mit ru here as “sa quote-part,” and cf. Schorr (1913: 316): “seinem Teile entsprechend.” 15 Following an informal suggestion of C. Wilcke.

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would have to be worth more). The two instances where the ram appears to be only one shekel are explained as follows: “Das geforderte Silber ist sein (anteiliges, weil es 2 Schuldner sind) ‘Entsprechendes,’ i.e. sein Gegenwert.”16 The qualifying word “anteiliges,” however, reintroduces the concept of proportional share which Dombradi rightly rejects. It does not become more acceptable by being implied in one case and not in another. Either the term refers to the value of the ram (2 shekels), or it refers to the value of a partner’s obligation (1 shekel). Zaccagnini (1996: 105) translates the three contingencies in the passage: “he will give you the mit rum of 1 shekel; . . . I myself will give you the mit rum of 1 shekel; . . . I myself will give you the mit rum of 2 shekels.” In all instances, therefore, he interprets the term as the equivalent of the sum mentioned immediately beforehand, that is, a doubling of the sum to represent the penalty.17 It seems to us that this is the preferable interpretation, because, on the one hand, it can properly apply to both sums and, on the other, the total payable will be four shekels, as in CT 4 6a.

The Final Offer D2’s reply to C’s claim is as follows (CT 6 34b, lines 25-29): “D1 will pay you your two shekels. I will bring you D1. He owes me ten shekels; if I do not bring him, I will pay the mit rum.” 16 Citing Wilcke’s communication (Dombradi 2000: 57 n. 67). This interpretation makes not only the possessive suffix -u with mit rum refer to the ram but also the accusative suffix in line 15: “if he acknowledges it (i.e., the ram).” The materiality of this translation, however, is more apparent than real. One can do many material things with a ram, but acknowledging it is not one of them. What is being acknowledged is of course an abstract element—the contractual obligation that relates to the ram. Wilcke admits as much when he translates, “Den Schafbock, d. h. die Verpflichtung ihn zu liefern, wird Etel-pi-Sin bestätigen.” Even more so, Dombradi’s rendering (2000: 42) “. . . ihn (= den Schaf[bock], sc. die Verbindlichkeit betreffs eines Schafbocks).” Since the real subject of -u is the contractual obligation, mention of the ram is in fact otiose. 17 Dombradi’s objection (2000: 56 n. 63) to this construction is an exercise in grammatical determinism. We would take the phrase “x, its mit rum . . .” as a straightforward casus pendens: “as regards one shekel of silver, I will pay its m.” Note that the word order in two of the three instances (lines 18 and 21) is: x – pronoun – its m. The resulting meaning is the same as in Zaccagnini’s translation.

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D2 could not reasonably argue that D1 owed the whole of the debt. Rather, he is tacitly accepting his share of the debt, that is, one shekel plus one shekel penalty, while trying to avoid paying the whole four shekels. He therefore offers to stand surety for D1’s appearance, a tactic that will at least buy time. Should he produce D1, C will still have the task to extract the money from him—that which he signally failed to do at their previous encounter, in spite of D1’s effusive declarations of willingness to pay all. Only if he fails to produce D1 will D2 agree to pay the mit rum, meaning the equivalent of the two shekels already paid by him (or at least acknowledged by him as his responsibility). Even then, there is a hint that payment will not proceed smoothly: D2 talks of taking the funds from D1’s assets, on the basis of what D1 owes on their partnership account. Execution upon D1’s assets might be a long drawn-out procedure, delaying final settlement for C even further.

Conclusions The contract between the creditor, Erib-Sin, and the two partners, Etel-piSin and Sin-iddinam, is of a type only rarely attested in writing. It may have belonged to the large class of contracts made informally, possibly between persons with a long-standing business relationship, that relied on part performance (here the advancing of a loan) to found liability. The fact that in litigation the question arose whether the debtors would acknowledge the debt points to the lack of a formal procedure. The other main issue would then be what terms, express or implied, were included in the contract. The sum of four shekels payable in CT 4 6a and the use of the term mit rum in CT 6 34b attest to the presence of a double-payment penalty clause, while the peregrinations of the frustrated creditor testify unequivocally to the absence of a joint liability clause. Otherwise, he could have claimed the full four shekels from either of his debtors without reference to the other debtor’s share of liability. Instead, the law appears to have regarded the loan as given severally to each of the debtors.18 The creditor 18 This is certainly the thrust of D1’s argument in CT 4 6a, lines 20-25, when he talks about “one shekel . . . that you gave me.”

100 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources was thus forced to approach each debtor separately for his share and to rely on their partnership contract to make each liable for the other’s debt. Partnership made each a surety for the other, but suretyship was still a residual obligation, which could be invoked only upon default by the principle debtor. The creditor’s first claim, against D1, proved to be a failure. D1 declared himself willing to pay his share, but his assets just happened to be “tied up” with third parties, and C apparently was unable to extract them. D1 also declared himself willing to pay D2’s share, but only on default by D2. The creditor then sued D2, perhaps with more success, since D2 appears at least not to have contested his share of the obligation. He temporized, however, on D1’s share, offering himself only as surety for D1’s appearance in court. Whether the creditor ultimately recovered the whole sum owed him is not known, since the two tablets record only interlocutory proceedings. The fact that those tablets remained in the archive, however, intimates that he was no more successful than in his previous efforts.

7 Social Justice and Creative Jurisprudence in Late Bronze Age Syria Abstract The private legal documents from Emar and its vicinity (late 14th to early 12th centuries B.C.E.) show evidence of creative jurisprudence in their attempts to reconcile the wishes of the parties with the norms of general law imposed by the courts, in particular the principles of social justice. Two areas are examined: i) contracts of sale and their relationship with the right of redemption by an impoverished seller; ii) testaments and their relationship with the customary status of women within the family.

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he legal texts from Emar and its vicinity (late 14th to early 12th centuries B.C.E.)
provide us with great insight not only into the law of Late Bronze Age Syria but also into deeper aspects of the cuneiform legal tradition. The scribes of Emar, writing in Akkadian, drew upon the inheritance of Mesopotamian law, but at the same time their documents contain much phraseology that is unique or that is shared only by their close contemporaries. Through the interaction of these two influences, the local and the external, in the legal documents, we can perceive something of their jurisprudence, of the means by which they sought to reconcile through law conflicting socioeconomic interests within their society and the competing demands of ethics and pragmatism. It was W. Leemans who made the first steps towards a juridical analysis of the Emar material, in an article published in this journal (Leemans 1988). This study acknowledges its indebtedness to his pioneering work.




* Originally published in Journal of the Economic and Social History of the Orient 44 (2001): 22-43. Copyright © Koninklijke Brill NV, Leiden. Used by permission.

102 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources We will consider two aspects of Emar jurisprudence: the influence of principles of social justice on the formulation of certain contracts of sale, and the effect of testamentary dispositions on the role of women in the family.

Contractual Freedom and Social Justice Sale of Land Two land sale documents, Arnaud Textes syriens 53 and 65, are remarkable for their similarity to each other and for their atypical character in the Emar corpus.1 Arnaud Textes syriens 53 1. mia-’-za-nu DUMU u-i-a-E2-di8-tár 2. E2 a-bi-u a-na mki-it-ta 3. DUMU la-al-i a-na 20 GIN2 KU3.BABBAR.ME 4. a-na AM3 id-din um-ma 5. ur-ra-am e-ra-am mki-it-ta 6. i-qáb-bi ma-a E2-ka ul 7. a-la-qì-mi a-na KU3.BABBAR.ME-u 8. U-ú li-i-li ù um-ma 9. mia-‘-za-nu i-qàb-bi ma-a 10. E2-ia te-er-ra-am-mi 11. KU3.BABBAR.ME TE2.BI a-na 12. mki-it-ta i-na-din 13. E2-u lil-qì 14-22. Seals (2) and witnesses (7) lower edge 23. ù qa-ta-ti-a E2 an-ni-i 1 Both are Syro-Hittite style texts, but they do not share the samre parties or witnesses. Arnaud Textes syriens 53 was written by the scribe Belu-malik, but unfortunately the name of the scribe is not given in Arnaud Textes syriens 65. On the two different scribal schools at Emar, Syro-Hittite and Syrian, see Wilcke 1992a. Despite considerable differences in formulation, we have been unable to detect any differences of substantive law in the documents drafted by the two schools.

Social Justice and Creative Jurisprudence in LBA Syria 24. A.A3.ME-u i-na EDIN.NA 25. mki-it-ta i-a-bat 1-4 Ia’zanu, son of uria-bit-Atarti has sold the house of his father to Kitta, son of Lalu, for 20 shekels of silver. 4-8 If in the future, Kitta syas: “I do not take your house,” he shall forfeit his silver. 8-13 And if Ia’zanu says: “Return my house to me,” he shall pay Kitta the silver, the equivalent, and he may take his house. 14-22 (Seals and witnesses.) 23-25 And Kitta will seize his fields in the country as a pledge for that land. Arnaud Textes syriens 65 1. fa-da-ma-DINGIR-lì DAM ma-bi-ka-pí DUMU ga-a-ki 2. it-ti fdKUR-ni-wa-ri ù it-ti fim-mi 3. fa-ab-ú ù it-ti fa-bi-ú 4 DUMU.ME a-bi-ka-pí 4. E2-tu 4 a m a-bi-u-nu a-na mEN. GAL 5. ù mtu-ú-tu 2 DUMU.ME mIR3 - DINGIR.ME 6. a-na 45 GIN 2 KU 3 .BABBAR.ME a-na MU.MEti dan-na-ti 7. a-na AM3 ..LAàm it-ta-an-nu-ú 8. ur-ra-am e-ra-a m um-ma DUMU.ME ma-bi-ka-pí 9. kier-e-tu4 i-tu U mEN.GAL 10. ù mtu-ú-tù i-le-eq-qu-ú 11. 90 GIN2 KU3.BABBAR.ME TE2.BI a-na mEN.GAL 12. ù mtu-ú-tù li-id-din-ma 13. kier-e-tu4 u-nu lil-qu-ú 14. ú um-ma EN.GAL ù mtu-ú-tù a-na 4 DUMU.ME a-bi-ka-pí 15. a-kán-na i-qáb-bi ma-a E2-ku-nu la-a a-la-qì-mi 16. a-na KU3.BABBAR.ME NU.TUKU 17. a-nu-ma KU3.BABBAR.ME AM3 E2tu4 a-na tu-ra-dKUR 18. DUMU at-tu-wu e-te-ru-ub Seals (3) and witnesses (7)

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104 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 1-7 Adama-ili, wife of Abi-kapi, son of Gaku, with Daganniwari and with Immi, abu, and with Abi’u, the four children of Abi-kapi, have sold the house of their father for the (full) price to Ba’al-kabar and Tutu, the two sons of Abdi-ili, for 45 shekels of silver in a year of famine. 8-13 In the future, if the children of Abi-kapi will take the land from Ba’al-kabar and Tutu, they may pay Ba’al-kabar and Tutu 90 shekels of silver, the equivalent, and take their land. 14-16 And if Ba’al-kabar and Tutu say to the four children of Abi-kapi as follows: “I do not take your house,” they have no claim to the silver. 17-18 Furthermore, the silver, the price of the house, has gone in to Tura-Dagan, son of Attuwu. The documents share four features: 1. They are formulated ex latere venditoris. 2. Neither the dimensions nor the location of the property are given; it is described merely as the house of the seller’s father. 3. They contain a redemption clause. 4. They contain a clause penalizing the buyer for revoking the sale. The first three features make it abundantly clear that the background to these sales is indebtedness. Sales of land at Emar are typically formulated from the buyer’s point of view; formulation from the seller’s point of view is relatively rare. Most such documents contain a redemption clause and reflect a sale under special conditions—either within the nuclear family (Arnaud Emar 6 156; Beckman Emar 7; Arnaud Textes syriens 81) or due to economic difficulties, such as famine (Arnaud Emar 6 82) or insolvency (Arnaud Emar 6 123). Sale into slavery was always formulated ex latere venditoris and inevitably resulted from debt and impoverishment (see the next section). Description of the land as the “house of the father” emphasizes the fact that the heirs are selling the family estate, which implies the

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death of the head of household—a common cause of economic distress.2 In Arnaud Textes syriens 65 the sellers are a widow together with her four children, although only the children are mentioned as potential redeemers. They may still have been too young at the time of sale to negotiate for themselves. Further clauses in the two documents confirm this impression. In Arnaud Textes syriens 53:23-25 other lands of the seller are pledged as security. This clause is characteristic of a loan transaction; it is unexpected in a sale document.3 Arnaud Textes syriens 65:17-18 reveals that the purchase price was paid not to the sellers but directly to the sellers’ creditor. This arrangement is found in two other sale documents (Arnaud Emar 6 15 and Arnaud Textes syriens 33), but is more frequent in other types of transactions involving insolvent debtors, where a financier takes over the debtor’s property or person in return for paying off his debts (Arnaud Textes syriens 78; Arnaud Emar 6 121; Beckman Emar 10). The financier is either adopted as the debtor’s heir or else acquires the debtor as a slave or as an antichretic pledge. Finally, Arnaud Textes syriens 65:6 adds that the sale was made in a year of famine, a notice frequently found in standard sale documents, although this is the only Syro-Hittite style example. Fuller versions refer to a year of war and famine, when the city was besieged and the price of grain was inflated.4 Although not mentioned in Arnaud Textes syriens 53, it may have been the background to that sale also, given the close correlation between the two documents. Thus it seems clear that the sellers in both cases were parting with family property under pressure of debt and economic hardship caused by the death of the father and a general calamity, possibly the siege of the city

2 Cf. ASJ 13 no. 21; Arnaud Textes syriens 56, 80. 3 It may be tied to the possibility that the buyer has not yet taken possession of the land sold, but there would seem little rationale in seizing fields outside of town when he could simply seize the property being sold itself. We consider it more likely that the clause served in lieu of a warranty of title, to ensure that the buyer could obtain compensation from the sellers if a third party (namely, another creditor) was able to make good claims against the property sold. Cf. Arnaud Emar 6 209. 4 See Zaccagnini 1995: 96-100. The notices may have referred to more than one such emergency.

106 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources by “Hurrian” troops.5 It is against this background that we must interpret the fourth, and most curious, feature of these two contracts—the clause penalizing the buyer for revoking the sale. To our knowledge this clause is absolutely unique in the cuneiform record. It provides that the buyer will forfeit his payment if in the future he declares “I do not take (your) house.”6 This is not the same as a penalty for repudiating the contract, as is frequently found in cuneiform documents of sale. The clause assumes that the buyer could assert a right to relinquish the property bought and receive back his purchase price. No such right, however, is recognized anywhere else in the ancient Near East. On the contrary, it would contradict the purpose of a contract of sale. A contract is by its nature designed to freeze the process of bargaining at a given point, so that the parties can no longer change their minds. The purpose of a contract of sale is to effect the permanent transfer of ownership in certain property in return for the permanent transfer of the purchase price. Once these two actions have been completed, the results should be irreversible. In this case, the verb “I do not take” might suggest that the buyer may not yet have taken possession of the property. Although it explains why he might be tempted to withdraw, it would make no difference in law. The price has definitely been paid, since the penalty is that it be irrecoverable. In all ancient Near Eastern legal systems, full payment of the price was the point at which ownership of land passes.7 The fact that the buyer had not yet taken possession of the property would give him no right in law to withdraw from the contract. There was, however, one legal exception to this principle of finality, and that was the right of redemption. The concept of redemption derives 5 Arnaud Emar 6 42 and ASJ 12 no. 7 (cf. Arnaud Textes syriens 25). See Astour 1996; Skaist 1998. 6 The nearest equivalent is CT 45 60, an Old Babylonian litigation record in which one party to an exchange of land later says (lines 21-22): “(the land) which I took in exchange I do not take; it is returned to you” (a ana puim elqû ul eleqqe turrakkum). The case is not comparable, however, as the statement is not a contractual clause. 7 That is why payment of the price is always present in the operative section of sale documents, from the Fara period on (see Steinkeller 1989: 22-29). It is also why at Ugarit, the local verb amata meaning “to pass (of ownership)” glosses the logogram AM3.TIL.LA “full price.” On this point, see Westbrook 1991b: 90-117, esp. 114-15; and cf. Huehnergard 1989: 68. For Emar, cf. ASJ 12 no. 11.

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from the law of pledge, which is its natural setting. In a contract of loan secured by a pledge, the creditor and debtor each transfer property to the other, but the contract foresees that the transfer will be reversed: the debtor will repay the loan (plus interest, if applicable) and the creditor will return the pledge. The principle of reversibility is the very essence of the contract. In many ancient Near Eastern systems, however, the right to redeem appears also in the law of sale. In that context, it is an unnatural extension of the principle, for it allows the seller to do what it was earlier suggested the buyer could not, namely, to overturn the principle of irrevocable property transfer that is the whole purpose of the contract. The rationale of this extraordinary right lies in the realm of social justice. It was designed to correct the injustice that could be caused when family property—ancestral land or members of the family—was sold under pressure of economic hardship, in particular, debt. Where the sale amounted in practice to the forfeiture of a pledge securing a loan, the right of redemption restored the real underlying nature of the transaction, treating the price as a loan and the property sold as a pledge, which might thus be recovered upon repayment of the original purchase price (Westbrook 1991b; Veenhof 1999). The right of redemption was just one of the measures of social justice that ancient Near Eastern kings were obliged to impose as part of their religious duties. According to an Old Assyrian decree granting a special right of redemption for family homes, it was given by the “grace of (the god) Assur to his city” (ennan liu: Veenhof 1999: 600, 603). Lev 25:1-2, 24 attributes it to the command of the god of Israel. It is not surprising then, that the right should appear in ancient Near Eastern law codes. Nonetheless, the provisions of the codes are careful to surround the right with restrictions—such is the potential for economic disruption in this unnatural encroachment upon contractual freedom. All the codes that provide for redemption confine it to circumstances of impoverishment and insolvency, and individual codes add different restrictions to its applicability: certain classes of property (land and family members sold as slaves), certain beneficiaries (the seller himself), and certain conditions, e.g., when the buyer decides to resell or within one year of sale for urban land.8 The background to all these different rules was, we 8 See CE 39, CH 119, and Lev 25:25-26, 29-30.

108 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources suggest, the local application of a generally acknowledged principle, through ad hoc decrees, precedent, and a residual discretion in the ruler and his courts to intervene against inequitable bargains.9 Naturally, the parameters of that discretion would differ between individual jurisdictions. Its appearance as a contractual clause is more surprising. This is the case with a few slave and land sales from Emar, among them the two documents under discussion.10 Were buyers, under orders from their rulers, dutifully inserting the rules of social justice lock, stock, and barrel into their contracts? It would not appear so. In Arnaud Textes syriens 65:8-11, the redemption payment is set at 90 shekels, double the purchase price, and in Arnaud Textes syriens 53:8-13 as the “equivalent” (TE2.BI = mitaris) which, as Zaccagnini has shown, means the same, i.e., the price plus its equivalent.11 Double payment is in fact standard in Emar land sale redemption clauses.12 At that level, it is more akin to a penalty clause in the buyer’s favor. 9 Decrees were sometimes promulgated allowing limited redemption of property sold previously: see the discussion in Veenhof 1999 of the decrees from Assur and Sippar. Judicial decisions would be needed in individual cases on what was a fair price and whether special local criteria for the applicability of the right had been met. 10 There are also scattered examples from other periods. Note especially an Old Babylonian land sale from Khafaji (JCS 9 96 no. 82), stipulating that the seller must redeem with his own funds, which has possible parallels at Emar in Arnaud Emar 6 121:13-14 and Arnaud Textes syriens 25:10-17. For the Old Assyrian period, see Hengstl 1987; for the Neo-Babylonian period, see Oppenheim 1955. 11 Zaccagnini (1996) rejects the earlier accepted interpretation of this phrase as meaning simple payment (also assumed by us in Westbrook 1991b: 14-16). A recent study by E. Dombradi (2000) questions Zaccagnini's conclusions for the Old Babylonian period, interpreting the phrase as simple payment in the one significant source: CT 6 34b. We do not find Dombradi's interpretation of that document compelling, but a detailed discussion would be outside the bounds of the present article. However, in the same article Dombradi announces a forthcoming study with the same results for the Emar texts. As that study is regrettably not available to us at this time, our own conclusions in what follows, insofar as they are based on our present understanding of the phrase, must be regarded as provisional. Nonetheless, we would note that the striking parallelism of TE2.BI and a numerical double in these two documents, and the logic of the reciprocal penalty clauses within each document, seems to us very strong evidence of the correctness of Zaccagnini's interpretation of the use of the phrase at Emar. 12 The term redeem (a ipaar: AuOr 5 9) is used interchangeably in these clauses with other terms for claim: a ibaqqar(u): Arnaud Emar 6 90, 122, 123; mannummê . . .

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Leemans takes the opposite view, that redemption at Emar was purely a creature of contract, brought into existence only when bargained for. This contractual stipulation was entirely different in character from the right of redemption found in the law codes (Leemans 1988: 229-32). Leemans cites Hengstl’s analysis of comparable clauses that appear in a small number of Old Assyrian slave sales. According to Hengstl, the purpose of those transactions was (in the light of later Greek and Roman models) to provide a pledge by way of interim security for a creditor (Hengstl 1987: 110-11). That hypothesis seems to us unlikely. From the buyer’s point of view, outright purchase encumbered by a right of redemption would suggest not that he anticipated repayment, but rather that he had despaired of it. Indeed, for an interim measure designed to ensure repayment, it is remarkable (as Hengstl himself notes) that repayment lies at the discretion of the seller/debtor. A different approach would be to argue that the transaction was an outright sale, but that the double payment was truly a penalty, in the buyer’s interest, to deter any future claims on the property. In this role, however, the clause is a little half-hearted. Unlike a real penalty clause, it does not block redemption altogether or interpose an impossible payment. On the contrary, it admits that if the sum is paid, the redeemer will in fact acquire ownership.13 It is not that harsher terms are unknown to the Emar sale documents. Many Syro-Hittite style documents totally exclude the possibility of reopening the sale, stating that “this tablet will defeat” any claimant, even one who would redeem (a ipaar: Beckman Emar 80). Only one Syrian style tablet, Arnaud Textes syriens 82, mentions redemption at all; otherwise they impose huge fines on anyone raising a claim. Could the (relative) weakness of the clause indicate that it was inserted for the benefit of the seller? In a context of free bargaining this seems equally unlikely. The documents frequently stress the economic difficulties of the sellers, most of whom were insolvent, some on the brink of

ibaqqaru: Beckman Emar 12, Arnaud Textes syriens 33; a iraggum: Arnaud Textes syriens 66; mannummê b l dinu . . . illa: Arnaud Textes syriens 68; seller . . . iraggum: Arnaud Textes syriens 64. 13 In the case of the slave sales, discussed in the next section, a few are redeemable at par, e.g., ASJ 13 no. 18.

110 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources starvation. There would seem to be no motivation for a buyer to accord any right of redemption whatsoever. In summary, the redemption clause in the Emar land sale documents defies easy characterization. It can be classified neither as a simple reflex of the social justice measure found in the law codes nor as the untrammeled initiative of a party to a free market transaction, whether the buyer or the seller. Its relationship to both is more subtle, as a broader investigation of its use at Emar shows. The double-price redemption clause at Emar is not only found in contracts of sale. It appears in other transactions involving debt, and where it does so, it emerges that the redeemer did have a right to redeem at par which he had forfeited, and for good reason. The contract of personal antichretic pledge at Emar has in its basic form no minimum period of service before redemption, as for example is found in tidenn tu contracts at Nuzi.14 There is, however, a variant form: in return for a minimum period of service, namely, the lifetime of the creditor and his spouse, the creditor forgives part or all of the debt (Arnaud Emar 6 16, 117). The penalty for premature redemption by the debtor is repayment of the principal, with a doubling only of the forgiven portion of the debt. It is a fair bargain, particularly since it is balanced by forfeiture of the debt by the creditor if he demands repayment prematurely. The same principle is applied to straightforward debt slavery in Arnaud Emar 6 205: on the death of the debtor, the creditor took his two children as slaves, but before a public tribunal offered their uncles the opportunity to redeem them for the value of the debt. The uncles refused, whereupon the creditor confirmed the children as his slaves, with the proviso that anyone in the future who claimed to redeem them would have to pay two slaves for one. Analogous considerations seem to underlie the opposite case, namely, the few land sale contracts where redemption is allowed at the original selling price. In Arnaud Textes syriens 82, where the owner’s brother in his absence bought his land in return for paying his debts, the owner will be allowed on his return to redeem at par. Their other brothers are excluded altogether by a prohibitive penalty. In Arnaud Emar 6 123, an insolvent debtor who sold his land directly to his creditors for the exact sum owing 14 ASJ 10 no. A; Arnaud Emar 6 77; ASJ 13 no. 35. For Nuzi, see, e.g., Eichler 1973: 134, no. 43. On antichretic personal pledge see the next section.

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(instead of to a financier who would then pay off his creditors, as is usual), may redeem at par, albeit within a limited time, while any other claimant must pay double.15 It is worth comparing two other cases. In Arnaud Textes syriens 81, where a brother sells to his sister, he can reclaim only upon payment of four-fold the original amount. It is clearly she who is regarded as the weaker party, in need of protection. In Arnaud Emar 6 115, two brothers sell off family land in order to pay the family debts. Should the third brother turn up and claim the property, he must pay double. It would appear that he is being penalized for his absence during a family crisis, but the assumption seems to be that he would otherwise be entitled to redeem at par. Accordingly, it is reasonable to suppose that the rules of social justice at Emar were a hidden hand, setting the parameters within which a fair bargain could be struck, so as to avoid interference by the courts. In the case of those land sales that contained a redemption clause, double the purchase price was considered fair, due to circumstances that the parties were well aware of but that are not usually stated in the text. The same hidden hand may account for the curious phenomenon of statements against interest in the sale documents. Documents recording the sale of property were drafted for the buyer’s benefit, to provide him with proof of title. Matters against his interest would be recorded only if the seller were strong enough to insist on them or if they were necessary to ensure the legal validity of the transaction. One such element is the frequent statement that the sale took place in a year of famine. In spite of their pathetic appeal, such references were, in our opinion, intended to 15 Lines 10-16: úm-ma ur-ra-am e-ra-am mZU-ba-la a-du U4.1.MU.KÁM KU3.BABBAR.ME 30 GIN2 KU3.BABBAR a-a-u a-na EN.ME-u i-na-din é-u lil-qí ianu-ma-a U4.2.MU.KÁM e-ti-qa a i-na EGIR U4-mi E2tam a-a-u i-pa-qa-ru KU3.BABBAR.ME TE2.BI li-din-ma E2-u lil-qí. The difficult phrase a-du U4.1.MU.KÁM . . . U4.2.MU.KÁM e-ti-qa is translated by Arnaud in his edition (1986: 131) “en un seul jour . . . deux jours ayant passé” and by Zaccagnini (1996: 93) “within the term of one year . . . (the term that marks the beginning of) the second year.” Neither can be conclusively deduced from the word order. On the first interpretation, the seller has a day's grace to exercise his option to the exclusion of another claimant's offer; on the second (which seems to us more likely), the seller has an exclusive option for one year, after which other claimants may buy.

112 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources justify harsher terms in the contract than the seller would have been permitted in normal times. As a matter of public policy, it might be deemed advisable to relax the rules of social justice during a siege or similar national catastrophe, in order to encourage those with sufficient financial means to use their resources to keep their fellow citizens alive. The phrase was thus an argument to a potential interfering court that the contract was still valid. It is against this background that we may interpret the unique clause in the two contracts under discussion barring reversibility by the buyer. It reveals that the sellers in these cases had an interest in the irreversibility of the whole transaction. Buying houses in a year of famine, especially a famine occasioned by war, is a speculative operation. The land is not naturally productive, and if the war continues, the seller may be unable to realize his investment by leasing or reselling the house.16 The danger for the Emar sellers was that the buyers might be tempted to turn the weapon of social justice against them, claiming that the house was in reality a pledge and the sale price a loan. Under those circumstances the buyers could return their unprofitable investment and still have a claim for their money, with the possibility of seizing other assets of the sellers or their persons.17 The clauses of the two contracts were thus designed to achieve a balance: the sellers are penalized with a double redemption payment but a further provision protects them from any attempt by the buyers to foist redemption upon them. The message to the courts was that although the parties were well aware that the land was eminently redeemable, it was in the interests of social justice that the underlying transaction not be treated as a redeemable pledge.

16 A graphic parallel is found in Jer 32:6-15, when in the midst of the Babylonian siege of Jerusalem, his cousin Hannama’el asks him to purchase a plot of land from him, in Jeremiah's capacity as heir and potential redeemer. Jeremiah agrees to do so, confidently predicting that he will be able to recoup his investment: “For thus says the LORD of Hosts, God of Israel, ‘Houses and fields and vineyards will again be bought in this land.’” Of course, Jeremiah was acting altruistically on behalf of a relative, whereas the buyers at Emar were concerned only with the profit motive. 17 As we have seen, the seller in Arnaud Textes syriens 53 in fact had other land, which he offered as security to the seller (lines 23-25).

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Sale into Slavery When free persons entered into slavery, it was by reason of debt or famine or both (Zaccagnini 1995: 92-105). Some documents refer to a general calamity, e.g., “in the year of famine when three seah of barley cost one shekel of silver” (ASJ 13 no. 37), “in the year when enemy troops besieged the city and one seah of barley cost one shekel of silver” (Arnaud Textes syriens 25). Others refer to personal disaster, e.g., that “her creditors seized her and she could not pay them” (ASJ 13 no. 36). A common practice was for a financier to pay off the various creditors in return for the debtor becoming his slave (Arnaud Emar 6 121, 215). Where a person gave a relative into slavery, the transaction was formulated as a straightforward sale ex latere venditoris “for x shekels of silver, the full price, of their own free will, into the slavery of X” (AuOr 5 11: a-na 70 GIN2 KU3.BABBAR.ME AM3.TIL.LA i-tu SAG.DU-ú-nu-ma ana IR3.ME a X).18 Where self-enslavement was involved, the debtor was said to have “entered into his (= creditor’s) slavery” (Arnaud Emar 6 121: a-na IR3-ut-ti-ú e-te-ru-ub). Legally, the effect was the same, as demonstrated by Arnaud Textes syriens 44, where the debtor “entered as a slave for X for 20 shekels of silver, the full price.”19 About half the relevant documents contain a special phrase which is the particular object of our discussion: “dead or alive (BA.UG6 TIL.LA), X (= slave) is his (= purchaser’s) slave.”20 For example, Arnaud Emar 6 83 reads:21 A gave B, his unweaned daughter, for 9 (shekels of) silver, [the full price, in a] year of famine [in slavery] of her own free will to X. 18 Debtors sold their wives (ASJ 13 no. 18), grandchildren (Arnaud Emar 6 7), brother (with his wife and child; AuOr 5 11), sister-in-law (Arnaud Emar 6 118), daughter-inlaw (AuOr 5 12), nephews (Arnaud Emar 6 205) and niece (Arnaud Textes syriens 52). 19 All the enslavement documents but one are Syro-Hittite. The one Syrian style document, ASJ 13 no. 18, a slave sale, does not differ in formulation or substance. 20 Arnaud Emar 6 7, 83, 121, 205; AuOr 5 11; ASJ 13 nos. 18, 36; Sigrist Kutscher Mem. Vol. no. 1; Arnaud Textes syriens 26, 44. 21 Restoration of the broken parts of the tablet is assured on the basis of standard clauses in parallel texts.

114 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources [Dead or ali]ve, she is the slave of X [and] X is clear. If in the future A says to X, “Return my daughter to me and take [your silver],” he shall give 2 persons [. . .] and take the slave. (Seals and witnesses.) The legal purpose of this clause is not immediately apparent. A literal reading would suggest that the corpse of the slave is to remain the property of the purchaser. What benefit the purchaser would derive from such a gruesome arrangement is unclear. To our knowledge, there is nothing in the relatively well-documented cultic practices of Emar that would point to some religious or symbolic significance. Another possibility is that it refers to a problem discussed by various law codes: the potential penal liability of a slave owner should his debtslave die due to maltreatment (CE 23-24; CH 115-116; Exod 21:20-21). The purpose of the clause would then be to establish that the purchaser is free of liability in any circumstances. If the formulation seems unsuitable, it may be recalled that Exod 21:21 excuses liability on grounds that can be translated “for he is his silver” (ky kspw hw’). In Arnaud Emar 6 83, it is to be noted, the phrase is followed by the statement “[and] X is clear” (za-aku). Nevertheless, we would reject this interpretation as too far-fetched. There would seem to be no rationale for this particular contingency to be included: the Emar contracts are otherwise exclusively concerned with economic interests. It is inherently unlikely that a slave owner could exclude liability for homicide by a contractual clause or would seek to do so. From a formal point of view, where the scribe has drawn a separating line across the tablet in relation to this clause, it invariably appears after the clause (as in the example of Arnaud Emar 6 83 above). By that means, this clause is associated with the operational clauses of the contract, which it concludes, and is separated from the final clauses, such as redemption, which deal with contingencies.22 The significance of the zakû clause in 22 In some cases there is no line between the terms, only a line separating the terms from the witness list (Arnaud Emar 6 205; AuOr 5 11). True (but not invalidating) exceptions are Arnaud Emar 6 121, where a line is drawn only after the redemption clause,

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Arnaud Emar 6 83 does remain to be explained, and we will return to it below. In our view, this phrase performs a similar function to the clause in the land sale documents discussed above, which barred the seller from reversing the sale. It operates in that same sphere of ambiguity between pledge and sale that we have seen arise from the existence of the right of redemption. Some, but not all, of these slave sale contracts contain a redemption clause, the terms of which vary from simple to multiple payments. As we have seen, however, redemption was an underlying right that was only regulated in part by contractual terms. The existence of principles of social justice in the background must be presumed all the more so in the case of debt slavery, which involved family members or the debtor himself. The most common form of pledge of persons, found throughout the cuneiform record, was antichretic pledge. The debtor gave the creditor a member of his household or himself in pledge, and the work of the pledge for the creditor was deemed to be in lieu of interest on the loan. On repayment of the principal, the pledge was allowed to leave the creditor’s employ. Antichretic pledge at Emar was known as am l tu. There are few contracts of am l tu as such, and they are very tersely worded (Arnaud Emar 6 77; ASJ 13 no. 35), but it is also mentioned in a number of legal documents dealing with its transformation into a different legal relationship (Arnaud Emar 6 16 and 117, discussed above, and Arnaud Textes syriens 39 and 40) or with termination of the contract. The one example of the latter, ASJ 10 no. A, gives a very clear picture of the working of the institution: A together with his sons B and C was staying as an antichretic pledge of X for 105 shekels 40 grains of silver. Now A has repaid 40 shekels of silver to X from that sum and has released himself. B and C, and their mother D and their sisters, stay in X’s house for 65 shekels and 40 grains of silver. When A pays their silver he will break their tablet. Further, when A was staying in X’s house he was freed and went about for 9 months. Accordingly, when A and Arnaud Textes syriens 44, where a line is drawn only before the last clause, detailing payments to the creditors.

116 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources pays his silver, he shall give one son of his to X, and he shall do work for 9 months. A standard clause not attested at Emar deals with permanent loss of the pledge due to flight, disappearance, or death.23 These contingencies are met by various provisions, such as calling in the loan, charging interest, or the obligation to provide a replacement pledge. Where the debtor is also the pledge, a clause at Nuzi shifts the burden of the debt onto his heirs, who will be held as pledges in his stead. JEN 302 reads:24 Tablet of antichresis (tidenn tu) of A. He has received 20 shekels of gold from the house of B and for the 20 shekels of gold A will stay in the house of B. When he returns the 20 shekels of gold, he may leave. If A dies, his sons shall pay the 20 shekels of gold, and they may go (where they please). The point is that the risk of loss of the security lies with the debtor even where it was due to no fault of the pledge or the debtor, as is the case with death of the pledge. In this respect it is distinct from sale, where the death from natural causes of a slave, once purchased, is the loss of the purchaser alone (with some reservations for latent diseases and a few other conditions). It could not found a claim for reimbursement of the purchase price. The distinction is illustrated by another contract of antichresis from Nuzi, JEN 192: 25 Thus says A: I owe B two men, and now I have given B one man of the Lullu land as her sl[ave]. If that man acquires a claim, A will clear it and give (him back) to B. A has given B a second man in antichresis (tidenn tu) in lieu of the second man.

23 For the Old Babylonian sources, see Kienast 1978: 92-94, 116-18. For Nuzi, see Eichler 1973: 25-26. Temporary absence from work was penalized by a per diem payment. 24 Edition in Eichler 1973: no. 46. Also discussed in Eichler 1973: 28-29. 25 Edition in Eichler 1973: no 21.

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A shall give B a good quality man and he may take (back) his man. If that antichretic pledge dies, disappears, or flees, it is to (the loss of) A that he dies, disappears, or flees The contract distinguishes between two types of transfer. The first, into outright slavery, transfers full ownership and thereby extinguishes that part of the debt. The transferor must guarantee good title, as is usually the case in sale, but has no obligations beyond that. The second, by way of pledge, leaves the remainder of the debt still owing and therefore leaves open the possibility of redemption. At the same time, an express clause places the burden of loss of the pledge on the transferor. It does not say what his specific obligations are in that eventuality; it is considered sufficient to express it in terms of risk.26 In the light of this discussion, the phrase “dead or alive” in the Emar contracts is in our view designed to emphasize that the nature of the transaction is final sale, not pledge. It is placed at the end of the operational clauses to show that, notwithstanding the possibility of redemption, ownership has passed irrevocably as far as the buyer is concerned. As we have seen in the case of family land, it prevents redemption of slaves, which is a measure of social justice, from working in favor of the buyer rather than the seller. Although expressed in terms of property, its effect is contingent. If the slave should subsequently die, the purchaser cannot claim that he must be replaced because the debt is still outstanding or (in the case of self-sale) that the heirs inherit liability. 27 Sale of the slave amortized the debt altogether: his death was now the erstwhile creditor’s risk, in his status as purchaser. A final matter that remains to be clarified is the term zakû in association with the phrase under discussion. Although zakû normally means “free of obligations,” it can in an appropriate context have a different nuance, as sale contracts from the Late Bronze Age on illustrate.

26 Cf. the expression in Neo-Assyrian antichretic pledge documents: “if he (the pledge) dies or flees, it is upon (UGU) his owner (i.e., the pledger)” (ARU 126, 127). 27 At Emar, a person could be a debt-slave while his children and other members of his family remained free: Arnaud Emar 6 18. In AuOr 5 11, an express clause was considered necessary to secure the slave status of the debt-slave's future children.

118 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Among the standard terms we find a multiple clause used to describe receipt of payment by the seller: mair apil zakû “he has received, he is paid, he is clear” (or variations on this pattern). The third leg of the claus cannot refer to the end of an obligation of the seller, since he has none in relation to the purchase price. Accordingly, Cardascia translates for the Middle Assyrian documents: “a reçu; il est payé, désintéressé.”28 The term must, like its synonyms, express the notion that the seller is not entitled to anything more, because the transaction is complete. The same nuance, we would suggest, applies very aptly to the word zakû in respect of the purchaser in Arnaud Emar 6 83.

Female Inheritance Daughters as Sons At Emar, as elsewhere, the normal lot of a daughter was to be married off and to receive a dowry, which presumably passed into the control of her husband. Occasionally, however, she could be given an inheritance share exactly like a son. No change in status was necessary, since a daughter was already within the circle of potential, but not necessary, heirs. Thus in ASJ 13 no. 23, a daughter is allotted an inheritance share along with her three brothers. After their father’s death, the four are to enter upon the estate and divide it among themselves. Arnaud Textes syriens 80 records just such a division of the paternal estate, between two daughters. Nonetheless, the testator might also adopt his daughter into the status of a son when bequeathing her an inheritance share. In Arnaud Emar 6 31, the testator had three daughters. He allots the first, a arimtu, furniture and female slaves, i.e., typical dowry items. He adopts the second and third as sons (a-na DUMU-ut-ti-ia e-pu-u-unu), and gives the second in marriage. Notwithstanding her marriage, she and the third daughter are ultimately to enter and divide the paternal estate. In Arnaud Emar 6 181 the daughter is called the “second 28 Cardascia 1980: 517a. Cf. Gurney's translation of the MB phrase apl zakû rugummâ ul û: “They are paid, they are quit, they have no claim” (1983: nos. 21, 22).

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son,” mainly to emphasize the fact that she does not take a firstborn’s share, even though it is clear that she is older than the two brothers with whom she is to inherit (it is her duty to marry off her brothers). Thus far, the pattern is the same as established by Paradise for the Nuzi texts (Paradise 1980: 193-98). He suggests that the testator’s motivation for changing his daughter’s status to that of son is to protect her from the predations of potential heirs, such as her uncles or stepmother, especially when she is the sole heir (1980: 197). On the other hand, lack of male heirs was not the sole motivation at Emar for instituting a daughter as heir, as ASJ 13 no. 23 and Arnaud Emar 6 181 show. A feature that is peculiar to the testaments from Emar and the vicinity is the occasional statement that the testator has made his daughter “male and female” ( NITA2 ù MUNUS ). 29 Some commentators have assumed that this step was necessary to enable a daughter to inherit, but from our discussion above it is clear that this is not so.30 In most of the texts, however, the designation is immediately followed by a clause imposing upon the daughter responsibility for the family cult. 31 Most frequently she is called upon to “invoke my gods and my dead” (DINGIR.ME -ia ù me-te-ia lu-ú-na-ab-bi). 32 In all cases but one, she is also bequeathed the entire estate.33 The one exception, Arnaud Textes syriens 72, reveals the link between the two. It states that as regards her, the gods belong to the main house. This phrase, as van der Toorn points out, means that it is the main heir who will get 29 ASJ 13 nos. 25, 26; AuOr 5 13; Fales 1989: no. 66; Beckman Emar 15, 85; Semitica 46 12-14. In Arnaud Textes syriens 72 she is made DUMU.NITA2. Sometimes the status is accorded to another female relative, a sister (UF 26 197 no. 9) or a wife (Beckman Emar 23). 30 Huehnergard 1985: 429: “The purpose of the legal fiction is to enable a daughter to inherit, something which—apparently—she would not otherwise be able to do.” Likewise Ben-Barak 1988: 97. 31 In Arnaud Textes syriens 72, a complicated adoption and inheritance document, there are some intervening clauses. It is absent from Fales 1989: no. 66 and Beckman Emar 15. 32 ASJ 13 nos. 25, 26; Semitica 46 12-14; Beckman Emar 85: “honor”; UF 26 197 no. 9: “inherit.” Beckman Emar 15 refers indirectly to the duty (see below). 33 In ASJ 13 no. 25 there is no direct mention of an inheritance, but the penalty on her younger brothers/sons if they claim their inheritance share during her lifetime shows that she holds the undivided household.

120 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources the main house, and with the main house also the gods. Concomitant with his position was the main heir’s duty to take care of the household gods. Possession of the main house and responsibility for the domestic cult were thus two sides of the same coin (van der Toorn 1995: 36). Accordingly, if a testator wished to assign the continuation of the domestic cult to a female member of the household, he needed to fulfil two conditions. First, he needed to make her a male in the eyes of the law, since it would appear that in theory the cult was practiced only by males. Second, he needed to make her the principal heir, or at least heir to the main dwelling, since only the owner of that land could perform the cult. The purpose of the appellation “male and female” was not therefore to provide the daughter with an inheritance but to provide for the continuation of the family cult, the inheritance being only a means to this end.34 In Arnaud Emar 6 181, where the daughter was made “second son,” her performance of the cult was thereby excluded. The cult was an obligation; inheritance was a right that gave rise to it.35 This device was used by the testator when he had no suitable male heir but also as an insurance policy if he feared that the male line would fail.36 Thus in Beckman Emar 23 the testator grants the status, together with his estate, to his wife in the event that his son dies, and in Semitica 46 12-14 to a daughter if her brother should die. If the brother does not die, he is to marry her off, i.e., she is to resume the normal female role. In UF 26 197 no. 9, the testator makes his sister male and female prophylactically: if she bears children, she will inherit his gods and dead, which means that she will have to perform the cult. She is already heir to his estate, following a life estate in favor of the testator’s wife. 34 At Nuzi, the same concept is expressed in Lacheman and Owen 1981: 386-87, no. 6:27-31, by the testator adopting his three daughters as sons (ana mar ti) and providing “whoever among my daughters holds my fields and houses and dwells in my house shall serve my gods and my ghosts.” 35 Ben-Barak (1998: 94) misleadingly assumes that the cult was a right. Gross (1987: 84) recognizes that the cult was a duty but sees it merely as one of the incidental consequences of giving a daughter “the full status of son,” the main purpose being to attach the daughter's children to her father's lineage. 36 In AuOr 5 13 the testator states: “I have no male son; I have made fX my daughter male and female.”

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Wives as Fathers In a large number of testaments, the testator makes his widow “father and mother of my house,” sometimes adding that she is “head” (qaqqadu) of the house.37 In ASJ 13 no. 23 this status is given to her jointly with a daughter, in two documents to a daughter alone (Arnaud Emar 6 31; Beckman Emar 57), and in Arnaud Textes syriens 28 to the testator’s mother. 38 As Kämmerer points out, this status has nothing to do with inheritance. In a few cases, a separate provision gives the “father and mother” the whole estate (Beckman Emar 15, 71; Arnaud Textes syriens 47; UF 26 197 no. 9), and in others a mere share of the inheritance (Beckman Emar 57; Arnaud Textes syriens 50; UF 26 194 no. 8). Nor can it be for the material benefit of support, which is invariably the subject of a separate provision (Kämmerer 1994: 187, 201). In Kämmerer’s view the woman’s new status is of a social nature, although it is not altogether clear what he means by this term. Earlier (1994: 190), in discussing Arnaud Emar 6 31, where a daughter is given this status, he suggests that it is to give her the high social position of “mother.” 39 In UF 26 197 no. 9, however, the testator makes his own mother “mother and father.” It is hard to see what gain in social standing could have been achieved for the woman. It is in any case unlikely that a legal document would concern itself with according a purely social status. In his main discussion (1994: 201-2), Kämmerer defines the new status in terms of legal capacity (she is rechtsfähig), which is further defined as not being legally subordinate to another but having full capacity to conduct transactions (Geschäftsfähigkeit). There is, however, no basis for assuming that a widow at Emar, or even a wife, was legally incompetent if her husband had not happened to accord to her this special status. To whom would a widow, for instance, with young children be subordinate? 37 Arnaud Emar 6 15, 91, 181, 185; SMEA 30 no. 7; Semitica 46 12-14; ASJ 13 nos. 24, 26, 30; Dalley and Tessier Iraq 54 no. 6; Beckman Emar 15, 28, 37; Arnaud Textes syriens 45, 50, 71; UF 26 194 no. 8; UF 26 197 no. 9. 38 In Arnaud Textes syriens 47 it is given to two women of indeterminate status. 39 Beckman (1996b: 72) also sees the purpose as an “expanded social role” as head of household.

122 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources On the other hand, it is equally unlikely that her new status would have given the woman a free hand over the testator’s estate. 40 Since in most cases the inheritance shares of the heirs are assigned to them by the same document, to be taken on the widow’s death, the widow would have only a life interest in the estate. She could not therefore alienate the property on her own. Nor was management of the estate necessarily the aim. In ASJ 13 no. 23 where the testator makes his widow and his daughter (a qaditu priestess) joint “mother and father,” he also expressly assigns them possession (ana q ti . . . addin), which presumably meant management of the property. 41 In no other case is an express power given, and in many of them it would be unrealistic to infer that the testator’s intention was to grant management for life to his aging widow, as opposed to his heirs. Such an inference would seem to be excluded in Arnaud Emar 6 15 where the widow, notwithstanding her new status, is also granted a right to dwell in the matrimonial home. In our view, the testator’s purpose in assigning the status of “mother and father” is revealed by the penalty clauses used in a few cases. In Arnaud Textes syriens 71, any heir who states “my share!” during the widow’s lifetime forfeits his share. In UF 26 194 no. 8 the heirs are enjoined not to “make a share” (zitta ep u) until the “mother and father’s” death, on pain of forfeiture. 42 Normally speaking, on the death of the de cuius, his heirs entered the estate and divided it at their own initiative either in accordance with the de cuius’ testamentary allocations or “according to the custom of the city” (kma li: ASJ 13 40 Instances of a widow as testatrix, cited by Kämmerer 1994: n. 41 (Arnaud Emar 6 30, 59 and 128), give no indication that the woman had been made “mother and father” by her late husband; on the contrary, they could equally be cited as evidence that such a disposition was unnecessary. 41 One could argue that this was the purpose also of the express grant of the entire estate to the wife, which is found in a few testaments (ASJ 13 no. 22; Beckman Emar 15; Arnaud Textes syriens 47). We consider that the right being granted was more abstract (see below). 42 Cf. UF 26 197 no. 9, where the testator's sister, the sole heir, forfeits the estate if she denies her sister-in-law’s status as mother and father and refuses to support her. Also of interest is ASJ 13 no. 25, where a testator makes his daughter the mother of his three sons. They are not to claim their inheritance share during their “mother’s” lifetime (zitta ul qabî). The household is to remain undivided under their sister's nominal ownership.

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nos. 23, 25; Arnaud Emar 6 201; Beckman Emar 8). It could happen, however, that the heirs postponed division, sometimes for years, in which case the paternal household continued to exist in theory, as if the de cuius were still alive (Westbrook 1991b: 118-41). By making his wife “mother and father,” the testator indicates his desire to keep his household undivided after his death, at least for the lifetime of his widow. Since he can only ensure this result if there is a head of household, he attributes that status to his widow (or another female relative in special circumstances). She is theoretically owner of all the assets, but it is likely to have been a purely nominal ownership, except where greater control had been expressly given. The heirs will have to farm the estate and hold the houses in common, but without the usual option to divide it into new households.43 That decision, which will trigger the residual provisions of the will, lies solely with the widow as nominal head of household and need never be exercised by her. The testator’s motive in making this arrangement is not evident. Since it is invariably coupled with the duty of the heirs to support the new head of household, it may have been considered an extra safeguard for securing that support. As long as the heirs could not claim a specific share of the estate, they were tied to it and more likely to fulfil the condition of support. Summary A testator at Emar could bestow two different conditions of status upon the women of his household: “male and female” and “father and mother.” They had separate functions: the former relating to continuation of the family cult, and generally given to a daughter; the latter relating to the continuation of the undivided household, and generally given to a wife. The two can sometimes be found together in the same

43 Arnaud Textes syriens 47 does not appear to fit into this pattern. Two women are made “mother and father” and given free disposition over the estate, for which there appear to be no heirs. There is also no mention of support. It is not, however, a testamentary document but the report by a witness testifying after the testator's death as to his oral testament. Doubtless important details have been omitted from the record, which was concerned with some particular question, probably connected with litigation.

124 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources testament, but they are not occupied by the same person.44 It is possible that the office of “father and mother” included the cultic duty, which did not have to be spelled out, since the widow merely continued her husband’s household. In that case, the daughter who was appointed “male and female” would only take up her duties with her inheritance, on the mother’s death, when the last vestige of the father’s undivided house ceased to exist. 45

Conclusions The Emar archives contain no law codes, edicts or orders, which would give us direct access to their juridical thinking. Their legal sources consist of transactional records, drafted according to a body of rules whose existence is assumed but never expressed. Nonetheless, from the interstices of their technical clauses we can extract some of the features of their jurisprudence and appreciate its subtleties. The two topics discussed in this study illustrate the importance of legal fiction as a juridical tool and at the same time an awareness of the dangers inherent in a reality that is an intellectual construct. On the one hand, where the general law had assigned to women a more restricted legal capacity than men, ingenious testators were able to overcome those limitations through formal devices, in reliance on 44 In ASJ 13 no. 25 a daughter is called “mother” of her three younger brothers but is not made “mother and father,” although the undivided household is preserved by penalty clauses against the brothers claiming their shares in her lifetime. On the other hand, she is made “male and female” in her capacity as daughter and given the cultic duty to perform. Why the testator chose this mode is not clear. In two other cases the testator makes his daughter “mother and father,” but in both she is already a woman of unusual status: in Arnaud Emar 6 31 a arimtu, and in Beckman Emar 57 a qaditu. 45 Of the cases where both offices are found, Beckman Emar 15 and UF 26 197 no. 9 expressly grant the estate to the “mother and father,” so that the “male and female” will only inherit after the former's death. In ASJ 13 no. 26, which is missing the usual details of support, the “male and female” (daughter) and not the “mother and father” (widow) is made sole heir. In the light of the above texts, we would interpret it as applying only after the widow’s death. In the meantime, the widow, daughter, and the latter’s husband would continue to live in the undivided household. The interpretation of Arnaud Emar 6 185 is too doubtful, since it is broken at the relevant place.

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the idea that the law can create its own reality, even to the point of turning a woman into a man. On the other hand, where the law set up equitable mechanisms that saw beyond the fiction of outright sale into the reality of a debt-driven transaction, it was sometimes necessary to re-establish the opacity of the contract, for fear that equity might be abused to create a new legal fiction. In both cases the draftsman’s creativity was not arbitrary but the result of manipulating established legal concepts such as undivided ownership or burden of risk within limits set by the unseen hand of traditional law and the potential for intervention of the ruler and the courts.

8 A Death in the Family: Codex Eshnunna 17-18 Revisited Abstract This article attempts to explain the peculiarities of paragraphs 17-18 of the Code of Eshnunna and to show how these provisions fit within the literary context of where they now stand. Rather than being fundamentally about marriage, the two laws are of a commercial nature, focusing on property exchanged as part of a marriage agreement, and its possible restitution.

I

t gives me great pleasure to dedicate this contribution to a teacher and scholar whose now classic study has done so much to enhance our understanding of the Old Babylonian law code from Eshnunna. Paragraphs 17-18 of Codex Eshnunna read as follows: 1 Col. I, lines 13-18 DUMU.LU2 a-na E2 e-mi-im tir-a-tam li-bi-il-ma um-ma i-na ki-la-al-li-in i -te-en a-na i-im-tim it-ta-la-ak KU3.BABBAR a-na be-lí- u-ma i-ta-a-ar um-ma i-u-ús-si-ma a-na E2- u i-ru-ub lu-ú a-i-za-n[u-u]m [l]u kal-la-tum a-na i-im-tim it-ta-la-ak ma-la ub-lu ú-ul ú- e-i wa-tar- u-ma i-le-eq-qé

* Originally published in Studies in Honour of Reuven Yaron (ed. M. Rabello); Israel Law Review 29 (1995): 32-42. Used by permission. 1 The transliteration is of Tablet IM 52614 = Text B in Goetze’s edition (Goetze 1956). Text A presents only a garbled version of these two paragraphs, due to an error of homoioteleuton by the scribe.

128 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 17 Should the son of a man bring the betrothal payment to the house of the father-in-law, if one of the two dies, the silver shall return to its owner. 18 If he marries her and she enters his house (and) either the marrier or the daughter-in-law dies, as much as he brought he shall not hand over; he shall take its surplus. As Yaron has pointed out, the two paragraphs should be seen as a single unit.2 In this paper, I intend to address three problems that arise from the text: the identity of the parties, the justice of the ruling, and the position of these paragraphs in the code.

Identity of the Parties The interpretation of these obscure provisions has generally relied on the context supplied by a parallel in Codex Hammurabi (§§163-164): 163 If a man marries a wife and she does not bear him sons and that woman dies: if his father-in-law has returned the betrothal payment (teratum) that the man brought to his fatherin-law’s house, then the husband has no claim to that woman’s dowry; her dowry belongs to her father’s family. 164 If his father-in-law has not returned the betrothal payment, he shall deduct it from the amount of her dowry and shall return her dowry to her father’s house. CE 18 presents a direct parallel to CH 164, whose more explicit provisions establish a set-off arrangement for return of the dowry and betrothal payment when the marriage is ended by death (and there are no children to inherit).3 In contrast to the clear language of the Hammurabi law, its for-

2 Yaron 1988b: 35. 3 CH 163 contains a complication which does not concern CE, namely, the need for the set-off arrangements to take into consideration a custom whereby the betrothal payment had already been returned to the groom upon marriage as a-supplement to the dowry. See Van Praag 1945: 135-36; and Yaron 1988b: 176-79.

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mulation is so terse that scholars have been unable to reach a consensus on the exact meaning of its provisions, especially as regards the identity of the parties in the apodosis.4 If we are to assume, however, that the meaning was clear to contemporary readers, then there must have been some factor in the text itself which limited the number of possibilities and thereby avoided ambiguity at first reading. That factor is, I suggest, that the same two parties are the sole protagonists throughout paragraphs 17 and 18. Paragraph 17 has not been regarded as causing any problems. It has been taken by all commentators (including myself) to refer to the same events at an earlier stage, when death of the bride or groom annuls the betrothal.5 The only parties mentioned expressly, however, are the groom and the bride’s father. I would therefore suggest that it is the death of either of these two which triggers the restitution provisions.6 It is true that in the following sentence we are told that the groom proceeds to marry her, but I take the pronoun as looking forward to the next clause where the bride is referred to directly, rather than backward. The idea that the death of the bride’s father should vitiate the betrothal contract, or at least give grounds for rescission, may seem strange at first, but it is not so surprising when seen in its cultural context. Marriage in the ancient world, it has often been stressed, was an alliance between two families.7 The groom might be reluctant to marry into a family whose configuration had now been changed by the loss of its head. Another possibility is that the contract between the two men was regarded as a personal one, which was frustrated when either of the two was unavailable to fulfill his promises. On the other hand, death of the bride before the wedding might not necessarily vitiate the contract, as paragraph A 31 of the Middle Assyrian Laws reveals: If a man brings the betrothal payment to the house of his father-inlaw and his (inchoate) wife dies, (but) his father-in-law has 4 The scholarship is reviewed by Yaron 1988b: 183-87. 5 E.g., Goetze 1956: 62-63; Szlechter 1954: 47- 48; Yaron 1988b: 179-80; Westbrook, 1988b: 47. 6 Goetze 1956: 63, raises this possibility but dismisses it as not probable without further discussion. 7 See e.g., Cardascia 1969: 66-67.

130 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources daughters, if the father-in-law wishes, he may marry a daughter of his father-in-law instead of his dead wife, or if he wishes, he may take the silver that he gave. While the Middle Assyrian Laws are some centuries later than Codex Eshnunna, the cultural attitudes that they reveal are still considerably closer to those of the Eshnunnans of the Old Babylonian period than our own. The same attitudes, it may be added, appear to be behind Laban’s ability to substitute his daughter Leah for Rachel as Jacob’s bride in Gen 29:15-26. Evidence that death of the bride’s father could give grounds for rescission of the marriage contract is provided by an Old Babylonian document, Riftin 48, the opening lines of which read: [Because of the ma]rriage-gift which Sin-ashared, the district commissioner, and his brothers brought to the house of Belaniya as a marriage-gift, though the daughter of Belaniya was not given [to him], Lamassum wife of Belaniya was seized for the marriagegift. (Officials) examined his case, and they paid his marriage-gift to them. They shall not sue Lamassum wife of Belaniya again. My earlier analysis of this document has been criticized by Van der Mieroop for not recognizing the contradiction between this document and CH 160 which requires repayment in duplum by the bride’s father for breach of the contract of betrothal.8 In that study, however, I had tentatively suggested that the reason for payment in simplum here was that the betrothal had been ended by frustration as in CE 17, not breach as in CH 160.9 The frustrating event, moreover, was the death of the bride’s father, which might be inferred from his curious absence from the proceedings and the seizure of his wife alone for not repaying the money received. If the death in CE 17 is also that of the bride’s father, then the connection between the two sources is considerably stronger. If my interpretation of §17 is correct, then in §18 there is a shift in the identity of the persons who die. This accounts for the express statement in the protasis “either the marrier or the bride dies,” which would otherwise 8 Westbrook 1988b: 47. Van de Mieroop 1991. 9 Westbrook 1988b: 47.

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be otiose.10 The bride replaces her father, and the groom is identified in relation to her by the use of a new title, iz num. When appended to the participial form, the - num ending denotes the subject of the verb in the particular case, “the one who married in this instance,” and not a separate status. In the apodosis of §18, on the other hand, the subjects of its three verbs are not identified and should therefore remain the two protagonists, the groom and the bride’s father. As between these two, the subject of mala ublu is more likely to be the groom, since the phrase refers to a past event expressly mentioned earlier, namely, bringing the betrothal payment, for which the same verb is used.11 On the other hand, neither of the other two verbs in the apodosis can refer to the groom, since on one contingency assumed by the protasis he is already dead. Accordingly, they must refer to the father of the bride, who on the analogy of CH 164 need not hand over12 the betrothal payment made to him by the groom, but is entitled to receive only the excess over that sum of what he had paid, namely, the dowry. Our finding thus confirms Yaron’s interpretation of the apodosis, if arrived at by a different route.13

10 Goetze 1956: 59-60, originally restored line 17 as ù(?) a-a-a-ru-um(?), an otherwise unattested term, which he took to mean “afterwards,” translating “but soon afterward the young woman deceases.” On this interpretation, the paragraph dealt only with the death of the wife, as in CH 163-164. The present reading of line 17 was proposed by Landsberger (1968: 73) and confirmed by collation by R. Ellis (see Finkelstein 1970: 249 n. 39). The legal difficulties that arise due to the new reading have been detailed by Yaron 1988b: 181-83. 11 It might be argued that on the same grounds the phrase could refer to the bride, since the verb wab lum can be used of her transfer of the dowry, as in CH 156. There is indeed an allusion in the protasis to the dowry having been transferred, but it indicates a different verb. The statement “she entered his house” suggests the phrase commonly used in contemporary marriage documents: “this (dowry) is what A. (bride’s father) gave to her and caused to enter the house of B. (groom’s father/groom).” See, e.g., BE 6/1 84 (Westbrook 1988b: 113) and CT 8 2a (Westbrook 1988b: 118-19). 12 Cf. Yaron 1988b: 183-84, who translates “relinquish” on the same understanding, namely, that the subject causes an object to go forth from his possession. Although the verb uûm has many different connotations, this meaning is clearly established in Old Babylonian contexts involving silver or commodities, e.g., AbB 3 88 (lines 15-17): ea-am ma-i-ra-at i-la-ku13 KU3.BABBAR i-na bi-ti-i-ka la ú- e20-ú-ú “give her barley at the going rate, but let them not hand over silver from your house.” 13 Yaron 1988b: 186-87

132 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Justice of the Ruling The difficulty with a solution following the pattern of CH 164 is that the wording of the Eshnunna text makes it apply not only where the bride has died but also where she is left a widow by the untimely death of the groom. Under these circumstances a widow would normally be entitled to her dowry. As Yaron points out, failure to restore it to her here leaves her in an invidious position. “She is no longer a virgin (and that in a society which sets much store by virginity). As a widow, her prospects in the marriage market are greatly impaired. In circumstances so unequal, a ruling based on ‘equality’ becomes a travesty of justice; what was seen as summum ius turns into summa iniuria.”14 In an earlier study, I could only suggest that the widow followed her dowry back to her father’s house, to be dowered again on a subsequent marriage, although the Old Babylonian sources provided no evidence of such an arrangement.15 On the contrary, such contemporary evidence as there is suggests that the wife on termination of the marriage was a free agent. In Codex Hammurabi, the most common phrase is “the husband of her choice may marry her” (§137, §156, and §172), which clearly indicates that she did not return home. In the case of a sick wife, it is provided that “she shall go” without stating the destination (§149). CH 142 might seem to furnish an example: the slandered bride “shall go to her father’s house.” In my interpretation, however, the marriage in question had not yet been completed, so that the bride had not in fact left her paternal domicile.16 The point of the phrase in that context was to state that the bride went to her father’s house rather than her husband’s. It therefore provides no evidence of a return to the paternal home after termination of a marriage. Finally, in private marriage documents, the phrase “she shall take the hand of her daughter/sister and leave” is applied to a divorcee, which likewise suggests that she was a free agent.17

14 15 16 17

Yaron 1988b: 189. Westbrook 1988b: 91-92. Westbrook 1988b: 14-16, 45-47. E.g., BIN 7 173, lines 16-22 (Westbrook 1988b: 116); VAS 18 114, lines 15-20 (Westbrook 1988b: 136).

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There is, however, a later source which addresses directly the question of the wife’s destination after termination of the marriage. TAD B3.8 (= Kraeling 7) is a marriage document from Elephantine, dated to the fifth century B.C.E.18 Although drafted in Aramaic, it is closely connected with cuneiform legal traditions.19 Its divorce clauses foresee two possibilities. If the husband divorces his wife, he must return her dowry to her and pay her divorce money and “she shall go away from him whither she pleases” (lines 21-24). If the wife divorces her husband, she is to take her dowry minus betrothal payment (m har) and divorce money, and “she shall go to her father’s house” (lines 24-28).20 The reason for the distinction is not explained, but it is clearly deliberate. It would not appear to lie solely in the fact that the wife is to blame for the divorce, since in a second marriage document from the Elephantine archives the phrase “go whither she pleases” is applied in the penalty clauses for divorce by both husband and wife.21 The only unique feature of TAD B3.8 (= Kraeling 7) that we can discern is the aforementioned loss of the betrothal payment.22 Thus the wife who returns to her father’s house has received back less than the full value of her dowry, having had the betrothal payment (inter alia) deducted from it. It should be noted for good measure that in all the instances in Codex Hammurabi above where the wife left to remarry, she took with her the full value of her dowry and sometimes a good deal besides. The possibility existed, therefore, in ancient Near Eastern legal practice of the bride returning to her father’s house after the termination of her marriage, in circumstances where her financial situation had deteriorated. Apparently, there was some consciousness of the concerns expressed by Yaron about the widow’s situation. More definite conclusions about the 18 Edition in Porten and Yardeni 1989: 78-83. 19 See, generally, Yaron 1961: 101-7, 114-20; and Muffs 1969: 173-94. Cf. Westbrook 1986b: 399-403; and Geller 1978: 228-37. 20 The betrothal payment had been included in the dowry, in accordance with the custom already attested in CH 163. See n. 3 above and Geller 1978: 227-28. 21 TAD B2.6 (= Cowley 15; edition in Cowley 1953: 30-33), lines 22-29. A third marriage document, TAD B3.3 (= Kraeling 2; edition in Kraeling 1953: 60-63), does not specify the wife’s subsequent fate in its divorce clauses. In the remaining marriage documents from Elephantine the divorce clauses are not preserved. 22 In TAD B2.6 (= Cowley 15) and TAD B3.3 (= Kraeling 2) there is only payment of divorce money, not loss of the betrothal payment.

134 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources background to CE 18 cannot be drawn from this one enigmatic parallel but must await further evidence.

Textual Context Paragraphs 1-14 of the Code form a patently distinct thematic unit, concerning the fixing of prices for various goods and services, and problems arising from the latter. Likewise in §§25-35, a common theme of family is immediately apparent in rules on betrothal, marriage, and children. The intervening unit of §§15-24 could be characterized as loans and related transactions were .it not for the existence of §§17-18 in the middle: 15 A merchant or a taverness shall not receive silver, barley, wool, or oil from a slave or slave-woman adi ma-di/i-im.23 16 The undivided son of a man, or a slave, shall not be entrusted with a deposit of fungibles.24 17 (see above) 18 (see above) 18A 1 shekel will add 36 grains as interest. 1 kor will add 10 seah as interest.25 23 The reading of this term is disputed and the meaning of the phrase unclear. For a review of the proposals, see Yaron 1988b: 52-53. 24 q ptum. For a discussion of this term, see Westbrook 1991b: 120-22. 25 The verb wa bu “to add” is normally personal with the borrower as subject. Accordingly, some commentators have regarded §18A as part of §18, in accordance with Goetze’s original division (see esp. Landsberger 1968: 73-74). Attempts to see this as the imposition of interest on a payment by one of the parties in §18, however, confuses restitution with loan and produces legally absurd results (see Yaron 1969: 11 n. 36). Recently, Otto has suggested that the percentages in §18A represent the proportion that the bride’s father may deduct for each year of the completed marriage from his repayment of the teratum (Otto 1992: 75-81). The rationale for this extraordinary arrangement is said to be the financial benefit to the bride, but on one contingency given in the law the bride is dead. In any event, an impersonal meaning of the verb with the capital sum as its subject, although uncommon, is by no means impossible. It is well attested in Old Babylonian Alalakh in the phrase kaspu  ul uab u ul iddarrar “this silver will not increase and will not be cancelled” (e.g., AT 31 = Wiseman 1953: no. 31, lines 8-9; and JCS 8 5 = Wiseman 1954: no. 30, lines 7-9). The same conclusion

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19 A man who wishes to lend against an equivalent shall collect it at the threshing floor. 20 If a man lends barley at interest and changes the barley to silver as regards him (the debtor), at the harvest he shall take barley and 10 seah per kor as its interest. 21 If a man lends silver originally, he shall take 36 grains per shekel as its interest.26 22 If a man is owed nothing by a man but distrains the man’s slave-woman, the owner of the slave-woman shall swear the divine oath—“You are owed nothing by me”—and he (the distrainor) shall pay silver to the value of the slave-woman. 23 If a man is owed nothing by a man but distrains the man’s slave-woman, detains the distrainee in his house, and causes her death, he shall restore two slave-women to the owner of the slave-woman. 24 If he is owed nothing by him and distrains the wife of a mu knum (or) the son of a mu knum, detains the distrainee in his house, and causes their death, it is a case of life. The distrainor who distrained shall die. Consequently, commentators have regarded §§17-18 either as a stray provision from the unit on family law (§§25-35) or as the beginning of that unit that has somehow been separated from it by intrusive provisions on loans.27 Petschow at first offers a purely mechanical explanation: §17 was attracted to §16 because they begin with the same words (m r aw lim), and §18 proceeds to complete the subject thus broached.28 With §18A, the draughtsman returns to the main topic. Petschow, however, then tries to salve the honor of Codex Eshnunna by identifying a system of sorts based on parallel leapfrogging: just as paragraph 18A picks up the theme of loans

has been reached, with further Old Babylonian examples, by Yaron in a new study that reached me after this article was in press (Yaron 1993a: 206-18). 26 For the translation of ana p ni u as “originally,” see Rosen 1977: 35-38. 27 See Koroec 1964: 86. 28 Petschow 1968: 135-39.

136 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources from paragraph 16, so §25 picks up the theme of marriage from §18, after interruption.29 Otto proposes an even more elaborate scheme.30 The marriage laws were originally a single unit, into which at some point §§18A-21 (the loan provisions) were inserted. The reason for the interest rate in §18A being added was to give it a specific role in calculations regarding the “surplus” in §18. Paragraphs 19-21 then had to be added to deal with problems in the sphere of interest law that arose from this rule, so as to prevent false analogies being made from marriage law to the law of loans. Furthermore, the placing of §§17-18 after §§15-16 changed the legal purpose of §§1516, which henceforth concerned not loans in general but acquisition of money for the betrothal payment. The reason why such complicated theories of composition are necessary is the assumption by all commentators that paragraphs §§17-18 are marriage laws. I would question that assumption. Old Babylonian marriage had two components: the status of marriage itself and the marriage contract, an ancillary agreement which preceded the marriage and regulated various aspects of it, in particular property matters. The betrothal payment (teratum) reflects this dual character: it had an important effect on status in that it created inchoate marriage, but it was also a property arrangement that functioned on the margins of the marriage relationship like dowry and marital gifts. The teratum was not a part of the status of marriage; it derived from and was a term of the marriage contract. Where the focus of the law was on this latter component, there is no reason why it should not have been included in a series of provisions on contractual and property matters. Our understanding of paragraphs 17-18 has, paradoxically, been distorted by the parallel of CH 163-164, those same paragraphs that we rely on to understand the substance of the Eshnunna law, where return of the teratum is discussed in the context of marriage laws. Notwithstanding the existence of many close parallels in substance, the two law codes are capable of wide divergencies in both formulation and structure. An example

29 Petschow does initially suggest a wider classification in qualifying the group of paragraphs from §15 apparently to §35 as contract law. It would seem that he regards marriage as a contract, although he avoids using the term in discussing §§17-18, preferring to refer to them as “Rechtsgeschäfte.” 30 Otto 1989: 61-66.

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is the case of the goring ox. Codex Hammurabi situates its provisions on the goring ox in the context of laws about oxen (§§241-252): their distraint, their hire, harm caused to them, and lastly harm caused by them. CE 53-58 places them in the context of an owner’s liability for harm caused by his dangerous property: an ox, a dog, or a wall. The arrangement is more than a matter of chance or convenience; it is a different jurisprudential analysis, albeit within a modest compass, achieved through structure. If the perspective is commercial rather than marital, then §§17-18 fit without difficulty into their overall context. Paragraphs 15-24 form the second part of a chapter on commercial relations which precedes that on family relations (§§25-35). Whereas the first part (§§1-14) concerned permanent transfer of assets, through sale of goods or services, these paragraphs deal with my property in your hands, when the question of its restitution arises. Three possibilities are envisaged, which are treated in three separate groupings of provisions: 1. Cases where the transfer is void, either because the transaction is forbidden, as in §§15-16, or because its purpose is frustrated by subsequent events, as in §§17-18. In the first two cases no sanction is mentioned, but as Petschow has pointed out, it is reasonable to suppose that invalidity was the sanction.31 The consequence was that in §15 the merchant or taverness was obliged to return commodities received from a slave, while in §16 the value of goods transferred as a deposit of fungibles could not be reclaimed. By the same token, in §17 restitution of the betrothal payment is required but in §18 does not occur because it is set off against the value of the dowry that the bride’s father receives back. 2. Cases where the-transfer is valid and is expected to return to its owner. These are all commercial loans, in §§18A-21, and the concern of the law is only to regulate the terms upon which the profitability of the loans is calculated. 3. Cases where the transfer is wrongful and not only invalid but gives rise to a penalty. These are the provisions on the wrongful distraint of persons in §§22-24. 31 Petschow 1968: 135-46. See also Petschow 1961: 197-200.

9 The Adoption Laws of Codex Hammurabi Abstract A careful reading of paragraphs 185-193 of the Code of Hammurabi shows that all of these laws have to do, not merely with adoption, but with primary adoption as opposed to secondary adoption. Primary adoption entailed a unilateral act on the part of the adopter. It could be dissolved equally by a unilateral act, in this case of either the adopter or the adoptee, so long as the correct verba solemnia were utilized. Finally, certain classes of palace and temple personnel were given absolute protection when they adopted via the primary mode, probably because they were forbidden or unable to have natural offspring.

P

aragraphs 185-193 of Codex Hammurabi (CH) deal with a single topic: adoption.1 In this study, dedicated to a dear friend and colleague, a new translation of these paragraphs will be offered, together with a legal interpretation that, it is hoped, will shed light on the general principles of Old Babylonian adoption law. Adoption may be achieved by two modes: primary or secondary. By the primary mode, a person adopts an orphan child and in a unilateral act creates ex nihilo the legal relation of parent and child between himself and the adoptee. This is expressed in Babylonian by the phrase “to take for

* Originally published in Kinatttu a drâti: Raphael Kutscher Memorial Volume (ed. A. Rainey and M. Anbar; Tel Aviv: Institute of Archaeology of Tel Aviv University, 1993), 195-204. Used by permission. 1 David (1927: esp. 18-19, 25-28, 33-36; followed by Donner 1969: 90-96) distinguished between full adoption and other lesser conditions such as wardship. It is not possible to enter into a full discussion within the scope of this article, but we would note: (1) David’s interpretation was based in part on a mistranslation of §185 (see n. 4); and (2) the term “son” or “sonship” occurs in every provision of this section of CH.

140 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources sonship (/daughtership)”: ana m r tim (/m rt tim) leqûm. By the secondary mode, a person adopts a child from its natural parents. Two legal acts are therefore necessary: a contract between the parents and the adopter whereby the parents relinquish their rights over the child and an act by the adopter whereby he creates the same relationship (in law) between himself and the child, as in the primary mode. This is expressed in Babylonian by the phrase “to take for sonship from PN1 and PN2, his father and mother” (itti PN1 abu u PN2 ummu ana mar tim leqûm).2 It is important to note that whatever mode of adoption is used, the resulting legal relationship is one of status. It is not to be confused with the contract in the secondary mode, which is a condition precedent to, but legally separate from, the status of “sonship.” In our view, all the paragraphs of CH under discussion concern adoption by the primary mode. We shall examine them in turn in order to test this hypothesis. Paragraph 185 reads: If a man adopted a child in its water and has brought him up, that one who has been raised shall not be reclaimed. Borger (1967-75: vol. 1, 30) and Yaron (1965: 171-73)3 have shown that “its water” refers to the amniotic fluid, being an abbreviated version of the phrase “in its water and blood.” The situation is therefore that a new-born infant has been adopted, before even the normal post-natal ablutions have been performed. Such an action is a clear sign that the parent is abandoning the child, as is explicitly stated in a document from Susa: Manniyatu the istartu abandoned Mar-ere in his water and blood in order to acquire her property.4 The phrase occurs elsewhere in contracts of adoption, where its purpose was presumably to emphasize the natural parents’ relinquishment of 2 Adoption of an adult uses the secondary mode; the adopter adopts the adoptee “from himself” (e.g., YOS 8 120). 3 The many theories based upon David’s earlier translation “unter seinem Namen” (1927: 24) must therefore be abandoned. 4 MDP 23 288. See Wilcke 1981: 88 n. 3, for a discussion of the translation of these lines.

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all rights as against the adopter.5 Nonetheless, we would suggest that its original context was not contractual; rather, it describes the typical situation of a foundling. Malul (1990a) has pointed to the same phraseology in Ezek 16:4-6, in a graphic description of the abandonment of a new-born infant:6 At your birth, on the day you were born, your cord was not cut, nor were you washed in water nor rubbed with salt nor wrapped in napkins. No eye pitied you to do any of these for you, but you were cast into an open field in contempt for your life on the day you were born. Driver and Miles nonetheless argue against the adoptee being a foundling in CH 185, on the grounds that if the parents had exposed the child, they would be unlikely to wish to reclaim him (1952: 391). But exposure is not the only possibility; the child may have been lost by his parents, rather than abandoned. Such a possibility is described in a vignette given in the lexical text ana ittiu.7 An adoptee was one who “has no father and mother” or who “does not know his father and mother.” The adopter rescues him from a series of alternate perils—a well, the street, the mouth of a dog, or of a raven—and pays for his upbringing, but should the adoptee’s8 natural family ever turn up, they will be able to claim him back, upon payment of compensation for expenses. Where therefore, a foundling’s natural family (but not necessarily his parents) claim him back from his adopter some time after the event of the adoption, the case may turn on whether the natural parents had abandoned their child or not. The court will be faced with the rather difficult task of determining the parents’ intentions at the time of the original 5 AbB 7 103 (letter), YOS 12 331. The special circumstances that necessitated the phrase in these contracts are not clear. See Wilcke 1981: 89-94. 6 We disagree, however, with Malul’s conclusion that the Ezekiel passage involves adoption, inter alia because in the same narrative the “adopter” goes on to marry his “adoptive daughter.” 7 MSL I 3 III 28-57 (Landsberger 1937: 44-46). Although the text is from a later period, it is recognized as containing traditional material that dates back to the Old Babylonian period. 8 Line 53 leqâu “his adoptee.” Cf. CAD L 130-31.

142 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources adoption.9 As is usual in Old Babylonian law, recourse is had to evidentiary presumptions. Evidence that the child was a newborn infant who had not received the normal post-natal ablutions raises a presumption of abandonment. What evidence, then, would raise the alternative presumption? Paragraph 186, in our view, gives an example: If a man adopted a child in ma ilqûu abau u ummau ii , that one who has been raised shall return to his father’s house. The paragraph presents the opposite ruling, where the natural family’s claim is successful, but the circumstances upon which it is grounded have given rise to many conflicting translations. David (1927: 25) makes the clause in question part of the protasis: “und sobald er es genommen hat, nach seinem Vater oder seiner Mutter forscht.” But as Driver and Miles rightly ask (1952: 389-90), why should a man actually adopt the child if he only meant to keep him until he found the child’s parents? The same consideration applies a fortiori to the Chicago Assyrian Dictionary’s version (CAD  161): “if a man adopts a small child (as a foundling), he (may) trace its parents after he has adopted it.” There is no conceivable reason why the adopter should need legal permission to trace the natural parents. Driver and Miles’ own suggestion makes the child the subject of the verb ia: “when he (the adopter) has taken it, it persists in searching for its father and mother” (1955: 75; cf. Finet 1973: 107e). The case contemplated is one in which a man has adopted a child in infancy which, as soon as he is taken away, pines for his father and mother and is therefore returned to them (1952: 390). On their interpretation, therefore, the case does not involve a foundling but is adoption by secondary mode, a contractual arrangement which the law allows to be frustrated for the benefit of the child. As we shall see, however, the adoptee could theoretically dissolve the adoption at any time, and one of the purposes of the contract was to prevent such a possibility. Even assuming, therefore, that Old Babylonian society showed such concern for the wishes of children, it is difficult to contemplate a law that would indirectly render useless the express terms of standard contracts of the period. Nevertheless, we consider that Driver and Miles’ translation points in the right direction: the subject of ia is the 9 Unless a ruling was given by the court at the time the child was found: UET 5 260.

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child, its meaning in this context is “to search,” and its being in the durative tense cannot be ignored. There is no need, however, for the durative to relate solely to present or future action (GAG §78a.). We would therefore translate the paragraph as follows: If a man adopted a child, and at the time when he adopted it, it was searching for its father and mother, that one who has been raised shall return to his father’s family. The circumstances once again refer back to the moment of adoption, but this time the evidentiary presumption that they raise is that the child was lost rather than abandoned. CH 188-189 likewise form a couplet, with the same contrasted results as in the previous example, but with circumstances that are the direct opposite of each other: If a craftsman adopted a son in order to raise him and has taught him his craft, that one who has been raised shall not be reclaimed. If he has not taught him his craft, that one who has been raised shall return to his father’s house. It is tempting to regard this case as a straightforward breach of contract leading to dissolution of the adoption. Nevertheless, the result would be too banal: the condition discussed goes to the root of the contract and must exist as an express or implied term, breach of which would lead to dissolution by the very nature of a contractual obligation. There is even less need to state the opposite—that fulfillment of a contract precludes a claim for breach. In the light of our discussion of the previous paragraphs, we consider it more likely, therefore, that the fate of a foundling is once more at issue. This time the focus has shifted to the period of upbringing. If adoption gives the adoptee the status in law of a son, then all the incidents of that status should apply, including inheritance. The inheritance of a craftsman, however, is not his property but his craft. By failing to teach the adoptee his craft, the adopter in this instance has adopted him in form but not substance, thus giving the court good grounds for allowing the natural family’s claim against him.

144 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Similar considerations apply to §190: If a man has not counted among his sons a child whom he adopted and raised, that one who has been raised shall return to his father’s house. Szlechter (1967: 87) considers the phrase “has not counted among his sons” to refer to a particular act of disowning by the adopter, but the use of a negative is inappropriate for that purpose. In §191, where an act of disowning is at issue, it is described in different terms (cf. Driver and Miles 1952: 395-96). It is difficult to discern the exact connotation of such a vague phrase, but elsewhere in CH, in §170, being counted with the sons refers specifically to the equal inheritance rights of adoptees, and thus it would seem here to refer to a course of conduct, objectively verifiable, from which it may be presumed that the adoptee will not inherit along with the natural sons. As we shall see, it was an easy matter for the adopter to disinherit the adoptee at any time. As in the previous case then, the adoption has been one of form and not of substance, and may be challenged by the natural parents. And again we conclude that the context is adoption of a foundling, not a contract. The adoption contracts contained clauses amply protecting adoptees from any infringement of their inheritance rights (see below, nn. 11 and 14). If the previous paragraphs gave room for dispute, §191 leaves no doubt that its subject is primary adoption. The remedy provided is for the adoptee alone, without any indication that the rights of the natural parents are at issue: If a man eram a ana m r tu ilqû ma urabbûu bssu pu, and afterwards acquired sons and decided to expel the one who has been raised, that son shall not leave empty-handed. The father who raised him shall give him one third of his inheritance from his moveable property; he shall not give him from his field, orchard, and house. Apart from one clause in the protasis which we shall consider below, the basic meaning of the rule is clear. It awards a third of his erstwhile inheritance to the adoptee on being expelled by his adopted father. The

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phrasing of the award incidentally confirms that the original adoption necessarily included the status of heir for the adoptee. As Szlechter points out (1967: 90), “one third of his inheritance” is used in the apodosis although no mention of an inheritance was made in the protasis, and inheritance must thus have been understood as an ordinary incident of adoption. We might well conclude, then, that adoption placed the adoptee in all respects in the position of a natural son and heir, were it not for Szlechter (1967: 92) further drawing our attention to CH 168-169 and the apparent conflict of our paragraph with the latter. In §§168-169 elaborate obstacles are placed in the path of a father who wishes to disinherit his son: he may only do so with the permission of the magistrates after proving to their satisfaction that the son has twice committed an offense of sufficient gravity. How then is the father able in §191 to disinherit his adopted son without any procedural hindrance, apparently at his own whim, the only sanction being the requirement to provide a partial indemnity? Szlechter takes the law of disinheritance to be the same for natural and adopted sons, and the rule in §191, although subject to the procedural restraints laid down in §§168-169, to be in its generosity an exception to the general rule of total disinheritance stated therein, the reasons for this exception lying in the special circumstances related in the protasis (1967: 91-92). Szlechter’s attempt at reconciling the two rules requires a series of assumptions and would leave a father without the possibility of totally disinheriting a certain category of adoptee, however gravely the latter may have sinned against him. Moreover, the paragraph indicates that the acquisition of natural sons is the occasion for disinheritance, without regard to any question of fault. In our opinion, the apparent conflict between the two rules reflects a fundamental difference between the position of natural and adopted sons with regard to disinheritance. Theoretically, adoption created in law an exact replica of the status of natural son. But in one aspect it remained different. As the existence of the primary mode shows, adoption was created by the unilateral act of the adopter, most probably by pronouncing a solemn formula of words.10 In this respect it is analogous to marriage, and like marriage it could equally be dissolved by a unilateral act, in this case of 10 “(You are) my sons!” CH 170-171.

146 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources either the adopter or the adoptee (Westbrook 1988b: 69-70, 80-83). The only restriction was one of form: that a solemn formula of words be used, the contrary act to that of its creation. As Greengus has shown (1969: 51720), the words “You are not my son” pronounced by the adopter or “You are not my father” by the adoptee were employed to dissolve the relationship and status created by adoption. Adoption contracts sought to block this facility of unilateral dissolution by imposing sanctions on the adopter or adoptee who dared to pronounce the fatal formula. For example, “if A (the adoptee) says to his father B (the adopter), ‘You are not my father,’ he shall be sold into slavery, and if B says to his son A, ‘You are not my son,’ he shall forfeit house and chattels.”11 The foundling, however, has no such protection. His is an adoption by primary mode, without the benefit of a contract. Should the adopter choose to exercise his right to dissolve unilaterally, the adoptee will lose his status as a son and thereby automatically any right to inheritance. The provisions of CH 168-169, therefore, which apply to natural sons, will not avail him. It is at this point that CH 191 intervenes. While not challenging the fundamental dissolubility of adoption, any more than do the contractual clauses, it tempers the consequences in certain special circumstances where equity demands some measure of compensation for the adoptee. Those circumstances are the subject of the untranslated clause in the protasis to which we now turn. Driver and Miles translate: “If the man, who has taken the infant in adoption to himself and has brought him up, has built him a house . . .” (1955: 75). They presume that the adopter has provided the adopted son with his own house, probably on the occasion of the latter’s wedding, this being the reason why the adoptee then receives no more than a third of what he would have inherited and no land (1952: 11 E.g., Meissner BAP 95 and 96. Note that where the adoptee receives a vested future interest in the adopter’s estate, in the form of a specific share of the inheritance or of specific property, it will survive dissolution of the adoption. Accordingly, in such cases, forfeiture of that interest is sometimes deemed a sufficient penalty upon the adoptee, e.g., CT 45 101, UET 5 94 and 96. David (1927: 19-20) concluded from such contracts that there could be two types of adoption, with or without inheritance. But the difference lies in whether the inheritance, which applies in all cases, is already vested in the adoptee (whether given present possession or not) or is merely a contingency that will vest on the adopter’s death.

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396-98).12 The paragraph assumes, however, that the adoptee would otherwise be entitled to nothing: “that son shall not leave empty-handed.” Most commentators follow the interpretation of David (1927: 36-37), who takes “his house” (bssu) to refer to the adopter’s family. The resulting translation, however, is an awkward casus pendens, with the addition of words not in the text: “Wenn ein Mann ein kleines Kind, welches er zu seiner Kindschaft angenommen und grossgezogen hat, (wenn er) sich einen Hausstand gründet . . . .” Szlechter’s translation (1969: 88) is less awkward: “Si un citoyen, qui avait adopté et élevé un jeune enfant, a créé (fondé) sa (propre) famille . . . ,” but it is syntactically incorrect, since it assumes the word order awlum a eram, while the actual order is awlum eram a. Finet admits as much in referring to the syntax as “deceptive,”13 but there is no need to distort the syntax in order to arrive at a satisfactory interpretation. On the contrary, strict attention to the rules of syntax reveals a legal rule with a clear and logical rationale. The term eram is the object not of the verbs leqûm and rubbûm in the subordinate clause as the above translation suggests, but of the main verb ep um. The main verb thus governs two accusatives, eram and bssu, a phenomenon which in Akkadian most often means that one of the accusatives is instrumental (GAG §145a-c.). Normally it is a thing that is the instrument, but here we suggest that the context makes it singularly appropriate for the person to be the instrument, and we translate the protasis as follows: If a man made his house with a child whom he adopted and brought up, but later acquired sons and decided to remove the one who has been raised . . . . Making a house, as the earlier commentators saw, indeed refers to founding a family. The point of the law is that a childless man has founded his family, i.e., has ensured the continuation of his line, by adopting a child. For this reason the law inclines to help the adoptee when the adopter 12 Following a suggestion by Koschaker (1924) in the Reallexikon der Vorgeschichte (not available to us). 13 “Littéralement, la syntaxe est trompeuse: si un homme, le petit qu’il avait pris pour la filiation et qu’il a élevé, il a fondé son foyer” (Finet 1973: 109a).

148 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources subsequently begets natural sons and decides to discard the person on whom he had earlier based his ambitions. A similar danger is seen and guarded against in contracts involving a childless adopter by sanctions against not only disinheritance but even loss of the firstborn’s preferential share: even if A and C (the adopting couple) have ten sons, B (adoptee) is their principle heir.14 The adoptee by primary mode had no such protection, of course. The last group of provisions requires little comment: 187 The son of a girseqûm, a muzzaz ekallim, and a sekrum shall not be reclaimed. 192 If the son of a girseqûm or a sekrum said to his father and mother who have raised him: “You are not my father, you are not my mother,” they shall cut off his tongue. 193 If the son of a girseqûm or a sekrum identified 15 his father’s house and hated 16 his father and mother who have raised him and went to his father’s house, they shall tear out his eye. Certain classes of palace and temple personnel are given absolute protection when they adopt by primary mode, probably because they were forbidden (or unable) to have natural offspring (Driver and Miles 1952: 392; 1955: 245). The natural parents cannot reclaim the child in any circumstances. Dissolution by the adoptee using the appropriate formula of words is visited by a sanction in the same manner as with contractual sanctions, but with a far harsher content. Conduct by the adoptee that amounts to repudiation in fact but not yet in form receives a similar, “sympathetic” sanction. Thus in terms of content these last two provisions reflect (chiastically) the provisions of §§189-191.

14 E.g., Meissner BAP 95, ARM 8 1; cf. ana ittiu in MSL I 3 IV 3-6. 15 Cf. the contractual provision in UET 5 92, lines 14-22. 16 For the technical meaning of this term, see Westbrook 1988b: 22-23.

10 The Female Slave Abstract Although female slaves were treated in many respects in like fashion to their male counterparts, their reproductive capabilities raised special legal problems. In particular, rules governing family law often came into conflict with those governing property. This article examines evidence from across the ancient Near East in order to clarify these issues. It looks especially at situations where a female slave had a split legal status. For example, she could be owned by a free individual, on the one hand, but simultaneously married to another free person, on the other hand. The article argues, however, that a woman could not be the wife and the slave of the same man simultaneously.

I

n the legal systems of the ancient Near East, male and female slaves were for the most part subject to the same rules.1 Of necessity, however, there were special rules for female slaves in respect of their sexuality and reproductive capacity. Regrettably, sources that deal with female slaves as a separate category are scattered and few. My interest in gathering them together is twofold. First, concentrating attention on material concerning females alone may throw new light on familiar sources that are usually considered only in their immediate textual context or from the viewpoint of slavery in general. Secondly, the rules that governed the condition of * Originally published in Gender and Law in the Hebrew Bible and the Ancient Near East (ed. V. H. Matthews, B. M. Levinson, and T. Frymer-Kensky; JSOTSup 262; Sheffield: Sheffield Academic Press, 1998: 214-38. Copyright © Sheffield Phoenix Press. Used by permission. 1 Sigla such as Nbn. 682 refer to publications of copies of cuneiform texts. The full titles are given in the “Provisional List of Bibliographical Abbreviations” of The Assyrian Dictionary of the Oriental Institute of Chicago (see Oppenheim 1956-). All translations in this article are the author’s.

150 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources female slaves are of particular jurisprudential interest because they arose from a conflict between family law, which applied to slaves as persons, and property law, which applied to slaves as chattels. Sometimes the one institution prevailed, sometimes the other, and sometimes the rules represented a compromise between the two. The legal framework for sexual relations between free persons was either concubinage or marriage.2 Both applied to female slaves, but in differing measure.

Concubinage Status of the Woman Since a female slave was property, her owner could exploit or dispose of her sexuality like any other beneficial aspect of property. She could thus be made her owner’s concubine or could be given in concubinage to another at her owner’s behest. Where concubinage resulted in motherhood, however, the slave might be accorded some qualified protection from the consequences of her status as property. According to CH 171, a slave concubine who had borne her master children had to be freed by operation of law after his death. The provision in CH 146-147 discusses the case of a wife who gives her female slave to her husband as a concubine: If a man marries a nadtu and she gives a slave-woman to her husband, and after she has borne children that slave-woman makes herself equal to her mistress, because she has borne children, her mistress shall not sell her; she may place the slave-mark upon her and count her among the female slaves. If she does not bear children, her mistress may sell her. The slave’s legal personality is split: she remains the slave of her mistress while becoming the concubine of the latter’s husband. The mistress may 2 A third possible framework was prostitution, but being a transitory arrangement it was obviously not relevant to relations between master and slave. Female slaves were used for prostitution with third parties, e.g., Nbn. 682.

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therefore discipline her or sell her, at will. If the slave’s concubinage results in offspring, however, the mistress’s ownership rights are restrained; she may only discipline her slave by reducing her social status within the household. A word of warning must be given about the effect of law code provisions such as the above. The ancient Near Eastern law codes were not legislation in the modern sense, and their provisions should not always be attributed with the absolute, peremptory character of modern laws. In my view, the paragraphs in the codes often represented an ideal of justice: principles that should apply in the formulation of contracts or that only applied in absence of express contractual clauses to the contrary. At most, they might represent the equitable discretion of the court (especially the royal prerogative) to strike down or modify bargains that offended the principles of social justice.3 Particularly indicative of the royal prerogative are CH 117, which declares an automatic release of debt slaves after three years’ service, and CH 171, mentioned above, which does the same for a slave concubine (and her children) on the master’s death. They usurp the language and overlap the functions of debt release decrees, which were declared intermittently by the king at his discretion.4 Consequently, it is not surprising to find contracts with express provisions that contradict the law codes. Paradoxically, they may be evidence of the validity of the principles expressed by the law codes, if not of the formalistic application of their provisions in the manner of a modern statute, since a contracting party would not normally bother to insert special clauses into the contract merely in order to establish rights that he had 3 This is not the much-debated issue of whether the cuneiform law codes were prescriptive or descriptive. Even if the law codes were not a source of law, the law that they described, whether from custom, decree, or judgment, was still valid, and the relationship between the principles that it embodied and the provisions of contracts needs to be established. A systematic study of that relationship has yet to be undertaken (cf. Westbrook 1995e: 1631-76, esp. 1657). The range of possibilities may be illustrated by an example from modern legal systems. The general law often implies certain clauses in a contract of sale. Those clauses may sometimes be excluded by an express clause inserted by the parties, but sometimes (e.g., in the realm of consumer protection) they may not. 4 See Westbrook 1995e: 1656-58. As regards CH 171, the parallel provision in CL 25, discussed below, assumes that release of the slave concubine is purely a matter of her master’s choice.

152 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources anyway, in the absence of contract. How far a contract might modify the principles of social justice without running foul of the equitable discretion of the courts is impossible to tell. In the light of these considerations, the following express provisions in an Old Assyrian marriage contract should perhaps be read as designed to overcome a restraint similar to the one in CH 146-147.5 If within two years she (the wife) has not provided him (the husband) with offspring, she will purchase a slave-woman, and after she (the slave) shall have provided him with a child by him, he/she may sell her wherever he/she pleases. Contractual terms depend on the bargaining power of the parties, which could vary, even when the contract concerned slavery. Accordingly, special terms did not always restrict a slave’s rights; they could equally be used to extend those rights beyond the customary limits of protection. Another Old Assyrian contract expressly protects a concubine who did not yet have the advantage of motherhood.6 Shalim-beli, who has taken Kitidi (as a concubine), shall not cause her to enter the house of Amur-Ashur (his patron?). He may lead her where he wishes. Neither Amur-Ashur nor his sons nor Shalim-beli shall sell her or cause her to enter. If anyone sells her, Shalim- beli shall pay one mina of silver to Shat-ili. We do not know the background to this enigmatic document, but it would appear that Kitidi has been given into slave concubinage by Shat-ili (her mother?) to Shalim-beli, who is in some condition of dependence upon Amur-Ashur. The contract protects the concubine from exploitation by the patron or from sale by the patron, his heirs, or his client, the immediate owner. Motherhood could lead to another form of protection for the slave concubine, as CH 119 provides:

5 ICK 1 3:7-16 (see Hrozn 1939: 108-11). 6 KTS 1 47a (edition in Eisser and Lewy 1930-35: 2-3).

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If a debt has seized a man, and he sells his slave-woman who has borne him children, the owner of the slave-woman may pay the silver that the merchant paid and redeem his slave woman. The right of redemption was widespread in the ancient Near East. It was a measure of social justice, for the benefit of native citizens, whereby a sale under pressure of debt was treated as if it were a pledge. The right appears to have been limited principally to two cases: family land and members of the family sold into slavery.7 The slave concubine fell into neither category, but where she had borne children, a special rule was formulated in her regard, which neatly illustrates the type of compromise that resulted from the conflict between the rules of family law and property law. She was sufficiently regarded as a member of the family to benefit from the privilege of redemption, but whereas a free wife or a son sold into slavery would on redemption by the husband or father regain their former free status, the slave concubine merely returned to her former master as a slave, in the manner of family land that had been redeemed. In other circumstances, concubinage could vitiate the right of redemption. Exod 21:7-11 reads: If a man sells his daughter as a slave-woman, she shall not go free as the male slaves go free. If she displeases her master who assigned her to himself (/who has not assigned her), he shall let her be redeemed; he shall not have authority to sell her to a foreign people, in breach of faith with her. If he assigns her to his son, he shall treat her according to the status of daughters. If he takes another for himself, he shall not reduce her food, clothing and oi1.8 If he does not provide her with these three, she shall go free without payment of silver.

7 On the question of social justice and redemption of land, see Westbrook 1991b: 15-16, 90-117. On redemption of family members, see Yaron 1959: 155-76; and Westbrook 1995e: 1651-56. 8 The meaning “oil” for the hapax ‘nh was established by S. Paul (1969: 48-53). It is astonishing that this simple identification, supported by copious evidence of a banal formula found throughout the ancient Near East, has still not been universally accepted by scholars.

154 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources A preliminary question is whether this text concerns concubinage at all. Most commentators assume that a form of marriage is being regulated by the law, but there is nothing in the terminology to suggest that marriage is meant.9 As we shall see, when ancient Near Eastern sources wished to indicate that a female slave was a wife, they did so explicitly, both in the language of formation and dissolution. Here, the slave is assigned and taken, but never specifically as a wife, and the relationship is ended by sale or manumission, not by divorce. Confusion as to the slave’s status has been caused in part by Mendelsohn, who compared this law with the institution of “daughtership and daughter-in-lawship (m rttu u kallattu)” at Nuzi.10 The latter was a commercial transaction in which the adopter (usually a woman) acquired a girl from her parents as a daughter, with the explicit right to give the girl in marriage and receive her betrothal payment. According to Mendelsohn, it was a “scheme whereby certain sales into slavery of young free-born girls assumed a semblance of legitimate marriage, i.e., conditional sales whereby the giving into marriage of the slave girl was made obligatory upon her purchaser.”11 This is incorrect. It may well be that in social terms the girls’ condition was little more than slavery, but in law the distinction was maintained. The terminology of neither slavery nor sale is employed in the texts; there is nothing to suggest that they were anything but a transaction involving the adoption and marriage of a free woman. Mendelsohn systematically mistranslated the operative verb “gave” (into daughtership, etc.) as “sold,” without a shred of justification.12 The Nuzi texts do not furnish a legal model for the law in Exodus. Confusion has also been caused because the difference between concubinage and marriage has not been directly discussed in the context of this law. We shall see, however, that the distinction is of vital importance, with implications both for the consequences of the law’s provisions and for the jurisprudential coherence of the legal status of female slaves as a whole. For the moment I am concerned with the first part of the law, which deals with the question of redemption. The woman’s situation differs from 9 10 11 12

The scholarship on this law is reviewed by Chirichigno 1993: 24-55. Mendelsohn 1935: 190-95. Mendelsohn 1935: 191. The Akkadian for “to sell” is “to give for silver” (ana kaspim nad num).

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that of the female slave in CH 119 in that she is a free woman who has been sold by her father into debt-slavery, as the reference to redemption reveals. The father would normally have the right to redeem his daughter, but that right is lost because her enslavement is for the purpose of concubinage. The right of redemption revives only if the purchaser fails to abide by the special purpose of the contract—if he fails either to consummate the assignment himself (qere) or to assign her for concubinage altogether (ketib).13 In either case, the purchaser has treated the contract as one of ordinary servitude, not concubinage, and has denied the slavewoman the possibility of gaining the protection available to a concubine through motherhood. In those circumstances, it is logical that the ordinary right of redemption should apply notwithstanding the fact that the slave is female.14 Verse 8 provides a second measure of protection. Her master “shall not have authority to sell her to a foreign people (‘am nokrî).” To understand the purpose of this prohibition, it should first be pointed out that alienability is not the opposite of redeemability. The two concepts should not be confused.15 A right of redemption does not make a slave inalienable, because it can always be exercised against a subsequent purchaser— the seller cannot transfer a more absolute ownership than he has.16 In the present law, therefore, there was no danger that the mere act of selling the woman to a third party would make her irredeemable. On the contrary, because such an act treated the contract as one of ordinary servitude, in breach of the concubinage clause, it would automatically turn her into a slave who was redeemable from her new owner. In one circumstance only would the woman’s redeemability be irretrievably lost: if she were sold abroad. She would then be a foreign slave for her purchaser, who would 13 In order to have legal consequences, his displeasure must have some external manifestation and a concrete act (or omission). Accordingly, the provision is unlikely to refer to a change of attitude after consummation. This eventuality is covered by v. 10, where he takes another concubine in preference to her. It is possible, however, that his displeasure could be manifested through an attempt to sell her to a third party, which again would contravene the purpose of a concubinage contract. 14 Deut 15:12 makes it clear that a female debt-slave in a non-concubinage arrangement has exactly the same status as a male. 15 As does, for example, A. Schenker 1988: 547-56, esp. 547. 16 Yaron 1959: 158-59.

156 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources not see himself obliged to respect her rights under Israelite law. For this reason, I prefer to translate the term ‘am nokrî as “foreign people” rather than “outsiders,” “other clan,” or the like, which would imply a total prohibition on alienation.17 Status of the Offspring Because she could bear children, the female slave was a special economic asset. A child born to an unmarried slave-woman was a house-born slave.18 The child was reckoned to be the offspring of its mother; it had no father. Like its mother, the child would be the property of her owner, no different from the offspring of the owner’s herds. If her master himself took his slave-woman as a concubine, his rights over the issue of the union would be those of an owner, not of a father. The difference can be seen clearly in an Old Assyrian document. In TuM 1 22a, four brothers divide the estate of their father.19 The agreement stipulates: 18-22 As for the residue (of the estate), whether wheat or slavewoman or slave or (other) share, they shall take according to their father’s testament. 25-32 Agi’a either here or in the city of Assur may take a slavewoman for his(!) concubinage20 and is free of claims; Asu, Puzur-sadu, and Alahum may take one each from the slave women whom they have known sexually (lamd), but she shall be deducted from their share. They (the brothers) will make their (the slave-women’s) offspring equal (lillissina

unu umta[ur]).

17 See Chirichigno for the contrary view (1993: 249). Support for my interpretation is provided by MAL C+G 2-3, which punish the sale abroad of an Assyrian taken in pledge, who might otherwise be redeemed (Westbrook 1995e: 1660-62). 18 Akkadian: wilid btim (Old Babylonian period), du mu (later periods); Hebrew: ylîd bayit (Gen 17:13, 23). 19 Edition in Eisser and Lewy 1930: 330-34; cf. Kienast Altass. Kaufvertragsrecht 3e and 20 (see Kienast 1984: 92-93 and 98). 20 ana i tarit nu ilaqqe. See CAD I-J 271.

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The CAD translates the last phrase: “they will assign equal rank to their [the women’s] offspring.”21 These are fine sentiments but misconstrue the situation. It is a matter of indifference in a division of inheritance what status the individual brothers will assign to the children of their slaves once they have received their inheritance. The problem was a mathematical one: for example, if the three brothers had slept with three slaves who had borne one, two, and three children respectively, should each brother receive the children born to the slave-woman whom he took as his inheritance, or should all receive an equal number, that is, two each? The agreement prefers the second solution, irrespective of who was the father. The same considerations lead to exclusion of relations with a slavewoman from the ambit of certain sexual taboos. According to HL: 191 If a free man has intercourse with free maternal sisters and their mother—one in one country and one in another—it is not an offense. If it is in one place and he knows, it is an abomination. 194 If a free man has intercourse with slave maternal sisters and their mother, it is not an offense. If brothers sleep with a free woman, it is not an offense. If a father and his son sleep with a slave-woman or a prostitute, it is not an offense. These provisions do not mean that in Hittite law sexual taboos never applied to relations with a female slave; HL 196 foresees the possibility of a male and female slave committing a sexual act together that amounts to an abomination. The Hittite prohibitions as regards family members cover a wider range of relationships than pure incest (that is, relatives having sexual relations with each other) because their rationale is also to prevent confusion in relations of parentage. In the examples given in the paragraphs above, would the sons of a mother and daughter by the same man be brothers or uncle and nephew? Would the daughters of a woman by a father and son be sisters or aunt and niece? The problems for the family tree, family worship, and inheritance are evident. It is not a problem, however, in certain special cases:

21 CAD L 55-56.

158 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 1. Where family ties are no more than theoretical, due to geographical (and perhaps jurisdictional) separation. 2. Where two brothers have offspring by the same woman, because the vertical family lineages are not affected. The offspring will be half-brothers or half-sisters, and it is of no great consequence that they are also cousins. 3. Where a father and son sleep with a prostitute, because the offspring of a prostitute have no paternity. The same applies to a slave concubine: in law, her offspring have no father; they only have an owner. Thus uncertainty as to whether her offspring are by the father or his son could at most lead to a property dispute. For the same reason, the offspring of a slave mother and daughter are not related in law, even if they have the same father in fact. The law codes emphasize that slave concubinage cannot confer legitimacy on the offspring of the relationship, even if both mother and child are freed. CL 25 reads: If a man married a wife and she bore him a child and that child is living, and a slave also bore a child for her master but the father granted freedom to the slave and her children, the child of the slave shall not divide the estate with the child of the master. Likewise CH 170-171, which order that the children of a slave concubine be freed on the father’s death, nonetheless bar them from sharing the inheritance with the legitimate children, unless the father had adopted them in his lifetime. There is nothing surprising in these provisions; indeed, it is strange that they should have been deemed necessary. It is in the nature of concubinage that it cannot have the prime consequence of a legitimate marriage, namely, the creation of legitimate heirs to the father’s estate. Hence the offspring of a free concubine had no better right to inherit than the offspring of a slave concubine. On the other hand, if a man died without legitimate heirs, natural or adopted, the law codes do make provision for his illegitimate children to be recognized as his heirs. The examples that they give, however, all concern the offspring of a union with a free woman: his child by a prostitute in CL 27 or by a free concubine in MAL

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A 41. Whether the freed children of a slave concubine were equally entitled in those circumstances, or whether a distinction was being drawn between slave and free concubines, cannot be determined. Position of Third Parties Ownership implied the exclusive right to exploit the sexuality of a female slave. Accordingly, the law protected her owner against unauthorized use of her by a third party. The penalty was a relatively small payment, which appears to represent compensation for economic loss. The penalty for the wrongful defloration of another’s female slave is set at 5 shekels of silver in CU 8, 20 shekels in CE 31, and 30 shekels in an Old Babylonian report of a trial from Nippur.22 CE 31 adds: “and the female slave remains her owner’s.” The purpose of this clause was to distinguish the case from that of the defloration of a free maiden, where the penalty imposed represented a betrothal payment and might lead to marriage (e.g., MAL A 55; Exod 22:15-16; Deut 22:28-29). It was an emphatic statement that the principles of property law, not family law, applied in this instance.

Marriage It is a salient feature of ancient Near Eastern law that, unlike Roman law, it recognized as legitimate the marriage of slaves, whether with other slaves or with free persons. With one exception, which I shall discuss below, marriage and slavery were not legally incompatible, although their different rules led to conflicts. The marriage of slaves can be divided into three categories: marriage between slaves, marriage with a third party who was free, and marriage with one’s own master. Between Slaves The slave law of Exod 21:2-6 is emblematic of the conflict between the principles of family law and property law that resulted from recognition of 22 Finkelstein 1966: 355-72, esp. 359-60.

160 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources slave marriage. The law distinguishes between marriage prior to enslavement and marriage during slavery. If a married couple enter into debtslavery, then release of the husband after six years’ service automatically includes release of his wife. There is no theoretical difficulty in this case, since the debt for which they both were enslaved is deemed extinguished. If, on the other hand, the master gave a female slave of his own in marriage to the debt-slave, the latter’s release has no effect on his wife’s status. The master’s property rights take precedence over the husband’s marital rights. The ambiguous language of CU 4 is best interpreted as reflecting the same rule. Following Yaron, the subject of the apodosis should be understood as the wife, not the husband.23 If a slave marries a slave-woman whom he loves and that slave is freed, she shall not go out from the house. Free Person and Slave Marriage between free persons and slaves could arise from the enslavement of one of the partners to an existing marriage or by the voluntary marriage of a free person with a slave. In the first instance, enslavement did not affect the validity of the marriage or the husband’s exclusive sexual rights over his wife, although it might limit his remedies.24 In the second instance, two situations are covered by the sources: the general case where there is no material family relationship between slave owner

23 Yaron 1985: 131-42, esp. 138-39. Contra the original editor, Yildiz 1981: 96. A Nuzi contract is cited by Yaron in support of his interpretation (JEN 610; see Greenberg 1955: no. 64, cited by Yaron as no. 65), but the situation there is somewhat more complicated. B enters into slavery with A for A’s lifetime and is given a wife by A. The contract further obliges B to serve A’s son, C, and imposes a penalty upon him for breach of this provision, which includes forfeiture of his wife and children. It is not clear that the relationship between B and C is one of slavery or is contractual in nature, and in any case forfeiture of the wife is an express penalty for breach, not the natural consequence of the end of B’s slavery. 24 A reading of Lev 19:20-22 in this sense has already been proposed and argued at length by me (Westbrook 1988d: 101-9).

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and free spouse, and a special case where a family relationship between the two is the essence of the arrangement. 1. The General Case. In the general case, most of the evidence relates to the marriage of a free woman with a male slave. The provision in CH 175-176 lays down the principle that both the woman and her offspring remain free; the slave owner has no claim to either. CU 5 assumes the same principle as regards the woman but requires one male child of the marriage to be placed at the owner’s disposa1.25 The Hittite Laws, on the other hand, appear to call into question the freedom of a woman who marries a slave, but the terms of the relevant provisions are very obscure. HL 34-35 read: If a slave brings a betrothal payment for a woman and takes her as his wife, no one shall release her.26 If a steward or a herdsman causes a free woman to run [elopes with/abducts?] and does not bring a betrothal payment for her, she shall become a slave in [/for?] three years. 25 In my interpretation, that child is not a slave, I translate as follows: “If a slave marries a free woman, he/she shall place one son at the disposal of his master. The son who was placed at the disposal of his master will [divide] half the property of his father’s house, the wall, the house [...] The free woman’s son is not [...] with the master; he shall not cause him to enter into slavery.” Other translations assume that this final provision relates to the other children of the marriage, although not explicitly indicated, either by the wording or the grammar (Yildiz 1981: 96; Roth 1997: 17; Borger and Kaiser 1982: 20). The couple have to supply the master with one son, who will work for him. Far from being a slave, however, after his father’s death, that son apparently gets the half of his estate that the master must forego, as in CH 175-176. (Any other children will have to content themselves with their mother’s dowry, it seems.) The master cannot claim the son as a slave in place of his father. 26 There have been numerous attempts to translate the final verb in a way that spares the unfortunate bride from slavery. The latest is the Chicago Hittite Dictionary, which translates, “no one will hand her over [to a slave master]” (P/2 125). Since the normal meaning of para tarna is “to let go, release, set free, let out” (see P/2 115), it is proposed as a special use (“legal idiom”) on the basis of E. von Schuler’s translation of passages in the Edict of Tudhaliya (von Schuler 1959: 446-48). Not cited by the dictionary is an article in which the law of the relevant passage of the edict was completely reinterpreted, so as to validate the normal meaning of the verb (Westbrook and Woodard 1990: 641-59, esp. 643, 653-57).

162 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The juxtaposition of the two paragraphs would suggest that making a betrothal payment changes the woman’s status immediately, whereas in its absence, three years must elapse. In the absence of any background to these laws, it is impossible to do more than speculate as to their rationale or the parties or interests involved. The purpose might be to distinguish a betrothal payment from a loan, which would allow the recipient (her father?) a right of redemption. Another possibility is to regard the release as being from the marriage, not from slavery. In Yamada’s view, these paragraphs mean that a slave cannot take a free woman to wife without paying the brideprice; if he dares to do so, it changes her status to that of a slave.27 As for the offspring of a marriage between a slave and a free woman, the principle of freedom expressed in the Mesopotamian law codes was frequently overridden by express clauses in marriage contracts (to which the owner was a necessary party), which assigned some or all of them to slavery.28 There is insufficient evidence to determine whether the same principles applied where it was the wife who was a slave. Children of the marriage are mentioned in only one source: a series of legal documents from Elephantine recording the changing relationships over a period of years between an owner, his female slave, and her husband.29 In the first 27 Yamada 1995: 301-16 (311). 28 CT 48 53 (edition in Westbrook 1988b: 123); and JEN 120 (edition in Saarisalo 1934: no. 25). On the other hand, circumstances, especially love and affection, might make the contractual terms as generous as those of the law codes. Two Middle Assyrian documents record a remarkable arrangement. In the first, a slave redeems a woman from slavery with a third party, presumably with his master’s silver, and frees her (KAJ 167). In the second, while remaining a slave, he marries her (KAJ 70:2-10, 2029): “Ilima-iriba slave of Amurru-natsir redeemed fAsuat-Idiglat from the house of Ashur-retsuia son of Ibassi-ilu and, with Asuat-Idiglat’s consent, Ilima-iriba cleansed her of her slave status and established her as his wife. Ilima-iriba is her husband and Asuat-Idiglat is his wife . . . . Asuat-Idiglat and her children shall be villagers ( lai) of Amurru-natsir and his children. They shall do village-service ( laitu) for Amurrunatsir and his children. But Amurru-natsir and his children shall not seize AsuatIdiglat and her children for slavery.” 29 See Porten and Yardeni 1989: vol. 2, 60-63, 72-73. In an analysis of Kraeling 2 (= TAD B3.3), Porten and Szubin argue that not only the conditions of the wife’s marriage contract, but her very slave status, is subtly altered by successive revisions of the document, and by later documents, so that she gradually moves from a status of slavery to one of emancipation (Porten and Szubin 1995: 43-64). I disagree with their analysis on two grounds. (1) The concept of a gradual emancipation is legally incoher-

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document (Kraeling 2 = TAD B3.3) the master gives his slave in marriage to a free man. In a later document (Kraeling 5 = TAD B3.6), the aged master frees the slave and her daughter who has been born in the meantime. The master refers to the daughter as “your daughter whom you bore me” (lines 4-5). It is clear, however, that the daughter is the biological child of the husband. The phrase can only refer to the master’s ownership of the daughter, which he is now relinquishing. It is not known, however, whether his ownership was based upon the general law or upon another contractual arrangement which has not been preserved in the archive.30 The only provision in the law codes that considers the case of a slavewoman married to a free man is HL 31, which makes equitable arrangements in case of divorce: If a free man and a slave-woman are in love(?) and they enter and he takes her as his wife and they make a house and children for themselves but afterwards they either become bad or separate, they shall divide the house equally. The man will take the children for himself; the woman will take one child for herself. It is important to note that the wife receives only one child because she is a slave, not because she is a woman. In HL 32, where it is the husband who is a slave, and in HL 33, where both are slaves, the husband receives only a single child.31 ent, leaving the rights and duties of the parties uncertain at any one time. The ambiguities noted by Porten and Szubin may be readily accounted for by the division of the slave’s legal personality between her master and her husband (see further below). (2) As Porten and Szubin themselves point out, the marriage contract is ancillary to the status of marriage, not determinative of it (1995: 44-45). Changes in the contract can ameliorate the slave’s status, but they cannot alter it. 30 In Kraeling 2 (= TAD B3.3), lines 13-14, it emerges that there was already a son of the couple prior to the marriage. The master reserves the right to reclaim that son for himself in the event of a divorce. If he was the issue of concubinage and not marriage, the son would in principle have had no paternity and hence no right to freedom. Porten and Szubin appear to confuse, or at least to conflate, him with the later daughter, attributing the phrase “whom you bore to me” in Kraeling 5 (= TAD B3.6), line 8, to the son (1995: 59). 31 In HL 32 the key words are restored, but the restoration is compelling in the light of HL 33. See the edition in Friedrich 1971: 26 n. 6, and 27 n. 4.

164 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 2. The Special Case. The special case (where a family relationship between slave owner and free spouse is the essence of the arrangement) is best exemplified by the practice of a first wife giving her female slave in marriage to her husband as a second wife. Once again, the legal personality of the slave was split. As the Old Babylonian contracts express it: “To H, W2 is a wife; to W1, she is a slave.”32 It is necessary that the slave achieve the status of wife and not merely concubine, because the purpose is to provide legitimate offspring, primarily for the husband and secondarily for the first wife. This is made clear by the examples given in Genesis. Sarah, Rachel, and Leah all give a slave to their husbands as a wife, with the express purpose of acquiring offspring for their husbands and themselves. Gen 16:1-3 reads: Sarai, Abram’s wife, had not borne children to him, but she had an Egyptian slave-woman by the name of Hagar. Sarah said to Abram, “Behold, God has prevented me from giving birth. Come in to my slave—perhaps I shall be established through her.” Abram listened to the words of Sarai. Sarai, the wife of Abram took Hagar the Egyptian, her slave . . . and gave her to her husband Abram as a wife to him. What then were the rights of the first wife over the slave and her offspring? The law is complicated by the fact that the first wife is subordinate to her husband within the household; she cannot assert against her husband the rights of a slave owner as she would against an outsider. Accordingly, her ownership rights become residual, both as regards the slave and her offspring. This is illustrated in Genesis by the actions of Sarah. When she wishes to punish Hagar for impudence, she first has to seek permission from her husband (Gen 16:5-6). And later, when Sarah bears a son herself and wishes to prevent Hagar’s son from sharing Abram’s inheritance, she cannot act directly by expelling her own slave; she must prevail upon Abraham to divorce Hagar (Gen 21:10).

32 H = Husband; W = Wife. W2 is the slave. See CT 4 39a; CT 8 22b; CT 48 48; TIM 4 49 (see Westbrook 1988b: 104); CT 45 119 (edition in Wilcke 1984: 170-80).

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In the same way, the Old Babylonian contracts, in their use of express terms, demonstrate that the first wife could no longer rely on her bare ownership to assert her rights.33 According to CT 48 48: Ahassunu has adopted Sabitum daughter of Ahushina and Ahatani from her father Ahushina and her mother Ahatani. Sabitum is a slave to Ahassunu, a wife to Warad-Sin: with whom she is hostile, she will be hostile; with whom she is friendly, she will be friendly.34 The day she distresses Ahassunu, she will shave her and sell her. However sweeping the first wife’s powers appear, they are the result of an express contractual clause, not of her normal rights as an owner. It will be recalled that in CH 146 the wife was forbidden to sell her slave that she had given to her husband as a concubine when the latter had borne children. In the light of the above examples, that provision may be seen as an attempt to extend to a slave concubine some of the natural protection afforded a slave by marriage. There remains the question of the relationship between offspring of the marriage and the first wife. If her ownership rights over them are limited, does her status as owner at least make them her legitimate heirs? The latter possibility is suggested by a clause in an Old Babylonian contract that asserts: “If she (W2) bears ten children, they are the children of W1.”35 At the same time, its appearance in an express clause suggests that this was not the automatic result of the relative status of the two women, but that some further process was necessary. The same appears true for the cases in Genesis. Rachel declares to Jacob (Gen 30:3): “Here is my slave Bilhah; come in to her and she shall give birth on my knees, and I too will be established through her.” Both Rachel and Leah also name the children that their slaves bear to Jacob 33 There are further complicating factors in these contracts, namely, adoption and sisterhood, which do not concern us here. For full discussion, see Westbrook 1988b: 104-7; and Wilcke 1984: 171-75. 34 Correcting my translation of this phrase in Westbrook 1988b: 109 (“whenever she is angry, she will be angry; whenever she is friendly, she will be friendly”) in the light of the parallels with international treaties drawn by Weinfeld 1970: 184-203, esp. 194. 35 CT 48 67, but see the discussion in Westbrook 1988b: 106.

166 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources (Gen 30:5-13). It may therefore be that, as has been often suggested, some form of adoption was involved, whereby ownership rights were turned into filiation.36 Slave and Master In my view, marriage of a female slave to her own master is the one situation where marriage and slavery are altogether incompatible: a man cannot be a master and a husband of the same woman at the same time. The reasons derive from the logic of the two institutions. Before expounding them, however, it is necessary to consider a preliminary problem of terminology. In a small number of texts, a married woman is called the slave of her husband. The texts are concentrated in three widely separated clusters of sources, altogether different in genre and in the context in which the term appears.37 1. West Semitic. Lipiski has drawn attention to first millennium West Semitic seals and tomb inscriptions where in each case the woman named is referred to as the slave (’mt/’mh) of a man who from the context appears to be her husband.38 As Lipiski points out, however, the context also makes it clear that these are free women, indeed, that they are of high status. One is even a queen!39 The explanation most probably lies in the semantic relativity of slavery terminology. As has often been noted, the term for slave, male or female, was used indiscriminately in ancient Near Eastern languages to refer to any hierarchical inferior, for example, a subject before a sovereign, a king before an emperor, or an emperor before a god, without necessarily implying the strict legal relationship of ownership of the former by the latter.40 In introducing oneself, the expression “Your slave” was commonly used as a formula of polite self-abasement. In the

36 See e.g., Skinner 1930: 386-87. 37 My statement in an earlier study that wives are never referred to as slaves of the head of household is therefore incorrect, having failed to take into account the following, albeit marginal, instances (Westbrook 1995e: 1635). 38 Lipiski 1994: 12-16. 39 Queen Gahimat, who is qualified as ’amat of the mukarrib of Saba in a South-Arabian inscription (Lipiski 1994: 14). 40 A good discussion of this phenomenon may be found in Yamada 1995: 301-16.

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sources under discussion, therefore, it would appear to have served the purposes of euphemistic modesty rather than legal classification.41 2. Old Assyrian. Among the Old Assyrian tablets that document the affairs of Assyrian merchants in Anatolia there are several instances collected by Kienast where the standard Akkadian term for female slave, amtum, appears to refer to a wife.42 While some of them might fall under the category of euphemistic modesty, as above,43 there are two marriage documents which suggest that the term amtum refers to a definite legal status.44 ICK 1 32 states that one Pilah-ishtar divorced “his slave-woman” (amassu) and paid her a divorce settlement in the presence of her mother and brothers.45 The second is a marriage document according to which,46 Puzur-ishtar took ( uz) Ishtar-lamassi, daughter of Ashur-nada “for female slavery” (ana amttim). He will take her with him to Purushhaddum or to Hattum or wherever he journeys, and he will bring her back to Kanish with him. If he divorces her, he will pay 5 mina of silver; if she divorces him, she will pay 5 mina. Besides his wife (a

it u) in the city of Assur, he shall not take (eaz) another. If Ishtar-lamassi does not see a child within 3 years, he may buy a slave-woman (amtam) and take (eaz) her. Ashurnemedi, Anina, and her mother gave her.

41 This is its purpose in 1 Sam 25:41 and 1 Kgs 1:17, where the phrase is “your slave” in direct speech. Lipiski is therefore wrong in attributing the meaning “wife” to the term in these passages, which no more indicate marriage than they do slavery (1994: 1215). 42 Kienast 1984: 94-95, 100. 43 Especially a wife’s letter to her husband, listed by Kienast (1984) as no. 1f (= Kienast Altass. Kaufvertragsrecht 44:25-28a), in which the following statement is found: “Today, have I not done well for you like a slave-woman ‘with a beaten head,’ so that you should measure out the rations to the slave-woman (i.e., me)?” (Kienast 1984: 95). 44 A third marriage document is cited by Kienast (1984: 94), but the key term is written over an erasure and needs to be restored; hence it cannot serve as evidence (no. 1b = ICK 1 3). Kienast restores it as GEMÉ (the Sumerogram for amtum); CAD (A/1 175) restores it as DAM (wife). 45 Edited in Lewy 1956: 3-6. Published only in transliteration (Lewy 1956: 6). 46 Published only in transliteration (Lewy 1956: 6).

168 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The verb “to take” (a zum) in principle requires further specification in order to refer to marriage: “to take a wife/to take for marriage.” It can be abbreviated, but the context would have to be unambiguous. Otherwise, when used alone, it refers to concubinage.47 Hence the second occurrence here indicates marriage, but the third, concubinage. On the other hand, Ishtar-lamassi herself, although taken “for female slavery,” cannot have become thereby a slave. The decisive reason is the penalty clause, which obliges her to pay her husband upon divorce. A slave, being owned, could not own property separately from his or her master.48 Hence the “female slavery” of Ishtar-lamassi was legitimate marriage as a free woman. The question remains why this particular terminology was employed. The reason would appear to lie in the unusual bigamous practices of the Assyrian merchants, who maintained one household at home in the city of Assur and another in the trading colony in Anatolia. It is the latter that is documented in these records. Lewy conjectured that the Assyrian merchants “did not and could not accord to their wives the title a

atum [wife] whenever they were married to an a

atum residing elsewhere—for instance in the city of Assur—or wished to retain the right to marry another woman whom they intended to make their a

atum.”49 Lewy does not explain why both wives could not bear the same title, a practice that is well attested elsewhere, but in support of his view, some legal fiction would definitely have been necessary if, for example, the merchant did not want the children of his Anatolian marriage to share his estate in Assur with his Assyrian children, or if his marriage contract with his Assyrian wife prohibited him from taking a second wife. The term amtum avoided

47 For a full discussion of a zum, on the basis of the Old Babylonian sources, see Westbrook 1988b: 10-16. Old Assyrian examples are: KTS 1 47a (a zum alone = concubinage); TCL 4 67 (a

atam a zum = marriage; edition in Eisser and Lewy 1930: 1-2; see also CAD A/1 175); Matou 1973: 312 (a zum alone = marriage, but in preamble to divorce document). 48 It is true that a slave in the ancient Near East might have a peculium, a fund allocated by the master with which the slave could transact independently and even make payments to the master. But ultimately a peculium remained the master’s property. In a confrontation between master and slave there would be no point in forcing the slave to pay a penalty to the master with funds that belonged to the master anyway. See Dandamaev 1984: 384-97. 49 Lewy 1956: 4.

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difficulties that might arise from an overt admission of bigamy, even if it was understood under local law that the Anatolian partner was a free person and a legitimate wife. 3. Biblical. There are two verses in Genesis where the slaves given by Sarah, Leah, and Rachel as wives to their husbands Abraham and Jacob respectively are referred to as the slaves of their husbands. In Gen 21:12 God reassures Abraham, who does not wish to send Hagar away: “Do not be perturbed on account of the boy and of your slave-woman (’m tek ).” In Gen 32:23 Jacob “took his two wives and his two female slaves ( iptâw), and his eleven children and crossed the ford of the Jabbok.”50 This sudden shift to calling Hagar, Bilhah, and Zilpah the slaves of the husband rather than of the wife, although in a narrative, cannot be dismissed simply as euphemistic modesty, especially in the second passage, where it is explicitly contrasted with the term “wives.”51 Nor would any comparison with the very special situation in the Old Assyrian documents be appropriate. I suggest (albeit reluctantly) that the explanation lies in an inconsistent narrative rather than in the nature of the law. Either there was some confusion in the tradition as to whether they had been given as concubines or wives, or the author of these passages was concerned to maximize the status of the primary wives at the expense of the secondary wives. Support for the latter view comes from Gen 35:22, where the same Bilhah is called the “free concubine” (pîlege ) of Jacob, a designation that is totally inappropriate. The narrator’s motive is obvious—to spare Reuben, Jacob’s son, whose crime in sleeping with Bilhah would have been far more heinous if she were Jacob’s wife. On the other hand, as we have seen in the Hittite laws, if Bilhah were merely Jacob’s slave concubine, there would have been no breach of a sexual taboo at all. The narrator’s main goal was to impose an appropriate level of moral opprobrium, in pursuit of which he was prepared to sacrifice legal or narrative consistency.

50 It is unnecessary for the purposes of this study to distinguish between ’ mâ and ipâ in Biblical Hebrew. Whatever else they mean, they certainly both mean female slave. 51 Lipiski argues that ’ mâ is an honorific title in Gen 21:9-13, where Hagar is presented as an Arabian queen (1994: 14). But at that point she is still far from becoming a queen, and when Sarah uses the same term of Hagar in v. 10, it is anything but an honorific title.

170 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Notwithstanding the above evidence, I consider that in ancient Near Eastern law a man could not be master and husband at the same time, because of the conflicting logic of the two institutions. The purpose of marriage is to produce legitimate offspring who can inherit from their father, if there is anything to inherit. Children begotten upon a slave are the fruits of their father’s property. As such, they are not capable of inheriting from him; rather, they are part of his estate, to be inherited by his legitimate heirs.52 Even if it were conceded that by a special rule the children were free while their mother was not, the logic of the law would still produce absurd consequences: on the father’s death, the children would inherit their own mother as a slave. Further difficulties arising from the logic of the two institutions are illustrated by an Old Babylonian document: 53 Mar-ertsetim son of Ayatia has taken Atkal-ana-belti, her [Ayatia’s] slave for marriage. If Atkal-ana-belti says to her mistress Ayatia, “You are not my mistress,” she will shave her and sell her. Everything that Ayatia has acquired and will acquire belongs to Mar-ertsetim. As long as she [Ayatia] lives, both of them shall support [her]. A woman has given her slave-woman to her son as a wife but has not freed her.54 If slavery and marriage were compatible in this instance, the husband would, on his mother’s death, inherit his wife as a slave. It seems to me more reasonable to suppose that the slave’s personality is split. She is a free woman as regards her husband and a slave as regards her mistress. 52 CH 171, in decreeing the release of a slave concubine and her children by her master on the master’s death, seeks to avoid the unseemly but logical consequence of the law, namely, that the legitimate heirs will acquire their own siblings as slaves. It specifically (and unnecessarily) adds that the master’s legitimate children are not to claim his children by the slave concubine as slaves. Nonetheless, the concern of CH does not appear to be reflected in its parallel provision in CL 25, which assumes that release of his children by a slave concubine is purely a matter of the master’s choice. 53 CT 6 37a (see Westbrook 1988b: 117). 54 The background to this arrangement is almost certainly that the “son” is adopted, possibly a slave whom she has manumitted. The tell-tale sign is the duty of support which falls on the son as much as upon his wife. See Obermark 1992: 45-47, 83-94.

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The mistress’s ownership rights as regards her slave are limited and therefore have to be restored in part by express contractual clauses, as we have seen above—in this case a penalty clause and a support clause. On her mistress’s death, any inheritance rights that her husband might have had in her will be stultified by his status as her husband. Accordingly, marriage to one’s own slave will nullify or at least suspend her slave status, as regards her husband. An Old Babylonian polygamy document makes this consequence clear.55 Bunene-abi and Belessunu have purchased Shamash-nuri daughter of Ibbi-Shahan from her father Ibbi-Shahan. To Bunene-abu she is a wife; to Belessunu she is a slave. The day that Shamash-nuri says to her mistress Belessunu, “You are not my mistress,” she will shave her and sell her. He/she has paid 5 shekels of silver for her full purchase-price. He has caused her to climb over the pestle; the transaction is complete; his heart is satisfied. As in the previous document, the slave’s legal personality is split between her mistress and her husband. In this case, however, she was originally the property of her husband, who purchased her jointly with his wife. He then married his newly acquired slave, although the document does not inform us of this directly. It is drafted for the benefit of the first wife, to show that she retains some of her rights of ownership, even though the husband has lost his through marriage. I now propose to analyze two biblical laws in the light of my understanding of the law of slavery and marriage. The first is Deut 21:10-14: When you go out to war against your enemies and God has given them into your hand and you have taken captives, and you see among the captives a beautiful woman and you desire to take her for yourself as a wife: you shall bring her into your house, and she shall shave her head and pare her nails and remove her captive’s garb and sit in your house and mourn her father and mother for a period of one month. And afterwards you may come in to her and take her, and she shall become your wife. If it comes about that 55 CT 8 22b (see Westbrook 1988b: 119).

172 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources you do not want her, you shall divorce her to herself; you shall not sell her for silver. You shall not trade in her, because you degraded her. There is no question of slave concubinage here; the text explicitly refers to the formation of marriage and to its termination by divorce. The Hebrew verb l usually translated “release” or the like, is also a technical term for divorcing a wife, as in Deut 24:1, 3. In my analysis, the captive woman is initially a slave, marriage makes her a free person, but subsequent termination of the marriage revives her previous status: her husband becomes her master again, and therefore can in principle sell her as a slave. The law forbids him to do so; instead, he must divorce her “to herself (lnap â). 56 This curious and seemingly redundant expression is another facet of splitting the juridical personality. The woman is reunited with herself, that is, she receives back the ownership of herself that was ceded to her captor when she became a slave, regained during marriage, but lost again to him following her divorce. The second law is Exod 21:7-11, which I have identified as regulating a situation where a slave-woman is the concubine, not the wife, of her master. The opening provisions have already been discussed. We are now concerned with the second part of the law, which deals with her rights if she remains within the family of the purchaser: If he assigns her to his son, he shall treat her according to the status of daughters. If he takes another for himself, he shall not reduce her food, clothing, and oil. If he does not provide her with these three, she shall go free without payment of silver. Two situations are envisaged: 1. She is assigned to a son of the purchaser. Many commentators (including myself), have assumed that the “status of daughters” is an oblique reference to marriage with the son.57 In the light of my earlier discussion of this law, I now consider it more 56 See HAL3 673a. 57 Westbrook 1988d: 61.

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likely that the provision is designed to counter another attempt by the purchaser to subvert the purpose of the contract. Assignment points to future consummation, which gives the purchaser the opportunity to temporize regarding the female slave’s position while she waits for his son to come of age. The law insists that her master must in the interim give her the standing of a daughter within the household, not a servant, because the purpose of the contract is that she provide sexual and reproductive services, not labor. 2. The master takes her himself but subsequently takes a second concubine. Since he has fulfilled the purpose of the contract (and presumably taken the woman’s virginity), unraveling it by redemption is not an appropriate solution to his failure to provide her with proper sustenance, which in any case was a more serious breach. It was a form of physical abuse, not merely a loss of rights in the abstract, and accordingly it annulled not just the contract of concubinage but the underlying debt.58 The mention of rations provides a final indication that this law was regulating concubinage, not marriage. The duty of a husband to provide his wife with sustenance was so self-evident that it went virtually unmentioned in ancient Near Eastern sources. Only where the husband is missing abroad does the issue come to light. The law codes consider the inadequacy of his property for providing sustenance sufficient grounds for his wife to marry another (CH 134; MAL A 36). Rations are the stuff of servants and dependants, not wives. Were the slave-woman married to her master, she could have relied on the protection given by her status as wife to ensure her sustenance and would not have required special measures.

58 The same principle may be reflected in MAL A 39. The protasis describes a complicated and obscure situation in which a girl is pledged for her father’s debt and then apparently becomes the object of rival claims between the pledgee, another creditor of her father, and a man to whom she has been given in marriage (apparently by the plegdee). Our concern is with yet another contingency (lines 34-35): “if she is badly provided for, she is free of claims, in favor of the one who sustains her,” following the interpretation of Veenhof (1978: 292-95) and not of CAD.L 249.

174 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Summary and Conclusions In the legal systems of the ancient Near East, the female slave, no less than her male counterpart, was property. The special features of her gender were property interests of her owner, to be exploited or disposed of as the latter saw fit. Thus the owner’s interest in her sexuality was protected against interference by outsiders through the rules of property law, just as the integrity of any asset might be protected. By the same token, offspring of the slave, even when fathered by her owner, were in principle subject to the rules of property law, like the fruits of any asset. At the same time, however, the female slave’s sexuality and reproductive capacity brought into play the rules of family law, either through special applications of the principles of social justice, which tempered the condition of slaves in general, or directly through the status of marriage. In certain circumstances occasioned by the exercise of her sexual and reproductive functions, the principles of social justice could override the owner’s property rights to render her inalienable, redeemable, or protected from physical abuse. The status of marriage, if with the owner himself, altogether excluded the application of property law to her person. The question of which regime—property law or family law—was to prevail varied according to circumstances and sometimes was resolved by compromise. For example, the principles of social justice could be avoided by express contractual provisions. Presumably such provisions could not override the equitable jurisdiction of the courts altogether, but they were employed so widely as to leave little doubt as to their efficacy, the limits of which cannot be ascertained. Similarly, where marriage was to a third party, there was a wide range of possibilities. If the slave was married to another slave of her owner, the owner’s property rights prevailed, but if to a free person, the slave and her offspring enjoyed some of the consequences of a free marriage. Finally, mention should be made of the special legal mechanism employed to regulate the status of a female slave. Where the property and family interests in her person were located in different persons, the law employed a subtle jurisprudential device: her legal personality was split between them, the two parts being governed by property and family law respectively. No better symbol could have been devised for the conflicting attitudes of the law towards the female slave.

11 A Sumerian Freedman Abstract Several different definitions have been offered over the years for the Sumerian term d u m u -g i 7 . This article examines several sources in which the term is used and proposes that, in legal and administrative texts, it is best to understand the term as referring to a slave who has been freed.

A

free person is most commonly referred to in Sumerian as l u 2 (“man, householder”), a term which assumes rather than asserts free status.1 A more specific term is “son/daughter of a man” (d u mu /d u mu - mu n u s l u 2 ), asserting that the person was freeborn. As a definition, it seems to beg the question, since the criterion of being freeborn only removes the inquiry to an earlier generation. Like ownership of property, however, it recognizes that an absolute right remains at bottom a relative one: title to land depends on having acquired it from someone with good title, and that owner’s in turn from the same process. Since infinite historical inquiry is impossible, at some point relative rights are accepted as absolute. Two other terms define freedom by reference to geography. “Son of the city (X)” (d u mu u ru X ) is a widely used expression that focuses on the status of citizen (and therefore free person). It is often used in the plural to describe the burghers of a particular state.2 * Originally published in Literatur, Politik und Recht in Mesopotamien. Festschrift für Claus Wilcke (ed. W. Sallaberger et al.; OBC 14; Wiesbaden: Harrassowitz, 2003), 333-39. Used by permission. 1 I am grateful to my colleague Professor Jerrold Cooper for reading the first draft of this article and for his helpful comments and criticisms. 2 In the d i -t il - la documents of Ur III: NSG 185: 8. Cf. the same usage in the late second millennium at Ugarit: e.g., DUMU.ME KUR ú-ga-ri-it (RS 17.42; edited in

176 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The second term is d u mu -g i 7 , which is found mostly in legal and administrative texts of the Ur III period and occasionally in literary texts derived from that period. Unlike the other terms, it has no Akkadian equivalent and is not attested beyond the early Old Babylonian period. Steinkeller translated “native son,” on the analogy of u r-g i 7 (“domestic dog”).3 Our contribution will explore more closely the meaning of this term and in particular its legal usage as a designation of free status. Where the term is found in literary sources, freedom is not at issue. When applied to gods, the epithet d u mu -g i 7 illustrates rather their position as city-dwellers. Thus in the Lamentation over the Destruction of Sumer and Ur, Nane, although a d u mu - g i 7 , is obliged to dwell outside the city (line 167), and Nanna, a d u mu -g i 7 who loves his city, is forced to leave it (lines 370-373).4 In Gilgamesh and Agga, Utu asks Gilgamesh: “Young man, you are a city-dweller; what will become of you in the mountains?”5 In the Curse of Agade, it is in parallelism with l u 2 sag 5 , illustrating two types of prosperous inhabitants (lines 249-251).6 In legal sources, on the other hand, the term is typically found in opposition to slavery. It is attested four times in d i-til-la court records and twice in Sumerian law codes.7 1. NSG 76 (lines 1-8) reads: Case closed. A son of X sued B daughter of Y. He said: “I bought her.” Because the witnesses denied his word and he was pronounced a wrongdoer (lu 2 - n i 2 -zu  b a- an - u - e - a), B was pronounced a du mu-gi 7 (du mu-gi 7 - ra b a- an - u - e).

3 4 5 6 7

Nougayrol 1956: 171-72). Note that it is used interchangeably with LU2.ME KUR ú-gari-it (RS 17.145; edited in Nougayrol 1956: 172-73). Steinkeller 1993: 112-13 n. 9. The term g i 7 or g i r 1 5 (sign E3) is also found in phonetic writing (d u m u -g i ) in some of the Ur III d i -t i l - l a’s. Michalowski 1989. Edzard 1991: 174-75, line 20:  u ru  d u m u -g i7 n i2 - z a - a  e2 - m e - en k u r- r a an a-b i -m e- en . Cooper 1983a. The d i- ti l -l a documents are edited in Falkenstein 1956-57, vol. 2 (abbreviated as NSG followed by the edition number).

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The case in part concerns a false claim of ownership of a woman, which results in a finding as to her true status. (There are further proceedings involving a statement by the successful defendant, but the report is too broken to establish their content.) The term that we have translated “pronounced” refers to a judgment of the court creating a legal status or condition (presumably by a speech act).8 As Falkenstein points out, it is not strictly necessary, since a false claim could not in itself have changed the defendant’s status.9 The extreme terseness of the report does not permit an exact reconstruction of the situation, but the court’s action suggests that the situation was more than simply a false claim against a free woman. The most likely scenario is that the woman had been a slave and the dispute was whether she had been freed or sold. Such disputes would typically arise on the death of the master, concerning actions that he had taken during his lifetime;10 hence the court’s decision here to resolve the defendant’s ambiguous status. 2. Falkenstein in his edition of the di -t i l-l a documents translated dumu- gi 7 throughout as a conditionally free person (“bedingt frei”). His interpretation was based on NSG 177, lines 17-20: 1 d u mu i r 1 1 d u mu -g i / g e m e 2 -u -k i -a r- ra -k e 4 / k u 3 di ir -r a i r 1 1 -a -t u B A P PI R- e 3 i n-i-in -tu d - a / a-tu -e am a- ar -g i 8 -b i i n -a r a r “Die Sklavenkinder, die ‘bedingt Freien,’ die Geme’ukigarra dem Kudiirra, dem Sklaven des Atu, des Brauers, geboren hat, hat Atu freigelassen.”

8 u  / k u 4 ; see Falkenstein 1956-57: vol. 2, no. 76, note to line 7; and 1956-57: vol. 3, 169, s.v. tu (- r ), meaning 3 “zu etwas machen.” The shift  > t posited by Falkenstein is not valid with the reading k u 4 , but the two verbs must still be synonymous. For this legal usage of k u 4 , see also MVN 3 219, most recently edited in Steinkeller 1989: 330-32; cf. Wilcke 1988: 26-28 n. 97. 9 Falkenstein 1956-57: vol. 2, no. 76, note to line 8. 10 Cf. NSG 99, where the heirs promise not to challenge a manumission made by their mother during her lifetime.

178 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Falkenstein’s reasoning was impeccable: since free persons cannot be freed a second time, dumu -gi must refer to a condition less than freedom upon which the final release could operate. He surmised that it referred to paramon , which, following Koschaker, he interpreted as a state of halffreedom.11 Kraus rejected Falkenstein’s interpretation as incoherent, for two reasons. Firstly, the combination dumu x signifies a state into which one was born. It could not apply to a state which was acquired or imposed, like paramon . He did admit to one exception, which we shall consider below. Secondly, in all the legal sources the term was consistently used in contrast to slave; in two thereof manumission was expressly mentioned, and in two there was no mention of anyone to whose benefit paramon could operate. The translation “free/free citizen” therefore fitted exactly in all cases.12 The logical difficulty in NSG 177: 17-20 was only apparent: the appearance of du mu-gi in that position could be explained as an anticipation of the outcome of the case. Kraus’ explanation of NSG 177: 17-20 is artificial and unsatisfactory. In a report consisting of one short sentence, an anticipatory statement of the outcome is unnecessary and would only be confusing. There is, however, another way to overcome the logical difficulty. Charpin has shown that the Sumerian term for “to free” (a ma -a r-g i 4 . . .  a r) has, like its Akkadian counterpart (andurru), a basic meaning of “to restore to its previous condition.” In most cases restoration will be synonymous with freedom, but in special circumstances, for example where a slave was previously not free but owned by another, it will indicate return to the original owner. Thus in CH 280-281, where a foreign merchant returns with the slaves of a Babylonian whom he purchased abroad, the original owner is entitled to redeem his slaves if the latter were foreign-born. If the slaves were native-born, “their release will be established (andurrunu iakkan) without payment.” In the special context, this phrase must refer to the merchant’s duty to return them to the owner.13

11 Falkenstein 1956-57: vol. 1, 94-95. Cf. already Siegel 1947: 43 n. 47. 12 Kraus 1970: 55-60. Kraus cited only five sources, the tablet containing the text of CU 5 not yet having been discovered. See below. 13 Charpin 1987: 36-44.

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In the same way, in our text, Atu did not free the child of a slave who was already half free but caused the child’s restoration to a previous condition. At some point the child had indeed been freed, but Atu went before the court in order to obtain the right to re-enslave the child. 3. In the above example, the child’s mother appears to have been a free woman married to Atu’s slave, which may have had a bearing on the case. The response of early Mesopotamian law to the competing claims of the free mother and the father’s owner varied and may not have been consistent even within a single system. CH 175 roundly declares that the owner may not claim the children as slaves, but an Old Babylonian marriage contract from the reign of Samsu-iluna (CT 48 53) declares that all the couple’s children belong to the owner.14 Our third source, paragraph 5 of Codex Ur-Namma (CU), adopts a compromise approach: If a (male) slave marries a d u mu -g i 7 , he shall provide the owner with one male child. Together with the son provided to the owner, half the property of his father’s house, the wall, the house [. . .]. A child of the d u mu-g i 7 (d u mu d u mu-g i 7 ) who is not with the owner shall not enter for slavery. The assumption is that dumu -gi 7 means a free woman, on the analogy of dumu- mu nus aw lim in CH 175, although why this term should have been used (and not, for example, du mu - mu n u s lu 2 ) is not clear, nor the exact status that it embodies. (The question is not mere pedantry, as we shall see below.) The broken clause referring to half the father’s property may have provided that the owner was entitled to half the slave’s acquired property on his death, as in CH 176. It is unlikely that it was regulating the inheritance of the slave’s son who had been given as a slave. At all events, the duty to provide one child as a slave is clear. 4. That d u mu -g i 7 is not simply a synonym for d u mu lu 2 is demonstrated by NSG 75, which reads:

14 Edited in Westbrook 1988b: 123.

180 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Case closed. X, Y, and Z swore the oath that A and B, the sons of F, had come forward and declared with regard to C, who was the slave of F: “Oath of the king: let the slave C be freed (a m agi 4 gi8 -n i e 2 - a2 ar ar ), and let him be made like the son of a man” (d u mu l u 2 - A -g i n 7 -n a- am 3  e 2 -d i m 2 ). And (they swore) that C had called PN1-7 (to attest that) the slave was freed. C and his children were pronounced du mu - g i 7 (d u mu -g i 7 - ra b a -an -k u 4 ). The court by its judgment gives C a new status, which is described in two ways: he is a d u mu -g i 7 , but he is only “like” a d u mu l u 2 . Had C been born free, the effect of a m a- ar- g i 4 would have been to restore him to his previous condition. Evidently, he had been born a slave and, notwithstanding the power of the law to change a person’s status, it was felt that manumission could not go so far as to make a person freeborn when he had not been free at birth. What the law could do, however, was to deem C’s status analogous in law to that of a freeborn person and thus endowed with the same privileges. The same applies to the term dum u-ur u . In NSG 74 and 178 (lines 12-15), a slave is freed and made like a son of the city (am a- ar -g i 8 i 3  ar- ra d u mu u ru -g i n 7 i n- d i m- ma ). The term d u mu-g i 7 , by contrast, is used in NSG 75 as a direct designation of the manumitted slave’s new status. 5. It is in the light of this analysis that we should interpret paragraphs 2526 of the Codex Lipit-Ishtar: If a man marries a wife and she bears him a son and the son is living, and a slave woman bears her owner a son and the father frees the slave woman and her children, the son of the slave woman shall not divide the estate with the son of his (former) owner. If his first wife dies and, after the death of his wife, he marries his slave woman, the son of his first wife is his heir; the son that the slave woman bore to her owner is like the son of a d u mu -g i 7 (dumu du mu-gi 7 -g i n 7 -na m)—he shall enjoy his house (e 2 a-n i i b 2 -d u 1 0 -g e).

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The second situation in paragraph 26 is a slight variant on the first: instead of freeing his slave who has borne him a son, he marries her after his first wife’s death. The effect of the marriage is to free the slave woman, since the status of wife, although not legally incompatible with the status of slave, is incompatible when the owner and husband are the same person. 15 On the father’s death, therefore, the question arises as to the status of her son by him, who was born while she was still a slave-concubine and not expressly manumitted. Although the situation is different from the court cases above, the underlying legal principle is the same. The law cannot change the circumstances of his birth, but it can put him in the same position as if they had been otherwise. The ruling is that he is deemed free as if he had been born subsequent to his mother’s marriage. Note that the term dumu- gi 7 , which applies to his mother, refers to her condition as a freed slave, the issue being not whether she was free but when she had been freed. The consequences of the son’s change of status depend upon the meaning of the last phrase (“he shall enjoy his house”) which unfortunately is not clear. If the house in question is the father’s estate, we still do not know whether the slave’s son inherits a share subject to the firstborn privilege of the legitimate son or is merely entitled to some sort of usufruct or right of habitation. In the first alternative, subsequent marriage would not merely free a son born out of wedlock but make him also a legitimate heir. Another possibility (which would account for the unusual expression) is that “his house” is the son’s peculium, i.e., separate assets that his father gave him or that he otherwise acquired during the father’s lifetime but were deemed his father’s as long as he was regarded as a slave. 6. The final legal source adds little to the discussion, if only because its interpretation relies on the restoration of a key verb. NSG 184 (lines 9-15) informs us that because a certain woman was a du mu-gi , she was [redeemed] (b a- [d u 8 ]). The silver for her (k u 3 -g a -n i ) was charged to the palace for the benefit of an official. Siegel, who proposed this restoration, made the plausible suggestion that it was a case of ransom from captivity abroad of a captive by a merchant who was then reimbursed by the palace.

15 Discussed by Westbrook 1998a: 214-38, esp. 229ff.

182 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The palace was responsible because she was a free citizen.16 If his interpretation is correct, this is the only legal source in which d u mu -g i 7 exemplifies the local/foreign dichotomy that is the perspective of the literary sources.

Conclusions In the four legal sources where some context can be established for the term (nos. 1, 2, 4, and 5 above), du mu-gi 7 arguably refers not to any free person but specifically one freed from slavery. In NSG 75 it is explicitly distinguished from a freeborn person. It is impossible to conclude from such a narrow sample that d u mu -g i 7 was used exclusively to refer to freed slaves, but its use calls to mind the term libertus (“freedman”) that designated a manumitted slave at Rome. Without wishing to import any of the special conditions of that status in Roman law, we note that the libertus was a fully free citizen of Rome but with a slightly lower legal and social status than an ingenuus, a freeborn citizen. A lower status of citizen would account for the specific designation as dumu- g i 7 of numbers of g u ru  in ration lists, and in particular Jones and Snyder 252 ii 25: d u mu -g i 7 l u 2 u ru X ki -m e.17 The appellation “citizens (l u 2 ) of city X” was sufficient to establish that the men in question were free citizens; the designation dumu- gi 7 would be redundant if that were its only purpose.18 Our suggested nuance could only apply in a legal or administrative context; elsewhere the broader connotation of locally born would apply. The gods, after all, could never be described as freed slaves. By way of a bridge between the two aspects, we would return to Kraus’ assertion that the form du mu x applies exclusively to a state into which one is born— directly contradicted, as Kraus admitted, by NSG 75. Kraus’ explanation was that it fell within the typical exception to the rule, namely, the use of dumu for an adopted son. Just as the adoption of A by B makes A into

16 Siegel 1947: 42-46. 17 Jones and Snyder 1961. 18 Kraus (1970: 60) wonders why only few out of thousands of names in these lists are called d u m u -g i 7 . A narrower status than simply “free person” would go some way toward explaining the rarity of the term.

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dumu B, so the manumission of a slave in Nippur made him into a d u mu nibru.19 As we have seen, however, that is precisely what manumission does not do: it makes him d u mu -g i 7 but only like a d u mu u ru . Accordingly, either d u mu -g i 7 does not follow the grammatical rule, or it refers to a birth condition not necessarily connected with freedom. In the latter case, it is possible that d u mu -g i 7 referred essentially to a native-born person, and that it was adopted as a euphemism in legal texts for houseborn slaves who were freed, since they could claim local birth, if not freedom at birth. Perhaps as a social class it even colored literary texts. The two characters juxtaposed in The Curse of Agade could be taken as a merism for Agade’s prosperous citizenry, being examples from each end of the social scale: 249 May your freedman (du mu-gi7 ), who eats fine food,20 lie hungry in the grass. 250 May your prominent nobleman (l u 2 -s ag 5 ) 251 eat the thatching on his roof!

19 Kraus 1970: 58. 20 Social status and economic status are not necessarily identical. Freedmen at Rome could be fabulously wealthy, as one might expect with persons who had essentially bought their freedom with their own enterprise. Or the verse could be a comment on how prosperous all classes of Agade’s citizens were before the curse.

12 The Quality of Freedom in Neo-Babylonian Manumissions Abstract The status of m r banî, generally understood to be free citizen, and the status of irku, temple slave, would seem to be incompatible, yet they appear in combination in certain Neo-Babylonian and Achaemenid period texts. The reason lies in the Greek institution of paramon , first identified in Mesopotamian sources by P. Koschaker. It is not, as Koschaker thought, a semi-free status, but a contract of service. Applied to manumitted slaves, it gives them free status, although dedication to a temple upon a future contingency may make their freedom temporary.

he document 1 OIP 122 38 (= A 32117), a record of litigation from the reign of Cyrus,2 contains a paradox that has led to two radically different interpretations of its contents. If either interpretation were accepted, it would have widespread ramifications for our understanding of NeoBabylonian law and society. According to the document, a slave named Itar-ab-uur is suing his former mistress. His declaration tells a long and complicated story of his transfer from one owner to another. The essence of his plaint, however, lies in two contradictory steps taken by the defendant, Innina-eirat:

T

1. “Arrabi and Innina-eirat his wife sealed a tablet of my m r banî status (IM.DUB DUMU-ba-nu-ti-ia). They wrote in my * Originally published in Revue d’Assyriologie 98 (2004): 101-8. Used by permission. 1 This article was first presented as a lecture at the Centre National de la Recherche Scientifique, UMR 7041—Archéologie et Sciences de l’Antiquité, at Nanterre on 28 May 2004. I am grateful to the participants for their helpful comments and criticisms. Responsibility for errors rests with the author. 2 Published and edited in Weisberg 2003: 70-74 and pl. 21; also edited in Roth 1989b.

186 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources tablet: ‘Itar-ab-uur (and his children) . . . are [m r banî (?)]3 pure ones of Itar of Uruk’ (lúza-ku-tu á dINNIN UNUGki) . . .” (lines 12-17). 2. “Now, 9 years later Innina-eirat wife of Arrabi, who had sealed my tablet of m r banî status, after the death of her husband Arrabi sold me to Anu-ah-iddin son of illa, and he has inscribed my hand (with a slave mark). Render a judgment against Innina-eirat!” (lines 20-28). The court, after hearing evidence from the defendant that the purchaser forced her to sell on the grounds that he was still owed money by her late husband, ruled that “they would not change the uppi zak ti of Itar-abuur; they would not change the curse of the great gods; they confirmed (the status) of Itar-ab-uur and his children in the tablet of their oblate status/redemption” (ina IM.DUB i-ir-ku-ti-u-nu/pi-ir-qú-ti-u-nu; lines 42-45). Roth, who reads irk tu in line 45, assumes that three conditions of status were at issue in this trial: slavery, m rbanûtu, and irk tu. The second, m rbanûtu, is generally taken to be the status of a free citizen. The third, irk tu, is that of an oblate—a person dedicated to a god as a temple slave. The phrase “pure ones of Itar of Uruk” alludes to the well-known process in this period of persons dedicating their slaves or children as oblates: “purify them to DN” (ana DN zukku). The result, however, appears to be that the slave in this case gained the status of free citizen and temple slave at the same time. To avoid this contradiction, Roth re-interprets the term m r banî, suggesting that it did not mean “free” in the Western or Classical connotations of that term, but could involve some degree of dependence. It is difficult, however, to consider the term as indicating anything but a fully free citizen, as studies by Dandamaev and others have shown.4 A document of manumission, BM 6650, expresses the idea forcefully (lines 1-10):5 3 Restored by Roth 1989b; doubted by Weisberg 2003, but without another suggestion for the traces. 4 Dandamaev 1981; San Nicolò 1930; and CAD M 256-57. 5 Edition in MacGinnis 1993. See also OIP 122 37.

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Itar-eirat, the daughter of the king, of her own free will sealed for Nabu-mukki-elip a tablet of m r banî status in perpetuity (ana umi ati). Nabu-mukki-elip is clear (zakû); he belongs to himself (a ram niu  ). No other person may make a claim against him. Weisberg seeks to avoid the contradiction in status by denying that the text mentions temple slavery at all.6 The plaintiff had been manumitted but then sold into slavery illegally, and he now obtained through the court a judgment confirming his status as a free man (m r banî). In order to achieve this result, Weisberg firstly gives a new reading (collated) to the word in line 45 that Roth read as irk tu, namely pirk tu, which he translates “redemption,” on the basis of the Aramaic root prq “to release.”7 The word pirk tu, however, is attested neither in Akkadian nor in Aramaic. AHw derives a Neo-Babylonian word pirqu with the meaning “Auslösung” from the Aramaic root, but Stolper has since shown it to be a phantom lemma.8 Moreover, notwithstanding Weisberg’s collation, the first sign of the word could just as well be read I as PI.9 Weisberg secondly seeks, like Roth, to redefine one of the terms used. Itar-ab-uur is called a zakû a Itar (a) Uruk, which Weisberg translates “one whose status has been clarified by the Lady-of-Uruk.” It is not clear to us how the basic meaning of zakû—“pure; free of obligation,”—can be stretched to cover ascertainment of the facts, which is the meaning that Weisberg gives to “clarified” here. He produces no other example for use of the phrase with this meaning, which would imply a hitherto unknown 6 Weisberg 2001. 7 We assume that by redemption he means simply "release," since there is no evidence that anyone paid money to release Itar-ab-uur from slavery, as redemption would imply. 8 AHw 867; Stolper 2000. The word is piku/pirku, meaning “harm.” Weisberg points out (2001: 1173-74) that irk tu is spelled ir-ku-tu in the extant examples, but the spelling i-ir-ku is common. It is less of a stretch to postulate an orthographical variant than an entirely new word. Furthermore, the value qú proposed by Weisberg (pi-ir-qúti-u-nu) is rare in Neo-Babylonian, being found only in royal inscriptions (oral communication of F. Joannès). 9 Certainly according to the photograph supplied by Weisberg (2003: pl. 21). I am grateful to Profs. Martha Roth and Jonathan Tenney for reexamining the tablet at my request. They agree that no unassailable verdict can be given but incline to the reading I.

188 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources jurisdiction of the temple courts in verifying the free or slave status of individuals. On the other hand, a Itar/DN zakû is frequently attested for the designation of persons as temple slaves. RA 67 147-56, for example, makes the connection abundantly clear: temple officials claim a slave woman from the private individual whom she is serving. The latter states that he had purchased her, but the officials claim that she is nonetheless zaqtu a dNanaya (lines 9-10) and point to the star inscribed on her wrist, the mark of an oblate. She in turn testifies that her former master “purified me to dNanaya” (lines 18-19: a-na dna-na-a uz-zak-ka-an-ni). After a scribe has given expert testimony that the inscriptions on her wrist (to Nanaya and Itar of Uruk) are genuine, the judges assign her to the Eanna temple, to be counted among the basket-carriers (z bil tupikku) of Eanna.10 The paradox of OIP 122 38 cannot, therefore, be resolved by redefining any of the commonly used terms found in it. That two eminent scholars should have been led to strain the semantics of legal terminology, albeit in different directions, is not surprising, for the coexistence of free citizenship and temple slavery seems to be an impossible contradiction. A more fruitful approach may be to reexamine the underlying legal situation. The explanation for the anomalies that the text presents and for the quality of freedom that its protagonist enjoys, lies, we suggest, in another ancient legal condition whose nature has been misunderstood: paramon . Paramon is a Greek term found in Hellenistic contracts from the third century B.C.E. onward. It is a condition that one party will “remain with” the other for a fixed period or for the latter’s life and perform work for him. There are three main transactions in which the paramon -clause is found: suretyship, in which a surety remains with the creditor; antichresis, in which a pledge works for the creditor in lieu of interest; and manumission, in which a freed slave remains with his former master.11 Our study is chiefly concerned with paramon following manumission. It was Koschaker who first connected the Greek institution with the ancient Near East.12 He identified paramon in two sources: firstly, a 10 See also YOS 6 129, where a zakti a dB lti a Uruk is also marked on her wrist with the oblate’s star. 11 See Samuel 1965, discussed below. 12 Koschaker 1931: esp. 70-83.

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group of Old Babylonian manumission documents where the slave was freed (and sometimes adopted) by the master and obliged to support (naû) the master for the rest of the latter’s life; secondly, Neo-Babylonian documents where the master dedicated the slave to the temple, but the slave continued to serve (pal u) the dedicator during his lifetime. Koschaker explained paramon , in both the Greek and ancient Near Eastern sources, as a half-free status. In the case of manumission (Freilassungsparamone), the slave remained under the authority (Gewalt) of his master, who therefore still had some rights of ownership. The slave gained full freedom only after the end of the period of paramon . Where the slave had been dedicated to a temple, he did not gain his freedom at all. Instead, there was a division of ownership: the master retained sufficient rights during his lifetime to be designated owner as well as the temple. Koschaker’s identification of paramon in the cuneiform sources was a great insight, but in the light of subsequent research and with many more examples to draw upon, his conception of its legal nature is no longer sustainable. Three main criticisms may be noted: 1. Koschaker identified the verb pal u as both a tell-tale sign of paramon and of a relationship of slave and owner between the server and the served. It does not necessarily imply either. It refers to the care and sustenance of a person, usually in their old age when they are unable to look after themselves.13 It may be used of the service of slaves but may equally apply to that of a son or daughter, and even of an outsider, that is, of free persons, by contractual arrangement.14 The Old Babylonian examples cited by Koschaker of an owner adopting a slave who was then obliged to serve him demonstrate that the server in question was free. It is impossible to be son or daughter of a person and their slave at the same time.15 13 Greenfield 1982. 14 See Nbn. 697 discussed below. In Beckman Emar 10 from Emar (see Beckman and Hoffner 1996: no. 10), the person providing the service is a financier. 15 Regrettably, there are no Neo-Babylonian examples of manumission and adoption; see MacGinnis 1993: 99-101. On the other hand, a use of pal u that was confined to free men was the Achaemenid term pal  arri ("royal service"). It refers to a tax payable by the holders of bow lands; see Stolper 1985: 61-62.

190 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 2. Koschaker laid emphasis on the restrictions placed on the server’s freedom of movement and residence, the fact that the server had to work for the served under his instructions, and the possibility that he could be assigned to work for third parties, as evidence of continuing rights of ownership.16 Restriction of freedom, however, cannot simply be equated with property rights. There is no reason why a person’s freedom should not be restricted by contract, as is frequently the case in modern society. The documents from Emar (unavailable to Koschaker) reveal that paramon in the ancient Near East occurred in other situations besides slavery. As in Greece, it could be a term in an antichretic pledge, known at Emar as am l tu. Pledged persons did not have the status of slave but were bound by contract.17 For example, in Arnaud Emar 6 16, a creditor takes over a debt in return for the debtor serving him (pal u) for the creditor’s lifetime. Thereafter the debtor can choose between paying back half the debt as full payment or continuing to serve the creditor’s heirs.18 3. Koschaker’s understanding of the legal nature of ancient Near Eastern paramon was predicated upon his analysis of the Hellenistic institution. A papyrologist, A. Samuel, has since refuted that analysis.19 It is not appropriate to review Samuel’s reasoning in detail here, but in summary, he brings evidence to show that a freedman subject to paramon had the rights of a free man: property rights, the right to have freeborn children, immunity from arbitrary arrest or slavery while performing his obligations. In particular, a freedman customarily was obliged to make an extra payment to his manumitter’s heirs for release 16 Koschaker 1931: 19-20, 27, 74. 17 See Westbrook 1995e: 1636-37. Note that the term am l tu at Emar is an abstract noun and has no connection with the Neo-Babylonian use of am l tu meaning a slave. Eichler (1973: 43-44) refutes Koschaker’s view that the pledge in tidenn tu at Nuzi becomes the slave of the creditor. 18 There are contractual penalties on both parties for prematurely ending the arrangement: the creditor loses his debt; the debtor must repay the whole debt plus 50 percent. 19 Samuel 1965.

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from his paramon -obligations upon the death of the manumitter. He paid in his own name, thereby showing that he was already free and could own property. The arrangement bears a striking resemblance to the Emar contract discussed above. Paramon was not, therefore, a form of partial ownership, but a contractual term. In manumission, the essence of paramon was that the legal relationship between the freed slave and his former master changed from one based on property to one of contract. The existence of paramon as a contractual arrangement in the Neo-Babylonian period is confirmed by a document (not referred to by Koschaker) recording breach of such a contract. Nbn. 697 reads (lines 1-16): Iqia gave his slave Remanni-Bel the name Rimut and sealed a tablet of his free status (lúDUMU-DU3-ú-tu-u), so that he (Rimut) might supply him with his food and clothing. Remanni-Bel . . . after his tablet of free status was sealed ran away and did not give food, oil, and clothing, but Esagil-ramat (the daughter-in-law of) Iqia served, honored, and looked after him (ta-ap-la-u ta-du-uru ù tu-sa-ad-di-[is-su]). She gave him food, oil, and clothing. Iqia voluntarily annulled Remanni-Bel’s tablet of free status and transferred him to Esagil-ramat . . . . An owner manumitted his slave on condition of continuing care, which, as the document subsequently instructs us, is the content of pal u. Roth is troubled by the fact that the status of m rbanûtu appears to be revocable by the former master, which she claims is not to be expected if it meant a fully free man.20 The explanation, however, lies not in the nature of a m r banî’s status but in the basic principles of contract law. Manumission with paramon was a contract between owner and slave in which the owner freed the slave in return for future payment, in the form of services. If the owner stipulated in the contract that manumission was to be conditional upon performance of those services, failure by the paramonar to fulfill that condition at any time would annul the contract,

20 Roth 1989b: 486-87.

192 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources with the result that he would simply revert to being a slave.21 Accordingly, when Remanni-Bel broke his paramon -contract by running away, his former owner was entitled to annul the manumission. In the Neo-Babylonian period, Koschaker identified paramon not in simple manumission but only in the special arrangement whereby a slave’s owner dedicated the slave as an oblate but the slave remained with the owner for the latter’s lifetime. It is not paramon as we now understand it, since in the examples given by Koschaker, the slave is never freed, even in a limited sense, but merely transferred from one owner to another. It is nevertheless necessary to consider the legal nature of the arrangement, as it will have some bearing on the issue that this study seeks to resolve: the contradiction between m r banî and irku status. Koschaker postulated shared ownership between donor and temple, in that ownership passed immediately to the temple but the donor retained some residual rights. He could not, however, point to any positive right of ownership that the temple could exercise during the donor’s lifetime. The idea of such a shared ownership appears to have been different from joint ownership in that different elements of ownership were divided up between the two owners. An obvious analogy is usufruct, but Koschaker did not employ it, probably because the one “residual” right in the donor that he adduced as evidence was the right to sell the slave, which would hardly be conducive with usufruct. His concept of shared ownership thus remains an artificial construct, without parallel in other legal systems—certainly not in the ancient Near East—and relying solely on analogy with manumission-paramon as he understood it. Koschaker acknowledged that his was not the only possible analysis; the dedication could be interpreted as a future gift, which would give the temple no immediate rights in the slave. He rejected the idea of a future gift on the grounds that the contracts declared ownership to have passed.22 Nonetheless, donatio mortis causa (gift to take effect on death) is a well known device in cuneiform law, in the realm of adoption and inheritance law. It is often deceptively presented as a gift, in order to establish a vested

21 For a similar analysis of the Greek contracts, see Samuel 1965: 275. 22 Koschaker 1931: 81.

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right, but the right is to future property.23 The same interpretation can apply to dedications of slaves. YOS 7 17, for example, reads: Nabu-ahhe-bulli, son of Nabu-um-ukin and descendant of the priest of Ninurta, and his wife Bula, daughter of Bel-uallim and descendant of Kuri, have voluntarily given their slave Ah-iddin to Itar for the preservation of their lives. As long as Nabu-ahhebulli and Bula live, Ah-iddin shall serve them. When they die, Ah-iddin is an oblate (irku) of Itar. The preterite of the verb “give” expresses irrevocability, not immediacy. The gift actually takes effect only after the death of the donors. The idea of a division of ownership in time is in our view crucial to understanding the legal nature of these dedications to the temple. If accepted, it means that most such dedications did not involve paramon

even in Koschaker’s sense, that is, of a slave simultaneously owned by the temple and by the dedicator but remaining with the latter to serve him. The slave remained entirely the property of the dedicator until the latter’s death or until transfer to the temple.24 Nonetheless, the association made by Koschaker with paramon is still of value, if it is applied to the concept of

23 As pointed out by Koschaker himself (Koschaker and Ungnad 1923: 131); see also Klíma 1940: 84-85, 97-98. 24 The prohibition on alienation, on which Koschaker placed great emphasis as evidence of some residual ownership, has a perfectly practical rationale if the dedicator is taken to remain the full owner for life. In BRM 2 53, for example, discussed at length by Koschaker, the owner of a five-year old girl dedicates her to the temple for brickmaking (1931: 80-81). He does not expressly reserve any right to her services but is forbidden to alienate her. It is apparent therefore that she remains in his possession for the meantime, at least until she is old enough for the work for which she has been designated, but possibly for the owner’s lifetime. If he is deemed to own her until his death or until some other relevant date (e.g., her reaching a certain age), then he has the right to alienate her. The new owner would have an ownership limited in time by the alienator’s life or the slave’s maturity, at which point the slave would automatically vest in the temple. However neat the situation might be in legal theory, the temple would face a practical problem of recovering the slave after she has passed into different hands, perhaps more than once. It is reasonable to expect that the temple would attempt to secure its interests by supplementary contractual provisions, notwithstanding its rights in law.

194 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources paramon as modified by later scholarship. In conjunction with the practice of donatio mortis causa, paramon explains the few documents in which manumission and dedication as a temple slave are found together. Cyr. 322 reads: (lines 1-4) [. . .] of Bel-uballi [. . .] in year x of Nabonidus king of Babylon, [Hada] and his wife Ayartu [sold] Muezib-ama for the full price to Nur-ama son of [. . .]. (6-8) Nur-ama wrote the document of Muezib-ama in his own name, but in year 7 of Nabonidus king of Babylon he transferred him to his wife Burau in lieu of 30 shekels, Burau’s dowry. (8-10) Nur-ama died. After the death of Nur-ama, Burau and her second husband, Tabbanea, pledged him for 30 shekels to Appanu son of Abu-nur. (11-13) Subsequently, in year 6 of Cyrus king of Babylon, king of the lands, Burau and her husband Tabbanea sold their slave Muezib-ama for 110 shekels of silver, full price . . . . (14-17) . . . Now in year 8 of Cyrus [. . .] Ayartu wife of Hada [has come forward] to claim Muezib-ama from me (on the grounds that) he is a temple slave of DN [. . .]. I came before you [. . .]. With Ayartu [. . .]. (17-20) [Bel-uballi] priest of Sippar, [. . .] the preben[dary of Shamash, and the elders of the city . . .], he brought Ayartu and stood her before them. They questioned Ayartu, but she did not demonstrate anything of the temple slave status and free status of Muezib-ama . . . (mim-mu á lúIM-ki-ú-tu ù lúDUMU-DU3-ú-tu á M. la tu-kal-lim-mu). (20-24) Bel-uballi priest of Sippar, the prebendary of Shamash, and the elders of the city had read to them the contracts of Muezib-ama’s slavery (ard tu) from year 6 of Nabonidus king of Babylon to year 8 of Cyrus king of Babylon, king of the lands, which Iddin-Nabu brought before them; Ayartu did not demonstrate anything of the temple slave status and free status of Muezib-ama . . . . (24-27) The judges conferred and imposed a payment of 110 shekels plus x shekels upon Ayartu and gave it to Iddin-Nabu, be-

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cause Ayartu had made a claim against Iddin-Nabu regarding the free status of Muezib-ama . . . . Dandamaev and Roth both translate the phrase irk tu u m rbanûtu in lines 19-20 and 23-24 “a temple slave or a free man” [author’s emphasis], not being able to conceive that the two conditions could be compatible.25 It is the combination of the two, however, that was the basis of Ayartu’s claim. She claimed that, prior to his being sold, her slave had been both made a free citizen and dedicated as a temple slave. This must be understood to be immediate manumission with a donatio mortis causa to the temple, but in the meantime, paramon for the lifetime of her late husband Hada and herself. (Evidently she brought this case as a widow.) Accordingly, any intervening sale would have been invalid, since the couple no longer owned. Muezib-ama, who was a free man. He physically remained with them, but his services were only available to the couple on a contractual basis. The defendant, the current purchaser, would have no title to Muezib-ama, who would still theoretically be bound to his former mistress by the contract of paramon . Ayartu was not a mere witness; she was an interested party—the plaintiff, in fact. She would have no interest in a simple claim either that Muezib-ama was a free man or that he was a temple slave. In the first case, no advantage would accrue to her, except perhaps from the sentimental desire to aid a loyal formal servant. In the second case, it would be the temple’s concern, not hers, and the temple authorities would be bringing the claim against the present owner. It was only the combination of freedom, paramon , and donatio mortis causa that gave her an interest in reclaiming her former servant, albeit not as her property. She was trying to exploit the invalidity of the original sale for her own ends. She ultimately failed only because she was unable to provide evidence to support her claim. The same process lies behind the seeming paradox in OIP 122 38, which was the point of departure for our investigation. A couple made their slave a m r banî, that is, they manumitted him, and dedicated him as a temple slave, but with the gift only to take effect on their deaths. In the meantime, he remained with the couple and continued to serve them as 25 Dandamaev 1984: 192-93; Roth 1989b: 487.

196 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources before, but as a free man under a contract of paramon . It was because of his physical presence and the absence of any outward manifestation of the change in his status that the mistress had the opportunity to sell her former slave, even if she did not have the legal right to do so. She claims that she was coerced into selling him, in order to pay off a debt owed by her late husband. The former slave was made of sterner stuff. He brought the suit against his former mistress, in order to defend his free status. It is true that his freedom was limited in time and practical effects, but it had at least the great advantage that he could not be forced to serve a different master, and his former mistress might still live for many years. It is no wonder that he objected to being sold. To summarize, a master who dedicated his slave to a temple performed a pious act through which he hoped to obtain divine favor. If the gift was to take effect only on his death, he had the further advantage of not relinquishing the earthly benefits of slave ownership. Nor was it to the disadvantage of the slave, who was assured of a secure place in which to end his days. This type of donatio mortis causa was the most commonly attested form of dedication. Occasionally a slave owner might go one step further and add immediate manumission on condition of paramon to the donatio mortis causa. Although the freedom gained thereby would be temporary, the advantage to the slave was that, at least in law, he could not be sold or transferred into an unknown fate, even on an interim basis. The principal advantage to the owner was that he retained the slave’s services while putting him beyond the reach of his creditors, since his relationship with the slave was henceforth one of contract, not property.26

26 In this period, debt slavery is not employed against the person of the debtor, and creditors can find themselves helpless before an “insolvent” debtor who has managed to divest himself of all his assets. Cf. the case of the husband in Dalley Edinburgh 69, whose assets are declared by the court equal to the amount he owes his wife and stepmother for their dowries, excluding other creditors (editions in Ries 1984 and Joannès 2000).

13 Judges in the Cuneiform Sources Abstract Drawing on cuneiform texts from across the ancient Near East, this study examines the function and duties of those who had the authority to adjudicate trials, whether they are referred to as “judges” in the texts or not. While definitive conclusions are somewhat elusive, several points can be inferred from the evidence: the king was the supreme judge; administrative officials often served as judges; judges rarely presided over trials alone; and they typically cited only evidence and not law as the basis for their verdicts.*

T

his survey covers the societies of Mesopotamia, Syria, and Anatolia, which between the third and first millennia B.C.E. shared the use of cuneiform writing. Their legal systems show a close structural similarity, and they all drew upon a common Mesopotamian legal tradition. Local differences notwithstanding, they share a common conception of the status and role of the judge in the administration of justice.

The Machinery of Justice In considering the court system, it should be borne in mind that there was no distinction between the executive and judicial branches of government. The same officials or bodies made administrative decisions and judgments, and the same legal character was attributed to both. There appears to have been no special place for the court to sit. The term “courthouse” (b t d ni) does not appear until the Neo-Babylonian * Originally published in Maarav 12 (2005): 27-39. Used by permission.

198 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources period (seventh century B.C.E.).1 Nor was there a special term for a court of law; parties speak of going before a particular official or administrative body, or simply before “the judges.” Three levels of court may be discerned: royal, provincial, and local, corresponding to the three levels of administration. The king was everywhere the supreme judge, although his judicial activity is better attested in some periods than in others. He could try cases both at first instance and on appeal. There was no formal machinery of appeal from a lower court; rather, a subject would petition the king to redress an injustice suffered by a lower court or official. The correspondence of Hammurabi shows that he could act in three ways in response to such a petition: he either tried the case himself and gave final judgment; decided a point of law and remitted the case to a local court for a decision on the facts; or remitted the entire case to a local court.2 Provincial officials, appointed by the king, acted in much the same way, combining judicial and administrative functions. They could have a fixed seat, as in the case of local governors, or be peripatetic. In the Hittite emperor’s Instructions to the Commander of the Border Guard (bl madgalti),3 an official with wide-ranging military, administrative and cultic duties in border territories, the Commander is enjoined: When you come to a city, call out all the citizens. Whoever has a claim, decide and make it in order. If the slave or the slave woman of a man or a single woman has a claim, decide it and make it in order (III 29-32). Whereas the king and his officials essentially sat alone, the guiding principle at the local level seems to have been collegiality. The city council or town elders, however it is described, had judicial functions as a collective body, as did other bodies such as the council of merchants (k ru[m]), who presided (not surprisingly) over commercial disputes. Most 1 See the examples in CAD D 156. A variant is “house of the judge(s).” Assurbanipal in a letter to the Babylonians cites a proverb: “At the gate of the house of the judge, the word of a sinful (i.e., adulterous) woman prevails over her husband’s” (SAA 18 1; edition in Reynolds 2003: no. 1). 2 See Leemans 1968: 107-29. 3 Schuler 1967: 36-65.

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frequently, however, reference is simply to “the judges,” without stating who those judges might be. A judge by that title sitting alone is a rarity in any period. Most frequently, the bench consisted of two or more judges. In the Neo-Sumerian period (twenty-first century B.C.E.), the norm seems to have been three; in other periods, references to an “assembly” (puru[m]) suggest a considerably larger body. In the Old Assyrian trading colony of Kanish in Anatolia (eighteenth century B.C.E.), a council of “big men” decided whether a case was to go to the plenary assembly (“big and small”), where the judgment would be by a majority vote.4

The Office of Judge There has been debate among scholars concerning the level of professionalism among the judges: they were certainly not trained jurists in any sense, but were they permanent? Was the position of judge an office or merely a function? On the one hand, the title “judge” (Sumerian: d i-k u 5 ; Akkadian: dayy nu) is sometimes appended to the names of persons acting in other capacities, such as a witness.5 On the other, it may also be combined with another, permanent office or be a function exercised by an official not normally called upon to adjudicate, such as the Old Babylonian head of the irrigation bureau (seventeenth century B.C.E.).6 At Kanish in the Old Assyrian period, the parties may voluntarily choose arbitrators to settle their disputes, who are called “judges.” The latter, if they fail to resolve the conflict, give evidence on the proceedings in a deposition to the merchants’ council (k rum).7 On the other hand, the judges in the Neo-Sumerian trial reports are often the same triad and may sit on a variety of cases recorded in a single tablet, evidently the day’s docket.8 But what is one to make of a document from the same period recording the sale of a slave? Atypically, the sale was not made in the presence of witnesses; instead it is recorded that “the seal of Lu-Enlil, the 4 See Larsen 1976: 165. 5 AT 6:31 and 56:48 (witnesses); ZA 53 73 no. 14 (surety); BE 9 75:16 “judges of the Sealand” (notarizing a tax payment). 6 YNER 4 45; edition in Waters 1970: 64-66. 7 See Veenhof 2003: 442. 8 E.g., NSG 211 (edition in Falkenstein 1956-57: vol. 2, no. 211).

200 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources judge, was rolled.” The actual impression of this same Lu-Enlil on the tablet, however, describes him as “the sea-faring merchant”!9 The term “judge” might therefore cover a variety of situations, from one among many duties of an administrator to the sole occupation of a person dedicated to that vocation. The occasional mention of “royal judges” might indicate that professionalism was a question of rank.10 In the NeoAssyrian period (ninth-seventh centuries), it should be noted, the term “judge” is not used at all in the context of mortal justice; the function of judging is reserved exclusively for royal officials.11 Certain local courts might acquire a special reputation for the quality of their justice. In an Old Babylonian letter, the writer advises a litigant: “Go to Nippur, to the city of judges, and let them decide the case for you” (AbB 11 7). In another letter, the mayor and elders of the city of Isin write to “our fathers, the judges of Nippur” reporting the claims of the parties in a case and adding: “Because the case is very [difficult (?)], we have not decided it, and we have not assumed binding jurisdiction over them (ul niprus u d nam ul nu issunti). We have sent them to our fathers; decide their case and assume over them the binding jurisdiction that is within your authority” (AbB 11 159). The question remains on what basis the judges made their decisions. Where a decree of the king was being enforced (or of the city, in the case of the Old Assyrian merchant colonies), the court certainly had recourse to that source.12 Citation of legal text or precedent, however, never established itself in the cuneiform sphere, where only a few harbingers of the concept (not in a legal context) can be found in first millennium texts.13 On the other hand, there existed an immense body of traditional, unwritten law. It might be thought that knowledge of the traditional law would have 9 Steinkeller 1989: 302-3. 10 They are called d i -k u 5 l u g al in the Neo-Sumerian reports (although the term is not used specifically of the named judges) and dayy n a RN in Neo-Babylonian texts. 11 Radner 2003: 886-90. 12 In Old Babylonian sources it is sometimes mentioned that decisions are to be made “according to the decree of the king” (k ma imdat arrim); see Veenhof 1997-2000: 49-83. In Old Assyrian sources, there are references to “words written on the stela” or “words of the Council” (k rum); see Veenhof 1995: 1717-44. 13 For example in omen texts. See Leichty 1970: 7-11; and Parpola 1993: xxvii and no. 33.

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been considered a facet of wisdom, but the fact is that the term “wise” (emqu) is not attested in association with judges or judging. Traditional law may simply have been regarded as a matter of common knowledge. It is noteworthy that scribes—the one profession that might have been regarded as having a superior knowledge of the law, by reason of their drafting of legal documents and trial records—are seldom found acting as judges (except when they are also administrative officials). The scribe’s name and profession is frequently appended to lists of witnesses to litigation, but not as one of the judges. Moreover, officials acting as judges were expected to inquire about the traditional law from local sources. Hammurabi dispatches some litigants to a high official with the instruction: “When they arrive, examine their evidence, decide their case, and cause them to have judgment in accordance with the law that is currently practiced in Emutbal” (k ma d nim a inanna ina E. idd nu; AbB 13 10). The Instructions to the Hittite Commander of the Border Guard are even more explicit: Further, the Commander of the Border Guard, the City Prefect, and the Elders should try and decide cases properly. In the lands the binding rule applied is as from olden times: in any town in which they were accustomed to execute, let them continue to execute, but in any town in which they were accustomed to banish, let them continue to banish (III 9-44). Thus a good judge is not necessarily a font of the law; on the contrary, he may sometimes have to discover what the law is from others.

Jurisdiction We have seen that higher courts, of the king or his officials, could hear cases at first instance. The principles upon which a case went to a particular court are not clear. According to CE 48, cases in which the penalty was up to sixty shekels were for the “judges,” whereas a capital case was for the king. Elsewhere, capital jurisdiction appears to have been a royal prerogative, by no means his exclusive preserve. Certainly, he could delegate

202 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources capital jurisdiction to royal officials or even to a local court, as in a case of murder remitted to the assembly of Nippur.14 Adultery and witchcraft were a special concern of the king but could also be tried before the judges.15 On the other hand, the Hittite Commander of the Border Guard is ordered to refer difficult cases to the king (III 23-24). Royal officials, especially peripatetic officials, could sit together with local bodies to form a bench. For example, in the Hittite empire in Syria in the thirteenth century B.C.E., an imperial official called “the overseer of the land” (lúUGULA.KALAM.MA) is found sitting on a court together with the local city elders.16 An Old Babylonian royal decree annulling debts brought together a vast array of officials and judges to judge cases arising from the legislation: When my lord raised the golden torch for Sippar and established equity for (the god) Shamash who loves him, and convened in Sippar Taribatum the “overseer of troops,” the judges of Babylon, and the judges of Sippar, they examined the cases of the men of Sippar, heard the tablets of field, house, and orchard purchases and had broken those that were to be released by the equity decree (AbB 7 153:1-6). The text continues with a complaint arising from the decisions of certain of those officials. It reveals yet more layers of bureaucracy and the fact that some of the judges constituting an assembly could be officials in their own right: I took my tablets to the assembly. Ri-ama, the “resident” of Sippar, Kudiya, the “chair-bearer,” and Sin-nadin-umi, the cadastral scribe, examined my tablets and sealed them and had them sent to alim-teuu at his house. alim-teuu, the “overseer of barbers,” without hearing me broke the tablets in his lodgings in Sippar. I was informed, and in consternation I collected the pieces 14 Jacobsen 1970. 15 E.g., MAL A 15, where the husband who catches his wife in flagranti delicto can bring the lovers before the king or the judges. 16 E.g., J. Westenholz Emar 2.

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of my tablet from his house and showed them to Ri-ama, Kudiya, and Sin-nadin-umi. But they said, “What can we say to the ‘overseer of barbers’?” (AbB 7 153: 30-45). The victim’s only recourse was a petition to the king. The king himself typically sat alone, at the peak of the system, but in one instance, in Assur of the Old Assyrian period, we find the king of a city-state sitting together with the city-counci1.17 One type of court that we have not discussed is the temple court. In the earlier periods, the temple was the place where evidentiary oaths were administered but not the location of the courthouse. Priests do not seem to have played a role in secular jurisdiction, unless the interests of the temple were involved. From the Middle Babylonian period on, however (fifteenth century B.C.E.), we begin to see priests playing a greater role as judges, even in disputes that have no obvious connection to the temple or sacral aspect. In one Middle Babylonian document, a high priestess (entu) interrogates a party, although it is not clear from the broken text that she judges the case.18 Incidentally, this is the only cuneiform record known to us in which a woman appears (potentially) as a judge; otherwise, judging appears to have been a strictly male role, as with other aspects of public life. In the Neo-Babylonian and Persian periods, the great temples of southern Babylonia, such as the temple at Uruk, seem to have had wideranging jurisdiction. It is impossible to know whether it was a sign of growing religious influence on the legal system or merely the distortion of our archival record. At all events, joint benches were assembled of temple officials, royal officials, and members of the city assembly.19

Powers A vexed question is: did the judges have power to compel a litigant to appear in court? Note that the question is not: did the courts have the power? 17 Veenhof 2003: 439-441. 18 UET 7 7; see edition in Gurney 1983. 19 As for example in a prosecution concerning the theft of ducks from the temple in Iraq 13 96 (see Figulla 1951).

204 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources An official acting as a judge would have coercive powers by virtue of his office, not necessarily deriving from his judicial function. In the NeoAssyrian sources, where only officials are found acting as judges, the judge is often said “to impose a judgment” (dna em du) on the litigants.20 For a bench of local judges, on the other hand, the position is not selfevident, and raises the deeper issue of the basis of their authority. If authority comes from above, then the coercive powers would come with it. In a trial for homicide, we are told that the case of four persons accused of murder was taken to Isin before the king. “Ur-Ninurta, the king, ordered the assembly of Nippur to take their case” ( d i-b i d ab 5 -b i -d a bi-in-du 1 1 ).21 It is clear that the accused had been taken into custody at the king’s command and were delivered to the local court to stand trial without consideration of their own wishes in the matter. The same cannot be said of litigation purely at the local level. Whether it is at the initiative of one or both litigants (or indeed ordered by a higher authority), the judges are said to “cause them to hold the case/judgment” (din m u iz unti). There has been much debate as to the meaning of this clause: one possibility is that it involved the litigants submitting to jurisdiction.22 Whether submission was a direct consequence of the court’s action or needed the parties’ agreement, at least nominally, is not clear. It cannot be said with certainty that a bench of local judges, even as august a body as the assembly of Nippur, could force a reluctant defendant to come to court. It may well be that self-help by the plaintiff was sometimes necessary, as in the case of the cuckolded husband who strapped his wife and her lover caught in flagranti delicto to the bed and brought them, bed and all, before the assembly of Nippur.23 Once the litigants were before the court, the judges appear to have had extensive powers in the conduct of the trial itself. A hymn to Gilgamesh sets out the activities of an ideal judge in trying a case: “You question, you investigate, you judge, you establish the truth, and you set straight” (ta âl taâi tadâni tabarri u tu t er).24 We suggest that the list is a chronologi20 See SAAS 5 (= Jas 1996) nos. 1-9. 21 See the text in Jacobsen 1970, lines 17-19. 22 As we translated in the text AbB 11 159 above. The different theories are discussed by Dombradi 1996: vol. 1, 312-20. 23 Greengus 1969-70: 33-44. 24 Lambert BWL 40 (line 7).

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cal one in as much as the first two activities result in judgment and the last two are the result of judgment. Judges were not mere passive witnesses to the parties’ presentation of their respective cases but are known to have had active powers to intervene by interrogating witnesses, ordering the parties to summon witnesses, imposing on a party or witnesses oaths that would make their evidence decisive, or ordering the parties to undergo the river ordeal. After weighing the evidence in this way, the judge by his judgment establishes the facts of the case. The verb barû(m) is also used for the art of the diviner, who establishes the true meaning of ominous phenomena.25 In consequence, he does justice, since a judgment has two aspects: the verdict on the facts and the orders that may flow from it for punishment, compensation, restitution, etc. The courts, of whatever level, certainly had powers to make all manner of orders; they were more than mere arbiters of the facts. For example, in the Code of Lipit-Ishtar 30, the judges issue an order restraining a young married man from consorting with a prostitute, while in a Middle Babylonian record of litigation a judge named Sin-shapik-zeri issues a similar order (rikiltu) restraining a woman from entertaining a man.26 Old Babylonian judges frequently imposed a penalty (arnum) on vexatious litigants, which in one case took the following form: “they had half his hair shaved off, they pierced his nose, stretched out his arms, and had him led around the town.”27 The king and officials had power to impose their judgment upon both parties, however unwilling, but there is no decisive evidence as to whether local judges did. HL 173 contains the following harsh provisions: If someone rejects the judgment of the king (D N LUGAL), his house (i.e., whole family) will be destroyed. If someone rejects the judgment of a dignitary (D N LÚDUGUD), they shall cut off his head.

25 It is in fact used in the latter sense a few lines later in the same text (line 10). The use of barû(m) is unusual with respect to a judge and is obviously deliberate in the context. It may be a play on the common term for establishing the facts of a case: burru(m) (based on the root bâru[m]). See CAD B 129-30. 26 UET 7 8 (see Gurney 1983: 41-45). 27 See Dombradi 1996: vol. 1, 100.

206 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The judgment of mere judges is not mentioned, leaving us unclear whether an analogous punishment or none at all would apply. In an Old Babylonian case, the plaintiffs did not accept the local court’s decision to impose a particular oath on the defendants. They therefore convened a second court, with mostly the same judges. They did not accept the second judgment either, however, which left them only with recourse to a higher authority, the king.28 Rejection of the decisions of the two lower courts did not necessarily mean, however, that a litigant could simply disregard the local judges; more probably it was an indication that the plaintiffs had not yet exhausted their remedies within the system. On the other hand, the complaint of a litigant that “the judges told him (the defendant) to release the distrainees, but he did not release (them) . . .” (AbB 11 158) suggests a certain lack of effectiveness in the authority of the local court. The situation is further complicated by the practice of one or both parties being obliged, after the verdict had been rendered, to take an oath not to litigate on the same matter again. In his classic study of Old Babylonian court procedure, J. Lautner drew the conclusion that the judgment of a local court (as opposed to the royal courts) was no more than a proposal for the settlement of the dispute, which then had to be formally accepted by the parties.29 E. Dombradi, however, points out that the same undertaking is found in cases decided by the royal courts.30 The practice is therefore best understood as an additional precaution rather than a necessary condition. Nonetheless, it reveals how deeply ingrained was the idea that a judgment was a settlement that should end any sentiments of dissension. In considering the attitude of the courts, the nature of the litigation needs to be taken into consideration, although no formal distinctions are made in the sources as between criminal and civil jurisdiction, for example. Adversarial judgments are necessary to suppress anti-social behavior, whereas they need be used only sparingly in private disputes, where the court has more the role of an arbiter. T. Hertel notes that the essential aim of the courts of the Assyrian merchant colonies in Anatolia was to get litigants to settle their disputes by mutual agreement, which he takes to be an

28 CT 29 42-43; see Wilcke 1992b: 65. 29 Lautner 1922: 35-67. 30 Dombradi 1996: vol. 1, 362-365.

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exceptional feature of the Old Assyrian system.31 It is, however, only to be expected in private disputes, especially commercial disputes, where courts throughout history have typically encouraged settlement by the parties. Even the reports of decisions by the judge-officials of the Neo-Assyrian kingdom sometimes indicate the finality of their judgment with the statement “there is peace between them (the parties)” ( ulmu ina birti unu)—an expression more resonant of settlement than judgment.32

Duties The sources give little indication of the duties of a judge. He is of course expected to do justice; the question is, what constituted justice? The conduct expected of a righteous judge is portrayed in the Hymn to Shamash, the sun-god, the god of justice, in both negative and positive terms (lines 97-102):33 To the corrupt judge You reveal the sight of prison, On the taker of bribes, who does not set straight, You inflict punishment; But he who takes no bribe, who intercedes for the weak, Is pleasing to Shamash, He lengthens his life. The judicious judge, who gives equitable judgments (d n t m ari), Makes whole the palace, makes the seat of princes his place. Clearly, bribery and corruption were the antithesis of justice. The Hittite Commander of the Border Guard is not to conduct a case in favor of a lord, a brother, his wife, or his friend, nor must anyone take a bribe. He is not to make a good case lose or a bad case win. By way of summary the order concludes: “Do justice!” (III 25-28). Only once is punishment of a judge for misconduct mentioned. According to CH 5, if a judge “changes his judgment” after recording it on a sealed tablet, he must pay twelve times the claim in that case and is 31 Hertel 2006: 543. 32 See, e.g., SAAS 5 (= Jas 1996) no. 9. 33 Lambert BWL 121-138 (edition of these lines in Lambert 1960a: 132-33).

208 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources removed from the seat of his judgeship in the assembly, never to sit in judgment with the judges again. It is not clear exactly what was involved in changing a judgment, but obviously it does not relate to the actual conduct of the judge in the trial itself. The positive aspect, intercession for the weak, is already stressed in sources from the early third millennium, where kings speak of their divinely mandated duty to uphold the rights of the widow and orphan, of the weak against the strong, of the poor against the rich. In the prologue to his law code, King Hammurabi speaks of his equitable judgments (d n t m arim) and of his application therein of the “beaten path” (kibsum), “mores” (r dum), and “established law” (kittum). At the same time, he ensures “equity” (m arum), which implies a breaking of strict legal rules in order to do justice, as in the case of a decree annulling debts. The latter may have been the prerogative of kings; upholding the traditional law was presumably incumbent upon every judge.

Conclusions From this rapid survey of the cuneiform sources, the judge emerges as a shadowy figure, sometimes an official, sometimes a local dignitary, with no fixed duties or base of operations. It is not possible to draw firm conclusions, only to point to certain impressions given by the sources. i) Judging was regarded as an inseparable part of an official’s duties, even in offices that would seem to us to be purely administrative in character. At the same time, judging was an activity that could be detached from the other functions of government and be practiced as a sole function. In the latter case, the judge seems rather to have been drawn from the society than imposed upon it and may have derived his authority in part from the quality of his judgments. ii) Although gods and kings may judge alone, there is a marked predilection for collegiality. Even officials who could sit alone are often found forming a bench together with local judges and other officials. In the absence of a formal system of appeal, this may have been seen as a safeguard against

Judges in the Cuneiform Sources abuse of power or miscarriages of justice. Although the presiding judges are often named in records of litigation, the practice of referring simply to “the judges” or “the assembly” lends an aura of anonymity and perhaps impartiality to the activities of the court. iii) Judgments do not cite law, only evidence as the basis for the decision. This is not surprising, given the absence of jurists as a profession in the ancient Near East. The legalization of the judiciary would have to await the advent of the Rabbis and the Roman jurists, with new techniques of legal science at their command. Those qualities which are emphasized are not knowledge of the law but a sense of right and justice, honesty, and regard for the weak. Possibly they were regarded as more essential qualifications for the office. In a system where judges could have other functions and interests, even interests in the case that they were deciding, probity, like collegiality, was an important safeguard against miscarriages of justice. It and the other desired qualities to some extent fulfilled the role that adherence to the letter of the law nowadays plays in ensuring the impartiality of judges. iv) The coercive quality of the courts’ jurisdiction is evident in the case of the official hierarchy: kings, governors, and various bureaucrats. The power of the local judges is less certain. The impression gained is that at least in criminal matters (i.e., homicide, theft, and acts of violence that were a danger to the community) they functioned as a part of the government apparatus and could rely on the support of the king and his administration. As regards the settlement of private disputes, the sources are much more enigmatic. The system seems to have been more than voluntary arbitration, but what mechanisms of coercion were applied—whether physical force, social pressure, or the charisma of the judges themselves— cannot be determined. It is doubtful that the situation was as extreme as in classical Athens, where judgments of the courts, with no coercive forces at their disposal, were frequently disregarded or incapable of execution, leading to repeated

209

210 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 34

litigation on the same dispute. The king and his officials had a gendarmerie (rdû) at their disposal, which may also have been available, at least on occasion, to the local courts; sometimes, the court itself had bailiffs to carry out its bidding (e.g., the manzatulu at Nuzi). On the other hand, judgments are 35 disregarded, and litigants are often required to take an oath by the king or a god that they will not challenge the decision that was supposed to end the dispute. v) Finally, the role of the divine should not be underestimated. Behind and above the whole system stood the gods, to whom recourse might be had if human justice failed, and whom the judges themselves did not hesitate to call in aid. Through the evidentiary oath and the ordeal, human judges could remove the burden of decision-making to a divine court, while the promissory oath acted as a powerful sanction upon would-be scofflaws. If retribution from human justice was uncertain, there was no doubt in the mind of ancient litigants as to the inevitability of divine retribution. A favorite reason for lastminute settlement between the litigants was the reluctance of one party to take an oath ordered by the court and the reluctance of the other party to see the oath taken. At the same time Shamash, the god of justice, oversaw the work of the judges, ready to punish the venal, corrupt, and partial, and to reward those who pursued only justice.

34 Hunter 1994: 120-50. 35 Veenker 1974: 1-15.

14 Evidentiary Procedure in the Middle Assyrian Laws Abstract The verbs burru and kunnu are used together a number of times in the Middle Assyrian Laws. This article argues that the former stands for rational methods of proof (e.g., witness testimony); the latter, for supra-rational methods (e.g., the oath, the ordeal). The combination of both often indicates that the accuser in a case must pass a threshold of credibility with rational evidence before recourse will be had to supra-rational procedures.

Introduction1

T

he phrase ubta’’er ( ) ukta’’in ( ) appears (with slight variations) some twenty times in the Middle Assyrian Laws (MAL).2 Both verbs are well known, having the same basic meaning in the D-stem (“make firm”). Nonetheless, the exact meaning of the couplet has proved elusive. In their classic commentary, Driver and Miles called it “a curious phrase” and translated “they have brought charge (and) proof against him.” 3 In their interpretation, the subject is always the accusers or witnesses. The verb ubta’’er refers to an accusation and ukta’’in to adducing sufficient

* Originally published in the Journal of Cuneiform Studies 55 (2003): 87-97. Used by permission. 1 This article was first presented as a paper at the annual meeting of the American Oriental Society in San Diego on March 14, 2004, and in longer versions to the Institut für Orientalistik, Universität Wien, on March 19, and the École Pratique des Hautes Etudes, Paris, on May 25, 2004. I am grateful to all the participants for their helpful comments and criticisms. The usual caveats as to responsibility for errors apply. 2 Tablet A §§1 (/ i), 9, 15, 16, 20, 21, 40, 47 (/ unu), 53; B §§4, 8, 9, 13, 14, 20; C+G §§3 (/ u), 8 (/ u), 10 (/ u), 11 [restored] (/ u); E §1; L §3. 3 Driver and Miles 1935: 339.

212 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources evidence.4 They admit, however, that the presence or absence of the procedure in MAL seems arbitrary. More difficulty is caused by the fact that in nine instances the verb burru appears alone, as in A §12, where a man is to put to death for rape if witnesses ubta’’er .5 Following Driver and Miles’ interpretation, this would mean that the rapist’s punishment is imposed on the basis of a mere accusation, without sufficient evidence. Cardascia attempts to refine Driver and Miles’ approach, suggesting that the two verbs represent a gradation of evidence: burru means to gather sufficient evidence for a presumption of guilt; kunnu means to provide irrefutable proof.6 In this way, Cardascia is able to account for five of the cases where burru is used alone (A §§3, 14, 18, 19; N §2) as having a weaker meaning, as where a man brings charges that he is unable to sustain.7 He further manages to eliminate two (A §25 and §36), by asserting that the verb has a special meaning, “to claim” (property).8 Nevertheless, there still remain two instances which Cardascia is forced to label true exceptions: A §12, the case of the rapist already mentioned, and A §7, a parallel case in which witnesses testify that a woman laid a hand on a man. Furthermore, if Cardascia’s theory of gradation is followed, the dual expression would seem superfluous: what is the point of mentioning a prima facie case when irrefutable proof is demanded? Two more recent translations adopt a different approach. Roth translates “they prove the charges against him and find him guilty,”9 and Borger similarly “man es ihm beweist und ihn überführt.”10 As Driver and Miles already noted, this translation requires a shift in subject between the two verbs, between the witnesses (who prove) and the court (that convicts). They therefore rejected this solution, on the grounds that it was more likely that both verbs would have the same subject.11 The shift in 4 5 6 7

8 9 10 11

Driver and Miles 1935: 341-43. The other cases are: A §§3, 7, 14, 18, 19, 25, 36; N §2. Cardascia 1969: 94-95 note c. Even this interpretation requires adding nuances to the literal meaning. In §18, an ku uba’’er ba’ura la ila’e la uba’’er, literally “(saying) ‘I will make firm,’ but he cannot make firm, he does not make firm” becomes “. . . je porterai des charges . . ., (s’il) ne peut porter des charges (et s’)il n’a pas chargé (suffisamment).” “réclamer.” Cardascia’s translation of §36 actually reads (inadvertently?) “il prouvera (les faits)” (col. V 1). Roth 1997 153-94 ad loc (in the 1995 edition). Borger 1982b: 80-92 ad loc. Driver and Miles 1935: 341.

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subject has the merit of accounting satisfactorily for the use of burru alone but at the same time leaves the dual phrase with more than a whiff of superfluity about it. It stumbles, however, at the hurdle of A §1, where the two verbs are used as alternatives: lu-ú ub-ta-e-ru-ú-[ i] lu-ú uk-ta-i-nu[ i] (col. I 6-7). This cannot logically apply to two successive, complementary stages in the judicial process. The context is that a god is consulted to determine the punishment of a woman who has committed sacrilegious theft. A rule that the procedure applies either when the charges have been proved or when she has been found guilty is absurd. Borger, translating correctly, walks into the trap: “man es ihr beweist oder sie überführt.” Roth, sensing the logical difficulty, translates here: “they prove the charges against her and find her guilty.” In the same way, one interpretation in CAD takes the phrase as hendiadys: “they prove it of her by means of witnesses KAV 1 i 8 (Ass. Code §1), and passim in this phrase in the Ass. Code,” as if it were the same form as elsewhere in the code.12 The Assyrian form l . . . l , however, can only mean “either . . . or.”13

Methods of Proof If the dual phrase is not to be dismissed as meaningless repetition,14 a separate role must be found for it that leaves the individual verbs with discrete functions and neither conflicts with those functions nor renders them superfluous. I propose the following hypothesis: the couplet ubta’’er ( ) ukta’’in ( ) refers to the burden of proof on the accuser and more specifically to the different methods of proof required to discharge that burden in court. In its use in MAL, burru means proof by rational methods, such as witnesses or documents, whereas kunnu means proof by supra-rational methods such as the oath or the ordeal. It should be noted that these conclusions are unique to MAL. The combination of burru and kunnu is attested elsewhere only in reverse order, in two literary compositions in the Standard Babylonian dialect. In

12 CAD K 168, meaning 4; similarly, AHw 109 bâru(m) III, meaning D 4b: “meist vor ukta’’in als Hendiadyoin: sie ihn (sie) völlig überführen.” 13 Cf. A §3 (col. I 23-24): um-ma LU2 lu-ú ma-ri-i lu-ú me-et. A man cannot be ill and dead at the same time. 14 This is the role assigned to it by CAD B 130: “if they establish and prove that.”

214 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources urpu, it occurs in a list of sins, in a context that reveals nothing of the two verbs’ function; they could simply be synonyms (urpu II 60: ukannu ubarru u abaru). Their context in the Assyrian Dream-Book, on the other hand, implies that the verbs are cumulative, not alternative. The omen in question reads (330, reverse col. ii, lines 40-41): If he walks constantly in dark waters, a hea[vy] lawsuit [ . . . ], they will sum[mon him] ana kunni u burri. Because the lawsuit is a difficult one, the witness will be obliged to furnish more than one mode of proof. The reverse order of the verbs in these late sources is significant, as it may reflect an earlier difference between the Assyrian and Babylonian dialects. In Old Babylonian sources, the two verbs, appearing individually, have the same functions as proposed here but with exactly the opposite application: burru is used of proof by supra-rational means, whereas kunnu is mostly used of proof by rational means.15 Only two forms of supra-rational evidence are positively attested in Mesopotamia, namely, the evidentiary oath and the river ordeal. The ordeal is far less common than the oath, and its procedure is not well understood.16 Both are imposed by the court and are decisive. The evidentiary oath is imposed on one side—on the party or his witnesses or both.17 If taken, it decides the case in favor of the oath-taker. It is, however, a burden as well as a privilege, for a person may be reluctant to expose himself to the wrath of god or king through a self-curse. Thus there are many attested instances of the imposition of the oath leading to a last-minute compromise settlement.18 On the other hand, the danger arising 15 See Dombradi 1996: vol. 1, 335, for the evidence from private legal documents. The distinction is clear-cut in Codex Hammurabi: burru: §§23, 120, 126, 240; kunnu: §§1, 2, 3, 5, 42, 106, 107, 108, 113, 116, 124, 127, 133, 141, 194, 255, 265, 282. In §2, if witchcraft is not proved, then they resort to the river ordeal. 16 Although there are references to the river ordeal from all periods (for a survey of the sources, see HANEL 155, 196-97, 375-76, 495-96, 529, 575-76, 891, 925), the only accounts of the procedure come from OB Mari; see Durand 1988. It sometimes involved an agreement between the parties. An oath or oaths may also have been required; see Joannès 1997: 172-73. 17 For a detailed account based on the Old Babylonian sources, see Dombradi 1996: vol. 1, 330-34. See also Démare-Lafont 1997: 185-93. 18 See e.g., CT 4 47a; and CT 48 1 (both Old Babylonian).

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from the oath’s self-curse is merely potential, which might tempt a hardy or desperate soul to risk its consequences.19 The ordeal applies to parties, not to witnesses. It appears to have been imposed on one side, but it could be undertaken by substitutes.20 As with the oath, there are cases where a party refuses to undergo the ordeal. Unlike the oath, it involves immediate risks and immediate results, which would make the subject of the ordeal even more reluctant to undergo the procedure. The court has a discretion whether to impose the oath or ordeal and on which side. The most common form of oath is an exculpatory oath on the defendant. Otherwise, the sources, especially the law codes, refer to particular circumstances in which the court imposes an oath or ordeal but never articulate the principles underlying the exercise of its discretion.

The verbs burru and kunnu Most of the cases in which the two verbs appear in MAL, whether as a couplet or burru alone, do not provide us with sufficient context to determine what sort of evidence they refer to, whether rational or suprarational. A few cases in which burru appears alone, however, indicate that rational evidence is meant. In A §17 a man makes the assertion that another man’s wife is notoriously promiscuous: If a man says to a man, “Your wife is always being slept with,” and there are no witnesses, they shall make a contract and go to the River. In the absence of witnesses, that is, of rational evidence, supra-rational evidence is expressly prescribed, in the form of the ordeal. In A §18 a man makes the same allegations, but then rashly declares that he will prove it (burru):

19 An Old Babylonian prayer to Nanna documents a case of successful perjury: UET 6 402 (edition in Charpin 1986: 326-29). 20 Durand 1988: 518-21.

216 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources If a man says to his companion, whether in private or in a dispute, “Your wife is always being slept with,” and “I will prove it,” but he cannot and does not prove it (a-na-ku ú-ba-ar ba-ú-ra la-a i-la’-e la-a ú-ba-e-er), that man shall be beaten with 40 strokes. The proof must refer back to what was stated to be missing in A §17, namely, the testimony of witnesses. In A §12 a man is charged with seizing a married woman as she is passing in the street and raping her. He is to suffer the death penalty “whether he is caught upon the married woman or witnesses prove that he had intercourse with the woman” (col. II 20-22: lu-ú i-na UGU DAM-LU2 ik u-du-u ù lu-ú ki-i MUNUS i-ni-ku-ú-ni e-bu-tu ub-ta-e-ru-u ). In my view, the protasis is canvassing the two standard types of rational proof: seizing in the act and testimony ex post facto.21 There would be no need to impose an oath on the witnesses, whose credibility is not in issue. This law is not about setting a minimum level of proof. The point being made by the apodosis is that the death penalty applies whether the culprit is caught in the act or not. The context is the principle commonly found in ancient legal systems that being caught in flagranti delicto aggravates the offense. 22 It is a stylistic feature of MAL to give a list of alternatives in order to show that the ruling is indifferent to them.23 I shall return to this point below. The provision in A §25 makes a clear distinction between rational and supra-rational modes. The text reads (col. III, lines 82-94): 82 um-ma MUNUS i-na E2 a-bi- a-ma us-bat 83 ù mu-us-sa me-e-et 21 A third type, documentary, applies essentially to transactions. A confession might also be regarded as a form of proof. See Démare-Lafont 1999: 165. Seizure in the act does not at first sight look like an independent type of evidence, since there will still be testimony about it at the time of trial. It becomes sufficient proof in itself when it is such as to exclude deniability by the culprit. See below. 22 E.g., a thief caught in the act, as in CH §25, suffers the death penalty. Cf. the case of Laban’s stolen idols in Gen 31:30-32, where the death penalty is to be imposed on the thief caught in possession after a hot pursuit. The distinction is expressed in early Roman law as between manifest and non-manifest theft. See Gaius Inst. III 184-185 and 189-190 (edited in de Zulueta 1946-53). 23 Compare the list of different circumstances of a rape in A §55: “whether in the town or in the country or at night in the street or in a granary or at a town festival...” As Landsberger put it, they signify “Tatort gleichgültig” (1968: 63 n. 1).

Evidentiary Procedure in the Middle Assyrian Laws 84 85 86 87 88 89 90 91 92 93 94

E-ME mu-ti- a la-a ù DUMU- a la-á - u

217

ze-e-zu

mi-im-ma du-ma-a-qé a mu-us-sa i-na UGU- a i -ku-nu-ú-ni la al-qú-ú-ni E-ME mu-ti- a la-a ze-zu-ú-tu i-laq-qé-ú a-na re-a-a-te DINGIR-ME -ni ú- e-et-tu-qú ú-ba-ar-ru i-laq-qé-ú a-na dIDi-id ù ma-mi-te la-a i-a-ab-bu-ú-tu

If a woman is dwelling in her father’s house and her husband dies, her husband’s brothers have not divided, and she has no son, her undivided husband’s brothers may take any jewelry that her husband placed upon her that is not lost. As regards the remaining (property?), they shall cause the gods to move past (it) and shall prove and take (it). They shall not be seized for the River God or the oath. The brothers must engage in a procedure involving the gods, the content of which is not clear, but would seem to engage the gods as witnesses. It is not an oracular procedure, for which different terminology is used, as we shall see. Nor is it one of the two known supra-rational means of proving an assertion in court, for they are expressly excluded. The brothers must in any case still prove (burru) their claim to the items of property. The conclusion must be that burru alone is used when rational means of proof are intended. Finally, A §1 is the sole source in MAL in which both burru and kunnu appear together but not as a couplet. The text reads (col. I, 1-13): 1 2 3 4 5 6 7

[ u]m-ma MUNUS [lu-ú] DAM LU2 [lu]-ú [DUMU-MU[NUS LU2] [i-na] E2-DINGIR [t]e-ta-ra-ab [i-na] E2-DINGIR [mi]-im-ma [ ] tal-ti-i[-]ri-iq [(lu-ú) i-na qa-ti- a?] i-a-bi-[it] lu-ú ub-ta-e-ru-ú-[ i]

218 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 8 9 10 11 12 13

lu-ú uk-ta-i-nu-[(ú)- i] ba-e-ru-ta [ ] [D]INGIR i-[ ]a-’u-[ú-lu] [k]i-i a-a [DINGIR a-na e-pa- e] i-[q]a-ab-[bi-ú-n]i e-ep-pu- u-ú- i

If a woman, whether the wife of a man or the daughter of a man, enters a temple and steals something . . . , (and) it is seized [in her hand], or ubta’’er i or (else) ukta’’in i, [they shall perform] a divination and shall inquire of the god. They shall treat her as [the god] orders. Notes line 5 line 6

line 7 line 9

Collation by Freydank 1994: 204. The dubious verbal form led Postgate to suggest (tentatively) iz-za-qa[p], with an unattested intransitive meaning “come to light, turn up” (1973: 21). Otto proposes the Neo-Assyrian verb zaq pu B, “vor Gericht erscheinen (um Klage zu erheben)” but then translates “völlig überführt” (1993b: 158 n. 49). Claiming, however, is far from proving, and the form would in any case be izzaqqup. A duplicate fragment (Postgate 1973: 19-21) reads ù lu-ú ub-ta-e-ru- i [ . . . ] On the form, see Deller 1987: 65.

In this paragraph, three different types of proof are presented as alternatives: being caught in possession of the stolen goods or perhaps in the act of stealing, and two others. In the light of the paragraphs previously discussed, it is reasonable to suppose that the remaining two would be the testimony of witnesses, and the results of a supra-rational procedure, possibly an ordeal. Thus MAL presumes three standard modes of proof: seizure in flagranti delicto, ex post facto testimony, and referral to the divine court. As we have seen in A §12, the ruling itself concerns punishment, not proof. Its point is that whatever means were used to prove the woman’s guilt, her punishment is to be determined by consulting the oracle.

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The Couplet ubta’’er ( ) ukta’’in ( ) A preliminary objection to my interpretation of the dual phrase is that the oath, and more particularly the ordeal, would normally be imposed on a single person, whereas the verbs in the dual phrase are in the plural. The answer is that the third person plural of the verbs should be understood as an impersonal form. Consequently, the unspoken subject may and often will be an individual: the plaintiff, a witness, or the victim (as in A §16, where the victim testifying is the plaintiff’s wife), whoever they may be. Tablet A §40 reveals the individual behind the impersonal phrase: If a man sees a slave woman veiled and lets her go—he does not seize her and bring her to the gate of the palace—ubta’’er ukta’’in . He shall be struck with 50 strokes of the rod, his ears shall be pierced, threaded with a cord, and tied at his nape. His denouncer (b tiq n u) will take his garment. He shall do the king’s corvée for a month. The denouncer is thus the hidden subject who has to testify as to the accused’s dereliction of duty and to confirm his testimony by submitting to the oath or ordeal. A more serious objection to my interpretation is that it has not solved the problem of redundancy. If the method of proof is to be a supra-rational procedure, why require rational evidence as well? The answer lies in what I will call the condition of threshold credibility. Supra-rational procedure is the removal of the case from the human tribunal and its referral to a divine tribunal. The human court has first to decide under what circumstances it will refer a case, then which procedure is to be applied and which assertion is to be tested, the plaintiff’s or the defendant’s (or their witnesses’). The most obvious reason for a referral is the absence of evidence. For example, in an Old Babylonian suit by a seller reclaiming property from a buyer, “The royal judges gave aliya’um (the buyer) to the oath because they had fixed a day and his witnesses could not be present.”24 Nonetheless, in many cases the court would only 24 OECT 13 91 (lines 12-15): DI -KU5-LUGAL a-li-ia-ú-um a - um u4-mu i -ku-ú-ma ibi- u ú-la i-ba-a - u-ú-ma a-na ni-i DINGIR [i]d-di-nu- u. The example is Old Babylonian. Unfortunately, there are no litigation documents from the Middle Assyrian

220 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources reach its decision after considering the evidence. Thus in another Old Babylonian case, where one heir sued the purchaser of land from another heir, the plaintiff relied on a tablet of division of the estate, but the defendant adduced witnesses to the existence of a later division. “The judges heard their statement ( apti unu) that there was a later division, and the judges ordered them to speak their testimony ( ibussunu) before the god.”25 In a royal decision from Ugarit, the content of the witnesses’ evidence determines who is to take the oath (lines 17-34): Takia (the debtor) said as follows: “I paid the son of Zibaia (the creditor) the 800 shekels of silver that I owed him and I have witnesses: Attanu and Aiu.” If his witnesses say, “(The debt) is settled: Takia paid the 800 shekels of silver to the son of Zibaia,” then let Takia swear together with his witnesses, and let the son of Zibaia relinquish his claim. And if Takia’s witnesses say it is not so, let the son of Zibaia swear together with his (Takia’s) witnesses and let Takia pay him his silver.26 The court might therefore decide that for an assertion to be tested by supra-rational procedure, the person making the assertion must first have attained a certain threshold of credibility, whether through testimony, documents, or material evidence. The condition is more appropriate to the oath than to the ordeal, because the oath was applicable to a wider range of persons and was open to abuse by a party with a weak case or by a dubious witness. The immediate peril of the ordeal would have acted as more of a deterrent against the temptation of perjury. Nonetheless, it was not an absolute deterrent, and threshold credibility could be regarded as necessary for the ordeal, depending on the circumstances of the case.27 period to illustrate the oath or ordeal in practice, but there is a rich fund of sources from Mesopotamia in other periods (especially the Old Babylonian period), and the basic principles of supra-rational procedure appear to remain constant throughout the cuneiform record. 25 BE 6/2 49 (lines 25-29). The plaintiff thereupon agreed to a compromise settlement rather than allow the witnesses to swear. 26 RS 20.22 = Ugaritica V no. 27: 5-34. For a legal analysis of this and the preceding text, see Loewenstamm 1980a: 341-45. 27 Démare-Lafont argues that A §17 shows that rational and irrational modes of proof were in theory mutually exclusive, because the ordeal is prescribed in the absence of

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In many instances where the dual phrase is used in MAL, it is reasonable to infer that the court heard evidence before deciding whether to impose the oath or the ordeal and on whom. Thus the landowner who claims that a neighbor has encroached upon his land would need to bring some prima facie evidence of title before the court would impose the oath (or ordeal) on him rather than on his neighbor who also claims the land (B §§8, 9, 13, 14, 20).28 Again, the victims of fraudulent practices in C+G §§8, 10, and 11 would need first to show that the property of which they were defrauded was theirs. C+G 3 imposes a punishment on a creditor who sells abroad a son or daughter held as pledge, unless the debt equals their full market value.29 The procedure ubta’’er ukta’’in is invoked against him. Aside from the question of sale abroad, the debtor, who is the father of the pledged child, needs to show that the child was given as a pledge and not sold as a slave, and furthermore that the child was not pledged for its full value. The issue is one of the state of accounts between the creditor and debtor, for which some rational evidence would be required, before allowing the debtor to swear an oath (or submit to an ordeal). Supra-rational procedure, therefore, does not necessarily eliminate the need for rational evidence as a preliminary step. It follows that the dual requirement in the couplet ubta’’er ( ) ukta’’in ( ) is not redundant. It is a gradation, although not in the sense that Cardascia meant. The law could simply have prescribed an oath or ordeal, deeming that the circumstances warrant it. It does so in A §17 where, as we have already seen, the ordeal is expressly provided where there are no witnesses. The law thus orders (or empowers) the court to apply a supra-rational procedure instead of rational evidence. The dual phrase is not used. I would argue a contrario that the dual phrase was used only in cases where the law chose not to eliminate the preliminary step but to require (or perhaps to allow) the court to proceed to the ordeal (or the oath) once that threshold requirement had been satisfied. By far the most common application of the oath or ordeal was exculpatory, to allow a defendant to disprove an accusation. It is not surprising, witnesses (1999: 259). As I shall hope to show below, the paragraph represents a much narrower principle. 28 Where boundaries are fixed by tradition of usage they are hard to prove; there will be no deeds of sale, and boundary stones are notoriously movable. 29 The object of the latter clause, an Assyrian man or woman, refers to an Assyrian citizen, not an inferior social class. See Démare-Lafont 2003: 530-31.

222 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources therefore, that most of the paragraphs of MAL that prescribe the oath or ordeal in explicit terms refer to an exculpatory procedure. In six paragraphs, the law imposes an oath using the verb tamû. In two of these (B §10; C+G §1), the tablet is too broken to establish the context, but in A §§22 and 56, an exculpatory oath is imposed upon the accused. In A §5, the oath is imposed upon the accuser, but is analogous to an exculpatory oath, in that the alleged victim of theft must prove that he did not incite the theft. The final instance, A §47 (lines 16-17), also concerns an unconventional oath that is exculpatory in purpose: a hearsay witness exonerates himself (zakû) by proving what an eyewitness told him. Likewise, of the three cases of ordeal in MAL, at least two (A §§22 and 24) are undergone by the accused and are clearly exculpatory. The dual phrase, by contrast, refers exclusively to proof in support of an accusation. Herein, I suggest, lies both the rationale for its existence— to indicate an application of supra-rational procedures that was less common—and the rationale for its duality. It is precisely because the oath or ordeal was being imposed upon an accuser, not a defendant, that threshold evidence was regarded as necessary.30 It is significant that A §17, which as we have seen imposes the ordeal not by the dual phrase and explicitly excludes threshold evidence, also appears to impose the procedure on the accuser.31

The Dual Phrase in Action The rationale for prescribing the procedures indicated by the dual phrase may be illustrated by contrasting two fairly straightforward cases from MAL, one that uses the dual phrase and one that uses burru alone. The provision in A §20 reads:

30 A similar distinction exists in CH: tamû is used where the oath is exculpatory (§§206207, 227); but ina maar ilim burru for accusations or claims of lost property. 31 Driver and Miles argue that the ordeal was undergone by the wife, in order to clear herself of suspicion, which would make it exculpatory (1935: 68-69). In order to maintain that interpretation, they are obliged to regard the statement about the wife not as slander but as a friendly word to the husband. As Cardascia points out, the maker of the statement must be the same as in the following paragraph, where his allegation is definitely an unfriendly act (1969: 127-29).

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If a man has intercourse with his companion and ubta’’er ukta’’in , they shall have intercourse with him and turn him into a eunuch. A man claims that he was sodomized by an associate. Two factors affect the evidentiary procedure to be applied. First, there would be no outside witnesses to such an intimate sexual act. Second, the evidence of the accuser himself is a statement against interest. As Daube has pointed out, the offense is not homosexuality at large but imposing upon a free man the despicable passive role in intercourse, treating the victim sexually like a woman; hence the punishment of the offender—to be treated like a woman and turned into a woman.32 For the victim to admit publicly that he had played the passive role, whether willingly or unwillingly, would be deeply shaming. Accordingly, the personal, uncorroborated evidence of the victim will cross a threshold of credibility—not enough to prove his accusation outright, but enough to persuade the court to refer it to a divine tribunal, for example by imposing the oath upon him.33 The provision in A §36 considers the case of a man who has gone abroad, or perhaps just to the provinces (a-na A-A3 i-it-ta-la-ak), apparently on business, and fails to leave his wife with provisions or to send her provisions from abroad.34 After five years she is free to remarry, and if the husband subsequently returns, he has no right to reclaim his wife. There is one exception, however (col. IV 103-V 3): If he is delayed beyond 5 years but was being held against his will or a . . . seized him and he fled or he was seized as a criminal and delayed, on his return he shall prove it (ú-ba-a-ar) and give a woman like his wife, and he may take his wife. The absentee claims that he is entitled to take his wife back because his absence beyond the statutory limit was due to force majeure, in particular judicial measures taken against him. Again, two factors influence the evidentiary procedure prescribed. First, other evidence would be available, 32 Daube 1986: 447-48. 33 In this and the following example, I will assume for the sake of argument that the more common supra-rational procedure, the oath, was intended. 34 Literally: “to the field.” See Cardascia’s discussion of the context (1969: 187-89).

224 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources even though the events in question took place elsewhere, since they would have been witnessed by fellow merchants or be demonstrable from court records.35 Second, he has a strong incentive to lie in his own self-interest. Accordingly, the claimant’s personal testimony suffices neither to prove his claim outright nor to cross the threshold necessary for referral to a divine tribunal. He must prove his case by rational means alone; he is not to be granted the benefit of an oath. Two more complex cases, both revolving around the definition of seizure in the act, illustrate further details of the dual procedure in practice. I distinguished above between three standard types of evidence: seizure in flagranti delicto, testimony, and oath or ordeal. Seizure in flagranti does not at first sight look like an independent type of evidence, since there will still be testimony at the time of trial. It becomes sufficient proof in itself when it is such as to exclude deniability by the culprit. Lack of deniability arises from the circumstances of the seizure, which may cover a broad spectrum of time, place, or actions: in a public place, in a private place where there can be no innocent explanation for the culprit’s presence, in possession of incriminating material in the immediate aftermath of the crime. Thus the rapist caught in the act in public by a crowd of bystanders has no deniability (MAL A § 12), nor does the burglar caught trespassing, especially at night (CE §§12–13), nor the thief in whose possession stolen goods are found after a hue and cry and formal search (Gen 31:22–35). Seizure in the act may fail to exclude deniability, on the other hand, where it is done by an interested party alone, or where an innocent explanation is available for the presence of the accused, or where too much time has elapsed between the crime and the seizure. The court will then need to revert to other modes of proof in order to establish the link between seizure of the accused and the alleged crime. The law on witchcraft in A §47 rules that seizure of incriminating materials does not exclude deniability. In laying down further evidentiary requirements, it reveals the key elements inferred by the dual phrase: duplication of testimony and oath by an individual witness in support of an accusation. The opening lines read (col. VII 1-6): 35 Sources from the Old Assyrian period show that the Assyrian courts had great experience in dealing with the problems of witnesses or parties absent abroad and the time needed to gather evidence. See Veenhof 2003: 443-45.

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If a man or a woman practices witchcraft and they (the items) are seized in their hands;36 ubta’’er unu ukta’’in unu; the makers of witchcraft shall be killed. Witchcraft was regarded as a danger to public safety. In the war against witchcraft, the palace needed to be informed and could take extreme steps to identify and apprehend sorcerers. At the same time, false accusation was all too easy, since the link between cause and effect was intangible. Seizure of “incriminating” items was not enough; the accuser had to testify as to the practice of witchcraft and also take an oath or submit to an ordeal. The final section of the law confirms that he had in fact to take an oath. The eyewitness has informed another who in turn informs the palace, but the eyewitness then denies his statement. Evidently fear of the sorcerer deters the eyewitness from testifying. The palace, however, has a remedy (lines 20-23): The king shall interrogate him as he is able and shall see his back (LUGAL ki-i i-la-’-ú-ni il-ta-na-’-al- u ù ku-tal-lu- u e-em-mar), and the exorcist shall cause the man to speak when he is purified. The meaning of this enigmatic phrase is in my opinion that the king will interrogate the reluctant witness under torture, so as to counteract fear of the sorcerer with an equal terror.37 If the purpose were merely to gain information, there would be no problem, but it emerges from the continuation of the law that as a result of his “interrogation” the eyewitness has sworn an oath by the king and the prince (lines 24-31): He (the exorcist) shall say: “He will not release you (pl.)38 from the oath that you swore to the king and his son. You swear in accordance with the tablet that you are swearing to the king and his son.” 36 i-na qa-ti- u-nu i-a-ab-tu. The reference is to magical preparations or products; see Cardascia 1969: 230-31. 37 The use of torture in judicial interrogation is attested in Neo-Babylonian times, when a “ladder of interrogation” was used to extract confessions; see Jursa 1996: 199, 210. The phrase “see his back” could refer to a reversal of his denial. I am grateful to Professor Jursa for this suggestion. 38 Possibly a reference to the oath-taker’s family, who would be included in the curse.

226 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The exorcist is on hand to reassure the witness that the sorcerer will not be able to release him from the curses attendant upon his oath, which the sorcerer might perhaps justify on the grounds that the oath was not given voluntarily. From our point of view, the significance of the law is that it reveals that not only must seizure of incriminating evidence be corroborated by testimony, but that the testimony itself must be confirmed by oath. Confirmation by testimony and oath of what at first sight seems to be covered by seizure in flagranti delicto may also be behind a use of the dual phrase in A §15 that has puzzled commentators. In this case, it is a cogent parallel that supplies the context. The paragraph reads (col. II: 41-57): 41 42 43 44 45 46 47

um-ma LU2 i -tu DAM-ti- u LU2 i-a-bat ub-ta-e-ru-ú-u uk-ta-i-nu-ú-u ki-la-al-le- u-nu-ma i-du-uk-ku- u-nu a-ra-an- u la-á - u ...

41-46: If a man seizes a man with his wife, ubta’’er ukta’’in , it is both of them that shall be killed; he has no liability. 47-57: If he seizes them and brings them to the king or the judges, ubta’’er ukta’’in ; if the woman’s husband will kill his wife, then he shall kill the man. If he will cut off his wife’s nose, then he shall turn the man into a eunuch, and his whole face shall be mutilated; if he will let his wife off, he shall let off the man. A husband catches his wife “with” another man, that is, strictly speaking not in flagranti delicto but in circumstances that could be construed as indicating an adulterous relationship. The distinction may seem overly subtle but is confirmed by the brutally graphic language of A §12, where the rapist is caught “upon” (ina mui) the woman.39 The second part of the law 39 Driver and Miles noted the difference in terminology, but dismissed it as unimportant (1935: 48); Cardascia took the same view but was troubled by the fact that proof by witnesses should also have been required in a case of seizure in flagranti delicto (1969: 120 note a). Native sources were conscious of the distinction, however. The report of a trial from Old Babylonian Nippur relates that the husband actually tied his wife and her lover caught in the act to the bed and brought them, bed and all, to the

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not unreasonably requires the husband to prove the case against the man before a local or royal court (ubta’’er ukta’’in ) and also to refute any suspicion of entrapment by punishing his wife and her lover in equal measure (lines 47-57). The first part of the law creates a difficulty in that it seems to allow the husband to exercise summary justice (lines 41-46), but with the same requirements, including ubta’’er ukta’’in . Driver and Miles postulated an informal trial with the neighbors as witnesses, citing Greek parallels.40 In an earlier study on the law of adultery, I conjectured that the proving might refer to a procedure ex post facto of the husband killing the lovers on the spot, in a trial in which he was the defendant.41 The result would be that any oath sworn by the husband would be exculpatory. The conclusions of the present study, that ubta’’er ukta’’in refers only to an accusatory procedure, render my earlier conjecture, which was difficult to reconcile with the syntax, untenable.42 At the same time, they reveal a closer parallel in the Gortyn Code, one of the Greek sources mentioned by Driver and Miles, which gives added credibility to the scenario that the latter postulated.43 The Gortyn Code discusses the case of a man seized while committing adultery (moikin) with a free woman in the house of her father, brother, or husband (II 20-28).44 The text continues (28-45): Let him (the captor) before three witnesses declare to the relatives of the one seized that he is to be ransomed within five days . . . . If he is not ransomed, it is for the captors to do (with him) as they wish. If he (the captive) claims to be the victim of fraud, the captor is to swear . . . with five others, each cursing himself solemnly, that he was taken committing adultery and was not the victim of fraud.

40 41 42 43 44

court. See Greengus 1969-70: 33-44. Cf. also Démare-Lafont 1999: 68, arguing in favor of the distinction. Driver and Miles 1935: 45-46, 50. Westbrook 1990b: 552-53. See also the criticisms of Démare-Lafont 1999: 69-70. Edition in Willetts 1967. The Greek term moicheia covers a broader scope than adultery in the ancient Near Eastern sense, being illicit intercourse with a woman under the authority of any close relative.

228 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources It emerges from this account that the adulterer is held by the accuser, who makes a formal declaration before witnesses but does not bring him before a court. If the accused claims, presumably before those witnesses, that it was a fraudulent trick, then the captor must swear a declaratory oath. Apparently, this procedure also takes place in the captor’s home, where the accused is being held, not before a court. It thus conforms with Driver and Miles’ reconstruction of the circumstances in the first part of MAL A §15. From our point of view, what is important is that this extra-judicial procedure is twofold: a declaration before witnesses of the circumstances of the seizure and a supra-rational stage.45 There is, however, an important difference between the Greek and the Assyrian law. The Greek oath is in fact two-fold: an accusatory positive oath that the oath-taker seized the accused in adultery and an exculpatory negative oath that it was not a fraudulent scheme to entrap the accused. Adultery was an offense against the husband; if he agreed to another sleeping with his wife, he would have no claim against him.46 The second oath is not present in the Assyrian version because a different safeguard is employed against entrapment, namely, the requirement (emphasized by the enclitic -ma in line 44) that both the wife and the lover be killed. The result is the same: the husband will be immune from future suit by the relatives of the man he killed, a suit in which he would be the defendant. Nonetheless, in the present extra-judicial procedure the oath is accusatory, not exculpatory.47 45 The Gortyn law requires oaths not only by the captors but also by four others, whom I take to be members of the captor’s family who would be suspect of conspiring with him to entrap an enemy (and who probably stood to profit with him from the ransom). The older view that they were oath-helpers, whose sole task was to establish the principal witness’s credibility, has been disproved. See Gagarin 1990: 29-54, esp. 51-52. A further illuminating feature of the Gortyn law is its shift between single (captor) and plural (oath-takers) subject, and impersonal verbs. A similar background would account for the switch between singular and plural verb forms in MAL A §15 that has disturbed commentators. See Driver and Miles 1935: 48-50; and Démare-Lafont, who argues on the basis of the 3rd person plural verb forms in lines 42-45 (ubta’’er ukta’’in . . . idduk unu) that the first part of A §15 is a formal procedure before the court just like the second part (1999: 71-72, 90). As I have argued above, these forms can not only be impersonal but can hide an individual subject. 46 See Westbrook 1990b: 564-68. 47 Note that the husband’s immunity is described as aran u la u (cf. A §59), whereas in A §47, line 17, the exculpatory oath makes the oath-taker zakû.

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The Assyrian procedure is a hybrid born of the special circumstances of the case. The husband is allowed to execute summary justice on the lovers without recourse to a court. As a safeguard against abuse, he must first demonstrate their guilt in two stages. Firstly, by rational means, namely, presentation of the lovers to witnesses in the compromising circumstances in which they have been found. This is insufficient to prove the case definitively (should the alleged paramour deny wrongdoing) but is sufficient to cross the threshold of credibility, thus opening the way to proof by supra-rational means, presumably an oath. In that respect there is a trial, before a divine tribunal. The procedure may therefore justifiably be called ubta’’er ukta’’in , in spite of its informal setting.

Conclusions The provisions of MAL express the requirement of a supra-rational evidentiary procedure in two ways. They either set out the procedure explicitly, whether by oath or ordeal, or they employ the enigmatic phrase ubta’’er ( ) ukta’’in ( ). The latter is used in order to substantiate an accusation, when both rational and supra-rational means of proof are required. Accordingly, I would propose as a (non-literal) translation of the phrase ubta’’er ( ) ukta’’in ( ) wherever it occurs in MAL: “(if) the burden of proof against him(/her/them) has been discharged by all means, human and divine.”

15 z i z 2 . d a / kitum Abstract This article argues that the terms z i z 2 . d a and ki tum were listed as equivalents in lexical lists because they both refer to punishment for certain offenses. That punishment, however, had two aspects, ransom and revenge. The Sumerian term mostly reflects the idea of a ransom payment, while the Akkadian term largely points to the idea of revenge in that the wrongdoer is forced into servitude in the household of the victim.

I

n the lexical lists of the first millennium, the Sumerian term zi z 2 .d a has as its equivalent the Akkadian term ki tum.1 The Sumerian term is found in a small number of documents from the third millennium, from which its meaning can be established without difficulty. MVN 3 219 records the case of a merchant who had purchased sheep which were found to be stolen.2 He was declared a thief but was able to invoke his contract to join the guarantor of title to the action, and it would appear that the latter had had to indemnify the merchant for the value of the sheep that he had forfeited and was also obliged to pay a ziz 2 .d a amounting to four-fold the value of the sheep, presumably to the real

* Originally published in Wiener Zeitschrift für die Kunde des Morgenlandes 86 (1996): 449-59. Used by permission. 1 Hh. I 34, XIII 87; Erimhu V 78; Ea I 329, wrongly attributed to *kiatu, “emmer” in CAD K 459 by Borger 1973: 175. The reading z iz 2 . d a for A2. d a has now been confirmed by a recently published Neo-Sumerian text from Umma (SNATBM 373; see below); see Wilcke 1991. It is to be identified with za . a  2 . d a in Sollberger Corpus Ukg. 6 iii 11', 24'. For the earlier discussion, see Wilcke 1979: 95-96; and Steinkeller 1980: 178-79. 2 Edition in Steinkeller 1989: 330-32, cf. 85-86.

232 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources owner.3 In the present document, the guarantor is claiming the refund of his outlays from the sellers. In SNATBM 373, stolen meat(?) was found in the possession of A.’s slave.4 B. seized two mountain sheep (udu . k u r) per fattened sheep (udu.ni g a. e) from A.’s herd and “made them into the ziz 2 .da for the stolen sheep” (line 8: zi .i .d a u du. zu. a .e 3 i n .n a). In a third document, Sigrist Messenger Texts 190, A. purchased grain from B. that came from the granary of the millhouse, a state institution.5 A. is required to replace it (s u .s u .d am ), but the tablet notes that B has already “replaced its zi z 2 .d a” (zi z 2 .d a. b i i 3 .su ). Thus the buyer found with goods that were stolen or at least to which the seller did not have good title must replace them (as these are fungibles he cannot simply restore them), but liability (to the owner) for a further payment has been discharged directly by the seller. Finally, in OIP 14 76 II 4, a payment of 15 shekels of silver is qualified as a zi z 2 .d a, but without indication of the purpose. The Edict of Uru-inimgina confirms the connection of zi z 2 .d a with theft (Sollberger Corpus Ukg. 6 iii 10'-13'): “theft, its ziz 2 .d a is dropped; missing property is hung up at the city gate.”6 The expression ziz 2 .d a therefore designated a penalty for a crime, typically theft, and took the form (where specified) of a payment in silver or kind.7 3 Following our interpretation in Westbrook and Wilcke 1974-77: esp. 114-16. There we raised the possibility that the purchaser first paid the penalty and then recouped it from the guarantor, but since the guarantor is also declared a thief, it would appear more likely that the purchaser was successful in his bid to transfer liability for the penalty to the guarantor. 4 For a transliteration, see Ozaki (Gomi) and Sato 1990; amended readings by Wilcke 1991. 5 This was the e 2 . k i k k en ; see Milano 1994: 30; and Uchitel 1984. 6 Written z a -a  -d a -b i. Edition in Steible 1982: 318. A further enigmatic passage states (iii 20'-24'): “the women of former times had two men; the women of today, its zi z 2 . d a is dropped.” The significance of this passage will be discussed below. 7 Although the verb su in Sigrist Messenger Texts 190:8 leads Wilcke (1991: 14) to explain z i z 2 . d a in terms of “Ersatzleistung,” there is a clear distinction in that document between the latter payment and restitution of the stolen property. The four-fold payment in MVN 3 219 definitely points to punitive rather than compensatory damages. Steinkeller’s rendering “penalty” (1989: 85) is therefore to be preferred to “indemnity” (1989: 331).

zi z 2 .d a / ki tum

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The term ki tum is attested in a growing number of sources from the Old Babylonian period—law codes, letters, and legal records—but a reference in a Sargonic source indicates respectable antiquity for the Akkadian term.8 Several meanings have been attributed to it by various scholars over the years. The closest to zi z 2 .d a is CAD’s “indemnity (for a lost object), replacement (for a distrained person),”9 albeit as a secondary meaning, following Harris’ proposal of “substitute” for persons or “replacement” for things.10 The latter proposal is based on the appearance in several texts of the construction PN1 ki t PN2 and of x shekels ana ki t (object lost) in YOS 8 53. In the three cases where the identity of PN2 is clear, however, it is respectively an offender (TCL 1 164: 23), a debtor/victim of abduction (VAS 8 26: 15), and a creditor (AbB 8 100: 11-12). It is best to regard the construction as being a loose genitive of respect: “the ki tum in respect of PN/Object,” which gives no direct indication of its exact meaning. On the other hand, the mention of payments in juxtaposition to ki tum in several documents shows that the term could have a pecuniary value, like zi z 2 .d a.11 The primary meaning attributed to the term, however, suggests a condition rather than a payment. CH 117 presents the case of a man who is unable to pay a debt and has therefore sold his family or given them ana ki tim. After serving in the house of their purchaser or k ium for three years, they are to be released. In the same way, the correspondent in AbB 8 100 reports that a woman has been released from bit ki ta, while another letter concerns a slave-girl taken ina hi tim. Her owner gives five shekels to a merchant who promises to secure her redemption, but in the meantime she dies aar illeqûma ina ibitta.12 8 MVN 3 102; edition in Steinkeller 1980: 179. 9 CAD K 459-60. The association with z i z 2 . d a had led us to translate “compensation” in TCL 1 164 (Westbrook and Wilcke 1974-77: 120 n. 36). 10 Harris 1955: 98. 11 See, for example, TCL 1 64 (lines 21-24): 1 g u 4 m u 3 / a-na PN du b . s a r e ri n 2 / kii-a-at PN2 id-di-in. See also TIM 5 62 (lines 10-11): 10 g in 2 k u 3 .b ab b ar ki-i-ati-u / PN i 3 . l a 2 . e; and VAS 8 26 (lines 14-15): ki-i-a-at PN / a-na 1/3 m a . n a 3 g i n 2 k u 3 .b ab b ar . 12 Boyer Contribution 122 (= RA 15 140). For the variation h/k, see Speiser 1956: 4-6; and 1964: 44-45. Speiser’s claim of a Hurrian origin for the term ki tum seems improbable in the light of a Sargonic attestation.

234 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Accordingly, most commentators consider the legal term to refer to a type of servitude. Kraus translates simply: “Dienstbarkeit.”13 Others emphasize the origin of the servitude in question in debt: “debt-servitude,”14 “‘Gewalt,’ die, auf Personen bezogen, die ‘Schuldhaft’ bezeichnet,”15 “Schuld(sklaven)dienst,”16 “status of a person given as a distrainee for a debt.”17 The idea of a penalty is completely absent and that of payment virtually so. The term, however, must have a different, or at least narrower, application than debt-slavery, since CH 117 lists ki tum as a separate arrangement alongside sale into slavery for debt. Fleishman surmises that in that paragraph the one who has been handed over ana ki tim works for the creditor and thus pays the debt, but there is no evidence that ki tum functioned in this manner.18 If it differed from sale in the possibility of redemption by payment of the debt, by whatever means, then it would in turn be indistinguishable from certain types of pledge. Kienast tries to distinguish it from the latter on the grounds that pledge is normally taken at the beginning of the debt whereas ki tum in CH 117 occurs only after the debt falls due.19 Kienast does not specify, but if it is a voluntary arrangement made after the due date, then it is based on novation of the debt; hence the new pledge will still be prior to the new debt. If it is involuntary, then it is indistinguishable from nipûtum, which involves seizure for debt. Kienast’s argument can thus only apply to a contract of loan which provides for the taking of a pledge on default. As we shall see below, the documents of practice show ki tum to be anything but a contractual arrangement.20

13 14 15 16 17 18 19 20

Kraus 1984: 181, cf. 267. Steinkeller 1980: 179. Kienast 1978: 67. AHw 492. CAD K 459, meaning 1. Fleishman 1990: 250 n. 4. Kienast 1978: 67. Two texts where ki tum is not based on a contract of loan, VAS 7 149 and YOS 8 53, are dismissed by Kienast (1978: 67 n. 281): “es scheint zweifelhaft, ob überhaupt das Rechtsinstitut der ki tum vorliegt.” Since both texts use the relevant term, it must be concluded that they do represent the relevant legal institution, albeit not in the form postulated by Kienast’s theory.

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In UCP 10/1 91 the verb ka u is used to describe the act of the judges in handing over a slave guilty of burglary to his victim: ana PN b l urqu iku ma. On the basis of this text, Landsberger understood ka u *N as “eine Schuld (nicht Geldschuld, sondern Verbrechen) durch Dienst im Hause des Geschädigten abbüßen” and ka u G as “dieser Diensthaft unterwerfen.”21 Thus crime could be a condition for the application of ki tum. Indeed, in those documents of practice where the cause of ki tum is stated, it is always a crime. In YOS 8 53 a boat was sunk;22 the five other texts are all records of trials concerning theft or missing property, which result in an order for or act of ki tum.23 Accordingly, in UCP 10/1 107, where a burglar is handed over to the householder ana ki tim, Finkelstein translated “for penal servitude.” What distinguishes ki tum from other forms of debt-slavery, then, is that the debt from which it arises is ex delicto, not ex contractu, and its legal conditions will therefore be shaped by the special features of such debts. The difficulty remains, however, that in some sources ki tum is equated not with servitude but with payment, and its lexical equivalent, zi z 2 .d a, is always in the form of a payment. In our view this discrepancy may be resolved by reference to a special characteristic of ancient Near Eastern “criminal” law that we have expounded in earlier studies.24 Serious offenses such as murder, rape, wounding, etc., gave rise in the legal systems of the ancient Near East to a dual right that the victim (or his family) could exercise through the courts: to revenge upon the culprit or his family, or to the payment of ransom in lieu of revenge. That right was regulated by the courts by setting an appropriate limit on revenge in accordance with the gravity of the offense—”an eye for an eye,” for example, or vicarious revenge upon a member of the culprit’s family rather than on the culprit himself. Alternatively, the victim could accept ransom from the culprit to buy off his right of revenge. Theoretically, the level of ransom was a matter for free bargaining between the parties, but here also the 21 Landsberger 1968: 75 n. 4. 22 Kienast (1978: 67 n. 281) refers to the document as “Darlehen betreffend ein Schiff.” This would appear to be on the basis of an erroneous interpretation by Kraus in his first edition of the Edict of Ammi-aduqa (1958: 178). Kraus corrected his error in 1984: 273 n. 430. 23 TCL 1 164; TLB 1 243; UCP 10/1 91, 107; VAS 7 149. 24 Westbrook 1988d: 39-128; and 1990b: 564-66.

236 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources courts sometimes intervened, to fix the appropriate ransom, especially in less serious cases. Revenge would then be exercisable only if the culprit would not or could not pay the fixed ransom. The law codes provide examples sometimes of appropriate revenge and sometimes of appropriate ransom, but the one does not exclude the other; they are two sides of the same coin. Theft in modern law covers a very broad range of sins, from armed robbery to shoplifting, and in ancient Near Eastern systems it was even wider, covering kidnapping, fraud, receiving stolen goods, and even the innocent possession of stolen goods. For the most serious forms such as kidnapping (for sale into slavery) of a free person (CH 14) or theft of temple property (CH 6), the appropriate revenge was death, and ransom would have been a matter of free bargaining. For theft of movables that turned out to be temple property, a limit of thirty-fold payment by way of ransom is imposed, but the small likelihood of the thief being able to pay leads CH 8 to mention expressly that the alternative is death. CH 9-12 also suggests that simple theft of movables was liable to a ten-fold payment or death,25 and the Edict of Ammi-aduqa 7 lays down death as the alternative to a six-fold payment for fraud connected with the cancellation of debts, but in practice most cases of theft may have been punished by lower payments, multiples of five or less or fixed sums, and, we have suggested, by revenge in the form of enslavement to the victim of the culprit or his family.26 The latter is thus very close to debt-slavery, albeit not identical. In the same way, we suggest that ziz 2 .da and ki tum both refer to a type of penalty, but one which possessed this dual aspect: revenge or fixed ransom. It was imposed by the courts on a particular range of offenses, mainly in the realm of theft, where revenge was limited to enslavement. The process is illustrated by a reexamination of CH 117, where a man “seized by a debt” gives his family ana kaspim or ana ki tim to the purchaser or k iu. The phrase ana ki tim does not mean that they are given “into servitude” any more than he gives them “into silver”; reference is to the grounds of the enslavement, namely a type of penalty. The victim of a petty offense is entitled to a fixed ransom under the penalty of ki tum. The culprit, however, is unable to pay the ransom. Unpaid ran25 Westbrook 1988d: 114-15, 123. 26 Westbrook 1988d: 113-28, esp. 121-26. Cf. Petschow 1986: 41-66.

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som is no less a debt than one based on a loan; it arises ex delicto rather than ex contractu. The judgment-creditor is therefore entitled to his alternative under the penalty of ki tum, namely revenge in the form of enslavement. It is in the light of this system of alternatives that we would interpret the famous “polyandry” clause of the Edict of Uru-inimgina (Sollberger Corpus Ukg. 6 iii 20'-24'): “the women of former times had two men; the women of today, its zi z 2 . da is dropped.” The first man was her father or husband; the second, a judgment-creditor to whom the first had been obliged to hand her over in lieu of payment of ransom for a crime.27 In the documents of practice involving zi z 2 .d a , the amounts payable are relatively small. In MVN 3 219, it is four-fold the stolen property, amounting to a mere seven shekels. Moreover, the offense itself carries no serious moral culpability, being the innocent receipt of stolen goods. In SNATBM 373 the payment levied on the owner of the dishonest slave appears to be only two-fold, and although the document is not clear, it is possible that there is a call by the steward of the slave’s owner for a more serious punishment (on the slave?) involving adjudication by the en s i, which is referred to as a  e r 7 .d a ( rtu). In OIP 14 76 the offense is not stated, but the payment is fifteen shekels, while in Sigrist Messenger Texts 190, the amount of the payment is omitted, but the offense amounted to the misappropriation of one kor (300 liters) of grain. The pattern revealed by this admittedly small sample is thus one of petty theft or related offenses and of relatively low payments by way of sanction. It is appropriate to ransom in lieu of a low level of revenge, namely enslavement, as found in the context of ki tum. By the same token, the highest sum mentioned in connection with ki tum is twenty shekels. Enslavement by way of revenge could be the primary penalty imposed by the court, in which case the ransom would be a matter of free bargaining between the parties, or it could be the alternative to a fixed ransom. Within this schema there are further alternatives. The enslavement could be of the culprit or vicariously of members of his family. The fixed ransom could be a multiple of the thing stolen, a slave, their equivalent in silver or 27 I am obliged to my colleague Professor Jerrold Cooper for pointing out to me this interpretation as the logical consequence of my own thesis.

238 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources a fixed sum in silver. In free bargaining, further possibilities are open to the parties, such as sale of a slave or member of the family or item of property. It is not surprising then that the documents of practice show a wide variety of arrangements in respect of ki tum, and that it sometimes is equated with payment rather than servitude. The documents are difficult and obscure, but those that bear interpretation yield five categories. 1. The court hands the culprit over to the victim ana ki tim (UCP 10/1 107; cf. UCP 10/1 91: 9-10, K, verb ka u). This would appear to be direct revenge in the form of enslavement. There is no mention of payment—ransom may possibly have been available only by free bargaining. 2. In two cases (TIM 5 62; VAS 8 26), a surety guarantees the appearance of a debtor by a certain date. If the debtor fails to appear, the surety must pay a fixed sum referred to as the ki tum of the debtor. As the document is concerned with a later stage, no details are furnished of the circumstances causing the debt, but we surmise that it was a fixed ransom which if unpaid would entitle the judgment-creditor to enslave the culprit by way of revenge. In VAS 8 26 the creditor is cheated of this opportunity by a third party who abducts the debtor. The surety in fact guarantees the abductor’s production of the abducted debtor. 3. A sum in silver paid by the culprit is referred to with the term ki tum (YOS 8 53). In our view, this is because it is ransom, representing the value to the culprit of not being enslaved. In a lawsuit concerning possession of missing oxen, a payment of one ox is made, referred to as the ki tum of one of the culprits (TCL 1 164). 4. A slave is given by the culprit to the victim ana ki tim (TLB 1 243). If the slave was regarded as a means of payment, then this is ransom to avoid enslavement of the culprit or his family; if as a family member, then it is revenge, and payment of the appropriate ransom could theoretically redeem the slave at a later date. In Boyer Contribution 122, a slave-girl taken ina

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hi tim is to be redeemed for five shekels, while in AbB 8 100 a girl serving in the house of a merchant for ten shekels writes to her “brother and master” that “the ki tum of the merchant has power over me”28 and claims that two shekels will be enough to release her. 5. A slave or family member is sold. In the Sargonic text MVN 3 102 the sale of a daughter for ten and one-third shekels is noted at the end of the document as a ki tum. This is paralleled in the Old Babylonian period by CT 45 14, where five and a half shekels are the price paid for the sale of a child, and by JCS 9 114 no. 84, where a priest buys a slave-girl for a sum unspecified but noted as the full price, in both cases ana ki t PN, whose identity is unclear. Possibly these are bargains designed to avoid enslavement of the head of household. The obvious question is why these slaves were not given directly into servitude as in TLB 1 243. Before answering that question, it is necessary to examine the relationship between debt, sale, and ki tum. Sale is not always final. If the sale was in fact no more than the foreclosing of a debt, i.e., when the “price” of family property such as land or family members was the debt owed, then it could be tempered by the right to redeem by paying that debt.29 Enslavement for ki tum, as we have seen, is inherently subject to redemption. If the debtor lacks the means to pay, however, redemption remains a hollow right. Consequently, the court sometimes intervened to prevent the loss of family members by setting a limit on the time that they need serve the creditor/purchaser. In CH 117, 28 Lines 11-13. Cagni’s transliteration reads: k i -i  - a - [a ] t/d am . g ar 3 - r i x x m a a - r i - u / i -b e 2 -l a - an -n i, evidently seeing more in 1ine 12 than is shown on the copy in TIM 2 100. His translation—“Es ist schuldhaft, mein Gläubiger hält mich”— relies on an otherwise unattested stative use of ka u. We take kiat to be a normal status constructus and restore d am . g ar 3 - ri-[im/ia]. 29 See Westbrook 1985b. For persons, CH 119 provides a clear example of the right to buy back a member of the family (in that case a slave who is deemed a family member) for the same price as that at which she was sold under the constraint of debt, i.e., in fact the amount of the debt.

240 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources where a man “seized by a debt” is forced to give his family ana kaspim (i.e., by way of sale) or ana ki tim, they are to be released after three years. It is thus a case where redemption was in principle available after sale as after enslavement for ki tum but has failed as a remedy. In paragraph 20 of the Edict of Ammi-aduqa a different solution is provided for the same situation: immediate release and by implication cancellation of the underlying debt, whether ex contractu or ex delicto. The cancellation of debts ex delicto in a debt-release decree, earlier identified by us in a Hittite edict, thus has two counterparts in Mesopotamia: this paragraph and the Edict of Uru-inimgina (Ukg. 6 iii 20'-24', which effects the release of a woman from her second man (in our interpretation, the judgment-creditor) by a cancellation of the zi z 2 .d a .30 Ammi-aduqa 20 extends the range of possibilities in CH 117 to include the debtor himself and a further transaction, mazzaz n tu, antichretic pledge.31 In mazzaz n tu, the persons handed over served the creditor by way of interest until the debtor repaid the loan. As with ki tum, therefore, it was inherently subject to redemption, but that right was illusory when it had been transacted because the debtor could not repay an existing loan that had fallen due. Under certain circumstances, slaves may be regarded as family members for the purposes of release or redemption, but Ammi-aduqa 21 expressly excludes slaves given ana ki tim. CH 118 contains an enigmatic clause allowing the creditor to sell a slave given ana ki tim after an unspecified time has passed. The status of slavery has two aspects: the loss of personal freedom, as a result of which the slave must serve his master, and the quality of a chattel, as a result of which ownership in the slave may be freely transferred. We tentatively suggest (in the absence of direct evidence) that servile conditions arising from ki tim, mazzaz n tum, and nepûtum were less than full slavery because only the first aspect applied; they had to serve the creditor but were inalienable.32 This would explain, for example, 30 Westbrook and Woodard 1990: 642-43 (col. II), 654-56. 31 On the nature of the mazzaz n tu contract, see Eichler 1973: 47-88. 32 A Mari letter, ARM 14 47, combines nipûtum with ki tum, using the otherwise unattested D-stem of ka u: nipûssu ana ekallim likai. It is a threat made with respect to any carpenter sent to the palace who deserts on the way. The expression, although curious, is not altogether illogical: this is a crime where by definition the criminal is

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why conditions of nepûtum were so harsh:33 the creditor could not realize his capital by selling the distrainee; he could only extract labor from him or put pressure on the debtor by harsh conditions. A slave given ana ki tim, however, is already a marketable commodity. CH 118 may therefore refer to a rule whereby slaves given for that purpose benefited only temporarily from the rights of family members; if not redeemed after an interval (of three years?), the restrictions of ki tum ceased, and they were treated as ordinary slaves, at least as far as alienation was concerned.34 In the light of this tentative theory, we could offer an equally tentative explanation of the contracts of sale of persons in the context of ki tum discussed above. The reason may have been the creditor’s desire to overcome the limitations of ki tum and to have immediately full, alienable slaves in satisfaction of the debt. But the underlying basis of the sale, a debt ex delicto, was noted, so as to preserve (at least temporarily) the right of redemption in the seller. To summarize: the legal terms zi z 2 .d a and ki tum were listed as lexical equivalents because they both signified punishment for a category of petty offenses. That punishment, however, had two aspects, ransom and revenge. In the extant sources, the Sumerian term mostly reflects the ransom aspect, in the form of payment, while the Akkadian term for the most part reflects the revenge aspect, in the form of servitude.

unavailable for punishment. Enslavement of his family therefore serves both as vicarious punishment (ki tum) and as a means of pressure upon him to secure his appearance (nipûtum). For a discussion of the text, see Finet 1978: 12-18. 33 In both CE 23-24 and CH 116, nipûtum serves as the model for discussing the death of a servant through brutal treatment by the master. 34 Alienation still need not have affected the right of redemption, since they could always be purchased subject to existing rights.

16 The Enforcement of Morals in Mesopotamian Law Abstract The article examines three cuneiform sources from different periods and reinterprets two of them in the light of the third by showing the underlying legal principle common to them. The principle involved is the intervention of public authorities to restrain certain extra-marital liaisons by husbands when considered contras bonos mores.

A

dultery is an offense severely punished in the Mesopotamian law codes,1 but it is one defined soley in terms of the extra-marital relations of the wife. The male partner commits adultery only inasmuch as he is the paramour of a married woman: his marital status is not considered of any significance. The contingency of a married man having relations with an unattached woman is not dealt with in the codes in the context of adultery, and would not seem to constitute a marital offense or even grounds for divorce. The few private legal documents relating to adultery follow the same pattern: they concern the relationship of a married woman with a paramour of undefined marital status.2 This is not to say that a married man in Mesopotamia could with impunity engage in extra-marital relationships. Intercourse with an unmarried

* Originally published in the Journal of the American Oriental Society 104 (1984): 75356. Copyright © American Oriental Society. Used by permission. * For comments and criticisms, I am grateful to Professors C. Wilcke, O. Gurney, and R. Kutscher, and especially to Mr. C. Locher of the Phil.-Theol. Hochschule St. Georgen, Frankfurt, who first brought the text BM 13912 to my attention. Responsibility for the opinions expressed is, of course, entirely my own. 1 CU 4, CE 28, CH 129, MAL A 12-16, 23. 2 UET 5 203; editions in Van Dijk 1959: 12-14; 1963: 70-77; Greengus 1969-70: 33-44.

244 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources woman could lead to claims against the seducer by her father, but this again was irrespective of the seducer’s marital status.3 There is, on the other hand, some evidence that certain casual sexual relationships which were otherwise perfectly permissible, were considered not proper for a married man, and steps were taken to prevent him from continuing in them. This is the import of paragraph 30 of Codex Lipit-lshtar (CL): If a prostitute from the street holds a young married man4 and the judges forbid him to return to that prostitute, (if) after that he divorces his wife, (even) if he has paid divorce money, he shall not marry that prostitute. The authorities intervene twice to bar what are in themselves perfectly legitimate actions. A married man apparently commits no offense by consorting with a prostitute,5 but the authorities make a specific order forbidding its repetition with that particular woman, and the man will presumably be punished if he disobeys that order. The second act, marriage following divorce, is also legitimate in normal circumstances but is here prevented and possibly even rendered void by a specific order. The married status of the man is therefore the crucial factor in the attitude of the law towards his actions. 3 YBC 2177 paras. 7-8, MAL A 55-56 (although it affects the type of punishment inflicted); cf. CE 31, CU 5. 4 Col. xvii 50-53: t u k u m -b i g u ru  -d a m - tu k u k ark id -d è ti l la 2 -a in tu k u - àm . Edition by Civil (1968: 2) who translates: “If a married man joined a prostitute from the street . . .” (see also Wilcke 1973: 161). Strict grammar, however, requires the prostitute to be considered as the subject of this clause, even though it makes the content of her action yet more obscure. The verb tu k u is used again twice in this same law with the man as the subject, but if we accept the meaning “marry” in those two cases, the same translation cannot apply when the prostitute is the subject. Wilcke’s translation, with the man as the subject, suggests a sexual relationship (as one would expect), but it seems unlikely that a woman, even a prostitute, could “take” a man sexually. The other known lexical equivalent, raû “to possess,” does not seem any more appropriate. We tentatively suggest, therefore, that in this context the verb has the same meaning as kalûm “to hold” in BM 13912, to be discussed next. See notes 10 and 21 below. 5 In CL 27 it is considered perfectly legitimate for a married man to have a child by a prostitute.

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A word of explanation needs to be added about the phrase “young married man” (g u r u-d am -t u k u ). This is not a special law protecting newlyweds. Rather, it refers to a man who has not yet had children of his marriage and in our view is not mentioned in order to limit the law to that class of person, but because the practicalities of divorce make him the most likely candidate for application of the apodosis of this casuistic law to the concrete situation described. There is a general rule, as evidenced by CE 59 and CH 137, that once children have been born of a marriage, the husband cannot divorce his wife (without grounds) except upon forfeit of all his property and even, in certain circumstances, expulsion from the matrimonial home.6 Prior to the birth of offspring, however, the penalty for divorce without grounds by the husband is merely a limited sum by way of compensation to the wife.7 In the law under discussion, therefore, only a married man without children could seriously contemplate the tactic described to avoid the effects of the prohibition on him—i.e., to divorce his wife and marry the prostitute. The point of the law is that this prima facie legal procedure will not be allowed, even though the wife has been fully indemnified. The purpose of the law is therefore not to protect the rights of individuals (except indirectly), but to uphold certain standards of morality.8 A practical example of the judicial prohibition mentioned in the protasis to the law is found in the OB text BM 13912, published and edited by Anbar.9 1-5 In the matter of Auni son of Ilu-ibbi, at-Marduk swore the oath of King Samsu-iluna thus, saying: 5-6 “As for Auni son of Ilu-ibbi, I do not hold10 him, I am not sworn to him.

6 This question is discussed in detail in chapter four of the author’s doctoral dissertation (Westbrook 1982a; since published as Westbrook 1988b). 7 CH 138-140. 8 “die gute Sitte” as Wilcke puts it (1973: 162). 9 RA 69 120-125; edition in Anbar 1975. 10 Verb kalûm. We would suggest that this represents the counterpart to the second phrase of this couplet (“I am not sworn to him”) and therefore means that the woman does not hold the man to performance of his oath. The use of kalûm in this sense is not

246 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 7-9 He shall not again propose sexual relations to me; he shall not kiss my lips; I will not accord him sexual relations. 10-12 If he calls me for lying in the lap, I will verily inform the city elders and the mayor, 13-15 If I am seen 11 in (his) company, let them treat me as if I had disregarded the oath of the king.” 16-18 And Auni son of Ilu-ibbi swore the oath of King Samsuiluna thus, saying: 19-21 “I shall indeed not go to at-Marduk and propose sexual relations to her.” 22-29 Witnesses. 30-33 Date. Anbar considers the text to record a public agreement between husband and wife to a legal separation.12 There are, however, a number of objections to this interpretation. Firstly, it is nowhere stated that the man and woman involved are husband and wife. The relations from which they are to abstain, translated by Anbar as both “relations conjugales”13 and “relations intimes,”14 are simply “those of a man and woman,” (a n i t a ù mu n u s). In the lexical lists, where this phrase is also found,15 its purpose is to explain that the verb lamdu is being used in the sense of “to have sexual intercourse,” (as opposed to acquiring knowledge). The verb lamdu, in turn, is by no means confined to sexual intercourse in the context of marriage.16 Secondly, the agreement is exclusively concerned with the sexual aspect of the couple’s relationship, to the neglect of aspects that are vital from the point of view of marriage, such as matrimonial property, subsistence of the wife and the matrimonial home. If Anbar’s assumption is

11 12 13 14 15 16

attested by the dictionaries but would not conflict with the basic meaning of the verb. On the content of these mutual oaths, see note 21. Literally: “they see me.” Impersonal form of 3rd plural. Anbar 1975: 125. Anbar 1975: translation to lines 7, 9, and 21. Anbar 1975: 125. CT 12 29 iv 5, Nabnitu A 274-275. See CAD L 53a. See, e.g., CH 154-156.

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accepted that this separation involved the husband leaving the wife,17 then such matters would have to be regulated no less than they are in the extant divorce settlements.18 Instead, intimate details of sexual conduct are given, such as are never found in any cuneiform legal source on marriage, whether laws, contracts, or litigation. Finally, the idea of a legal separation falling short of divorce is otherwise unattested in cuneiform sources, and its purpose is difficult to see in a system which admits of divorce by the unilateral act of one of the parties. Anbar suggests economic advantages in remaining married but does not state what they might be or to whom they would redound.19 In short, a judicial separation is an alien concept, express reference to which would need to be found in the cuneiform sources before it could be applied to this context. On the other hand, the roles of the man, the woman, and the authorities fit neatly into the situation described in CL 30. The mutual oaths have clearly been imposed upon the man and woman by the mayor and elders of the city, or some other authority (such as the ward or the judges) in the same line of hierarchy. They amount to a prohibition on the man against continuing to consort with the woman. Although she renders a more detailed oath, this is because she is being called upon to police the enforcement of the prohibition.20 She is obviously someone with whom the authorities have sufficient leverage to be able to force her to act as informer on matters of the utmost intimacy—a position that one can readily ascribe to a public prostitute. It is reasonable to suppose therefore that the background to the prohibition was the unseemly association of a married man with a prostitute.21 17 Anbar 1975: 123, note to line 7. 18 Meissner BAP 91, NCBT 1900, VAS 8 9-11, VAS 18 1. See Westbrook 1982a: chapter 4, I pt. 3. 19 Anbar 1975: 125. 20 This answers Edzard’s comment (1976): “Bemerkenswert ist, dass der Eid auch den Nichtvollzug einer Handlung durch die Gegenseite (Z. 7 l iqabbi’amma) beschwört” (apud Anbar 1978: 137 ad 120-123, no. 8). 21 The possibility of the man marrying the prostitute as in CL 30 is hinted at in lines 5-6. The prostitute opens her statement with a denial of the existence (or perhaps rather a repudiation) of mutual oaths between herself and the man (see note 10 above). We would tentatively suggest that these were promissory oaths to marry, i.e., a betrothal

248 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The missing element in the above source is the cuckolded wife, which leaves some doubt as to whether the man was in fact married (although it is less evident why he should be prohibited from consorting with a prostitute if he were not). This missing element is, however, supplied by a third text—a text that also provides evidence of the survival of this system in a later period. UET 7 8, a document from the Kassite period, has recently been edited by both Gurney22 and Wilcke.23 They offer radically different interpretations. According to Gurney, a married man (H) frequents the house of a certain woman (X) and in consequence his wife (W) leaves him. H, hoping for a reconciliation, blames X on the ground that she has locked him in. His brother brings X before the judge. On being asked why she acted in this way, X promises never to see H again.24 Wilcke, on the other hand, explains the case as follows: X has distrained W for a debt of H and forced H to divorce her in lieu of payment. Then H enters into sexual relations with X (without actually marrying her), but his brother obtains a court order to terminate the relationship. Wilcke in fact mentions in this context the prohibition in CL 30.25 We disagree with both these interpretations, while accepting that there are valid elements in each of them, and translate as follows: 1-3 Sin-erimanni, son of Sin-rimanni, married the daughter of Gula-ere, the herdsman of the governor, and 4-5 Ilatu daughter of Arkaya held her (?)26 for napartu,27 and

22 23 24 25 26

27

contract. This would be a stage prior to inchoate marriage (see Westbrook 1982a: chapter 1), and where the bride was sui iuris, the parties would be herself and the groom. Had the prostitute in CL 30 obtained such an oath? See the discussion of tu k u in note 4 above. Gurney 1982: 91-94. Wilcke 1980: 138-40. Gurney 1982: 93-94. Wilcke 1980: 138. ik-la-i!-ma. In spite of his copy, Gurney read ik-la-u-ma “held him,” making the husband the object of the prostitute’s action. In a private communication, he has informed me that he now considers the original reading i to be the correct one. The meaning of napartu is unknown. Wilcke translates “distrained her for redemption” (zwecks Auslösung), presumably on the basis of the verb paru “to redeem.” But it is unlikely in terms of legal logic that redemption would be given as the purpose of

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6 caused him to divorce his wife, and 7-9 his brother, Sin-bel-tabini, brought Ilatu before Sin-apikzeri, the judge, and 9-11 said: “She caused Sin-erimanni, my brother, to get divorced.” 11-14 The judge questioned Ilatu, and said: “Why did you cause Sin-erimanni the herdsman to divorce?” 14-15 Ilatu heard the word of the judge, and 16-20 said: “Sin-erimanni, the servant of my lord, has been having intercourse with me28 until now; now that my lord has questioned me, he shall not cross my bed-post.”29 20-26 If Sin-erimanni again enters the house of Ilatu, whether passing the day for rest or passing the night, he will be arrested, examined, and questioned, in accordance with the order to Sin-apik-zeri. 27-30 Witnesses. 31-33 Date. 34 Finger-nail of Bana-a-eri instead of his seal.

distraint by the creditor. Redemption may be the essential motive of the person repaying the debt, but for the creditor it is a mere side-effect of repayment and not the only possible outcome of distraint. The purpose of the creditor in distraining is rather to ensure satisfaction of his debt, either by forcing repayment or by selling or using the security to obtain the equivalent value. Gurney tentatively suggests “for cohabitation,” citing the term napartu which in Hittite texts refers to a special kind of royal concubine. (This will not apply if the object of the verb is a woman.) We would note that the verb used in the present context, “to hold” (kalû) is found also to describe the prostitute’s actions in our second text, BM 13912 (line 6), where we have interpreted it as meaning to hold someone to performance of a promissory oath. But we would expect the husband to be the object of the verb as in BM 13912, CL 30, and in fact the following clause of the present text. 28 Literally: “has been taking me . . . .” Our study of the verb ahzum (Westbrook 1982a: chapter one) shows the verb not to have had a purely sexual meaning in OB sources, but that strict OB use of marriage terminology broke down in subsequent periods. It is thus perfectly possible in an MB document, as the context shows, for the verb to mean “to marry” in line 3, and in the t-form in line 17: “to have (regularly) sexual intercourse.” 29 Literally: “the edges of my bed.”

250 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources In our view, although certain circumstances recorded in the opening lines are obscure, this case is on a similar pattern to CL 30 and reflects the same thinking. A married man is seduced by another woman and in consequence divorces his wife. There appears not to have been a judicial prohibition on his conduct prior to the divorce: indeed, it is probably because of that omission that he is able to continue cohabiting with the woman. The facts, however, are then brought to the attention of the court and a judicial prohibition is imposed, not only on marriage but even on cohabitation. As in our second document, BM 13912, the woman is obliged to ensure enforcement of the prohibition. It is not stated that the woman is a prostitute, but the fact that H continued to cohabit with her without marrying her is suggestive of that status, as is perhaps the explicit nature of the woman’s statement to the court on her relations with him. A final point of interest is that it is not the injured wife but the brother who brings the philandering husband to court, possibly to forestall marriage with the other woman. Perhaps, Wilcke surmises, the brother’s interest is to preserve the good name of the family.30

30 Wilcke 1980: 138.

17 A Matter of Life and Death Abstract Taking the expression—“he shall die; he shall not live”—in Codex Eshnunna as its starting point, this article examines various uses of similar expressions in ancient Near Eastern texts. The conclusion is that such wording can carry one of three connotations: a king’s right to pardon or not to pardon someone; the state’s right to enact summary justice; or the right of a private citizen to enact summary justice. The provisions in question from CE fit within the third category.

his study is in direct response to a recent article by Reuven Yaron.1 It gives me particular pleasure to disagree with Professor Yaron in this instance, because, if I succeed in refuting his argument, I only succeed in proving him correct. The phrase “shall die; shall not live” (imât ul iballu) occurs three times in Codex Eshnunna as the punishment for a crime.

T

12 A man who is seized in the field of an ordinary citizen in the sheaves at midday shall pay 10 shekels of silver. He who is seized in the sheaves at night: he shall die; he shall not live. 13 A man who is seized in the house of an ordinary citizen in the house at midday shall pay 10 shekels of silver. He who is seized in the house at night: he shall die; he shall not live. 28 . . . If he makes the contract and libation with her father and mother and marries her, she is a wife. The day she is seized in the lap of a man she shall die; she shall not live. * Originally published in the Journal of the Ancient Near Eastern Society 25 (1997): 6170. Used by permission. 1 Yaron 1993b.

252 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Szlechter suggested a dual meaning: that the death penalty was mandatory and that the victim was entitled to kill the offender on the spot.2 Ambiguity being incompatible with law, however, only one of the two is possible. Yaron originally opted for immediate retribution, on the grounds that it was legally the most appropriate solution,3 but subsequently revised his view because he could see no connection between the language of the phrase and the idea of immediate retribution by the aggrieved party.4 He concluded that the phrase was without special legal significance. The dual formulation was legally redundant, a rhetorical device serving merely as emphasis. His most recent article attempts to support that conclusion by examining use of the same phrase in non-legal contexts and demonstrating that it has the same function, or rather lack of one, as in the law code. It is my opinion that Yaron’s original proposal is the correct one. His misgivings, however, were fully justified in that other commentators, including this author, had failed to pay sufficient attention to the connection between idiom and legal meaning. A legal idiom can only be understood if we can visualize the image of the law that it is intended to represent. The purpose of the present study is to address those misgivings by reviewing the relationship between legal and non-legal meaning and reexamining the legal function of this particular phrase both in its individual parts and in its duality. Our findings will then be applied to Codex Eshnunna, to demonstrate the connection between the phrase and our legal interpretation of the paragraphs in which it occurs.

Legal Evidence Before entering into a discussion of the idiom, it is worth reviewing the evidence in favor of interpreting CE 12, 13, and 28 as allowing the aggrieved party the right to kill the culprit on the spot. All three paragraphs concern cases of seizure in flagranti delicto, using the same terminology (iabtu). Furthermore, the two situations described therein are familiar from the many parallels in laws not only from the ancient Near East but 2 Szlechter 1954: 110-11. 3 Yaron 1969: 173. 4 Yaron 1988b: 259-62.

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also from Greece and Rome. The first is the burglar caught at night, and the second is the wife caught in adultery. All the sources have the same common feature—the culprit is caught in flagranti delicto—and offer the same legal solution: the victim is entitled to kill the culprit on the spot without trial and is not liable for murder. The case of the burglar is found in three sources. Exod 22:1 reads: “If the thief is caught breaking in and is struck dead, he has no blood. If the sun has risen on him, he has blood. He shall surely pay. If he cannot, he shall be sold for his theft.” The laws of Solon are recorded as having had the following provision: “For a theft in daytime of more than 50 drachmas, a man might be arrested summarily and put into custody of the Eleven. If he stole anything, however small, by night, the person aggrieved might lawfully pursue and kill or wound him, or else put him into the hands of the Eleven, at his own option.”5 Finally the Roman Twelve Tables include the provision (VIII 12-13 [= I, 17-18 in Crawford 1996]): “If he commits theft by night, if he kills him, he is lawfully slain. By daylight . . . if he defends himself with a weapon . . . having called for help.” In all three the distinction is made between seizure by day, when the victim is not entitled to kill the burglar but only to claim the normal penalties for theft, and seizure by night, when he can kill with impunity. The case of adultery is found in the Hittite Laws 197: “. . . if the husband finds them (the adulterers) and kills them, there is no liability upon him.” The same principle is possibly to be found in the Middle Assyrian Laws A 15, a difficult text that I would translate as follows: “If a man seizes a man with his wife (and if) it has been established and proved with respect to him: (on condition that) both are killed, there is no liability upon him.”6 The same right of the husband in early Roman law is described by Aulus Gellius, quoting M. Cato, as follows: “If you should take your wife in adultery, you may with impunity kill her without trial.”7 In my view, these parallels are no accident. The two cases are scholastic legal problems from Mesopotamian scribal schools, part of a body of learning that spread across the ancient Near East and even found its way

5 Demosthenes, In Timocratem 113. 6 See further Westbrook 1990b: 551-54. 7 . . . sine iudicio inpune necares (Gell. NA 10.23.5).

254 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources into the Mediterranean countries.8 In a sense, it is the Eshnunna provisions that provide the connection between all the parallels. An outside observer may note that the parallels all happen to have the same special legal solution to two different cases; the Eshnunna laws self-consciously link those two different cases through use of the same special terminology for their legal solution. On the other hand, as Yaron has shown, the alternative proposal of a mandatory death penalty makes little sense in terms of the severity of the offense, especially since adultery is assumed by other cuneiform codes to be pardonable.9 The starting point for any philological investigation should therefore be the presumption raised by legal logic, by their terminological connection, and by strong external parallels that these three laws in their apodosis condone immediate, private retribution. Yaron’s present solution, that they impose the death penalty, pure and simple, is legally unobjectionable but raises the far less attractive presumption that they are an anomaly among parallel provisions.

Legal Phrases Technical legal phrases originate either within a legal system or as lay terms which acquire a special nuance in a legal context. The latter are especially common in ancient Near Eastern languages, and the relationship between lay and legal meaning can be complex. Although the search for the meaning of a legal term will always begin with its literal meaning, it will often end in a totally different semantic sphere. For a legal meaning may not only restrict or nuance the literal meaning of a term, as might be expected of any specialized use; it may subvert that meaning altogether. For example, the Akkadian term ez bu means “to leave, abandon”; literally, it refers to physical motion by the subject away from the object, which would normally be stationary. As a technical legal term in the context of marriage, it means “to divorce.” The connection between leaving and divorce might seem obvious, except that divorce was achieved in the 8 See Westbrook 1988a. 9 Yaron 1969: 173.

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legal systems that used this term not by physical motion but by the pronouncement of verba solemnia. Where a husband divorced his wife, at least, it was not he but the wife, the object of the verb ez bu, who physically left the matrimonial home.10 The legal meaning of the term is thus the opposite of its literal meaning, a paradox expressed by MAL A 37: “If a man will divorce (literally: ‘leave’) his wife, . . . she shall go out empty.” A legal context thus provides a new set of clothes, so to speak, for the naked phrase. Those clothes are invisible, insofar as there is no morphological change in the phrase, but they nonetheless make a very real difference in the way the phrase is read, because they allow it to have a different function, namely, to describe not a physical phenomenon but the application of certain legal rules.

The Parts of the Dual Formula Yaron avers that the sum of “shall die; shall not live” expresses no more than its parts because the latter are synonymous.11 In terms of the lay meaning of the phrase, this is perfectly correct. “Shall die” is a prediction of a future change of physical state. “Shall not live” predicts exactly the same change. It adds no new information; it is superfluous. The same is not true of the legal meaning. That meaning becomes evident once it is realized that the phrase under discussion is merely a variant of a much more common phrase using the same verbs. It was Yaron himself who established the connection over thirty years ago in a seminal article that curiously has not been cited in discussions of the Eshnunna provisions.12 Yaron pointed out that in the Latin phrase vitae necisque potestas, “power of life and putting to death,” the second part referred to a judicial death sentence and the first to a judge’s power of pardon. By way of evidence for this proposition, Yaron adduced sources from the ancient Near

10 In CAD E 416-17, under meaning 1. a) 1' (“to abandon, to desert . . . persons”), in fact there are many passages where the term should be translated “divorce.” Cf. the Hebrew term l, “send away,” which is more faithful to reality. 11 Yaron 1993b: 144ff. 12 Yaron 1962b: 243-51.

256 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources East. Thus in HL 187 a man found guilty of bestiality is brought to the gate of the palace and “the king may kill him; the king may cause him to live.” In Dan 5:19 Nebuchadnezzar’s power is described as follows: “Whom he wished, he would kill; whom he wished, he would make live; whom he wished, he would raise up; and whom he wished, he would bring down.” Finally, a letter to king Assurbanipal makes explicit the judicial nature of the king’s actions: “He for whose crime death had been ordered, my lord the king has made live; they who have been prisoner for many years, you have redeemed.”13 The dual formulation in these sources was explained by Yaron as follows: The first part of the formula “power to put to death” implies a tendency to concentrate jurisdiction in the hands of the king, at least as far as capital cases are concerned. In this connection it ought to be noted that in texts like the Hittite laws, the vassal treaties of Esarhaddon, and also in Daniel . . . the “power to put to death” is not arbitrary. The king decrees the death of him who has committed a capital crime; he is not given power to decree the death of a law-abiding subject. . . .The second part of the notion, “the power to keep alive,” means that the king, in his discretion, is entitled to prefer mercy to strict justice, to grant pardon if he so pleases.14 In the light of Yaron’s exposition, we may conclude that “to kill” ceases to be a physical act where the subject of the verb is a court or a sovereign acting in his judicial capacity. It refers rather to its imposition of the death sentence. In the same circumstances, the intransitive form “shall die” also refers to the death sentence, but from the condemned man’s point of view; it is a normative statement, asserting that a person ought to be put to death. It informs us that he is guilty of a crime and of the sentence applicable to that crime. The formula “shall not live,” however, does not contain the same information. It refers to a separate judicial process, that of pardon, which, although it may on occasion be coterminous with condemnation or sen13 ABL 2, lines 21-24; edition in Waterman 1930: no. 2. 14 Yaron 1962b: 248.

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tencing, is in principle independent thereof. The formula negates the possibility of pardon where a sentence of death is applicable or has been imposed. This interpretation was espoused by Yaron in his article on vitae necisque potestas with regard to a passage in a letter to king Esarhaddon: “the writer, who committed a grave offense and had been pardoned, profusely thanks the king: ‘Great sins against the house of my lords I have committed; . . . I (deserved) to be killed, not to be kept alive.’”15 In his most recent article, however, Yaron cites the same passage as attesting to the meaninglessness of the dual formulation: “The double phrase implies no addition to the substantive import, only a desire to impress, a wish to be taken seriously.”16 This may well have been the desire of the writer in question, but there remains a substantive difference between deserving justice and not deserving mercy.

Legal Death Where a phrase functions as a legal idiom, it takes effect within the confines of a world created by legal rules. Unless the logic of that legal world is taken into consideration, it may be difficult to connect the phrase with its context; indeed, a literal translation may produce bizarre results. The dual formula that we are considering can only work outside the legal sphere in the hands of a divine ruler. According to 1 Sam 2:6: “The LORD puts to death and makes live; he brings down to the Netherworld and he brings up.” Mere mortals can achieve the same, but only within the world of their own creation: the artificial world of legal rules. Consider the following law in Deut 17:6: “The dead man shall be put to death on the word of two or three witnesses; he shall not be put to death on the word of one witness.” The apparent absurdity of my literal translation disappears once we realize that it is legal death that is in issue.17 A man who has been found guilty of 15 Yaron 1962b: 246; ABL 620 (edition in Waterman 1930: no. 620). 16 Yaron 1993b: 145. 17 Standard translations typically ignore the word “dead man” (m t) in the Hebrew text, even though the Septuagint tries to take account of it (apothn skn: “dying man”).

258 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources a capital offense is deemed dead in the eyes of the law; his physical death must await his execution, which is not a foregone conclusion. For, as the prophet Ezekiel puts it (Ezek 18:32): “‘I do not desire the death of the dead,’ says the Lord GOD, ‘so repent and live.’” A letter to king Assurbanipal from one of his officers begins by reporting success in a minor skirmish, but it then emerges that the officer is in disgrace due to an earlier military disaster:18 Since Birat was sacked and its gods carried off, I am dead (mtu an ku). Had I but seen the golden ring of my lord the king, I would live (abtalu). But behold, when I sent my messenger to my lord the king, I did not see the ring of my lord the king and I did not live (ul ablu). I am dead (mtu an ku); let my lord the king not forsake me! Clearly, the death in question is figurative, referring to the officer’s disgrace. The king has punished him in some way, and the officer seeks a reversal of that order. There is hyperbole in the officer’s statement in that he compares his punishment to a death sentence, but the principle is not affected. The sequence of events narrated is: 1) punishment, 2) petition for remission of punishment (messenger, see the king’s ring), and 3) rejection of petition (not see the king’s ring). “Dead” refers to the original punishment, whereas “live” and “not live” refer to the petition and its failure. Of course, as a result of that failure, the officer remains in his previous status; hence repetition of the term “dead.” In Isa 38:1 (= 2 Kgs 20:1) King Hezekiah falls seriously ill. God informs him through the prophet Isaiah: “Put your house in order, for you are dead, and you shall not live.” As in the letter of the Assyrian officer, “dead” refers to Hezekiah’s status as a condemned man. Sickness was regarded in the ancient Near East as, inter alia, divine punishment for sin,

See, for example, “the death sentence shall be executed” (Oxford Bible); “a person shall be put to death” (JPS); “on ne pourra être condamné à mort” (Bible de Jérusalem). It should be noted that the Hebrew root mt* meaning “man” is not attested in the singular. 18 ABL 259; edition in Pfeiffer 1935: 22 (reverse lines 1-10).

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and a mortal illness was therefore a death sentence.19 “You are dead” thus means that Hezekiah has been found guilty of a capital sin by the divine judge; “You shall not live” means that he can expect no mercy. Hezekiah, however, refuses to take God at his word and begs for mercy (vv. 2-3), with the result that God eventually relents somewhat and grants Hezekiah another fifteen years of life (vv. 4-5). The message is that prayer and repentance may soften even the harshest decision, at least where the divine king is concerned. In the light of these examples, we see that within a legal framework the notion “make live” is a perfectly logical counterpart to “kill.” The condemned man is legally speaking dead, and the effect of pardon is to bring him back to life again.20

Ellipsis So far we have been examining the dual phrase, but there is no reason why “live” or “make live” should not be used alone to indicate pardon or even to indicate by ellipsis the whole process of condemnation and pardon, if the context is sufficiently suggestive. In the “Nippur Homicide Trial,” an account from the early second millennium B.C.E. of a trial for murder before the assembly of the city of Nippur, three men conspired to kill a fourth and, when they had done the deed, informed the victim’s wife.21 She kept her silence. All four were brought to trial. One group in the assembly argued as follows: As men who have killed a man they are not live men (l u2 -l u2 -u 3 i n -g az -e -a m3 / l u2 -t i-l a n u -m e- e ). Those three males and that female shall be killed before the chair (of the victim).

19 See, e.g., urpu (edition in Reiner 1958), a series of incantations designed to remove sin from a sick man by means of confession and ritual purification. Cf. Num 27:3 and 2 Kgs 5:20-27. 20 This approach was already adumbrated by Yaron in his earlier article: “by his god-like intervention [the sovereign] ‘keeps alive,’ perhaps even ‘restores to life,’ the offender who has been condemned to death” (1962b: 248). 21 Edition in Jacobsen 1970: 193-214.

260 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Another group, however, argued for mercy for the wife: Even if Nin-dada daughter of Lu-Ninurta may have killed her husband, a woman, what can she do, that she should be killed? The assembly then considered the wife’s case and decided that she should be executed with the others. In this account, the facts had been proven; the only issue before the court was the possibility of clemency. It therefore seems to me appropriate that the culprits are referred to by the group arguing against mercy not as “dead” but as “not live,” i.e., not worthy of mercy. More than a thousand years later, a striking illustration of this elliptical usage is given in a report of a trial for high treason.22 King Nebuchadnezzar II, having discovered a plot against him by a certain Babu-aa-iddina, “proved against him in the popular assembly the crimes that he had committed and looked upon him angrily and pronounced his not-living (l balassu iqbî), and his throat was cut” (lines 17-20). The narrative omits mention of the death sentence, which is self-evident in a case of treason, and focuses on the king’s prerogative of pardon, which presupposes a death sentence. The death penalty for treason resulted from a conviction by a court (the popular assembly, not the king); “not-living” resulted from the king’s decision to deny mercy. Finally, the same metonymy explains an enigmatic biblical law (Exod 22:17): “You shall not make a witch live.” This law, in my interpretation, is addressed to the local authorities.23 It is understood that witchcraft is a capital offense. The purpose of the law is to forbid the local authorities to exercise a prerogative of mercy with regard to witches.

Summary Justice The effect of elliptical usage of one part of the dual phrase is to cast emphasis on that aspect. In certain contexts, when used as a speech formula, that emphasis is such as to give the phrase a slightly different nuance. In 22 AfO 17 2 (edition in Weidner 1954-56b: 1-3). 23 Westbrook 1986a: 62-66.

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2 Kgs 10:19, king Jehu issues an order summoning the priests of Baal, without exception, and adds: “Anyone who is missing shall not live.” We understand from this that the penalty for disobedience is death, but it adds little to emphasize that the king will not pardon the offender. The emphasis lies rather in its focus on the final stage of judgment to the exclusion of the preceding stages. Truncation of the legal phrase enables it to become part of the peremptory order and thus to be symbolic of the truncation of the judicial process. The offender will be put to death summarily, without trial, without being able to offer an explanation or excuse. Failure to appear is proof of his guilt; there is no need for legal niceties and no question of pardon. The same is true in Gen 31:32 when Jacob, accused by Laban of stealing his household gods, accepts a search, declaring: “He with whom your gods are found shall not live.” The use of the truncated phrase as a peremptory order is not confined to the Bible. In a letter from Mari dating to the 18th century, an official reports: I assembled the sheikhs of the cities of the Binu-Yamina, and I gave them the following strict order: 24 “Whoever you are, if a single individual leaves your city and you do not seize him and bring him to me, in truth you shall not live.”25 Finally, returning to the Bible, in Exod 19:12-13, we find the full dual phrase but separated in a way that changes its emphasis. Moses, about to ascend Mount Sinai, is instructed to warn the people: Do not go up onto the mountain or touch its edge. Anyone who touches the mountain shall be killed. No hand shall touch him but he shall surely be stoned or shot. Whether beast or man, he shall not live.

24 apuunti. CAD translates ap u “to issue orders” (/1 450) but for no apparent reason creates a second lemma (/1 451) with three examples—one uncertain, one in broken context, and this passage, which it translates, “I informed(?) them . . . .” In my opinion, the first meaning applies here also. Confirmation is provided by examples of the noun ipu, “ruling, strict order, reprimand,” given in CAD /2 93. 25 ARM 2 92, line 122.

262 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources There is to be no trial, but instant death for trespassers, as postponement of the element “shall not live” until after the mode of execution indicates. It is not clear who was to carry out the stoning or shooting. The order seems to allude to the posting of guards, but a further possibility, which we shall discuss in the next section, is that it entitled ordinary Israelites to take law into their own hands.

Private Justice In all the examples that we have examined from the ancient Near East, the power of life and death vests in the hands of the king or his delegates. There is, however, at least one example of the phrase being used in connection with private individuals. Zech 13:3 states: But if a man continues to prophesy, his father and mother who bore him shall say to him, “You shall not live, for you have spoken falsehood in the name of the LORD,” and his father and mother who bore him shall pierce him through because of his prophesying. False prophesy was a form of apostasy, a serious public offense for which the death penalty is prescribed in the laws of Deuteronomy (18:20; cf. 13:6, 9-11; 17:2-5). According to those laws, execution was to be by the community and only after a public trial, with procedural safeguards for the defendants, or after a formal inquiry by the public authorities (13:1316; 17:2-7). Where the culprit has sought to suborn a close relative or friend in secret, however, the procedure is less elaborate. It is the duty of the relative or friend to denounce the culprit and personally to initiate the public execution by stoning (13:7-11). His sole testimony is sufficient because it is contrary to interest, namely, the natural ties of love and affection.26 26 Levinson (1996: 601-20) rightly points out that the procedural safeguard of two witnesses (Deut 17:6) should not be read into Deut 13:7-12. In the nature of the case, there can be no other witnesses. Levinson’s conclusion that the addressee of the law must summarily execute the culprit should, however, be nuanced. The addressee of the

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The prophetic passage goes a step further. The situation is considered so serious that the culprit’s parents are given the right to execute summary justice themselves, without going through normal procedures. They assert that right by means of the speech formula “You shall not live,” which, as we have just seen, is normally used by rulers when they order summary execution.27 There is no preceding order, as there is in the case of rulers; instead, the parents arrogate to themselves legal authorization by naming the offense in their declaration. It is the grave, public nature of the offense that entitles them to act. For a brief moment, and in special circumstances, the parents are given the authority of a ruler or judge over a criminal: their own son.28 With this final example we have reached a meaning of the phrase that fits exactly our interpretation of the legal solution in the paragraphs of Codex Eshnunna. Those paragraphs, it will be recalled, ruled that an intruder caught breaking in at night “shall die; he shall not live.” Our interpretation, following Yaron’s original proposal, was that the householder was being given authority to kill the intruder on the spot. The case of the false prophet killed by his parents shows that the phrase could bear that meaning. It is a sub-category of the formula’s use in reference to summary justice: the right of an individual to take the law into his own hands in special circumstances. It is true that in most cases of summary justice the formula is truncated, whereas here it is whole. The reason, we suggest, is apostasy still has to bring the case to the public, who participate in the execution; he could not justify the slaying of a close friend or relative ex post facto by citing his apostasy, as would one who took the law into his own hands. 27 The difficulty of this phrase for commentators and the strained rationalizations that result are illustrated by a recent example: “the sentence here is expressed somewhat less directly, perhaps to ameliorate the harsh and extraordinary circumstances whereby parents are called upon to execute their own children” (Meyers and Meyers 1993: 374). 28 Another possible example of the phrase being used of an individual is a Mari letter, ARM 10 32. Unfortunately the text is incomplete and the context too obscure to be certain. A daughter writes to her father that unless he sends someone quickly to take her away, “I shall die; I shall not live” (line 32'). Since her request appears to arise from an incident related earlier in the letter (lines 13'–14') in which a certain ayaSumu threatened her—“since I will cause you to die, let your ‘star’ (= father) come and take you away!”—it may be that aya-Sumu was claiming (abusively?) the right to kill her summarily.

264 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources that in the Eshnunna paragraphs, the necessary context is lacking. The phrase does not follow upon a peremptory order, nor is it a speech formula. Nor does the context that is given in the protasis make the right selfevident. Theft and adultery are not public offenses that have to be stopped at all costs, in which action might be expected of a private person.29 “Shall die” establishes that the culprit is liable to the death penalty—it plays the same role as the parents’ naming of the offense in the case of false prophesy. The second part of the formula—“shall not live”—refers to the modalities of execution, as we have seen in Exod 19:12-13. By emphasizing seizure in flagranti delicto, the protasis indicates that summary justice is in issue, and in the circumstances described, the only possible executioner is the very person by whom the culprit is seized.

Conclusion Seen through modern eyes, the second leg of the dual formula “he shall die; he shall not live” seems a redundant repetition, whose only effect is to heighten the dramatic impact of its first leg. We have attempted to show, however, that in its duality the formula functioned as a technical legal term. In this function, its second leg had an independent meaning of considerable importance. Depending on the context, it could refer to the power of pardon by a ruler, the exercise of summary justice by a ruler, or the right of a private person to execute summary justice. Accordingly, when the dual phrase occurs in the apodosis of three paragraphs of a law code, we are entitled to assume that its second leg is not redundant but indicates one of those three legal solutions. Legal logic and comparative evidence constitute a compelling argument in favor of the third solution: private summary justice.

29 Compare the case of Pinhas in Num 25:7-8, who brought to an end a plague by summarily killing apostates.

18 International Law in the Amarna Age Abstract This study explores the basic aspects of the system of international law in the ancient Near East, as it is revealed in the Amarna correspondence. It seeks to show that, despite apparent differences on the surface, the political powers of the era operated with similar conceptions of law and in adherence to entrenched traditions regarding international relations.

W

here an international society exists, relations between its members will be governed not only by common political conventions but also by agreed rules of law. In the ancient Near East, international law had a venerable tradition, being attested virtually from the beginning of written records.1 Formal treaties were a frequent instrument of foreign policy, and customary international law was appealed to in diplomatic protests and negotiations. Thus, although the Amarna Letters are not legal documents, international law is important to understanding them. This chapter provides a background to the worldview of the correspondents, by sketching in outline some of the fundamental legal conceptions upon which their diplomatic dêmarches were based. * Originally published in Amarna Diplomacy: The Beginnings of International Relations (ed. R. Cohen and R. Westbrook; Baltimore: Johns Hopkins University Press, 2000), 28-41, 239-42. Used by permission. 1 The earliest account of a border dispute, between the Sumerian states of Lagash and Umma in the twenty-fifth century B.C.E., is a dramatic tale of treaties, breach, and consequences; see Cooper 1983b. Although individual legal systems varied greatly, there was a common legal tradition throughout the ancient Near East that continued into the first millennium B.C.E. As a result, it is possible to draw examples of a legal principle from different periods and countries.

266 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The State International law in modern theory is the system of law that governs relations between states (as opposed to domestic law, which is the ordinary law governing relations between individuals within a state or other political entity). It is therefore necessary first to establish whether, in the ancient Near East, states existed in a form to which we can meaningfully attribute a role in international law and, if so, what was meant by a state. The modern concept of the state as a legal entity is based on the model of the corporation: an artificial person recognized by law, whose “acts” are the result of imputation to it of the acts of its officials. It is this existence separate from its members, albeit fictive, that gives the state capacity to be a subject of international law.2 Ancient law had not developed the concept of the corporation and could not therefore rely on it as a model. The usual form of government was monarchy, and all acts of the monarch were apparently personal; they were not attributed to his country acting as a separate person.3 Ancient law could not conceive of the state as a legal entity. The modern model, however, is not the only possible paradigm for a state. Ancient Near Eastern law achieved the same role for its political societies as states in modern international law but by a different route: the application of a model based on the particular structure of its own societies and their domestic law.4 Other contributors to this volume have shown the

2 Kelsen 1961: 181-82, 191-93, 197-99. 3 Legal historians have, it is true, suggested that their role was no different from that of a modern ruler. Koroec called the Hittite emperor “der oberste Funktionär des Staates” (1931: 46). Similarly, Kestemont states that “en matière juridique publique, le chef d’État et la communauté nationale constituent deux pôles d’une seule et même personnalité morale: la communauté nationale est le siège réel des droits et obligations et le chef d’État en est le représentant” (1974: 48). All that these authors are doing, however, is unconsciously imposing the corporate model upon ancient polities, the result being jarring anachronism. 4 For the lay reader, it should be emphasized that the term “domestic” in this article has nothing to do with family or family law; it is simply used as defined above, in opposition to international law.

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importance of the family metaphor in international politics.5 For international law, the operative metaphor was that of the household. Ancient Near Eastern society was strongly hierarchical. It was based not on the individual but on the household. The household, called the “house,” was a socioeconomic unit headed by a “father,” whose extended, multigenerational family lived under his authority. It was normally a geographical unit also, in the sense that “house” also meant land—a dwelling at least, if not agricultural land. Subordinate members of the household consisted not only of obvious family members such as wives, sons, daughters, daughters-in-law, and grandchildren, but also dependents in a client status and slaves.6 A typical society consisted of a coalition of household units. The word “man” often referred not to any male individual, but to a head of household. Within this structure, the king was regarded as no more than a householder on a larger scale, his household being the aggregation of households that made up a political society. The population of the state was his household and the territory within its borders the household land. In this regard he was often referred to simply as a “man,” for example, “Aziru, the man of Amurru.”7 The constitutional relationship between king and citizens relied on a metaphor drawn from the hierarchy within a household: he was their master; they were his slaves. The metaphor of slavery would more accurately be regarded as a metonym, since it was only certain aspects of slavery, such as obedience and loyalty, that were regarded as applicable. In domestic law, there was a sharp distinction between free citizens and slaves. The king was by no means the apex of the hierarchy. Above him stood the emperor, if he were a vassal king. He and his household, that is, the population of his country, were all slaves of the emperor. Again, the term was used metaphorically, to denote subordinate members of a household. Above the emperor was yet another stratum, that of the gods, to whom all

5 E.g., Cohen 1996: 11-26; Artzi 1980: 167. 6 See Stager 1985. 7 EA 162:1, rightly translated “ruler” by Moran. This was not an innovation of the Amarna Age; in the Old Babylonian period we find references such as “Hammurabi, the man of Babylon.”

268 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources owed obedience, and even the pantheon itself could contain a hierarchy of households. The state may be identified as a household at a median hierarchical level, at the point where the head of household, a king, came under the direct jurisdiction of the gods with regard to his own and his subordinates’ actions.8 It would be a distortion to speak of the king’s actions being “imputed” to his household, as in the corporate model, but as we shall see below, other legal doctrines unknown to modern law provided channels through which the same result might be achieved. The Amarna Letters provide evidence of the conscious use of this legal model. The greeting formulae of the Great Power correspondence follow a stereotyped pattern, a typical example of which is (EA 1:1-9): Say to Kadashman-Enlil, the king of Karadunishe, my brother: Thus Nibmuarea, Great King, the king of Egypt, your brother. For me all goes well. For you may all go well. For your household, for your wives, for your sons, for your magnates, your horses, your chariots, for your countries, may all go very well. For me all goes well. For my household, for my wives, for my sons, for my magnates, my horses, the numerous troops, all goes well, and in my countries all goes very well. The apparently personal greeting is, in fact, an assertion of legal status. Paradoxically, its “personal touch” establishes that the correspondence between the writer and the addressee is not personal but is carried on in their official capacity. Not only are the official titles of both given but the salutation also moves from the personal household to those features identifying it as a median household in the hierarchy and, therefore, a state, namely officials, armed forces, and territory. Even as between suzerain and vassal, the legal model was alluded to: the Egyptian king was careful to address his vassals as “X, ruler (literally: ‘man’) of the city Y.”9 8 The theoretical picture is complicated somewhat by the existence of vassal kings; see below. 9 EA 162, 367, 369, 370. See Moran 1992: xxvii, nn. 73, 74. The term “mayor” (azannu), not used in the formal address, refers to their function in the Egyptian administration.

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International Law Jurisdiction International law was a system of rules regulating relations between kings, as heads of median-level households. The system was under the jurisdiction of the gods, who constituted its court or courts. Enforcement was by the gods or by legitimate self-help, sanctioned by the gods. Three problems arise in this regard. First, if jurisdiction is divine, then its rules might be considered as being in the realm of religion rather than of law. Kestemont regards them as extra-juridical norms, on a level with norms of honor, honesty, and conscience, which demonstrate the impotence of international law rather than its presence.10 I would argue that there was no such separation in the ancient world. Everyone, without exception, believed in the gods: the gods were part of the real world as they saw it, just as they saw the earth as being flat. The divine legal system governed human behavior no less than human courts, and its sanctions, if less certain in their application (but not by much), were equally feared. Notwithstanding the occasional breach and the rationalization of misconduct, the behavior of states was conditioned by what they saw as an effective legal system. Natural calamities such as plague, drought, flood, and defeat in war were attributed to divine justice, and steps were taken to make legal reparation in light of them. In his Plague Prayers, the Hittite king Mursili identifies the cause of a plague afflicting Hatti as the breach of a treaty with Egypt by his father, Suppiluliuma. He seeks to assuage the gods by making reparations to Egypt and returning Egyptian prisoners.11 A similar action was taken by David regarding a breach of treaty by his predecessor Saul, which was identified as the cause of a drought (2 Sam 21:1-11). From this perspective, one might even argue that ancient international law was more genuinely law than is its modern counterpart. Second, the subjects of modern international law being essentially states, individuals have no standing before its tribunals. Not so the ancient divine courts. The gods judged everyone, whether king or commoner, 10 Kestemont 1974: 201-4. 11 Translated in Goetze 1969b: 394-96; see also Houwink ten Cate 1969: 97-98.

270 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources emperor or slave, and every individual within a state could seek direct recourse to divine justice through prayer. Ancient international law was distinguished from domestic law in the degree rather than in the total absence of accessibility. For the individual, the gods were a residual court, a tribunal that would punish those offenses that escaped human courts (for lack of evidence), and the ultimate court of appeal where human courts could not or would not provide justice.12 In disputes between kings, in contrast, the divine tribunals were courts of first instance. There was no other authority to which they might have recourse. Third, the system is further complicated by the existence of vassal kings. Such kings were subject to the jurisdiction of their emperor and thus one step removed from the jurisdiction of the gods. Two factors, however, need to be taken into consideration. One is that empires in the Amarna Age were not administrative units, but each contained a core state where the emperor would be a mere king, answerable to the gods and his peers, and ruling his subjects directly, in the manner of all other kings. The second factor is that domestic sovereignty could be distinguished from suzerainty by what I will call the “doctrine of impermeability.” An ordinary head of household had a certain jurisdiction over the subordinate members of his house, subject to the rules of law and custom. His control, however, was not impermeable. The king’s court regularly adjudicated inner-household disputes, between husband and wife, between two wives or wife and concubine, between father and son, and even between master and slave. For an emperor, however, the affairs of his vassals’ subjects were beyond his reach. Litigants from within a vassal state could presumably petition the gods if unsatisfied with royal justice, but there is no evidence that they could ever go over the head of their own king by appealing his decision to the emperor. The suzerain did not interfere in the internal jurisdiction of his vassals; he only adjudicated disputes between vassal kings or between his own nationals and nationals of vassal states. Vassal kings therefore had an independent domestic legal system, which is one of the essential characteristics of a modern state, and they occupied a place in the hierarchy above that of domestic households. As 12 There was no such thing as a spiritual sphere into which human courts would not enter: they saw it as within their jurisdiction to punish even “victimless” crimes against the gods, such as incest.

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between themselves, they could conduct an active foreign policy, make alliances, and even acquire their own vassals, depending on the policy of the imperial power.13 The Amarna Letters attest to alliances between vassals within the Egyptian empire against fellow vassals (EA 74, 149) and to the building of mini-empires such as those of Lab’ayu of Shechem and ‘Abdi-Ashirta of Amurru (EA 244, 253, 254, 280; EA 83, 90). Only where they impinged directly on their interests would the Egyptians intervene. Accordingly, it is unwise to be too dogmatic: just as international law was not a hermetically sealed system but one characterized by degree, so the capacity of vassals to be the subjects of international law must be recognized as limited, but real. The juridical role of the gods, which became more direct as households rose in the hierarchical ladder, took on a qualitative difference at the level of kings, including vassal kings.

Doctrine Certain doctrines of domestic law unfamiliar to modern systems enabled the household model to function effectively at the level of international law, endowing the actions of kings with the same effects as does the fiction of legal personality for the modern state. I would point to three in particular that are illustrated below. 1. The head of household had legal authority vis-à-vis outsiders: he could enter into legal obligations that bound his whole household or individual subordinates. 2. The head of household’s own obligations could be enforced against his subordinates. Of particular importance for international law are the possibilities of vicarious or collective punishment. In the first instance, a subordinate member could be put to death for an offense that the head of household had committed, it being regarded as punishment of the head of 13 E.g., an Old Babylonian diplomatic dispatch reports that King Atamrum of Andarig, a vassal of King Zimri-Lim of Mari, has seven vassal kings of his own! (Joannès 1991: 172).

272 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources household himself.14 In the second, the whole household could be destroyed, together with its head, where the latter had committed a serious offense against a hierarchical superior.15 3. The head of household in principle owned all family property; on his death the members of his household who constituted his primary heirs became his automatic, universal successors. In this way, a juridical continuity of the household was ensured.

Customary International Law The two most important sources for international law are custom and treaty. Customary international law is difficult to identify in the ancient sources, since it does not derive from legal instruments. It is also difficult sometimes to distinguish a legal rule from a rule of etiquette, since the response to both, barring a serious legal infraction, was generally the same: a diplomatic protest.16 In three areas, concerning envoys, foreign nationals, and extradition, there appear to have been customary rules.

Envoys EA 30 is a passport or letter of credentials of a Mittanian envoy.17 In EA 15, the envoy’s credentials are included in the Assyrian king’s message of

14 Code of Hammurabi 229-230: “If a builder builds a house for a man and does not make his work strong, and the house that he built collapses and causes the death of . . . the house-owner’s son, the son of that builder shall be killed.” 15 For the crime of treason and blasphemy, Naboth was executed along with his sons; see 1 Kings 21 and 2 Kgs 9:26. 16 The Amarna letters reveal a series of obligations that were taken very seriously but that were clearly no more than etiquette: e.g., inquiring after the health of a brother monarch, inviting a brother monarch to a special festival, sending greetings on accession to the throne, and declaring official mourning on the death of a brother monarch. See Koroec 1931: 47-48; Artzi 1980: 167. 17 On passports for envoys, see Meier 1988: 89-93.

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introduction. Although it was an obvious diplomatic necessity, there is no evidence that such a letter was legally required in every case to establish an envoy’s credentials. The envoy of a friendly state was regarded as a guest of the host monarch, who was responsible for his housing and maintenance. The length of stay was entirely at the discretion of the host, whose permission was necessary before the envoy could depart.18 Inordinate retention of an envoy would lead to protests, but as it was, strictly speaking, legal, the reaction was muted. The Mittanian king retaliated in kind (retorsion) or sent a lower-level envoy (EA 29:155-61) but, at the same, time, appealed for Egyptian cooperation (EA 28). The modern doctrine of diplomatic immunity, whereby a diplomat is not liable in the courts of the host country for his illegal acts, is not attested in ancient Near Eastern records. Indeed, the Amarna Letters suggest that at the very least, the host country could demand that the offending diplomat be tried and punished by his own country. In EA 29:173-81, Pharaoh demands that the Mittanian king impose the death penalty on two of his own diplomats (cf. EA 24 IV:35-39 = paragraph 28), whom Pharaoh claims committed (unspecified) crimes while in Egypt but who had since returned to Mittani. The Mittanian king points out that he has already conducted a judicial investigation in the presence of Mane, the Egyptian ambassador, apparently on the basis of an earlier demand, and has put them in chains and transported them to the border (in anticipation of extradition?). Nonetheless, he readily agrees to Pharaoh’s new demand, on condition that proof be given of a capital offense: “Now, may my brother establish the nature of their crime, and I will treat them as my brother wants them treated.” There is evidence, however, of a doctrine of diplomatic inviolability, in that a serious attaint to the person or dignity of a diplomat by the host country would be regarded as an attack on the diplomat’s country and, hence, casus belli.19 In EA 16, the Assyrian king was in a delicate position. His envoys had complained to him about being made to stand for hours in the sun (along with the rest of the Egyptian court) at one of Akhenaten’s 18 Meier 1988: 229-45. 19 As illustrated in the biblical account of the shameful treatment of King David’s envoys. Half their beards were shaved off and their clothes cut off at the middle. David responded with an armed expedition; see 2 Sam 10:1-14.

274 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources interminable religious devotions.20 He could not protest their treatment directly, for the envoys were treated no differently from the Egyptian courtiers and no diplomatic slight was intended. Instead, he argued: “If staying out in the sun means profit for the king, then let him (a messenger) stay out and let him die right there in the sun, (but) for the king himself there must be a profit” (lines 43-49). The suggestion that the Egyptian king was entitled to kill envoys for his own profit must be taken as rhetorical; in practice, it would have been regarded as a serious breach of international law. At the same time, the appeal to self-interest is a telltale sign of the absence of firm legal grounds.

Foreign Nationals There is substantial evidence of a rule of customary law imposing liability on the host government to compensate foreign nationals who had been the victim of serious crimes on their territory. The starting point is a doctrine of domestic law, recorded in the Code of Hammurabi 22-24: If a man commits robbery and is caught, that man shall be killed. If the robber is not caught, the person robbed shall declare his losses before the god, and the city and mayor in whose district the robbery was committed shall compensate him for his lost property. If it is life (i.e., murder), the city and mayor shall pay his family one mina of silver. The local authority had a responsibility toward the victim akin to that of an insurer. It has been pointed out by Green that the same doctrine was applied to foreign victims, who were entitled to look to the local ruler for compensation, pending apprehension of the culprit.21 In an Egyptian story set in the twelfth century, Wen-Amun, an Egyptian passing through the Phoenician port of Dor, had some valuables stolen from his ship by one of the members of his crew. He at once notified the prince of Dor, claiming that the losses were his responsibility. The prince admitted in principle an 20 Following the interpretation of Redford, cited by Moran 1992: 41 n. 16. 21 Green 1979: 116-17.

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obligation to compensate Wen-Amun from his own treasury but found a legal loophole in the fact that the thief was from Wen-Amun’s crew (a member of his own foreign household, so to speak). As Green points out, it is improbable that there was a treaty between Dor and Egypt at the time; so the basis of the prince’s liability must have been customary law (1979: 117). Several treaties from Ugarit almost contemporaneous with the Amarna correspondence stipulate compensation from the public purse for the robbery and murder of nationals of Ugarit in the territory of Karkemish, and vice versa. A curious feature of one of these treaties, in which the victims (significantly) are merchants, is that the public authority is liable to make a fixed payment of three minas of silver for murder victims, whether the murderers are caught or not, but are liable to pay simple compensation for goods stolen only if the robbers are caught.22 I conclude that the purpose of the treaty was not to establish liability but to limit existing liability under customary law. The authorities were prepared to act as paymaster of first resort but were not prepared to accept open-ended liability for plundered caravans where there was no hope of recouping their expenditure from the actual culprits. In this light, the fixed payment for murder may also be seen as a limitation of liability. The normal system of retribution for murder in the ancient Near East was a dual right of the victim’s relatives: to execute revenge or to accept ransom payment from the culprit in lieu of revenge.23 Since the ransom demanded for the culprit’s life could theoretically be considerably higher, the fixed sum of three minas represented a limit on the primary payment of compensation by the public authority, which it might not be able to recoup from the culprit, even if he was caught. I have discussed these sources in detail because they are necessary to understanding the full legal significance of EA 313 and EA 8. In EA 313, the murder of Egyptian merchants by brigands on the territory of a vassal is dealt with by the vassal paying the local Egyptian commissioner “400 shekels of silver, plus 1000.” Moran notes that it is a strange way to write 1,400 shekels. The point is that there are two payments for two separate matters: first, compensation in place of ransom and, second, compensation 22 RS 17.146; edited in Nougayrol 1956: 154-57. 23 See Westbrook 1988d: 39-83.

276 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources for goods stolen, in that order. The normal customary law is followed, unaffected by the vassal-suzerain relationship. In EA 8, the Babylonian king informs the Egyptian king that some Babylonian merchants were robbed and murdered by Egyptian vassals in Canaan, and continues: “In your country I have been robbed. Bring them to account and make compensation for the money that they took away. Put to death the men who put my servants to death, and so avenge their blood” (lines 26-29). The Babylonian king’s identification with his merchants is the other side of the coin of vicarious punishment: an offense against a subordinate member of the household is an offense against the head of household. His demand for compensation directly from the Egyptian king fits in perfectly with the rule of customary law. But his demand that the Egyptian king execute vengeance on the killers, rather than pay compensation and exact ransom from them, was probably more than was required in strict law. For this reason, as we have seen in EA 16, the Babylonian king appeals to his counterpart’s self-interest: “If you do not put these men to death, they are going to kill again, be it a caravan of mine or your own messengers, and so messengers between us will thereby be cut off” (lines 30-33). We thus see the difference in this letter between a legal and a political argument: a legal claim needed no elaboration, since the relevant rule of customary international law was accepted by the parties as binding on them; a political demand needed support, by threat of sanction, offer of advantage, or appeal to self-interest.

Extradition Kings had a traditional discretion to grant or refuse asylum to fugitives. As between kings of equal status, they were under no legal obligation to return fugitives upon demand, unless it was specifically provided for by treaty, which was frequently the case.24 Of course, it might be considered an unfriendly act to harbor a fugitive, in which case a request for extradition would be granted as a favor. 24 See, for instance, the detailed provisions of the Egypt-Hatti peace treaty in Beckman and Hoffner 1996: 93-94 (no. 15, paragraphs 12-19).

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As between suzerain and vassal, the former had no duty to extradite, but the latter certainly did.25 The Egyptian king in EA 162 exercised his right with regard to various political refugees who had fled to Amurru, and the ruler of Amurru, so recalcitrant in other matters, showed no reluctance to comply.

Treaties Legal Basis In the domestic legal systems of the ancient Near East, a contract between heads of household would bind their respective households. It is no accident that rikiltu, the term for “contract” in Akkadian, the international lingua franca of the Amarna. Age, was used without discrimination for international treaties. A treaty between kings was simply a contract that would bind their “households” in the same way. In a domestic contract, it was often the practice to secure ancillary obligations by means of a promissory oath, for example, provisions against future revendication. The oath took the form of a curse that the speaker called down upon himself should he break his promise. In doing so, he invoked the name of the king or specific gods, who were expected to execute the curse. Where the obligations of the contract were entirely future or contingent, as in a contract of betrothal, it was possible for the contract to consist solely of an oath.26 This was precisely the case with treaties, which only involved future or contingent obligations. In some aspects, however, international treaties differed significantly from domestic contracts. Since kings were under the direct jurisdiction of the gods, treaty oaths were in the name of the gods alone. Domestic contracts were witnessed by the parties’ peers, and disputes over breach could be brought before a variety of courts but ultimately before the king, as 25 The Hittites sometimes conceded limited extradition rights to their vassals in the vassal treaty. See, e.g., Treaty between Mursili II of Hatti and Kupanta-Kurunta of Mira in Beckman and Hoffner 1996: 75 (no. 11, paragraph 22). 26 E.g., Westbrook 1988b: 137 (YOS 8 51), and Falkenstein 1956-57: vol. 2, 27-28 (NSG 17).

278 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources fountainhead of justice. Domestic courts had the power to punish a party for breach of the divine oath.27 In treaties, however, the role of witnesses was played by the gods, their names (and seals) being appended as witnesses to the treaty tablet. (The presence of human witnesses is rarely even mentioned.) In consequence, the gods had a dual role: as witnesses to the treaty and as “gods of the oath,” in which capacity they were responsible for punishing any breach. As a treaty between Mursili II of Hatti and Tuppi-Teshup of Amurru pithily prescribes:28 “If Tuppi-Teshup does not observe the terms of the treaty . . . then these oath gods will destroy TuppiTeshup, together with his person, his wife, his son, his grandsons, his house, his city, his land, and his possessions.” Although they were personal agreements between kings, treaties bound the populations of their respective countries by reason of the doctrine of householder responsibility. If there were a breach of the treaty, the gods could respond by destroying either the king himself (personal punishment), his subjects (vicarious punishment), or both (collective punishment). They bound the parties’ successors under the doctrine of universal inheritance, although it was politically more prudent to gain a fresh, direct commitment from the new monarch. In summary, treaties were contracts on the domestic model but gained their international character from two factors: the position of the contracting parties on the hierarchical scale, and their being purely within divine jurisdiction.29

27 E.g., NSG 17 (edited in Falkenstein 1956-57: vol. 2, 27-28. 28 Beckman and Hoffner 1996: 59 (no. 8, paragraph 22). 29 Two agreements that were identical in substance could be domestic or international, according to the status of the parties. The Assyrian emperor Esarhaddon designated as his successor a younger son and feared that disparate elements in the empire would revolt against the son after his death. He therefore concluded a series of treaties taking an oath of loyalty to his successor from members of the royal family, high officials, and vassal kings. The treaties are all identical in form, whether with internal subjects or with vassal kings (see SAA 2 6, discussed in Parpola and Watanabe 1988: xxviiixxxi, 28-58). But where the Hittite kings dealt with primitive countries that had no monarchy, they contracted with the leading householders as representatives of their community, who were thus elevated to international status (Beckman and Hoffner 1996: 22-30 [no. 3]).

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Formation In contrast to modern law, treaties did not have to be in written form. 30 They were frequently committed to writing, especially when concluded through the agency of envoys, but the legal core of a treaty was an oral agreement, the written version being a record thereof and of evidentiary value only. The legally binding element was the promissory oath that the parties swore by the gods. The oath in fact achieved much the same purpose as writing in modern law: it was a ceremonial formality that emphasized the seriousness and durability of the undertakings. Hence, it is not surprising that references to treaties in the Amarna Letters sometimes simply use the word “oath.” In EA 74, Rib-Hadda warns the Egyptian king that ‘Abdi-Ashirta of Amurru has made an alliance against him with the revolutionary leaders of Ammiya. As Moran points out, the literal phrase is “placed an oath” (1992: 145 n. 13). In the same way, in EA 149, AbiMilku of Tyre reports that Zimredda of Sidon exchanged oaths with the rulers of Arwada in preparation for a joint attack on Tyre. In addition, there could be ceremonies attending the oath, which, if not legally necessary, further emphasized the formality of the agreement. For the oath-swearing reported in EA 74, ‘Abdi-Ashirta assembled the parties in a temple, although the oath procedure did not strictly require it. Where the parties met face to face, there were various customary ceremonies, such as slaughtering an animal or sharing a meal or drink. Two Mesopotamian kings from the Old Babylonian period are reported to have sworn the oath, slaughtered an ass, sat down to drink together from the same cup, and finally exchanged presents.31 In Gen 31:44-54, after Jacob and Laban had made a treaty in solemn form, the two sides ate bread together. In light of these sources, the Egyptian king’s complaint to his vassal Aziru in EA 162 takes on new significance: 30 Article 2(1)(a) of the Vienna Convention on the Law of Treaties (1969, amended 1980) defines a treaty as “an international agreement between states in written form and governed by international law.” Koroec considered the ancient treaty document dispositive (1931: 15-16), but so much evidence has since accrued of purely oral treaties that writing cannot have been a condition of legal validity. See, e.g., Charpin 1990: 109-16. The law was the same for domestic contracts: Renger 1977: 75-76. 31 ARM 26/2 404:60-63; see Joannès 1991: 175.

280 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Now the king (of Egypt) has heard as follows: “You are at peace with the ruler of Qadesh. The two of you take food and strong drink together. And it is true. Why do you act so? Why are you at peace with a ruler with whom the king is fighting? And even if you did act loyally, you considered your own judgment, and his judgment did not count.” The reference is not to mere conviviality; it is an unmistakable allusion to the celebration of a treaty. Where the parties were separated, envoys had to be used to conclude the treaty. The envoy would present the king with a list of stipulations to which the latter had to swear. The procedure is well documented in Old Babylonian diplomatic records,32 and it was still in use in the preparing of the Egypt-Hatti peace treaty.33 It was evidently used by the Hittite king in the vassal treaty that he offered Addu-nirari of Nuhae, reported in EA 51,34 and by Aziru of Amurru in demanding a special oath of safe conduct from the Egyptian king and his high officials (EA 164:27-42).

Typology Scholars normally divide ancient Near Eastern treaties into two separate categories: on the one hand, there are parity treaties and, on the other, vas32 See Charpin 1988: 144-45, 179-82; 1991: 144-45; and Eidem 1991. In a reciprocal treaty, there could initially be two tablets, each containing unilateral obligations. The practice of interleaving mutual obligations on a single tablet also existed, however, as can be seen already in the Ebla treaty from the twenty-fifth century; see Edzard 1992. 33 The two extant versions of the treaty reflect the procedure, although the tablets already contained the obligations of both parties. The version from the Hittite archives is an Akkadian original drafted by the Egyptian chancery, whereas the version on the temple at Karnak is an Egyptian translation of the Akkadian original drafted by the Hittite chancery (Spallinger 1981: 299). Although almost identical in substance, their difference in format reflects the insistence of each side on drafting the text to which the opposing monarch had to swear. 34 Moran’s objections (1992: 122 n. 2) to Altman’s surmise (1977: 30) are therefore unfounded, although there might have been a further tablet drafted as a record of the treaty, had it come to fruition.

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sal treaties.35 In the former, two independent rulers enter into an agreement on terms of reciprocity, usually with obligations that are substantially identical. Koroec wondered, though, how an independent ruler could have an obligation imposed upon him by another ruler without compromising his sovereignty.36 The answer is that the ruler was not submitting to the other party but was submitting to the higher authority of the gods, recognized by both parties. A vassal treaty in its purest form was unilateral: the vassal made a series of promises under oath to the suzerain. Promises under oath by the suzerain on specific issues were not excluded, however; even if not under oath, they were still binding insofar as their breach would release the vassal from his oath.37 The balance of obligations depended on the relative bargaining power of the parties. Indeed, as Liverani has pointed out, a Hittite treaty with Kizzuwatna is presented as if it were a parity treaty, even with mutual oaths, but was in substance a vassal treaty.38 Serious doubts have been expressed as to the legal status of vassal treaties. Koroec regarded them as only partly creatures of international law: “halbvölkerrechtlich” (1931: 35-36). Other commentators have pointed to lack of consent or lack of sovereignty in the vassals as flaws in their status as instruments of international law.39 We cannot go into these difficult questions at length here, but I will make two points that are of particular relevance to the Amarna correspondence. First, in legal theory, if not in political reality, vassals entered voluntarily into a treaty with their overlords. Given a choice between death and vassalage, a threatened ruler would not unnaturally choose the latter. According to an Egyptian account, Canaanite rulers besieged in Megiddo begged mercy from Thutmose III, and in return for sparing their lives, he imposed upon them an oath.40 Furthermore, the initiative might come from the greater power, if political circumstances made it expedient to court 35 36 37 38 39 40

E.g., Koroec 1931: 12-15. Koroec 1931: 24, 25. See Altman 1990: 180-82, 203-5. Liverani 1973. E.g., Schachermeyr 1928-29: 182. Lorton 1974: 138, nos. 2 and 3, cf. 111, no. 4 (Tutankhamun). Cf. the ruse of the Gibeonites in Josh 9:3-27.

282 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources smaller states. In EA 51, Addu-nirari of Nuhae proudly reported to his Egyptian suzerain his rejection of a Hittite offer of a vassal treaty.41 Second, a formal treaty was not a prerequisite for vassalage. Returning to the model of the hierarchical society, the political relationship between hierarchical superior and subordinate was characterized by membership of the former’s household. This in itself gave rise to mutual obligations: loyalty and obedience by the subordinate on the one hand, and responsibility of the superior for actions by and wrongs to the subordinate on the other, using the metaphor “slave/master” or “father/son.” Accordingly, the superior was entitled to punish the inferior for breach of the customarily expected duties.42 Nonetheless, a superior might regard his own authority as insufficient to ensure obedience and seek to strengthen his hold on the subordinate by adding a divine guarantor. For example, the Egyptian ruler Ramesses III used the oath to get one of his artisans to report misconduct among government workers.43 The same rationale applied to vassals. The emperor could not maintain an army permanently on vassal territory. A treaty provided a supplementary mechanism for enforcing loyalty, through the oath and its divine sanctions. For both these reasons, therefore, it is better to think of vassal treaties in terms of negotiated settlements (in a political market that could favor buyers or sellers) than of imposed edicts.44 After all, all that a treaty added was the divine sanctions promised by the vassal’s oath. If the overlord could impose his will by brute force, he would have no need of them.

The Egyptian and Hittite Systems It has been argued that the Hittite and Egyptian conceptions of international treaties during the Amarna period were different in kind. The Hittite 41 Cf. the letter of the Hittite king Suppiluliuma to the king of Ugarit, offering him a treaty of vassalage as one of the rewards for giving military support; see Beckman and Hoffner 1996: 119-20 (no. 19). 42 See the Hittite Instructions for Temple Officials, Sturtevant and Bechtel 1935: 148-49. 43 Edgerton 1951: 141. 44 Cf. Parpola on Assyrian vassal treaties (Parpola and Watanabe 1988: xv-xvi).

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system was formalized through treaties because it was based on agreement, whereas agreement with an inferior was excluded a priori for Pharaoh, who, in truth, regarded even equal powers as inferiors. Instead, the Egyptian model was the correct behavior expected of an official within the administration.45 I would qualify that view by arguing that any differences between the Egyptians and the Hittites were of political choice, not legal system. First, as we have seen, treaties are not necessary to a vassal relationship, so that the Egyptians’ failure to use them would not necessarily be evidence of a different legal regime. Second, the oath was by no means unthinkable to the Egyptians. We have seen its use in internal administration after the Amarna period. The Egyptians had indeed procured loyalty oaths from vassals at the logical time for such oaths, when they had been in an expansionist phase more than half a century earlier.46 Although presented through the absolutist perspective of Egyptian propaganda, their very acceptance of oaths by the gods was an admission that they could not rely entirely on their own power in their relations with their vassals. Whether the practice of taking oaths continued with each successor to the vassal throne is not clear; there are certainly references in the Amarna Letters to oaths by the vassals (EA 148, 209). Third, it was not unthinkable for the oath to be taken by the Egyptian king himself. The peace treaty with the Hittites required an oath, which Ramesses II did not hesitate to mention approvingly in a letter.47 In EA 164, as we have seen, Aziru of Amurru, faced with an Egyptian demand that he present himself at the Egyptian court to explain his actions, insisted that the king and his senior officials first swear an oath guaranteeing him safe conduct. It is reasonable to suppose that Aziru’s condition was met, since he subsequently traveled to Egypt and returned safely. For all these reasons, I consider that in spite of Egypt’s reticence on the subject, treaties—parity and vassal—formed as much a part of the Egyptian conception of international law as they did for the Asiatic states. 45 Cf. Liverani 1983: 49-51. 46 Thutmose III from the Canaanite rulers at Megiddo (Urk. IV 1234:17-1236:1); Amenhotep II from the ruler of Qadesh (Urk. IV 1304:2). 47 Beckman and Hoffner 1996: 124-25 (no. 22D).

284 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources In this light, the proposal of a treaty by Alashiya in EA 35:42-43 should be considered a serious offer to which a positive reply could be expected from Egypt. In EA 24 III:109-119, the Mittanian king quotes a standard military assistance clause from a treaty that is similar to the mutual clauses found in the Egypt-Hatti peace treaty.48 Whether it refers to an existing treaty or a proposed one, it assumes that whatever political difficulties stood in its way, such a treaty with Egypt had no legal impediment.

Conclusions In this brief sketch, I have only been able to touch upon some of the many aspects of international law revealed by sources from the ancient Near East. I hope, however, that enough has been covered to demonstrate the importance of law in the thinking of the correspondents to the Amarna Letters. In negotiations between both equal and unequal powers, all parties carried with them and deployed the common conceptions and longstanding traditions of a functioning system of international law.

48 Beckman and Hoffner 1996: 93 (no. 15, paragraphs 7, 9); cf. Beckman and Hoffner 1996: 73-74 (no. 11, paragraph 18). Artzi (2000) argues that Egypt’s failure to intervene when the Mittanian king was murdered by a usurper (EA 17) is evidence that it had no treaty relations, since protection of the partner’s dynasty was a standard treaty obligation. But the usurper did not ascend the throne himself; instead, he ruled as regent for the murdered king’s son. To me, this suggests a concern to avoid triggering the terms of a treaty, by conserving the outward form of dynastic succession.

19 Babylonian Diplomacy in the Amarna Letters Abstract Modern commentators view the pattern of negotiations in the Amarna Letters as reflecting an imbalance between Egypt and the Asiatic great powers. The Asiatic kings try unsuccessfully to wrest gold and status from the Pharaoh and in doing so are often forced into humiliating concessions. The Babylonian dispatches are regarded as a prime example of this imbalance. Babylonian kings look, at best, self-abasing and, at worst, ridiculous, especially when describing their own actions and reactions in previous diplomatic incidents. A close analysis of Babylonian arguments, however, reveals a cunning and devious train of logic designed to gain the moral advantage over the Egyptian interlocutor. The Babylonian rulers used the cultural conventions of the day to send hidden messages, the meaning of which would nonetheless be unmistakable to the recipient.

I

n the fourteenth century B.C.E. the most powerful states of the Near East, Egypt, Hatti, Mittani, Babylonia, and Assyria, formed an international society, a “Great Powers’ Club” with conventional forms of diplomacy and settled rules of protocol.1 Their relations are detailed in some thirty-five items of correspondence in the Amarna Letters, with all but two * Originally published in the Journal of the American Oriental Society 120 (2000): 37782. Copyright © American Oriental Society. Used by permission. * The arguments in this article were first adumbrated at a conference on the Amarna Letters at the Rockefeller Center, Bellagio, in September, 1996. I am grateful to all the participants for the stimulating discussions that gave rise to my proposals. A summary version is presented in the publication of the conference proceedings (Cohen and Westbrook 2000), in the chapter of Christer Jönnsen. The present article is a revised version of a paper given to the Egyptology and Ancient Israel group of the AAR/SBL annual meeting, Orlando 1998. 1 See Tadmor 1979: 3-4; Liverani 2000: 15-27. On protocol, see Koroec 1931: 47-49; and Artzi 1980: 161-70.

286 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources being letters from the Asiatic kings to the Pharaoh.2 In principle, they corresponded on a basis of equality, as “great kings” who referred to each other as “my brother.” In practice, the Egyptian ruler enjoyed an advantage over his Asiatic counterparts. As the head of a mature hegemonic power, more self-sufficient in prestige goods than the other powers, and in particular enjoying a near monopoly on the production of gold, he was able to bargain from a position of strength. Modern commentators, therefore, view the pattern of negotiations as one in which the Asiatic kings try unsuccessfully to wrest gold and status from the Pharaoh and in doing so are often forced into humiliating concessions.3 The dispatches of the Babylonian kings appear to present an egregious example.4 The Babylonian correspondent looks, at best, self-abasing and, at worst, ridiculous, especially when describing his own actions and reactions in previous diplomatic incidents.5 But appearances can be deceptive. As Cohen has pointed out, the detailed negotiations in the letters were conducted on two levels: as subgames in which the nature of the relationship was assumed, and as metagames in which the issue was relative status.6 At the metagame level, Babylonia did not need to assert its equal status, as did Assyria.7 Nor did it seek a relationship of inter-dependence with Egypt like Mittani.8 Rather, its aim was mutual advantage as between independent entities: 2 EA 1-30, 41-44. EA 1 and 5 are from the Pharaoh to the Babylonian king. EA 13, 14, 22, 25 are inventories. EA 18 may not belong to this correspondence. The numbers follow the edition of Knudtzon 1907-15 (rep. 1964). The most recent translation into English is Moran 1992. Unless otherwise stated, quotations from the letters use Moran’s translation. 3 Zaccagnini 1973: 160-65; Schulman 1979: 188-91; Liverani 1990: 224-26. 4 The letters are from two kings, Kadashman-Enlil I and his successor Burnaburiash II. No attempt will be made in this article to distinguish between them, as in our view these letters, in spite of their personal tone, were at the very least the result of a consultative process between the king and his officials, if not the product of a chancery. As such, they represent a continuity of diplomatic tradition. 5 Cf. the analysis of Cohen 1996: 17-20. 6 Cohen 1996: 20-25. 7 EA 16:26-27: “I am the [equal] of the king of Hanigalbat.” 8 EA 20:15-17: “I will now, this year, deliver my brother’s wife, the mistress of Egypt, and they will bring her to my brother. On that day shall Hanigalbat and Egypt be [one].” See Artzi 2000: 205-11.

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as I am told, in my brother’s country everything is available and my brother needs absolutely nothing. Furthermore, in my country everything too is available and I for my part need absolutely nothing. We have (however) inherited good relations of long standing from (earlier) kings, and so we should send greetings to each other. (EA 7:33-41) Where the relationship was being negotiated, the Babylonian king was not averse to making peremptory demands, as where he insisted that Egypt not entertain a delegation from Assyria, whom he claimed as his vassal (EA 9:19-38). In other instances, Babylonian tactics were capable of great subtlety. Aware of the disparity in their bargaining position with Egypt, the Babylonian kings might sometimes give the impression of negotiating at the metagame level, when in fact their goals were more modest. Making metagame demands enhanced their opening position, and allowed them ultimately to maximize the lesser gains for which they would settle. Furthermore, a close analysis of the Babylonian arguments reveals a cunning and devious train of logic, designed to gain the moral advantage over the Egyptian interlocutor, and a mordant sense of humor. The Babylonians used the cultural conventions of the day to send hidden messages, the meaning of which would nonetheless be unmistakable to the recipient. We will attempt to illustrate these points through three examples.

“As Plentiful as Dust” The desire of Asiatic kings for Egyptian gold is often stressed, along with the fact that it put them in a weaker bargaining position.9 Their approach to the question of gold, however, was not uniform. It is true that all saw gold, like other presents, as a measure of friendly relations: “If your purpose is graciously one of friendship, send me much gold” says the Assyrian king with characteristic directness (EA 16:32-33). For Mittani it was a sign of 9 Zaccagnini 1973: 165; Liverani 1990: 224. Edzard documents the change from silver to gold as a unit of account in Kassite Babylonia and its dependence on Egyptian gold (1960: 37-55).

288 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources “love,” i.e., an affirmation of close alliance. But beyond this general symbolism, very different political functions were attributed to the receipt of generous shipments of gold. Mittani wished to use Egyptian gold as a means of acquiring (or maintaining) its status within the international community: May my brother send me much gold . . . may my brother show his love for me, that my brother greatly glorify me before my country and before my foreign guests. (EA 20:71-79) Assyria reversed this reasoning: I am the [equal] of the king of Hanigalbat, but you sent me . . . of gold, and it is not enough for the pay of my messengers on the journey to and back. (EA 16:26-31) Babylonia, however, stressed not status but the image of friendly relations that would be presented to the international community: That neighboring kings might hear it said: “The gold is much. Among the kings there are brotherhood, amity, peace, and good relations.” (EA 11: reverse 19-23) Theoretically, the image would redound to the benefit of both parties. In negotiating for Egyptian gold, the Asiatic kings attempted to debase its value by stressing its abundance. The reasoning was that only large shipments are worthy of a Great King and, by implication, sufficient to reciprocate the gifts that the Pharaoh receives from his “brother.”10 In this connection, a standard phrase was used by the Assyrian and Mittanian kings: “(In your country,) gold is as plentiful as dust . . . .” The Assyrian king continues, with brutal directness: “Why are you so sparing of it?”11 The Babylonian king likewise complained about Egyptian parsimoniousness in its shipments of gold, but he adopted a more indirect approach. 10 Liverani 1990: 213-15. 11 EA 16:14-16 urau ina mtika epiru u . . . amm ni ina in ka isaur. Cf. EA 19:61; 26:42; 27:106; 29:146, 164 (Mittani).

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In EA 9, he first recalls the unbounded generosity of past generations, then states in a matter-of-fact way the amount of the current Egyptian shipment (two minas). He continues with a seemingly humble plea for whatever gold the Pharaoh can send (lines 12-13): “. . . if gold is plentiful, send me as much as your ancestors (sent), but if it is scarce, send me half of what your ancestors (sent).” Only then does he declare it inadequate to his present needs (a building project), still without criticizing the size of Egyptian shipments at large. There is a conscious allusion in this disingenuous request to the formulaic assertion of Asiatic kings of abundance in Egypt. In conceding that the assertion may be untrue, the Babylonian king replaced direct complaint with biting sarcasm. The suggestion that the present Pharaoh might not be able to afford as much as his ancestors was deeply humiliating. At the very least, a king purported to equal the achievements of his ancestors and often boasted of exceeding them.12 The Pharaoh might be willing to risk an accusation of stinginess, because a smaller than demanded shipment could be interpreted ambiguously: as a sign of diplomatic disfavor, or that the reciprocal gifts were inadequate. His prestige would be preserved by the common assumption that he could send more if he wished.13 On the other hand, commiseration with his poverty, albeit insincere, was a trap. The Pharaoh could not then send a smaller shipment of gold without losing face. In choosing wit rather than bluster as his polemical weapon, the Babylonian king showed himself to be a subtle negotiator.

Distant Countries In EA 7:14-32 the Babylonian king records an incident in an amount of detail which seems to be superfluous: 12 For example, Thutmoses III boasts in his annals of crossing the Euphrates and setting up a stela alongside that of his father, Thutmoses I (Urk. IV 697:4-5 = Breasted 1907: 478; cf. Spalinger 1978: 35-41). 13 Cf. Liverani’s discussion of the Pharaoh’s resolution of the contradiction between the boast of universal control and the boast of enlarging one’s territory (1990:57): “The Pharaoh tries to solve the contradiction by stating that he extends his borders ‘wherever he wants’ . . . so implying that his will finds no external obstacles, but finds a limit in itself, in his own judgment.”

290 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Furthermore, since I was not well and my brother showed me no concern, I for my part became angry with my brother, saying: “Has my brother not heard that I am ill? Why has he shown me no concern? Why has he sent no messenger here and visited me?” My brother’s messenger addressed me, saying: “It is not a place close by so your brother can hear (about you) and send you greetings. The country is far away. Who is going to tell your brother so he can immediately send you greetings? Would your brother hear that you are ill and still not send you his messenger?” I for my part addressed him as follows, saying: “For my brother, a Great King, is there really a faraway country and a close-by one?” He for his part addressed me as follows, saying: “Ask your own messenger whether the country is far away and as a result your brother did not hear (about you) and did not send (anyone) to greet you.” Now, since I asked my own messenger and he said to me that the country is far, I was not angry (any longer), I said no more. The king was angry because the Pharaoh, in breach of diplomatic etiquette, had failed to send a “get well” message when the former was ill. An Egyptian diplomat managed to appease him by pointing out that the great distance between the two countries did not permit the Pharaoh to receive timely news of his sickness. The king, at first skeptical, finally accepted the envoy’s excuse after his own staff confirmed its factual basis. The incident described was therefore a non-incident, a minor misunderstanding at court which the Egyptian envoy managed to defuse before it grew into a real diplomatic incident. Why then bother to relate it to the Pharaoh, and in terms that only make the king look foolish and ignorant? The true reason emerges a little later in the letter. By way of preliminary, it should be pointed out that the Babylonian king was almost certainly aware of the great distance between Egypt and Babylonia. It is true that there were no maps and little concept of geography, but long distances were measured in the time that it took to traverse them, not in miles, and envoys had been going back and forth between the two courts for many years. There was a more-or-less standard time for the journey and, barring diplomatic incidents, a standard time for the stay of

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an envoy at the host court.14 It is difficult to imagine that the king would have been unaware of the pattern of arrivals and departures. The king’s ignorance was merely a sham, and more important, he knew that the Pharaoh would know that it was a sham. That is the first of several such hidden signals in this letter. The letter goes on to talk about the value of mutual gifts for their relationship, of (possibly) other matters in a section that is unfortunately broken, and of the retention of envoys. It then returns to the question of distance, but this time the shoe is on the other foot (7:53-60): Furthermore, as I am also told, the journey is difficult, water cut off, and the weather hot. I am not sending many beautiful greeting-gifts. I send to my brother four minas of beautiful lapis lazuli as a routine greeting-gift. In addition, I send my brother five teams of horses. As soon as the weather improves, my next messenger to come I will have bring many beautiful greeting-gifts to my brother. The excuse for the smallness of the present is again a sham, and one that would have been obvious to the Pharaoh. The present did not consist of bulk goods; the same escort could presumably have brought eight minas of lapis or indeed twelve, instead of four. If teams of live horses could be sent, the lack of water could not have been desperate. The hidden message was therefore plain: the Babylonian king was discontented with the Egyptian and wished to register a diplomatic protest by sending a smaller than customary gift. At this point, however, the king found himself on the horns of a dilemma. To avoid the accusation of stinginess or worse still, of poverty, the fiction of difficult conditions had to be preserved, but that fiction would cause him to lose face. It was in essence a plea of weakness in the face of natural difficulties, and how could a mighty emperor admit to weakness? The key phrase is “as I am also told” (u kî iqbûnimma). The informant could have been none other than the Egyptian diplomat! There was no shame in the Babylonian king’s inability to overcome physical space, 14 Caravans regularly plied the route between the two countries: EA 8; and see Meier 1988: 80-82, 245.

292 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources measured in time and difficulty of the journey, because the Egyptian side had already admitted to the same weakness. The earlier incident thus proved very useful. The Babylonian king took a minor exchange between himself and the Egyptian envoy, in which the envoy had merely been trying to be diplomatic, and, perhaps with some embellishment, adapted it to his own ends. Indeed, he neatly set up the whole argument (and revealed his true purpose) when he asked the rhetorical question: “For my brother, a Great King, is there really a faraway country and a close-by one?”

3. A False Daughter In EA 4:4-14 the Babylonian king recounts the painful details of a double diplomatic snub: Moreover, you, my brother, when I wrote to you about marrying your daughter, in accordance with your practice of not giving a daughter, wrote to me, saying: “From time immemorial no daughter of the king of Egypt is given to anyone.” Why not? You are a king; you do as you please. Were you to give a daughter, who would say anything? Since I was told of this message, I wrote as follows to my brother, saying: “Someone’s grown daughters, beautiful women, must be available. Send me a beautiful woman as if she were your daughter. Who is going to say, ‘She is no daughter of the king!’?” But holding to your decision, you have not sent me anyone. Having failed in his bid for a daughter of the Pharaoh, he requested the daughter of a commoner whom he could pretend was of royal blood, and was again refused. How could the king debase himself so much, and why should he recall an incident that made him look weak and foolish? The answer lies in a devious stratagem to improve his bargaining position. In the exchanges of Amarna diplomacy, there is no lack of undiplomatic, almost brutally frank, language. A gift is declared to be inadequate, “not enough for the pay of my messengers on the journey there and back” (16:29-31); envoys are referred to insultingly as nobodies (“an assherder”) or liars (1:18-19, 73-76); an escort is declared too small (11:1922). In one area, however, the bluntest of correspondents were reduced to

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embarrassed allusions, namely, when there was a danger of infringing their interlocutor’s religious susceptibilities. Thus the Assyrian king wrote to the Pharaoh in uncharacteristically conciliatory and guarded language (16:43-55): Why should messengers be made to stay constantly out in the sun and so die in the sun? If staying out in the sun means profit for the king, then let him (a messenger) stay out and let him die right there in the sun, (but) for the king himself there must be a profit. Or otherwise, why should they die in the sun? If Redford’s interpretation of the background to these lines is correct, Assyrian envoys had complained to their own king about Akhenaten’s practice of keeping the whole court, including foreign diplomats, standing in the blazing sun for hours on end as part of his new program of worshipping the sun disk.15 Kings were not reluctant to relay their envoys’ complaints about their treatment, but having to question a fellow ruler’s religious practice in so doing would have put the Assyrian king in a delicate position.16 The sanctity of religious or traditional practice represented a diplomatic taboo, one of the few areas where cultural differences were acknowledged. Rulers were reluctant to ruffle the religious sensibilities of their fellow kings, but this reluctance had the effect of handing the other side a negotiating advantage, the ancient equivalent of “I’d love to make the concession that you demand, but unfortunately my hands are tied by domestic public opinion, which would never accept it.”

15 Redford 1984: 235. The alternative explanation, that the theme is the difficulties of the route for messengers (given that the Pharaoh’s gifts are so poor), seems to us less likely. (See, for this view, Artzi 1997: 320-36.) The Assyrian king had already made his views on that issue very plain earlier in the letter. The present lines follow his response to a complaint by the Pharaoh about the treatment of his envoys, where it would be natural to present a counter-complaint. 16 In EA 1:65-68 the Pharaoh is evidently responding to a complaint by the Babylonian king: “Now, we are brothers, you and I, but I have quarreled because of your messengers, since they report to you, saying, ‘Nothing is given to us who go to Egypt.’”

294 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The Pharaoh’s first refusal was therefore not a snub but made with feigned reluctance.17 Note that the marriage taboo is against “anyone,” not just a foreigner. It has a remarkable parallel in the Bible. In Gen 29:16-26, Laban agrees to give his daughter Rachel in marriage to Jacob, in return for seven years’ service. On the wedding night, however, Laban switches Rachel for Leah, her elder, and less attractive, sister. When Jacob discovers the trick the following morning, he angrily accuses Laban of fraud. Laban merely replies: “It is not deemed proper in our locality to give the younger daughter before the elder.” He is able to play the taboo card, even against a charge of fraud. The Babylonian king was faced with a similar taboo and was aware that it was equally deceitful. Reasons of state determined the Pharaoh’s refusal, not religious sensibilities. The Babylonian king therefore adopted a strategy designed to call his bluff. The Pharaoh’s argument was that his hands were tied; so the king offered him two means of escape. Firstly, he argued that the Pharaoh, as a king, had the power to defy the tradition. He could go this far because it had been presented as a practice hallowed by time, not a rule laid down by divine command. In view of Egyptian monarchs’ pretensions to divinity, this was a particularly effective argument, which would show that the Pharaoh was either weak-willed, and thus lower his prestige, or insincere. Secondly, he offered a ruse which the Pharaoh, if he were truly eager to give a daughter but only constrained by the taboo, could not refuse. Of course, the Pharaoh did refuse, and thereby exposed himself to a charge of hypocrisy. Diplomatic etiquette demanded strict reciprocity between Great Kings who acknowledged each other as equals—“brothers,” as did the Egyptian Pharaoh and the Babylonian king. The king then went on to press home his advantage, referring to the Pharaoh’s own request for a daughter of the king in marriage (4:20-22):

17 We disagree with Schulman, who characterizes the Pharaoh’s response as “rather insulting” and an “arrogant and curt refusal” (1979: 179, 191). Liverani correctly (in our view) saw that the Pharaoh was declaring himself bound by tradition, identifying the same tactic in EA 35:7-8 (1979: 29 n. 42, 31 n. 55). Liverani regards it, however, as an element of strength in negotiation. It is, but internal constraints can be a two-edged sword, since they paradoxically rely on the admission that one is weak.

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Should I, perhaps, since you did not send me a woman, refuse you a woman, just as you did to me, and not send her? But my daughters being available, I will not refuse one to you. The Babylonian king had thus gained the moral upper hand, but the final purpose of this whole dêmarche was still to come. For again, it is highly unlikely that the king did not know in advance the answer to his request for a daughter, just as he knew the answer to his inquiry about geography to the Egyptian diplomat. The presentation of a request that he knew would be refused, and his insistence on a second attempt that, other than to call the Pharaoh’s bluff, had no better chance of success than the first, were merely tactical maneuvers to improve his chances of gaining a lesser prize. That had been his main goal from the outset. In the last section of the letter, a demand is made for gold, immediately, with the usual excuse that it is for a special building project. The demand, however, is then tied into the question of giving a daughter to the Pharaoh (4:41-50): If during this summer, in the months of Tammuz or Ab, you send the gold I wrote you about, I will give you my daughter . . . . But if in the months of Tammuz or Ab you do not send me the gold and (with it) I do not finish the work I am engaged on, what would be the point of your being pleased to send me gold? Once I have finished the work I am engaged on, what need will I have of gold? Then you could send me 3,000 talents of gold, and I would not accept it. I would send it back to you, and I would not give my daughter in marriage. The very last phrase, “and I would not give my daughter in marriage,” is the sting in the tail. Although in its strict sense based on an absurd contingency—late payment of a huge sum—the real contingency is clear. The king was demanding prompt payment of a large bride price as the condition for giving his daughter in marriage. The whole purpose of the letter was in fact to bargain for the highest possible bride price in negotiations for marriage between the Pharaoh and a daughter of the Babylonian king. The bid for a daughter of the Pharaoh, sure to be refused, was merely a tactic to put the Pharaoh further in the king’s debt and thus increase the

296 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources bride price by way of compensation for the Pharaoh’s inexcusable failure to maintain the customary reciprocity between Great Kings.

20 Biblical Law Abstract This is an introductory explanation of biblical law and reveals the law that was operative in ancient Israel and Judah. As an introduction, it summarizes a number of areas where scholarship has achieved a measure of consensus. Its particular value lies in its use of legal categories to explore what the Hebrew Bible says in regard to fundamental issues of law and society.


1. Political and Juridical Background

T

he biblical period of Jewish-Law dates from the mid-second millennium to the fourth century B.C.E. Traditionally, it covers five subperiods: patriarchal (sixteenth century?), exodus (thirteenth?), judges (twelfth and eleventh), monarchy (eleventh through sixth), and post-exilic (sixth through fourth). In the narratives of the book of Genesis, the patriarchs are characterized as autonomous legal units, whose relationship to a wider legal system resembles that of states in international law. Indeed, each patriarch is head of an independent household which often appears as the equal of local rulers (Genesis 14). At other times, however, a patriarch may appear as an individual in an uneasy relationship of dependence upon the host society: Abraham and Isaac in Egypt and at Gerar (Gen 12:10-20; 20:1-18; 26:611), Abraham and the Hittites (Genesis 23). There is no mention of a court to whose jurisdiction they might be subject, but when Jacob is accused of


Originally published in An Introduction to the History and Sources of Jewish Law (ed. N. S. Hecht et al.; Oxford: Oxford University Press, 1996), 1-17. Used by permission.

300 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources theft by Laban, he proposes submission to an ad hoc tribunal composed of members from both sides (Gen 31:36-37). Nonetheless, the substantive law of the period does not differ significantly from that of later periods. The main difference would appear to lie in the fact that enforcement of legal rights is through self-help (see, for example, the rape of Dinah in Genesis 34). Where individuals are intended to represent later political units, political disputes are placed in the context of family law. Thus the later decline of the tribe of Reuben is depicted in terms of the partial disinheritance of Reuben by his father for the offense of sleeping with the latter’s concubine (Gen 49:3-4). The head of household would appear to have had total jurisdiction over its subordinate members (Gen 42:37), but the latter could appeal to a divine tribunal (Gen 16:6). According to the account in Exodus and Deuteronomy, the 40 years spent by the Israelites in the desert on their way from Egypt to the promised land are a seminal period, during which the laws and institutions of the later polity were established. Leadership, temporal and spiritual, is in the hands of Moses, to whom Aharon as high priest is subordinate. Moses judges the people, i.e., is head of the administration of justice, but there are several accounts of the delegation of his authority (see below). The substantive law is given by God to Moses at Mount Sinai, in the form of the Ten Commandments and of “judgments”—rules concerning everyday social and economic relations (Exodus 22-23). Further rules are established by God as precedents when consulted by Moses on cases that occur during the journey through the desert (e.g., Num 9:6-14). The degree of historical reality present in the biblical account of this period is a matter of dispute among scholars. The legal system is idealized and has long been recognized as a projection back into Israel’s past of institutions of later periods or even of ideological programs that may never have been put into practice. Much of the substantive law can be shown to be part of a wider ancient Near Eastern tradition, which stretches back at least to the third millennium B.C.E. As in the previous period, political events are presented in terms of private law: the elaborate division of the promised land among the tribes by Joshua is structured upon the division of an estate by heirs, in accordance with general ancient Near Eastern practices. After the settlement in Canaan, there existed a loose confederation of tribes which was occasionally united by charismatic war leaders known as

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judges. It was regarded by later generations as a period of anarchy, “when each man did what was right in his own eyes.” Nonetheless, there was a universally accepted code of conduct, as epitomized by the incident of the Levite’s concubine (Judges 19-20). When a traveler had sought hospitality in a city of the Benjaminites, the local inhabitants had seized and raped to death his concubine. The crime was regarded as so shocking that he was able to recruit all the other tribes for a war against the Benjaminites. Government of cities was in the hands of local “lords” (Judg 9:6; 20:5). For the administration of justice, the focal point was the city gate, where the elders judged local cases and citizens transacted their affairs. The book of Ruth claims to describe events that took place “in the days when the judges judged” (Ruth 1:1). It paints a picture of an agricultural community with an established customary law that is well known to its members, who apply it before the elders at the city-gate (Ruth 4:1-12). Again, the substantive law, in its secular aspects at least, does not differ radically from that found in other periods. On the other hand, there is no consciousness of a code of Mosaic law that has to be followed by the local courts. The period of the “judges” ends with the establishment of a monarchy (c. 1000 B.C.E.), first by Saul but then giving way to a dynasty founded by David and consolidated by his son Solomon (under whom the first temple was constructed). On Solomon’s death, the kingdom divided into two (c. 922 B.C.E.): “Israel” in the north, “Judah” in the south, with its capital at Jerusalem. During the monarchy, the king was the head of the legal system, but a dual system of courts appears to have existed beneath him, consisting of the local courts of the elders and courts presided over by royal officials. There was no legislature in the modern sense; the king issued decrees (1 Sam 28:9) and made judgments which might be regarded as precedents (cf. 1 Sam 30:23-25). There are occasional references to the torah of Moses (e.g., 2 Kgs 14:6 = 2 Chr 25:4), but these may be anachronistic insertions. Even if genuine, it is not clear that they refer to the body of pentateuchal commandments later identified in rabbinic jurisprudence. The “book of the law” (sefer torah) discovered in the temple during the reign of Josiah (2 Kgs 22:8) has generally been associated with the book of Deuteronomy or a part thereof. The kingdom of Israel fell to the Assyrians in 722 B.C.E. and disappeared from history. The kingdom of Judah survived until 587 B.C.E.,

302 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources when it was conquered by the Babylonians under Nebuchadnezzar. Here begins the “exilic” period: many of the leaders of the community were taken to Babylon, where they appear to have thrived. The Babylonian Empire itself fell to the Persian conqueror Cyrus in 538 B.C.E., and the latter permitted the exiles to return to Jerusalem and to reestablish their political and legal institutions. The temple, destroyed when the city had fallen to the Babylonians, was rebuilt (the “Second Temple”) and was later to be much enlarged under Herod. Under the Persian empire, Judah was no longer a sovereign state but a province (called Yehud). Nonetheless, it retained a high degree of local autonomy under the rule of indigenous governors. The seminal figure of the period was Ezra, who came from Babylonia with an imperial commission to appoint judges to administer the community’s own law (Ezra 7:25). Described as a priest and a “scribe skilled in the torah of Moses,” he may be credited with laying the jurisprudential foundations of Jewish law as we understand it today. For he and his fellow priests read “from the book, from the torah of God, with interpretation” before the assembled people (Neh 8:18). Thus the legal system became based upon the idea of a written code of law interpreted and applied by religious authorities.

2. Sources The term sources has two meanings: (1) authoritative texts applied by the courts in determining the law in a particular case and (2) primary data used by historians as evidence of the law in force at a particular period. In the post-biblical period the laws contained in the first five books of the Bible, the Torah, constituted a source of the first type, but as we have seen they did not achieve this status until almost the end of the biblical period. The main sources of law were tradition, precedent (Jer 26:17-19), and royal decree (1 Sam 14:24; Jer 34:8-10), with divine authorship frequently being attributed to the latter two forms (e.g., Num 27:1-11; Exod 20:22-26). As regards historical sources, there is only one extant contemporary legal text: the Mead ashavyahu inscription, a petition by a corvée worker to the local military commander dated to the reign of Josiah (seventh century B.C.E.). The principal source is of course the Bible itself, but its historical value is qualified by the fact that the version that has come down to us is the result of hundreds of years of compilation and redaction;

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much of it cannot be dated with any certainty. Within the Pentateuch, scholars in the tradition of biblical criticism (deriving from Wellhausen and Graf) have identified several sources from different streams of tradition that have been interwoven in the final version. With very tentative dates, they have been labeled: J—eighth century B.C.E.; D(euteronomy)— seventh; E—seventh; P(riestly)—fifth. J, E, and P are interwoven in the first four books of the Pentateuch, while the Deuteronomic author is also regarded as responsible for the redaction of the historical narrative found in Joshua-Kings. Traditional scholars continue to maintain the claim to the unity of the Pentateuch. This chapter follows the critical approach. The events of the monarchy are recorded in two parallel accounts: the books of Samuel-Kings, which are regarded as closer to the events that they portray, and 1-2 Chronicles, which are of post-exilic authorship. Moreover, much of the material used by biblical authors came from existing traditional sources such as songs, proverbs, rituals and laws. Scholars have attempted to isolate these sources on the basis of form, but the results are necessarily speculative and rarely datable. The Pentateuch contains two discrete collections of non-sacral laws (i.e., laws governing relations between man and man). Exod 21:1-22:16 forms the core of a series of various cultic, ethical, and legal rules known as the Covenant Code (Exod 20:23-23:19), which is regarded by scholars as an independent source inserted into the account of the events at Sinai at some stage during the editing and combining of the J and E narratives. Its dating is uncertain, but it is generally considered to be of great antiquity, although not contemporary with Israel’s sojourn in the desert. The agricultural content of many of the laws (e.g., Exod 22:4-5) places it after settlement in Canaan, while the absence of any mention of a king would seem to indicate the period of the judges (twelfth-eleventh century). Many scholars claim to see signs of development within the individual laws, either by way of reforms (e.g., in the law of talion in Exod 21:22-25) or scholastic exegesis (e.g., Exod 22:8). The strong affinity between the laws of 21:1-22:16 and the cuneiform law codes (see below) points to a separate origin for this unit within the Covenant Code. The second collection of non-sacral laws is Deut 21:1-25:13. Since the cultic laws of Deuteronomy are associated with the reforms of King Josiah (7th century, Judah), the non-sacral laws too must have received their present form at the same time, although they contain earlier traditions. Several parallels to the Covenant Code suggest that the Deuteronomic author used

304 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources the earlier code as a source or at least that there was a source common to both. It has also been suggested that the Deuteronomic author was responsible for redactional additions to the Covenant Code (e.g., Exod 21:8b). The style of the Deuteronomic laws is more heterogeneous than those of Exodus, with motive clauses, exhortation, and admonition. There are also scattered non-sacral laws found outside the main corpus, e.g., homicide (Deut 19:13), evidence (Deut 19:15-21), slave-release (Deut 15:12-18). A further body of laws known as the Priestly Code, and dealing mostly but not exclusively with sacral matters, is to be found scattered through the narrative of Leviticus and Numbers (P-source). Within this source, a compact unit of mostly cultic rules in Leviticus 17-26 has been identified as a separate corpus, referred to as the Holiness Code. It is generally dated to the exilic period, due to close parallels with the writings of the prophet Ezekiel. The Ten Commandments in themselves constitute an independent source which is found in two narratives: Exod 20:1-17 and Deut 5:6-21. Strictly speaking, however, they are not to be regarded as laws to be applied by the courts but as moral exhortation to the individual, since they contain no sanctions for disobedience. An influential theory of A. Alt distinguished between two types of laws in the codes: casuistic laws, which are framed as a hypothetical case with the corresponding legal solution (e.g., “If an ox gores a man . . . , its owner shall be put to death . . .”), and apodictic laws, which are framed as concise commands (e.g., “Thou shalt not steal”; “He who curses his father and mother shall be put to death”). The former were said to derive (via a putative Canaanite law) from the Mesopotamian law codes (see below), which share the casuistic form, while the latter were regarded as a native Israelite creation. Subsequent evidence has not confirmed this theory, but the distinction between casuistic and apodictic laws is still routinely used by scholars in discussing their origins. The law codes are by no means the only source for law in the Bible. The P narrative contains four reports of judicial decisions which supposedly represented the original precedents for later rules of law: a case of blasphemy (Lev 24:10-23), a second Passover for persons ritually impure (Num 9:1-14), the gatherer of wood on the Sabbath (Num 15:32-36), and the rights of daughters (here, those of Zelophehad) in intestate succession (Num 27:1-11; 36). Similar reports are found in juridical parables—a realistic account of a legal case presented to a king for judgment with the aim

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of leading him to draw a parallel with his own conduct: the poor man’s lamb (2 Sam 12:1-14), the woman of Tekoah (2 Sam 14:1-20), and the negligent guard (1 Kgs 20:35-43). Many of the narratives in Genesis, the historical books, and Ruth describe in a more incidental fashion legal institutions and procedures, such as a formal search for stolen goods (Gen 31:30-35), a herding contract (Gen 29:15-18; 30:31-34; 31:38-39), a treason trial (1 Kgs 21:8-14), and levirate marriage (Ruth 4:1-10). A further source of law is the use of metaphor by the prophets: the relationship between God and Israel is described in terms of human legal relationships such as guardianship and marriage, revealing modes of formation and penalties for breach, etc. (e.g., Hosea 2). To reconstruct the legal system of ancient Israel, however, further sources are needed that can supplement the fragmentary information provided by the Bible and place it in context. One possibility is to look to the abundant material from the period immediately following: the Mishnah and early strata of the Talmud, the New Testament and the Dead Sea Scrolls, and commentaries on the biblical codes such the Mek. and that of Philo of Alexandria. While they undoubtedly preserve many earlier traditions, two difficulties arise in using these sources. First, the legal sources and commentaries do not represent academic historical inquiry but the needs of practical jurists to produce a system suited to the conditions of their own society, which were very different from those of biblical times. Second, the intellectual background of all authors of this period is Greek philosophy, which contains concepts far more sophisticated than those employed by the drafters of the biblical codes. It is very difficult therefore to distinguish in these later sources between genuine tradition on the one hand and legal development, interpretation, or rationalization on the other. There is, however, a more closely related source that has come to light through the archaeological discoveries of the past 100 years: the legal systems of Israel’s contemporary and earlier neighbors. Records from the ancient Near East, mostly in cuneiform script, begin at the end of the fourth millennium B.C.E. and continue until Hellenistic times. (Special note should be made of an archive of some sixty legal documents in Aramaic from a fifth century B.C.E. Jewish community at Elephantine in Egypt.) They include not only thousands of legal documents but records of all aspects of their societies’ life and thought, providing their legal systems with a context that is mostly lacking in the biblical evidence.

306 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources These sources are of more than mere comparative value; there emerges from the cuneiform record evidence of a common legal tradition that stretched across the whole of the ancient Near East. That tradition is reflected especially in a form of jurisprudence that was developed in Mesopotamia as part of a wider intellectual system and transmitted beyond its boundaries through the medium of cuneiform scribal schools. An individual case is reformulated as a hypothetical problem (the casuistic form mentioned above) and discussed by considering variants on the facts, often according to a set pattern (e.g., varying the status of the victim). The system, however, lacks the ability to formulate abstract concepts or to define legal terms; it produces instead endless lists of examples. In the third and second millennia this technique finds expression in law codes that are remarkably similar in form and content. Six such codes have been recovered to date, in Sumerian, Babylonian, Assyrian, and Hittite, the bestknown being the code of King Hammurabi of Babylon. The law codes of the Bible are heirs to this tradition, in varying measure. In the earliest of them, the Covenant Code, some three quarters of its content can be traced back to standard legal problems found in the cuneiform codes. The later codes already show the first signs of the revolution in thought that was to replace the Mesopotamian science of lists by Greek philosophy, albeit the bulk of their material still derives from the old tradition. The shift from the Mesopotamian concept of a law code as a pedagogical tool to that of an authoritative source of law is, however, achieved only in the latest stratum of the Bible. For most of the biblical period the climate of thought and practice in which the law of Israel was created is that represented by the cuneiform sources.

3. Legal Practice A. Courts The local court sat in the open space behind the city gate. It consisted of leading citizens usually referred to as elders (Deut 21:18-21; 22:13-21; 25:5-10; 1 Kgs 21:8-11; Lam 5:14). In the P-source, the term “assembly” (‘edah) seems to designate the same body (Num 35:12, 24-25; cf. Josh 20:19). The elders also have the power to extradite a fellow townsman from a city of refuge in order to stand trial for murder (Deut 19:12), and

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they are responsible for unsolved murders (Deut 21:2-3). They appear to have sat as a college. The king is ex officio the supreme judge and sits alone (e.g., 1 Sam 8:5; Ps 72:1-4; Jer 22:15-16; cf. Judg 4:5). Solomon judged from a throne situated in the “courtyard of judgment” (1 Kgs 7:7). The king could judge cases at first instance (1 Kgs 3:16-28), possibly where a difficult question arose (cf. Exod 18:26). A party might petition him directly, by “shouting” to the king (2 Kgs 6:26-29), using the formula “Save, O king!” (2 Sam 14:4-11). There is no evidence of a formal system of appeals from the lower courts, but the petition may have been a method of overcoming failure to obtain justice at the local level (2 Sam 12:1-6; cf. 2 Kgs 8:3-6). God in his capacity as divine king is also regarded as a judge (Jer 11:20). He may be petitioned directly, through prayer (e.g., Lam 3:59), or on behalf of others (Gen 18:25). God was the ultimate guarantor of justice when the human system had failed because of abuse by its officers (Isa 3:14). During the period of the monarchy a system of royally appointed judges, connected in some way with the military administration, was active in the capital and the provinces. Its relationship to the local courts of the elders is unclear. King Jehoshaphat (Judah, ninth century B.C.E.) is reported (2 Chr 19:5-11) to have appointed both (a) “judges in all the fortified cities of Judah” and (b) a special court in Jerusalem, consisting of levites, priests, and heads of households (i.e., elders). The scope of the latter’s jurisdiction is not specified beyond the statement that it was presided over by a priest for “all matters of God” and by the governor (nagid) for “all matters of the king.” The three different accounts in the Pentateuch of Moses’ appointment of subordinate judges have been interpreted by scholars as attempts to legitimize reforms of the court system by Jehoshaphat and other kings. In Exod 18:13-26 Jethro proposes the appointment of commanders (arim) of thousands, hundreds, fifties, and tens to lighten the burden of judging for Moses, who is only to take the difficult cases. The model is that of the royal military organization. The appointees are to be able men from among all the people, but in Deut 1:9-17 Moses makes the same appointments from among all the “heads of the tribes,” i.e., the elders, while in Num 11:16-25 seventy elders are appointed from the “elders and officials” (o rim). In the trial of Jeremiah (Jeremiah 26) the court consists of commanders and “all the people,” but it may be an ad hoc court. It should be noted

308 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources that in the Mead ashavyahu document a petition is presented to the local military commander. In the post-exilic community the Persian emperor’s mandate to Ezra authorized him to appoint judges (Ezra 7:25). In Ezekiel’s ideal constitution the levitical priests are to be judges (Ezek 44:24). Evidence for the role of priests as judges in practice is less clear. In Chronicles the levites are mentioned as officials and judges in Solomon’s reign (1 Chr 23:4), but this may be an anachronism from a post-exilic source. The Chronicler also gives a priest jurisdiction over “all matters of God” in Jehoshaphat’s reform, which could refer to sacral matters or simply to the priests’ traditional forensic function of administering evidentiary procedures (cf. Deut 17:9 and 19:17-18 and see below). Possibly priests had jurisdiction within the precincts of the temple (cf. Jer 20:13). B. Procedure In private disputes, if the defendant is not present, the plaintiff must bring him to court to face charges, (Deut 21:18-21) or the court itself may summon him (Deut 25:8; 1 Sam 22:11). Some sources suggest a formal procedure of claim (Isa 5:1-7) and reply (Mic 6:2-4; 1 Sam 22:14-15) or counterclaim (Jer 2:29), but it is not always strictly observed (1 Kgs 3:1722). Evidence is usually given in the form of oral testimony; documentary evidence is not mentioned in a forensic context (although Job 31:35 appears to know of a written bill of indictment) but must have been admitted, since documents were sometimes used to attest to transactions. Reliance is also placed on evidentiary presumptions (Deut 22:24-27) and material evidence (Exod 22:12; Deut 22:16-17). An exculpatory oath procedure is applied for a bailee accused of fraud (Exod 22:10) and a wife accused of adultery (Num 5:21-23). It was administered by the priests (Num 5:21-23; cf. Deut 21:5), as were other supra-rational evidentiary procedures—the oracle (Exod 22:8; Josh 7:10-18; 1 Sam 14:38) and possibly the ordeal (Num 5:23-28). Perjury was punished by the talionic principle (Deut 19:19-21). The verdict in actions in personam was a formula directed to the winning party: “You are in the right” (adik ’atah; Prov 24:24). In actions in rem it was declaratory: “She is its mother” (1 Kgs 3:27).

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For public offenses such as blasphemy, treason, and sacrilege the accused was brought to trial on the basis of a denunciation (Deut 17:4, 7; 1 Kgs 21:9-13) and held in custody until judgment was pronounced (Lev 24:12; Num 15:34). The denouncer, sometimes called a a an, stands to the right of the accused (Zech 3:1). In the trial of Jeremiah the “priests and prophets” act as his accusers and demand the death penalty (Jer 26:11). A minimum of two witnesses is required for a conviction (Deut 17:6; 19:15; 1 Kgs 21:10), a principle apparently extended to all capital cases (Num 35:30). Where the injured party is a hierarchical superior, he may act as both plaintiff and judge, bringing the defendant before his own court, e.g., Saul against Ahimelech (1 Sam 22:11-16), God against the elders and commanders of Israel (Isa 3:13-15). Most contracts were oral (e.g., 1 Kgs 20:39-41), but some could be attested by documents: when Jeremiah buys land, it is recorded in a “double document” consisting of sealed and open parts (Jer 32:11). A document might accompany divorce (Deut 24:1, 3; Isa 50:1; Jer 3:8). Some transactions were witnessed at the city gate: Boaz convenes ten elders to witness an agreement over redemption of family land (Ruth 4:1-11).

4. Principal Legal Institutions A. Marriage and Divorce Marriage in biblical Israel was not so much a personal relationship as an alliance between two families for the purpose of producing legitimate heirs (Gen 34:8-10; 1 Sam 18:22; cf. Judg 11:1-2). Polygamy was permitted. On the question of prohibited degrees, the laws of Leviticus appear to be more restrictive than the practice attested in the narratives. The latter contemplate marriage between a half-sister and half-brother who do not share a common mother (Gen 20:12; 2 Sam 13:13), but even this degree is forbidden by Lev 18:9. Similarly, Jacob marries two sisters, but Lev 18:18 forbids such a union. There are four stages in the formation of marriage: (i) Agreement between members of the two families that the bride will be given in marriage to the groom. The parties are

310 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources usually the father of the bride and the groom or his father. Jacob and David act for themselves, whereas Abraham sends his own agent to procure a bride for his son Isaac (Genesis 24). Even where the son chose his own bride, it was considered proper for his parents to open the negotiations (Gen 34:4; Judg 14:1-2, 5). Adult sons might participate with their father in the negotiations over their sister (Gen 34:13-18). The bride was thus the object of the agreement rather than a party thereto, but a widow or divorcee could contract on her own behalf (1 Sam 25:39-42; Hos 2:16-22; cf. Ezek 16:8, an orphan bride). A subsidiary term of the agreement was the amount of betrothal payment (mohar) to be made by the groom to the bride’s father. From ancient Near Eastern evidence this would normally have been in silver, as is provided in Exod 22:16. The two examples given in the biblical narratives are atypical: seven years’ labor by Jacob (Gen 29:15-19) and a hundred Philistine foreskins from David (1 Sam 18:25). (ii) Bringing of the mohar by the groom, who would customarily provide a banquet on the occasion (Judg 14:10). From this point in time the bride is betrothed (’oraah). She is referred to as a wife (Deut 22:24; Judg 15:1), and as far as outsiders are concerned she is a fully married woman—rape or seduction by a third party will be treated with corresponding severity (Deut 22:22-25). In the cuneiform sources breach of the agreement by the father results in damages (see Codex Hammurabi 160). On the same principle, the Philistines recognize that Samson has a just claim when breach by his father-in-law leads him to take revenge, albeit incommensurate (Judg 15:1-2, 6). Nonetheless, it does not appear that a formal divorce was necessary to dissolve betrothal, as was the case in later law. (iii) Claiming of the bride by the groom, on the strength of payment of the mohar. On completion of his seven years’ service Jacob says to his father-in-law Laban: “Bring me my wife, for my days are completed” (Gen 29:21).

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(iv) Completion of the marriage. It is the father-in-law’s turn to give a banquet before delivering his daughter to the groom (Gen 29:22). Legal completion appears (in the absence of evidence as to special ceremonies or rites) to be constituted by consummation, which is referred to as the groom entering the bridal chamber, described variously as a tent (Gen 24:67), room (Judg 15:1), or uppah (Joel 2:16; Ps 19:6), the term used in post-biblical periods for the bridal canopy under which the wedding ceremony takes place. A man might be forced to marry under certain circumstances. According to Exod 22:15-16: If a man seduces an unbetrothed virgin and lies with her, he shall marry her with payment of mohar. If her father refuses to give her to him, he shall pay “the mohar of virgins” (i.e., the customary amount) in silver. If the offense is rape, the conditions are harsher (Deut 22:28-29): If a man finds an unbetrothed virgin and seizes her and lies with her and they are caught, the man who lay with her shall pay the girl’s father fifty shekels of silver and she shall be his wife. Because he degraded her, he shall not be able to divorce her all his days. Under the law of the levirate, a man might be obliged to marry his deceased brother’s widow. If he refused, he was subjected to a humiliating ceremony (Deut 25:5-10): If brothers dwell together and one of them dies and has no son, the wife of the deceased shall not be married outside to a stranger; her husband’s brother shall go in to her and take her as his wife and perform the duty of a husband’s brother to her. The first son whom she bears shall rise up upon the name of his deceased brother, that his name be not expunged from Israel. If the man does not wish to marry his brother’s wife, then his brother’s wife shall go up to the gate to the elders and say: “My husband’s brother refuses to raise

312 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources up a name to his brother in Israel; he will not perform the duty of a husband’s brother to me.” Then the city elders shall call him and speak to him, and if he persists, saying, “I do not wish to marry her,” then his brother’s wife shall go up to him in the presence of the elders, pull his sandal off his foot, spit in his face and declare: “So shall it be done to the man who does not build up his brother’s house.” And his name shall be called in Israel: “The house of the one whose sandal was pulled off.” The biblical levirate, unlike the later institution, applied not only to brothers. In their absence, the duty fell upon the closest relative. In Genesis 38, after Tamar is twice widowed and her father-in-law refuses to allow his third son to marry her, she tricks her father-in-law into performing the levirate himself. In Ruth 4:1-6, a more distant relative is potentially liable. On the other hand, the circumstances under which the law applies are narrower than in the later law (see section B on Inheritance below). Although it receives scant mention in the Bible, the dowry (illuim) must have played an important role in Israelite marriage. In Josh 15:18-19 (= Judg 1:13-15) and 1 Kgs 9:16, it consists of land. More typical items are personal slaves (Gen 29:24, 29; cf. 16:2-3; 24:59), jewellery, and clothing (Ezek 16:10-12). It is typically furnished to the bride by her father (being the functional equivalent of an inheritance share), but in Ezek 16:10-12, where the girl is an orphan, it is provided by the groom, and in Gen 24:53 it is supplemented by gifts from the groom’s father. During marriage the dowry merged into the husband’s property, but the wife might maintain control of certain personal items (Ezek 16:16-18), especially personal slaves (Gen 16:2-3; cf. melug in the Mishnah [m. Yebam. 7.1] = Akkadian mulgu, Ugaritic mlg). From the usage of neighboring societies, it may be presumed that a primary purpose of the dowry was to support the wife in widowhood. A special problem that is dealt with by several of the ancient Near Eastern law codes is that of the wife whose husband fails to return from a foreign country (e.g., Codex Hammurabi 133-137). Under certain circumstances the wife is allowed to remarry, but the second marriage is subject to annulment should the first husband return. There are no legal provisions of this nature in the Bible, but the story of David and Michal seems to reflect the same principles, in contrast to the harsher attitude of later Jewish law (m. Yebam. 10.1). After David has fled from Saul (1 Sam 19:11-17),

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the latter gives David’s wife Michal to one Paltiel (1 Sam 25:44). After Saul’s death David claims Michal back from his successor Ishbaal, who feels obliged to comply, in spite of the tearful objections of Paltiel and the fact that he is at war with David (2 Sam 3:14-16). Divorce is a unilateral act by the husband, by means of a formal declaration such as: “She is not my wife and I am not her husband” (Hos 2:4), following the practice prevalent throughout the ancient Near East. The possibility of a wife divorcing her husband is not raised in the Bible, but the right existed at least in theory in the surrounding societies and is attested in practice among the Jewish community at Elephantine (see TAD B2.6, B3.3, and B3.8 in Porten and Yardeni 1989). The husband is mentioned in sources from the period of the later monarchy as providing his wife with a “document of separation” (sefer keritut in Deut 24:1, 3; Isa 50:1; Jer 3:8) upon divorce. Possibly it served to furnish the wife with documentary evidence that she was free to remarry. The main legal provision concerning divorce is Deut 24:1-4. While rabbinic jurisprudence regarded it as the basis of divorce law, the biblical text does not lay down any general principles. Rather, it deals with an exceptional case: If a man takes a woman and consummates the marriage, and it happens that she displeases him because he found in her some indecency and he writes her a document of separation and gives it to her and sends her from his house, and she leaves his house and becomes the wife of another and the latter hates her and writes her a document of separation and gives it to her and sends her from his house or the second man who married her dies, then her first husband who divorced her may not take her again as his wife, after she has been made unclean to him. It presents a complicated scenario: (1) a husband finds “some indecency” (‘ervat dabar) in his wife and divorces her; (2) she remarries, and her second husband either “hates” and divorces her or dies and leaves her a widow; (3) the first husband is then forbidden to remarry her. The rationale for this provision becomes clear if it is placed against the background of the wider ancient Near Eastern legal tradition. If a husband divorces his wife without cause, the technical phrase being “hates and divorces,” he must restore to her her dowry and pay compensation. If on the

314 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources other hand she has done something to justify her being divorced (cf. m. Ketub. 7.6: immodest conduct), he may keep her dowry and need pay her nothing. In the Deuteronomic law, then, the wife left the first marriage penniless, but not the second, whether as divorcee or widow. In prohibiting remarriage, the law imposes an estoppel on the husband to prevent him from profiting twice from his wife: first by claiming that she was not fit to be his wife, and subsequently by conceding that she is. A husband is forbidden to divorce his wife altogether in two instances: in Deut 22:28-29, where he had raped a maiden and was forced to marry her, and in Deut 22:13-19, where he had falsely accused his wife of premarital infidelity: If a man takes a wife, has intercourse with her, hates her, makes a false statement about her, and gives her a bad reputation, saying, “I married this woman but when I slept with her I did not find in her the signs of virginity,” but the girl’s father and mother take the girl’s signs of virginity and bring them out to the city elders at the gate, the girl’s father saying to the elders, “I gave my daughter as a wife to this man and he hated her, so he made a false statement, namely, ‘I did not find the signs of virginity in your daughter,’ but here are the signs of my daughter’s virginity,” and spreading out the garment before the city elders, then the city elders shall take that man and beat him, fine him one hundred of silver, and give it to the girl’s father, because he gave a virgin of Israel a bad reputation. She shall be his wife; he may not divorce her all his days. B. Inheritance The basic family unit was the “house of the father,” a patriarchal household of three (or more) generations (Gen 7:7). On the death of the head of household, his sons (or grandsons inheriting per stirpes: Josh 17:1-6) divided the estate by lot (Num 26:55). The firstborn was entitled to an extra share. A father could transfer that share to another son but not to the son of a different mother, if his preference was based on favoritism towards the other wife (Deut 21:15-17). The firstborn could, however, lose his extra share by misconduct (Gen 49:3-4). He could also trade his future right to it: Esau (in Gen 25:27-34) sold his for a bowl of soup!

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The brothers could choose to postpone division and remain as joint owners—technically known as “dwelling together” (Gen 13:1-6; Ps 133:1). If one died childless during this period, the other brothers could simply divide without him. To ensure the deceased his share, another brother was obliged to marry his widow, the product of this levirate marriage being deemed the deceased’s heir who would divide on his behalf (Deut 25:5-6). The levirate duty also applied if the brother predeceased his father and the estate was therefore still undivided (Genesis 38) or if an undivided inheritance that had been sold was restored to the family by redemption (Ruth 4). If there were no heirs in the house of the father, the estate passed to the nearest agnate in the clan (mishpaah), in the order of brother, uncle, etc. (Num 27:8-11). In the absence of sons, daughters counted as heirs (Num 27:8), but because their share was regarded as dowry, they were obliged to marry within their clan (Num 36:8).

5. For Further Reading A. General Daube 1947; Falk 1964; Greengus 1992; Jackson 1985; Jackson 1989; Patrick 1989; Welch 2005 [Editors’ note: Westbrook had cited an earlier version of Welch’s work, but its most easily accessible form is now the 2005 edition]; Westbrook 1988d; Yaron 1988a B. Juridical Background Dearman 1988; Noth 1967: 1-107 C. Sources Alt 1934a: 81-132 (in the English edition); Fishbane 1985: 89-277; Jackson 1975: 75-107; Patrick 1985; Paul 1970; Porten and Yardeni 1989; Pritchard 1969 (contains translations of the cuneiform law codes and of selected private legal documents); Roth 1997; Westbrook 1985a; Yaron 1980 D. Legal Practice Boecker 1980; Frymer-Kensky 1984; Jackson 1972: 203-250; McKenzie 1964; Reviv 1982

316 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources E. Marriage Ben-Barak 1979; Levine 1968; Neufeld 1944; Westbrook 1986b; Yaron 1957 F. Inheritance Daube 1950; Mendelsohn 1959; Westbrook 1991b

21 The Laws of Biblical Israel Abstract Biblical scholars continue to debate the origins and date of the laws of the Torah. This article focuses on the laws in Exodus and Deuteronomy (that is, in the Covenant Code and certain sections of the Deuteronomic Code) that govern legal matters between humans, as opposed to laws of a more religious nature. It argues that the laws in these codes originated in a manner similar to that of the provisions in other law codes from the ancient Near Eastern and Mediterranean world. The article thus argues against the evolutionary model, which detects in the biblical material a development from primitive law to more sophisticated law, and against the literary model, which sees direct textual dependence between the biblical codes and other ancient Near Eastern codes.*

Laws and Law Codes

T

he most famous law code associated with the Bible is the Ten Commandments, but the Torah (Pentateuch) contains many more commandments—613 in all, according to Rabbinic tradition. Like the Ten Commandments, most of them regulate relations between humans and God, for example dietary rules, rules of personal purity, sacrifices and dedications by individuals, or priestly duties and cultic rules regarding the community as a whole. Other rules in the Torah prescribe purely ethical behavior, like helping one’s neighbor, providing charity, or not oppressing the poor. Only about 60 provisions are what we would regard nowadays as law. They are rules that establish rights and duties as between individuals, * Originally published in The Hebrew Bible: New Insights and Scholarship (edited by Frederick E. Greenspahn; New York: New York University Press, 2008), 99-119. Copyright © New York University Press. Used by permission.

318 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources with regard to marriage, inheritance, property, contract, crime and tort, etc. They cover disputes that can be tried in a human court and give solutions that are enforceable by the normal machinery of justice. These 60 laws are unevenly spread through the second to the fifth books of the Torah. They are embedded in three of the literary sources that scholars have identified in that segment of the Bible, which are thought to have been written at different times during the first millennium B.C.E. (although their exact dating is a matter of great dispute). Nearly half of the 60 laws are to be found in chapters 21 and 22 of Exodus, in a context usually associated with the Elohist (E) source. An equal number are found in the book of Deuteronomy, mostly concentrated in chapters 21 and 22, but with scattered examples from chapter 15 to chapter 25. Deuteronomy is considered to be an independent source. For the rest, a smattering of laws are found at various points in Leviticus, mostly incidental to regulations regarding purity or priestly functions, and three laws are expounded at length in Numbers. The latter two books contain what is called the Priestly (P) source. The bulk of the laws in the Torah are thus concentrated in two main clusters. The first, in Exodus 21 and 22:1-16, is usually called the Mishpatim (Hebrew for “judgments”) and is part of a larger unit referred to as the Covenant Code (Exod 20:22-23:33). It forms a solid block that is followed, after some transitional provisions (Exod 22:17-19), by a series of ethical rules, moral exhortations, and cultic regulations. The second cluster, in Deuteronomy 21 and 22, has a central block that is divided by a group of ethical rules (Deut 22:1-12) and other provisions scattered among mostly ethical and exhortatory material. The pervasive moral rhetoric of Deuteronomy is attached even to everyday laws: for example, legal sanctions are adorned with admonishments such as “you will purge the evil from among you, and all Israel will hear and be afraid” (Deut 21:20). My concern to separate out laws from other normative or exhortatory material is not just the imposition of a modern category upon ancient sources. The laws already had a separate existence in antiquity. They represent a special type of literature that has remarkably close parallels among Israel’s neighbors, both in style and in content. Indeed, the parallels to an external source are the closest of any literary genre in the Bible. The external source in question is the so-called “law codes.” The most famous example is Codex Hammurabi (CH) from Babylonia of the eighteenth century B.C.E., but the texts of no fewer than ten other codes, in

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whole or part, have been recovered, widely scattered in time and space. Seven are from the Near East and are written in cuneiform script. Of these, two are in Sumerian, from the cities of Ur (Codex Ur-namma—CU) and Isin (Codex Lipit-Ishtar—CL) in southern Mesopotamia dating to the twenty-first and nineteenth centuries respectively. Three are in Akkadian: one comes from Eshnunna (CE), a city to the north of Babylon, and is dated about thirty years earlier than CH; one is from Assyria dating between the fourteenth and eleventh centuries (Middle Assyrian Laws— MAL); and a small excerpt of a code comes from sixth-century Babylonia (Neo-Babylonian Laws—NBL). Finally, there is one in Hittite from the Hittite capital Hattusha in Anatolia (Hittite Laws—HL), covering a slightly earlier time span than the Middle Assyrian Laws.1 Outside the Near East we have in Greek an excerpt from the laws of Drakon, ruler of Athens in the seventh century, and a large code from Gortyn (Crete), dated to the sixth century.2 A Roman code called the Twelve Tables is traditionally dated to the fifth century.3 The Greek and Roman codes are usually ignored by biblical scholars, but they share the same characteristics as the Near Eastern codes; they come from the Mediterranean region not very far from Israel, and they are a lot closer in time to the biblical sources than are most of the cuneiform codes. All of these law codes are strikingly similar in form. Their salient characteristic is the casuistic sentence, namely, a conditional clause stating the circumstances of a hypothetical case, followed by a clause stating the legal consequences. For example: “If a man knocks out the eye of a man, his eye shall be knocked out” (CH 196). The content of all of the codes is everyday law as would be practiced in the courts. The similarity in content, however, runs even deeper. Many of the same cases recur in different codes, not always with identical facts or with the same solution, but close enough to show that they drew upon the same situations and the same legal principles. For example, the case of an adulterer caught in the act is found in the Middle Assyrian Laws, the Hittite Laws, and the Gortyn Code, with variations in the punishment 1 All the cuneiform codes are translated in Roth 1997. For the Hittite Laws, see especially Hoffner 1997. 2 Drakon’s law is translated by Stroud 1979, and the Gortyn Code by Willetts 1967. 3 Translated in Crawford 1996: vol. 2, 555-72.

320 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources inflicted, but all with some discretion in punishment allowed to the husband. The punishment of theft by payment to the owner of a multiple of the thing stolen is found in Codex Hammurabi, the Hittite Laws, and the Twelve Tables. If we look at the biblical laws, we find that they fit perfectly into the same pattern. They are for the most part casuistic in form and contain many cases found in a number of law codes. In the Mishpatim we find multiple payments for theft, but also many other examples, such as the case of a man who suffers non-permanent injury in a fight and is entitled to damages for his loss of work and medical costs (Exod 21:18-19), which is also found in CH 206 and HL 10. From the Deuteronomic laws, the rape of a maiden who is betrothed but not married (Deut 22:23-27) is also found in CE 26 and CH 130, while the woman who seizes a man’s genitals in a fight (Deut 25:11-12) is dealt with in MAL A 8. Even some of the instances in the Priestly source have parallels: the case of the daughter who inherits where there are no sons and must marry a male relative (Num 27:1-11; 36:5-9) has a parallel in the Gortyn Code (VII 15-IX 24). We are therefore justified in seeing in the clusters of everyday law in the Torah law codes of the same type as their Near Eastern and Mediterranean counterparts, notwithstanding their intermingling with sacral laws and ethical rules or the addition of moral exhortation.

The Nature of the Codes When first discovered, Codex Hammurabi was assumed to have been royal legislation, a codification, or reform. It was subsequently noted, however, that neither it nor the other codes were ever cited in court or referred to as a source of law. A new theory was formulated, principally by Fritz Kraus4 and Jean Bottéro,5 that CH was an academic document, a product of the scribal school, not intended for citation in court. The cuneiform scribes of Mesopotamia tried to classify the world around them by means of lists—of flora, fauna, grammatical forms, gods, offices, precious stones. A more sophisticated form of list recorded conditions and consequences: medical 4 Kraus 1960. 5 Bottéro 1982.

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symptoms and their diagnoses, omens and their meanings, actions and their legal redresses. The latter type of list was cast into the form of objective, hypothetical cases: “If a woman gives birth, and the left foot (of the child) is withered—that house will prosper.” The “laws” of CH present just such a list, albeit in another context. They are bracketed by a prologue and epilogue and inscribed on a monument. In the epilogue Hammurabi tells us himself what the foregoing list represents: “These are the just judgments that I decided . . . .” The judgments in question, however, if such they were, have been subjected to a process of editing. They have been stripped of all unnecessary details and turned into hypothetical cases that could serve as a rule for the future. As Jacob Finkelstein demonstrates, the stone monument with its list of just judgments, set up in temples around his kingdom towards the end of his long reign, served as royal propaganda to show that Hammurabi had been a just king.6 Some of the other law codes also had a monumental form, but still others were found in archives or scribal schools, so that we do not know for what purpose they had been created. In whatever context they are found, the codes’ original composition relied on that same protoscientific tradition, the Mesopotamian “science of lists.” In the biblical narrative, the laws of the Torah are presented as if they were legislation given by God and supposed to be applied in ancient Israel, although the kings of Israel and Judah were often neglectful of them. In post-biblical times, they were certainly applied in Jewish courts as normative law. While modern scholarship questioned the historicity of the biblical account of law-giving, it did not at first doubt that in historical times, at least during the monarchy, the laws written in the Torah were the laws of the land. Scholars soon noted, however, as in the case of CH, that the laws were never mentioned in any historical context after the settlement. Citation only appears after the Babylonian exile, under Ezra the scribe. Here, then, is another characteristic shared by biblical and Mesopotamian law. The biblical laws are located not in a law book or monument but in a religious historical narrative set in the distant past. The natural conclusion is that those everyday laws that occur at various places in the Torah were drawn from another source before being embedded in their present 6 Finkelstein 1961: 103.

322 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources context. That source was likely a law code or codes, or it at least arose independently through the same process that gave rise to the other law codes. The nature of the law codes is a vital element in determining the next question: the connection between them.

The Law Code Tradition Assyriologists have not addressed the question of the relationship between the different law codes of Mesopotamia, except to assume that their transmission followed the path of the cuneiform script, which by the second millennium had spread from Mesopotamia, where it had been invented, across most of the Near East, with the exception of Egypt. Classicists have assumed a direct borrowing by the Romans of Greek law (as Roman legend relates) but have considered the relationship between the Greek or Roman codes and the Near Eastern codes only to the extent of expending significant energy on denying its existence. It has been left to biblicists to inquire into the connection between the law codes. On the one hand, they have focused on how the Mesopotamian format got into the biblical codes, and on the other they have examined the relationship, chronological and literary, between the biblical codes themselves. As biblical codes, they identify the Covenant Code (including the Mishpatim), the Deuteronomic Code, and the Priestly source (including a special section called the Holiness Code). In recent years, several different schools of thought have emerged. Most current scholars subscribe to one of two models: the evolutionary or the literary.

The Evolutionary Model The main protagonists of this school today are Eckart Otto (in many publications from the 1980s to the present) and Bernard Jackson.7 They rely heavily on a form-critical approach, which finds in the current form of a law evidence of its original setting. Their starting point is an influential theory developed by Albrecht Alt. Alt divided the biblical laws by form 7 E.g., Otto 1988b, 1988c, 1994, 2003. E.g., Jackson 2000.

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into two types: casuistic, as we have just described, and apodictic, or direct commands (e.g., “Thou shalt not kill”). He took apodictic laws to be a native Israelite product, while casuistic laws were copied from Canaanite law codes, which in turn were copied from Mesopotamian law codes. The Covenant Code (and thus the Mishpatim), being mostly casuistic but with a smattering of apodictic commands, dated from the early Israelite settlement in Canaan.8 Otto has modified this theory, by proposing a different milieu for the two forms of law. Apodictic law evolved from within the family or clan, where the paterfamilias dictated rules and enforced them. Casuistic law evolved from precedents in disputes between families, which were settled by arbitration at the town gate. The two were fused together in the early monarchy to form the Covenant Code, which continued to undergo a complex process of editing as the society and its laws developed. Later in the monarchy, the Deuteronomic code was an adaptation and development of the earlier code. As for the connection with the cuneiform codes, Otto explains that the biblical material went through a parallel but separate developmental process as biblical casuistic law, derived from local precedents. The similarity of form derives from the fact that the Israelites adopted cuneiform drafting techniques they encountered in the Canaanite towns. Jackson also attributes apodictic rules to a family setting, but his main distinction is between oral and written law. Following the theories of the anthropologist Jack Goody,9 he considers that law changes entirely in character when written down. Early written texts, however, may retain features of primitive oral law—an “oral residue.” The Mishpatim are early, primitive laws that retain many traces of their origins in pre-institutional dispute resolution. They are wisdom rather than binding law. The paradox of their close literary connection with the cuneiform law codes is to be explained by an oral tradition that preceded scribal formulation of these laws and had elements in common with the orally transmitted custom of the region. The Deuteronomic laws are more developed, but all biblical laws retain the character of wisdom literature until the time of Ezra, when they begin to be cited in court like modern law. 8 Alt 1934a. 9 E.g., Goody 1986.

324 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The Literary Model Most of the protagonists of the literary model rely on the work of Meir Malul. Malul casts doubt on any connection through common legal practice. Since the law codes are a literary product, their appearance in the Bible is a result of contact through scribal practice. Malul takes as his example the laws of the goring ox, where there is a remarkable affinity between the versions found in CE, CH, and the Mishpatim. Indeed, the law of an ox goring an ox in the Mishpatim (Exod 21:35) is almost identical to that in CE (§53). Malul therefore suggests that the biblical author or editor knew firsthand the Mesopotamian laws and that he may even have had a copy (or copies?) of them in front of him when he composed or edited his biblical version.10 Anne Fitzpatrick-McKinley adopts the same model of a scribal tradition, but in a more extreme form. She takes up a theory of Alan Watson that relates to the spread of Roman law in much later times. Watson argues that law is structurally autonomous. That is, it develops under its own momentum, to the point where there can be a marked divergence between the law and the needs of the society or its rulers.11 Fitzpatrick-McKinley applies this theory to the much earlier law of the ancient Near East, including that of the Hebrew Bible, by means of Goody’s distinction between the oral and the written. Like Jackson, she considers that with the introduction of writing in the ancient Near East the flexibility of the oral law, allowing gradual adjustments without apparent alteration, was lost. Writing has two effects. First, it severs rules from their original context, making the text of the law multipurpose. Some oral rules were incorporated into the text, but once incorporated, they would eventually cease to reflect social practice. Second, it creates a class of specialized scribes. The law codes are the work of such scribes: they were not legislation but wisdom-moral teachings propagated by scribes. The biblical laws were based on this literary tradition, shared with Israel’s neighbors, that was developed by literary elites.12

10 Malul 1990b. 11 Watson 1985. 12 Fitzpatrick-McKinley 1999.

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John Van Seters adopts the image projected by Malul of a scribe or scholar sitting in a library surrounded by texts. The writer plagiarizes those texts, or rather emulates them, writing material of his own creation that imitates or takes directly from the sources before him. The author of the Covenant Code thus borrowed material from other law codes at his disposal, which included the Deuteronomic and Priestly Codes but also the Babylonian codes, in the form of CH or its successor.13 David Wright likewise considers that the author of the Mishpatim knew the Akkadian text of CH and drew directly from it, together with other cuneiform sources.14 Cutting across the question of which model applies to the biblical codes has been a furious debate over the dating of the codes. It has long been accepted that the book of Deuteronomy dates to the period of Assyrian hegemony over Israel in the seventh century. The Deuteronomic laws also have strong affinities to the Middle Assyrian Laws, both in style and in content. There is a broad consensus that the Priestly source dates to the Babylonian exile (after 587 B.C.E.) or the post-exilic period. The problem is the Covenant Code. Alt considered it to be a very old, premonarchic source, and although many would now place it in the monarchy, most scholars still agree that it predated Deuteronomy. This chronology has been challenged by Van Seters, who places the Covenant Code in the Babylonian Exile of the sixth century. The issue at stake is the relationship between the Deuteronomic and Covenant Codes. Most scholars consider that the author of Deuteronomy knew the Covenant Code and introduced reforms to its long-standing provisions. Van Seters considers that it was the author of the Covenant Code who knew the Deuteronomic Code and adapted some of its laws. I have no wish to enter into this debate. There is no external evidence by which we could date the Covenant Code, and attempts to do so on the basis of its style or of the state of development of its laws are an exercise in futile speculation. My concern is rather with the mode of transmission of the laws that end up in the biblical codes.

13 Van Seters 2003. 14 Wright 2003.

326 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Critique of the Current Models Neither of the two current models furnishes an entirely satisfactory explanation of the origins of the biblical laws. The evolutionary model relies on a series of unwarranted assumptions. 1. It assumes that the present form reflects the circumstances in which the law was created: in a family setting, in inter-clan arbitration, from a foreign source, et cetera. There is not a shred of evidence to support this assumption. Legislation, such as there is in the ancient Near East, takes all sorts of forms.15 It is true that the casuistic form is characteristic of Mesopotamian “scientific” style, but the law codes were not purely scientific documents like the omen or medical lists. They served other purposes, and some of them contain other forms when it suits them. 2. It imagines a world for which we have no evidence and which may never have existed. The model has its roots in nineteenthcentury ethnology and the equation of ancient civilizations with contemporary primitive tribes. Already the earliest codes, however, come from long-standing urban civilizations, and the lawcode tradition had existed for more than a millennium before the advent of the biblical codes. 3. The weakest point of this model is that it suits a self-contained society, isolated from its neighbors, and is embarrassed by the bib-

15 A decree of the Babylonian king Ammi-aduqa (from the dynasty of Hammurabi), for example, contains a mix of different styles: §1 The arrears of feudal tenants, shepherds, knackers, seasonal herders and palace fee-payers—in order to give them support and deal equitably with them—are released. The debt-collector shall not dun the family of a fee-payer. §17 A taverness who has lent beer or barley shall not collect what she lent. §20 If a free man of Numhia, etc., has been bound by a debt and has sold or pledged himself, his wife, or his children, because the king has established equity for the land, he is released; his freedom is established.

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lical codes’ close affinity with foreign law codes. Attempts to distinguish between local form and foreign content founder on the close correlation in content, while the projection of the connection back into a primitive pre-writing phase faces a chronological chasm of several thousand years between the Mesopotamian and Israelite experiences of such a phase. At first sight, the literary model seems a simpler and more satisfying explanation. It is particularly suited to the reception of foreign sources. However, like all simple solutions, it would only work well if reality were as simple. 1. It assumes that each biblical code had a different document to copy from: MAL for Deuteronomy and CH for the Mishpatim. The MAL are not complete; so it is impossible to say whether or not they contain all the laws found in the Deuteronomic Code. CH, on the other hand, is virtually complete, so it is strange that the Mishpatim contain laws found in other cuneiform codes but not in CH. Wright’s answer is to say that almost all the laws in the Mishpatim are in fact derived from or inspired by CH, even though the relationship may not be obvious at first sight. He can only achieve this result by special pleading, forcing the laws into categories that make them a match or seizing upon the most tangential resemblances as evidence of influence. Even then, there remain a hard core of laws that resist “Hammurabification,” such as the case of the ox goring an ox (Exod 21:35), which is only found in CE (§53), or the burning of a neighbor’s field (Exod 22:5), which is found only in HL (§106). Van Seters’ answer is inconsistent. On the one hand, he wants to see CH as the Mesopotamian text the Covenant Code (the Mishpatim) used, and he tries to show that it was the model not only in content but also in structure and ideology, with Moses being portrayed as the Jewish Hammurabi. He speaks of a Babylonian legal tradition for the Covenant Code, whereas the

328 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources earlier Deuteronomic Code came from an Assyrian source.16 On the other hand, he refers to other literary codes at the disposal of the Covenant Code’s author and at times to the Mesopotamian legal tradition or the cuneiform legal tradition.17 Yet again, he accounts for the existence of material in the Covenant Code that is not in CH by referring to a single text, namely CH’s “literary descendant.”18 2. For this model, it is important to know exactly when and how the biblical authors had the opportunity to read the Mesopotamian codes. Alt’s idea of Canaanite law codes has been criticized, given the failure to discover any law code among the abundant legal material from Late Bronze Age sites in Syria and Canaan, such as Emar, Alalakh, and Ugarit. Malul assumes a cuneiform library that the Davidic monarchy inherited with the conquest of the Canaanite cities, but as has been pointed out, cuneiform died out in the region at the end of the Bronze Age. Wright therefore places both the Covenant and Deuteronomic Codes in the period of Assyrian hegemony, when there was access to Mesopotamian learning. Van Seters agrees as regards the Deuteronomic Code but puts the author of the Covenant Code in Babylonia during the exile, where he would have come in direct contact with the local culture. Both of the latter scholars rely on a complete cultural discontinuity in the countries of the Eastern Mediterranean between the Late Bronze Age and the Iron Age, leading to total loss of knowledge of cuneiform law. Thus each biblical author came to the text that was his model in a pristine state. In a sense, it is the same technique of encapsulation that is employed by the evolutionary school to preserve the purity of their developmental model, and it is equally misleading, as we shall see. 3. The literary model divorces the text from any relationship with the law in force. This is of great advantage to biblical scholars, 16 Van Seters 2003: 43-45, 56-57. 17 Van Seters 2003: 123-24. 18 Van Seters 2003: 98.

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who are trained in literary criticism and not in jurisprudence. Not all literature is alike, however, and legal literature is simply not the same as scientific literature or myth or historiography. Even if it is not legislation, or not binding in any way, legal literature cannot so easily escape consciousness of the living law of the society that produced it.19 The codes themselves occasionally make conscious reference to the creation of rules they contain: CE 58 and HL 55 both explain that the rule in question had its origin in a royal decree. The Hittite Laws go further and consciously update the text in response to changes in the practice of law: “formerly the punishment was x; now it is y.” The biblical codes likewise were the product of the law in practice within the societies that produced them and not simply the product of other codes. A clear example is the case in Deut 21:1-9 of the corpse found murdered in a field. The law places responsibility upon the members of the local authority, who must undergo an exculpatory ceremony and take an exculpatory oath: If a corpse is found in the land which the LORD your God gives you to possess, lying in the open fields, and it is not known who killed him, your elders and magistrates shall go out and measure the distance of the towns around the corpse. The elders of the town nearest to the corpse shall take an unworked heifer not yet put to the yoke. The elders of that town shall bring the heifer down into a wadi with a constant stream, in which no plowing or sowing has been done, and they shall break the heifer’s neck in that wadi . . . . And all the elders of that town near the corpse shall wash their hands over the heifer whose neck was broken in the wadi. And they shall say: “Our hands have not shed this blood and our eyes have not seen.”

19 The fact that later legal systems sometimes develop rules in disregard of social reality (Fitzpatrick-McKinley 1999, following Watson) is irrelevant. In later systems such as Roman law those rules still had normative force; they impacted society even if they were anachronistic or unrealistic.

330 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Exactly the same oath in the same situation is attested in practice in correspondence from the Canaanite city of Ugarit in the thirteenth century:20 And concerning the case of the woman whose husband was killed in Arzigana along with the son of Hutiya, about which you wrote to me, now let the men of Arzigana swear in the town of Arruwa as follows: “We did not kill the woman’s husband, brother of Abdi-Anatu in the town, nor do we know who killed him.” From the same city come international treaties regulating the liability of the local authorities for the unresolved homicide of foreign merchants.21 Moreover, the principle of collective responsibility of the local community for unsolved homicides is found in HL IV and in CH 22-24.22 There is thus an interplay between the codes and practice that continues over centuries. The above example has equally important implications for the question of the biblical authors’ access to sources. It completely destroys the argument that the demise of cuneiform script at the end of the Bronze Age consigned to oblivion all the law and learning that had been written in that medium. However influenced Deuteronomy may have been by Assyrian culture, it did not rely on the Assyrian law code as its sole source.

New Perspectives The perspectives that the two models share may also be called into question. In this regard, it is necessary to reconsider two fundamental 20 The text is RS 20.22. It is edited in Nougayrol et al. 1968: 94-97. 21 RS 17.146 and 18.115; edited in Nougayrol 1956: 154-60 22 HL IV: “If a man is (found) killed in another’s field, if he is a free man, he (the owner) shall give field, house, and 60 shekels of silver . . . . If it is not a field but uncultivated land, (they shall measure) 3 danna hither and 3 danna thither, and whichever town is reckoned within, he shall take those very persons.” CH 22-24: “If a man commits robbery and is caught, that man shall be killed. If the robber is not caught, the person robbed shall declare his losses before the god and the city and mayor in whose district the robbery was committed shall compensate him for his lost property. If it is life (i.e., murder), the city and mayor shall pay his family one mina of silver.”

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relationships. First, biblicists have concentrated on the relationship between the biblical and cuneiform codes and between the biblical codes themselves. Neither can be understood, it seems to me, without taking into account all the known codes, not only from the Near East but also from the Mediterranean basin. The cuneiform codes are part of a long-standing scribal tradition, but their transmission is far from simple. Codex Hammurabi continued to be copied in Mesopotamia and perhaps elsewhere well into the NeoBabylonian period (sixth century). The reason was not legal; it had become a classic work of literature in the scribal curriculum. The Hittite Laws and the Middle Assyrian Laws were not only copied but also developed for several centuries within those societies; MAL is also found in copies from Neo-Assyrian sources (seventh century), apparently as part of the Assyrian scribal tradition. The Sumerian codes were copied in Old Babylonian scribal schools (twentieth to sixteenth centuries), but not, apparently, in later times. CE and HL disappeared in the second millennium with the demise of their respective kingdoms, but provisions from them reappear in later times. Doubtless there were many more law codes than have survived, but such breaks in continuity make it more likely that an earlier law code was not the only medium through which laws could enter a later law code. The Roman Twelve Tables is traditionally dated to around 450 B.C.E., in the early Republic, but only on the basis of later legends. It could be later or much earlier, from the time of the monarchy. The text exists only in fragmentary quotations from much later authors. With the discovery of CH, attempts were made to link the Twelve Tables with the Near Eastern Codes, but such efforts have met with resistance. The prevailing approach among Romanists is still to emphasize self-contained evolutionary development. This is in spite of close correlations in the law of injury, theft, and accidental homicide. The Greek Gortyn Code is dated to the sixth century B.C.E., mostly on the basis of its language and writing, and is one of many legal inscriptions from Crete of that period. Surprisingly, Hellenists have been much more receptive to the idea of Near Eastern influence on early Greek law. The Code provides spectacular confirmation. It is headed, as are many similar Greek legal inscriptions, with a single word: Gods! Robert Pounder has traced the origins of this enigmatic heading through earlier Greek inscriptions back into the ancient Near East, into the curses and blessings that are

332 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources common at the end of inscriptions such as CH.23 Accordingly, our perspective needs to widen to account for the transmission of laws to these latter codes, beyond the bounds of imperial conquest. Secondly, scholars from both schools have relied on the dichotomy between orality and writing as formulated by Goody. That dichotomy is not applicable to the transmission of law. According to Goody, oral tradition is a poor vehicle for transmitting legal texts, because of its inaccuracy over time. Biblical scholars have concluded from this that the written codes were the sole mode of transmitting theoretical statements of the law. Legal rules, however, do not need to be formulated in precisely the same language every time, unless they are the words of a statute, which, as we have seen, the law codes were not. In fact, there exists an immense body of evidence for the efficacy of oral legal tradition. It is called the Talmud. Committed to writing only in the fifth century C.E., it is a record of the “oral law”—cases and rulings transmitted orally by generations of rabbis over hundreds of years. Nor is the Talmud unique: the early Roman jurists had a similar source of law in “ancestral custom” (mos maiorum), despite reliance on written sources such as the Twelve Tables. If anything, it would appear that in both these cases written sources and oral traditions reinforced each other as mnemonic devices. Rabbinic oral traditions had already been partially committed to writing before the Talmud, in the much smaller collection of the Mishnah from the second century C.E. The written Mishnah and the much larger oral traditions not included in it then continued side by side for several centuries until the latter were included in the Talmud. Moreover, although drawn from the post-biblical period, this model of intellectual coexistence between the written and the oral had deep roots in the ancient Near East. In a letter to king Esarhaddon from the seventh century B.C.E., his chief scribe and astrologer warns the king: “If Mars, retrograding, enters Scorpius, do not neglect your guard! The king should not go outdoors on an evil day. This omen is not from the Series [i.e., the written canonical series Enuma Anu Enlil]; it is from the oral tradition of the masters.”24 Notwithstanding the strong scribal tradition in the ancient Near East, in legal matters writing remained secondary. Contracts were oral transac23 Pounder 1984: 243-50. 24 SAA 10 8, obverse line 24 through reverse line 2.

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tions and although some types were usually recorded in writing, a document was not essential to their validity and could be rejected in favor of oral testimony. Even in the recording of judgments writing played a surprisingly minor role. The di-til-la documents of the Neo-Sumerian period (twenty-first century B.C.E.) are official records of court cases, presumably kept in a public archive. Nevertheless, when the court needed to hear evidence of a previous judgment, it relied not on the written record but on the testimony of a court officer ( m ak i m ), who had to be present at every case.

Affinities The origin of the biblical law codes is thus only part of a wider question: why do the different legal systems of the ancient Near East and (to a lesser extent) of the ancient Mediterranean region show such close connections and continuity over a period of several thousand years? Seen in this light, there are elements in both models of biblical transmission that can contribute to the answer, which is complex and multi-layered. Three levels of affinity may be discerned. First, there is some evidence for Jackson’s idea of an orally transmitted custom of the region. There appears to be a deep structure of legal institutions. A prime example is inheritance, which displays the same underlying pattern in every legal system attested: universal inheritance by the legitimate heirs with a period of joint ownership until they divide by mutual consent. It is impossible to say when this pattern originated, but archaeological evidence suggests that it may date to prehistoric times, as far back as the eighth millennium B.C.E.25 Any hypothesis as to its transmission would be highly speculative, facing the same barriers as attempts to trace the spread of prehistoric languages. But its widespread occurrence would not have been possible without long continuity as law in practice. Second, there is the patent affinity of form and content between the law codes. Since the earliest known examples are from Mesopotamia and are closely associated with the protoscientific traditions of cuneiform literature, it is reasonable to posit a diffusion from that area into the rest of 25 Yoffee 1988: 119-30.

334 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources the Near East and even the Mediterranean basin. As Van Seters rightly observes, an obvious mode of transmission would have been copying and emulation, but it cannot provide the whole explanation. It would require the creation either of a “super-code” to cram in all the information scattered over the extant codes or of a law library for every budding author of a new code. Nor would it explain how a later code could be aware of the context of the words in an earlier text, especially one translated from a foreign language. There is, I suggest, a third, intermediate level of affinity that derives from the intellectual activity through which law codes were created. The institution of inheritance provides a starting point. Its period of joint ownership gave rise to a myriad of problems that made the topic a favorite of the law codes, perhaps because of the intellectual challenge they presented. CE, MAL, Deuteronomy, Gortyn, and the Twelve Tables all tackle different problems arising from joint ownership by co-heirs, with little overlap between them. Codex Eshnunna (16) A loan of fungibles shall not be given to an undivided son or to a slave. Middle Assyrian Laws (B 2) If one of undivided brothers kills a person, they shall give him to the person’s avenger. If he chooses, the avenger may kill him, or if he chooses he may accept composition and take his inheritance share. (B 3) If one of undivided brothers utters treason or is a fugitive, the king may do as he pleases in respect to his inheritance share. Deuteronomy (25:5) If brothers dwell together and one of them dies and he has no son, the deceased’s wife shall not marry outside to a stranger. Her brother-in-law shall come in unto her and take her as his wife and perform the levirate. The firstborn that she shall bear will rise up upon the name of his deceased brother, and his name will not be erased from Israel.

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Gaius, Institutes (Roman) (III 154a-b) But there is another kind of partnership special to Roman citizens. For at one time, when a father died, between his legitimate heirs there was a certain partnership at the same time of positive and natural law, which was called ercto non cito, meaning undivided ownership . . . . Now in this kind of partnership there was this peculiarity, that even one of its members by freeing a slave held in common made him free, . . . and also one member by selling a thing held in common made it the property of the person receiving it. Justinian’s Digest (Roman) 10.2 The Action for Dividing an Inheritance (familia) (1) This action is derived from the Law of the Twelve Tables; for when co-heirs wished to dissolve their common ownership, it seemed necessary to establish some action by which the inherited property could be distributed among them (Gaius, Prov. Ed., book 7). Gortyn Code (V 28-34) If some of the heirs wish to divide the inheritance while others do not, the judge shall order that all the property shall be in the possession of those who wish to divide until they divide. Furthermore, these provisions were not simply an intellectual game: as testaments from Emar and Egypt attest, testators tried to create ingenious solutions to some of the difficulties that arose from joint ownership and management. Arnaud Textes syriens 71 (Emar on the Euphrates, fourteenth century) Dagan-bel, son of Itur-Dagan, spoke as follows: I have made my wife Ba’alat-ummi father and mother over my house. I have given my house and all my property to my wife Ba’alat-ummi. I have five sons: Harm, Baba, Amzahi, Himashi-Dagan, and IbniDagan. My five sons shall honor [= support] Ba’alat-ummi, their mother and father. If they honor her, they may divide my house and all my property after her death. If any of my five sons, while

336 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Ba’alat-ummi their mother is still alive, says “(I claim) my share,” he shall have no rights in my house and property. He shall place his garment on a stool and go where he pleases. Lawsuit of Mose (Egypt, thirteenth century) Testimony of Ramesses-Meiamun: I was the child of Huy, son of Urnero, daughter of Neshi. A share was allocated for Urnero together with her brothers and sisters in the great court in the time of king Haremhab . . . . Allocation was made for me together with my brothers and sisters. My mother, the citizeness Urnero, was made administrator (of the undivided estate) for her brothers and sisters. Here then is a case where many law codes were focused on the same legal institution, were applying the same intellectual effort to analogous problems (in tandem with devices being applied in practice), but were not dependent on each other. A second point of reference is the Talmud. Much of its discussion focuses on specific legal problems, derived either from a law in the Torah or from an actual case or possibly a fictitious case created for the sake of argument. The method is to ask, what if? What if we change the facts slightly—do we reach the same result, or should we change the legal consequence, on the basis of reasoning by analogy or because the new circumstances bring in to play another rule? It is a method of reasoning that is universally used in legal education to this very day. Looking backwards, it is also the method that lies behind the ancient law codes. For example, CH has the following sequence: 229 If a builder builds a house for a man and does not make his work strong and the house that he built collapses and causes the death of the householder, the builder shall be killed. 230 If it causes the death of the householder’s son, they shall kill the builder’s son. 231 If it causes the death of the householder’s slave, he shall give slave for slave to the householder. The sequence man, son, slave (or analogous degrees of status) frequently recurs in the law codes, giving the impression that it was a regular

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device used to expand the discussion of a case in a scholarly manner. I suggest that among the sources that made up a law code, alongside material taken directly from other law codes or directly from actual cases, were scholarly problems that were familiar objects of discussion. Since a law code cannot include all aspects of the discussion, different excerpts of the same problem would appear in different codes, with perhaps a different emphasis or with an extension of the discussion in a different direction. Consider the problem of the rape or seduction of a girl who is betrothed but not married, as discussed in the following law codes: Deuteronomy 22 (23-24) If there is a maiden betrothed to a husband and a man finds her in town and lies with her, you shall take them both out to the gate of that town and stone them to death—the girl because she did not cry out in town and the man because he forced his neighbor’s wife, and you shall purge the evil from your midst. (25-27) And if the man finds the betrothed girl in the country and seizes her and lies with her, the man who lay with her shall die and only he. To the girl you shall do nothing, she has no sin meriting death . . . for he found her in the country—the betrothed girl cried out but there was none to save her. (28-29) If a man finds a girl, a virgin who is not betrothed, and seizes her and lies with her and they are found, the man who lay with her shall give fifty of silver to the girl’s father, and she shall be his wife. Because he forced her, he may not divorce her all his days. Codex Eshnunna (26) If a man brings the betrothal payment for a man’s daughter but another seizes her and deflowers her without asking her father and mother, it is a case of life: he shall die. Codex Hammurabi (130) If a man binds and lies in the lap of the wife of a man who has not known a man and is (still) dwelling in her father’s house and they seize him, that man shall be killed; that woman shall be freed.

338 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Codex Ur-Namma (6) If a man uses force with the virgin wife of a man and rapes her, he shall kill that man. Exodus 22 (15-16) If a man seduces a virgin who is not betrothed and lies with her, he shall make her his wife with a betrothal payment. If her father refuses to give her to him, he shall pay silver like the betrothal payment of virgins. Middle Assyrian Laws (A 55) If a man seizes with force and rapes a virgin, a man’s daughter who is living in her father’s house . . . whose . . . has not been opened, who is not married and there is no claim against her father’s house—whether in the city or in the country or at night or in the square or in a granary or at a town festival—the virgin’s father shall take the wife of the man who had intercourse with his daughter and give her to be raped. He shall not return her to her husband; he shall take her. The father shall give his deflowered daughter in marriage to the man who slept with her. If he has no wife, the man who lay with her shall pay her father three times(?) the silver of the value of a virgin and he shall marry her. He shall not . . . her. If the father does not wish, he shall receive the silver, three-fold(?) that of a virgin, and give his daughter to whomever he wishes. (A 56) If the virgin gave herself to the man, the man shall swear and his wife shall not be touched. He shall give three times(?) the silver of the value of a virgin. The father shall deal with his daughter as he chooses. Hittite Laws (197) If a man seizes a woman in the hills, it is the man’s sin: he shall die. If he seizes her in a house, it is the woman’s sin: she shall die. If the husband finds them and kills them, there is no liability upon him. Deut 22:23-29 extends the discussion to include the rape of an unbetrothed girl. CE 26 and CH 130 discuss only the rape of a betrothed girl, while the

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Mishpatim (Exod 22:15-16) consider only the seduction of an unbetrothed girl. MAL A 55 considers both rape and seduction, but only of an unbetrothed girl, and has a curious discussion of the site of the offense, the purpose of which is apparently to show that it is of no legal consequence. The rationale becomes clear from the Deuteronomic law, which contains an evidentiary test of the betrothed girl’s complicity based on whether the offense took place in the town or in the country. That same test is found in HL 197, but in a very terse form with regard to the adultery of a married woman. Rather than assume that Deuteronomy had access to yet another law code that happened to spell out the distinction more explicitly, it is reasonable to suppose that Deuteronomy, MAL, and HL all were aware of the whole scholarly problem and were content to allude to it in their written versions. Consequently, there existed behind the text of the law codes a penumbra of legal discussion to which the authors of the codes had access. This “oral law” (better regarded as a canon of traditional scholarly problems) informed the written text of codes but also existed as an independent source of law, or rather of wisdom about law.

Conclusions The genre of text we call the law codes drew in varying measure upon three resources: an oral scholarly tradition, a written scribal tradition, and an inter-reaction with the law in practice. The first two stretched for thousands of years across the Near East and the Mediterranean, with no respect for borders or rulers. The two clusters of everyday law in the Torah that we call law codes should be seen in this light. They are now embedded in a literary-historical account that is set during Israel’s wanderings in the desert before the settlement of the promised land. They appear to have originated, however, in an intellectual tradition that biblical Israel shared with its neighbors to the east and west alike and that can be traced back more a thousand years earlier. Scholars may continue to debate the date of the literary sources in which these biblical codes are embedded. But given the complex interaction of legal traditions behind law codes in general, it would be rash indeed to “date” the origins of the biblical codes, whether by suggesting that their

340 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources contents could only have developed when certain social conditions prevailed within Israelite society or that they could only have been acquired when certain foreign texts became available.

22 Lex Talionis and Exodus 21:22-25 Abstract The law in Exod 21:22-25 makes the local authorities responsible for maintaining peace and order in public places. If as the result of a brawl an innocent passerby is injured by persons unknown, the local authorities must pay him compensation. The pericope is not therefore concerned with the law of talio.*

O

ne of the most controversial topics in biblical law—in emotional as well as scholarly terms—is the talionic principle: “an eye for an eye.” The debate over the nature of this principle has been complicated by the fact that the principal law in which it occurs itself bristles with contradictions and obscurities. Exod 21:22-25 reads (in the Authorized Version): If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follows: he shall be surely punished, according as the woman’s husband will lay upon him, and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe. Three problems emerge from the text. The first is one of syntax: the verbs of the opening protasis are in the third person plural (ynw “they fight,” ngfw “they push”), but the first apodosis is in the singular (y‘n “he shall be punished”). In the second apodosis, moreover, the verb is in the * Originally published in Revue Biblique 93 (1986): 52-69. Copyright © J. Gabalda et Cie, Éditeurs. Used by permission.

342 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources second person singular (ntth “you shall give”). In consequence, there seems to be no correlation between the perpetrator and the person to be punished. The second concerns the terminology. Two of the key terms in the law are of uncertain meaning. The term ’swn is translated “mischief” in the Authorized Version, but this is little more than a guess based on the context. The context, however, itself depends upon the meaning of this term.1 The second term, pllym, is traditionally translated “judges,” which has served only to create problems of interpretation.2 E. A. Speiser, who re-examined the meaning of the stem pll in Hebrew,3 concluded that it meant “to estimate, assess, calculate,” its use in our passage being explained by a parallel in the Hittite Laws. According to HL 17: “If anyone causes a woman to miscarry, if it is the 10th month, he shall give 10 shekels of silver; if it is the 5th month, he shall give 5 shekels of silver.” The term pllym therefore means “calculation” of the damages according to the month of pregnancy.4 This interpretation has been accepted by a number of modern translations,5 but as we shall see presently, it serves only to exacerbate the problems of understanding the law. The third problem is legal. The traditional interpretation is that the law deals with two alternatives: a miscarriage and the death of the mother (or injury to her). In the first instance the perpetrator must pay whatever the husband demands, subject to the discretion of the judges. In the second, he must suffer talionic punishment, unless monetary value is meant.6 The result is a law whose formulation is remarkably clumsy and whose substance is in contradiction with other rules in the same code. If the claim is assessed by judges, then the mention of the husband’s discretion is oti-

1 The Mek. takes ’swn to mean death (although it admits that there is no proof) on the assumption that the death of the pregnant woman is the occasion for the phrase “life for life” (Chapter VIII, ad loc.). Some modern translations extend it to injury as well, so as to cover all the eventualities listed in vv. 24-25, e.g., “other damage” (i.e., apart from miscarriage)—Jewish Publication Society (JPS), The Torah, 1962. 2 Mek.: dayyanim; Vulgata: arbitri. On the difficulties, see below. 3 Speiser 1963: 301-6. 4 Speiser 1963: 303. 5 E.g., Jewish Publication Society (see n. 1 above), New English Bible. 6 See the summary of ancient and modern opinions in Paul 1970: 72-74, and in Jackson 1975: 81-85.

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ose. And if, as Speiser claimed,7 it is not judges that are being referred to, but determination of the damages by an objective calculation, then the contradiction is even more apparent.8 In the second instance, capital punishment is imposed where a pregnant woman is killed in the course of a brawl, whereas according to Exod 21:13, a killer who did not lie in wait for his victim has a right to asylum in a place of refuge. If the woman is only injured, the punishment is the same injury, whereas in Exod 21:18-19 only limited compensation, in the form of medical expenses and loss of time, is to be paid where a man suffers a non-fatal assault in the course of a quarrel. Even if the talionic formula is interpreted to mean monetary compensation, there would seem to be no reason for using a different basis of compensation, at least for non-permanent injuries.9 It is not surprising, therefore, that most modern scholars see the law as composite.10 But what these commentators do not explain is why any ancient compiler would want to reduce two separate laws to one or turn a previously sensible rule into a less sensible one by additions or corrections. A notable exception is Jackson, who attempts to demonstrate that the original law went through a series of reforms achieved by deliberate interpolation.11 Jackson’s basic thesis12 is that the original law ended at the phrase “life for life” and considered two alternatives: premature birth (of a viable fetus) as the result of a blow to the mother; death of the fetus (’swn), i.e., miscarriage.13 The addition of verse 24 (“eye for eye,” etc.) changed the meaning of the original law, so that it now referred to the death of the fetus in the first alternative and to the death of (or injury to) the mother (’swn) in the second alternative, since a fetus cannot lose a tooth. 7 Speiser 1963: 303. 8 See the criticism in Jackson 1975: 80. 9 For an attempt at reconciling these sources, see Paul 1970: 74, and the criticism of Jackson 1975: 87-89. 10 See especially Budde 1891: 108-11, and Morgenstern 1930: 69-71, 83-84; but also Cazelles 1946: 56, and even Cassuto 1967: 276. 11 Jackson 1975: 81-85. 12 Jackson 1975: 95-96. We cannot do justice here to the whole of Jackson’s extremely detailed analysis, which ascribes virtually every unexplained item in the law to interpolation and gives it a specific place in the historical development. 13 Adopting the interpretation of LXX and Philo (Jackson 1975: 96).

344 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources This theory has been severely criticized by S. E. Loewenstamm14 on the grounds that the possibility of premature birth being an issue is unlikely and unattested by the ancient Near Eastern parallels, which all present the death of the fetus and of the mother as the two alternatives. Loewenstamm points out that the one, very late, piece of supporting evidence adduced by Jackson, a Greek papyrus from Egypt dated 89 B.C.E., does not in fact mention premature birth and was probably not concerned with that eventuality at all. Moreover, the technique of amendment suggested by Jackson is far too sophisticated for the biblical legislator, or any other in the history of law.15 But in attempting to explain the law’s inconsistencies other than in terms of legal-historical development, Loewenstamm can only suggest textual confusion: the text of a law dealing with a blow given to a pregnant woman has become mixed up with the text of another law providing for the consequences of blows which men dealt one another in a brawl.16 We shall not enter into a detailed discussion of the relative sophistication or clumsiness of the biblical draftsman since in our view all theories that assume changes in the text are on an unsound basis as long as two key words in that text remain unclear.17 We propose an entirely different approach, starting from the assumption that the text is an organic whole and represents a single and perfectly sensible law. Our method is to ask, on a simple reading of the text: 1. What is the legal problem raised by the protasis? 2. How would a reasonable law go about dealing with that problem? 3. What meaning could be attributed to our two key terms that would fit such a law? 4. Can the presumed meaning in each case be justified by reference to the other occurrences of the term in the Bible?

14 15 16 17

Loewenstamm 1977: 352-60. Loewenstamm 1977: 353-55. Loewenstamm 1977: 357. Thus Loewenstamm (1977: 358) surmises that the terms ’swn and pllym are unknown because they come from a dialect peculiar to the area where the law originated and where the standard of draftsmanship was low.

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If by this means a law can be reconstructed that is objectively feasible and internally consistent, then further details can be elucidated by the usual methods of comparison with ancient Near Eastern laws and other parallels. The protasis opens with the words “if men fight and they push a pregnant woman and her fetus comes out.” The scene is one of a brawl, with an indeterminate number of participants. A pregnant woman who is passing is caught up in the melee and is jostled, perhaps knocked to the ground, and has a miscarriage. Who pushed her? The verb is in the third person plural, and since it is unlikely that they all pushed her at the same time, it must signify an indeterminate subject—one of them pushed her. From these circumstances we may conclude that the legal problem involved was the question of responsibility for damage when the identity of the actual perpetrator cannot be ascertained. The legal discussion distinguishes between two alternatives: if it is a case of ’swn or not. On our hypothesis, these alternatives will be concerned with the location of responsibility rather than the nature of the damage. We therefore suggest that the term ’swn describes the problematic case, i.e., damage caused by an unknown perpetrator. The next step is to see if this interpretation is valid in other contexts. The word ’swn occurs only three times elsewhere in the Bible, all in the Joseph story, and indeed all in Jacob’s statements of reluctance to send Benjamin to Egypt with his brothers.18 To understand why he is so reluctant, we must go back to the disappearance of Joseph and to the plan adopted by the brothers to conceal their responsibility. They dip Joseph’s coat in blood and present it to Jacob.19 The legal significance of this act has been elucidated by D. Daube.20 In biblical law, as set out in Exod 22:10-12, a shepherd is prima facie responsible for the safety of the herd entrusted to him and if an animal is lost or stolen he must pay for it, unless the cause was force majeure, in particular wild beasts. In the latter case he escapes liability altogether, the only condition being that he bring a remnant of the devoured animal by way of evidence.

18 Gen 42:4, 38; 44:29. 19 Gen 37:31-33. 20 Daube 1947: 3-15.

346 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources According to Daube, the brothers dyed Joseph’s coat red and delivered it to Jacob as the only trace left of his child, in order to take advantage of the law. In other words, they claimed that not only were they innocent; they were not even negligent.21 The brothers submit formal evidence and ask Jacob to accept it: “They said: ‘We found this: recognize it as your son’s robe or not.’” 22 Jacob accepts their evidence, as he must, because they have fulfilled the conditions laid down by the law, and makes a formal declaration as to the cause of death: “He recognized it. He said: ‘It is my son’s robe. A wicked beast ate him. Joseph is surely torn to pieces.’”23 Jacob’s acceptance, however, is only formal. He did not really believe it, as we see from the reported statement of his in Gen 44:28: “The one went away from me—I said, ‘He is surely torn to pieces,’ and I have not seen him since.” Jacob does not say that Joseph was killed by wild beasts but that he made a formal declaration to this effect, and his curious closing remark would not have been made were he convinced of Joseph’s death. In other words, he still suspected Joseph’s brothers.24 Now we can understand why Jacob will not let Benjamin accompany his brothers to Egypt, even though the family is starving. He fears that another ’swn will happen to Benjamin as happened to Joseph, i.e., a disaster for which nobody can be blamed.25 Jacob only changes his mind after two of the brothers agree to accept strict responsibility for Benjamin’s safety.26 The texts in Genesis therefore confirm, if Daube’s theory is accepted, that ’swn refers to cases where responsibility cannot be located. Daube noted that his explanation of ’swn as a technical legal term did not appear to apply to our passage in Exodus and found this curious, since the context 21 Daube 1947: 4-5. 22 Gen 37:32. 23 Gen 37:33. As Daube points out, the terminology is in fact identical to that of the law in Exod 22:12: rp rp. 24 Daube 1947: 9. We would add: not necessarily of murder. Kidnapping and sale into slavery (presumably abroad) was common enough practice (Exod 21:16; Deut 24:7). 25 Daube 1947: 10. According to Jackson, ’swn stresses the effect of death or injury on some person other than the direct victim (1975: 78, 96). But Jacob fears that the ’swn will befall “him,” i.e., Benjamin, the direct victim. It doubtless would be a calamity for Jacob as well, but this is not what is stated. 26 Gen 42:37; 43:9. Daube 1947: 13.

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is legal,27 but on our interpretation of the law, it fits perfectly. The only difference is that in our passage, one man is certainly responsible, but since he cannot be identified, it is impossible to impose liability for punishment or compensation. Thus the first alternative envisaged by the law becomes clear: if it is not a case of ’swn (v. 22), then the identity of the perpetrator must be known, and he alone must bear the penalty. Accordingly, the verb is expressed in the singular: “he shall surely be punished.” The punishment is ransom, either of his own life or possibly of his son’s life, since the death of a fetus was the damage caused.28 This is made clear by the terminology used: “as the woman’s husband shall impose (yyt) upon him,” which is the same as for the owner of a goring ox: “If ransom is imposed (ywt) upon him, he shall pay as the redemption of his life all that is imposed (ywt) upon him” (v. 30). It also explains the apparently unlimited discretion of the husband, because it is in the nature of a claim of ransom-money that there is no legal limit, but there is, on the other hand, a natural limit of how much a man is willing, or able, to pay for his own (or his son’s) life.29 The exact measure of the ransom is not mentioned, because that is not the rule to be established by this law—it is already known. The point of the law is to establish the sole liability of the perpetrator. It is therefore reasonable to suppose that the final phrase of v. 22, “he shall give bpllym,” refers not to the question of measure of damages—which is satisfactorily covered in the previous phrase—but to the idea of sole responsibility. We propose to translate: “he shall pay alone.” Again, we must see if this translation is valid elsewhere in the Bible. The form30 is unique to our passage, but the stem pll appears as an adjective in two other contexts. In Deut 32:30-31 we read:

27 Daube 1947: 10. 28 Cf. CH 116, 210, 230; MAL A 55. 29 This limitation affects the plaintiff also. He may well regard the execution of the offender as empty satisfaction and therefore not claim more than the man can pay. 30 The grammatical form of bpllym is admittedly not clear. Possibly it is a noun, plurale tantum, with the adverbial prefix b-. On the other hand, the final mem may be the adverbial ending itself, but then one must assume that the yod is redundant and the prefix a hyper-correction like the post-biblical bnm. I am grateful to Dr. S. Kogut of the Hebrew University for drawing my attention to this point.

348 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources How should one chase a thousand, and two put ten thousand to flight, except their Rock had sold them, and the LORD had shut them up? For their rock is not as our Rock, even our enemies themselves being judges. The last clause, translating w’ybynw plylym, is clearly unsatisfactory. Speiser, who, as we have seen, took the stem pll to mean “reckon,” proposed here: “even in our enemies’ estimation.”31 But Israel’s enemies surely did not regard their own deities as less efficacious than the God of Israel, and it seems to us doubtful that the biblical poet would make such an unlikely claim.32 Far more appropriate to his theology is the rendering: “For their rock is not as our Rock; our enemies are alone.” Other nations have no real god; only the God of Israel rules the destiny of all nations, and Israel cannot therefore be defeated except by a decision of its own God. The term ‘wn plyly(m) occurs in Job 31:11 and 28. The Authorized Version translates: “an iniquity to be punished by the judge(s),” but in both cases it patently is not a justiciable offense.33 In vv. 9-10 a man conceives a secret lust for his neighbor’s wife and lurks at her door, and in vv. 26-27 he is secretly tempted to worship the sun and the moon. Speiser translated “an assessable transgression,”34 which gives no sense that we can discern. In our view the emphasis added by the term plyly(m) is on Job bearing sole responsibility for calamities that befall him, and not God, if they are the result of secret vices.35 We 31 Speiser 1963: 303. 32 The JPS adopts Speiser’s translation but then explains: “i.e., as everyone must admit”—which is not at all the same. 33 This is true of all the offenses listed in chapter 31. They are sins which must be punished by God, because they are not subject to human justice. Divine punishment will generally take the form of sickness. Such a list forms the subject matter of Tablet II of the Sumero-Akkadian incantation series, urpu, which beseeches the gods to forgive the sick, downcast patient who is suffering as a result of his moral or cultic offenses. Edited in Reiner 1958. Cf. Geller 1980. 34 Speiser 1963: 304. 35 The punishment in v. 10 for the man who secretly lusts after his neighbor’s wife is: “Let my wife grind for another, and others bend over her.” If the first verb is interpreted literally, i.e., that Job’s wife will become another’s slave and do menial tasks such as milling, then it would be an example of vicarious talio, where a member of the

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shall see presently that the stem pll is employed in another case where the question is whether to locate responsibility with God or with man. Here it signifies “a sin for which I alone am responsible.” If the idea of sole responsibility underlines the stem pll, then the piel form of the verb should signify the shifting of responsibility unto either the subject or the object of the verb. Eli’s admonition to his wicked sons in 1 Sam 2:25 has long been a crux of interpretation.36 Following the conventional meanings attributed to pll, the literal translation is: “If a man does wrong against a man, God will judge him (wpllw ’lhym); but if a man does wrong against the LORD, who will pray for him (ytpll lw)?” This makes little sense, and even if, as is frequently proposed, the first or the second verb, or both, is rendered “intervene,” “intercede” or the like, the result is no clearer.37 We translate: “If a man does wrong against a man, God may take the blame for him; but if a man does wrong against the LORD, who will bear responsibility for him?” Prima facie, it sounds absurd to contemplate God taking the blame for a human offense, but this is exactly what happens in Exod 21:13. A man who kills another is to be put to death, but not if “God caused it to happen to his hand” (’nh lydw). In modern terms, the perpetrator could claim that it was an accident, but the concept of causation in

offender’s family suffers the same treatment as was suffered by the equivalent member of the victim family. (This can even include sexual abuse: MAL A 55.) It is nonetheless conceived of as punishment of the offender himself. Another possibility, which we tentatively propose, is that the verb t n (“she will grind”) should be amended to read t h and translated “she will approach (sexually),” on the basis of the Akkadian cognate eû (cf. urpu II 48). This would make perfect parallelism with the second verb but change the character of the wife’s actions from punishment imposed on her to adultery of her own initiative. The sense would then be that if Job were to plan adultery for his part, it would be his own fault if his wife were to commit adultery for her part. This in fact is the traditional Jewish interpretation of the verse, assuming n (“grind”) to be a euphemism for sexual intercourse; see the b. So ah 10a. 36 See Houtman 1977: 412-17, who summarizes the various theories. 37 Speiser (1963) translates the first phrase “God can intervene.” He does not explain how or why God would intervene, nor how this rendering is connected with the notion of calculating, which as we have seen is posited by him as the basic meaning of the stem. Houtman (1977) concludes that ’lhym means a “good spirit,” i.e., some exceptional person who ventures to intercede for the sinner. With respect, scholarly constructions such as these strike us as a tabula in naufragio.

350 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources biblical law does not allow for accident in the death of a man. It is the result of will, either divine or human. The accused, in pleading accident, would therefore do so by blaming God. To return to Eli and his sons, the latter committed acts that were at the same time offenses against men (those bringing sacrifices) and God (the intended recipient). Eli’s point is that his sons might find some legal excuse38 for their conduct to avoid retribution at human hands; no such protection would be available against divine retribution. Ps 106:30 provides a clearer example of the same idea: “Pinhas stood and ypll, and the plague was halted.” What exactly Pinhas did is related in Num 25:7-8. He neither judged, prayed, nor interceded with God; instead: “he went after the man of Israel into the tent, and thrust both of them through, the man of Israel, and the woman through her belly. So the plague was halted.” In the eyes of the Psalmist, Pinhas took upon himself the blood-guilt and relieved the community of liability. In Ezek 16:51-52, the prophet compares Jerusalem unfavorably with her sister, Samaria: Neither hath Samaria committed half of thy sins; but thou hast multiplied thine abominations more than they, and hast justified thy sisters in all thine abominations which thou hast done. Thou also, which hast judged (pllt) thy sisters, bear thine own shame for thy sins that thou hast committed more abominable than they; they are more righteous than thou: yea, be thou confounded also, and bear thy shame, in that thou hast justified thy sisters (Authorized Version). Speiser translates pll here “you have caused (re)assessment in favor of your sisters,” but there is no need for such circuitous logic.39 The prophet states expressly what has happened: by being so much worse than her sis-

38 Obviously not accident in this case, but there might have been some justification within the framework of the sacrificial rules. They might even have warded off complaints with the claim that their method reflected divine will. 39 Speiser 1963: 304. The logic of other recent translations is even more convoluted, e.g., “you must bear the humiliation which you thought your sisters deserved” (NEB); “you must bear the disgrace of serving as your sisters’ advocate” (JPS).

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ter Samaria, Jerusalem has taken over responsibility for the sins of the latter, who appears innocent in her light. The final passage in which the piel form of the verb pll appears is Gen 48:11: “And Israel said to Joseph, ‘I had not thought (pllty) to see your face.’” Here, at least, Speiser’s hypothesis might seem acceptable. His rendering “counted on, figured”40 reflects the obvious intent of the statement and is easily derived from the idea of assessment. Nonetheless, this passage stands apart from those discussed above in that the use of the verb is not legal, and some extended, figurative sense may therefore be allowed. We do not consider it stretching the basic meaning too far if the literal translation “I did not take upon myself the seeing of your face” were taken to convey the idea that Israel could not assume responsibility for holding out hope. In summary, we submit that the above forms of the stem pll indicate, at least in a legal context, the basic notion of sole responsibility.41 We now turn to the second alternative: where it is a case of ’swn—in our interpretation, a case of perpetrator unknown. From a theoretical legal point of view, two possibilities immediately present themselves: that there is no liability at all,42 or that there is joint liability of all the participants in the brawl. The first is definitely excluded, since the apodosis does discuss

40 Speiser 1963: 304. 41 The stem pll also occurs twice in the form of a noun, in Isa 16:3 (plylh) and 28:7 (plylyh). In our view, they are not connected with the examples discussed above but with the Akkadian verb pal lu (“to watch over, be watchful”), often describing the activity of a scout. (See Speiser 1968: 389-91; AHw 813). In the first verse God is asked to watch over (or act as scout or look-out for?) a group of refugees fleeing the enemy, and in the second, the participants in a drinking orgy are so drunk that they cannot see straight nor maintain watchfulness. We would likewise not attempt to connect the hitpael form, htpll “to pray,” with our proposed meaning, except in the case of 1 Sam 2:25. It may be derived from a separate stem altogether; see HAL3 881-82. On the other hand, the cognate stems pl’ and plh may show some semantic connection, as in phrases such as: “a man who takes upon himself an oath” (ypl’ ndr in Lev 27:2) and “we have been set apart (npl’nw), I and your people, from all peoples” (Exod 33:16). I am grateful to Dr. S. Kogut for drawing my attention to this point. 42 This is the principle followed by Talmudic law in an analogous case: “When ten persons beat a man with ten sticks, whether simultaneously or successively, so that he died, none of them is guilty of murder” (b. B. Qam. 10b).

352 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources some sort of punishment, and the second finds no reflection in the laconic words “you shall give life for life, etc.” There is, however, a third possibility, suggested by comparative laws from the ancient Near East. Codex Hammurabi 22-24 provides: If a man commits robbery and is caught, that man shall be put to death. If the robber is not caught, the person robbed shall declare his lost property before the god, and the city and mayor in whose territory or district the robbery was committed shall replace his lost property. If it is a case of life (i.e., murder), the city and mayor shall pay his family one mina of silver. The law is divided into two alternative cases, on the same pattern as our biblical text: if the perpetrator is found; if he is not found. In the former case, the robber must pay the penalty; in the latter, it is the local public authority, representing the community as a whole, that is held responsible. The same solution is applied at Ugarit, in a series of treaties with neighboring states dealing with the problem of the murder and robbery of travelers from one state in the territory of the other. RS 17.230 reads:43 1-3 Ini-Teshub, king of Carchemish, has made this treaty with the “men of Ugarit.” 4-6 If a man from Carchemish is killed in the land of Ugarit, 7-12 if they catch the one who killed him, he shall pay three times a man (l u 2 3-u ú-ma-al-la)44 and three times the possessions that disappeared with him (the victim); 13-19 if they do not find the one who killed him, they shall pay three times a life (napita [zi ] 3-u ú-ma-al-lu-ú) and the possessions that disappeared with him—in simplum. 20-23 And if a man from Ugarit is killed in the land of Carchemish, the same payment (mu-ul-la-a) applies.

43 Edited in Nougayrol 1956: 153-54. 44 Nougayrol (1956: 153-54) translates “ils paieront,” but the verb is in the singular. Nor, as our discussion of the contents will show, need it be corrected to the plural, as does the CAD: “they (!) pay” (in M/1 182, s.v. malû, meaning 6e).

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In addition to seeing the same pattern as in CH 22-24, and the same imposition of responsibility on the community for an unsolved murder, we obtain some interesting data on terminology. The phrase “pay a man” (line 9) is a synonym for “pay a life” (line 14), as the parallelism of the clauses shows,45 and both are referred to as a mullû (line 23). The term mullû occurs frequently at Ugarit to designate a penalty for murder or theft, in conjunction with verbs of payment: either mullû, ullumu, or nad nu.46 A further treaty between Ugarit and Carchemish concerning the robbery and murder of expatriate merchants makes it clear that a money payment is involved.47 Where merchants from Ugarit have been robbed and murdered in Carchemish, the “sons of Carchemish” must “pay as mullû for one man 3 mina of silver.”48 Where merchants from Carchemish have been robbed and murdered in Ugarit, the same penalty applies, expressed somewhat more explicitly as: “3 mina of silver as mullû for one man, for the blood.”49

45 Cf. RS 17.251 (edited in Nougayrol 1956: 237), where a payment of “10 lives” is imposed for the illegal seizure of a person. 46 For references, see CAD M/2 189, s.v. mullû A. 47 RS 17.146 (Nougayrol 1956: 154-57). The verb ml’ also exists in Biblical Hebrew with the meaning “to pay in full”; see 1 Sam 18:27. 48 Lines 12-14 ù mu-ul-lu a 1-en 3 MA.NA KU3.BABBAR DUMU.ME KUR URU kar-ka-me ú-al-la-mu-ni Lines 26-27 ù DUMU.ME KUR URU kar-kà-me 3 MA.NA KU3.BABBAR.ME mu-ul-la-a a 1-en LU2-lim ú-al-la-mu-ni While following the same basic pattern as the previous treaty, this treaty is considerably more complex, involving as it does royal merchants and mercantile guilds. Strangely enough, the guild is held liable not only when the murderers are not found, but even when they are, and in the latter case for reimbursement of goods as well. Logically, one would have expected the more severe penalty on the guild in the former case. The reason would seem to be that the guild is expected to guarantee a minimum compensation should the robbers be insolvent. It might also provide immunity from later proceedings should (as is likely) the stolen goods eventually find their way into some of their member’s hands. On the strict liability of an innocent receiver of stolen goods, see Westbrook and Wilcke 1974-77. 49 Lines 34-35 ù a 1-en LU2-lim 3 MA.NA KU3.BABBAR.ME mu-ul-la-a a damê (= U2.ME) DUMU.ME KUR URU u-ga-ri-it ú-ma-al-lu-ni Cf. lines 43-44 ú DUMU.ME KUR URU u-ga-ri-it 3 MA.NA KU3.BABBAR.ME mu-ul-la-a a 1-en LU2-lim ú-ma-al-lu-nim-ma.

354 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Finally, in a lawsuit apparently based on a similar treaty, a merchant representing the king of Tarhudashi sues the “sons of Ugarit” over a merchant of Tarhudashi who was robbed and murdered in their territory.50 The judgment (of the king of Carchemish) is that the “sons of Ugarit” must pay the mullû of that merchant. The text continues (lines 16-19): “the sons of Ugarit paid 180 shekels of silver (i.e., 3 mina) as mullû to Arshi-miga the servant of the king of Tarhudashi.”51 It may therefore be concluded that the phrase “pay a life” refers to the payment of a fixed sum representing the value of a person. That value may be fixed by treaty or statute but often appears to be a matter of traditional law. The payment may be increased by multiplying the number of “persons/lives” (i.e., their fixed value) to be paid. Furthermore, the phrase “to pay a life” is found not only in the context of murder but also of causing miscarriage. According to the Middle Assyrian Laws A 50, a person who strikes a pregnant woman and causes her to miscarry “shall pay a life” (nap te umalla).52 His penalty is therefore a sum representing the value of the life lost. Only if there are aggravated circumstances, such as the death of the mother herself, or the fact of the fetus being a firstborn son to her husband, is the penalty death.53 The solution proffered by the cuneiform sources to the problem of death by an unknown hand is therefore to place responsibility on the local public authority, which is obliged to pay the injured party54 a money penalty. This principle obtained also in the Bible in the case of murder, as is evidenced by the ceremony of the heifer in Deut 21:1-9. Where there is an unsolved murder, the elders (inter alia) of the city in whose territory the corpse was found must take an exculpatory oath: “our hands did not shed this blood and our eyes did not see” (v. 7). In a letter from the king of Car50 RS 17.158 (see Nougayrol 1956: 169-71). 51 The term mullû also exists at Nuzi as the payment of a penalty for various offenses. The payment is in money, slaves, or animals, as fixed by the court. See the references in CAD M/2 189-90, s.v. mullû A. 52 Literally, “lives,” but it is a plurale tantum, as its use in MAL B 2 shows. The same penalty for causing a miscarriage is found in paragraph 52 of Tablet A. 53 The connection of the paragraph with the texts from Ugarit and its meaning of money payment were pointed out by Paul 1970: 72 n. 6. For other views, see Driver and Miles 1935: 111-14; and Jackson 1975: 97-98. 54 The relatives of the deceased. See below.

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chemish to the king of Ugarit55 concerning a woman whose husband was murdered in the city of Arzigana, a virtually identical oath is imposed upon the “men of Arzigana”: “we did not kill the husband of the woman, brother of X, in the city. We do not know who killed him.”56 If the “men of Arzigana” withdraw from the oath, they must pay a certain sum to the widow of the murdered man.57 Returning to our passage in the Bible, we submit that the phrase “you shall give a life” in v. 23 means that the community must pay the value of a life to the husband of the woman who miscarried in the case where the identity of the person whose blow caused the miscarriage cannot be ascertained, since: i) this is the solution offered for death by an unknown hand in Codex Hammurabi and in the texts from Ugarit considered above, which all present the problem in the same terms that we have posited for our passage; ii) the idea of community responsibility for death by an unknown hand is explicitly recognized in the Bible in Deut 21:1-9; iii) the terminology of the Ugarit texts, “pay a life,” is the same as that of v. 23; iv) that same terminology is employed in the context of causing miscarriage in the Middle Assyrian Laws; v) the phrase itself indicates a shift in the subject of the rule: “you (singular) shall give . . . .” This final point needs some elaboration. The sudden and unexpected use of the second person singular here has long been a source of perplexity. For Cazelles, it indicated an attempt by the redactor to stitch 55 RS 20.22, edited in Nougayrol et al. 1968: 95, 97 (no. 27). 56 Lines 46-50. 57 Lines 52-55. It is not at all certain that the “men of Arzigana” entirely escaped liability by taking the oath. Line 51, which states the consequences, is unfortunately broken at beginning and end. Nougayrol (1968: 95-97 n. 2) suggests that the oath only relieved them of liability for compensation payable apart from the standard penalty. It might refer to the penalty for goods lost.

356 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources together two different laws.58 For most other commentators, it is a clear case of interpolation.59 Only A. Alt tried to give the form an original function, with the unlikely hypothesis that the verse originally referred to a cultic offering.60 We would point to another function of the second person singular, which is attested in the Book of the Covenant, namely to direct a law at the community as a whole (or its representatives), e.g., “from my altar you (singular) shall take him to die” (21:14); “you (singular) shall not suffer a witch to live” (22:17). The form “you shall give,” therefore fits our reconstruction of the law perfectly, in terms of both the change in subject and the latter’s identity. Once the expression “give a life” is understood as the payment of a set sum at which a person’s life is valued, then the continuation of the phrase in v. 23 “instead of a life” (tt61 nf) causes no difficulty. It merely identifies the loss for which the penalty is being paid. This can be done by naming the object lost (where the loss is total—actual or constructive)62 or the nature of the damage where it is partial (e.g., burning). In the context of delict, a non-literal translation of the term “instead of” (tt) would, we suggest, be “as the penalty for.”63 The term does not assume that the penalty in question must necessarily be the mirror image of the loss caused. In the Book of the Covenant itself, a person who puts out his slave’s eye must set the slave free “as the penalty for his eye” (tt ‘ynw, 21:26), the owner

58 Cazelles 1946: 55-56. 59 E.g., Morgenstern 1930: 68-69, and 70 n. 72, discussing the older commentators; Jackson 1975: 100; and Phillips 1970: 89. 60 Alt 1934b: 303-5. Alt’s only evidence is a votive stele to the god Saturn from Nicivibus (in North Africa), dated to around 200 B.C.E. He does not explain why no such offering is adumbrated in the other laws concerning homicide or unlawful wounding, or for that matter why, if an offering could be made for a wound, one should not be made for a lost fetus. 61 HAL3 1026: “an Stelle von, anstatt, für,” from a basic meaning of “unterhalb von.” 62 Thus in CH 245-246 payment is “an ox instead of (k ma) an ox,” both where the plaintiff’s ox is actually killed and where it suffers an injury so severe as to make it unfit for use as a farm animal. 63 There is certainly an element of compensation, as payment may be made to the injured party, but since the payment is by no means always an indemnity, we consider it more suitable—in this context—to emphasize the penal element.

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of a goring ox that kills another’s ox must pay 64 an ox “as the penalty for the ox” (tt hwr, 21:36), and the thief of an ox must pay five cattle “as the penalty for the ox” (21:37). Payment of the penalty can thus take the form of the same type of item, a multiple of similar items, or an abstract legal act. Likewise in the Middle Assyrian Laws, in the case of a simple miscarriage, the person responsible must pay a life “as the penalty for her fetus” (kimu a libbia),65 but where the circumstances are aggravated by the fact that the fetus was a firstborn son, he is put to death likewise “as the penalty for her fetus.”66 The final problem that remains is the continuation of the formula in vv. 24-25, “an eye instead of an eye, a tooth instead of a tooth, etc.” Although this list has been considered a later addition to the main text,67 the very nature of the ancient Near Eastern law codes provides a ready explanation for its presence. The principle behind the imposition of liability on a city for cases of unsolved murder was the responsibility of the city for the safety of travelers on the roads of its territory. The principle behind the imposition of liability on the community in the law in Exodus was similarly the safety of passersby in the streets. But in neither case is the abstract principle given express formulation—this is not the method of the law codes. Instead the casuistic method typical of those codes is used. In the Exodus law, the principle of responsibility for safety in the streets is expressed firstly by a strong example, the pregnant woman who is jostled by brawlers, and this example “generalized” by adding a long list of further examples, to show that any injury to an innocent passerby will come under the same rule.68 To summarize: the law in Exod 21:22-25 provides that if an innocent passerby is injured as a result of a brawl and the person responsible is not caught, the community must pay a money penalty to the victim in lieu of the ransom-money that the victim could otherwise have claimed. The money penalty will be a fixed sum and is therefore likely to be lower than 64 Note that the variation between the verb lm here and ntn in the law of the pregnant woman is paralleled by the interchangeable use in RS 17.146 of ullumu (lines 12, 27, 43) and mullû (line 34). 65 MAL A 50 (col. VII, lines 68-69, 72-73). 66 MAL A 50 (col. VII, lines 78-79). 67 Jackson 1975: 94, 106-7. 68 On this technique, see Bottéro 1982: esp. 434-35.

358 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources the ransom-money that could have been demanded from the perpetrator himself.69 Accordingly, we would translate the passage as follows: If men fight and a pregnant woman is pushed and has a miscarriage, if it is not a case of perpetrator unknown, he (the perpetrator) shall surely be punished as the woman’s husband shall impose (ransom) upon him, and he shall pay alone. If it is a case of perpetrator unknown, you (the community) shall pay a life as the penalty for a life, an eye as the penalty for an eye, a tooth as the penalty for a tooth, an arm as the penalty for an arm, a leg as the penalty for a leg, a burn as the penalty for a burn, a wound as the penalty for a wound, a bruise as the penalty for a bruise. The passage therefore provides no information as to the existence of a talionic principle for physical injuries in biblical law.

Excursus Our investigation is now completed within the terms of reference that we set for it at the beginning of this article. It would be helpful, however, to try to explain the law in Lev 24:17-21 in the light of our findings. A modern idiomatic translation (JPS) reads: If a man kills any human being, he shall be put to death. One who kills a beast shall make restitution for it: life for life. If anyone maims his fellow, as he has done so shall it be done to him: fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him. He who kills a beast shall make restitution for it; but he who kills a human being shall be put to death.

69 In the treaties from Ugarit, the penalty on the community is always lower than that imposed on the perpetrator himself. Penalties such as death, ransom, or talio would in any case not be appropriate for a public body.

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The law unambiguously demands literal retaliation, using the same terminology as in Exod 21:23-25. How can the two laws be reconciled, on our interpretation of the latter? We tentatively suggest that the Leviticus pericope is an exegesis of the law in Exodus (or one very similar in form) and a strained one at that. A more literal translation will make our point clear: A man who strikes dead any life of a human shall be killed. One who strikes dead a life of a beast shall pay it life instead of life. A man who gives a blemish in his fellow: as he did, so shall be done to him—fracture instead of fracture, eye instead of eye, tooth instead of tooth. As he put a blemish on his fellow so shall be put on him. One who strikes dead a beast shall pay it; one who strikes dead a human shall be killed. What reasoning lies behind this extraordinarily prolix and repetitive language? This passage in Leviticus belongs to a source that is known for its bitter opposition to the common practice of accepting ransom-money in lieu of the murderer’s execution.70 Thus in Num 35:31-32 we read: You shall not take ransom-money for the life of a murderer who has done wrong deserving death, but he shall be put to death. Nor shall you take ransom-money in lieu of his fleeing to his city of refuge (or) returning to live on his land before the death of the priest. You shall not pollute the land in which you live, for blood pollutes the land, and the land can have no ransom for the blood which is shed on it except by the blood of him who shed it. We surmise that the author of this passage had before him the text of the Exodus law, or one very similar to it, containing the well-known phrase “pay a life instead of a life”—which was known to mean money payment—and less well known phrases such as “an eye instead of an eye,” which perhaps had been coined only for the particular law. This precedent needed to be distinguished if his view was to prevail, and he did so in the 70 The Priestly source. See Eissfeldt 1964: 235 (in the English edition); and McKeating 1975: 64-65.

360 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources passage in Leviticus by a method of reasoning that presages Talmudic interpretation: “life” in the text before us does not refer, as one would normally suppose, to human life, but to animal life, and the text is therefore not a precedent for accepting ransom-money for homicide.71 The remaining members of the formula, now divorced from the familiar “pay a life,” can therefore be interpreted as literal retaliation.72 The final step is to summarize the results of this exegesis in the author’s own words: “one who strikes dead a beast shall pay it; one who strikes dead a human shall be killed.”

71 The interpretation is not entirely fantastic, since CH 245 rules that a man who, by neglect or by blows, kills another’s ox, must replace “ox instead of ox.” But the circumstances are the very specialized ones of a contract of hire; otherwise it is rare for people to kill oxen. Perhaps CH 245-248 provided the inspiration for the Levitical author’s exegesis, since the sequence of injuries there (to the ox) are: life, fracture (of leg or neck), eye, horn ( tooth?). 72 Note that the verb lm, which can only refer to payment, is used in connection with the life of a beast, while the verb ntn, which as we have seen is synonymous with lm in this context and is so used in the Exodus law (n. 64 above), but does have a broader range of meanings, is used in connection with the various injuries in the less usual sense of “put on” and thus can be interpreted as “inflict.”

23 The Deposit Law of Exodus 22:6-12 Abstract Exod 22:6-12 comprises two laws dealing with the responsibility of depositees. Both form coherent legal rules, consistent in their individual parts, that may be explained without recourse to theories of diachronic change or editing. The first concerns goods deposited for safekeeping in a house and tests the owner’s claim of fraudulent breach of contract by the depositee by recourse to an oracular procedure. The second concerns a herding contract and provides for exculpatory oaths by the depositee, on the one hand, against a claim of misuse of an animal and by the owner, on the other, against a claim of fraudulent recaption.

T

he Covenant Code contains a number of rules relating to the responsibilities of the depositee. In a modern translation, Exod 22:6-12 reads:


(6)

When a man gives money or goods to another for safekeeping, and they are stolen from the man’s house—if the thief is caught, he shall pay double; (7)if the thief is not caught, the owner of the house shall depose before God that he has not laid hands on his neighbor’s property. (8)In all charges of misappropriation— pertaining to an ox, an ass, a sheep, a garment, or any other loss, whereof one party alleges, “This is it”—the case of both parties shall come before God: he whom God declares guilty shall pay double to the other. (9)When a man gives to another an ass, an ox, a sheep or any other animal to guard, and it dies or is injured or is carried off, with no witness about, (10)an oath before the Lord shall decide between the two of them that the one has not laid hands on


Originally published in Zeitschrift für die alttestamentliche Wissenchaft 106 (1994): 390-403. Copyright © Walter de Gruyter. Used by permission.

362 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources the property of the other; the owner must acquiesce, and no restitution shall be made. (11)But if [the animal] was stolen from him, he shall make restitution to its owner. (12)If it was torn by wild beasts, he shall bring it as evidence; he need not replace what has been torn by beasts. (JPS) Although the general purport of the law is clear, interpretation of many of its details is fraught with difficulty, due to apparent legal inconsistencies and to the ambiguity of its language. For v. 8 alone, Knierim lists some sixteen variant translations.1 Accordingly, opinions differ greatly as to its meaning, and the tendency of modern scholars has been to see the text as composite, embodying several layers of different laws superimposed or at least the results of redactional changes to the original law. Special anomalies that frequently have been pointed out are the different divine names in vv. 7-8 and in v. 10, the absence of a penalty at the end of v. 7, the abrupt change in style and content in v. 8, and the third alternative in v. 9, “captured,” which seems inconsistent with the first two.2 It is not our intention to enter into a discussion of the merits of individual proposals for dealing with these anomalies, since we propose an entirely different approach. We shall seek to show that the law is an organic whole, consistent in its individual parts, that may be explained without recourse to a diachronic deconstruction of its text. In doing so, we shall apply principally the method of legal logic, on the grounds that in a legal text, the sole criterion for resolving ambiguities of language is the most appropriate legal meaning. For that purpose it must be assumed that the law is coherent, and only if all attempts fail should recourse be had to explanations based upon error, inelegant editing, or unresolved difficulties arising from the historical development of legal conceptions. The text contains two separate laws, in vv. 6-8 and 9-12, which we shall consider in turn. The first concerns the theft of goods deposited in a

1 Knierim 1965: 162. 2 Baentsch 1892: 42; Ehrlich 1908: 353; Jepsen 1927: 38-40, 66 69, 73; Noth 1962: 184; Horst 1961a: 169; Knierim 1965: 143; Paul 1970: 93 n. 1; Jackson 1972: 101-2; Otto 1988b: 14-19; Otto 1988c: 16-25; Schwienhorst-Schönberger 1990: 194-211. A recent interpretation apparently eschewing this approach is that of Schenker 1990: 2734.

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person’s house for safekeeping. As Otto has pointed out,3 the nub of the law lies in the situation where the thief is not caught and suspicion falls upon the depositee that he may have misappropriated the property for himself under cover of a claim that they were stolen by person or persons unknown. That is the question posed by the words “if he did not lay hands on his neighbor’s property”—not whether the depositee was negligent, but whether he was in deliberate breach of contractual obligations. The procedure for resolving this question is given in vv. 7-8. In our opinion, v. 8 is the direct continuation of v. 7. The apparent generality of its language is deceptive; in fact, it enters into details of the accusation against the depositee raised in v. 7. There is therefore nothing missing at the end of v. 7. Indeed, although it is not necessary to our argument, we would suggest that v. 7 is still part of the protasis, which should be read: “if the thief is not found and the householder has drawn near the ’l hîm (to determine) if he did not lay hands on his neighbor’s property.” The circumstances of the case are thus set within the parameters of an accusation of bad faith which obliges the depositee to undergo an evidentiary procedure. The following verse then contains the resolution of that procedure. Two main views have been expressed as to the nature of the procedure: that it is an oath, or that it is an oracular judgment.4 We would reject the first possibility, for the following reasons: 1. The terminology is completely different to that of v. 10, where the oath procedure is described in explicit terms. 2. An oath by its nature is as to facts within the personal knowledge of the swearer. It is unlikely that the depositor in this case would have personal knowledge of the depositee’s act of theft to which he could swear. 3. The description does not accord with the way the oath functions in litigation. Although evidence in the Bible is lacking, this aspect of the oath is well attested in the surrounding societies, 3 Otto 1988c: 17. 4 Bibliographical references in Jackson 1972: 237 n. 1. For the oath, see in particular Price 1929, and for the oracle Graf 1864. A further possibility (e.g., Cassuto 1967: 286, cf. 267) is that ’l hîm means simply the court. But a statement that a dispute between two parties is to be tried by the court would be banal and superfluous in a law code.

364 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources being among the oldest known and most widespread legal procedures in the ancient Near East.5 It is a decisive form of evidence in litigation but is not automatically employed in every case.6 In its simplest form, the court imposes on the defendant an exculpatory oath, whereby he may deny the allegations against him. If he swears the oath, he wins the case; if he refuses to swear, he loses. Such was the fear of the oath’s consequences, i. e., divine punishment in the form of realization of the self-curses pronounced, that it was not infrequent for the defendant to refuse to swear,7 or for the plaintiff to concede the case rather than let him swear,8 or for the two parties to reach a compromise rather than proceed to the oath.9 On occasion, the court may impose the oath on the plaintiff instead of the defendant, and it will often impose the oath on the witnesses of one side or the other, sometimes together with the party in whose favor they are attesting.10 In its judgment, a court at Ugarit allowed for two contingencies: if the plaintiff’s witnesses confirmed his allegation, then they were to swear the oath thereto together with the plaintiff; if, however, they did not confirm his allegation (and thus became witnesses for the defendant), they were to swear to that effect together with the defendant. 11 From the above analysis, the following characteristics of the litigation oath emerge: 5 The earliest known examples are from the Sargonic period: Edzard 1968: nos. 81, 96. In the declaratory version, which applies to evidence in litigation, the oath-taker invokes the name of a god (or king) and calls down upon himself various curses if the statement he is making should not be true. (The other version is the promissory oath which is used in contracts.) For the biblical oath, see Horst 1961b: 292-314. 6 The clearest analysis is provided by Driver and Miles 1940. For the neo-Sumerian period, see Falkenstein 1956: 66-68, and cf. Edzard 1976: 90-92. 7 Edzard 1976: 91; Driver and Miles 1940: 133, text no. 1; ana itti u (MSL I 6 I 45-50; see Landsberger 1937: 177-78). 8 TCL 1 232 (= Schorr 1913: no. 265), Driver and Miles 1940: no. 7. 9 CT 4 13a, CT 4 47a, CT 6 33b. 10 See Loewenstamm 1980a. 11 RS 20.20 (edited in Nougayrol et al. 1968: 94-97) following Loewenstamm’s interpretation of the identity of the second set of witnesses (1980a: 341-42).

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1. It is imposed by the court in its discretion, after a preliminary hearing. This is expressed by such terms as “the judges gave/sent X to the oath.” 12 2. It is imposed on one party only (and/or his witnesses). 3. The act of swearing the oath (or failing to do so) in itself decides the case; there is no further judgment by the court or any other outside agency. The true judgment of the court has been in deciding which party is to take the oath. These characteristics clearly do not fit the procedure as described in vv. 7-8, where both parties are involved and an outside agency renders judgment. On the other hand, the characteristics of an oracular proceeding are appropriate to that procedure. In the absence of other evidence, the oracle is perfectly apt to decide whether a person is lying or not, by answering yes or no. It functions by choosing between people (e.g., as between Saul and Jonathan in 1 Sam 14:42), and where the issue is the contradictory statements of two litigants, in choosing the one that lies it will automatically vindicate the other as telling the truth. Furthermore, the verb used in v. 7, qrb, is found in two accounts of oracular procedure, in Josh 7:14 and in 1 Sam 14:36. Turning from procedure to substance, the key to understanding v. 8 is the word p ‘, a common term for sin or wrongdoing. The long accepted view of Köhler that in this context it meant “Bestreitung,” the contestation of a claim of ownership between two innocent parties,13 has been refuted by Knierim, who points out that it can bear this meaning nowhere else in the Bible.14 Knierim’s own proposal, however, “Eigentumsdelikt” (property offense), 15 relies on a doubtful analogy. In 2 Kgs 8:20, 22, the verb clearly refers to the rebellion of Edom against 12 Price (1929: 27) in analyzing Exod 22:8 confuses oath with judgment: “Each party was obliged to face the taking of the oath and to swear by the severest of oaths. In case no guilt could be proved the judges freed the accused.” It is possible to separate v. 7 from v. 8 and to take the former as the oath by the depositee alone and the latter as a different procedure (e.g., Noth 1962: 184), but only at the cost of presuming that v. 7 represents an incomplete law. 13 Köhler 1928. 14 Knierim 1965: 143-60. 15 Knierim 1965: 163.

366 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Judean hegemony. According to Knierim, Edom is removing itself from sovereignty of Judah and thus robs Judah of part of its property. 16 While it is true that vassals in the ancient Near East (like subjects) were referred to as the “slaves” of their overlords, in no context is there any suggestion that the rules of property applied to them, e.g., that they could be bought and sold like domestic slaves. It is not possible, therefore, even with the help of legalistic subtlety, to reduce Edom’s act to one of theft. 17 Nevertheless, Knierim is correct in looking to its use in the context of rebellion to explain the meaning of the term in our text. The verb can simply mean “to rebel,” as its use in tandem with mrd in Ezek 20:38 shows. As Cogan and Tadmor point out, however, it is not used in a neutral sense.18 It occurs where the rebellion is a rebellion by a foreign vassal, such as Edom or Moab, against Israel or Judah,19 while Judah’s rebellions against Assyria or Babylonia employ the term mrd. It is thus a judgment on the vassal by the overlord that he has “sinned” in rebelling. It is paralled by the use of “to sin” in Akkadian texts condemning the rebellion of vassals.20 The reason why rebellion is a sin is that vassalage is based upon a treaty, entered into by solemn oaths (on the part of the vassal at least). Rebellion is a breach of that treaty and oath, which brings down upon the party in breach the sanctions (usually in the form of curses) provided for by that treaty. As a Neo-Assyrian treaty puts it: 21 If Mati-ilu sins against this treaty (ina adê annûti) with Aurnerari, king of Assyria, may Mati-ilu become a prostitute, his soldiers women . . .; may Itar, the goddess of men, the lady of women, take away their bow, bring them to shame, and make 16 Knierim 1965: 150-51. 17 Knierim’s reasoning as to the nature of the slave’s offense is found in developed Roman law, in Justinian’s Digest: “a runaway female slave is understood to commit theft of herself” (D.47.2.61). 18 Cogan and Tadmor 1988: 21-22. 19 2 Kgs 1:1; 3:5, 7; 8:20, 22; 2 Chr 21:8, 10. By analogy, Israel against the House of David (1 Kgs 12:19 = 2 Chr 10:19) and Israel and Judah against God (Isa 1:2ff.). 20 See CAD  157b. 21 Parpola and Watanabe 1988: 8-13 (column V, lines 8-15).

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them bitterly weep: “Woe, we have sinned against the treaty of Aur-nerari, king of Assyria.” The annals of Aurbanipal make the same connection in describing the regrets of defeated rebels: 22 “because we did not keep the great treaty23 of Aur, we sinned against the goodness of king Aurbanipal.” In the Bible, the same idea was given an additional dimension by the use of the treaty as a metaphor for the agreement between God and Israel whereby the latter were to accept God as their ruler,24 generally translated “covenant” in English (the same Hebrew term, brît, is used for covenant and treaty). Rebellion against God, using the term p ‘, consists in breach of the covenant, as Ezek 20:37-38 makes clear when God states that he will purge Israel of rebels and sinners (hamm rdîm whappô ‘îm) as part of the process of bringing Israel under “the obligation of the covenant” (m s ret habbrît).25 The same association is expressed by Hos 8:1 through parallelism: “Because they broke my covenant (‘ brû brîtî), and rebelled (p ‘û) with regard to my commands.” In law, wrongs against another person can be committed ex delictu or ex contractu. There are many examples in the Bible of the use of p ‘ to express the former, as in Jacob’s (alleged) theft of Laban’s gods (Gen 31:36) or the son who robs26 his parents (Prov 28:24). A treaty is not more than a contract in the sphere of international law. In domestic law, therefore, the term p ‘ would properly apply to a breach of contract, not perhaps to a minor or inadvertent breach, but to a fundamental willful breach, as is betokened by rebellion in the context of treaty. Since our text concerns a contract—of deposit—and since misappropriation of the property deposited amounts to just such a breach of that contract, it is reasonable to interpret the term p ‘ as the type of wrongdoing that is specifically ex contractu, i.e., a wrongful and willful breach of a fundamental term of the contract of deposit. 22 Streck 1916: 78-79 (column VII, lines 72-74). 23 On the term adê “treaty, covenant,” see Parpola 1987: 180-83. 24 The fundamental study is that of Mendenhall 1955. For a survey of the considerable scholarship on this topic, see McCarthy 1978. 25 Translation from Greenberg 1983: 362. 26 Or oppresses (gzl). On the meaning of this term, see Westbrook 1988d: 23-30, esp. 26 n. 88.

368 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The term by which p ‘ is qualified, dbr, has a multitude of possible meanings. We would select in this context the basic meaning “word,” because the verse goes on to specify: it gives verbatim the words used in the allegation. Thus dbr-p ‘ is, in our interpretation, the statement of the owner as to breach of contract by the depositee,27 which he then expresses with the phrase: kî hû’ zeh. Of the two possible translations of this phrase,28 the first, “it is that,” must refer to an owner of lost property identifying his property, and is totally inappropriate to a dispute between owner and depositee where, as Knierim points out, the property cannot yet have been recovered.29 We therefore adopt the second possibility: “he is it,” meaning that he (the depositee) is the thief. The allegation of the owner is that the depositee himself is the thief, and not some person unknown as he has claimed. We now come to the crucial part of v. 8, the list of animals or missing property, the formulation of which gives the impression of a rule of far more general import than the dispute hitherto described between owner and depositee. The most glaring discrepancy is that the property is not the same as that by which the contract of deposit was originally defined: silver or utensils. Why are asses and the like suddenly brought into the discussion? To understand their connection with the dispute, we must go back to the opening clause of the law: “if the thief is found, he shall pay double.” The fact appears to have been overlooked by commentators that if there is any clause that is out of place in this law, it is the express mention of the thief’s penalty. If the issue is deposit, then the exact penalty imposed upon the thief is irrelevant to the dispute, and if the issue is one of theft, then it is of no consequence whatsoever from whom the thief steals, be it borrower, hirer, depositee or the owner himself; his penalty will always be the same. It becomes highly relevant, however, if the point is to locate the liability of the dishonest depositee on the scale of penalties that apply to theft.

27 Paul (1970: 89 n. 6) refers to the parallel Akkadian terms and dab bu, which mean both word and, in a legal context, case or allegation. 28 Knierim 1965: 162. 29 Knierim 1965: 153.

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In both the cuneiform and biblical sources the same principles are applied in the treatment of theft and related offenses such as embezzlement, 30 receiving stolen goods,31 dishonestly obtaining a pecuniary advantage,32 etc. Punishment varies according to two criteria: the type of theft and the type of property stolen, and is usually expressed as a multiple of the latter’s value. In CH, a penalty of ten-fold is imposed for the theft of animals, whether stolen (§8) or misappropriated by a dishonest shepherd (§265), but misappropriation by a dishonest overseer of feed-grain entrusted to him is punishable by a two-fold penalty (§8) and theft of a plough by a payment of five shekels (§259), or three shekels for a hoe (§260). In the Hittite Laws, the distinctions are sharper: the theft of a bull, stallion, or ram is punishable by a 15-fold payment (§§57-59), that of a draught ox or horse by ten-fold (§§6061), that of a cow, mare, or ewe by six-fold (§§67-69), and that of a pig, bees, or grain by various smaller amounts (§81; §§91-92; §96). On the other hand, misappropriation of a bull, stallion, or ram by a dishonest finder of those animals when lost is punishable by a seven-fold payment only. The sole distinction is the absence of asportation which is a characteristic feature of ordinary theft. In the Covenant Code, the distinction is made in the case of ordinary theft between ox and sheep, for which five and four-fold penalties respectively are payable (Exod 21:37). In Exod 22:3, a two-fold payment is levied whatever the animal involved. We have argued elsewhere that the offense is the (innocent) purchase of stolen goods, i.e., the difference in penalty between the two cases is based on their being entirely different offenses and not on the legally irrelevant factor of what a thief does with his property after he has stolen it. 33 If we are correct, then one aspect of the distinction between the two offenses is the presence or absence of asportation. To return to our text, the penalty for ordinary theft of an ox or a sheep is five- and four-fold, but for misappropriation by a dishonest

30 E.g., the dishonest shepherd who misappropriates animals entrusted to his care: CH 265. 31 E.g., MAL A 3-4. 32 E.g., Edict of Ammi-aduqa 7. Cf. CH 8. 33 Westbrook 1988d: 111-19.

370 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources depositee it is only two-fold. The point of the verse, with its general list of items, is then that whatever the property involved, even if it normally carries a higher penalty, the offense is to be treated in the same way as theft of silver or utensils, with the same (relatively) low penalty as in that case. Accordingly, we would translate the disputed part of the law: “if the thief is not found and the householder comes before the ’l hîm (to determine) if he did not lay hands on his neighbor’s property: on every allegation of wrongdoing, whether ox, ass, sheep, or garment or any missing property concerning which he (owner) says ‘He (depositee) is it (the thief),’ the word of both of them shall come to the ’l hîm. The one whom ’l hîm condemns shall pay two-fold to his neighbor.” The wrongdoing in question is willful breach of the contract of deposit by misappropriating the deposited property. This serious allegation obliges the depositee to submit to the oracular procedure, concerning which it is ruled that the penalty shall not exceed that for simple theft of silver or utensils in any case, that the accuser must also face the oracle (which presumably will point to one or the other as the liar), and that if his accusation is proved false, he must bear the potential penalty himself under the normal talionic principle. 34 The second rule (vv. 9-12) takes us out of the house and into the realm of herding contracts. The same type of contract was concluded between Jacob and Laban, and there are now many examples from cuneiform records.35 In this type of contract the herdsman is automatically liable for losses from the herd due to theft (v. 11), so that the question of good

34 Schenker (1990: 29) attempts to explain the dishonesty of the depositee as a false claim that some valuable property of a neighbor in fact belongs to the claimant, who had only deposited it with the neighbor for safekeeping. It is difficult to reconcile this interpretation with the explicit statement in v. 8 that the property in question is lost. On Schenker’s hypothesis, neither party would be claiming that the property had been lost: the “owner” would claim that it is with the depositee, and the depositee would claim that he had never received it. 35 Gen 29:15-18; 30:28-34. As befits their literary context, the terms are a trifle unusual, but 31:38-41 refers to standard liability clauses: see Finkelstein 1968: 30-36; and Morrison 1983: 155-64. For the cuneiform material, see Postgate 1975: 1-18.

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faith does not arise.36 On the other hand, he is exempt where loss is due to the depredations of wild beasts, provided he brings the remnant of the animal as proof (v. 12). Jacob notes that he did not do so and thus forfeited his exemption (Gen 31:39). Complications arise with the herdsman’s obligations in vv. 9-10. There are three difficulties. Firstly, the content of the oath is to the effect that the herdsman did not “lay hands” on the animal, as in the previous rule. As Schwienhorst-Schönberger points out, it is difficult to see why a herdsman would deliberately wound or kill an animal entrusted to him, and the language of the phrase excludes negligence, i.e., that the mishap was caused by an omission on the herdsman’s part. 37 On that basis, it would apply only to the last of the three possible mishaps that are listed: the capture of the animal, where the herdsman is accused of misappropriating it himself. This difficulty may readily be resolved if we remember the essential difference between a contract of deposit and a contract of hire. In the latter, the hirer pays the owner for the privilege of using his property; in deposit, the depositee, whether or not he is paid, holds the property for the owner’s benefit and may not, unless special provision has been made, exploit it for his own benefit. Thus it is that the following law (v. 13) obliges the hirer of animals to compensate the owner for injury to or death of the animals during the period of hire, since these are risks that naturally arise from his use of them. The depositee, on the other hand, would not normally be held to such a standard, unless the suspicion arises that he did in fact use the animals, in breach of his contract. He therefore takes the oath to negate an allegation that he appropriated to his own use the animals in his charge, whether by exploiting their labor or their products or possibly even by consuming them. Jacob, in asserting his honesty to Laban, points out that during 36 The reason may lie in the fact that a herding contract includes compensation for the shepherd, whereas a contract of deposit with a householder would not automatically do so. The question of remuneration lay at the basis of the Rabbinic distinction: see the Mek., ad v. 11. Schenker (1990: 30-31) considers that liability for theft falls on the shepherd because he had had the usufruct of animals, unlike the depositee of goods in vv. 6-7, and the owner had thus suffered an extra loss. But, as we shall see, the usufruct is exactly what the shepherd should not have had. 37 Schwienhorst-Schönberger 1990: 199.

372 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources his service as a herdsman “I did not eat the rams of your flock” (Gen 31:38). On the other hand, it must be admitted that the case of capture, which involves a dishonest claim that the animal was taken away by a third party, still seems to accord ill with the first two cases. We shall return to this question below. The second difficulty also arises from the anomalous nature of the case of capture. In verse 10, following the oath, it is stated: wl qa b ‘lâw “its owner shall take/has taken.” If, as some commentators consider, it refers to the owner taking back the remains of the dead or wounded animal38 (although, since the animal belongs to the owner anyway, this would seem to be a superfluous provision), then it cannot cover the case of capture, where the animal must have disappeared entirely. It would suggest that either this phrase or the case of capture is an illconsidered interpolation into the text. Accordingly, most commentators translate: “the owner shall accept (the oath).”39 Satisfactory as this solution may appear, and in spite of the fact that it preserves the integrity of the text, it is unacceptable, for legal reasons. As we have seen, in litigation, the exculpatory oath is imposed upon one of the parties by the court, in the exercise of its discretion. He will then win the case if he takes the oath and lose if (as not infrequently happens) he refuses to take the oath. The question of the other party “accepting” the oath as conclusive evidence simply does not arise. We must therefore reconsider the phrase in question. The oath in verse 10 is qualified by a curious condition. This oath is said to be “between the two of them” (bên nêhem). The very same expression occurs in 2 Sam 21:7, where David is said to take pity on Miphiboshet, the son of Jonathan, “because of the oath of YHWH between them (bên tm), between David and Jonathan.” The reference here is to the mutual oaths that the two friends swore to each other when David was forced to flee from Saul’s court (1 Sam 20:42). 40 In our text, then, this 38 E.g., Cassuto 1967: 287, following the Mek.; Ehrlich 1908: 353; and Schenker 1990: 29. 39 Translation from the NRSV. Cf. the JPS: “the owner must acquiesce.” See Schwienhorst-Schönberger 1990: 204 n. 42 for the earlier authorities. 40 “Between them” (ina bir unu) is a standard phrase for expressing mutuality in Akkadian: CAD B 246-247. Its use to express mutual oaths is illustrated by the equal treaty between Ugarit and Amurru (RS 19.68; edition in Nougayrol 1956: 284-86):

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means that both the owner and the herdsman were obliged to take an oath. 41 The phrase “laid hands on his neighbor’s property,” however, can only refer to the herdsman’s oath, since he is not the owner. The only possible reference to the owner’s oath can be in the following phrase wl qa b‘ lâw, which should then be translated with the past tense, as “his owner took.” To identify the taking in question, we must look back to the wrongs listed in the previous verse. The first two, death and injury to the animal, have nothing to do with taking, but obviously relate to the herdsman’s oath concerning exploitation of the animals, as we have seen. The third, “capture,” furnishes a clear parallel. The circumstances in which “capture” by the owner would be wrongful are when the owner surreptitiously takes back his own animal (“with none seeing”) and then claims it from the herdsman. A similar act of dishonesty is described in CH 113, when a creditor surreptitiously takes grain from his debtor’s granary. In neither case can it be called theft, since the owner (or creditor) is taking his own property, but any future claim for return of the property deposited or lent will clearly be fraudulent. The two oaths in v. 10 are not cited directly but described through the perspective of their results, which are biased towards the innocent herdsman. Two situations are presented where the herdsman is cleared of liability through the oath procedure: (a) where he proves that he did not use the animal by taking the oath; (b) where it is proved that the owner did recapt his own animal by his refusing to take the oath. This is not to say that they are part of the same procedure. As we have seen, “From this day, Niqmadu king of Ugarit and Aziru king of Amurru have made an oath between them” (lines 1-5: ma-mi-tam i-na be-ri- u-nu i-te-ep- u-nim). 41 Schenker (1990: 29-30) does indeed interpret the oath as mutual (“ob nicht einer [der beiden] seine Hand auf das Gut seines Nachbarn legen wollte”), seeing again here a false claim by the owner that he had lent an animal that was returned damaged or lost altogether. But his proposed scenario fits neither the term “captures” (the circumstances of the animal’s disappearance are a matter of indifference to the owner) nor the terms of the oath as translated by him. Note Patrick’s comment on v. 10 (1985: 82): “Although the initial clause ‘an oath by Yahwe shall be between them’ sounds as if both parties took an oath, it is clear from what follows (‘to see whether he has not put his hand . . .’) that the bailee alone is involved.”

374 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources only one party to an action swears the oath, and here in any case there are two different accusations, deriving from different circumstances: the second is a counter to the claim that an animal is missing, not that it is dead or injured. At most, they could arise at the same time, when the animals are due to be returned, and might thus be consolidated in one suit. We therefore conclude that the two were conveniently lumped together by the framer of this text because they shared the oath procedure.42 The final difficulty is the discrepancy between the divine name that is used in the two rules, in vv. 7-8 and 10, which has indicated for many commentators the existence of different strata in the text. 43 We can only point out that the two entirely different procedures are involved. The oath is taken in the name of Y HWH , the national god, which is in accordance with the normal pattern for oaths. The earlier procedure does not mention an oath at all. It is before ’l hîm, which may refer to another god, to any god, or perhaps to no god at all, but to some institution or building, as seems to be the case in the other use of the term in the Covenant Code, in Exod 21:6. 44 As we have no knowledge of the criteria applied by the ancient courts in deciding to employ the oracle, oath, or the other procedures available, it is impossible to say why the one was preferred over the other in this particular case. Some indication, however, of the conditions for allowing the depositee to take the oath is provided by CE 37, where the circumstances are analogous to those of vv. 6-8: 42 The consequences for the owner of having wrongfully recapted his animal are not stated. Possibly there were none—in the nature of the oath procedure, the owner would lose by refusing to take the oath and thus withdrawing his claim. From the parallel of CH 113, one might have expected some penalty on the owner, but this law seems to be concerned only with the question of the shepherd’s liability. 43 E.g., Jepsen 1927: 73; Noth 1962; cf. Alt 1934a: vol. 1, 289 n. 3 (of the 1959 edition); and Schwienhorst-Schönberger 1990: 200-3. 44 Loretz (1960: 167-75) points to the fact that oaths were normally taken at the temple. Thus in CE 37, an oath concerning deposit is taken at the gate of the Tipak temple. (Tipak, it should be noted, was the national god of Eshnunna.) On the other hand, oaths are not the sole legal procedure that takes place at the temple, as Loretz himself admits, in arguing that the earpiercing ceremony of Exod 21:6 likewise was performed at the temple door. For further theories as to the meaning of ’l hîm in this verse, see the literature cited by Schwienhorst-Schönberger 1990: 308 n. 191.

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If the man’s house is ransacked(?)45 and the house-holder’s property is missing together with the deposited property (or, perhaps, property of the depositee), 46 the house-holder shall swear to him an oath at the Gate of Tipak: “My property is indeed missing with your property; I have not committed fraud and deceit.” He owes him no debt. The meaning of the law is in part obscure due to textual difficulties, but that aspect which concerns us is fortunately clear. The theft includes property of the householder, who escapes liability by taking an exculpatory oath confirming this fact and denying wrongdoing. In our view, the point of joint loss being mentioned here is that it enables the householder to cross the threshold of credibility that will make him eligible for the oath, by establishing a presumption of innocence in his favor. 47 The householder, to account for his inability to return the property, tells a story, introducing a possibly fictional third party. The exculpatory oath, which deals essentially in negatives, is not 45 Restoration of luqqut suggested by Landsberger 1968: 99. 46 Tablet A (IM 51059) iii 18 has it-ti ma-a-ar-tim; Tablet B (IM 52614) iii 1 has it-ti bu- e-e lúma-a-ar-tim. Contrary to Landsberger’s interpretation (1968: 99 n. 1), the term must be lúmaartum (in the genitive) “watchman, guard.” Cf. EA 52:38, 48. 47 The same consideration would appear to be behind mention of joint loss in CH 125: If a man gave his property for safekeeping and where he gave it his property was lost together with the householder’s property through breaking in or climbing in, the householder who was negligent and caused the loss of the property given to him for safekeeping shall indemnify (literally: make complete and restore) the owner of the property. The householder may continue to search for his property and take it from its thief. Koschaker (1917: 26-33) noted that the issue of joint loss is immaterial to that of liability for negligence, since the depositee could not have guarded the depositor’s goods less well than his own. He concluded that the formulation of the law was confused due to its combination of older and later law. Under the older law, joint loss was automatically sufficient to relieve the depositee of liability, whether negligent or not. With the introduction of liability for negligence, the present text was drafted to show that it applied even to cases of joint loss, where it was previously exempt. There is no need, however, to assume confused editing or the existence of a mechanical and primitive rule. If our understanding of CE 37, discovered after Koschaker’s commentary, is correct, then in CH 125 mention of joint loss is made only to exclude the question of fraud, since the paragraph wishes to concentrate entirely on liability for negligence.

376 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources the appropriate means for introducing such extraneous matters. Prima facie evidence of the alleged events must first be adduced in some other form. We tentatively suggest (since omission is not a reliable basis for argument in respect to ancient Near Eastern law codes) that in the absence of this factor in Exod 22:6-8, there was no evidentiary presumption that would make the oath appropriate in that particular case. In the second rule in vv. 9-10 the same objections do not arise. The oaths are purely negative—taken in reply to the accuser’s allegations (of use on the one hand, and recaption on the other), not in support of any further allegations of the accused.

Summary and Conclusions Exod 22:6-12 contains two laws on deposit, the first concerning property consigned to a person’s house and the second livestock entrusted to a herdsman. As befits contractual obligations, liability is strict, but with some exceptions. In the first law, the depositee may be relieved of the duty to restore property lost if he can show that it was due to the wrongful act of a third party, namely the thief. If the depositee’s claim is fraudulent, however, he becomes liable to a penal payment, a multiple of the goods lost, as for theft, but only at the low level as for theft of silver or utensils, whatever the type of property in fact lost. The procedure for testing the veracity of the depositee’s claim, should the owner allege it to be fraudulent, is oracular, with the owner suffering the depositee’s potential penalty should the oracle decide against him. In the second case, the above exception does not apply, the herdsman being liable for animals lost due to theft. On the other hand, he is exempted from liability for animals killed by wild beasts, subject to production of their remains as proof, and for natural wastage. If, however, wastage was the result of the herdsman’s exploiting the animals entrusted to him, contrary to the terms of a contract of deposit, he will be liable (in what amount is not stated). He may take the exculpatory oath to clear himself of such an accusation of breach of contract. By the same token, if the owner of the livestock surreptitiously recapts an animal for the purpose of a wrongful claim against the herdsman, he may take the oath to clear himself of this charge.

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Both laws are concerned essentially with fraud and with the procedures necessary to rebut a charge of fraud. Neither of them deals directly with negligence, perhaps because it was not the subject of this traditional legal problem. Whether the exceptions to contractual liability could themselves be limited by an allegation of negligence remains an open question.48

48 It was claimed by Koschaker (1917) that the introduction of the concept of negligence by the depositee in CH 125 represented a major legal innovation. Most commentators regard CE 37 (and Exod 22:6-12) as representing an earlier stage of legal development. See, e.g., Yaron 1988b: 251; and Otto 1988c: esp. 25-27.

24 Who Led the Scapegoat in Leviticus 16:21? Abstract The longstanding conundrum of the phrase yt@i(i #$y)i in Lev 16:21 is reexamined in the light of Hittite and Greek parallels. In addition, the etymology of yt@i(i is considered anew. Both the comparative and the philological evidence point to the idea that a criminal was the man who was to lead away the scapegoat as part of the Yom Kippur ritual.*

A

celebrated passage in the book of Leviticus prescribes the ritual of public atonement for the collective sins of the Israelites, to be performed by Aaron, the high priest, as part of the Yom Kippur purgation. It involves two goats, one to be sacrificed as a sin offering and the other to be led out into the wilderness. The procedure, according to Lev 16:21, is as follows: Then Aaron shall lay both his hands on the head of the live goat, and confess over it all the iniquities of the people of Israel, and all their transgressions, all their sins, putting them on the head of the goat, and sending it away into the wilderness by means of someone designated for the task (yt( #y)). (NRSV)

The translation “someone designated for the task” reflects the later talmudic tradition that a priest was assigned the task of leading the goat out and ensuring that it did not return (m. Yoma 6.3). Other modern translations follow the LXX, which has   μ (“someone * Co-authored with Theodore J. Lewis. Originally published in the Journal of Biblical Literature 127 (2008): 417-22. Copyright © Society of Biblical Literature. Used by permission.

380 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources at hand, ready, prepared”) for yt( #y) (cf. Vg.: per hominem paratum). Jacob Milgrom, for example, renders the phrase as a “man in waiting,” and the Eberhard Bible as “(durch einen) bereitstehenden Mann.” 1 The descriptive phrase in all these translations is superfluous, telling us nothing of consequence about the man who is to lead the scapegoat. In this respect, the KJV’s “a fit man” is no wit inferior. Like all the versions ancient and modern, it reflects the translator’s difficulties with a hapax legomenon of uncertain meaning: yti@(i. The apparent root is t(' (“time, appointed time”), but translators have not succeeded in deriving a term from it that is appropriate to the context (cf. Targum Onqelos: g bar diz mîn). We suggest that the description of the man involved was of great significance to the ritual and propose an entirely new interpretation based on parallel Hittite and Greek traditions2 and on a different etymology of the word yti@(i. A number of Hittite rituals have been compared with the biblical scapegoat, but one is of particular interest because it involves both an animal and a human actor to accompany the animal. The Ritual of Ahella prescribes the steps to be taken to rid the army camp of plague:3 4-7 At evening time, the army commanders, whoever they are, all prepare rams—whether white or dark does not matter at all. 11-14 At night they tie them in front of the tents and say as follows: “. . . Whatever god has made this plague (henkan), behold! I have bound up these rams for you: be appeased!” 15-17 At dawn I drive them out onto the steppe. And with each ram they bring a jug of beer, a loaf of thick bread, and a . . . jug, and they make an adorned (unuwant) woman sit down

1 See the comments of Milgrom 1991: 1045; and Levine 1989: 106. 2 By doing a comparative legal analysis of three neighboring societies, we are by no means embracing the myth-and-ritual approach of old nor implying any notion of a universal religious practice. 3 KUB IX 32:1-32 and duplicates: see CTH 394 (Laroche 1971). See the translation by Gurney 1977: 49.

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before the king’s tent and place with the woman a jug of beer and three loaves of thick bread. 18-24 Then the army commanders place their hands on the rams and say as follows: “Whatever god has made this plague, now behold! The rams are standing here and are very fat in entrails, heart, and loins. Let human flesh be hateful to him, and let him be appeased by these rams.” And the army commanders bow to the rams and the king bows to the adorned woman. 25-32 Then they bring the rams and the woman and the bread through the camp and they drive them away onto the steppe. And they run away to the enemy’s border without coming to any place of ours. And they say repeatedly as follows: “Behold! Whatever evil (idalu) there was in the camp among the men, oxen, sheep, horses, mules, and donkeys, now behold! These rams and this woman have taken it away from the camp. And the one that finds them, may that land take this evil plague (idalu henkan). The ritual is explicitly designed to transfer the evil (idalu) that is the cause of the plague (henkan) from the soldiers to the rams. They are chased out of camp together with the woman, and both woman and sheep continue on until they reach enemy territory. There is thus a double dispatch: the king and his troops send away the woman and the rams, but it is she who has to herd the rams across the border. The woman acts as a buffer between the king and the rams, who are contaminated with the evil plague. In terms of a warriors’ encampment, a woman, the symbol of weakness, held the lowliest possible status. Nonetheless, she is dressed in finery, apparently as a substitute for the king, just as the male rams are substitutes for the warriors. In another Hittite plague ritual, the king exchanges clothes with a prisoner of war, who is then described as “adorned” (unuwant). 4 4 The ritual involves a prisoner of war and a captive woman. The former is expressly a substitute for the king. They are to be the focus of a plague-bringing enemy deity, male or female respectively, and are to carry the plague back into their own country. See KBo XV 1 I 6-22 in Kümmel 1967: 111-25.

382 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources In the Greek world of the first millennium B.C.E., more closely contemporary with the biblical source, the archetypal scapegoat is a person ( μ), not an animal. Various sources attest to the chasing out (or killing) of a scapegoat in order to end a famine or plague, or else as part of an annual ritual.5 In descriptions of actual rituals, as opposed to mythological accounts, the scapegoat was a marginal person, such as a criminal,6 slave, or poor person. Indeed, the word

μ became a term of abuse, as were other terms also used to describe the scapegoat, such as μ (“offscourings”) and   μ (“sweepings”). Notwithstanding his lowly status, the Greek scapegoat was sometimes dressed in finery, like the Hittite woman. J. Bremmer has explained the dichotomy by the fact that in theory aversion of the catastrophe demanded sacrifice of a valuable person, but in practice the upper ranks of society were unlikely to be forthcoming. Accordingly, an expendable subject was taken but was treated as an important person. 7 It may rather have been a question of substitution by appearance, as in the Hittite rituals. In Strabo’s description of a Leucadian custom, the qualification for the scapegoat in an annual ritual was not class or character in general, but actual criminal culpability (10.2.9): It was also the ancestral custom among the Leucadians every year during the sacrifice to Apollo for someone of those guilty (of crimes:       ) to be thrown from the cliff for 5 There is an extensive bibliography on the subject going back to 1913 (see Fraser 1966). The evidence is surveyed by Bremmer 1983: 299-320. See also Burkert 1979: 59-68, for a comparative analysis of the Greek, Hittite, and Hebrew sources. Some Greek sources suggest that the scapegoat was killed, but Hughes argues that the later lexicographers and scholiasts added the element of killing, whereas the earlier sources contemporary with the living custom speak only of expulsion (1991: 139-64; cf. Bremmer 1983: 315-17). 6 Douglas (2003: 121-22) writes against those such as R. Girard who make use of Greek scapegoat rituals that, she argues, “do not look remotely like the Bible” especially because “there is nothing obviously punitive about the levitical rite.” Yet our understanding of the etymology of yt( #y) (see below) would undercut Douglas’s critique precisely on this point. 7 Bremmer 1983: 303-7.

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the sake of averting evil. To him were attached feathers of every sort and birds capable of reducing with their fluttering the force of the leap, and below many men would wait in a circle in small boats and take him up. And when he had been taken up they would do all they could to remove him safely beyond the borders. Several points are to be noted. Although the victim is a criminal, the ritual is not punishment for his particular crime. Rather, it is apotropaic—to ward off a potential calamity to the community. The text gives the impression that the victim is selected more or less at random from a number of suitable candidates. Nor is the victim actually killed. Although he is required to make a hazardous leap into the sea, measures are taken to ensure his survival. He is then hastily expelled from the territory, perhaps without touching land again. His banishment notwithstanding, in a sense it was the criminal’s good fortune to be selected for this fate. The phrase    suggests that he has been found guilty but not yet punished.8 Exile in this ritualistic way may well have been a means for him to escape a more severe punishment. In the light of these scapegoat traditions from neighboring societies, we may reconsider the etymology of yti@(i in Lev 16:21. The traditional understanding of yti@(i is to see it as a form of t(', the Hebrew word for “time” from the root hn(, with the doubling of the t being the result of the regular assimilation nt > tt (*int > ittî). Owing to the contextual difficulties noted above, it seems more likely that yt@(i (again with the common nt > tt assimilation) is from the Semitic root tn(. Here our best evidence is from Syriac, Aramaic, and Arabic. The noun ett(
) is well attested in Syriac with the meaning “deceit, knavery, villainy, depravity.” 9 R. Payne Smith notes that it often translates Hebrew NwE)f, “trouble, wickedness.”10 C. Brockelmann points out that ett
is used to translate Mysimfxj, “lawlessness” (//(#$arE, “wickedness”) in Prov 4:17. 11 8 The term   refers solely to guilt, blame (or the accusation thereof). See the references in LSJ 44, s.v.   I. 9 Payne Smith 1999: 3008; Payne Smith/Payne Smith 1988: 431; Brockelmann 1928: 535. 10 Payne Smith 1999: 3008. 11 Brockelmann 1928: 535.

384 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The verbal root for ett
would be nt. It appears in its assimilated form (nt > tt) in Syriac t(t) with the meaning “to defraud, be fraudulent, dishonest, wicked.”12 As pointed out by R. Payne Smith, the cognate form is well attested in Arabic as anita (with lack of assimilation) meaning “to be in distress, to meet with hardship, to commit crimes, sins, or acts of disobedience deserving punishment.” 13 A cognate noun )t%fn: (a, “oppressor, wrongdoer,” is used in the Targum of Prov 16:33 to translate the Hebrew Vorlage reflected by the LXX’s  , “ungodly, unrighteous, unjust” (not in the MT). Brockelman also lists the Arabicanatun “crimen.”14 Elsewhere one could reconsider the etymology of the Ugaritic warrior goddess
Anatu. Suffice it to say that numerous suggestions have been offered in the past with, in P. L. Day’s opinion, “no conclusive results.”15 Though warriors can be painted in a positive light (cf. the Hebrew PN yt@a(a referring to one of David’s mighty warriors in 1 Chr 12:12), their violent actions (such as
Anatu’s decapitations and cutting off hands in KTU 1.3.2) can easily be cast in a negative light. Thus, the etymology underlying the Ugaritic DN
Anatu and the Hebrew PN yt@a(a may be cognate to the root nt in Arabic, Syriac, and Aramaic mentioned above. 16 Lastly the final i vowel on yt@i(i (#$y)i) deserves comment. No satisfactory answer has been presented for this vowel, even among those who follow the traditional interpretation that the word designated a “timely” person. It is most likely not a remnant of the original case system or associated with the so-called hireq compaginis, which is mostly restricted to nouns in construct and participle forms in

12 Payne Smith 1999: 3008; Payne Smith/Payne Smith 1988: 431. See also Payne Smith Margoliouth 1981: 256; Brockelmann 1928: 535. 13 Payne Smith 1999: 3008; see Lane 1984: 2168-69. 14 Brockelmann 1928: 535. 15 Day 1999: 36. 16 There is a possibility that the root may also be found in the opening line of the larger of the two Arslan Tash inscriptions, which reads lt l t
and could refer to an “incantation against evil” (see Garbini 1981: 277-94, who notes the Arslan Tash text, yet he takes the root to be wy or
wt). Yet most scholars emend l t
to l

t
, “flyers,” a word that is firmly attested later in the text.

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poetry. 17 A better option would be the relational/adjectival suffix î (the so-called nisbe suffix), which is well known through its use on gentilics and ordinal numbers. According to B. K. Waltke and M. O’Connor, the î suffix can be used “to make adjectives from substantives” with examples such as lgErE “foot” > ylig:rA “foot-(soldier),” rkenO “strangeness” 18 > yrIkn; F “strange,” and txa t%a “below” > yt@x i ; t@a “lower.” Thus yt@i(i #$y )i could designate a criminal man. *

*

*

From the parallel rituals, the rationale for choosing such a person becomes perfectly clear. He is the ideal candidate for taking away the goat carrying the community’s sins. As in the case of the Leucadian scapegoat, his crime is not specified, but it symbolizes impurity akin to that of the goat, except that the latter had to be made impure by a ritual of transference. Like the Hittite woman, he plays the role of a buffer between the high priest and the sin-ridden scapegoat, and there is a double dispatch: of the yt@i(i #$y)i by the high priest and of the goat by the yt@i(i #$y)i. Unlike in the parallels, the biblical criminal could eventually return after dispatching the scapegoat and could presumably escape further punishment for his offense.19 The difference is based on impeccable logic. Since the purpose of the biblical ritual is to remove not a plague (or similar divine punishment for sin) but the actual sins of every Israelite, the criminal must have had his sin removed as well.

17 Waltke and O’Connor 1990: §8.2; Joüon and Muraoka 2006: §93 l-q. 18 Waltke and O’Connor 1990: §5.7c. 19 He did, however, have to wash his clothes and bathe before he was allowed to reenter the camp (Lev 16:26). The one who burns the sacrificial bull and goat of the sin offering outside the camp must perform the same cleansing ritual (Lev 16:27-28).

25 The Prohibition on Restoration of Marriage in Deuteronomy 24:1-4 Abstract The prohibition in Deut 24:1-4, that a woman’s first husband may not remarry her after her second marriage has ended, becomes effective only in very particular circumstances. This article argues that those circumstances entail a first husband who divorced the woman with grounds (due to misconduct on her part) and a second husband who ended his marriage with the woman either by divorcing her without grounds or simply by passing away. A closer look at these circumstances helps to explain the rationale for the prohibition in this text.

he purpose of this article1 is to re-examine the law in Deut 24:1-4 forbidding a man to remarry the wife whom he had divorced and whose subsequent marriage has now come to an end, and to propose a new solution to the problem that has troubled commentators both ancient and modern: what was the rationale behind this curious rule? Although it later became the basis for the general principles of divorce in Jewish law, the text itself is concerned with a very narrow set of circumstances, which are set out in great detail:

T

When a man takes a wife and marries her, if then she finds no favor in his eyes because he has found some indecency in her, and * Originally published in Studies in Bible (ed. S. Japhet; Scripta Hierosolymitana 31; Jerusalem: Magnes Press, 1986), 387-405. Used by permission. 1 This article was first presented at a departmental seminar of the Hebrew University Law Faculty’s Institute for Research in Jewish law in 1984. I wish to express my thanks to all the participants for their comments and criticisms, which greatly assisted in the drafting of the final version. Responsibility, of course, is entirely my own.

388 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources he writes her a bill of divorce and puts it in her hand and sends her out of his house, and she departs out of his house, and if she goes and becomes another man’s wife, and the latter husband dislikes her and writes her a bill of divorce and puts it in her hand and sends her out of his house, or if the latter husband dies, who took her to be his wife, then her former husband, who sent her away, may not take her again to be his wife, after she has been defiled; for that is an abomination before the LORD, and you shall not bring guilt upon the land which the LORD your God gives you for an inheritance (Revised Standard Version). The lengthy protasis may be analyzed into eight steps which are necessary for the operation of the apodosis and which correspondingly narrow the circumstances to which the prohibition will apply: 1. 2. 3. 4. 5. 6. 7. 8.

The first husband (H1) marries the wife (W). H1 finds “some indecency” (rbd twr() in W. H1 therefore divorces W. W marries H2. H2 “dislikes” ()n#) W. H2 divorces W. Alternatively (to steps 5 and 6) H2 dies. H1 tries to marry W.

In order to understand the law’s rationale, it is necessary to discover what is special about this particular combination of eight circumstances. The explanations offered to date, however, all fail to take into account at least one of the circumstances listed. 1. The earliest explanation is that proposed by Philo in Spec. Laws:2 . . . she must not return to her first husband but ally herself with any other rather than him, because she has broken with the rules that bound her in the past and cast them into oblivion when she chose new love-ties in preference to the old. And if a man is will2 Philo Spec. Laws 3.30-31.

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ing to contract himself with such a woman, he . . . has lightly taken upon him the stamp of two heinous crimes, adultery and pandering. For such subsequent reconciliations are proofs of both. In other words, the wife has committed adultery, and her former husband by remarrying her becomes a party thereto. As Yaron points out,3 this rationale ignores the legal character of the text. The wife’s divorce and her subsequent marriage are both perfectly legal: she cannot have committed adultery.4 If Philo is suggesting that adultery during her first. marriage was the motive for her divorce and second marriage, then this is certainly not reflected in the text, where the first divorce is a unilateral act of the husband and clearly at his initiative. 2. S. R. Driver suggested,5 that the prohibition acted as a deterrent to hasty divorce: the first husband could not lightly send away his wife with the assurance that he could always take her back again. But here also Yaron points out the unreality of such a rule: the divorcing husband is hardly likely to have in mind the possible circumstances following the dissolution of a subsequent marriage by his wife.6 Once again the protasis is far too complex for the solution offered. 3. Yaron’s own proposal takes up a further point made by Driver,7 namely, that the woman who desired to return to her former home might 3 Yaron 1966: 6-7. 4 We suggest that the express mention of the bill of divorce in both cases was to emphasize the fact that both divorces were legitimate and that no question could arise of the woman not being free to remarry, i.e., her subsequent action could not be interpreted as adultery. Cf. the famous passage in Matt 5:31-32: “It has been said, ‘Whoever shall put away his wife let him give her a bill of divorce.’ But I say to you that whoever shall put away his wife, except for fornication, causes her to commit adultery.” In our view, Jesus is here denying the efficacy of the bill of divorce to dissolve the old marriage (or rather, the husband’s ability to dissolve and use the bill as evidence thereof), thus allowing the wife the freedom to remarry. Cf. an Old Babylonian bill of divorce (Meissner BAP 91): “H has divorced his wife W. She has . . . her . . .; she has received her divorce-money. If another marries her, H will not raise claims.” 5 Driver 1896: 272. 6 Yaron 1966: 5. 7 Driver 1896: 272.

390 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources be tempted to intrigue against her second husband. The object of the prohibition, in Yaron’s view, is to protect the second marriage from such an eventuality, or from the first husband attempting to get his wife back. The rule is therefore concerned with the stability and continuation of the second marriage, not the first .8 Yaron’s theory, unlike its predecessors, accounts for the importance of an intervening marriage as a condition for the prohibition, but there remains one circumstance in the protasis that it fails to cover, namely the possibility of the second marriage ending with the death of the husband.9 It is understandable that the law might wish to prevent the second marriage being terminated by divorce, but there is no reason for it to intervene where an external event has brought that marriage to a natural end. The express mention of this alternative shows, in our view, that marital discord was not the situation that the law had in mind.10 4. Another approach is to look at the motive clauses at the end of the apodosis. Wenham compares these to the motive clauses of the prohibition against incest in Leviticus 18 and 20 and concludes that the Deuteronomic text actually regards the restoration of marriage as a type of incest.11 His reasoning is as follows: the incest prohibition applies to certain relations created by marriage and may even survive the end of the marriage that created the forbidden affinity. In the Bible, a wife was regarded as her husband’s sister. Divorce did not terminate this relationship: she is counted as a very close relative. If a divorced couple remarry, it is an incestuous union, like a man marrying his sister. We shall not enter here into a discussion of the validity of Wenham’s analysis of the incest laws or of the nature of the marital relationship. It is sufficient to say that his analysis cannot possibly apply to the Deuteronomic law because it completely ignores the intervening marriage. The law does not, as Wenham assumes, prohibit remarriage as such, and there

8 Yaron 1966: 8-9. 9 As pointed out by Wenham 1979: 37. 10 The idea that the wife might consider murdering her second husband is too far-fetched and is not considered by Yaron, but Rashi suggests that she contributes to his death. 11 Wenham 1979.

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is no way that we can see of the second marriage being a factor in the creation of incestuous affinity. 5. A final explanation is that there is a natural repulsion12 against taking back a wife who had cohabited with another man. Yaron, however, points out that the Deuteronomic prohibition is unparalleled in any other legal system, which would suggest the opposite. Nonetheless C. Carmichael attempts to show that such an attitude did exist in ancient Israel and thus provided the rationale behind the law.13 He finds evidence in a comparison of the two cases in Genesis where Abraham passes off Sarah his wife as his sister, first to the Pharaoh (chap. 12) who takes her as his wife, and then to Abimelech (chap. 20) who is prevented from doing so by a timely warning in a dream. According to Carmichael the author of the second passage is reacting against the situation in the first, where Sarah is actually taken as a wife, because he finds it offensive that Sarah could be taken by another man and then restored to Abraham. The Deuteronomic source shares this sensibility, which it transfers to the legal sphere. Carmichael’s analogy is inexact. The act which is found offensive by both sources is adultery. It is committed by the Pharaoh, and he is severely punished for it.14 (Sarah, of course, is not punished, being under duress.) Abimelech is stopped on the verge and spared punishment. Carmichael attempts to overcome this objection by suggesting that Abraham had de facto divorced Sarah, thus re-establishing the analogy to the Deuteronomic law. But if Sarah was divorced, why punish the Pharaoh or threaten to punish Abimelech? As Wenham points out,15 Carmichael’s interpretation virtually reinstates Philo’s view that the second marriage is adulterous, after that view had been discredited by Yaron. We would suggest that, far from there being a natural repulsion, both biblical and ancient Near Eastern sources find nothing untoward in a man resuming relations with his wife after she has had relations with another,

12 See, e.g., Junker 1933: 100. 13 Carmichael 1974: 203-7. 14 The punishment is vicarious: the killing of members of Pharaoh’s family is considered punishment of the head of the household. 15 Wenham 1979: 37.

392 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources even amounting to marriage, providing no other factor makes resumption of the marriage improper. Our first piece of evidence is the very same source that Carmichael relies on, Genesis 12. The Pharaoh marries Sarah, the marriage is prima facie valid but in fact void due to a hidden defect. When the defect is discovered, Sarah is returned to her first husband, and the first marriage continues as if nothing had happened. The varying degrees of moral turpitude of the parties involved do not affect the validity of the marriage. The second instance in the Bible is the marriage of David and Michal, which is likewise interrupted by the marriage of Michal to Paltiel.16 The narrative appears to regard it as perfectly natural for Saul to give his daughter to another husband after David has fled for his life, and for Ishbaal later to accede to David’s demand for her return. The reason has been elucidated by Z. Ben-Barak from a widespread practice in Mesopotamian law.17 Codex Eshnunna (CE), Codex Hammurabi (CH) and the Middle Assyrian Laws (MAL) all contain provisions whereby a person who has been forcibly detained abroad and whose wife has remarried in the interim may on his return reclaim his wife.18 The second marriage, if justified by the circumstances,19 was perfectly valid, and children of that marriage followed their father—in other words, they were legitimate. Nonetheless, it was voidable at the first husband’s instance, should he one day return. David’s demand, according to Ben-Barak, is based upon a comparable law which explains both Ishbaal’s acquiescence and the second husband’s inability to resist the demand.20 The significance of the comparison from our point of view is that both in the biblical narrative and in the Mesopotamian laws a husband is found claiming the restoration of his wife after she has been married to another (and even had children by him), and nowhere is revulsion expressed at the idea. On the contrary, the law hastens to assist the original husband at the expense of the second marriage.

16 17 18 19

1 Sam 18:20-29; 25:44; 2 Sam 3:12-16; 6:16, 20-23; 21:8-9. Ben-Barak 1979: 15-29. CE 29, CH 133-135, MAL A 45. CE requires only that the first husband have been absent “a long tine,” whereas CH requires lack of subsistence. MAL sets a two-year period (and lack of subsistence). 20 Ben-Barak 1979: 25-29.

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Ben-Barak saw a contradiction between the law behind David’s claim to restoration of his marriage and the prohibition in Deuteronomy and concluded that the latter was not in force in David’s time.21 There is in fact no need to assume a contradiction, since the special circumstances of the husband’s enforced absence22 would constitute an obvious exception to any general prohibition. It will be our contention, however, that the prohibition in Deuteronomy was by no means so broad as to come into conflict with the practice in the case of the absent husband: it applied not to restoration of marriage as such, but to restoration in very particular circumstances. Let us therefore return to the protasis of our Deuteronomic law and begin by examining the detail upon which so many of the theories stumble—the difference in the dissolution of the first and second marriages. In the former, the husband finds “some indecency” in his wife and divorces her. In the latter he “dislikes” her and divorces her or, in the alternative, dies. There must therefore exist some underlying factor which is on the one hand common to divorce for “dislike” and death, and on the other distinguishes these two types of dissolution from divorce for “indecency.” That factor, we submit, lies in the property aspect of marriage—more exactly, in the financial consequences of its dissolution. The Bible contains no direct evidence on this aspect of marriage, but there is sufficient evidence from both earlier cuneiform sources and from post-biblical Jewish sources to establish the existence of a continuous tradition. To take the case of widowhood first, CH 171b-172 contains the basic principles: The wife shall be entitled to her dowry and to marital property that her (late) husband gave her in writing in a tablet. . . . If her husband has not given her marital property, they shall make good to her her dowry, and she shall take a share like one heir in the property of her husband’s estate.

21 Ben-Barak 1979: 29. 22 The first marriage is deemed dissolved by death, but the facts may turn out to be otherwise.

394 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources More than a thousand years later, paragraph 12 of the Neo-Babylonian Laws (NB) applies the same principle, if in somewhat different measure: A wife whose husband has received her dowry, and she has no son or daughter of her own, and death has carried off her husband, then a dowry as much as the dowry shall be given her from her husband’s property. If her husband has given her a marital gift,23 she shall take her husband’s gift together with her dowry and is quit. If she has no dowry, the judges shall assess her husband’s property and something shall be given to her according to her husband’s property. Likewise in the Mishnah, the widow is entitled not only to her dowry24 but also to her “ketubah,” namely, the marriage settlement or the statutory minimum in the absence of a voluntary settlement.25 In the case of divorce, our earliest record of the financial consequences is Codex Ur-Namma (CU) 6-7: 6 If a man divorces his first wife, he must pay one mina of silver. 7 If it is a (former) widow whom he divorces, he must pay half a mina of silver. That this was not the only payment is revealed by CH 138-140: 138 If a man divorces his first wife who has not borne children, he shall upon divorcing her give her money in the amount of her bride-money and make good to her the dowry that she brought from her father’s house. 139 If there was no bride-money, he shall give her one mina of silver as divorce-money.

23 On the problems of the terminology, see Westbrook 1988b: chap. 1. 24 The rules are complicated by the division of the wife’s property into categories called gwlm yskn and lzrb N)c yskn, but her basic entitlement is unquestioned. See, e.g., m. Ketub. 7.1. 25 These principles are regarded as so self-evident that it is difficult to find a direct statement of them. For clear indirect evidence, see e.g., m. Ketub. 10.1-2.

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140 If he is poor, he shall give her one third of a mina of silver. The sums set out in CU and CH are thus revealed as the minimum where there is no bride-price. The bride-price (teratum) is the equivalent of the biblical rhm and in divorce is used as the measure of compensation, parallel to the widow’s marriage settlement.26 It should be added that this measure of compensation was itself in lieu of contractually agreed divorcemoney, which was the norm in marriage contracts throughout the ancient Near East. The Middle Assyrian Laws, as we shall see below, contain the principle that at least the dowry is to be returned on divorce, if not always with additional compensation.27 It is in the Mishnah, however, that the tenacity of the early Mesopotamian tradition is revealed. Apart from her dowry, the divorcée is entitled, like the widow, to the payment of compensation—her hbwtk—which, in the absence of express agreement in the marriage contract, is a fixed minimum of 200 zuz for a virgin bride and one hundred for a former widow, i.e., the same distinction as in Codex Ur-Namma, and in exactly the same proportions.28 Moreover, a beraita in the Babylonian Talmud 29 reveals that these fixed sums represent the transformation of the bride-money into divorce-money, the culmination of a development 30 which we have already seen at an earlier stage in Codex Hammurabi, where the bride-money was the measure of divorce-money.

26 Where the wife has had children, the financial consequences are more dramatic. The principle revealed by CE 59 and CH 147 is that the husband forfeits his whole property to the wife. See Westbrook 1988b: chap. 4. 27 MAL A 37 appears at first sight to allow the husband total discretion in whether to give his wife a divorce settlement, but as C. Cardascia (1969: 191-96) points out, it must be read in the light of paragraphs 20 and 38, which refer to the restoration of the dowry and forfeiture of the bride-price respectively. It should also be read in the light of the husband’s contractual obligations, Assyrian marriage contracts being in no way special in this respect. Possibly paragraph 37 is denying a right to a statutory minimum as awarded by CH 6-7 and CH 138. 28 m. Ketub. 1.2. 29 b. B. Qam. 82b. 30 The interim stage is represented by a custom whereby the bride’s father returns the bride-price to the groom via the bride, so that it becomes part of her dowry. The beraita reveals how this custom became law. See Geller 1978.

396 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources In summary, there is a tradition spanning the whole length of ancient Near Eastern law that, upon dissolution of the marriage, whether by divorce or by the death of the husband, the wife was entitled to a financial settlement consisting at least of the restoration of the dowry that she brought into the marriage, but generally also of a payment from the husband’s resources. It is reasonable to suppose, therefore, that biblical law shared the same principle. In the case of divorce, however, there is a complication. For if the wife had committed some wrong that justified the husband in divorcing her, then the financial consequences were entirely different. The principal marital offense that a wife could commit was adultery, but in Mesopotamia as in the Bible, the penalty was death, and not surprisingly, there is no word as to the financial consequences. On the other hand, CH also discusses cases where the wife has committed some wrong less serious than adultery. CH 141 reads: If the wife of a man . . .31 accumulates a private hoard, scatters her household, slanders her husband—on being found guilty, if her husband pronounces her divorce, he may divorce her without giving her anything, not her journey-money, not her divorce-money. If the husband can prove, therefore, that his wife has been guilty of misconduct, here mostly of a financial nature, he can divorce her without paying the usual compensation. There is no mention of her dowry, but if she is to be expelled from the matrimonial home without even money for the way, it is reasonable to suppose that the husband was not obliged to restore it. Further evidence for this interpretation comes from the alternative to divorce given the husband in the same law: the wife will continue to live in his house “as a slave”—which implies that she is stripped of her property. CH 142 deals, in our interpretation,32 with the case of a woman who 31 The clause omitted contains complications that do not concern us here. See Westbrook 1988b: chap. 4. 32 The interpretation of the first part of the protasis is a matter of considerable scholarly dispute. See Westbrook 1988b: chap. 2.

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refuses to marry her fiancé. If after investigation by the local court it is found that . . . she is chaste and has no sin and her husband (= fiancé) is going out and greatly slandering her, that woman has no penalty; she shall take her dowry and go to her father’s house. If she is not chaste and is going out, scattering her house, slandering her husband, they shall cast that woman into the water. The form of betrothal is known in modern scholarship as “inchoate marriage,”33 being very close to full marriage, and the provisions of this paragraph may therefore be extended by analogy. Indeed, there is some evidence that misconduct by a fiancée in inchoate marriage was treated more harshly than misconduct by a wife.34 At all events, the misconduct here is similar to that of the wife in CH 141 and in addition includes sexual misconduct. It is unlikely that the latter actually amounted to fornication (or at least this was not proved), since the usual explicit language is lacking,35 and it is cumulated with other, less serious, offenses. What is important from our point of view is the fact that the woman, if proved innocent, is entitled to keep her dowry. The necessary inference is that her misconduct would lead to its forfeiture. By analogy, if she were a wife and divorced for such conduct, she would leave without her dowry. The same principle as regards the wife’s property is found in MAL A 29. The law first recites the rule that the wife’s dowry and gifts from her father-in-law are reserved for her own children; her husband’s family have no claim to them. It continues: “But if her husband drives, her out,36 he may give it to his children at his choice.” A rare Assyrian verb, pugu “to drive out with force,” is used instead of the standard verb for divorce, ezbu. According to Cardascia, the reason is that the wife is being expelled for misconduct, not merely divorced, and hence the rule that in these circumstances she forfeits her marital property.37

33 34 35 36 37

The term was coined by Driver and Miles 1952: 262-63. Cf. Gen 38:24-25; Deut 22:20-21, 24. Cf. CH 129, 131, 132, “lying with another man.” Following Cardascia’s interpretation (1969: 161-63). Cardascia 1969: 163.

398 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Finally, the principle is stated explicitly in the Mishnah:38 These are they that are put away without their Ketubah: a wife that transgresses the Law of Moses and Jewish custom. What (conduct is such that it transgresses) the Law of Moses? If she gives her husband untithed food, or has connexion with him in her uncleanness, or does not set apart dough-offering, or utters a vow and does not fulfill it. And what (conduct is such that it transgresses) Jewish custom? If she goes out with her hair unbound, or spins in the street,39 or speaks with any man. The first category of transgressions—against the Law of Moses—is entirely anchored in Scripture, but the second category has no obvious biblical basis and must derive, as the Mishnah claims, from ancient custom. And from the Mesopotamian sources it is clear that this custom was very ancient indeed. Thus a second principle may be posited as common to ancient Near Eastern law (and thus presumed in biblical law as well): if the wife was guilty of misconduct, which could be in the sphere of her financial and household duties or, from the examples in CH and in the Mishnah, sexual misconduct not amounting to adultery but rather in the sphere of indecency or immodesty, her husband was justified in divorcing her without the usual financial consequences. She forfeited her right to divorce-money and apparently her dowry as well. In our text in Deuteronomy, the first divorce comes about because the husband found “some indecency” (rbd twr() in his wife. The term has been the subject of much debate, beginning with the famous dispute between the schools of Hillel and Shammai in m. Gi. 9.10. Of the modern scholars, only A. Toeg argued that the term means actual adultery, on the ground that in most occurrences in the Bible hwr( is employed as a euphemism for sexual relations (e.g., Lev 18:6).40 But there can be no

38 m. Ketub. 7.6. 39 This involves exposing herself. Cf. b. Gi. 90a, which adds the example of bathing where men bathe. 40 Toeg 1970: vii. Toeg’s argument is weakened by his claim that the clause is an interpolation, which relieves him of the need to find a role for it in the law.

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question of sexual connotation in Deut 23:15, which is the only other biblical text to employ the identical phrase rbd twr(. In that passage, it is the physical cleanliness of an army camp that is the issue. Driver noted that the phrase must refer to something less than actual adultery,41 since this is punished not by divorce but by death (Deut 22:22), and suggested “some improper or indecent behavior.”42 This seems to us the correct interpretation in light of the comparative material discussed above. In our view twr( rbd is the type of misconduct referred to in CH 141-142 and in m. Ketub. 7.6 and therefore justifies the husband in divorcing his wife without a financial settlement. What of the second marriage? There, the husband does not claim misconduct but divorces his wife for “dislike.” The verb, )n#, more usually rendered “hate,” is found in the context of divorce not only elsewhere in the Bible but throughout the ancient Near East. J. J. Rabinowitz, on the basis of the Aramaic marriage contracts from Elephantine, claimed that “hate” in the Bible might sometimes be employed as a technical term for “divorce.”43 The Elephantine marriage contracts contain clauses setting out the financial consequences of divorce. The divorce itself was effected, as elsewhere in the ancient Near East, by the divorcing party pronouncing a formula, which in two of the documents is rendered “I hate PN my husband/wife.”44 Yaron accordingly translated: “I divorce . . . my husband/wife,” noting also that divorce-money was called literally “silver of hatred.”45 At first sight, this interpretation is supported by the evidence of cuneiform sources. The dissolution of adoption in cuneiform law uses the same verbal formula as marriage, mutatis mutandis, but in an adoption contract from Ugarit, the expected formula is replaced by the verb “hates” (zêru).46 Moreover, in an Old Babylonian marriage contract, the clauses penalizing 41 Driver 1896: 271. 42 Driver 1896: 270. 43 Rabinowitz 1953: 91-97. The biblical example that he gave, however (Deut 21:15), is not convincing and has been rejected by Yaron (1957: 119). 44 TAD B2.6 (= Cowley 15); and TAD B3.3 (= Kraeling 2). 45 Yaron 1961: 54-55. 46 RS 15.92 (edited in Nougayrol 1955: 54-56): “If in the future A hates B, his son . . .” (lines 7-9). The normal repudiating formula is: “If in the future A says to B, his son, ‘You are not my son.’”

400 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources divorce contain the following parallelism: “if H (husband) divorces W (wife) . . . / if W hates H . . . .”47 The impression given by these sources is, however, a false one. For further evidence reveals that they represent only an abbreviated version of a longer formula, “hate and divorce.” Thus in a marriage contract from Alalakh, the clause penalizing divorce begins: “if W hates H and divorces him.”48 The same is found in a Neo-Assyrian marriage contract except that the conjunction is missing (a point whose significance we shall see below): “if W hates H (and) divorces.”49 In the scribal dictionary of legal formulae, ana ittiu, the full formula is given: “if a wife hates her husband and says ‘You are not my husband’” (which is the standard divorce formula).50 The point is made most clearly in the Elephantine documents themselves. While the two contracts cited above use the verb “hate” alone, a third has a fuller version: (a) “if H . . . says ‘I hate my wife W, she shall not be my wife’”; 51 and (b) “if W hates her husband and says to him ‘I hate you, I will not be your wife.’”52 It is the second clause which is the operative divorce formula and which was omitted, but implied, in the other two contracts. The term “hate” is therefore an addition to the divorce formula which expresses not the divorce itself (for which there is another technical term) but some extra dimension thereof. This extra dimension must have been very common, since it was possible to abbreviate the formula already at a very early period. To understand what the dimension was, we must go beyond the realm of marriage and divorce. The verb “hate” is found in a variety of contexts in Codex Eshnunna and Codex Hammurabi as follows:

47 CT 6 26a. 48 JCS 8 7 no. 94, lines 17-19: um-ma H W [i-z]í-ir-u ù i-zi-bu-u. 49 Iraq 16 37-39 (ND 2307), lines 49-50: um-ma H e-zi-ra e-zip-pi SUM-an, “if H hates, divorces, he must pay.” This lapidary formulation has led to various interpretations. Postgate (1976: 105-6) reads e-sip-i SUM-an, “he shall pay (back the dowry) to her two-fold,” but such a penalty is unknown and legally dubious. We would likewise reject interpretations based on emendations, such as that in CAD E 422 (s.v. ez bu): ezib-i, “her dowry”; and that of Jakobson (1974: 116): e-zib-t (!). As we shall see below, the parallel in Mal 2:16 proves the correctness of the unemended form. 50 MSL I 7 IV 1-5 (edited in Landsberger 1937: 103). 51 TAD B3.3 (= Kraeling 2), lines 21-22. 52 TAD B3.3 (= Kraeling 2), lines 24-25.

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CE 30 If a man hates his city and his master and flees . . . . CH 136 . . . because he hated his city and fled . . . . CH 142 If a woman hates her husband (= fiancé)53 and says, “You shall not marry me . . . .” CH 193 If (he) . . . finds out the house of his father and hates his foster-father and foster-mother and goes to the house of his father . . . . The verb invariably appears in combination with a verb of action, providing the motivation for that action. The motivation appears to turn what might otherwise be an innocent act into a guilty one, and we therefore feel justified in applying the terminology of modern criminal law: it is the mens rea, the “guilty mind,” which is a necessary constituent of the offense. 54 The verb “hate” is used to show that the action arose from a subjective motive and without objective grounds to justify it—and for this reason is blameworthy. In the context of marriage, the element of mens rea is explained by our earlier discussion. A husband could divorce his wife at will 55 but had to pay her a heavy financial settlement. Only if he could justify his action on the objective grounds of the wife’s misconduct could he escape the usual financial consequences. The verb “hate” therefore expresses the fact that the divorce in this case is for purely subjective reasons, and the financial penalties, whether by contract or under the general law, will apply. The combination “hate and divorce” is found in the Bible not only in the Deuteronomic law but also in Mal 2:16, and it is the latter that we wish to consider first, since our findings from the comparative material must be universally applicable to be valid.56 53 See n. 32 above. 54 The other being the actus reus, the guilty act. The terms are derived from the maxim actus non est reus nisi mens sit rea. 55 And in some systems, at least, a wife her husband. See Westbrook 1988b: chap. 4. 56 Yaron (1957: 117-18) suggests a third occurrence: “abandoned and hated” in Isa 60:15. It is true that the Hebrew verb “abandon” (bz() is the same root as the Akkadian verb “divorce” (ez bu), but divorce does not fit the context at all, and inversion of the formula is not to be expected. Accordingly, we prefer the traditional interpretation. Yaron further suggests that )n# alone means divorce in two passages, Judg 15:2 and Prov 30:23, but in both cases we consider the use of the verb to be non-technical,

402 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The passage in Malachi is a famous crux,57 most of the discussion turning around the two verbs )n# and xl#. The traditional Christian interpretation is that the verse expresses God’s opposition to divorce, although this is difficult to reconcile with the form of the verbs. Thus the Authorized Version renders: “For the LORD saith that he hateth putting away: for one covereth violence with his garment,” while the Revised Standard Version emends the text: “For I hate divorce . . . and covering one’s garment with violence.” A modern scholar, A. Tosato, has attempted to reconcile this interpretation with the syntax by taking the first verb as an imperative: “For ‘Hate divorce!’ the God of Israel has said. (Hate him who) covers his own garment with violence!’”58 The Jewish interpretation, on the other hand, is that the verse recommends a husband to divorce his wife if he hates her, although this is difficult to reconcile with the obvious words of disapproval in the second part of the verse.59 One modern interpretation therefore combines recommendation of divorce with disapproval: “Wenn einer nicht mehr liebt, Ehe scheiden . . . aber derjenige besudelt mit Schande sein Gewand.”60 We prefer simply to take the two verbs as finite,61 and translate literally: “For he has hated, divorced . . . and covered his garment in injustice.” The comparative material discussed above reveals to us the true significance of the first phrase: “For he has divorced without justification.” The criticism is not of divorce as such but divorce for “hate,” where the husband follows his own inclination and the wife has done nothing to deserve such a fate. The phrase “hated, divorced” without the conjunction has a striking parallel in the Neo-Assyrian marriage contract mentioned above 62 in the clause penalizing divorce, which suggests that it was taken from a standard legal idiom.

57 58 59 60 61 62

and the situation not to be marriage but inchoate marriage. The “hatred” will (or should, in the case of Proverbs) cause the marriage not to take place. “This has been rightly called the most difficult section of the Book of Malachi” (Smith 1912: 47). For a summary of the research, see Locher 1981: 241-71. Tosato 1978: 552. Abravanel 1892 ad loc. Schreiner 1979: 217-18. Following Smith 1912: 55. See n. 49 above.

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Compared with the verse in Malachi, the use of hate and divorce in the Deuteronomic law is almost self-evident: it contrasts the second divorce, where the husband has no objective justification, with the first divorce, where the husband does have, or claims to have, such justification (twr( rbd). We therefore have before us the same distinction that exists throughout ancient Near Eastern law, and, it must be presumed, the same financial consequences. As we have seen from the comparative material, divorce with justification deprives her of that settlement. In the Deuteronomic law, divorce with justification is ranged against two alternatives: divorce without justification, and widowhood. The only feature that the latter have in common and which at the same time distinguishes them from the former is that they both result in a financial settlement for the wife. Consequently, as we submitted at the start of this discussion, it is the unspoken property aspect which runs like a thread through the whole protasis and accounts for its attention to detail and the distinctions that those details contain: it must therefore be the key to the law’s rationale. We are now in a position to reconstruct the scenario presented by the protasis. The first husband has divorced his wife on the grounds of her “indecency” and has therefore escaped the normal financial consequences—he paid her no divorce-money and most probably kept her dowry. The woman nonetheless managed to find another husband, and that marriage has ended in circumstances which leave her well provided for: her dowry (if she had received a second one from her family), possibly marital gifts from the second husband, plus divorce money or the widow’s allowance. Now that she is a wealthy widow or divorcée, the first husband forgets his original objections and seeks to remarry her. The effect would be that the first husband profits twice: firstly by rejecting his wife and then by accepting her. It is a flagrant case of unjust enrichment which the law intervenes to prevent. The prohibition on remarriage is based on what in modern law would be called estoppel. This is the rule whereby a person who has profited by asserting a particular set of facts cannot profit a second time by conceding that the facts were otherwise. He is bound by his original assertion, whether it is objectively the truth or not.

404 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The estoppel is expressed by the phrase “after she has been defiled.” A. Hurvitz has pointed out63 that the form of the verb is curious and unattested elsewhere: h)m+h. The hophal form expresses causation, and the correct translation should be: “she has been caused to be unclean.” The point is not whether the wife is in fact unclean, but that the first husband’s earlier assertion that she was unclean makes her unclean now for the purposes of remarrying her. Having profited from the claim that she was unfit to be his wife, he cannot now act as if she were fit to marry him because circumstances have made her a more profitable match. A final point is the Deuteronomic postscript to the law “for that is an abomination before the LORD, and you shall not bring guilt upon the land which the LORD your God gives you for an inheritance.” The phraseology seems somewhat harsh for a case of unjust enrichment and has doubtless been a factor in scholars seeking the rationale for the law in some sexual taboo. But as Weinfeld notes, the word “abomination” (hb(wt) is used in Deuteronomy (and in Proverbs) not in a sexual connection but essentially to emphasize the hypocritical attitude of the malefactor, the classic example being that of the falsifier of weights and measures.64 The law in Deut 24:1-4, as we have explained it, is an excellent example of hypocrisy and may therefore have been used by the Deuteronomic author65 not so much for its property-law implications as to illustrate an attitude that he wished to condemn.66

63 In an oral communication. 64 Weinfeld 1972: 267-69. 65 Most probably the law was taken verbatim from an existing code and only the postscript added. 66 Contrary to the views of most scholars (cf. Hobbs 1974: 23-29), we doubt whether the text of Jer 3:1 has any connection with the law in Deuteronomy. The dissolution of the second marriage is not mentioned, and it is the husband in the rhetorical example who is to return to the wife, whereas in marriage it would be the other way round. The reference may therefore be to an illicit liaison between the man and his former wife.

26 Riddles in Deuteronomic Law Abstract The structure and organizing principle of the Deuteronomic Code continues to puzzle scholars. This article proposes a new approach. Rather than applying legal logic as its primary criterion for analyzing the code’s structure, this study uses the model of the riddle. Cuneiform literature confirms the aptness of this model for understanding organizational patterns within Near Eastern scribal traditions, from which the law codes derive.

T

he collection of special laws in Deuteronomy 12-26 presents at first sight a picturesque jumble of eclectic rules. For the modern scholar, it stands as an irresistible temptation to bring order out of chaos—small wonder then that in recent years much research has focused on their organizational structure. In any random collection of laws, a close enough examination is bound to reveal some common factors—of language, form, or content. These in turn may be collected into patterns that enhance our appreciation of the text. The historian should nonetheless confine himself to those patterns that he considers to reflect ideas current at the time of the text’s composition, if he is to avoid imposing upon the text modern categories or intellectual constructs.1 Before we consider how to search for ancient categories, however, certain preliminary questions need to be resolved, namely, whether the Deuteronomic laws were divided into categories at all, and if so, of what kind. A model is needed, from some other genre of literature in the Bible * Originally published in Bundesdokument und Gesetz: Studien zum Deuteronomium (ed. G. Braulik; Freiburg: Herder, 1995), 159-74. Used by permission. 1 Kaufman 1979: 106-8.

406 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources where the same thought processes are employed but in a more accessible form. The one model which has been proposed, the Decalogue, does not meet these requirements.2 It is not from a different genre, since it is prima facie no more than another set of specific rules. Whether those rules also had a secondary function as categories is a matter to be demonstrated, not assumed. Moreover, if they did have that function, then the thought processes behind the categorization are still no more accessible than for the special laws; on the contrary, the definition of what category each commandment represents remains a matter of scholarly controversy, being supplied from outside the text by interpretation.3 Without prejudice to the role of the Decalogue, we consider that on this preliminary level a more appropriate model exists, albeit in an unlikely source: the so-called numerical proverbs. To begin with the most famous example (Prov 30:18-19): Three things amaze me And four I cannot fathom: The way of an eagle in the sky, The way of a snake on a rock, The way of a ship on the high seas, And the way of a man with a woman. It is a kind of riddle, in which we are given a heading (which tells us that it is a riddle), four parts and a clue. The clue here is the word Krd (“path,” “way”) which occurs in each part. As in all riddles, however, the parts appear to be entirely disparate phenomena, and the answer is that factor which unites them. In this case, the parts are not evenly balanced, for there is a sting in the tail. Using the clue, we can easily surmise the connection between the first three: they all use “paths” that are not paths—they are not marked out, there is no way of judging where the bird, snake, or ship will go next, and perhaps also they leave no trace behind them. The fourth path,

2 For a survey of current literature on this theory, see Braulik 1991: 15-17. 3 For example, the commandment “You shall not bear false witness against your neighbor” is reinterpreted by Kaufman as the category “fairness to one’s fellow as regards both his substance and his dignity” (1979: 141), but by Braulik (1991: 102) as “Den Armen, sozial Schwachen and Schuldigen ihr Recht nicht verweigern.”

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then, is linked metaphorically. It is not a physical movement but a course of conduct that shares the same characteristics with the first three. A more straightforward example, in which the parts are on an equal footing, is Prov 30:21-23: Under three things the earth trembles, And four it cannot bear: A slave who becomes king, A fool who eats his fill, A hated woman whose marriage is consummated, And a maidservant who succeeds her mistress. In this case the unifying factor is clear—the undeserving who are nonetheless rewarded. By the same measure, the clue is less so, but perhaps lies in the fact that the riddle’s parts arc presented not at random but in a logical sequence. The characters slave, fool, hated woman, and maidservant are chiastically arranged in terms of status (male slave, free male, free female, female slave), while the second limb, documenting the characters’ achievements, reveals an independent, albeit similar, sequence: king, appetite for food fulfilled, appetite for sex fulfilled, mistress. A model therefore exists within the Bible for the organization of the Deuteronomic laws into units of a small number of disparate laws with an unstated unifying factor. The next step for the historian is to find controls that will aid in the identification of unifying factors by ensuring that they are drawn from the text’s historical context, in the sense of the intellectual tradition from which its contents are derived. In the case of the Deuteronomic laws, that means looking firstly to the genre to which they belong, namely, ancient law codes, as attested in other books of the Torah and in the cuneiform sources.4 Unlike their biblical counterparts, the cuneiform scribes provide us with explicit evidence that they consciously divided their law codes into categories by subject matter. Late Old Babylonian copies of Codex Hammurabi (CH) insert headings at certain points in the text, e.g., “rules concerning soldier and fisherman,” ‘‘rules concerning field, garden, and

4 See Malul 1990b: 87-91, 153-59; Westbrook 1988a: 82-97.

408 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources house.”5 Not quite so explicit but equally clear is the native edition of the Middle Assyrian Laws (MAL), which are preserved on 14 tablets. Tablet A, the only complete tablet, is exclusively concerned with cases involving women. Tablet B, of which half is preserved, appears to concern cases involving land. It may therefore be presumed that the other tablets (insofar as they are not duplicates) were likewise dedicated each to a particular topic.6 The above divisions vary greatly in length: Tablet A of MAL contains approximately sixty paragraphs and Tablet B must originally have comprised about forty.7 The heading “soldier and fisherman” covers ten paragraphs of CH, while “field, garden, and house” covers at least thirty (§§36-65, at which point there is a break in the text). Another late Old Babylonian copy has two headings preserved: “rules concerning kitumservice and debt” (= §§117-119) and “rules concerning [. . .] and safekeeping” (= §§120-126).8 To discover more such divisions, especially the smaller units from which larger “chapters” were constructed, two means are available. The first is suggested by the last two native headings mentioned above. Both classify the laws by legal categories; it should therefore be possible to apply legal logic to the codes in order to discern other legal categories. The pioneer in this approach is Petschow, who has shown in the case of CH and of Codex Eshnunna (CE) that the individual laws of those codes were organized in thematic units.9 Some of those units are easy to discern: CH 1-5 have the theme “litigation,” §§154-158 are all incest offenses, and §§185-193 all concern adoption. Even so, they rely on the subjective judgment of the modern scholar. It could be argued that the last-mentioned unit should really extend to §195, under the more general heading “children.”10 A fortiori where the proposed legal category is uncertain, unconventional, or possibly too abstract for ancient jurisprudence. 5 6 7 8 9 10

Finkelstein 1967: 42-43. See Cardascia 1969: 19-22. Cardascia 1969: 20 n. 1. Finkelstein 1967: 48. Petschow 1965: 146-72; 1968: 131-43. See further Eichler 1987: 81-84. The difficulties of classification are discussed by Petschow 1965: 163, who uses a double heading for §§185-194: “Bestimmungen adoptions- and pflegschaftsrechtlicher Art.”

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As Petschow rightly stresses, the classification of ancient legal topics is not always identical with modern legal methodology.11 To return to our model of the riddle, the legal category is the answer to the riddle, and the individual laws its parts. The question therefore arises whether the other aspect of the riddle that we have seen, the possibility of an organized sequence that acts as a clue to the unifying factor, is present. Certainly, more confidence in the historical authenticity of a legal category can be gained if the laws within the proposed unit show some signs of logical arrangement. A clear example is chronological progression, which is frequently found in the law codes. Thus the lawsuit in CH 1-5 is followed through its chronological stages of accusation, trial, and judgment by giving examples that can occur at each, and in CE 25-35 the theme of marriage is illustrated by cases concerning betrothal, wedding, desertion, wet-nursing, and adoption, i.e., formation and dissolution of marriage, and children. A more complex pattern is found in the incest unit of CH 154158: 154 If a man has intercourse with his daughter, they shall expel that man from the city. 155 If a man chooses a daughter-in-law for his son and his son has intercourse with her and afterwards he is caught lying in her lap, they shall bind him and throw him in the water. 156 If a man chooses a daughter-in-law for his son and his son has not had intercourse with her and he lies in her lap, he shall pay her half a mina of silver and restore to her whatever she brought from her father’s house, and the husband of her choice shall marry her. 157 If a man after his father’s death lies in the lap of his mother, they shall burn them both. 158 If a man after his mother’s death is caught in the lap of his step-mother/nurse(?) who has borne children, that man shall be torn out from his father’s house (i.e., disinherited). Looking first at the protasis of these paragraphs, we note that the forbidden degrees follow a logical sequence: older man with younger woman, then 11 Petschow 1965: 170.

410 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources younger man with older woman, and within each of these variations the first case is that of a blood relative, followed by one of a relative by marriage. The penalties are not organized in the same way, but appear to follow a simple chiastic pattern: expulsion, death, compensation, death, expulsion. As in the riddle that we analyzed, there is a difference in the arrangement of the two members of the laws. Organizational patterns of this kind are not merely for aesthetic reasons. The law codes belonged to a wider genre, which included medical, lexical, and divinatory texts. All were ‘‘scientific” texts, scholarly treatises on law, medicine, language, divination, etc.12 For the Mesopotamian scribes, this type of literature belonged to the category of scribal wisdom, emqutu, the original setting for which was the scribal school.13 The connection between law codes and numerical proverbs is therefore not so surprising; it is more intimate than merely structural. They both belong to the same way of looking at the world, the tradition of wisdom literature in the broad sense.14 The law codes share many features with the other types of scholarly literature, especially as regards form. The basic unit is the individual example, sometimes as in the law codes or omen texts expressed by the casuistic sentence, sometimes as in grammatical texts by paradigms, sometimes as in lexical texts by words or short phrases. The scientific purpose of the scribes was to classify all human knowledge, but in the absence of modern analytical tools such as vertical reasoning and definition of terms the result was endless lists of examples, in which analysis could at best be inferred but not expressed through the suggestive choice and grouping of examples.15 Thus the casuistic format used by the law codes is a poor tool of analysis, in which a few examples must serve to cover a whole area of the legal system. A tightly organized sequence of examples can help to alleviate some of the system’s faults—the parameters of the topic, for example, can be indicated, if not delineated. Indeed, it can do more. In a true riddle, 12 Bottéro 1992: 156-79. 13 Kraus 1960: 290-92. On the pseudo-scientific disciplines of Mesopotamian wisdom, see Parpola 1993: xiii-xv, xxvii; on the scribal schools, see Sjöberg 1976: 159-79; and on the didactic aspects of the law codes, see Eichler 1987: 81-82. 14 The laws of the Covenant Code are identified with wisdom by Jackson 1992. 15 See Bottéro 1992: 134-36, 177-79.

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the sport is in finding the most eclectic examples of the unifying factor; a law code, by contrast, would not consciously strive for obscurity, but the riddle technique gives a casuistic code the opportunity to be eclectic in the interests of science and stretch the topic to its farthest limits. To return to two earlier examples, in CH 1-5 the course of a lawsuit is illustrated not by commonplace examples but by attempts to pervert the course of justice by a party, a witness, and a judge; in CE 25-35 the examples that plot the course of a marriage are notable for their singularity, such the rape of a betrothed maiden, the disappearance of a husband abroad, and a slave woman who fraudulently gives a child away for adoption. Another function pertains to the scribal school, where the law codes were copied and taught. Examples are easier to learn if they conform to a familiar pattern. Thus chiasm is an excellent didactic device in a casuistic context for reviewing the full gamut of possible punishments for a discrete category of offenses. In few cases, however, are organizational patterns as readily discernible in the law codes as legal themes. Since there are no explicit contemporary statements on which to rely, an even more cautious approach is needed than in finding substantive categories, if anachronism is to he avoided. The most reliable patterns are those like the chronological sequence, which are simple, found frequently, and act as a clue to the riddle, i.e., contribute to understanding the theme. Nonetheless, stylistic features in themselves are neither necessary nor sufficient to mark substantive categories. There is nothing to prevent the same text from containing several overlapping rhetorical patterns, fulfilling different purposes and by no means all designed to elucidate a particular thematic unit. In the Deuteronomic law code, Wenham and McConville apply legal logic to ascertain the existence of a separate unit in 22:13-29.16 The unity of theme is that “all the laws concern illicit sexual relations between men and women and prescribe appropriate penalties in each case.”17 The definition is perhaps too wide, since the next law following in 23:1 concerns incest and shows the difficulty of formulating ancient legal categories in modern terms. Nonetheless, it is understandable that the conventional sexual offenses of fornication, infidelity, and rape could be regarded as a 16 Wenham and McConville 1980: 248-52. 17 Wenham and McConville 1980: 249.

412 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources category apart from the more exotic sin of incest, which by being related but not included could act as a link to the next unit.18 Wenham and McConville also claim support from the arrangement of the laws, dividing the text into six cases arranged in two parallel panels: vv. 13-22 Offenses of married women 13-19 Offense in father’s house 20-21 Offense in father’s house 22 Adultery vv. 23-28 Offenses by unmarried girls 23-24 Betrothed girl in city 25-27 Betrothed girl in field 28-29 Unbetrothed girl The significance of the different scenes of the crime may be overstated, since it is difficult to see that the purported pattern serves any expository or mnemonic purpose. We would emphasize rather the three-fold sequence based on status: married woman, betrothed girl, unbetrothed girl. Our reason is that sequences based on status are a very common feature of the cuneiform codes, e.g., free man, son, slave (passim in CH and CE, although in different order); aw lum, muk num, slave (CH 196-223); married woman, betrothed woman (CH 129-130, 141-142). Status was of far greater significance in ancient than in modern systems and was used by the compilers of the law codes as a standard method of expanding the discussion of a single case.19 We can thus be confident that in seeing such a sequence in Deuteronomy we are not making a subjective judgment. The authors further note that the penalties are arranged chiastically: payment and divorce prohibited, woman executed, man and woman executed, man and woman executed, man executed, payment and divorce prohibited.20 As we have seen in the numerical proverb and the incest laws in CH, the apodosis may follow a different sequence from the protasis. 18 On the use of paragraphs that could be included in either of two units as a link between them, see e.g., Petschow 1965: 163, on CH 195; and n. 42 below on umma lu. 19 See Westbrook 1988d: 58-61. 20 Wenham and McConville 1980: 250.

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Mention should he made of a different methodology that is applied to the same text in order to identify a smaller unit within it, namely, vv. 2229.21 By tracing certain word patterns in these verses, Otto constructs a sequence consisting of a framework formed by 22 and 28-29 on the one hand and a central core with a concentric structure formed by 23-27 on the other.22 In content, 22 and 28-29 form opposites: the death penalty for a married woman; a private remedy for the father of an unbetrothed girl. Verses 23-27 merely expand 22 by considering the question of consent, using a marginal case (betrothed girl) that falls between 22 (married woman) and 28-29 (unbetrothed girl). The basis of the unit is therefore 22 and 28-29 and the rationale for the unit lies not in a common theme but in its history: 22 and 28-29 stem from different sources—the former from laws based on the penal jurisdiction of the head of household (hence the death penalty), the latter from laws based on the inter-family conciliation tribunal that sat at the city gate (and which only had power to award simple compensation). Their combination represents the fusion of the two jurisdictions at some point in Israelite history.23 It is beyond the scope of this paper to enter into a discussion of the diachronic aspects of redaction, but it is germane to our inquiry to point out that the argument is an inverted pyramid, in which ever-widening assumptions are imposed one upon the other. From stylistic patterns found in the text substantive categories of law are presumed, and from those categories the existence of independent jurisdictions. A further diachronic dimension is added by presuming the existence of different collections based (originally) on jurisdiction and a process of editing that brings them together.24 It seems to us that if accusations of unfounded speculation are 21 Otto 1993a: 274-81. 22 This summary slightly simplifies the verse count of the author, who excludes some parts of verses as extraneous redactional material. 23 The theory of two jurisdictions is argued in detail in an earlier work (Otto 1988c: esp. 61-68), on the basis of the difference in form between casuistic and apodictic laws. 24 As the penal law in Deut 22:22 is formulated casuistically and not apodictically as the theory demands, yet another diachronic layer of redaction has to be assumed to explain the discrepancy: “Dtn 22,22a gehört also in das ursprünglich in der Familie beheimatete todesrechtliche Sanktionsrecht und ist nur oberflächlich der kasuistischen Form angeglichen worden” (Otto 1993a: 278). Methodologically this could equally be seen as removing one of the steps upon which the pyramid itself is constructed.

414 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources to be avoided, the first step should be to establish the existence of different jurisdictions in the legal system by evidence independent of the text, then by the same method to demonstrate their fusion. Only then would the text be analyzed to see how that fusion was reflected in the structure of the current law code, and finally stylistic elements adduced to reinforce the structure posited by the previous steps. To extrapolate whole systems of courts from stylistic patterns in a text represents the triumph of form over substance. A second instance in the Deuteronomic laws where a separate unit can be identified by legal logic is in our opinion 22:1-12.25 Indeed, we would argue that the unifying factor is a jurisprudential distinction of the highest importance. The passage contains nine laws: the obligation to care for a neighbor’s animal by returning it when lost (vv. 1-3) or helping him lift it when fallen (v. 4), a prohibition on cross-dressing (v. 5), restrictions on taking from a nest (vv. 6-7), the obligation to add a parapet when building a house (v. 8), a prohibition on sowing seed in a vineyard (v. 9), on plowing with an ox and an ass (v. 10), on wearing mixed cloth (v. 11), and the obligation to wear tassels (v. 12). These provisions are usually divided into two groups: (a) 1-4, 6-7, 8 and (b) 5, 9-12.26 According to Braulik the intermingling of the two is deliberate: a “meshing” (German Verzahnung) of the humanitarian principle of the 5th Commandment—“preserve life”—and a sacral prohibition— “avoid mixtures”—which belongs to the sphere of the 6th Commandment.27 There are thus not one but two unifying factors. Verse 12, however, fits neither of the two categories proposed. It is of course always possible to find some role for v. 12 within this context, but the discrepancy would remain. Thus Merendino explains the connection of v. 12 to the foregoing verses as a matter of “attraction”:28 ‘‘Sein Platz hier am Schluß der Perikope vv. 1-11 erklärt sich aus seiner inhaltlichen Entsprechung mit v. 11. Einem Gebot über die Art der Kleidung folgt ein Gebot über einen

25 26 27 28

These verses are regarded as a unit on formal grounds. See Barbiero 1991: 141-47. Barbiero 1991: 159-60. Braulik 1991: 73-74. On the concept of attraction, see Petschow 1965: 171 and n. 152.

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bestimmten Schmuck an der Kleidung.”29 This explanation, however, directly contradicts Merendino’s previous assertion that ‘‘vv. 9-12 bilden inhaltlich eine Einheit. Sie enthält eine Bestimmung gegen das Zusammenbringen von ungleichartigen Dingen.”30 The presumed “meshing” cannot therefore be determinative of the content of the unit, whatever its stylistic contribution. In our view there is but a single legal factor that unites this eclectic collection of rules, namely, that they are all about property: what one must or must not do with property. The property in question may be land (houses, fields, or vineyards) or movables (animals and garments). This is not, however, the primary distinction made by the text; rather, there is a neat division into three types of property. The first section comprises the first three laws (vv. 1-5), which concern other people’s property, namely, a neighbor’s animal or the clothes of a member of the opposite sex. The second consists of but a single law, that of the hen and her eggs/chicks (vv. 6-7), which are ownerless property.31 The third section, in the last four laws (vv. 8-12), concerns my property: my house, my land, my animals, and my clothing. This division may not seem very important to us, but to a classical Roman jurist the categories of res alien and res nullius (as opposed to res mea) were fundamenta1.32 Res nullius, ownerless property, which has little significance in modern legal systems, is discussed at length by the jurists, the principal example being, as it so happens, wild animals or birds, in which ownership was retained only as long as the creature remained in its captor’s control.33

29 Merendino 1969: 257 30 Merendino 1969: 257. 31 It is difficult to see the purpose of vv. 6-7 as humanitarian. In the context of the law of warfare (cf. Gen 32:12 and Hos 10:14) the same principle would give one the right to slaughter children before their mothers’ eyes. The purpose of the rule lies in the practicalities of property law: it is permissible to appropriate the fruits of ownerless property but not the capital, so that others may in their turn enjoy its fruits. 32 Justinian Inst. 2.1pr.: “. . . we turn to things. They either belong to us (in nostro patrimonio) or they do not belong to us. They can be: everybody’s by the law of nature; the state’s; a corporation’s; or no-one’s (nullius). But most things belong to individuals.” (edition in Krueger 1912 [my translation]). 33 Digesta 41.1.1-5 (edition Krueger 1912 [my translation]).

416 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The method of using Roman concepts from much later sources to explain an earlier Hebrew source is in this instance less singular than might be thought. A prime reason for the striking similarity between the provisions of the various law codes of the ancient Near East, in spite of the great distances of time and space that separated them, is their belonging to a scholastic tradition which from its place of origin, apparently Mesopotamia, spread throughout the region. In that tradition certain scholastic juridical problems, such as the goring ox, the betrothed maiden, and the thief caught breaking in at night, formed a canon of learning that was transmitted from generation to generation and from school to school. Thus they reappear again and again in different law codes, and with them the legal concepts and distinctions that they embodied. We have argued elsewhere that the Mediterranean basin including Rome was not isolated from this tradition.34 Where then a discussion occurs among Roman jurists about wild animals as res nullius, the possibility arises that it stems from a scholastic juridical problem in the Near Eastern tradition, the only remnant of which to be preserved, unfortunately, is the law in Deut 22:6-7. It is significant that the Roman jurists cited in this connection are associated with academic law rather than practice, in particular Gaius, a jurist of the second century C.E., who is principally remembered as the author of a textbook for law students and whose work bears marks of the influence of ancient Near Eastern law.35 It is therefore likely that the Roman classification of property goes back to Near Eastern sources, except that in the latter it is never stated expressly. Its existence in the minds of the ancient authors emerges from the structure in which they cast their casuistic rules. To complete our discussion of the unit, it may be noted as regards its arrangement that the internal structure of the first and third sections follows a logical sequence based on another standard basis for categorizing property (cf. Exod 22:8): farm animals and clothes in the first section and land, farm animals, and clothes in the third.36 Given that the unit applies 34 Westbrook 1988a: 97-118. 35 See de Zulueta 1946-53: 1-5; and Westbrook 1988a. The other jurist cited is Florentinus, who is known only as the author of a legal textbook. 36 It is tempting to see the references to land in the last law of the previous unit (21:23) as a “bridge” which introduces the new unit and completes the sequence land, animals, clothes in the first section. The temptation should be resisted as unwarranted speculation. Although a provision on land in the first section would indeed make an even neater pat-

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the eclectic possibilities of the riddle to the full, ranging through birds’ nests, parapets, and tassels, the familiar pattern of land, animals, and clothing provides the strongest of clues that the answer lies in the sphere of property. Most of the laws in Deuteronomy do not yield to classification by legal logic. If their arrangement is not to be dismissed as random, then some other, non-legal, factors must he found that unify groupings of disparate laws. An attempt has been made by Carmichael with the five laws that make up Deuteronomy 21.37 The first law lays down the ceremony to be performed to expiate a murder by persons unknown, the second regulates marriage of a captive slave girl, the third confirms the inheritance share of the firstborn son, the fourth punishes a rebellious son, and the fifth requires the body of a hanged criminal to be buried before nightfall. As Carmichael rightly points out, there is no link between them in terms of legal subject matter. Instead, he proposes a non-legal factor: these are all situations that have to do with death, each of them connected with wrongdoing. The corpse may cause defilement, the girl may be prevented from mourning her parents, a father settling his estate in contemplation of death may deny his firstborn’s rights, a son has to die because of his conduct, a criminal’s body may cause defilement. There are grave methodological objections to Carmichael’s hypothesis. The criteria by which the topic “death” was chosen are not clear. No evidence is produced to show that it was used elsewhere as a unifying factor, whether in legal or non-legal texts, in the Bible, or in other ancient literature. On the contrary, death is such a commonplace in the law codes, especially as a punishment, that it is hard to see how it could be used to distinguish one set of laws from any others. Nor does any thought appear to have been given to what purpose might be served, expository, didactic, or moralistic, by such a classification. If either of the first two, then it suffers from a fatal error. Four of the five laws might he claimed to be “situations that have to do with death,” in that death forms part of the circumstances of the case, the protasis. The protasis of the rebellious son law, however, contains nothing about death; it is necessary to raid the apodosis tern that accommodates modern sensibilities, its absence does not invalidate the logic of the sequence. 37 Carmichael 1979: 129-42.

418 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources to find a mention of death in the death penalty. Such an inelegance deprives the unit of any rhetorical structure that might aid the reader and reveals the artificiality of the purported common factor.38 In methodological terms, it has been plucked out of the air, deriving not from the evidence of ancient sources but from the thought-processes of the modern mind. How then may we find non-legal factors to classify these laws that represent the authors’ or compilers’ intentions? In seeking the appropriate controls, we turn once again to the cuneiform law codes, but this time to examine the non-legal context in which they arose. We have mentioned that the law codes were part of the wider genre of scientific literature by which the scribes sought to classify knowledge and which included medical, lexical, and omen lists. It is reasonable therefore to draw upon such texts for reliable non-legal factors. The criteria for classification were seldom abstract: lexical texts were separated into lists of stones, plants, professions, etc; medical texts into lists of symptoms or body parts; divinatory texts were divided by vehicle of divination: fetuses, livers, or astronomical phenomena. A mechanical scribal device reveals that within these lists there were further divisions based on content. A ruled line on a clay tablet is used to mark matters of different content. In contracts, for example, it is often found between the terms and the list of witnesses or between the witnesses and the date. In the scientific literature it is employed with varying frequency. Its most frequent use is in first millennium lexical texts, where it marks off small groups of associated words. Such units appear to be designated by the technical term sad ru in Standard Babylonian.39 In the early Mesopotamian law codes it is not found at all (or rather it is used simply to divide the individual lines of the text), while in copies of MAL and the Hittite Laws it is used to divide individual laws, which is most helpful, but not for our purposes. Of course, ruled lines cannot tell us what factor united the text within them; only that one existed, and it is often difficult to discern what unites 38 Wenham and McConville (1980: 251) attempt to support Carmichael’s analysis by claiming a chiastic structure for the unit. They succeed in showing that any chiasm can be constructed if one is sufficiently liberal in the elements used to constitute its members. The parallel of C, “unloved captive slave girl receiving her freedom,” and C1, “unloved first-horn son receiving inheritance,” is a trifle forced. In addition, our earlier remarks on the limitations of purely stylistic structures apply. 39 CAD S 18, meaning 2b. See the discussion in Landsberger 1937: ix-x.

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one unit and distinguishes it from the next.40 A particularly clear and simple example from the omen series umma lu gives us some indication of scribal criteria. The protases of Tablet V set out the circumstances in which a house is built, with lines between the following sections:41 1-2 3-17 18-21 22-33 34-(x) (x)-45 46-67 68-72 73-74 75-90

laying foundations on specific days laying foundations in a specific month (in calendrical order) events at the time of laying foundations location, character, appearance of foundations month in which house was built animals (+ starlight in line 45) penetrate house character (46-57), location (58-67) of gates character, location of house (on street) location of house in high or low place location of house (in city: 75-76), features of parts of house: brickwork, front, roof, parapet, support, beam, wall 91-99 parts of house: threshold, bolt, courtyard 100-101 renovations (?) These simple categories of time, space, part, and whole are typical of the non-legal divisions of cuneiform scientific texts.42 In another omen series, 40 Such is unfortunately the case with a source that ought to be particularly appropriate, the lexical text ana ittiu. It is a sort of Sumero-Akkadian legal dictionary, a list of legal terms used in contracts and other legal documents. Its organization is complicated by the fact that two different principles are employed, thematic and acrographic, and the themes are further interspersed with small narratives, novellae, that illustrate the terms listed. The terms are divided into groups of anything from one to a dozen lines, and sometimes longer, as when a novella relates the history of a partnership (MSL I 6 I 9-II 5). The discernible themes are those of legal logic, such as hired labor, litigation, marriage, but they form chapters larger than the units designated by ruled lines. In his edition, Landsberger (1937: xii-xvii) discusses some of these problems and attempts a rough division of the contents. 41 Text: CT 38 10-13; edition in Nötscher 1928-30: 4-13. 42 Note also, in connection with our earlier discussion (n. 18 above) of the linking function of the incest law in Deut 23:1, the use of examples at the beginning or end of sections which could equally fit in the adjacent section but which are assigned by the ruled line to one section alone.

420 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources umma izbu, concerning ominous fetuses, there is not the convenience of ruled lines, but the categories are still straightforward and relatively easy to isolate: sounds made by the fetus, fetus in shape of various animals, fetus in shape of various parts of the body, physical defects, twins, multiple births.43 The material character of the categories chosen makes a useful control on the almost infinite possibilities of themes outside the bounds of legal logic. At the very least, they should mark the starting point for inquiry, rather than unattested abstract categories such as “death.” In the riddle, it will be recalled, the unifying factor was not at all legal. Theoretically then, the model of the riddle allows us to identify units in a law code where the unifying factor is not dependent upon legal logic. Nonetheless, we must bear in mind that the license afforded us by the riddle is to rule merely imaginary lines between groups of laws, and heed the limitations suggested by the evidence of cuneiform scientific literature. As an example, we shall first take a case where the clue to the riddle is plainly stated at the outset. In Deuteronomy 20 and 21 eight laws are presented, the first and second set of four each beginning with the phrase “when you go out to war . . .” and incidentally ending with a corpse. Since the first four laws, 20:1-21:9, are in fact all set in the context of war, there is no reason to question the express evidence for their theme given in the opening line, which in its exhortational generalities is reminiscent of the heading with which numerical proverbs are introduced, but which also serves as a clue. The only difficulty arises with regard to the fourth law, 21:1-9, which is not usually associated by scholars with the previous three.44 It concerns the ceremony of expiation to be performed by the local authorities where a murder victim is found in the open country, slain by an unknown hand. From the many cuneiform parallels, however, we know that this provision dealt with the problem of banditry, as it affected travelers through the countryside.45 As Jackson has shown,46 banditry was a recognized form of irregular warfare. In the conflict between Abimelech 43 Tablet I, lines 1-46. On the principal copy (CT 27 14-15, I, II) there are some ruled lines, but too few on a broken tablet to discern the smaller units. The final line marks off the library catch-line and the colophon. Edition in Leichty 1970: 32-35. 44 See Braulik 1991: 65-70; and Carmichael 1979: 129, for whom it is the first of a unit of five laws constituting Deuteronomy 21. 45 Dion 1982: 17; Westbrook 1986a: 62-65. 46 Jackson 1972: 6-7, cf. 35-40.

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and the lords of Shechem, the latter waged war by setting ambushes on the hilltops and robbing passing travelers (Judg 9:25). Between friendly states, it led to international treaties which made the host state responsible for the losses of foreign merchants and to diplomatic protests, as when the rulers of Akko robbed and killed Babylonian merchants on their way to Egypt. 47 It is significant that the term used for the victim is llx, which indicates elsewhere those slain in battle. Seen in this light, 21:1-9 makes the fourth limb of a by now familiar arrangement: the chronological sequence. The first law (20:1-9) is situated prior to hostilities, laying down the procedure for reviewing the army and for mustering out ineligible or unsuitable recruits. The second law (20:1018) brings us to a point in time just before an enemy city is attacked, regulating the terms of surrender that may be offered to the city for not offering resistance. With the third law (20:19-20) we finally find ourselves in the midst of war. It regulates one aspect of the conduct of a prolonged siege, namely, the destruction of trees. The fourth law is set at the end of a successful campaign, when the land is settled with Israelite towns and villages, but peaceful conditions are shattered by an act analogous to war. The following law, 21:10-14, continues the chronological sequence but introduces a new thematic unit in that it takes place after the war is over and the troops have been sent home. It concerns purely domestic issues, as do the following three laws. Regrettably, elucidation of this unit cannot be pursued here, since it would require long digressions on questions of substantive interpretation that were best reserved for a separate study. Our second example is a group of four laws in Deut 25:1-12: the prohibition of giving a man sentenced to beating more than forty blows, the prohibition on muzzling an ox while threshing, the levirate law, and the punishment of a woman who seizes a man’s testicles in a fight. Carmichael has attempted to link the muzzled ox law with the levirate by suggesting that it is not to be understood literally but as an allusion to the levir’s duty.48 The ox is a figurative term for an Israelite and “threshing” one for sexual intercourse. Thus the levir’s refusal to give conception 47 RS 17.146 (Nougayrol 1956: 154-57), RS 17.158 (Nougayrol 1956: 169-71), RS 17.229 (Nougayrol 1956: 106); EA 8, lines 8-33 (edition in Moran 1992: no. 8). 48 Carmichael 1980: 250-52.

422 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources to his brother’s widow constitutes muzzling the ox, because the dead man’s threshing bears no fruit. It is not clear to us what the purpose of an allegorical statement would be in the middle of a collection of laws otherwise drafted in plain language. It cannot have been a popular saying because the circumstances of its application, the levirate, are too narrow and complex. As an ad hoc phrase, on the other hand, it would not have been comprehensible even to the contemporary reader without the explicit terms of the levirate law that follows it. And as a pithy summary of those terms it is inexact. The levirate is a positive duty, whereas the muzzled ox law is formulated negatively, as a prohibition. Another such interpretation, by Noonan, prefers to see in this law a prohibition on the sin of Onan (i.e., coitus interruptus).49 “Do not muzzle” therefore means “do not deny the natural accompaniment of intercourse,” namely, conception. The purpose of muzzling an ox, however, is to stop it from eating the grain, which, as Noonan admits, is an imperfect metaphor for coitus perfectus. In our view, the unifying factor in these laws lies not in fanciful allegories or metaphors but in the traditions of ancient scientific literature. Let us begin at the most elementary level, in the curriculum of the scribal schools. An Old Babylonian list called Ugu-mu (“my skull”) is a dictionary of Sumerian terms for parts of the body, proceeding systematically from head to toe. It evidently served as a means of oral instruction, wherein the (Akkadian-speaking) pupils had to recite aloud the Sumerian terms while pointing to the relevant part of the body.50 The same system continued in use in later times, forming the basis of the first-millennium canonical lists Hh. XV and Nabnitu.51 Reference to parts of the body is found frequently in other types of cuneiform scientific literature, such as medical and divinatory texts. In the passage from umma izbu referred to above, it is used as one means of classifying the ominous appearance of the fetus. It is also found in the law codes as the mode whereby unlawful wounding is analyzed, taking the 49 Noonan 1980: 172-75. 50 Cavigneaux 1983: 630 (18.3). 51 Hh. XV is edited in Landsberger and Civil 1967 (= MSL IX). The lexical series SIG7 + ALAM = nabn tu is edited in Finkel 1982 (= MSL XVI).

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form of a list of the affected parts of the body. Thus CE 42-46 lists injured parts according to the classification head (nose, eyes, tooth, ear, cheek), then limbs (finger, arm, leg), then body (collarbone).52 In Deut 25:1-12 the same system is applied in a more radical way to link four entirely different laws. The key lies not in their circumstances, which have no connection, but in the apodosis.53 They all concern what is or is not to be done with parts of the body. The back is to be struck not more than forty times, the face is not to be covered, the face is to be spat in, the foot is to be uncovered, the hand is to be cut off. The sequence would appear to be body, head, limbs—which is less symmetrical than the sequence in CE or systematic than that in Ugu-mu, but more so than umma izbu, where the body parts appear to be listed in the order face, . . . finger, . . . membrane, . . . head, hand, wrist, foot, blood-vessel, “goat-horn,” ‘‘gazelle-horn,” . . . matted hair.54 Another possibility arises from the suggestion of Eslinger that in the last law (vv. 1112) the Hebrew term translated “hand” (Pk) should be rendered “genitals.”55 The woman who seizes a man’s genitals is thus punished talionically, by female circumcision. If this suggestion is correct, the sequence would then be symmetrical opposites: back, head, foot, front. The factor unifying this group of laws is therefore not legal at all. If it seems disappointingly mechanical, a primitive categorization in our eyes, it had for its ancient audience the virtue of familiarity, being derived from the most elementary traditions of classification. It also makes an excellent riddle.56 52 Edition in Yaron 1969: 69-73; new readings by Roth 1997: 70-71 (in the 1995 edition). 53 For an example of a unit linked by the apodosis, see Exod 21:12-17. 54 Column I, lines 24-26. The complete sequence cannot be reconstructed due to breaks in the text and terms whose meaning is unclear. 55 Eslinger 1981: 269-81. 56 It is possible that the two following provisions, in vv. 13-19 (just weights and remember Amalek), form a unit that continues the same theme, but somewhat at a tangent. The common factor appears to be parts of the body, but in a different sense. The Hebrew term for weight is Nb) “stone,” which is also the standard euphemism for testicles. This verse is thus connected to the foregoing through a reference to the genitalia, albeit by way of an uncharacteristically vulgar pun. Amalek’s crime was to have attacked the stragglers at the rear of the Israelite column, which is expressed in Hebrew by a verb deriving from the root bnz “tail.” The two laws therefore follow the sequence front and back, but through punning.

27 The Trial of Jeremiah Abstract Jeremiah 26 provides one of the few records from the Near East in which a court debates points of law rather than facts. This article presents a legal analysis of the text that resolves a number of discrepancies and that shows how the text was composed to credit Jeremiah’s defense speech as the decisive factor in his acquittal.

C

hapter 26 of the book of Jeremiah belongs to an exceedingly rare category of trial report in the ancient Near East, in that it focuses on issues of law and not of fact. It is concerned not with the evidence but with the legal arguments that were presented to the court prior to its decision.1 This small contribution in honor of Professor Wenham will review in brief scholarship on the forensic aspects of the report and attempt to provide a coherent account of the legal procedure involved in the prophet’s trial. The difficulties of the account in Jeremiah 26 have led to a long tradition among exegetes of excision, emendation, and source criticism.2 Not a few have despaired altogether of making sense of the narrative. Thus one commentator remarks: “Too many discrete strands make up the story for a coherent account to be derived from it.’’3 * Originally published in Reading the Law: Studies in Honour of Gordon J. Wenham (ed. J. G. McConville and K. Möller; New York: T. & T. Clark, 2007), 95-107. Copyright © 2007. Reprinted by permission of Continuum International Publishing Group. * A draft of this study was presented to the Department of Bible at Tel Aviv University on 2 January 2006. I am grateful to the members of the department for their comments and criticisms. Responsibility for the opinions expressed remains entirely my own. 1 There are many litigation records in cuneiform, but they report only the evidence and the bare verdict. The sole comparable report to Jeremiah 26 is the Nippur Homicide Trial, discussed below. 2 For a division into diachronic layers and a summary of scholarship, see Stipp 1992: 17-72. 3 Carroll 1986: 520. Likewise Hossfeld and Meyer, who take the view “dass wir einem Text mit erheblichen Unebenheiten gegenüberstehen” (1974: 32).

426 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The biblical narrative should not, however, be dismissed as unrealistic or confused simply because it does not fit modern concepts of forensic jurisprudence or reporting. When seen in the context of ancient Near Eastern litigation, many of the seeming discrepancies fall away. The events described may be divided into a number of stages.

1. The Offense (vv. 1-6) The facts in this case are not in dispute. Jeremiah has made in public the statements for which he is put on trial, and he does not deny them. The trial is about whether they constitute an offense under the law. The only relevant law in the Bible is Deut 18:20-22, which decrees the death penalty for a prophet who falsely purports to prophesy in the name of YHWH when he has no such mandate. To distinguish between a false and a real prophet, the law proposes a “wait and see” test: if the prophecy is fulfilled, it came from YHWH. We have no way of knowing whether the Deuteronomic law was in force or even in the minds of the participants in Jeremiah’s trial.4 What we are entitled to assume is that the Deuteronomic rules were not created ex nihilo and for the most part reflected traditional law. That said, the death penalty is a far more credible aspect of the law than its “wait and see” test.

2. Seizure and Accusation (vv. 7-9) The seizure of Jeremiah by so many people at once may be dismissed as hyperbolic, but in a forensic context seizure can be a formality, a symbolic act to initiate pre-trial proceedings, especially when accompanied by formal words of accusation, as here in vv. 8-9.5 In Deut 21:19, a father and mother are expected to “seize” their rebellious son and bring him before the elders—a daunting task for aged parents against a strapping young 4 The lack of citation is of no weight because the system of citation of statutes characteristic of Rabbinic law had not yet developed. It is attested with certainty only in post-exilic sources (Westbrook 2003d: 19-21). 5 Cf. Dombradi 1996: vol. 1, 295-302, for the Old Babylonian period, although she distinguishes between criminal and civil trials. In the former, the person may be physically detained until brought before the court.

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man, if conceived in purely physical terms. In Jeremiah’s case, the question of how he is brought before the court is moot, because the court comes to him. The verbal accusation is: “You shall surely die! Why did you prophesy . . .?” (v. 9). As H. J. Boecker points out, it is common in the biblical idiom for the accusation to be formulated as a question to the accused.6 The accuser may at the same time propose the punishment, which is the accuser’s estimation of the seriousness of the offense.7 Although presented as if it were a sentence, it is merely a proposal, conditional upon trial and conviction.8 Boecker notes that atypically the proposed punishment in this verse precedes the accusation, which he attributes to the heated emotions of the accusers.9 It is noteworthy, however, that the accusation in question does not state what crime has been committed; it simply repeats the accused’s words without any expression of wrongdoing. This is equally atypical for the interrogative form of accusation, where the offense is made explicit either before or after the question. Thus in 1 Sam 26:15-16, in a quasiforensic context, David accuses Abner and his guard: “Why did you not guard your lord the king, for someone came to slaughter the king your lord. It is not good what you have done: by the life of YHWH, you are all deserving of death, because you did not guard your lord . . . .” In Jeremiah 26, I suggest, the appropriate punishment precedes the accusation for two reasons. First, it serves to define the crime: Jeremiah can only face the death penalty if his prophecy in the name of YHWH is false. Second, the trial and the role of the accusers are atypical in that the facts are not at issue. There is no need to prove that the offense was committed.

3. The Court (vv. 9-10) The three components of the accusers are the priests, the prophets, and “all the people” (M(h lk). At the close of the accusation it is said that all the people gathered (v. 9, lhqyw) around Jeremiah in the Temple of YHWH. 6 7 8 9

Boecker 1964: 25-31, 67; see Bovati 1994: 75. Boecker 1964: 72. Bovati 1994: 85-88. Boecker 1964: 59.

428 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Some commentators translate the verb “thronged about,” which raises difficulties in the sequence of events, since they must already have gathered around Jeremiah at the moment of seizure.10 Far better is the view of those commentators who see in the use of the verb here the constitution of a court.11 As Bovati puts it, “this phrase does not describe the threatening press of the crowd around Jeremiah so much as the formation of a juridically competent assembly which has a decisive role within the trial.”12 At this point, however, the nobles intervene. Furthermore, in v. 17 yet another group, the elders of the land, are mentioned as being present. The question is then: Which of these various groups formed the court and what role did they play? Bovati hesitates to ascribe the role of a court to “all the people.” That function belongs to the nobles, who will pass sentence. The public assembly acts “almost like the jury in a modern assizes” to endorse their decision.13 Boecker likewise insists that the trial is conducted by the nobles, but with participation by the people, which may be a special feature of Jerusalem courts. He also invokes the idea of a jury, drawing on a parallel from German legal history.14 H. C. Brichto refers to the king’s officials and the M( as judge and jury respectively.15 A different approach is that of H. Schulz, who considers the only true court to be M(h lk in v. 17. In his view, this is a special “cultic court” (Kultgericht) comprised of every other group mentioned—the priests, the prophets, the accused, the nobles, the elders, and the people—and at the same time separate from them. The scenario imagined by Schulz is that the various parties or groups address various other groups during the course of the proceedings, but only the elders address the whole court. Their opinion must therefore have been the one adopted by the court, although not actually recorded in the text.16 For V. H. Matthews and D. C. Benjamin, “all the people” is a technical legal term for a quorum, which means that enough people are present 10 Holladay 1989: 106; Lundbom 2004: 289-90. Cf. Brin 1983: 53, who regards the actions of the accusers as those of a lynch mob. 11 E.g., Rietzschel 1966: 97 n. 10; O’Connor 1989: 621. 12 Bovati 1994: 229. 13 Bovati 1994: 229. 14 The term he uses is “Rechtssasse” (Boecker 1964: 59 n. 1). 15 Brichto 1992: 228. 16 Schulz 1969: 120-22.

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for the trial to be official. Wherever the term appears, it means “officially” rather than referring to a group of jurors or spectators. When “all the people” gather round Jeremiah, the state court was officially called into session.17 Whatever their individual merits, the difficulty with all these reconstructions is the models that they use. Bovati, Boecker, and Brichto rely on anachronistic parallels drawn from their own legal systems. Judges and juries in modern courts, whether in the Civil or Common Law systems, have different functions; such differentiation cannot be projected back into an ancient tribunal. Schulz and Matthews and Benjamin invent novel institutions that are otherwise unknown. Even if we accept the possibility of Schulz’s special “cultic court,” not elsewhere attested in the Bible, the idea of a forum in which some factions address other factions but not the plenum has no parallel in any recorded legal system. Nor is it surprising, since such a cacophonic arrangement between groups within earshot of each other would be unworkable. Similarly, Matthews and Benjamin’s idea of the totality being a quorum, if taken strictly, would mean that the court could never sit, since full attendance of every possible participant is unattainable in practice. If all the people means less than everyone, on the other hand, then the phrase begs the question of what is the minimum needed for a trial to be official. It also begs the question of what makes a group action official. The one biblical text that Matthews and Benjamin cite in support illustrates the problem. In Gen 19:4-5, all the men of Sodom gather outside the house in which Lot has two guests and demand that he produce them. It is difficult to see their demand as the authoritative act of a duly constituted assembly—as opposed to a threatening mob—given that the action that they are said to contemplate is hardly of a juridical nature. Nonetheless, both Schulz’ and Matthews and Benjamin’s analyses are helpful, as we shall see below, in their emphasis on the inclusive nature of the tribunal. A better approach in my view is to examine the copious data from Israel’s neighbors, from around the time of Jeremiah and previously. It is true that there is no evidence from the ancient Near East as to the actual formalities whereby a court was constituted. There is a great deal of evidence, on the other hand, about the composition of courts of law,

17 Matthews and Benjamin 1993: 236.

430 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources indicating cultural patterns that were long-standing and widespread. Three types of forum can be discerned: a) A single official sitting as judge or a college referred to simply as “the judges.” b) A large assembly of lay persons (Sumerian: u k k in ; Akkadian: purum; Hittite: panku, tuliya). There is never any mention of a quorum, but the members are referred to as “citizens” (mr banî), “the men of GN,” “the sons of GN,” and the like (see below under c). The qualification for membership would thus seem to be the status of an adult male citizen. c) A mixed tribunal of officials and citizens. This form of court was quite common. In the Neo-Babylonian and Persian periods, for example, an assembly (purum) of free citizens (mr banî) or local elders ( b t li) in Babylonian cities is frequently found sitting as a court for both civil and criminal matters, sometimes alone and sometimes in conjunction with officials, both royal and temple.18 In a case from the reign of Cambyses, employees of the Eanna Temple at Uruk who stole ducks from the temple are examined by an assembly consisting of temple administrators and free citizens (mr banî) and after they confess are sentenced by a plenary tribunal consisting of the chief administrator and the royal treasurer of the Eanna Temple, and the assembly of the men of Babylon and the men of Uruk.19 In another case from the reign of Cyrus, the city scribe of Sippar, an official of the Shamash Temple, and the elders sit in a mixed tribunal to decide whether a slave is private or temple property (Cyr. 332), while in a property dispute from the reign of Neriglissar, the court is composed of the governor of Babylon, the judges, and the elders of the city (Dalley Edinburgh 69).20 The Hittite terms tuliya and panku, the subject of a philological study by G. M. Beckman, are particularly helpful in revealing the ancient conceptualization of large, mixed tribunals. The term tuliya is the equivalent 18 Dandamaev 1981: 45-49; Oelsner, Wells, and Wunsch 2003: 919. 19 Iraq 13 96 (edited in Figulla 1951: 95-102). 20 Edited by Joannès 2000: 234-37.

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of Akkadian purum and is used to describe an assembly, inter alia, acting as a court. The term panku as an adjective means “every.” Beckman concludes that where the noun panku stands alone, it has the meaning “totality (of those present on a given occasion)”—it is inclusive, rather than exclusive. For example in a ritual text (KUB XII 8:3:1-4): “Then the men of GN enter. Three men wail and the congregation sings thus . . . .” When employed in the political and juridical sphere, it is synonymous with tuliya, or more precisely, the panku is assembled in a tuliya.21 In the light of this evidence, “all the people” (M(h lk) should not be taken as an authoritative body in itself; it merely designates all those present in the Temple. It is through the action described by the verb that they constitute themselves as a court. Although mentioned separately, the priests and prophets are also a component of the court, since “all the people,” like the panku, is an inclusive term. Thus in v. 8, Jeremiah can be said to have addressed “all the people” without mention of the priests and the prophets, even though the previous verse had informed us that the priests and the prophets heard it too. The court thus constituted is then joined by the nobles to form a mixed tribunal. The whole process is referred to summarily in v. 17, where the elders address “all the lhq of the people,” that is, those present constituted as a court. What formality was needed to give the court authority is not stated, but in this final form it included all those mentioned separately: the people, the priests and prophets, and the nobles. My conclusion thus supports the inclusive approach of Schulz and of Matthews and Benjamin but is based on real ancient models, not putative ones. If there is a technical aspect to the phrase “all the people,” it is that it cannot refer to every living soul even among those present. To qualify as a court, it must exclude persons who are not eligible, such as foreigners, women, and slaves, if any were present (cf. the merism in Gen 19:4: “young men and old, all the people”). On the other hand, it would have included not only Jerusalemites but the inhabitants of the towns of Judah, whom Jeremiah had been commissioned to address in the Temple. Some of them, the “elders of the land,” publicly voice their opinion during the proceedings. The examples given above from Babylonian trials are sufficient to negate Matthews and Benjamin’s judgment that “from a

21 Beckman 1982: 438.

432 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources sociological point of view these elders from a village assembly are out of place in a state court.”22 To summarize: by the action described in v. 9 (lhqyw) the priests and prophets and the remaining male citizenry constitute themselves as a court in order to pursue Jeremiah in a formal trial. Their previous role as accusers, however, does not bode well for the fairness of the trial, for there was no rule in ancient law that precluded a man from being judge in his own cause.23 The priests and prophets who are singled out as the motivating force behind the accusation have an obvious interest in protecting their monopoly over authorized prophecy. Fortunately, the nobles of Judah, evidently palace officials, intervene. In our understanding, they join the court that is about to sit in order to form a mixed tribunal of officials and citizens.

4. The Trial (vv. 11ff.) Because the trial turns upon the law, not the facts, the proceedings have nothing of the character of a conventional hearing in which the prosecution and defense present conflicting narratives and adduce evidence in support, and the judges decide on the true version of events. To place the biblical report in context, I would invoke the parallel of the only other known trial report of a purely legal issue from the ancient Near East. In a murder trial conducted before the assembly of Nippur, as reported in a literary account copied in Old Babylonian scribal schools, the established facts were that three men had conspired to kill a priest. After the murder, the conspirators had informed the victim’s wife of what they had done, but she kept silent.24 The central issue of the hearing being reported is the culpability of the victim’s wife. The report presents it in the form of a debate among different factions within the Assembly. As in Jeremiah’s trial, the guilt or innocence of all the accused is formulated in terms of their liability to the death penalty. Nine men of various professions, such as bird-catcher and potter, who are clearly ordinary citizens, address the assembly, speaking in favor of the 22 Matthews and Benjamin 1993: 236. 23 Examples from the Bible are to be found in Wells 2004: 50-51. 24 Editions by Jacobsen 1970: 193-214; Roth 1998: 173-84.

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death penalty for the conspirators and the wife. Two men, an army officer, and an orchard-keeper, then argue in the woman’s defense. The Assembly then deliberates (line 43: en 3 -t ar- re -e -a m 3) and sides with the majority, adding its own arguments. It concludes: “her guilt exceeds (the guilt of) those who kill a man.” Here also we see the term assembly (purum) is used in a nonexclusive manner. The report then states that the assembly, having resolved the case, delivered all four for execution. On the basis of this parallel, I would argue that the report of Jeremiah’s trial is in fact a series of orations by factions within the court. The only difference—and it is a significant difference for the structure of the narrative—is that the defendant gets to speak on his own behalf.

5. Oration of the Priests and Prophets (v. 11) The priests and prophets reiterate the charges previously made against Jeremiah. They now refer to the defendant in the third person, addressing their remarks to the nobles and all the people. Boecker takes this change to indicate that a prosecutor is addressing a court officially in session.25 The priests and prophets do not repeat the facts but take them as known (“as you have heard with your own ears”), even though a part of the court, namely, the nobles, had not in fact been eyewitnesses to Jeremiah’s prophesying. The latter are deemed to be cognizant of the facts. The issue is thus one of pure law. When the priests and prophets put the case for the prosecution, they are not presenting to the court a version of events (nor, obviously, evidence to support it), but a legal argument. They function as a faction within the tribunal rather than as an external entity. As we have seen, the offense is not made explicit in the accusation. It only emerges from Jeremiah’s defense that he is accused of falsely purporting to prophesy in the name of YHWH. The argument of the priests and prophets appears to be that Jeremiah’s lack of a mandate is self-evident from the content of his prophecy. They thereby infer that a “wait and see” test, such as prescribed in Deut 18:21-22 (if the prophecy is fulfilled, it came from YHWH), would not be applicable.

25 Boecker 1964: 71, 150 n. 4.

434 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 6. Jeremiah’s Oration (vv. 12-15) Jeremiah’s speech to the court in his defense: a) agrees upon the facts (v. 12, “all the words that you have heard”); b) asserts his divine mandate from YHWH; c) points out that the prophecy is conditional, and may be averted by appropriate measures. This argument may also be an oblique reference to a “wait and see” test, effectively neutralizing its danger for Jeremiah. It places responsibility for his prophecy not being fulfilled with the government and people (cf. Jonah 3:4-10); d) warns the court of the consequences of a guilty verdict. Bovati adduces this verse in support of his view that there is no such thing as a ‘‘neutral’’ defense; defense is to accuse the ac26 cuser. His analysis, however, does not fit the account of the trial. Jeremiah addresses not those who have accused him (“the priests and prophets” or even “the priests and prophets and all the people”) but emphatically the whole court (“all the nobles and all the people”). It is not a charge of false accusation that he is bringing, but a warning of perversion of justice through a wrongful verdict. If the trial had turned on an issue of fact, then the court, even if it had wrongly convicted the accused, could claim its innocence because it had been misled by the false evidence of the accusers. There is no such escape for the court here, where the issue is purely one of law: do Jeremiah’s words amount to false prophecy (without allowing for “wait and see”)? A guilty verdict would therefore be a conscious wrongdoing (according to Jeremiah), and execution of the death sentence would amount to murder. Furthermore, murder pollutes the immediate area where it is committed and the persons implicated. An official verdict of the Jerusalem court would pollute the members of the court, the city, and its inhabitants. Thus the wheel will come full circle: pollution in turn will

26 Bovati 1994: 331-32, especially n. 161.

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bring down divine wrath, with similar consequences to the curse pronounced in the original prophecy.

7. Oration of the Nobles and All the People (v. 16) The remainder of the court rejects the argument of the priests and prophets, addressing them as an isolated minority. Although the inference is that the overwhelming majority unreservedly embraces Jeremiah’s argument, curiously, no reasoning is presented, only a conclusion of Jeremiah’s innocence. It should logically mark the end of the report, even if not followed by an explicit notice of Jeremiah’s acquittal. Instead, the narrative continues with notices of the fate of two other prophets. It is these extra verses that have done most to persuade scholars that the chapter is a composite account that has lost any pristine coherence it might have had through editing.27 It is true that they appear to disrupt the chronological (and logical) sequence followed hitherto and seem otiose after the climax of the court’s pronouncement in v. 16. Brichto, however, has rightly discerned that a deliberate narrative technique is employed here: “. . . this chapter exploits the narrative technique of dividing the story into episodes, a synoptic episode relating the entire story in brief, followed by a resumptive episode in which additional details are provided.”28 Brichto does not explain the advantage of this technique, which seems to result in a resounding anti-climax. That, in my view, is exactly the point. The narrative is not a dry court report but a propagandistic account of the trial. The purpose of the narrator (or editor) is to paint Jeremiah in the best light. The progress of the trial is sketched in the bold lines of a good courtroom drama: Jeremiah is accused, Jeremiah makes a magnificent speech in his own defense, the court acquits him. The impression is thereby given that it was Jeremiah’s speech that won the day. There are, though, two inconvenient facts that would temper this impression, and for that reason they are relegated to postscripts. Paradoxically, the structure of

27 Typical is the judgment of O’Connor: “The inconsistencies and contradictions of these verses . . . indicate that vv 17-24 do not form part of the original narrative” (1989: 623). 28 Brichto 1992: 227.

436 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources the narrative, in seeking to play down uncomfortable facts, vouches for the basic credibility of the report.

8. Oration of Members of the Elders of the Land (vv. 17-19) Those elders who address the court (apparently not all of them) are once again a faction within the forensic assembly. They are among the inhabitants of the cities of Judah who had come to Jerusalem to worship at the Temple and would thus have been among Jeremiah’s audience who were subsequently constituted as a court, albeit (the text emphasizes) a small minority. The elders present arguments that directly correspond to Jeremiah’s (in a way that the statement of the court in v. 16 does not): a previous prophet had made a conditional prophecy of disaster; King Hezekiah’s government had heeded him and taken the appropriate apotropaic measures; the disaster was thereby averted; to act otherwise in this case would be a wrongful act with dire consequences for the perpetrators. This argument from precedent may well have been decisive, as Schulz claims, or at least may have had more weight in the court’s decision than Jeremiah’s oration. Certainly, it was sufficiently important that it could not be omitted from a report of the trial. The narrative, however, relegates it to a postscript after the acclamation that Jeremiah’s words receive, so as to give the impression that the latter’s rhetoric brought about his acquittal.

9. The Case of Uriah (vv. 20-24) A second example is given of a prophet who gave much the same message as Jeremiah, but who was pursued, extradited, and executed by King Jehoakim. The case is distinguished from the present one by the protection given Jeremiah by a royal official. Bovati argues that this and the previous notice are both part of the speech by the elders, who present two contradictory precedents. The latter is to be followed, since it was a decision of the reigning king. Accordingly, Jeremiah had by no means been acquitted by the nobles in v. 16, but the trial continues and would have

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ended in Jeremiah’s execution were it not for the intervention of the official in an unstated manner.29 It is anachronistic to turn the elders into some form of legal experts who summarize the relevant precedents (like the official in some trials in modern Civil Law systems). From the pattern of the Nippur Homicide Trial, it is more likely that the elders argued for one point of view only. As elders, they would be the obvious repository of memories of a case that had occurred more than a hundred years earlier. Their expertise counterbalances any expertise that the priests and prophets could claim in the assessment of prophecy. In my view, the second notice is not part of the forensic debate. A vague reference to the content of the prophecy cited as being “just like the words of Jeremiah” begs the very questions (the content of the prophecy and its conditionality) that are at issue. It uses the language of the outside narrator (the reliable narrator, as Brichto calls him), not the language of the participants in the debate, who refer to Jeremiah as “this man” (vv. 11 and 16).30 On Bovati’s hypothesis, it is difficult to explain how the intervention of the royal official Ahikam son of Shaphan could have taken place. For Ahikam neither presents arguments nor is he assigned any forensic role. Above all other verses of the chapter, v. 24 is regarded by scholars as the ultimate misfit. Attributing the outcome of Jeremiah’s trial to the intervention of a named official, in unexplained circumstances, seems to contradict the verdict, if not the whole of the proceedings just previously narrated. ‘‘Not only is Jeremiah’s rescue mysterious in v 24; the reason he requires rescue is also obscure.”31 Nonetheless, it is my opinion that v. 24 is an integral part of the second postscript and vital to understanding the course of the trial and its result. The second postscript, by the narrator, is a further acknowledgment that in reality it was not just Jeremiah’s inspired rhetoric that won his trial.

29 Bovati 1994: 331-33 n. 161. Brichto attributes the second precedent to another set of elders, but no mention is made of them in the text (1992: 228-29). 30 Stipp suggests that the phrase “concerning this city and this land” in v. 20 indicates direct forensic speech (1992: 20-21). On the contrary, it is simply a quotation from the prophecy, to show its parallel with Jeremiah’s prophecy “concerning this house” and “this city” (v. 6). The meaning of the verse is: there was another man who made an “about this house and city” prophecy just like Jeremiah. Cf. Hardmeier 1991: 177. 31 O’Connor 1989: 624.

438 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources The last-minute participation by the nobles ensured that the court was sufficiently stacked in Jeremiah’s favor—enough to overcome the unfavorable reaction that his preaching had previously aroused in its audience. The nobles’ intervention seems unmotivated until we realize that it was the work of Ahikam, who had persuaded his fellow courtiers to act.32 Thus it was the influence of Jeremiah’s friends at court already at the outset of the trial, with help from a few local dignitaries who managed to dredge up an old precedent, that was really responsible for Jeremiah’s acquittal.

32 For Ahikam’s position, see Lundbom 2004: 298-99. On the role of the Shaphanides, see Seidel 1997: 28-53. The narrative implies in v. 10 that it was entirely an initiative of the nobles, without the king’s knowledge. This time Jeremiah is being saved from the people, not from the king, but it would not be wise to let the king hear of it. In Jer 36:10-19, where the prophet’s message has been committed to writing, courtiers sympathetic to him (including Ahikam’s brother) feel themselves unable to hide it from the king; so they hide Jeremiah instead.

28 Legalistic “Glosses” in Biblical Narratives Abstract This article examines three narratives where logical discrepancies appear in relation to the legal issues at stake in each. It attributes the discrepancies to later scribes who attempted to justify or explain certain legal actions in the narratives by inserting citations from the laws of the Torah. But the citations and the actions that they are meant to support form a less than coherent match, because the narratives were not originally based on a literal reading of said laws.

T

he genealogy of Israel in the book of Chronicles contains the following notice: (1 Chr 2:34-35):

Sheshan had no sons, only daughters; but Sheshan had an Egyptian slave named Jarha. Sheshan gave his daughter to his slave Jarha as a wife, and she bore him Attai. Sheshan’s purpose in marrying his daughter to his slave was to ensure that the offspring of the union would be regarded as his grandchildren. Moreover, as S. Japhet points out, the Chronicler has carefully crafted the details of the story, in particular the mention of a foreign slave, so that Sheshan’s tactic will conform with the slave laws of the Torah.1 According to Exod 21:2-6, the children would undoubtedly be the master’s, since the master had given him his wife. Lev 25:41, however, suggests that an Israelite slave might be able to take his children with him on leaving.2 The identity

* Originally published in Israel Law Review 33 (1999): 787-97. Used by permission. 1 Japhet 1992: 79-91. 2 Japhet 1992: 88-89.

440 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources of the father as a foreign slave avoids any difficulty on this point: he cannot leave his master at all, and any children sired by him are unquestionably his master’s. Such punctiliousness in conforming with the rules of the Torah is characteristic of the Chronicler and of contemporary sources, such as Nehemiah, and to a lesser extent the so-called Deuteronomistic Historian of the books of Samuel and Kings.3 It is not the case with all biblical narratives, however. In 2 Sam 13:13, for example, Tamar proposes to her half-brother Amnon that he marry her rather than rape her, although such a union would theoretically fall foul of the incest prohibitions of the Torah (Lev 18:9, 11; 20:7; Deut 27:22). Scholars have wrestled with this passage, proposing various solutions, but in our view the most likely is that marriage to paternal half-siblings was still permissible, as it was elsewhere in the ancient Near East, the more stringent rules of the Levitical and Deuteronomic circles not yet being normative for the whole of Israelite society.4 It therefore remained a dilemma for later authors and editors, working at a time when the laws of the Torah were canonized and universally normative, that earlier accounts of Israelite history contained episodes which seemed not to be in conformity with the letter of the law. The extent of this concern is illustrated by a comment found in almost identical form in 2 Kgs 14:6 and 2 Chr 25:4. Young king Amaziah of Judah, after consolidating his power, ordered the execution of those royal officials who had assassinated his father, the previous king. Nonetheless: He did not have the sons of the assassins killed, as it is written in the Book of the Torah of Moses which God commanded, saying: “Fathers shall not be put to death for sons and sons shall not be put to death for fathers, but a man shall be put to death for his own offense.”5 3 For the latter, see Noth 1981. 4 For a summary of the different theories, see McCarter 1984: 323-324. McCarter’s own suggestion, that the marriage, although illegal, could be permitted by the king, seems to us less plausible. A king might pardon incest (cf. Hittite Laws 187-188), but he could not make an incestuous union, which was a sin against God rather than man, legitimate. 5 This is the version in Kings; Chronicles has “shall die.”

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The citation is of the law in Deut 24:16. It is highly improbable that king Amaziah’s restraint was due to his concern for the law; rather, there would have been no particular reason of policy for him to extend his revenge to the family of officials. Not many years previously, on the other hand, Jehu had killed king Ahab’s son, king Joram, by way of punishment for Ahab’s murder of Naboth (2 Kgs 9:24-26). Jehu, however, was an insurgent, who had every interest in destroying the whole dynasty of Ahab and all the faction supporting him (cf. 2 Kgs 10:1-11). The contrast between the two cases gave the biblical historiographer an opportunity to embellish an annalistic account of royal deeds with a legalistic gloss on the protagonist’s motives. The same concern to reconcile an historical account with the codified law may be identified elsewhere in the Bible. In this study, we wish to draw attention to three narratives in which a reference to a law in the Torah is put into the mouth of a protagonist, reported in direct speech. In our view, the voice is the voice of a legal commentator.6 Unlike the author of the late Jarha story, commentators on earlier episodes from the history of Israel could not fashion the details to match the law but had to work with an existing account. Where the match was less than perfect, the result is sometimes anomalies that modern interpreters of an individual passage have been at pains to explain away. When these three passages are considered together, however, a pattern of discrepancy emerges which enables us to identify the legal references as the handiwork of a legalistic glossator.

Inheritance and the Jubilee Law In Num 27:1-11 the daughters of Zelophehad obtain a ruling granting them the right to inherit their father’s estate in the absence of sons. In Num 36:3, their uncles, the deceased’s brothers, object to the ruling: 6 Both the identity of such commentators and their exact role in the creation of the biblical text—author or editor—is open to discussion. M. Fishbane attributes the role of inner-biblical exegesis to the class of Jewish scribes that emerges in the Josianic period (1985: 25-37). Neither issue affects the validity of our findings. The legal method that we are describing would apply equally whether the commentator was an author glossing a known account, perhaps from royal annals, when incorporating it into the biblical canon, or a scribe glossing the biblical text that he copied.

442 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources But if they are married to a member of another Israelite tribe, then their inheritance will be taken away from our ancestral inheritance and will be added to the inheritance of the tribe into which they marry and be taken away from our inheritance portion. As a result, Moses adds a proviso to the ruling, whereby the daughters must marry into a clan within their father’s tribe. In fact, they marry their cousins. The proviso makes perfect sense. The deceased’s brothers, his closest relatives in the clan, would normally have inherited his estate in the absence of sons. When the estate passes to a daughter, it takes on the character of dowry property which will pass to her children from her marriage, but the latter will of course belong to her husband’s clan. Thus the property will ultimately pass out of the line of the deceased’s clan, which means that it will no longer be available for inheritance by members of that clan should the direct line of heirs fail. By marrying their cousins, the daughters of Zelophehad ensure that the potential to inherit remains in their father’s clan. What does not make sense is a further possibility that is mentioned by Zelophehad’s brothers in their objection to the ruling (36:4): And when the Jubilee of the Israelites comes, then their inheritance will be added to the inheritance of the tribe into which they marry; and their inheritance will be taken away from the inheritance of our ancestral tribe. As has often been pointed out, the Jubilee law, as set out in Lev 25:13-16, is concerned with property that has been sold returning to the original seller or his heirs; it has nothing to do with the transfer of property through inheritance or marriage.7 Some commentators have attempted to reconcile the brothers’ statement with the law in Leviticus by suggesting that it means that the property will not return to the original family even in the 7 Noth 1967: 222; Snaith 1967: 345-46. Snaith is incorrect, however, in assuming that the ruling in Num 27:1-11 is bad law because it contradicts the levirate law (1967: 308-10). The two are not incompatible, although there might be some question as to the priority of the daughter’s inheritance.

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Jubilee year.8 That is to distort the plain text of v. 4, which speaks of a transfer of the property at the Jubilee, not its retention in spite of the Jubilee. One could of course suppose that there existed a further rule of the Jubilee institution, not mentioned in Leviticus 25, to the effect that the wife’s land passed to her husband on the Jubilee. It is difficult to see on what basis, however. Whereas the simultaneous return of all ancestral land previously sold to outsiders has a solid rationale within the context of social justice measures and is supported by parallels from elsewhere in the ancient Near East, no such support in logic or empirical evidence can be found for the simultaneous transfer of every woman’s inherited property to her husband (or his family).9 It seems to us that v. 4 is a legalistic hyper-correction, based on the over-zealous desire of a glossator to find a basis for the brothers’ objection in the laws of the Torah. On the one hand, it is assumed by the story that the wife’s heirs will belong to her husband’s family, as one would expect through the logic of the dowry and of an agnatic system of inheritance, but the devolution of female property is not explicitly treated in any of the laws of the Torah.10 On the other hand, the Jubilee laws of Leviticus 25 assume that sale of land is the occasion for their operation but do not explicitly exclude other forms of transfer. They therefore provided a link of sorts to the written law, however weak. The glossator, being more concerned with legal authority than with legal logic, preferred to base the ultimate fate of the daughters’ property on an express law rather than an implied one.

Royal Decrees and the Slave-Release Law In Jer 34:8-16, king Zedekiah declares freedom for all Israelite slaves held by the nobles and free population of the kingdom, but the latter subsequently reenslave them. The prophet Jeremiah rebukes the slave owners, citing a slave-release law: 8 North 1954: 35. Compare Gray 1903: 478. 9 For Mesopotamian parallels, see Lewy 1958: 21-31. Royal decrees on the release of slaves (discussed below) also applied, mutatis mutandis, to release of land. 10 Compare Westbrook 1991b: 142-64.

444 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Every seventh year you shall release each man his Hebrew brother who is sold to you. He shall serve you for six years, and you shall set him free. The text is closely modeled on Deut 15:12: “If your brother, a male or female Hebrew, is sold to you, he shall serve you for six years, and you shall set him free in the seventh year.” The difficulty is that the law in question very clearly refers to an individual period of six years’ service per slave, not to a general, simultaneous release as in the case of Zedekiah. Commentators have sought to resolve the anomaly in various ways. Bright surmises that the general manumission by Zedikiah was a long overdue application of the law of individual release which, as v. 14 states, had been neglected for many years.11 The biblical account makes clear, however, that Zedekiah’s decree was more than merely the sum of individual manumissions. It applied to all slaves, regardless of their period of service to date, not only to those whose release was overdue. Moreover, the difference between the two laws was acknowledged by the biblical author. As Lemche points out, the anomalous opening phrase of the law that is cited, which does fit the rest of the text, has been grafted onto it from the debt-release law of Deut 15:1, which is universal and simultaneous in application.12 Most scholars accept that there is a discrepancy and seek an historical rationale. For David, it illustrates a development in the law, from individual manumission after six years of labor to a general one in a fixed year in which all slaves had to be set free simultaneously.13 According to Sarna, it was more a question of the interpretation placed upon the earlier law at the time of Zedekiah: the six-year limit was regarded as a maximum that would be reduced by the incidence of the sabbatical year.14 Parallels from the ancient Near East provide the background to king Zedekiah’s action and show that a legal development, whether by legislation or interpretation, is an unlikely explanation. It was a prerogative of kings to decree occasionally a universal cancellation of debts, often ac11 12 13 14

Bright 1965: 223-24. Lemche 1976: 38-59. David 1948: 74-75. Sarna 1973: 148.

Legalistic “Glosses” in Biblical Narratives

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companied by the release of citizens enslaved by reason of debt.15 Alongside this prerogative, there existed already at the time of the Hammurabi laws a provision for the release of individual debt-slaves after a fixed period of slavery, as shown by paragraph 117 of Codex Hammurabi, which orders the release of certain categories of slaves after three years’ service. Zedekiah’s decree was the exercise of a royal prerogative inspired by the exceptional circumstances of a national crisis, the Babylonian siege of Jerusalem. It had no necessary connection with the periodic manumission of individual slaves, whether observed in practice at the time or not. The historiographer, however, wished to anchor the king’s actions in a law from Deuteronomy, just as in the explicit case of king Amaziah discussed above.16 That corpus of laws did not recognize a royal prerogative; it had been replaced by cyclical release, perhaps because of the very failure of Israelite kings to use it properly, which was the basis of Jeremiah’s complaint.17 The language of the cyclical release law that was the equivalent of a royal prerogative happened to refer only to debts, not to slaves. There was a cyclical slave-release law, but it was not directly relevant, being about individual release, not universal release. Accordingly, the historiographer adapted it by adding features from the debt-release law. In substantive legal terms this was perfectly logical, as laws and decrees concerning slave release were directed at debt slavery, and cancellation of debts would inevitably result in termination of slavery. Formally, however, we would argue that the law cited was factitious, the product of a legalistic glossator’s concern to put the prophet’s words on a scripturally authoritative basis. Royal Misconduct and the Law of Theft In 2 Sam 12:1-15 the prophet Nathan informs king David of the case of a rich man who, in order to entertain a visitor to their village, took a poor 15 They are best attested for the OB period but are found in other periods. See Kraus 1984; and Westbrook 1995f: 154-60. The biblical parallels, especially between Hebrew and Akkadian terminology, have frequently been commented upon. See, e.g., Lemche 1979. 16 See Noth 1981, for the identification of the Deuteronomistic historian. 17 See Westbrook 1995f: 160-61.

446 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources man’s only lamb from him. David is outraged. He declares: “the man who does this deserves to die (literally, is a son of death)! And he shall repay the lamb four-fold.”18 Nathan then reveals that the case is only a parable of David’s own misconduct as regards Uriah the Hittite and his wife Bathsheba, and that the king has in essence pronounced sentence on himself. Commentators have been concerned with two main problems arising from the parable: the mismatch between the crime of the rich man (theft) and the crime of David (adultery and murder), and the appearance of the death penalty for theft. A third problem, the cumulation of the death penalty and multiple damages, has excited less comment. Those who seek to preserve the narrative’s integrity adopt one of two approaches: eliminating the death penalty or finding some aggravating element in the theft.19 An example of the first approach is Phillips’ reconstruction, according to which David is expressing regret that although morally the rich man deserves to die, the law allows only damages for theft. When Nathan reveals that the parable refers to David himself, the death penalty does apply, because David also committed murder and adultery.20 Such an interpretation would seem to render Nathan’s use of the parable altogether superfluous, since David has committed a capital offense anyway. Phillips further reduces the impact of the death sentence by suggesting that the Hebrew phrase “son of death” does not bear its commonly accepted connotation of “one who deserves to die” but should rather be translated “arch villain.”21 Far from agreeing with this translation, either for “son of death” or for the comparable phrase “man of death,” we suggest that in all cases where these phrases occur, they indicate that the person is subject to summary execution, as if he had already been condemned to death.22 This is most evident in 1 Kgs 2:26, where king Solomon, having condemned his brother Adonijah to death, says to his co-conspirator Abiathar: “Go to Anathoth, to your estate. For you are a man of death, but today I will not put you to death.” Abiathar is condemned to death by the king and then pardoned. His

18 19 20 21 22

Vv. 5-6 in the Masoretic text. The Septuagint has “seven-fold.” The difficulties for the unity of the narrative are summarized by Jones 1990: 96-100. Phillips 1966: 242-44. Followed by McCarter 1984: 299, who translates “a fiend of hell.” Compare the word “dead” to describe a condemned criminal; see Westbrook 1997.

Legalistic “Glosses” in Biblical Narratives

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offense was not that of being an arch villain or fiend of hell, but the very concrete one of high treason. Likewise, in 1 Sam 26:16, David’s rebuke to Saul’s retainers that they are sons of death derives its force from the assumption that the natural punishment for failing to guard one’s king is summary execution (cf. 1 Kgs 20:39-42). In 1 Sam 20:31, Saul not unnaturally says of David, whom he has been trying to kill and who is at that moment an outlaw, that he is a son of death. The link between these very different cases and the parable of the ewe-lamb is not the moral opprobrium of the culprit for very diverse offenses, but their being subject to the death penalty. Only in 2 Sam 19:29 could Mephibosheth’s statement that his family were all men of death to David be taken in either sense—that they were all villains as regards David or as if condemned to death by him. The second approach is illustrated by Seebass, who emphasizes that the rich man’s crime is a high-handed abuse of his powerful position in the local society. He can disregard a claim of theft by the poor man because the latter would not dare to sue him. The poor man therefore seeks the king’s aid, and the king imposes the death penalty on the rich man for undermining the law, as well as the customary damages for theft. The king is guilty of the same abuse, in taking the wife of Uriah, who had no redress against him.23 We would take Seebass’ insight a step further. The parable in our opinion has nothing to do with theft. The verb used is “take,” not “steal,” and it makes little sense for a rich man to steal a lamb like a common thief. It is more likely that the rich man was abusing a right to take the property of any villager for the purpose of feeding a guest of the village. Although his action was legal in a strict sense, it was illegal in its application and therefore an abuse of power punishable by death. By the same token, Nathan does not accuse David of theft (or adultery for that matter), but of having Uriah killed by the enemy and taking his wife in marriage (v. 9). Both actions were strictly speaking within the king’s lawful powers: he could send soldiers to death in battle and could take their widows in marriage. In this case, however, the first was done in order to attain the second and was thus an illegal abuse, punishable by death (by a divine tribunal).24 23 Seebass 1974. 24 For a detailed discussion, see Westbrook 1988d: 30-35.

448 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources In the light of this interpretation, it is the penalty for theft in v. 6 that is intrusive. The point is that an editor of the narrative, failing to grasp the subtlety of the parallel, naturally assumed (as have most commentators) that the offense was theft. He therefore glossed the text with the appropriate penalty from the Torah, as laid down for theft of a sheep in Exod 21:37. It has long been noted that a scribe may have altered the text from seven-fold, as recorded in the Septuagint, in order to make it conform with the law.25 Although more subtle and possibly earlier, the seven-fold penalty is in our view no less a gloss, for it is in itself a reference to the penalty for theft in Prov 6:31. There is a certain logic in using the precedent of a higher penalty, given that the standard penalty appears so inadequate for aggravated theft. Furthermore, since seven-fold in the proverb is taken to refer to an unpayable amount, it would make more sense to an editor who was assuming cumulation of penalties. The estate of the executed criminal would be transferred to the victim.

Conclusions The three narratives discussed above have in common the fact that they all turn upon a point of law. There were potentially many possible sources for the law in question: a royal decree, customary law, or the provisions of a law code. For an author or editor from the time of Ezra and Nehemiah, if not earlier, the only possible source could be the canonical laws in the codes of the Torah. The connection was established with varying degrees of explicitness. In Jeremiah 34, a direct citation of a canonical law is put into the mouth of the prophet; in Numbers 36 the speakers refer expressly but obliquely to a canonical law; while in 2 Samuel 12 it is only the words of the sentence that reveals them to be a quotation from a canonical law. The commentators’ method is exposed due to anomalies in the resultant text; doubtless there are other cases where a closer match between law in the narrative and codified law has left no trace of their handiwork, or at most, only debatable inferences.26 25 Driver 1913: 291. 26 E.g., the reference to two witnesses in the trial of Naboth (1 Kgs 21:10, 13)—either an integral part of the narrative or an added reference to the law in Deut 17:6 and 19:15.

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The motivation of the commentators was certainly pious, but their method is evidence also of a new legal science. That science relied upon written texts as sources of law and derived rules and principles from the text through a special type of close reading. The legal consequences of actual cases depended upon the relationship of their facts to the exact words of the text. A characteristic feature was therefore a more legalistic approach to the sources of law. It is most familiar to us in later, more developed, forms, such as the works of the classical Roman or the Tannaitic jurists, but its hesitant beginnings were already manifest in biblical Israel of the post-exilic period.

Abbreviations A AAASH AASOR AB ABAW AbB ABL

ADD AEM ÄF AfK AfO AfO Beiheft AHDO AHw AION AJSL AnBib ANET3

AnOr AnSt AOAT AoF AOS

tablets in the collections of the Oriental Institute, University of Chicago Acta Antiqua Academiae Scientiarum Hungaricae Annual of the American Schools of Oriental Research Anchor Bible Abhandlungen der Bayerischen Akademie der Wissenschaften Altbabylonische Briefe im Umschrift and Übersetzung Harper, R., ed. 1892-1914. Assyrian and Babylonian Letters Belonging to the Kouyunjik Collections of the British Museum. 14 vols. Chicago: University of Chicago Press. Johns, C. H. W. 1898-1924. Assyrian Deeds and Documents. 4 vols. Cambridge: Deighton, Bell. Archives Epistolaires de Mari Ägyptologische Forschungen Archiv für Keilschriftforschung Archiv für Orientforschung Archiv für Orientforschung Beiheft Archives d’histoire du droit oriental Soden, W. von. 1965-1981. Akkadisches Handwörterbuch. 3 vols. Wiesbaden: Harrassowitz. Annali dell’Istituto Universitario Orientale di Napoli American Journal of Semitic Languages and Literature Analecta biblica Pritchard, J. B., ed. 1969. Ancient Near Eastern Texts Relating to the Old Testament. 3d ed. with supplement. Princeton: Princeton University Press. Analecta orientalia Anatolian Studies Alter Orient und Altes Testament Altorientalische Forschungen American Oriental Series

452 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Aristotle Ath. Pol. ARM Arnaud Emar 6

Arnaud Textes syriens ArOr ARU

AS ASAW ASJ ASOR ASORSup AT AuOr AuOrSup Authorized Version

AV b. B. Qam. b. Gi. b. Soah BA BA BaghM BASOR BASP BBB BBSt. BE Beckman and Hoffner 1996

Aristotle, Athenain politeia Archives Royales de Mari Arnaud, D. 1986. Recherches au pays d’Atata, Emar VI. Vol. 3: Textes sumériens et accadiens. Paris: Éditions Recherches sur les civilisations. Arnaud, D. 1991 Textes syriens de l’âge du bronze récent. AuOrSup 1. Barcelona: Editorial Ausa. Archív Orientáliní Kohler, J., and A. Ungnad. 1913. Assyrische Rechtsurkunden, in Umschrift und Übersetzung nebst einem Index der Personen-Namen und Rechtserläuterungen. Leipzig: Pfeiffer. Assyriological Studies Abhandlungen der Sächsischen Akademie der Wissenschaften Acta Sumerologica American Schools of Oriental Research American Schools of Oriental Research Supplement Series Alalakh Tablets Aula Orientalis Aula Orientalis Supplement Series Authorized Version. See Hall, F., et al., eds. 1924. The Holy Bible, Reprinted according to the Authorized Version, 1611. London and New York: Nonesuch Press; Lincoln MacVeagh; Dial Press. Anniversary Volume Babylonian Talmud Bava Qamma Babylonian Talmud Giin Babylonian Talmud Soah Babylonische Archive Biblical Archaeologist Baghdader Mitteilungen Bulletin of the American Schools of Oriental Research Bulletin of the American Society of Papyrologists Bonner Biblische Beiträge King, L. W. 1912. Babylonian Boundary Stones, London: British Museum. Babylonian Expedition of the University of Pennsylvania, Series A: Cuneiform Texts Beckman, G. M., and H. A. Hoffner, Jr. 1996. Hittite Diplomatic Texts. SBLWAW 7. Atlanta: Scholars Press.

Abbreviations Beckman Emar

Bib Bible de Jérusalem BICSSup BiMes BIN BISNELC BM BO Bo. Boyer Contribution BRM BT

BWANT BZ BzA BZAR BZAW c(a). CAD

Caesar Bell. gall. Camb. Cato de agr. CBS CC CE CH CHANE chap(s).

453

Beckman, G. M. 1996. Texts from the Vicinity of Emar in the Collection of Jonathan Rosen. HANEM 2. Padua: Sargon. Biblica École Biblique et Archéologique Française. 1974. La Bible de Jérusalem: La Sainte Bible. Paris: Éditions du Cerf. Bulletin of the Institute of Classical Studies Supplement Bibliotheca Mesopotamica Babylonian Inscriptions in the Collection of J. B. Nies Bar-Ilan Studies in Near Eastern Languages and Culture tablets in the collections of the British Museum Bibliotheca Orientalis field numbers of tablets excavated at Boghazköi Boyer, G. 1928. Contribution à l’histoire juridique de la 1ère dynastie babylonienne. Paris: Geuthner. Babylonian Records in the Library of J. Pierpoint Morgan Kutscher, R. 1989. The Brockman Tablets of the University of Haifa. Vol. 1. Royal Inscriptions. Haifa: Haifa University Press; Harrassowitz: Wiesbaden. Beiträge zur Wissenschaft von Alten und Neuen Testament Biblische Zeitschrift Beiträge zur Assyriologie Beihefte zur Zeitschrift für altorientalische und biblische Rechtgeschichte Beihefte zur Zeitschrift für die alttestamentliche Wissenschaft circa Oppenheim, A. L., et al., eds.1956-. The Assyrian Dictionary of the Oriental Institute of Chicago. Chicago: Oriental Institute of the University of Chicago. Caesar, de bello gallico = Gallic War Strassmaier, J. N. 1890. Inschriften von Cambyses, König von Babylon (529-521 v. Chr.). Leipzig: Pfeiffer. Cato, de agri cultura origins tablets in the collections of the University Museum of the University of Pennsylvania, Philadelphia Covenant Code Code of Eshnunna Code of Hammurabi Culture and History of the Ancient Near East chapter(s)

454 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources CHD

Cicero Att. Cicero de leg. Cicero Dom. Cicero Fin. Cicero pro Balbo Cicero pro Tullio Cicero Rep. Cicero Verr. CL Claud. Rap. Pros. aCM Cod. Theod. col(s). Coll. ConBOT Cowley CQ CRRAI CSA CT CT Nebraska CTH CTN CU Cyr. D. Dalley Edinburgh

Dar.

Güterbock, H. G., and H. A. Hoffner, Jr. 1980-. The Hittite Dictionary of the Oriental Institute of the University of Chicago. Chicago: The Oriental Institute. Cicero, Epistulae ad Atticum Cicero, de legibus Cicero, de domo sua Cicero, de finibus bonorum et malorum Cicero, pro L. Balbo Cicero, pro M. Tullio Cicero, de re publica Cicero, In Verrem Code of Lipit-Ishtar Claudian, de Raptu Proserpinae Cuneiform Monographs Theodosian Code; Codex Theodosianus column(s) Mosaicarum et Romanarum legum collatio Coniectanea Biblica Old Testament Series Cowley, A. 1923. The Aramaic Papyri of the Fifth Century B.C. Oxford: Oxford University Press. Classical Quarterly Compte-rendu de la Rencontre Assyriologique International Cahiers de la Société Asiatique Cuneiform Texts from Babylonian Tablets in the British Museum Forde, N. W. 1967. Nebraska Cuneiform Tests of the Sumerian Ur Dynasty. Lawrence, Kansas: Coronado Press. Laroche, E. 1971. Catalogue des textes hittites. Études et commentaires 75. Paris: Klincksieck. Cuneiform Texts from Nimrud Code of Ur-Namma Strassmaier, J. N. 1890. Inschriften von Cyrus, König von Babylon (538-529 v. Chr.). Leipzig: Pfeiffer. Corpus Juris Civilis, Digesta (author as applicable) Dalley, S. 1979. A Catalogue of the Akkadian Cuneiform Tablets in the Collections of the Royal Scottish Museum, Edinburgh, with Copies of Texts. Royal Scottish Museum Art and Archaeology 2. Edinburgh: Royal Scottish Museum. Strassmaier, J. N. 1890. Inschriften von Darius, König von Babylon (521-485 v. Chr.). Leipzig: Pfeiffer.

Abbreviations Demosthenes Timocr. Dig. Dio Cass. Diodorus Siculus Bib. Hist. Dion. Hal. DN EA

Ea ed(s). EI Ent. Erimhu

FAOS ff. FIOL FIRA Florentinus Dig. G. GAG

Gaius Augustod. Gaius Dig. Gaius Inst. Gaius Prov. Edict Gell. NA GN GRBS GRBM Gurney MB Texts

455

Demosthenes, In Timocratem Corpus Juris Civilis, Digesta (author as applicable) Cassius Dio Diodorus Siculus, Biblioteca Historica Dionysius (of) Halicarnassus divine name El-Amarna Letters, as edited in Knudtzon, J. A., ed. 19071915. Die El-Amarna-Tafeln. 2 vols. Vorderasiatische Bibliothek. Leipzig: Hinrichs. lexical series ea A = nâqu; published in MSL XIV editor(s) Eretz-Israel Entemena lexical series er i m u = anantu; published in MSL XVII Freiburger Altorientalische Studien and following The Formation and Interpretation of Old Testament Literature Riccobono, S., and J. Baviera, eds. 1968. Fontes iuris Romani anteiustiniani. 3 vols. Florenz: Barbèra. Corpus Juris Civilis, Digesta (Florentinus) Gaius, Institutiones Soden, W. von. 1969. Grundriss der Akkadischen Grammatik. 2 vols. Analecta Orientalia 33 and 47. Rome: Pontifical Biblical Institute. Fragmenta interpretationis Gai institutionum Augustodunensia Corpus Juris Civilis, Digesta (Gaius) Gaius, Institutiones Gaius, Ad Edictum Praetoris Provinciale = Commentary on the Provincial Edict Gellius, noctes Atticae geographic name Greek, Roman, and Byzantine Studies Greek, Roman, and Byzantine Monographs Gurney, O. R. 1983. The Middle Babylonian Legal and Economic Texts from Ur. London: British School of Archaeology in Iraq.

456 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources HAL3

HANEM HANES HdO HG Hg. Hh. HL HSCP HSM HSS HTR HUCA IBHS IBoT ICC ICK

IEJ Il. IM IOS ITT

J. Westenholz Emar JANES JAOS JBL JCS

Köhler, L., Baumgartner, W., and Stamm, J. J. 1967-96. Hebräisches und Aramäisches Lexikon zum Alten Testament. 3d ed. Edited by W. Baumgartner. Leiden: Brill. History of the Ancient Near East Monographs History of the Ancient Near East Studies Handbuch der Orientalistik Kohler J., A. Ungnad et al. 1904-23. Hammurabis Gesetz. 6 vols. Leipzig: Pfeiffer. lexical series AR.gud = imrú = ballu; published in MSL VXI lexical series AR.ra = ubullu; published in MSL V-XI Hittite Laws Harvard Studies in Classical Philology Harvard Semitic Monographs Harvard Semitic Studies Harvard Theological Review Hebrew Union College Annual Waltke, B. K., and M. O’Conner. 1990. An Introduction to Biblical Syntax. Winona Lake, Ind.: Eisenbrauns. Istanbul Arkeoloji Müzelerinde Bulunan Bo azköy Tabletleri International Critical Commentary Hrozn B. 1952-62. Inscriptions cunéiformes du Kultépé. Translated by M. David. 2 vols. Archív Orientální Monografie 14. Praha: Státni pedogogické nakl. Israel Exploration Journal Homer, The Iliad tablets in the collections of the Iraq Museum, Baghdad Israel Oriental Society Constantinople Arkeoloji Müzeleri [Constantinople Archaeological Museum]. 1910-21. Inventaire des tablettes de Tello conservées au Musée impérial ottoman. 5 vols. Paris: Leroux. Westenholz, J. G. 2000. Cuneiform Inscriptions in the Collection of the Bible Lands Museum Jerusalem: The Emar Tablets. CM 13. Groningen: Styx. Journal of the Ancient Near East Society of Columbia University Journal of the American Oriental Society Journal of Biblical Literature Journal of Cuneiform Studies

Abbreviations Jean Tell Sifr

457

Jean, Ch.-F. 1931. Tell Sifr textes cunéiformes conservés au British Museum. Paris: Geuthner. JEN Joint Expedition with the Iraq Museum at Nuzi JEOL Jaarbericht van het Vooraziatisch-Egyptisch Genootschap “Ex Oriente Lux” JESHO Journal of the Economic and Social History of the Orient JHS Journal of Hebrew Scriptures JJP Journal of Juristic Papyrology JJS Journal of Jewish Studies JLA Jewish Law Annual JNES Journal of Near Eastern Studies JNSL Journal of Northwest Semitic Languages Jones and Snyder Jones, T. B., and J. W. Snyder. 1991. Sumerian Economic Texts from the Third Ur Dynasty. Minneapolis: University of Minnesota Press. JPS Jewish Publication Society. 1985. Tanakh. New York: Jewish Publication Society. JPS Torah Comm. Jewish Publication Society Torah Commentary JQR Jewish Quarterly Review JRS Journal of Roman Studies JSOT Journal for the Study of the Old Testament JSOTSup Journal for the Study of the Old Testament Supplement Series JSS Journal of Semitic Studies Justinian Inst. Justinian, Institutiones KadmosSup Kadmos (Zeitschrift für vor- und frühgriechische Epigraphik) Supplement KAH Keilschrifttexte aus Assur historischen Inhalts KAJ Keilschrifttexte aus Assur juristischen Inhalts KAR Keilschrifttexte aus Assur religiösen Inhalts KAV Keilschrifttexte aus Assur verschiedenen Inhalts KBo Keilschrifturkunden von Boghazköi K Kodex ammurabi = Code of Hammurabi Kienast Altass. Kienast, B. 1984. Das altassyrische Kaufvertragsrecht. Kaufvertragsrecht FAOS 1. Altassyrische Texte und Untersuchungen 1. Stuttgart: Steiner. Kraeling Kraeling, E. 1953. The Brooklyn Museum Aramaic Papyri: New Documents of the Fifth Century B.C. from the Jewish Colony at Elephantine. Publications of the Department of Egyptian Art. New Haven: Yale University Press. Reprinted New York: Arno Press, 1969.

458 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Kramer AV

Kraus AV

KTS KUB Lambert BWL LAPO LCL LHB/OTS LIH Livy LQR LSJ

LTBA

Lucilius LXX m. Gi. m. Ketub. m. Yebam. m. Yoma MA MAL MAL A MANE Manilius Astr. MAOG Marcianus Dig. MB

Eichler, B. L., J. W. Heimerdinger, and Å. W. Sjöberg, eds. 1976. Kramer Anniversary Volume: Cuneiform Studies in Honor of Samuel Noah Kramer. AOAT 25. Kevelaer: Butzon & Bercker. Driel, G. van, et. al., eds. 1982. Zikir umim: Assyriological Studies Presented to F. R. Kraus on the Occasion of His Seventieth Birthday. Leiden: Brill. Keilschrifttexte in den Antiken-Museen zu Stambul Keilschrifturkunden aus Boghazköi Lambert, W. G. 1960. Babylonian Wisdom Literature. Oxford: Clarendon. Littératures anciennes du Proche Orient Loeb Classical Library Library of Hebrew Bible / Old Testament Studies King, L. W. 1898-1900. The Letters and Inscriptions of ammurabi, King of Babylon. London: Luzac. Titus Lilvius, Ab urbe condita libri Law Quarterly Review Liddell, H. G., R. Scott, H. S. Jones et al., eds. 1996. A Greek-English Lexicon. Oxford and New York: Clarendon Press; University of Oxford Press. Soden, W. von, and Staatliche Museen zu Berlin, Vorderasiatische Abteilung. 1933-. Die lexikalischen Tafelserien der Babylonier und Assyrer in den Berliner Museen. 2 vols. Berlin: Vorderasiatische Abteilung der Staatliche Museen zu Berlin. Gaius Lucilius, The Twelve Tables Septuagint Mishnah Giin Mishnah Ketubbot Mishnah Yebamot Mishnah Yoma = Mishnah Kippurim Middle Assyrian Middle Assyrian Laws Middle Assyrian Laws, Tablet A (and so forth through N) Sources and Monographs. Monographs on the Ancient Near East Manilius, astronomica Mitteilungen der Altorientalischen Gesellschaft Corpus Juris Civilis, Digesta (Marcianus) Middle Babylonian

Abbreviations MDP MEFR Meissner BAP Mek. MIO MKNAW MSL

MT MVAG MVN n(n). N.A.B.U. NA Nabnitu NB NBL Nbn. NCB NCBT ND New English Bible

NF / n.F. no(s).

459

Mémoires de la Délégation en Perse Mélanges d’archéologie et d’histoire de l’école français de Rome Meissner, B. 1893. Beiträge zum altbabylonischen Privatrecht. Leipzig: Hinrichs. Mekhilta Mitteilungen des Instituts für Orientforschung Mededelingen der Koninklijke Nederlandse Akademie van Wetenschappen Materialien zum sumerischen Lexikon I = Landsberger 1937 VI = Landsberger 1958 VIII/1 = Kilmer, Gordon, and Landsberger 1960 VIII/2 = Kilmer and Landsberger 1962 IX = Civil and Landsberger 1967 XII = Civil 1969 XIII = Civil 1971 XIV = Civil 1979 XVI = Finkel and Civil 1982 XVII = Cavigneaux et al. 1985 Masoretic Text Mitteilungen der Vorderasiatisch-Ägyptischen Gesellschaft Materiali per il vocabolario neo-sumerico note(s) Nouvelles Assyriologiques Brèves et Utilitaires Neo-Assyrian lexical series SIG7 + ALAM = nabntu published in MSL XVI Neo-Babylonian Neo-Babylonian Laws Strassmaier, J. N. 1889. Inschriften von Nabonidus, König von Babylon (555-538 v. Chr.). Leipzig: Pfeiffer. New Century Bible tablets in the Newell Collection of Babylonian Tablets, Yale University Library field numbers of tablets excavated at Nimrud (Kalhu) Joint Committee on the New Translation of the Bible. 1970. The New English Bible with the Apocrypha. London and New York: Oxford University Press; Cambridge University Press. Neue Folge number(s)

460 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources NRVN

NS / ns NSG

NT OA OB OBC OBO OBT Tell Rimah

Od. OECT OIP OLA OLZ Or (NS) OrAnt Oros. OTL OtSt Ovid Fast. Ovid Metam. Oxford Bible

Papinian Dig. Paulus Dig. Paulus Sent. PBS Petschow MB Rechtsurkunden

Çi , M., and H. Kizilyay. 1965. Neusumerische Rechts- und Verwaltungsurkunden aus Nippur I. TTKY 6/7. Ankara: Türk tarih kurumu basimevi. New Series Falkenstein, A. 1956-1957. Die neusumerischen Gerichtsurkunden. 3 vols. ABAW philosophisch-historische Klasse n.F. 39, 40, 44. Munich: Bayerische Akademie der Wissenschaften. field numbers of tablets excavated at Nippur by the Oriental Institute and other institutions Old Assyrian Old Babylonian Orientalia Biblica et Christiana Orbis Biblicus et Orientalis Dalley, S., C. B. F. Walker, and J. D. Hawkins. 1976. Old Babylonian Texts from Tell al Rimah. London: British School of Archaeology in Iraq. Homer, The Odyssey Oxford Editions of Cuneiform Texts Oriental Institute Publications Orientalia Lovaniensia Analecta Orientalische Literaturzeitung Orientalia (Nova Series) Oriens antiquus Orosius Old Testament Library Oudtestamentische Studiën Ovid, Fasti Ovid, Metamorphoses May, H. G., and B. M. Metzger, eds. 1962. The Holy Bible: Revised Standard Version. London and New York: Oxford University Press. Corpus Juris Civilis, Digesta (Papinian) Corpus Juris Civilis, Digesta (Paulus) Paulus, Sententiae Publications of the Babylonian Section, University Museum, University of Pennsylvania Petschow, H. 1974. Mittelbabylonische Rechts- und Wirtschaftsurkunden der Hilprecht-Sammlung Jena. ASAW philosophisch-historische Klasse 64/4. Berlin: Akademie-Verlag.

Abbreviations Philo Spec. Laws PIHANS pl. Plautus Asin. Plautus Merc. Plautus Pseud. Plautus Rud. Pliny Nat. PN Pomponius Dig. PRU PY Quintilian Decl. mai. Quintilian Decl. min. Quintilian Inst. RA RAI RB RHA RHPR RIDA Riftin

RlA RN RS RSO RSV

SAA SAAS Sallust. Bell. Cat. Sallust. Bell. Iug.

461

Philo of Alexandria, On Special Laws Uitgaven van het Nederlands Historisch-archeologische Instituut te Istanbul plate Plautus, Asinaria Plautus, Mercator Plautus, Pseudolus Plautus, Rudens Pliny (the Elder), Naturalis historia personal name Corpus Juris Civilis, Digesta (Pomponius) Le Palais Royal d’Ugarit Pylos (site where numerous Linear B texts were discovered; on additional sigla, see Bennett 1953). Quintilianus, Declamationes maiores Quintilianus, Declamationes minores Quintilian, Institutio oratoria Revue d’Assyriologique et d’Archéologie orientale Rencontre Assyriologique Internationale Revue Biblique Revue hittite et asianique Revue d’Histoire et de Philosophie Religieuses Revue internationale du droit de l’antiquité Riftin, A. P. 1937. Staro-Vavilonskie iuridicheskie i administrativnye dokumenty v sobraniiakh SSSR. Moscow: Izd-vo Akademii nauk SSSR. Reallexikon der Assyriologie. Edited by E. Ebeling, et al. 16 vols. Berlin: de Gruyter, 1928–. royal name field numbers of tablets excavated at Ras Shamra Rivista degli studi orientali Revised Standard Version. See Burrows, M., et al., ed. 1952. The Holy Bible: Revised Standard Version. Toronto and New York: T. Nelson. State Archives of Assyria State Archives of Assyria Studies Sallustius, Bellum catilinae Sallustius, Bellum iugurthinum

462 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources San NicolòPetschow Bab. Rechtsurkunden SANE SBH

SBLDS SBLSymS SBLWAW SBS SCCNH Schol. ad Bas. SDHI SDIOAP Sen. Clem. Sen. Controv. Sen. Ep. Mor. SHA Sigrist Kutscher Mem. Vol.

Sigrist Messenger Texts SJLA SLB SMEA SMN SNATBM

Sollberger Corpus

San Nicolò, M., and H. Petschow. 1960. Babylonische Rechtsurkunden aus dem 6. Jahrhundert v. Chr. ABAW philosophisch-historische Klasse n.F. 51. Munich: Bayerische Akademie der Wissenschaften. Sources from the Ancient Near East Reisner, G. A. 1986. Sumerisch-babylonische Hymnen nach Thontafeln griechischer Zeit. Königliche Museen zu Berlin. Mitteilungen aus den orientalischen Sammlungen 10. Berlin: Spemann Society of Biblical Literature Dissertation Series Society of Biblical Literature Symposium Series Society of Biblical Literature Writings from the Ancient World Stuttgarter Bibelstudien Studies on the Civilization and Culture of Nuzi and the Hurrians Scholiast on the Basilica Studia et documenta historiae et iuris Studia et documenta ad iura orientis antiqui pertinentia Seneca minor, de clementia Seneca maior, controversiae Seneca minor, epistulae morales ad Lucilium scriptores historiae Augustae Rainey, A., et al., eds. 1993. Kinatttu a d râti. Raphael Kutscher Memorial Volume. Tel Aviv Occasional Publications 1. Tel Aviv: Institute of Archaeology of Tel Aviv University. Sigrist, M. 1990. Messenger Texts from the British Museum. Potomac, Md.: Capital Decisions. Studies in Judaism in Late Antiquity Studia ad tabulas cuneiformes collectas a F. M. Th. de Liagre Böhl pertinentia. Studi Micenei e Egeo-Anatolici tablets excavated at Nuzi, in the Semitic Museum, Harvard University, Cambridge, Mass. Ozaki (Gomi), T., and S. Sato. 1990. Selected NeoSumerian Administrative Texts from the British Museum. Soken kenkyu shiryo 7. Abiko: Research Institute, ChuoGakuin University. Sollberger, E. 1956. Corpus des inscriptions “royales” présargoniques de Laga. Geneva: Dros.

Abbreviations SR SRU

Statius Theb. StBoT Strabo Geo. StudBib Studies Landsberger SubBi Szlechter TJA

T. Tac. Hist. TAD

TAPA TCL TCM TCS Theophilus Para. TIM TLB trans. transl. TTKY TUAT TuM

TvR UCP UET

463

Studies in Religion/Sciences religieuses Edzard, D. O. 1968. Sumerische Rechtsurkunden des III. Jahrtausends aus der Zeit vor der III. Dynastie von Ur. ABAW philosophisch-historische Klasse n.F. 67. Munich: Bayerische Akademie der Wissenschaften, with Beck. Publius Papinius Statius, Thebaid Studien zu den Bo azöy-Texten Strabo, Geographica Studia Biblica Güterbock, H. G., and T. Jacobsen, eds. 1965. Studies in Honour of Benno Landsberger on His Seventy-Fifth Birthday. AS 16. Chicago: University of Chicago Press. Subsidia biblica Szlechter, E. 1963. Tablettes juridiques et administratives de la IIIe dynastie d’Ur. Publications de l’Institut de droit romain de l’Université de Paris 21. Paris: Recueil Sirey. (Twelve) Tables Tacitus, Historiae Porten, B., and A. Yardeni, eds. 1989. Textbook of Aramaic Documents from Ancient Egypt. 2 vols. Texts and Studies for Students. Jerusalem: Hebrew University, Department of the History of the Jewish People; Winona Lake, Ind.: Eisenbrauns. Transactions of the American Philosophical Society Textes cunéiformes du Louvre Textes cunéiformes de Mari Texts from Cuneiform Sources Theophilus, Paraphrasis Texts in the Iraq Museum Tabulae cuneiformes a F. M. Th. de Liagre Böhl collectae translated by translation Türk Tarih Kurumu Yayinlari(ndan) Texte aus der Umwelt des Alten Testaments Texte und Materialien der Frau Professor Hilprecht Collection of Babylonian Antiquities im Eigentum der Universität Jena Tijdschrift voor Rechtsgeschiedenis University of California Publications in Semitic Philology Ur Excavations, Texts

464 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources UF Ukg. Ulpian Dig. Urk. IV

US v(v). Val. Max. Varro L. VAS Vienna Convention on the Law of Treaties Virgil Aen. VS VSAW VT VTSup Waterman, Bus. Doc. Westenholz OSP

WMANT WO WVDOH WZKM Xenophon Cyn. YBC

Ugarit-Forschungen Urkagina = Uru-inimgina = Irikagina (the preferred reading of this name) Corpus Juris Civilis, Digesta (Ulpian) Sethe, K., and Helck, W., eds. 1906-09; 1955-58. Urkunden des ägyptischen Altertums IV: Urkunden der 18. Dynastie. 22 vols. Leipzig: Heinrich (vols. 1-16, 1906-1909); Berlin: Akademie-Verlag (vols. 17-22, 1955-1958). United States (Supreme Court) Reporter verse(s) Valerius Maximus, Factorum et Dictorum Memorabilium Libri Novem Varro, de lingua latina Vorderasiatische Schriftdenkmäler United Nations, International Law Commission. 1969. Vienna Convention on the Law of Treaties: drafted 1969, revised and adopted 1980. Virgil, Aeneid = VAS Verhandlungen der Sächsischen Akademie der Wissenschaften Vetus Testamentum Supplements to Vetus Testamentum Waterman, L. 1916. Business Documents of the Hammurapi Period. Ancient Mesopotamian Tests and Studies. London: Ams Press (= AJSL 29-30 [1912-1914]) Westenholz, A. 1975 & 1987. Old Sumerian and Old Akkadian Texts in Philadelphia Chiefly from Nippur (1 = BiMes 1, Malibu, Calif.: Undena Publications; 2 = Carsten Niebuhr Institute Publications 3, Copenhagen: Carsten Niebuhr Institute of Ancient Near Eastern Studies). Wissenschaftliche Monographien zum Alten und Neuen Testament Die Welt des Orients Wissenschaftliche Veröffentlichungen der deutschen Orientgesellschaft Wiener Zeitschrift für die Kunde des Morgenlands Xenophon, Cynegeticus tablets in the Babylonian Collection, Yale University Library

Abbreviations YNER YOS YOSR ZA ZAH ZÄS ZAW ZDMG ZSSR (Rom. Abt.) ZVR ZVS

465

Yale Near Eastern Researches Series Yale Oriental Series Yale Oriental Series, Researches Zeitschrift für Assyriologie Zeitschrift für Althebräistik Zeitschrift für die Ägyptische Sprache und Altertumskunde Zeitschrift für die alttestamentliche Wissenschaft Zeitschrift der Deutschen Morgenländischen Gesellschaft Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) Zeitschrift für vergleichende Rechtswissenschaft Zeitschrift für vergleichende Sprachforschung

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474 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Donner, H. 1969 “Adoption oder Legitimation? Erwägungen zur Adoption im Alten Testament auf dem Hintergrund der altorientalischen Rechte.” OrAnt 8: 87-119. Dossin, G. 1946-53 Lettres. 6 vols. TCL 22-27; ARM 1-6. Paris: Geuthner. 1967 La Correspondance féminine. TCL 31; ARM 10. Paris: Geuthner. 1972 “ada

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476 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Eissfeldt, O. 1964 Einleitung in das Alte Testament. 3d ed. Neue theologische Grundrisse. Tübingen: Mohr. Translated into English as The Old Testament: An Introduction. Translated by P. R. Ackroyd. New York: Harper & Row, 1965. Eslinger, L. M. 1981 “The Case of an Immodest Lady Wrestler in Deuteronomy 25:11-12.” VT 31: 269-81. Fales, F. M. 1989 Prima dell’alfabeto. Venice: Erizzo. Falk, Z. 1964 Hebrew Law in Biblical Times: An Introduction. Jerusalem: Wahrmann. 2d ed. Winona Lake, Ind.: Eisenbrauns, 2001. Falkenstein, A. 1956-57 Die neusumerischen Gerichtsurkunden. 3 vols. ABAW philosophischhistorische Klasse n.F. 39, 40, 44. Munich: Bayerische Akademie der Wissenschaften. 1957-58 “Zur Grammatik der altsumerischen Sprache.” AfO 18: 85-96. 1959 “Neue Rechts- und Gerichtsurkunden der Ur III-Zeit aus Laga.” ZA 53: 51-92. Faltz, L. M. 1985 Reflexivization: A Study in Universal Syntax. New York: Garland. Figulla, H. H. 1951 “Lawsuit Concerning a Sacrilegious Theft at Erech.” Iraq 13: 95-101. Finet, A. 1973 Le code de Hammurapi. LAOP 6. Paris: Éditions du Cerf. 1978 “La ‘gage’ et la ‘sujétion’ (niptum et ki

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478 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Gagarin, M. 1990 “The Function of Witnesses at Gortyn.” Pages 29-54 in Symposion 1985. Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte 6. Köln: Weimar. Garbini, G. 1981 “Gli incantesimi fenici di Arslan Ta.” OrAnt 20: 277-94. Gavison, R. 1987 Issues in Contemporary Legal Philosophy: The Influence of H. L. A. Hart. Oxford: Clarendon; New York: Oxford University Press. Gelb, I. J. 1965 “The Philadelphia Onion Archive.” Pages 57-62 in Studies in Honour of Benno Landsberger on His Seventy-Fifth Birthday. Edited by H. G. Güterbock and T. Jacobsen. AS 16. Chicago: University of Chicago Press. Geller, M. J. 1978 “New Sources for the Origins of the Rabbinic Ketubah.” HUCA: 22745. Goetze, A. 1930 Neue Bruchstücke zum grossen Text des Hattusilis. MVAG 34/2. Leipzig: Hinrichs. 1949 Review of H. G. Güterbock, Kumarbi, Mythen vom churritischen Kronos aus den hethitischen Fragmenten zusammengestellt, übersetzt und erklärt. JAOS 69: 178-83. 1956 Laws of Eshnunna. AASOR 31. New Haven: American Schools for Oriental Research. 1958 “Fifty Old Babylonian Letters from Harmal.” Sumer 14: 3-78. 1967 Die Annalen des Mursilis. Darmstadt: Wissenschaftliche Buchgesellschaft. Reprint of MVAG 38. Leipzig: Hinrichs, 1933. 1969a “The Hittite Laws.” Pages 188-97 in Ancient Near Eastern Texts. 3d ed. Edited by James B. Pritchard. Princeton: Princeton University Press. 1969b “Vow of Puduhepas.” Pages 394-96 in Ancient Near Eastern Texts. 3d ed. Edited by J. B. Pritchard. Princeton: Princeton University Press. Goody, J. 1986 The Logic of Writing and the Organization of Society. Studies in Literacy, Family, Culture, and the State. Cambridge and New York: Cambridge University Press. Graf, K. H. 1864 “Was bedeutet der Ausdruck: Vor Gott erscheinen in den Gesetzen des Pentateuch Ex 21,6; 22,7.8.” ZDMG 18: 309-14.

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498 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Renger, J. 1977 “Legal Aspects of Sealing in Ancient Mesopotamia.” Pages 75-88 in Seals and Sealing in the Ancient Near East. Edited by M. Gibson and R. Biggs. BiMes 6. Malibu: Undena. 1984 “Patterns of Non-Institutional Trade and Non-Commercial Exchange in Ancient Mesopotamia at the Beginning of the Second Millennium B.C.” Pages 31-123 in Circulation of Goods in Non-Palatial Context in the Ancient Near East: Proceedings of the International Conference. Edited by A. Archi. Incunabula Graeca 82. Rome: Edizioni dell’Ateneo. Reviv, H. 1982 “The Traditions Concerning the Inception of the Legal System in Israel: Significance and Dating (Exodus 18:12-17; Numbers 11:16-25; Deuteronomy 1:9-17).” ZAW 94: 566-75. Reynolds, F. 2003 The Babylonian Correspondence of Esarhaddon and Letters to Assurbanipal and Sin- arru-i kun from Northern and Central Babylonia. SAA 18. Helsinki: Helsinki University Press. Riccobono, S., and J. Baviera, eds. 1968 Fontes iuris Romani anteiustiniani. 3 vols. Florence: Barbèra. Richardson, N. J. 1974 The Homeric Hymn to Demeter. Oxford: Clarendon; New York: Oxford University Press. Ries, G. 1984 “Ein neubabylonischer Mitgiftprozess (559 v. Chr.): Gleichzeitig ein Beitrag zur Frage der Geltung keilschriftlicher Gesetze.” Pages 345-63 in Gedächtnisschrift für Wolfgang Kunkel. Edited by D. Nörr and D. Simon. Frankfurt: Klostermann. Rietzschel, C. 1966 Das Problem der Urrolle: Ein Beitrag zur Redaktionsgeschichte des Jeremiahbuches. Gütersloh: Gerd Mohn. Riftin, A. P. 1937 Staro-vavilonskie iuridicheskie i administrativnye dokumenty v sobraniiakh SSSR. Moscow: Izd-vo Akademii nauk SSSR. Rosen, B. L. 1977 “Some Notes on Eshnunna Laws 20 and 21 and a Legal Reform in the Laws of Hammurapi.” RA 71: 35-38. Roth, M. 1989a Babylonian Marriage Agreements 7th–3rd Centuries B.C. AOAT 222. Kevelaer: Butzon & Bercker; Neukirchen-Vluyn: Neukirchener Verlag.

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500 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Scheil, V. J. 1918 “Litige causé par la coïncidence du rachat et de la mort d’un esclave.” RA 15: 139-41. Schenker, A. 1988 “Affranchissement d’une esclave selon Ex. 21,7-11.” Bib 69: 547-56. 1990 Versöhnung und Widerstand: Bibeltheologische Untersuchung zum Strafen Gottes und der Menschen, besonders im Lichte von Exodus 2122. SBS 139. Stuttgart: Verlag Katholischen Bibelwerk. Schindler, J. 1967 “Zu hethitisch nekuz.” ZVS 81: 290-303. Schorr, M. 1913 Urkunden des altbabylonischen Zivil- und Prozessrechts. VAB 5. Leipzig: Hinrich. Reprinted Leipzig: Zentral-Antiquariat, 1968. Schreiner, S. 1979 “Mischehen – Ehebruch – Ehescheidung: Betrachtungen zu Mal 2,1016.” ZAW 91: 207-28. Schuler, E. von 1957 Hethitische Dienstanweisungen. AfO Beiheft 10. Innsbruck: BiblioVerlag. Reprinted 1967. 1959 “Hethitische Königserlässe als Quellen der Rechtsfindung und ihr Verhältnis zum kodifizierten Recht.” Pages 435-72 in Festschrift Johannes Friedrich zum 65. Geburtstag am 27. August 1958. Edited by R. von Kienle. Heidelberg: Winter. Schulman, A. 1979 “Diplomatic Marriage in the Egyptian New Kingdom.” JNES 38: 17793. Schulz, H. 1969 Das Todesrecht im Alten Testament. BZAW 114. Berlin: Töpelman. Schwienhorst-Schönberger, L. 1990 Das Bundesbuch (Ex. 20,22-23,33): Studien zu seiner Entstehung und Theologie. BZAW 188. Berlin: de Gruyter. Seebass, H. 1974 “Nathan und David in 2 Sam 12.” ZAW 86: 203-11. Seidel, E. 1997 “Freunde und Feinde Jeremias unter den Beamten Judas der spätvorexilischen Zeit.” BZ 41: 28-53. Senn, A. 1957 Handbuch der litauischen Sprache. 2 vols. Indogermanische Bibliothek. Heidelberg: Winter.

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506 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Watson, A. 1985 The Evolution of Law. Oxford: Blackwell; Baltimore: Johns Hopkins University Press. Weidner, E. F. 1941-44 “Die astrologische Serie Enûma Anu Enlil.” AfO 14: 172-95, 308-18. 1954-56a “Die astrologische Serie Enûma Anu Enlil (Fortsetzung).” AfO 17: 7689. 1954-56b “Hochverrat gegen Nebukadnezar II.” AfO 17: 1-9. 1954-56c “Hof- und Harems-Erlässe assyrischer Könige aus dem 2. Jahrtausend v. Chr.” AfO 17: 257-93. Weinfeld, M. 1970 “The Covenant of Grant in the Old Testament and in the Ancient Near East.” JAOS 90: 184-203. 1972 Deuteronomy and the Deuteronomic School. Oxford: Clarendon. Weisberg, D. 2001 “Pirqti or irkti? Was Itar-ab-usur’s Freedom Affirmed or Was He Re-Enslaved?” Pages 1163-77 in Studi sul Vicino Oriente antico dedicati alla memoria di Luigi Cagni. Edited by S. Graziani. 4 vols. Series Minor, Istituto universitario orientale, Dipartimento di studi asiatici 61. Naples and Rome: Istituto Universitario Universale and Herder. 2003 Neo-Babylonian Texts in the Oriental Institute Collection. OIP 122. Chicago: Oriental Institute. Welch, J. W., ed. 2005 Biblical Law Bibliography on CD-Rom. Winona Lake: Eisenbrauns. Wells, B. 2004 The Law of Testimony in the Pentateuchal Codes. BZAR 4. Wiesbaden: Harrassowitz. Wenham, G. J. 1979 “The Restoration of Marriage Reconsidered.” JJS 30: 36-40. Wenham, G. J., and J. G. McConville 1980 “Drafting Techniques in Some Deuteronomic Laws.” VT 30: 248-52. Westbrook, R. 1971a “Jubilee Laws.” Israel Law Review 6: 209-26. Reprinted at pages 3657 in Property and the Family in Biblical Law. JSOTSup 113. Sheffield: Sheffield Academic. 1971b “Purchase of the Cave of Machpelah.” Israel Law Review 6: 29-38. Reprinted at pages 24-35 in Property and the Family in Biblical Law. JSOTSup 113. Sheffield: Sheffield Academic. 1971c “Redemption of Land.” Israel Law Review 6: 367-75. Reprinted at pages 58-68 in Property and the Family in Biblical Law. JSOTSup 113. Sheffield: Sheffield Academic.

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Levinson, and T. Frymer-Kensky. JSOTSup 262. Sheffield: Sheffield Academic. “Legal Aspects of Care of the Elderly in the Ancient Near East: Conclusion.” Pages 241-50 in The Care of the Elderly in the Ancient Near East. Edited by M. Stol and S. Vleeming. Leiden: Brill. “Legal Aspects of Care of the Elderly in the Ancient Near East: Introduction.” Pages 1-22 in The Care of the Elderly in the Ancient Near East. Edited by M. Stol and S. Vleeming. Leiden: Brill. “Codex Hammurabi and the Ends of the Earth.” Pages 101-3 in vol. 3 of Landscapes: Territories, Frontiers and Horizons in the Ancient Near East. Edited by L. Milano et al. HANEM 3. Padova: Sargon. “International Law in the Amarna Age.” Pages 28-41 in Amarna Diplomacy: The Beginning of International Relations. Edited by R. Cohen and R. Westbrook. Baltimore: Johns Hopkins University Press. “Legalistic ‘Glosses’ in Biblical Narratives.” Israel Law Review 33: 787-97. “Lois Sumériennes.” Columns 204-15 in Supplément au Dictionnaire de la Bible. Edited by J. Briend and M. Quesnel. Paris: Letouzey et Ané. Review of E. Dombradi, Die Darstellung des Rechtsaustrags in den altbabylonischen Prozessurkunden. Or (NS) 68: 122-27. “Vitae Necisque Potestas.” Historia 48: 203-23. “Babylonian Diplomacy in the Amarna Letters.” JAOS 120: 377-82. “Codification and Canonization.” Pages 33-47 in La codification des lois dans l’antiquité: Actes du Colloque de Strasbourg 27-29 Novembre 1997. Edited by E. Lévy. Travaux du Centre de Recherche sur le Proche-Orient et la Grèce antiques 16. Paris: de Boccard. “I codici mesopotamici.” Pages 377-83 in vol. 1 (La scienza antica) of Storia della scienza. Edited by S. Petruczioli. Rome: Istituto della Enciclopedia Italiana, 2001-. “Conclusions.” Pages 327-39 in Security for Debt in Ancient Near Eastern Law. Edited by R. Westbrook and R. Jasnow. CHANE 9. Leiden: Brill. “Hard Times: CT 45 37.” Pages 547-51 in Veenhof Anniversary Volume: Studies Presented to Klaas R. Veenhof on the Occasion of his Sixty-fifth Birthday. Edited by W. H. van Soldt and J. G. Dercksen. PIHANS 89. Leiden: Nederlands Instituut voor het Nabije Oosten. “Introduction.” Pages 1-3 in Security for Debt in Ancient Near Eastern Law. Edited by R. Westbrook and R. Jasnow. CHANE 9. Leiden: Brill.

510 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 2001e 2001f

2001g 2002 2003a 2003b

2003c 2003d

2003e

2003f

2004 2005a 2005b 2005c 2005d

2005e 2005f

“Noxalhaftung.” Pages 605-6 in vol. 9 of Reallexikon der Assyriologie. Edited by E. Ebeling et al. 16 vols. Berlin: de Gruyter, 1928-. “The Old Babylonian Period.” Pages 63-91 in Security for Debt in Ancient Near Eastern Law. Edited by R. Westbrook and R. Jasnow. CHANE 9. Leiden: Brill. “Social Justice and Creative Jurisprudence in Late Bronze Age Syria.” JESHO 43: 22-43. Review of A. Fitzpatrick-McKinley, The Transformation of Torah from Scribal Advice to Law. JNES 61: 295-96. “The Case of the Elusive Debtors: CT 4 6a and CT 6 34b.” ZA 93: 199-207. “Emar and Vicinity.” Pages 657-91 in vol. 1 of A History of Ancient Near Eastern Law. Edited by R. Westbrook. 2 vols. HdO 72. Leiden and New York: Brill. “Evidentiary Procedure in the Middle Assyrian Laws.” JCS 55: 75-85. “Introduction: The Character of Ancient Near Eastern Law.” Pages 190 in vol. 1 of A History of Ancient Near Eastern Law. Edited by R. Westbrook. 2 vols. HdO 72. Leiden and New York: Brill. “Old Babylonian Period.” Pages 360-430 in vol. 1 of A History of Ancient Near Eastern Law. Edited by R. Westbrook. 2 vols. HdO 72. Leiden and New York: Brill. “A Sumerian Freedman.” Pages in 333-39 Literatur, Politik und Recht in Mesopotamien. Festschrift für Claus Wilcke. Edited by W. Sallaberger et al. OBC 14. Wiesbaden: Harrassowitz. “The Quality of Freedom in Neo-Babylonian Manumissions.” RA 98: 101-8. “Elisha’s True Prophecy in 2 Kings 3.” JBL 124: 530-32. “Judges in the Cuneiform Sources.” Maarav 12: 27-39. “Patronage in the Ancient Near East.” JESHO 48: 210-33. “Penelope’s Dowry and Odysseus’ Kingship.” Pages 3-23 in Symposion 2001: Vorträge zur griechischen und hellenistischen Rechtsgeschichte. Edited by R. W. Wallace and M. Gagarin. Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte 16. Vienna: Österreichische Akademie der Wissenschaften. “Polygamie.” Pages 600-2 in vol. 10 of Reallexikon der Assyriologie. Edited by E. Ebeling et al. 16 vols. Berlin: de Gruyter, 1928-. “Reflections on Neo-Babylonian Law” (review article of C. Wunsch, Urkunden zum Ehe-, Vermögens-, und Erbrecht aus verschiedenen neubabylonischen Archiven). NIN: Journal of Gender Studies in Antiquity 4: 133-46.

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“Reflections on the Law of Homicide in the Ancient World” (review article of P. Barmash, Homicide in the Biblical World). Maarav 13: 143-70. 2006b “Response to Michael Gagarin.” Pages 21-25 in Symposion 2003: Vorträge zur griechischen und hellenistischen Rechtsgeschichte (Rauischholzhausen, 30. September-3. Oktober 2003). Edited by H.-A. Rupprecht. Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte 17. Vienna: Österreichische Akademie der Wissenschaften. 2006c “Witchcraft and the Law in the Ancient Near East.” Pages 45-52 in Recht gestern und heute: Festschrift zum 85. Geburtstag von Richard Haase. Edited by J. Hengstl and U. Sick. Wiesbaden: Harrassowitz. 2007a “LH §§7 and 123: A Contradiction?” N.A.B.U. 2007: no. 27 (pp. 2829). 2007b “Raub.” Pages 269-70 in vol. 11 of Reallexikon der Assyriologie. Edited by E. Ebeling et al. 16 vols. Berlin: de Gruyter, 1928-. 2007c “The Trial of Jeremiah.” Pages 97-107 in Reading the Law: Studies in Honour of Gordon J. Wenham. Edited by J. G. McConville and K. Möller. LHB/OTS 461. New York and London: T. & T. Clark. 2008a “The Laws of Biblical Israel.” Pages 99-119 in The Hebrew Bible: New Insights and Scholarship. Edited by F. E. Greenspahn. New York: New York University Press. 2008b “The nap aru at Ugarit.” JCS 60: 53-56. 2009 “Drakon’s Homicide Law.” Pages 3-16 in Symposion 2007: Vorträge zur griechischen und hellenistischen Rechtsgeschichte (Durham, 2.-6. September 2007). Edited by E. Harris and G. Thür. Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte 20. Vienna: Österreichische Akademie der Wissenschaften. in press “Ancient Near Eastern Law.” Forthcoming in The Oxford International Encyclopedia of Legal History. Edited by S. N. Katz. 6 vols. New York: Oxford University Press. in press “Exile and Banishment in the Ancient Near East.” JAOS: forthcoming. in press “The Law and Politics of Rebellion in the Late Bronze Age.” Forthcoming in Rebellions and Peripheries. Edited by S. Richardson. in press “Law in Kings.” Forthcoming in The Books of Kings: Sources, Composition, Historiography and Reception. FIOL. VTSup. Edited by B. Halpern and A. Lemaire. Leiden: Brill. Westbrook, R., ed. 2003 A History of Ancient Near Eastern Law. 2 vols. HdO 72. Leiden: Brill.

512 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Westbrook, R., and R. Cohen, eds. 2000 Amarna Diplomacy: The Beginnings of International Relations. Baltimore: Johns Hopkins University Press. 2008 Isaiah’s Vision of Peace in Biblical and Modern International Relations: Swords into Plowshares. New York: Palgrave Macmillan. Westbrook, R., J. S. Cooper, and G. Schwartz 2005 “A Mittani-Era Tablet from Umm el-Marra.” Pages 3-18 in General Studies and Excavations at Nuzi 11/1. Edited by D. I. Owen and G. Wilhelm. SCCNH 15. Bethesda, Md.: CDL. Westbrook, R., and R. Jasnow, eds. 2001 Security for Debt in Ancient Near Eastern Law. CHANE 9. Leiden: Brill. Westbrook, R., and B. Lafont 2003 “Neo-Sumerian Period.” Pages 183-226 in A History of Ancient Near Eastern Law. Edited by R. Westbrook. Leiden: Brill. Westbrook, R., and T. J. Lewis 2008 “Who Led the Scapegoat in Leviticus 16:21?” JBL 127: 417-22. Westbrook, R., and D. Lyons, eds. 2005 Women and Property in Ancient Near Eastern and Mediterranean Societies. Washington, D.C.: Center for Hellenic Studies. Electronic publication: . Westbrook, R., and D. I. Owen 1992 “Tie Her Up and Throw Her into the River! An Old Babylonian Inchoate Marriage on the Rocks.” ZA 82: 202-7. Westbrook, R., and R. Wallace 1989 Review of M. Gagarin, Early Greek Law. American Journal of Philology 110: 362-67. Westbrook, R., and B. Wells 2009 Everyday Law in Biblical Israel: An Introduction. Louisville: Westminster John Knox. Westbrook, R., and C. Wilcke 1974-77 “The Liability of an Innocent Purchaser of Stolen Goods in Early Mesopotamian Law.” AfO 25: 111-15. Westbrook, R., and R. Woodard 1990 “The Edict of Tudhaliya IV.” JAOS: 110: 641-59. Westenholz, A. 1975 Old Sumerian and Old Akkadian Texts in Philadelphia, chiefly from Nippur: Part I. BiMes 1. Malibu, Calif.: Undena Publications. 1987 Old Sumerian and Old Akkadian Texts in Philadelphia, chiefly from Nippur: Part II. Carsten Niebuhr Institute Publications 3. Copenhagen:

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Carsten Niebuhr Institute of Ancient Near Eastern Studies, University of Copenhagen, Museum Tusculanum Press. Westenholz, J. G. 2000 Cuneiform Inscriptions in the Collection of the Bible Lands Museum Jerusalem: The Emar Tablets. CM 13. Groningen: Styx. Wilcke, C. 1968 “Einige Erwägungen zum § 29 des Codex Lipiteshtar.” WO 4: 153-61 1969 “ku-li.” ZA 59: 65-99. 1976 “Zu den spätaltbabylonischen Kaufverträgen aus Nordbabylonien.” Festgabe für Herbert Petschow. WO 8: 254-85. 1979 “abi ashlim.” RA 73: 95-96. 1980 “ umulum ‘den Tag verbringen.’” ZA 70: 138-40. 1981 “Noch einmal: ilip r mim und die Adoption ina mê- u.” ZA 71: 8794. 1984 “CT 45,119: Ein Fall legaler Bigamie mit nad tum und ug tum.” ZA 74: 170-80. 1985 “The Law of Sale and the History of Babylon’s Neighbours.” Sumer 41: 74-77. 1988 “Anmerkungen zu Konjugationspräfix /i/- und zur These vom silbischen Charakter der Sumerischen Morpheme anhand neusumerischer Verbalformen.” ZA 78: 1-48. 1991 “Die Lesung von Á-da = ki

tum.” N.A.B.U. 1991: no. 16 (pp. 1314). 1992a “A, die ‘Brüder’ von Emar. Untersuchungen zur Schreibertradition am Euphratknie.” AuOr 10: 115-50. 1992b “Dieber, Räuber und Mörder.” Pages 53-78 in Außenseiter und Randgruppen: Beiträge zu einer Sozialgeschichte des Alten Orients. Edited by V. Haas. Xenia 32. Konstanz: Universitätsverlag Konstanz. Willetts, R. F., ed. 1967 The Law Code of Gortyn. KadmosSup 1. Berlin: de Gruyter. Wiseman, D. J. 1953 The Alalakh Tablets. British School of Archaeology in Ankara, Occasional Publications 2. London: British School of Archaeology in Ankara. 1954 “Supplementary Copies of Alalakh Tablets.” JCS 8: 1-30. Wright, D. P. 2003 “The Laws of Hammurabi as a Source for the Covenant Collection (Exodus 20:23-23:19).” Maarav 10: 11-87. Yamada, M. 1995 “The Hittite Social Concept of ‘Free’ in the Light of the Emar Texts.” AoF 22: 301-16.

514 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Yaron, R. 1957 1959 1961 1962a 1962b 1965 1966 1969 1970 1980

1985 1988a

1988b 1993a

“On Divorce in Old Testament Times.” RIDA 4: 117-28. “Redemption of Persons in the Ancient Near East.” RIDA 6: 155-76. Introduction to The Law of the Aramaic Papyri. Oxford: Clarendon. “Forms in the Laws of Eshnunna.” RIDA 9: 137-53. “Vitae Necisque Potestas.” TvR 30: 243-51. “Varia on Adoption.” JJP 15: 171-83. “The Restoration of Marriage.” JJS 17: 1-11. The Laws of Eshnunna. Jerusalem: Magnes. Review of Y. Muffs, Studies in Aramaic Legal Papyri from Elephantine. RB 77: 408-16. “Biblical Law: Prologomena.” Pages 27-44 in Jewish Law in Legal History and the Modern World, Edited by B.S. Jackson. Jewish Law Annual Supplement 2. Leiden: Brill. “Quelques remarques sur les nouveaux fragments des Lois d’UrNammu.” Revue historique de droit français et étranger 63: 131-42. “The Evolution of Biblical Law.” Pages 77-108 in La Formazione del diritto nel vicino oriente antico. Edited by A. Theodorides et al. Pubblicazioni dell’Istituto di diritto romano e del diritti dell’Oriente mediterraneo 65. Rome: Edizioni Scientifiche Italiane. The Laws of Eshnunna. 2d ed. Jerusalem: Magnes; Leiden: Brill. “kurrum ibtam uab ‘das kor wird Zins hinzufügen’: Weiteres zu §18A der Gesetze von Enunna.” ZA 83: 206-18. “Stylistic Conceits: The Negated Antonym.” JANES 22: 141-48.

1993b Yildiz, F. 1981 “A Tablet of Codex Ur-Nammu from Sippar.” Or 5: 87-97. Yoffee, N. 1988 “Aspects of Mesopotamian Land Sales.” American Anthropologist 90: 119-30. Zaccagnini, C. 1973 Lo Scambio dei Doni nel Vicino Oriente durante i Secoli XV-XIII. Rome: Centro per l’Antichità e la Storia dell’Arte del Vicino Oriente. 1995 “War and Famine at Emar.” Or 64: 96-100. 1996 “TÉ.BI = mit aru/mit ari at Emar and Elsewhere.” Or 65: 89-110. Zulueta, F. de 1946-53 The Institutes of Gaius. 2 vols. Oxford: Clarendon.

Index of Authors

Alster, B., 57 Alt, A., 315, 323, 356, 374 Altman, A., 280-81 Anbar, M., 139, 245-47 Artzi, P., 267, 272, 284-86, 293 Astour, M., 106 Baentsch, B., 362 Baldi, P., 14 Barbiero, G., 414 Beal, R. H., 14 Bechtel, G., 282 Beckman, G. M., 121, 430-31 Ben-Barak, Z., 119-20, 316, 392-93 Benjamin, D. C., 429, 431-32 Black, H. C., xvi Boecker, H. J., 315, 427-29, 433 Borger, R., 140, 161, 212-13, 231 Bottéro, J., 29, 320, 357, 410 Bovati, P., 427-29, 434, 436-37 Braulik, G., 405-6, 414, 420 Breasted, J. H., 289 Bremmer, J. N., 382 Brichto, H. C., 428-29, 435, 437 Bright, J., 444 Brin, G., 428 Brockelmann, C., 383-84 Burkert, W., 382 Cagni, L., 239 Cardascia, G., 118, 129, 212, 221223, 225-26, 395, 397, 408

Carmichael, C. M., 391-92, 417-18, 420-21 Carroll, R. P., 425 Cassin, E., 77 Cassuto, U., 343, 363, 372 Cavigneaux, A., 75, 422 Chantraine, P., 14, 17 Charpin, D., 70, 178, 215, 279-80 Chirichigno, G. C., 154, 156 Civil, M., 57, 244, 422 Cogan, M., 366 Cohen, R., 265, 267, 285-86 Cooper, J. S., 4, 39, 175-76, 237, 265 Cowley, A., 82 Crawford, M. H., 253, 319 Dalley, S., 121, 196, 430 Dandamaev, M. A., 168, 186, 195, 430 Daube, D., 223, 315-16, 345-47 David, M., 139, 142, 147, 310, 366, 444 Dearman, J. A., 315 Deller, K., 218 Démare-Lafont, S., 214, 216, 220221, 227-28 Dijk, J. J. A. van, 60 Dombradi E., xv, 91-93, 95-98, 108, 204-6, 214, 426 Donner, H., 139

516 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Dossin, G., 71 Douglas, M., 382 Driver, G. R., 51-54, 84, 141-42, 144, 146, 148, 211-12, 222, 226-28, 354, 364, 397 Driver, S. R., 389, 399, 448 Durand, J.-M., 214-15 Edgerton, W. F., 282 Edzard, D. O., 58, 176, 247, 280, 287, 364 Ehelolf, H., 22 Ehrlich, A. B., 362, 372 Eichler, B. L., 45, 110, 116, 190, 240, 408, 410 Eidem, J., 280 Eisser, G., 152, 156, 168 Eissfeldt, O., 359 Eslinger, L. M., 423 Fales, F. M., 119 Falk, Z., 315 Falkenstein, A., 55-59, 66, 176-78, 199, 277-78, 364 Faltz, L. M., 11 Figulla, H. H., 203, 430 Finet, A., 142, 147, 241 Finkel, I. L., 422 Finkelstein, J. J., 29, 46, 58-59, 67, 70, 76, 87-88, 131, 159, 235, 321, 370, 408 Fishbane, M. A., 315, 441 Fitzpatrick-McKinley, A., 324, 329 Fleishman, J., 234 Fraser, J. G., 382 Freydank, D., 218 Friedrich, J., 10-14, 16, 19-20, 35, 163 Frymer-Kensky, T., 149, 315 Gagarin, M., 228 Garbini, G., 384 Gavison, R., xviii Gelb, I. J., 74

Geller, M. J., 133, 348, 395 Goody, J., 323-24, 332 Graf, K. H., 363 Gray, G. B., 443 Green, M., 274 Greenberg, M., 160, 367 Greenfield, J. C., 189 Greengus, S., 73, 146, 204, 227, 243, 315 Grimm, J., 72 Grimm, W., 72 Gurney, O. R., 118, 203, 205, 243, 248-49, 380 Güterbock, H. G., 13, 23-26 Haase, R., 35-36 Hallo, W. W., 46 Hardmeier, C., 437 Harris, R., 47, 233 Hart, H. L. A., xviii Hengstl, J., 108-9 Hertel, T., 206-7 Hobbs, T. R., 404 Hoffner, H. A., Jr., 24, 319 Holladay, W. L., 428 Holtz, S. E., xv Horst, F., 362, 364 Hossfeld, F. L., 425 Houwink ten Cate, P. H. J., 269 Hrozn, B., 152 Hruka, B., 58 Huehnergard, J., 106, 119 Hughes, D. D., 382 Hunter, V., 210 Jackson, B. S., 34, 54, 315, 322-24, 333, 342-44, 346, 354, 356-57, 362-63, 410, 420 Jacobsen, T., 202, 204, 259, 432 Jakobson, V. A., 400 Janssen, C., 47 Japhet, S., 387, 439 Jas, R., xv, 204, 207

Index of Authors Jepsen, A., 362, 374 Joannès, F., 187, 196, 214, 271, 279, 430 Jones, G. H., 446 Jones, T. B., 182 Joüon, P., 385 Junker, H., 391 Jursa, M., 225 Kämmerer, T., 121-22 Kaufman, S. A., 405-6 Kelsen, H., xiii, 266 Kienast, B., 116, 156, 167, 234-35 Klíma, J., 193 Knierim, R., 362, 365-66, 368 Knudtzon, J. A., 286 Köhler, L., 365 Koroec, V., 135, 266, 272, 279, 281, 285 Koschaker, P., 51-55, 147, 178, 185, 188-93, 375, 377 Kouwenberg, N. J. C., 93 Kraeling, E., 80, 133 Kraus, F. R., 4, 29, 31, 34, 38, 4647, 53, 64, 70-72, 76-77, 87, 93-94, 178, 182-83, 234-35, 320, 410, 445 Krecher, J., 57 Kronasser, H., 27, 28 Kruchten, J. M., 4, 39 Krueger, P., 415 Kühne, C., 76 Kümmel, H. M., 60, 64, 381 Kutscher, R., 36 Kwasman, T., 33 Lacheman, E. R., 77, 120 Landsberger, B., 70, 94-95, 97, 131, 134, 141, 216, 235, 364, 375, 400, 418-19, 422 Lane, E. W., 384 Laroche, E., 22-23, 25-26, 380 Larsen, M. T., 199

517

Lautner, J., 206 Leemans, W. F., 55, 66, 68, 97, 101, 109, 198 Leichty, E., 200, 420 Lemche, N. P., 444-45 Levine, B., 316, 380 Levinson, B. M., 149, 262 Lewis, T. J., 379 Lewy, J., 76, 152, 156, 167-68, 443 Liverani, M., 281, 283, 285-89, 294 Locher, C., 243, 402 Loewenstamm, S., 220, 344, 364 Lorton, D., 281 Luckenbill, D. D., 57 Lundbom, J. R., 428, 438 MacGinnis, J., 186, 189 Magdalene, F. R., xvi Malul, M., 73, 76, 140-41, 324-25, 328, 407 Matou, L., 64, 168 Matthews, V. H., 429, 431-32 Mayrhofer, M., 16 McCarter, P. K., Jr., 440, 446 McConville, J. G., 411-12, 418 McKenzie, D., 315 Meek, T. J., 76 Mendelsohn, I., 154, 316 Mendenhall, G., 367 Meyer, I., 425 Meyers, C. L., 263 Meyers, E. M., 263 Michalowski, P., 176 Mieroop, M. van de, 130 Milano, L., 232 Miles, J. C., 51-54, 84, 141-42, 144, 146, 148, 211-12, 222, 226-28, 354, 364, 397 Milgrom, J., 380 Moran, W. L., 268, 274, 286, 421 Morrison, M., 370 Muffs, Y., 79-87, 133

518 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Müller, D. H., 51, 53 Muraoka, T., 385 Mylonas, G. E., 20 Neufeld, E., 316 Noonan, J. T., Jr., 422 North, R. G., 443 Noth, M., 315, 362, 365, 374, 440, 442, 445 Nötscher, F., 419 Nougayrol, J., 30, 72, 176, 275, 330, 352-55, 364, 372, 399, 421 Obermark, P., 170 Oelsner, J., 430 Oppenheim, A. L., 108, 149 Otten, H., 20, 28 Otto, E., 77, 134, 136, 218, 322-23, 362-63, 377, 413 Owen, D. I., 120 Ozaki (Gomi), T., 232 Paradise, J., 119 Parpola, S., 200, 278, 282, 366-67, 410 Patrick, D., 315, 373 Paul, S., 153, 315, 342-43, 354, 362, 368 Paulson, B. L., xviii Paulson, S. L., xviii Payne Smith Margoliouth, J., 384 Payne Smith, J., 383-84 Payne Smith, R., 383-84 Petschow, H. P. H., 51-54, 58, 61, 64, 135-37, 236, 408-9, 412, 414 Pfeiffer, R. H., 258 Phillips, A., 356, 446 Porten, B., 133, 162-63, 313, 315 Postgate, J. N., 33, 87-88, 218, 370, 400 Pounder, R., 331-32 Pritchard, J. B., 315 Puhvel, J., 15, 20

Rabinowitz, J. J., 399 Radner, K., xv, 200 Rainey, A., 139 Redford, D. B., 274, 293 Reiner, E., 259, 348 Renger, J., 77, 279 Reviv, H., 315 Reynolds, F., 198 Richardson, N. J., 19-20 Ries, G., 196 Rietzschel, C., 428 Riftin, A. P., 68, 130 Rosen, B. L., 135 Roth, M., 161, 185-86, 191, 195, 212, 315, 319, 423, 432 Rowton, M. B., 70, 72 Saarisalo, A., 162 Samuel, A. E., 188, 190, 192 San Nicolò, M., xv, 44, 51-54, 58, 64, 186 Sarna, N., 444 Sato, S., 232 Schachermeyr, F., 281 Schenker A., 155, 362, 370-73 Schindler, J., 14 Schorr, M., 89, 97, 364 Schreiner, S., 402 Schuler, E. von, 3-5, 10, 12-13, 15, 37, 161, 198 Schulman, A., 286, 294 Schulz, H., 428-29, 431, 436 Schwienhorst-Schönberger, L., 362, 371-72, 374 Seebass, H., 447 Seidel, E., 438 Senn, A., 16 Siegel, B. J., 178, 181-82 Sigrist, M., 113, 232, 237 Simmons, S. D., 61 Sjöberg, Å. W., 58, 410 Skaist, A. J., 94-95, 106

Index of Authors Skinner, J., 166 Smith, J., 402 Snaith, N. H., 442 Snyder, J. W., 182 Soldt, W. H. van, 41 Sollberger, E., 4, 39, 58, 60, 231-32, 237 Spalinger, A., 289 Speiser, E., 233, 342-43, 348-51 Stager, L., 267 Starke, F., 19 Steible, H., 232 Steinkeller, P., 75, 106, 176-77, 200, 231-34 Stipp, H. J., 425 Stol, M., 47 Stolleis, M., xviii Stolper, M., 187, 189 Stroud, R. S., 319 Sturtevant, E., 14, 282 Szlechter, E., 56, 129, 144-45, 147, 252 Szubin, H., 162-63 Tadmor, H., 285, 366 Tessier, B., 121 Toeg, A., 398 Toorn, K. van der, 119-20 Tosato, A., 402 Uchitel, A., 232 Ulmann, C. C., 16 Ungnad, A., 193 Van Seters, J., 325, 327-28, 334 Veenhof, K., 70, 107-8, 200

519

Veenker R. A., xv, 210 Watanabe, K., 278, 282, 366 Waterman, L., 256-57 Watkins, T. F., 34 Watson, A., 324, 329 Weidner, E. F., 73, 260 Weinfeld, M., 165, 404 Weisberg, D., 185-87 Welch, J. W., 315 Wells, B., xv, 430, 432 Wenham, G. J., 390-91, 411-12, 418, 425 Westenholz, A., 74 Wilcke, C., xix, 49, 63-64, 73, 84, 97-98, 102, 141, 164-65, 175, 177, 206, 231-33, 243-45, 248, 250, 353 Willetts, R. F., 227, 319 Wiseman, D. J., 134 Woodard, R., 3, 161, 240 Wright, D. P., 325, 327-28 Wunsch, C., 430 Yamada, M., 162, 166 Yardeni, A., 133, 162, 313, 315 Yaron, R., 53, 77, 84-85, 127-29, 131135, 140, 153, 155, 160, 251252, 254-57, 259, 263, 315-16, 377, 389-91, 399, 401, 423 Yildiz, F., 160, 161 Yoffee, N., 333 Zaccagnini, C., 91, 96, 97, 98, 105, 108, 111, 113, 283, 286, 287 Zulueta, F. de, 216, 416

Index of Subjects

Aaron, 379 Abraham, 164, 169, 299, 310, 391 academic method, ancient, 4, 66, 305, 320, 416; see also scientific treatise accusations, xv, 60, 63-64, 211-12, 221-24, 229, 289, 291, 363, 370, 374, 376, 383, 409, 413, 426-27, 432-34, 447 Achaemenid period, 185, 189 acquisitions, 136, 145 actus reus, 401 adjudication, 197, 199 administration, 202 administration of justice, 30, 197, 300-1 administration of law, xvi administrative documents, xiv, 175176 administrative law, xiv, 4 adoption, 94, 119, 139-48, 154, 165166, 182, 189, 192, 399, 408-9, 411 adultery, 227-29, 243, 253-54, 264, 308, 319, 339, 349, 389, 391, 396, 398-99, 446-47 Agamemnon, 16 agency, 279, 365 agriculture, 66-67, 135, 267, 301, 303

Ahab, 441 Ahimelech, 309 Akkadian, 10-12, 24, 60, 69, 79, 85, 101, 147, 154-56, 167, 176-78, 187, 199, 231-33, 241, 254, 277, 280, 312, 319, 325, 349, 351, 366-68, 372, 401, 430-31, 445 Alalakh, 134, 328, 400 Alashiya, 284 Amarna, 265, 267-68, 270-73, 275, 277, 279, 281-85, 292 Ammi-aduqa edict of, 46, 95, 235-36, 240, 369 Amurru, 267, 271, 277-80, 283, 372-73 ana ittiu, 141, 148, 364, 400, 419 Anatolia, 24, 167-68, 197, 199, 206, 319 apodictic style, 304, 323, 413 Apollo, 382 apostasy, 262-63 appeal, xiv, 111, 198, 208, 270, 274, 276, 300, 307 Arabic, 383-84 Aramaic, 79, 85, 133, 187, 305, 383384, 399 arbitration, 209, 323, 326 archaeology, 305, 333

Index of Subjects archives, 74, 100, 124, 133, 163, 203, 280, 305, 321, 333 Arinna, 20 arrest, 37, 190 assembly, 30, 199, 202-4, 208-9, 259-60, 306, 428-33, 436 Assurbanipal, 198, 256, 258 Assyria, 107-8, 156, 167-68, 203, 285-88, 319, 366-67 king of, 272-73, 287-88, 293 asylum, 276, 306, 343, 359 Athens, 209, 319 Aziru, 267, 279-80, 283, 373 Babylon, Babylonia, 4-5, 31, 61, 6668, 194, 203, 267, 285-88, 290, 302, 306, 318-19, 328, 366, 430 banishment, 16, 321, 325, 328, 383 bargain, 33, 47, 85, 108, 110-11, 151, 239, 286, 295 bees, beehive, 369 beneficiary, 107 bestiality, 256 betrothal, 94, 128-31, 133-34, 136137, 154, 159, 161-62, 247, 277, 310, 320, 337, 338-39, 397, 409-13, 416 biblical law (see also law codes: biblical) evolutionary model of, xviii, 317, 326 literary model of, xviii, 317, 324, 327-28 blasphemy, 272, 304, 309 bribery, 207 bride-price, 80-81, 395 burden of proof, 63, 88-89, 213, 229 burning, 327, 341, 356, 358, 409 Cambyses, 430 Canaan, 276, 300, 303, 323, 328

521

canon, canonical literature, 75, 332, 339, 416, 422, 441, 448 casuistic style, 65, 245, 304, 306, 319-20, 323, 326, 357, 410-11, 413, 416 causation, 349, 404 childlessness, 147, 315 children, 18, 20-21, 27, 31, 45, 47, 86, 104-5, 110, 113, 117, 120-21, 128, 134, 139, 140-43, 147-53, 156-70, 179-80, 186, 190, 221, 239, 244-45, 263, 321, 326, 336, 341, 346, 392, 394-97, 408-11, 415, 439-42 abandoned, 140-44, 146 illegitimate, 158 chronology, 325 Cicero, 19, 22 citizenship, 30, 35, 38, 46, 76, 112, 153, 175, 178, 182-83, 185-86, 195, 198, 221, 251, 267, 301, 306, 335, 430, 432, 445 city-states, 203 civil law, 437 Code of Eshnunna, 4, 69, 75, 127, 130, 132, 135-36, 251-52, 254255, 263-64, 319, 334, 337, 374, 392, 400, 408 Code of Hammurabi, 4, 14, 49, 55, 79, 83, 128, 132-33, 137, 139, 214, 272, 274, 310, 312, 318, 320, 331, 337, 352, 355, 392, 395, 400, 407, 445 Code of Lipit-Ishtar, 4, 180, 205, 319 Code of Ur-Namma, 4, 179, 338, 394-95 colonies, 168, 199-200, 206 commissioners, 130, 275 common law, 429 commoners, 269, 292

522 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources complaints, xv-xvi, 85-86, 202, 206, 279, 289, 293, 350, 445 compromise, 43-44, 47, 55, 62-64, 150, 153, 174, 179, 214, 220, 364 compulsory service, xiv, 20, 30, 219, 302 concession at trial, 364 concubines, 150-56, 158-59, 163-65, 168-70, 172-73, 249, 270, 300301 confessions, 60, 216, 225, 259, 379, 430 congregation (Hebrew ‘ dâ), 431 constitutional law, 308, 428 contracts, 4, 33, 44, 52, 57, 63-64, 81-87, 91-95, 97-100, 106-17, 125, 129-30, 136, 139-46, 151152, 155, 160-65, 168, 173, 179, 185, 190-91, 195-96, 215, 231, 234, 240, 248, 251, 277, 310, 318, 360, 367-71, 376, 389, 395, 399, 400-2 apprenticeships, xv breach of, 143, 361, 363, 367-68, 376 exchange, 69, 77, 106, 292 herding, 83, 87, 305, 361, 370-71 sale, 11, 31-33, 35-36, 43-46, 50, 60-63, 80-81, 89, 93, 99, 103-13, 146, 153-55, 167, 176-77, 183, 186-87, 194-6, 221, 233-35, 239, 253, 314315, 326, 348, 366, 442-44 wet-nursing, 409 corruption, 207 countersuit, 308 courts, 32, 35, 47, 65, 101, 108, 111112, 125, 152, 174, 198, 201-7, 209, 224, 235-36, 269-70, 273,

277-78, 290, 301-4, 307, 319, 321, 374, 414, 428-29 courthouses, 197, 203 divine, 210, 218, 269 local, 30, 198, 200, 202, 204, 206, 210, 301, 306-7, 397 system of, 197, 307 temple, 188, 203 Covenant Code, 303-4, 306, 317-18, 322-28, 356, 361, 369, 374, 410 covenants, 367 creditors, 31, 33-34, 38, 91-100, 105, 107, 109-11, 113, 115, 117, 173, 188, 190, 196, 220221, 233-34, 238-41, 249, 373 Crete, 319, 331 crime, criminal, 4, 11, 18, 31, 38, 58-62, 169, 206, 209, 223-24, 232, 235, 237, 240, 251, 256, 260, 263, 270, 272-74, 301, 318, 379, 382-85, 389, 401, 412, 417, 423, 426-27, 430, 446-48 culpability, 237, 382, 432 curse, cursing, 183, 186, 225-27, 277, 304, 331, 364, 366, 435 customary law, folk law, 274-76, 301, 448 Cyrus, 185, 194, 302, 430 damages, 53-55, 59-63, 67, 91, 232, 310, 320, 342-43, 347, 446-47 Daniel, 256 daughters, 19, 33-34, 42-43, 61, 74, 80, 94, 113-14, 118-24, 130-132, 141, 153-58, 163-67, 171-76, 187-89, 193, 218, 221, 239, 248, 260, 263, 267, 292-95, 304, 311, 314-15, 320, 336-38, 392-94, 409, 439, 441-43

Index of Subjects daughters of Zelophehad, 304, 441442 daughters-in-law, 94, 113, 128, 191, 267, 409 David, 30, 139-40, 142, 146, 269, 273, 301, 310, 312-13, 325, 366, 372, 384, 392-93, 427, 444-47 dbr, 368 Dead Sea Scrolls, 305 death, 35, 39, 50-55, 59-61, 64-68, 105, 110, 116-18, 122-24, 128132, 135, 146, 150-51, 158, 161, 170-71, 177-81, 186, 191-96, 212, 216, 236, 241, 252-64, 271273, 276-78, 281, 301, 304, 309, 313-14, 335-37, 342-59, 371-73, 390, 393-96, 399, 409-10, 413, 417-20, 426-27, 432-34, 440, 446-47 debt, 4-5, 10, 12, 29, 31-37, 42, 4546, 84, 91, 94-100, 104-7, 110117, 151-53, 160, 173, 190, 196, 202, 208, 220-21, 233-41, 248-49, 295, 303, 326, 332, 375, 405, 408, 415, 422, 445 distraint, xv, 31, 34, 135, 137, 234, 241, 249 debt cancellation, 3, 29, 31-32, 36, 46, 95, 236, 240, 444-45 debt-slavery, 29, 114, 117, 155, 160, 445 release from, 32, 441-43 default, 96-97, 100, 234 defendants, 59, 64, 177, 185-86, 195, 204-6, 215, 219-22, 227228, 262, 308-9, 364, 433 defloration, 159 delicts, 4, 58, 356 delivery, 83, 88-89, 94 demands, legal, 35, 295, 392

523

Demosthenes, 253 Demotic, 79 deposit, 70, 77-78, 95, 134, 137, 367-71, 374, 376 depositions, 91, 199 detention, 34, 70 Deuteronomic Code, 303-4, 314, 317, 320, 322-28, 339, 390-93, 401-7, 411, 414, 426, 440 Deuteronomy, 262, 300-3, 317-18, 325-27, 330, 334, 337-39, 387, 393, 398, 404-5, 412, 417, 420, 445 Diodorus Siculus, 19 diplomacy, 71, 272-74, 279-80, 290293, 295 disobedience, 244, 261, 304, 384 dissolution, 143, 146, 154, 389, 393, 396, 399, 404, 409 d i- ti l- la documents, 175-77, 333 divination, 205, 218, 410, 418, 422 Divine Council, 200 divine justice, 29, 207, 210, 350 divine sanctions, 282 division, 81-82, 86, 118, 123, 134, 156-58, 161, 163, 180, 189, 193, 220, 300, 315, 333, 335, 394, 425 divorce, xvii-xviii, 82, 94, 132-33, 154, 163-64, 167-68, 172, 243245, 247-50, 254-55, 309-14, 328, 337, 387-90, 393-403, 412 documents of practice, 234-35, 237238 donatio mortis causa, 192, 194-96 dowry, 82, 84, 87, 118, 128, 131-33, 136-37, 161, 194, 312-15, 393398, 400, 403, 442-43 Drakon, laws of, 319 duress, 41, 44, 391

524 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources duty, duties, 30, 37-38, 64, 77, 8184, 97, 107, 119-20, 123-24, 163, 170, 173, 178-79, 197200, 207-8, 219, 262, 277, 282, 311-12, 315, 317, 376, 398, 421-22 Eanna temple, 188, 430 Ebla, 280 economy, economics, 29, 54 Edict of Horemheb, 4, 38-39 Edict of Samsu-iluna, 47 Edict of Telipinu, 4-5, 20, 24-25, 32, 37 Edict of Tudhaliya, 3-39, 161 edicts, royal (see debt cancellation) Egypt, Egyptians, 4, 38, 268-69, 273, 275, 280, 283-96, 299, 300, 305, 322, 335-36, 344-46, 391-92, 421 Elam, Elamite, 60 elderly, 426 elders, 194, 198, 200, 202, 246-47, 301, 306-9, 311-12, 314, 329, 354, 426, 428, 430-32, 436-37 Elephantine, 84, 86, 133, 162, 305, 313, 399-400 Elohist source, 303, 318 elopement, 161 Elusinian, 19 Emar, 46-47, 80, 101-24, 189-91, 202, 328, 335 embezzlement, 369 enforcements, 70 England, law of, xiii, 63, 286, 315, 342, 367 enrichment, 403-4 entitlements, 394 Esarhaddon, 256-57, 278, 332 estoppel, 314, 403-4 eunuchs, 223, 226

evidence documentary, 68, 308, 313 physical, 78 testimonial, 188, 211, 216, 218220, 224, 226, 262, 308, 333 ex latere venditoris, 104, 113 exemption decrees, 20, 371 Exodus, 154, 300, 304, 317-18, 338, 341, 346, 357, 359-61 expiation, 417, 420 extradition, 272-73, 276-77 Ezekiel, 141, 258, 304, 308 Ezra, 302, 308, 321, 323, 448 false accusation, 50, 63-64, 66, 225, 314, 434 family, 4, 31-35, 74, 101-7, 111, 115-20, 123, 128-29, 134-37, 141-43, 146-50, 153, 157-61, 164, 172-74, 205, 225, 228, 233-41, 250, 266-67, 272-74, 278, 300, 309, 314-15, 323, 326, 330, 346, 349, 352, 391, 397, 403, 441-43, 447 family law, xiv, 4, 135, 149-50, 153, 159, 174, 266, 300 fathers, 21, 25-26, 30, 33, 43-45, 55, 71, 80, 103-5, 118-24, 128-34, 137, 140-48, 153-58, 161-62, 165, 170-71, 173, 179-81, 200, 217, 221, 227, 237, 244, 251, 262-63, 267, 269-70, 282, 289, 300, 304, 310-15, 335-38, 392397, 401, 409, 412-13, 417, 426, 440-42 fathers-in-law, 128-30, 310-12, 397 fighting, 320, 341, 343-45, 351, 357-58, 421 filiation, 147, 166 firstborn son, 119, 147, 181, 314, 334, 354, 357, 417 fool, foolishness, 407

Index of Subjects foreigners, 72, 76, 294, 431 forfeiture, 45-46, 103, 106-7, 110, 122, 146, 160, 245, 395, 397 fraud, 227, 236, 294, 308, 375, 377 fugitives, 276, 334 full price, 43-46, 80, 106, 113, 194, 239 fungibles, 61, 134, 137, 232, 334 Gaius, 216, 335, 416 gate, 20-21, 71, 198, 232, 301, 306, 309, 323, 413 judicial role of, 9, 219, 256, 311, 314, 337, 374 gender, xii, 12, 174 Genesis, 164-65, 169, 305, 346, 391 gifts inter vivos, xv marital, xv, 136, 394, 403 Gilgamesh, 176, 204 god, gods, 8, 19, 26, 29, 31, 36, 38, 47, 50, 52-53, 86, 107, 119-20, 166, 176, 182, 186, 202, 207-8, 210, 213-14, 217-18, 220, 258, 261, 267-71, 274, 277-79, 281, 283, 320, 330, 348, 352, 356, 364, 367, 374, 380-81 household, 120, 261 gold, 52, 116, 285-89, 295 good faith, buyer in, 65; see also innocent purchaser goring ox, 137, 324, 347, 357, 416 governors, 248, 307, 430 Greek, xiii, 14-16, 23, 109, 185, 188-89, 192, 227-28, 305-6, 319, 322, 331, 344, 379-82 guardianship, 247, 305 Hades, 19 Hammurabi, king, 29, 59-60, 66-68, 128, 198, 201, 208, 267, 306, 321, 326-27, 445

525

Hebrew Bible, 149, 299, 317, 324 Hellenism, Hellenistic, 188, 190, 305 herding, 83, 87, 156, 305, 361, 370371 Hezekiah, 258-59, 436 Hillel, school of, 398 hire, xv, 65, 77, 88-89, 419 Hittite Laws, 4, 11, 35, 161, 253, 319-20, 329, 331, 338, 342, 369, 418, 440 Hittites, 202, 277, 283, 299 homicide, 4, 16, 32-35, 114, 204, 209, 304, 307, 330-31, 356, 359-60; see also murder homosexuality, 223 honor, 95, 119, 135, 269, 335, 425 horticulture, 112, 414-15 Hosea, 305 husbands, 82, 89, 94, 118, 121-24, 128, 132-33, 150-53, 160-73, 181, 186, 194-98, 202-4, 217, 222-23, 226-29, 237, 243-50, 253, 255, 260, 270, 311-14, 320, 330, 337-38, 341-42, 347, 354-55, 358, 387-404, 409, 411, 442-43 idolatry, 216 Iliad, 16-17 in flagranti delicto, 202, 204, 216, 218, 224, 226, 252-53, 264; see also adultery in perpetuity, 45, 187 incantations, 259, 348, 384 incest, 16, 157, 270, 390, 408-9, 411-12, 419, 440 indemnification, 231, 375 indictments, 308 Indo-European, 14, 19, 28-29 informers, 247

526 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources inheritance, 31-37, 43-44, 50-51, 54, 81-82, 89, 101, 104-5, 112, 118-24, 143-48, 155-58, 161, 164, 168-71, 179-81, 192, 220, 278, 300, 312-15, 318, 333-36, 388, 393, 404, 417-18, 441-43, 446, 448 disinheritance, 144-45, 147, 300 intestate, xv, 304 per stirpes, 314 succession, 443 testate, 102, 122-23 undivided, 119, 122-25, 134, 217, 315, 334-36 injury, 320, 331, 342-43, 346, 356358, 360, 371, 373; see also torts innocent purchaser, 49-68 innovation, 267, 377 instructions, 16, 71, 190 intent (legal) innocent, 253, 277, 349-50 interest, 35, 38, 62, 66, 107, 119, 135-36, 146, 205, 223, 266, 274, 405 international law, xv, 190, 228, 265284, 299, 351, 353, 367; see also diplomacy interrogation, 203, 225 investigations, 14, 110, 195, 254, 273, 358, 397 Irikagina, see Uru-inimgina Iron Age, 328 Isaac, 299, 310 Isaiah, 258 Ishtar, 73 Israel, 107, 112, 127, 285, 299-305, 309-14, 317-21, 324-325, 334, 339, 348-51, 366-67, 379, 391, 402, 429, 439, 441, 449

ius, 132 Jacob, 130, 165, 169, 261, 279, 294, 299, 309-10, 321, 345-46, 367, 370-71, 380 Jeremiah, 112, 307, 309, 425-29, 431-38, 443, 445, 448 trial of, 307, 309, 425-38 Jeroboam, 30 Jerusalem, 29, 112, 301-2, 307, 350351, 387, 428, 434, 436, 445 Job, 349 Joseph, 345-46, 351 Joshua, 300 Josiah, 301-3 Judah, 299, 301-3, 307, 321, 366, 431-32, 436, 440 judges, judging, 8, 10, 43, 46, 50-51, 59-61, 86, 188, 194, 197-210, 220, 226, 235, 244, 247-49, 255, 259, 263, 299-303, 307-9, 335, 341-43, 348-49, 365, 394, 411, 428-30, 432; see also courts royal, 200, 202, 219 judgments, 34, 43, 151, 177, 180, 186-87, 197-201, 204-10, 261, 280, 289, 300-1, 304, 307, 309, 318, 321, 333, 354, 363-66, 408-9, 412, 431, 435; see also verdicts jurisdiction, 66, 174, 188, 200-4, 206, 209, 256, 268-70, 277-78, 299-300, 307-8, 413 in personam, 308 in rem, 247, 308 jurists, 199, 209, 305, 332, 415-16, 449 Justinian, Digest of, 335, 366 Kanish, 167, 199 Kassites, 248, 287

Index of Subjects kidnapping, 35, 37, 233, 236; see also theft king, kings, 9, 13, 18, 29-31, 36-39, 46, 58, 74-75, 151, 166, 180, 187, 197-206, 209-10, 219, 225-26, 246, 251, 256-62, 267-68, 274, 277-83, 286-95, 301-4, 307, 321, 326, 332-34, 354-55, 381, 427-28, 438-40, 443-47 ki

tim, 31, 233-36, 238, 240-41 Kizzuwatna, 281 Lab’ayu, 271 Lagash, 4, 38, 265 land tenure, xiv; see also property; real property Late Bronze Age, 101, 117, 328 Latin, 3, 14-15, 17-18, 20, 22, 2728, 255 law (see also civil law; common law; constitutional law; crime; customary law; international law; law codes; legislation; litigation; private law; sources of law; substantive law) enforcement, 247, 250, 300 Israelite, 156, 306 local, 169 natural, 335 law codes, xiv, xviii, 3-5, 37, 47, 75-76, 107-10, 114, 124, 127, 136, 151, 158, 162-63, 173, 176, 208, 215, 233, 236, 243, 252, 264, 303-6, 312, 315-39, 357, 363, 376, 405422, 448 biblical, 305, 317, 322, 325-27, 329, 331, 333, 339 codification, 320 epilogue, 321 prologue, 29, 208, 321

527

Laws of Gortyn, 227-28, 319-20, 331, 334-35 lawsuit, 39, 214, 238, 354, 409, 411; see also litigation lawyers, xiii Leah, 130, 164-65, 169, 294 legal authority, 271, 443 legislation, 3-5, 62, 77, 151, 202, 320-21, 324, 329, 344, 444; see also statutes lending, 34-35, 38, 56-58, 89, 92, 95-96, 99-100, 105-7, 112, 115-16, 134-37, 162, 188, 199, 231-34, 237-40, 282, 307, 334; see also creditors; debt Levites, 301, 360, 440 Leviticus, 304, 309, 318, 359, 442 lexical texts, 72, 74, 141, 410, 418419 liability, xiv, 51, 55, 59-69, 78, 84, 99, 114, 117, 137, 226, 232, 253, 274-75, 330, 338, 345-47, 350-57, 368-77, 432 joint, 95, 99, 351 release of, 79-86, 88, 171 life estate, 120 lingua franca, 277 lists, list-making, 19, 25, 54, 69-73, 76, 82, 91, 114, 182, 201, 204, 214-16, 231, 234, 246, 280, 306, 320-21, 326, 348, 357, 362, 368, 370, 384, 410, 418419, 422-23 literary traditions, 324 Lithuanian, 14, 16 litigation, 59, 66-68, 159, 181, 186, 197-201, 204, 208, 216, 224229, 235, 253, 259-62, 305-9, 333, 409, 425-38, 448 difficult cases, 202, 307 reports of, xiv, 199, 425, 432

528 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources magistrates, 145, 329 Malachi, 402-3 mr banî, 185-87, 191-92, 195, 430; see also status marriage, xi, 73, 75, 80-84, 87, 94, 118-22, 127-37, 141, 145, 150154, 158-81, 244-51, 254-55, 294-96, 305, 309-15, 318-20, 334, 338, 387-404, 407, 409411, 417, 419, 440, 442, 447; see also husbands; wives levirate, 421 remarriage, 133, 223, 312-14, 387, 389-90, 403 Masoretic Text, 384 mayors, 38, 61, 200, 246-47, 268, 274, 330, 352 medical texts, 418 Mekhilta, 305, 342, 371-72 mens rea, 59, 401 merchants, 38, 45, 56, 58, 60, 134, 137, 153, 168, 178, 181, 200, 206, 231, 233, 239, 276, 354 Mead ashavyahu (Yavneh Yam) ostracon, 302, 308 messengers, 258, 274, 276, 288, 290-93 metaphor, 267, 282, 305, 367, 422 method, methodology, 409, 413 Middle Assyrian Laws, 4, 129-30, 211, 253, 319, 325, 331, 334, 338, 354-57, 392, 395, 408 Middle Babylonian period, 80, 203, 205 military, 10, 29, 39, 43, 67, 71, 198, 258, 282, 284, 302, 307-8, 366, 380-81, 384-85, 399, 407-8, 421, 433, 447 m arum-decrees, 29, 46, 208 miscarriage, 342-43, 345, 354-55, 357-58; see also pregnancy

Mishnah, 305, 312, 332, 394-95, 398; see also Rabbis, Rabbinic literature Mittani, 272-73, 284-88 morality, 94, 169, 237, 245, 285, 287, 295, 304, 318, 320, 348, 392, 447 Moses, 261, 300-2, 307, 327, 398, 440, 442 mothers, 21, 25, 115, 121-24, 140143, 148, 152, 156-58, 161, 165, 167, 170-71, 177-81, 251, 262, 304, 308-9, 314, 335-37, 342-44, 354, 409, 415, 426 motive clauses, 304, 390 movables, 54, 236, 415 mulgu, 312 murder, 32, 34, 38, 68, 202, 204, 235, 253, 259, 274-75, 306, 330, 346, 351-54, 357, 417, 420, 432, 434, 441, 446; see also homicide Mursili, Plague Prayers of, 269 mu k nu(m), 53, 135, 412 myths, xviii, 25, 329 Nabonidus, 194 Naboth, 272, 441, 448 nad tum, 42-43, 47 narrative, 4, 29-31, 141, 169, 260, 299, 303-5, 309-10, 321, 392, 419, 425-26, 432-41, 446, 448 Nebuchadnezzar, 256, 260, 302 Nehemiah, 440, 448 Neo-Assyrian period, xvi, 33-34, 76, 117, 200, 204, 207, 218, 331, 366, 400, 402 Neo-Babylonian Laws, 319, 394 Neo-Babylonian period, xvi, 108, 185, 187, 189-92, 197, 200, 203, 225, 319, 331, 394, 430

Index of Subjects Neo-Sumerian period, 57, 199-200, 231, 333 Nevi’im, 305 Nippur, 56, 75, 159, 183, 200, 202, 204, 226, 259, 425, 432, 437 Nippur Homicide Trial, 259, 425, 437 novation, 234 Numbers, 304, 318, 448 Nuzi, 76, 110, 116, 119, 120, 154, 160, 190, 210, 354 oaths, xiv, 43-47, 58-61, 80, 86-87, 135, 180, 203-6, 210-29, 245248, 277-83, 330, 351, 355, 361-66, 371-76 exculpatory, 215, 222, 228, 308, 329, 354, 361, 364, 372, 375-76 promissory, 210, 247, 249, 277, 279, 364 oblates, 186, 188, 192-93 obligations, 81, 83, 94, 117, 190, 266, 271-72, 277, 280-82, 363, 371, 376, 395 Old Akkadian, 11 Old Assyrian period, 107-9, 152, 156, 167-69, 199, 200, 203, 207, 224 Old Babylonian, Old Babylonian period, xi, xvi, 4, 29-30, 34, 41, 44-45, 57-60, 63-66, 69, 72-73, 80-82, 87, 91-94, 106-8, 116, 127, 130-36, 139-42, 156, 159, 164-65, 168-71, 176, 179, 189, 199-202, 205-6, 214-15, 219-20, 226, 233, 239, 267, 271, 279-80, 331, 389, 399, 407-8, 422, 426, 432 omens, omen series, 200, 214, 321, 326, 332, 410, 418-19; see also lists, list-making

529

oracles, xv, 217-18, 308, 361, 363, 365, 370, 374, 376 oral tradition, 323, 332; see also literary traditions orality, 332 ordeals, xiv, 34, 60, 205, 210-15, 218-22, 224-25, 229, 308 orphans, 139, 208, 310, 312; see also children: abandoned ownership joint, 192, 333-35 palace, 9, 13, 35, 53-54, 77, 148, 181-82, 207, 219, 225, 240, 256, 326, 432 paramon , 178, 185, 188-96 pardon, 251, 255-57, 259-61, 264, 440 parties, xiv, 33, 49, 55, 57, 62, 8083, 86-87, 92-97, 100-2, 105-6, 110-12, 128-29, 134, 150-52, 155, 159, 162-63, 174, 188, 190, 195, 198-200, 203-7, 210, 214-15, 220, 224, 235-38, 247248, 252, 276-81, 284, 288, 307-10, 354-56, 361-66, 370376, 389, 392, 399, 411, 428 partnerships, xv, 35, 61-62, 92-93, 99-100, 288, 335, 419 Passover, 21, 304 paterfamilias, 105, 121, 123, 166, 239, 267-68, 270-72, 276-77, 300, 307, 314, 323, 413 payments, 32-36, 38, 43-47, 55-58, 61, 64, 67, 77, 80-81, 84-85, 88-91, 94-96, 99, 106-12, 115118, 128-37, 141, 153-54, 159162, 168, 172, 178, 190-91, 194, 199, 231-38, 241, 248, 275, 295, 310-11, 320, 337338, 352-56, 359-60, 369, 376, 394-96, 412

530 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources peculium, 168, 181 penalties and punishment, 11, 16, 21, 31, 34-39, 46, 51-55, 5968, 82, 91-99, 106-10, 114, 119, 122-24, 133, 137, 146, 159-60, 168, 171, 190, 201, 205-7, 212-13, 216-18, 221-23, 231-37, 241, 244-45, 251-53, 258, 261, 271, 276, 278, 305, 319-20, 329, 342-43, 347-49, 352-58, 362-64, 368-70, 374376, 383-85, 391, 396-97, 400401, 410-13, 417, 421, 426-27, 433, 441, 446-48 capital, 39, 51, 53-55, 59, 64-66, 68, 216, 252-64, 273, 309, 343, 413, 418, 426-27, 432433, 446-47 stoning, 261-62 corporal mutilation, 36 humiliation, 350 monetary, 52, 58-59, 66, 109, 236, 343 vicarious, 235, 241, 271, 276, 278, 348, 391 perjury, 215, 220; see also witnesses: false petitions, 30, 70, 198, 203, 258, 270, 302, 307-8 Philadelphia Onion Archive, 74 Philistines, 310 Philo of Alexandria, 305, 343, 388, 389, 391 physical injury, 17, 108, 191, 260, 343, 358, 402, 416, 421; see also torts plaintiff, 41, 44-45, 47, 187, 195, 204, 219-20, 308-9, 347, 356, 364

plaintiffs, xvi, 206 pledge, 31, 45-46, 103, 105, 107, 109-10, 112, 115-17, 153, 156, 173, 188, 190, 194, 221, 234, 326 antichretic, 46, 105, 110, 115, 117, 190, 240 police, 247 politics, political, xi, xv, 265-67, 276-77, 281-84, 288, 300, 302, 431 pollution, 16, 359, 434 polyandry, 237 polygamy, 171 prayer, praying, 215, 259, 270, 307, 349, 351 prebends, xv precedents, 108, 140, 200, 302, 359360, 436-38, 448 pregnancy, 342-45, 354, 357-58; see also miscarriage presumptions, xviii, 88, 142-43, 212, 254, 308, 375-76 Priestly Code, 304, 325 priestly decrees, xiv priestly source, 303-4, 306, 320, 322, 325, 359 priests, priestesses, 193-94, 203, 239, 261, 300, 302, 307-9, 359, 379, 385, 427-28, 431-35, 437; see also temple officials princes, 34, 75, 207, 225, 274-75 princesses, 75 principles of law, xiii prison, prisoners, 207, 256, 381 prisoners of war, 381 private law, 300 private legal documents, xiv, xvi, 55, 87, 101, 214, 243, 315; see also documents of practice

Index of Subjects procedure, legal, xiv, 27, 30, 64-65, 99, 206, 211-24, 227-29, 245, 262-63, 279-80, 305, 308, 361365, 370, 373-79, 421, 425; see also litigation prohibitions, 155-57, 193, 245-48, 250, 387-93, 403, 414, 421-22, 440 proofs, 389 property (see also real property) alienation of, 86, 122, 156, 193, 241 common, 86 damage to, xv lost, 37, 50, 61, 222, 274, 330, 352, 368 marital, 393, 397 property law, 150, 153, 159, 174, 415 prosecute, prosecution, 203, 432-33; see also litigation prostitution, 150, 157-58, 205, 244245, 247-50, 366 Proverbs, 402, 404 provincial administration, xiv, 37, 198 p ‘, 365, 367-68 queens, 166, 169 quitclaims, 79, 82, 85 Rabbis, Rabbinic literature, 209, 301, 313, 317, 332, 371, 426 Rachel, 130, 164-65, 169, 294 Ramesses II, 282-83 ransom, 8-9, 11-12, 16, 31-37, 181, 228, 231-38, 241, 275-76, 347, 358-59; see also revenge and ransom, system of rape, 19, 212, 216, 235, 300, 310311, 320, 337-39, 411, 440 Rashi, 390; see also Rabbis, Rabbinic literature

531

real property, 8, 11-12, 21, 29-34, 46-47, 66-69, 72, 75, 80-81, 86-87, 102-12, 115-17, 120, 141, 144-46, 153, 175, 202, 220-23, 239, 251, 267, 278, 300, 309, 312, 321, 326-30, 339, 352, 359, 381-83, 388, 404, 407-8, 412, 415-17, 421, 428, 431, 437, 443 receipts, 31, 61-62, 77, 79-88, 9496, 118, 237, 288 redeemer, 31-32, 109-10, 112 redemption, 31-36, 45, 69-72, 101, 104-17, 153-55, 162, 173, 178, 186-87, 233-34, 238-41, 248, 309, 315, 347 redress, xvi, 198, 447 Rehoboam, 30 relief, judicial, 14; see also damages religion, religious, xv, 29-30, 107, 114, 203, 269, 274, 293-94, 302, 317, 321, 380 remedies, 62, 97, 144, 160, 206, 225, 240, 413 repayment, 45, 95, 97, 107, 109-10, 115, 130, 134, 249 Reuben, 169, 300 revenge and ransom, system of 3132, 35, 231, 235-38, 241, 275, 310, 441 Rib-Hadda, 279 rights, 80-81, 139-40, 144, 151-52, 156, 160, 163-66, 171-75, 189193, 208, 241, 245, 277, 300, 304, 317, 336, 417 Roman Republic, 331 Romans, xiii, 322 royal courts, 206, 227 royal inscriptions, 187 Ruth, 301, 305, 312 Sabbath, sabbatical, 304, 444

532 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources sacrifice, 317, 350 Samson, 310 sanction, 137, 145-48, 210, 237, 269, 276, 304, 318, 366; see also penalties and punishment Sanskrit, 14 Sarah, 164, 169, 391-92 Sargonic period, 74-75, 233, 239, 364 Saul, 269, 301, 309, 312-13, 365, 372, 392, 447 scientific treatise, xviii, 209, 306, 321, 326, 329, 410-11, 418-20, 422, 449 scribe, scribal, 27, 33-34, 67, 75, 102, 114, 127, 188, 201-2, 253, 302, 306, 320-25, 328, 331-32, 339, 398, 400, 405, 410-11, 416-19, 422, 430, 432, 441, 448 seals, sealing, xiv, 30, 57, 95, 166, 185-87, 191, 202, 207, 271, 278, 309 seduction, 310-11, 337-39 seizing, 9, 34, 45, 50, 61, 103, 105, 112, 162, 216, 219, 226, 253, 261, 311, 320, 327, 337-38, 421, 423, 426 self-help, 34, 204, 269, 300; see also remedies Septuagint, 343, 379, 384 servitude, 59, 155, 231, 234-36, 238-39, 241; see also debt slavery settlements, 44, 80-81, 85, 99, 167, 199, 206-10, 214, 220, 300, 303, 321-23, 339, 394-96, 399, 401, 403 sex, sexual, xv, 150, 157, 160, 169, 173-74, 223, 244-49, 349, 397399, 404, 407, 411, 415, 421

shame, 291, 350, 366 Shammai, school of, 398 siblings, 170 silver, 33-35, 38, 43-45, 52, 56-58, 61, 67, 80-81, 88-89, 92, 9498, 103-4, 113-16, 128-31, 134-35, 152-54, 159, 162, 167, 171-72, 181, 194, 220, 232, 236-38, 251, 274-75, 287, 310-11, 314, 330, 337338, 342, 352-54, 368-70, 376, 394-95, 399, 409 sin, sinful, 198, 214, 236, 257-59, 337-38, 348-51, 365-66, 379, 384-85, 397, 412, 422, 440 Sippar, 29, 44, 68, 70, 108, 194, 202, 430

irku, irktu, 185-87, 192-93, 195 slaves, slavery, 8, 12, 31-37, 42-47, 52, 58-60, 63-64, 67-68, 76, 104-10, 113-17, 134, 137, 146, 149-99, 219-21, 232-41, 267, 270, 282, 312, 334-36, 346-48, 354-56, 366, 382, 396, 407, 411-12, 417-18, 430-31, 439440, 443-45 chattel, 240 female, 43-45, 118, 149-50, 154169, 173-74, 366, 407 manumission of, 154, 162, 177178, 180, 183, 186-96, 44445 marks of, 150 masters, 161 release from, 181-82, 188, 191 runaways, xv, 366 self-sale, 117 social justice, xv, 47, 101-2, 107-12, 115, 117, 151-53, 174, 443 Solomon, 301, 307-8, 446 Solon’s laws, 253

Index of Subjects sons, 8, 11, 30, 89, 104, 115-22, 128, 143-47, 152, 157, 180, 267-68, 272, 310, 314-15, 320, 335, 349-50, 353-54, 430, 439442, 447 sorcery, 225-26; see also witchcraft source criticism, 182, 303, 318, 339 source(s) of law, 151, 302, 305-6, 320, 332, 339, 449 sovereignty, 270, 281, 366 speech acts, 177 status, 76, 113, 150, 159-60, 169, 172, 174-75, 177-78, 182, 189, 236 status, 21, 37, 47, 70, 76-78, 101, 113, 117-24, 131, 136, 140, 143-46, 150-97, 234-36 239240, 243-44, 250, 258, 267-68, 276-78, 281, 285-88, 302, 306, 336, 381-82, 407, 412, 430 statutes, 151, 332, 354, 426; see also law codes step-siblings, 158, 309, 440 stewards, 9, 161, 237 substantive law, 65, 102, 300-1 succession, dynastic, 284 sui iuris, 248 Sumer, Sumerian, 57, 60, 73-75, 79, 175-78, 199, 231, 241, 265, 306, 319, 331, 422, 430

umma izbu, 420, 422-23; see also omens, omen series summons, xvi supra-rational procedures, 211, 213223, 228-29, 308; see also oaths; oracles; ordeals urpu, 214, 259, 348-49 u-Sin, 36 Syria, 101, 197, 202, 328 Syriac, 383-84

533

Syro-Hittite style, 102, 105, 109, 113 talio, 235, 341, 343, 348, 358 Talmud, 305, 332, 336, 349, 351, 395; see also Rabbis, Rabbinic literature Tamar, 312, 440 Tammuz, 295 tamû, 222 Targumic literature, 380, 384 taverness, 69, 76-77, 134, 137, 326 taxation, 30, 189, 199 Tekoah, woman of, 305 temple, 35, 53-56, 65, 74-75, 148, 185-89, 192-96, 203, 218, 236, 279-80, 301-2, 308, 321, 374, 430 temple officials, 188, 203, 430; see also priests, priestesses Ten Commandments, 300, 304, 317 tenancy, 3, 8, 30, 38, 76, 326 testimony, 38, 99, 212, 219, 225; see also evidence: testimonial theft, 4, 8-9, 12-13, 34-38, 49-68, 78, 203, 209, 213, 216-18, 222-24, 231-37, 253, 261, 274-75, 300, 304-5, 320, 330331, 352-53, 357, 361-63, 366-76, 416, 446-48 aggravated, 65, 448 misappropriation, 237, 361, 367, 369 possession of stolen goods, 62, 237, 353 theology, 348 tidenntu, 110, 116, 190; see also pledge: antichretic title, 63-64, 117, 175, 232 Torah, 303, 307, 317; see also law codes: biblical

534 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources torts damage to reputation, 222, 396 negligence, 32, 84, 88, 371, 375, 377 recklessness, 18 torture, 225 treason, xv, 260, 272, 305, 309, 334, 447 treasury, treasurer, 275, 430 treaties, xv, 129, 165, 256, 265, 269, 272, 275-84, 288, 309, 330, 352-54, 358, 366-67, 372, 421; see also international law parity, 280-81 suzerain, 268, 270, 277, 281-82 tribunes, 110, 219, 223-24, 229, 270, 300, 413, 429-33, 447 tribute, 41 trustees, 42 Twelve Tables, 253, 319-20, 331335 Ugarit, 30, 69, 72, 106, 175, 220, 275, 282, 328, 330, 352-55, 358, 364, 372-73, 399 United States, law of, 3, 79, 211, 243, 285 Ur III, 57, 66, 175-76 Uru-inimgina, 4, 38-39, 232, 237, 240 Uruk, 46, 186-88, 203, 430 Urukagina, see Uru-inimgina usufruct, 181, 192, 371 vassal kingdoms, 30, 256, 267-71, 275-83, 287, 366 verdicts, 64, 128, 132, 141-42, 181, 187, 197, 205-6, 216-18, 261, 270, 308, 425, 434, 437, 441442; see also judges, judging; judgments conditional, xvi

victims, 16, 32, 35-36, 203, 219-23, 227, 231-38, 252-53, 259, 274275, 306, 343, 346, 349, 352, 357, 383, 420-21, 432, 448 virginity, 132, 311, 314, 337-38, 395; see also sex, sexual vitae necisque potestas, 255, 257 warranty, 64, 105 weights, 404, 423 Wen-Amun, 274-75 widowhood, 105, 121-24, 132-33, 195, 208, 310-15, 355, 394-95, 403, 422, 447 wisdom, 201, 323, 339, 410, 438 wisdom literature, 323, 410 witchcraft, xv, 202, 214, 224-25, 260, 356 witnesses, 38, 45, 50-52, 55, 58-60, 67, 81, 91, 96, 102-3, 114, 176, 199, 201, 205, 211-29, 262, 278, 364-65, 418 false, 406 need for two witnesses, 257, 262, 309, 448 wives, 8, 11, 18, 31, 34, 67-69, 82, 89, 104, 113, 119-23, 128-35, 149-54, 158-73, 180-81, 185186, 193-96, 202-4, 207, 215219, 222-23, 226-28, 243-55, 259-60, 267-70, 278, 286, 308314, 326, 334-38, 348-49, 387404, 432-33, 439, 443, 446-47 second wife, 164, 168 wounding, 39, 235, 253, 341, 356, 358, 371, 422 Xenophon, 17, 23 Yahwist source, 303 zakû, 114, 117-18, 187-88, 222, 228 Zedekiah, 29, 443-45 zi z 2 .d a, 231-33, 235-37, 240-41

Index of Ancient Sources The sources listed below are arranged in the following order: Cuneiform, Biblical, Greek and Roman, Egyptian, Aramaic, and Rabbinic.

Cuneiform A 826 ............................................. 71 2801 ........................................... 71 2830 ........................................... 71 32117 ....................................... 185 AASOR 16 50 .......................................... 76 AbB 2 74 ............................................ 30 2 97 ............................................ 70 3 88 .......................................... 131 6 21 ............................................ 71 6 62 ............................................ 77 7 103 ........................................ 141 7 153 .....................................20-23 8 100 ................................233, 239 11 7 .......................................... 200 11 101 ........................................ 70 11 158 ...................................... 206 11 159 ..............................200, 204 13 10 ........................................ 201

ABL 2 ................................................256 259............................................258 620............................................257 ADD 321..............................................33 AfO 14 pl. 7........................................73 17 2...........................................260 25 72-83 ...............................60, 64 Ammi-aduqa, Edict of §1 ..............................................326 §3 ................................................35 §5 ................................................46 §7 ...................38, 46, 95, 236, 369 §8 ..........................................35, 77 §17............................................326 §20............................................326

536 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources ARM 2 72 ............................................ 71 2 92 .......................................... 261 2 129 .......................................... 71 8 1 ............................................ 148 10 32 ........................................ 263 10 59 .......................................... 69 14 47 ........................................ 240 26/2 404................................... 279 Arnaud Emar 6 7 ............................................... 113 15 ......................80, 104-5, 121-22 16 .............................110, 115, 190 18 ............................... 117-20, 124 20 ............................................... 47 30 ............................................. 122 31 .............................118, 121, 124 59 ............................................. 122 77 .....................................110, 115 82 ............................................. 104 83 ......................... 47, 113-15, 118 90 ............................................. 108 91 ............................................. 121 115 ........................................... 111 117 ...................................110, 115 118 ........................................... 113 121 ...............47, 105, 108, 113-14 122 ........................................... 108 123 .....................104, 108, 110-11 128 ........................................... 122 138 ............................................. 47 142 ........................................... 106 150 ............................................. 80 156 ........................................... 104 158 ............................................. 47 181 ......................................118-21 185 ...................................121, 124 201 ........................................... 123 205 ............................. 110, 113-14 209 ........................................... 105

Arnaud Textes syriens 25 .............................106, 108, 113 26 ..............................................113 28 ..............................................121 33 ..................................... 105, 109 39 ..............................................115 40 ..............................................115 44 ..................................... 113, 115 45 ..............................................121 47 ........................................ 121-23 50 ..............................................121 52 ..............................................113 53 .....................102, 105, 108, 112 56 ..............................................105 64 ..............................................109 65 ..................................102-5, 108 66 ..............................................109 68 ..............................................109 71 ................................121-22, 335 72 ..............................................119 78 ..............................................105 80 ..................................... 105, 118 81 ..................................... 104, 111 82 ........................................ 109-10 ARU 126............................................117 127............................................117 ASJ 10 no. A........................... 110, 115 12 no. 7.....................................106 12 no. 11...................................106 13 no. 18.......................... 109, 113 13 no. 21...................................105 13 no. 22...................................122 13 no. 23............... 118-19, 121-23 13 no. 24...................................121 13 no. 25.....................119, 122-24 13 no. 26..................119, 121, 124 13 no. 30...................................121

Index of Ancient Sources 13 no. 35 ..........................110, 115 13 no. 36 .................................. 113 13 no. 37 .................................. 113 Assyrian Dream-Book 330 ........................................... 214 AT (see also JCS 8) 6 ............................................... 199 31 ............................................. 134 56 ............................................. 199 AuOr 5 9 ............................................ 108 5 11 ............................ 113-14, 117 5 12 .......................................... 113 5 13 .....................................119-20 BE 6/1 84 ....................................... 131 6/2 14 ......................................... 89 6/2 16 ......................................... 89 6/2 20 ......................................... 89 6/2 25 ......................................... 89 6/2 27 ......................................... 89 6/2 49 ....................................... 220 9 75 .......................................... 199 Beckman and Hoffner 1996 no. 3 ......................................... 278 no. 8 ......................................... 278 no. 11 ....................................... 284 no. 15 ...............................276, 284 no. 19 ....................................... 282 no. 22D .................................... 283 Beckman Emar 7 ............................................... 104 8 ............................................... 123 10 .....................................105, 189 15 .......................119, 121-22, 124

537

23 ........................................ 119-20 28 ..............................................121 37 ..............................................121 57 ..................................... 121, 124 71 ..............................................121 80 ..............................................109 85 ..............................................119 BIN 7 173.........................................132 7 192...........................................89 BM 6650..........................................186 13912.................... 243-45, 249-50 80318....................................29, 70 Bo. 681..............................................22 2072............................................28 Boyer Contribution 122................................... 233, 238 BRM 2 53...........................................193 BT 4 ..................................................36 BzA 10/1 11........................................76 Code of Eshnunna §§1-14 ............................. 134, 137 §12...................................... 251-52 §13...................................... 251-52 §15...................................... 136-37 §§15-16 ....................................136 §§15-24 ........................... 134, 137 §16..............................136-37, 334

538 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources §§17-18...............................127-37 §18A ........................................ 135 §§18A-21................................. 136 §§19-21.................................... 136 §§22-24..............................34, 137 §§23-24............................114, 241 §§25-35....................137, 409, 411 §26 ............................. 320, 337-38 §28 ............................. 243, 251-52 §29 ........................................... 392 §30 ........................................... 401 §31 ...................................159, 244 §35 ........................................... 136 §36 ........................... 69-71, 75, 77 §37 ............................. 374-75, 377 §39 ..................................... 45, 107 §41 ..................................70-71, 76 §§42-46.................................... 423 §48 ........................................... 201 §53 .................... 76, 137, 324, 327 §§53-58.................................... 137 §58 ........................................... 329 §59 ...................................245, 395 Code of Hammurabi prologue I 31-33................................... 29 §1 ............................................. 214 §§1-5............................ 408-9, 411 §2 ............................................. 214 §3 ............................................. 214 §5 .....................................207, 214 §6 ............................................. 236 §§6-7............................52, 65, 395 §§6-13........................................ 64 §7 ...................................52, 54, 66 §8 ...................51, 53-55, 236, 369 §9 ............................. 49, 51, 64-65 §§9-11...................... 51, 65-66, 68 §§9-12...................................... 236

§§9-13 ........................................49 §10........................................50, 65 §§10-11 ......................................65 §11........................................50, 66 §12......................50, 52, 54-55, 65 §§12-13 ......................... 52, 54, 59 §13............................51, 55, 65-66 §14..................................... 35, 236 §§17-18 ........................... 134, 136 §§22-24 ....... 38, 274, 330, 352-53 §25............................................216 §34..............................................39 §§36-65 ....................................408 §42............................................214 §§57-59 ....................................369 §§60-61 ....................................369 §§67-69 ....................................369 §81............................................369 §§91-92 ....................................369 §96............................................369 §106..........................................214 §107................................... 66, 214 §108................................... 77, 214 §113............................214, 373-74 §§115-116 ................................114 §116.........................214, 241, 347 §117................... 151, 233-34, 236 239-40, 445 §§117-119 ................................408 §118.................................... 240-41 §119...........45, 107, 152, 155, 239 §120............................................38 §§120-126 ................................408 §124..........................................214 §125........................... 37, 375, 377 §127..........................................214 §129................................. 243, 397 §§129-130 ................................412 §130............................320, 337-38 §131..........................................397 §132..........................................397

Index of Ancient Sources §133 ......................................... 214 §§133-135 ............................... 392 §§133-137 ............................... 312 §134 ......................................... 173 §136 ................................... 66, 401 §137 .................................132, 245 §138 ......................................... 395 §§138-140 .......................245, 394 §141 ........................... 214, 396-97 §§141-142 .......................399, 412 §142 ...................132, 396-97, 401 §146 ................................... 66, 165 §§146-147 .......................150, 152 §147 ......................................... 395 §149 ......................................... 132 §§154-156 ............................... 246 §§154-158 ............................408-9 §156 ....................................131-32 §160 .................................130, 310 §163 .................................128, 133 §§163-164 ...............128, 131, 136 §164 ........................... 128, 131-32 §§168-169 ..........................145-46 §170 ......................................... 144 §§170-171 .......................145, 158 §171 ........................... 150-51, 170 §§171b-172 ............................. 393 §172 ......................................... 132 §175 ......................................... 179 §§175-176 ............................... 161 §176 ......................................... 179 §178 ........................................... 89 §185 ....................................139-41 §§185-193 .......................139, 408 §186 ......................................... 142 §187 ......................................... 148 §§188-189 ............................... 143 §§189-191 ............................... 148 §190 ......................................... 144 §191 .................................144, 146 §192 ......................................... 148

539

§193................................. 148, 401 §194................................... 66, 214 §195................................. 408, 412 §196..........................................319 §§196-223 ................................412 §206..........................................320 §§206-207 ................................222 §210..........................................347 §227..........................................222 §229..........................................336 §§229-230 ................................272 §230................................. 336, 347 §231..........................................336 §232............................................66 §235............................................66 §§241-252 ................................137 §§245-246 ................................356 §255..........................................214 §259................................... 59, 369 §260..........................................369 §264...................................... 87-88 §265........................... 54, 214, 369 §279...................................... 63-64 §§280-281 ................................178 §282..........................................214 Code of Lipit-Ishtar §9 ................................................59 §25...........................151, 158, 170 §§25-26 ....................................180 §26............................................181 §27................................... 158, 244 §30..............................205, 247-50 Code of Ur-Namma §4 ..................................... 160, 243 §5 ....................... 161, 178-79, 244 §6 ..............................................338 §§6-7 ........................................394 §8 ..............................................159 §25..............................................59

540 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources CT 4 6a .......................... 91, 95, 97-99 4 13a ........................................ 364 4 29c .......................................... 70 4 39a ........................................ 164 4 47a ................................214, 364 6 26a ........................................ 400 6 33b ........................................ 364 6 34b .....91-92, 95-96, 98-99, 108 6 37a ........................................ 170 6 42a .......................................... 46 8 2a .......................................... 131 8 6b ............................................ 66 8 17a .......................................... 44 8 22b ................................164, 171 8 26b .......................................... 80 8 34b .......................................... 89 12 29 ........................................ 246 27 14-15................................... 420 29 42-43................................... 206 38 ............................................. 419 45 14 ........................................ 239 45 37 .....................................41-47 45 60 ........................................ 106 45 101 ...................................... 146 45 119 ...................................... 164 47 40 .......................................... 94 47 63 .......................................... 47 48 1 .................................... 45, 214 48 19 .......................................... 45 48 23 .......................................... 68 48 48 ...................................164-65 48 53 ................................162, 179 48 67 ........................................ 165 CT Nebraska 63 ..........................................56-57 CTH 394 ........................................... 380

Cyr. 332............................................430 Dalley Edinburgh 69 ..................................... 196, 430 Ea (= MSL XIV) I 329 .........................................231 El-Amarna 1 ......................... 268, 286, 292-93 1-30...........................................286 4 ..................................292, 294-95 5 ................................................286 7 ...............................287, 289, 291 8 ......................... 275-76, 291, 421 9 ....................................... 287, 289 11 ..................................... 288, 292 13 ..............................................286 14 ..............................................286 15 ..............................................272 16 ..........273, 276, 286-88, 292-93 17 ..............................................284 18 ..............................................286 19 ..............................................288 20 ..................................... 286, 288 22 ..............................................286 24 ..................................... 273, 284 25 ..............................................286 26 ..............................................288 27 ..............................................288 28 ..............................................273 29 ..................................... 273, 288 30 ..............................................272 35 ..................................... 284, 294 41-44 ........................................286 51 ..................................... 280, 282 52 ..............................................375 74 ..................................... 271, 279 83 ..............................................271

Index of Ancient Sources

541

Gurney MB Texts no. 21 ....................................... 118

§§1-4 ..........................................32 §§2-4 ..........................................11 §10............................................320 §17............................................342 §31............................................163 §32............................................163 §33............................................163 §§34-35 ....................................161 §50..............................................20 §55..................................... 30, 329 §§57-69 ......................................35 §§73-82 ......................................16 §95........................................ 35-36 §187..........................................256 §§187-188 ................................440 §191..........................................157 §194..........................................157 §196..........................................157 §197................................. 253, 338 §IV..................................... 38, 330

Hg. 55 ............................................... 73

IBoT III 96...........................................19

Hh. I 34 ........................................... 231 VII 14-15 ................................... 73 XV............................................ 422

ICK 1 3 .................................... 152, 167 1 32...........................................167

90 ............................................. 271 148 ........................................... 283 149 ...................................271, 279 162 .....................267-68, 277, 279 164 ...................................280, 283 209 ........................................... 283 244 ........................................... 271 253 ........................................... 271 254 ........................................... 271 280 ........................................... 271 313 ........................................... 275 367 ........................................... 268 369 ........................................... 268 370 ........................................... 268 Erimhu V 78 ......................................... 231

Hittite Instructions for Temple Officials ..................................... 282 Hittite Instructions to the Commander of the Border Guards (= Bl Madgalti) III 9-44..................................... 201 III 23-24................................... 202 III 29-32................................... 198 Hittite Laws §1 ............................................... 11

Iraq 13 96................................ 203, 430 16 37-39 (ND 2307) ................400 54 no. 6.....................................121 ITT 3/2 6225 .....................................66 iz i = i tu 97-169 ........................................74 J. Westenholz Emar 2 ................................................202

542 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources JCS 8 5 ............................................ 134 8 7 no. 94 ................................. 400 9 96 no. 82............................... 108 9 114 no. 84............................. 239 14 28 no. 60......................... 61, 63 JEN 120 ........................................... 162 192 ........................................... 116 302 ........................................... 116 610 ........................................... 160 Jones and Snyder 252 ........................................... 182 KAJ 70 ............................................. 162 167 ........................................... 162 KBo I 5 ............................................... 11 III 8 ............................................ 27 IV 2 ............................................ 27 VI 2 ............................................ 20 VI 4 ............................................ 12 X 34 ........................................... 25 X 45 ........................................... 28 XI 72 .......................................... 22 XV 1 ........................................ 381 XX 92 ........................................ 22 Kienast Altass. Kaufvertragsrecht 3e.............................................. 156 20 ............................................. 156 44 ............................................. 167 Kramer AV 447 no. 10.................................. 60

KTS 1 47a ................................ 152, 168 KTU 1.3.2..........................................384 KUB VII 1 ...........................................27 VII 14 .........................................19 VII 41 .........................................28 VII 57 .........................................26 IX 32.........................................380 XII 8 .........................................431 XII 55 .........................................19 XII 56 .........................................28 XIII 2 = Bl Madgalti................15 XIII 8..........................................20 XIII 9............................................5 XVII 7 ........................................25 XVII 8 ........................................26 XVII 10 ......................................23 XX 10 .........................................18 XXIX 1.......................................20 XXXIII 70..................................22 XXXIII 93..................................25 XL 62 ...........................................5 Lambert BWL 40 .......................................... 204-5 121-138 ....................................207 Lamentation over the Destruction of Sumer and Ur .............................176 LTBA 2 2 ...............................................73 lú = a .......................................73, 75 III 11'-19' ...................................74 IV 272-273.................................56

Index of Ancient Sources MAOG 4 191 .......................................... 57 MDP 23 288 ...................................... 140 Meissner BAP 27 ............................................... 81 91 .....................................247, 389 95 .....................................146, 148 96 ............................................. 146 Middle Assyrian Laws Tablet A §1.........................211, 213, 217 §3........................... 212-13, 223 §§3-4 ................................... 369 §5......................................... 222 §7......................................... 212 §8......................................... 320 §9......................................... 211 §§12-16 ............................... 243 §12.............. 212, 216, 218, 226 §14....................................... 212 §15...... 202, 211, 226, 228, 253 §16....................................... 211 §17....................215-16, 220-22 §18.................131, 134, 215-16 §19....................................... 212 §20.......................211, 222, 395 §21....................................... 211 §22....................................... 222 §23....................................... 243 §24....................................... 222 §25...............................212, 216 §29....................................... 397 §31....................................... 129 §36.......................173, 212, 223 §37...................... xvii, 255, 395

543

§38 .......................................395 §39 .......................................173 §40 .......................................211 §41 .......................................158 §45 .......................................392 §47 ........ 211, 222, 224-25, 228 §50 .......................................357 §52 .......................................354 §53 .......................................211 §55 ......................159, 216, 244 338-39, 347, 349 §§55-56................................244 §56 .............................. 222, 338 §59 .......................................228 Tablet B §2 .......................... 32, 334, 354 §3 .........................................334 §4 .........................................211 §8 ................................ 211, 221 §9 ................................ 211, 221 §10 .......................................222 §13 .......................................221 §14 .............................. 211, 221 §20 .............................. 211, 221 Tablet C+G §1 .........................................222 §§2-3....................................156 §3 ................................ 211, 221 §8 ................................ 211, 221 §10 .............................. 211, 221 §11 .............................. 211, 221 Tablet E §1 .........................................211 Tablet L §3 .........................................211 Tablet N §2 .........................................212

544 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources MSL I 3 .....................................141, 148 I 6 .....................................364, 419 I 7 ............................................. 400 VI 85 .......................................... 73 VI 109........................................ 73 XII 58......................................... 57 XII 137 ...................................... 56 XII 141-142............................... 74 XIV 211-212 ............................. 73

1 214...........................................56 1 216..................................... 56-57 1 217...........................................56

MVN 3 102 ................................233, 239 3 219 ......................56, 59, 63, 177 231-32, 237 3 342 .......................................... 58

NSG 17 ........................................ 277-78 74 ..............................................180 75 ................................179-80, 182 76 ..............................................176 99 ..............................................177 127..............................................59 177...................................... 177-78 184............................................181 185............................................175 186..............................................55 211............................................199

Nabn tu see SIG7 + ALAM = nabn tu

OECT 13 91.........................................219

Nbn. 682 ......................................149-50 697 ...................................189, 191

OIP 14 76................................ 232, 237 99 59...........................................57 122 37.......................................186 122 38......................185, 188, 195

NCBT 1900 ......................................... 247 ND 4373 ........................................... 74 Neo-Babylonian Laws §12 ........................................... 394 Nippur Adultery Trial ................. 204 Nippur Homicide Trial........202, 204 259, 425, 432, 437 NRVN 1 104 .......................................... 57 1 213 .......................................... 57

PBS 7 101...........................................70 11/3 55........................................42 RA 15 140.......................................233 66 116.........................................71 67 147-56 .................................188 Riftin 46 ................................................68 48 ..............................................130 Ritual of Ahella ..........................380

Index of Ancient Sources

545

RS 15.92 ........................................ 399 15.123 ........................................ 69 17.42 ........................................ 175 17.145 ...................................... 176 17.146 ......................275, 330, 353 357, 421 17.158 ..............................354, 421 17.229 ...................................... 421 17.230 ...................................... 352 19.68 ........................................ 372 20.20 ........................................ 364 20.22 ........................220, 330, 355

SMEA 30 no. 7.....................................121

SAA 2 6 ............................................ 278 10 8 .......................................... 332 18 1 .......................................... 198

SRU 57 ................................................57 98 ................................................60

SAAS 5 1-9......................................... 204 5 9 ............................................ 207 Samsu-iluna, Edict of §3' .............................................. 46 SBH 56 ............................................... 73 Semitica 46 12-14..............................119-21 + ALAM = nabn tu ................ 422 A 274-275................................ 246

SMN 2058............................................76 3399............................................77 SNATBM 373..............................231-32, 237 Sollberger Corpus Ukg. 5.....................................4, 39 Ukg. 6.......... 58, 231-32, 237, 240

Studies Landsberger 235..............................................70 umma lu V ...................................... 412, 419 umma izbu I 1-46 ........................................420 I 24-26 ......................................423 urpu II ...............................................348 II 48 ..........................................349 II 60 ..........................................214

SIG7

Sigrist Kutscher Mem. Vol. no. 1 ......................................... 113 Sigrist Messenger Texts 190 ...................................232, 237

Szlechter TJA 68 ................................................56 TCL 1 64...........................................233 1 112...........................................86 1 164............ 66-67, 233, 235, 238

546 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 1 232 ........................................ 364 4 67 .......................................... 168 6 35 ............................................ 57 18 91 .......................................... 70 Telipinu, Edict of §§7-27.......................................... 4 §§37-40...................................... 37 §49 ............................................. 32 Telipinu Myth ................................ 20 The Curse of Agade .................... 183 TIM 2 100 ........................................ 239 4 33 ................................60, 63, 66 4 49 .......................................... 164 5 62 ............................67, 233, 238 TLB 1 144 .......................................... 66 1 243 .................... 67, 235, 238-39 Tudhaliya, Edict of.....................3-39 I 1ff. ........................................... 29 I 7-8............................................ 10 I 11 .......................10, 25, 213, 381 II............................................... 240 II 1.............................................. 12 II 2..................................4, 10, 216 II 3-8 .......................................... 31 II 4....................10-12, 49, 57, 232 II 5.............................................. 11 II 7.............................................. 11 II 8.............................................. 12 II 8-10 ........................................ 35 II 10............................................ 12 II 11-15 ...................................... 35 II 12............................................ 37

II 13 ...................................... 12-13 II 14 ............................................37 II 15 ...................................... 12-13 II 16 ............................................12 II 16-19.......................................36 II 17 ............................................12 II 18 ...................................... 12-13 II 19 ............................................13 III 1-11 .......................................37 III 3-4 .........................................13 III 5.......................................13, 57 III 7.............................................13 III 8-11 .......................................11 III 11...........................................13 III 12-20 .....................................38 IV 1-8 .........................................38 IV 5.............................................14 TuM 1 22a .........................................156 UCP 10/1 58........................................88 10/1 91............................. 235, 238 10/1 107 ........55, 59, 66, 235, 238 UET 3 19....................................... 56-57 3 25.............................................55 3 33.............................................57 3 47.............................................56 5 9 .............................. 34, 146, 148 5 92...........................................148 5 94...........................................146 5 96...........................................146 5 203.........................................243 5 260.........................................142 7 7 .............................................203 7 8 .................................... 205, 248

Index of Ancient Sources UF 26 194 no. 8........................121-22 26 197 no. 9............... 119-22, 124 VAS 7 149 ...................................234-35 8 101 .......................................... 86 8 26 ............................67, 233, 238 8 86 .......................................94-95 8 9-11....................................... 247 9 59-60....................................... 88 16 21 .......................................... 71 16 62 .......................................... 77 18 1 ..................................132, 247 18 114 ...................................... 132 Waterman Bus. Doc. 34 ............................................... 43 Westenholz OSP 55....................................... 74 OSP 129................................74-75 OSP 133................................74-75 OSP 135..................................... 74 OSP 154..................................... 75 OSP 170..................................... 75 YBC 2177 ......................................... 244 YNER 4 45 .......................................... 199 YOS 6 129 ........................................ 188 7 17 .......................................... 193 8 51 .......................................... 277 8 53 ............................ 233-35, 238 8 111 .......................................... 89 8 120 ........................................ 140

547

8 129...........................................68 8 150...........................................44 12 320.........................................44 12 331.......................................141 13 28...........................................67 14 146.........................................46 ZA 53 73 no. 14 .............................199 63 no. 19.....................................57

Biblical Genesis 7:7.............................................314 12 ........................................ 391-92 12:10-20 ...................................299 13:1-6 .......................................315 14 ..............................................299 16:1-3 .......................................164 16:2-3 .......................................312 16:5-6 .......................................164 16:6...........................................300 17:13.........................................156 17:23.........................................156 18:25.........................................307 19:4.................................. 429, 431 20 ..............................................391 20:1-18 .....................................299 20:12.........................................309 21:9-13 .....................................169 21:10................................ 164, 169 21:12.........................................169 23 ..............................................299 24 ..............................................310 24:53.........................................312 24:59.........................................312 24:67.........................................311 25:27-34 ...................................314

548 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 26:6-11..................................... 299 29:15-18...........................305, 370 29:15-19................................... 310 29:15-26................................... 130 29:16-26................................... 294 29:21 ........................................ 310 29:22 ........................................ 311 29:24 ........................................ 312 30:3 .......................................... 165 30:5-13..................................... 166 30:28-34................................... 370 30:31-34................................... 305 31:30-32................................... 216 31:30-35................................... 305 31:32 ........................................ 261 31:36 ................................300, 367 31:36-37................................... 300 31:38 ........................................ 372 31:38-39................................... 305 31:38-41................................... 370 31:39 ........................................ 371 31:44-54................................... 279 32:12 ........................................ 415 32:23 ........................................ 169 34 ............................................. 300 34:4 .......................................... 310 34:8-10..................................... 309 34:13-18................................... 310 35:22 ........................................ 169 37:31-33................................... 345 37:32 ........................................ 346 37:33 ........................................ 346 38 .....................................312, 315 38:24-25................................... 397 42:4 .......................................... 345 42:37 ................................300, 346 42:38 ........................................ 345 43:9 .......................................... 346 44:28 ........................................ 346 44:29 ........................................ 345 48:11 ........................................ 351

49:3-4 .............................. 300, 314 Exodus 12:21-23 .....................................21 18:13-26 ...................................307 18:26.........................................307 19:12-13 .......................... 261, 264 20:13-23:19..............................303 20:22-23:33..............................318 20:22-26 ...................................302 21 ..............................................318 21:1-22:16................................303 21:2-6 .............................. 159, 439 21:6...........................................374 21:7-11 ............................ 153, 172 21:8.................................. 155, 304 21:10.........................................155 21:12-17 ...................................423 21:13................................ 343, 349 21:15-16 ..................159, 311, 339 21:16.........................................346 21:18-19 .......................... 320, 343 21:20-21 ...................................114 21:21.........................................114 21:22-25 ..................303, 341, 357 21:23................................... 355-56 21:23-25 ...................................359 21:24.........................................343 21:24-25 .......................... 342, 357 21:26.........................................356 21:35.......................... 76, 324, 327 21:36.........................................357 21:37..................35, 357, 369, 448 22 ..............................................318 22-23 ........................................300 22:1...........................................253 22:1-16 .....................................318 22:3...........................................369 22:4-5 .......................................303 22:5...........................................327 22:6-7 .......................................371

Index of Ancient Sources 22:6-8.......................362, 374, 376 22:6-12....................... 361, 376-77 22:7 ............................ 362-63, 365 22:7-8.................362-63, 365, 374 22:8 ....................303, 308, 362-63 365, 368, 416 22:9 .......................................... 362 22:9-10.............................371, 376 22:9-12.............................362, 370 22:10 ............ 308, 362-63, 373-74 22:10-12................................... 345 22:12 ........................308, 346, 371 22:13 ........................................ 371 22:15-16............. 159, 311, 338-39 22:16 ........................................ 310 22:17 ................................260, 318 22:17-19................................... 318 33:16 ........................................ 351 Leviticus 16:21 ................................379, 383 16:26 ........................................ 385 16:27-28................................... 385 18 ............................................. 390 18:6 .......................................... 398 18:9 ..................................309, 440 18:11 ........................................ 440 18:18 ........................................ 309 20:7 .......................................... 440 24:10-23................................... 304 24:12 ........................................ 309 24:17-21................................... 358 25 ............................................. 443 25:1-2....................................... 107 25:13-16................................... 442 25:24 ........................................ 107 25:25-26................................... 107 25:25-28............................... 31, 36 25:29-30................................... 107 25:41 ........................................ 439 27:2 .......................................... 351

549

Numbers 5:21-23 .....................................308 5:23-28 .....................................308 9:1-14 .......................................304 9:6-14 .......................................300 11:16-25 ...................................307 15:32-36 ...................................304 15:34.........................................309 25:7-8 .............................. 264, 350 26:55.........................................314 27:1-11 ....................302, 304, 320 441-42 27:3...........................................259 27:8...........................................315 27:8-11 .....................................315 35:12.........................................306 35:24-25 ...................................306 35:30.........................................309 35:31-32 ...................................359 35:32-34 .....................................16 36 ..................................... 304, 448 36:3...........................................441 36:4..................................... 442-43 36:5-9 .......................................320 36:8...........................................315 Deuteronomy 1:9-17 .......................................307 13:6...........................................262 13:7-11 .....................................262 13:7-12 .....................................262 13:9-11 .....................................262 13:13-16 ...................................262 15 ..............................................318 15:1...........................................444 15:12........................155, 304, 444 15:12-18 ...................................304 17:2-5 .......................................262 17:2-7 .......................................262 17:4...........................................309 17:6..................257, 262, 309, 448

550 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 17:7 .......................................... 309 17:9 .......................................... 308 18:20 ........................................ 262 18:20-22................................... 426 18:21-22................................... 433 19:12 ........................................ 306 19:13 ........................................ 304 19:15 ................................309, 448 19:15-21................................... 304 19:17-18................................... 308 19:19-21................................... 308 20 ............................................. 420 20:1-21:9 ................................. 420 21 .....................................318, 420 21:1-9.................329, 354-55, 420 21:1-25:13 ............................... 303 21:2-3....................................... 307 21:5 .......................................... 308 21:10-14................................... 171 21:15 ................................314, 399 21:15-17................................... 314 21:18-21...........................306, 308 21:19 ........................................ 426 21:20 ........................................ 318 21:23 ........................................ 416 22 ............................................. 318 22:1-3....................................... 414 22:1-5....................................... 415 22:1-12.............................318, 414 22:4 .......................................... 414 22:5 .......................................... 414 22:6-7..................................414-16 22:8 .......................................... 414 22:8-12..................................... 415 22:9 .......................................... 414 22:10 ........................................ 414 22:11 ........................................ 414 22:12 ........................................ 414 22:13-19................................... 314 22:13-21................................... 306 22:13-22................................... 412

22:13-29 ...................................411 22:16-17 ...................................308 22:20-21 ...................................397 22:22.........................................413 22:22-25 ...................................310 22:22-29 ...................................413 22:23-24 ...................................337 22:23-27 .......................... 320, 413 22:23-28 ...................................412 22:24................................ 310, 397 22:24-27 ...................................308 22:25-27 ...................................337 22:28-29 ..................159, 311, 314 337, 413 23:1.................................. 411, 419 23:15.........................................399 24:1..................172, 309, 313, 387 404, 441 24:1-4 ......................313, 387, 404 24:3..........................172, 309, 313 24:7...........................................346 24:16.........................................441 25 ..............................................318 25:1-12 ............................ 421, 423 25:5...........................................334 25:5-6 .......................................315 25:5-10 ............................ 306, 311 25:8...........................................308 25:11-12 .......................... 320, 423 25:13-19 ...................................423 27:22.........................................440 32:30-31 ...................................347 Joshua 3:18-19 .......................................21 7:10-18 .....................................308 7:14...........................................365 15:18-19 ...................................312 17:1-6 .......................................314 20:19.........................................306

Index of Ancient Sources Judges 1:13-15..................................... 312 4:5 ............................................ 307 9:6 ............................................ 301 9:25 .......................................... 421 11:1-2....................................... 309 14:1-2....................................... 310 14:5 .......................................... 310 14:10 ........................................ 310 15:1 .....................................310-11 15:1-2....................................... 310 15:2 .......................................... 401 15:6 .......................................... 310 19-20........................................ 301 20:5 .......................................... 301 1 Samuel 2:6 ............................................ 257 2:25 ..................................349, 351 8:5 ............................................ 307 14:24 ........................................ 302 14:36 ........................................ 365 14:38 ........................................ 308 14:42 ........................................ 365 18:20-29................................... 392 18:22 ........................................ 309 18:25 ........................................ 310 18:27 ........................................ 353 19:11-17................................... 312 20:31 ........................................ 447 20:42 ........................................ 372 22:11 ........................................ 308 22:11-16................................... 309 22:14-15................................... 308 25:39-42................................... 310 25:41 ........................................ 167 25:44 ................................313, 392 26:15-16................................... 427 26:16 ........................................ 447 28:9 .......................................... 301 30:23-25................................... 301

551

2 Samuel 3:12-16 .....................................392 3:14-16 .....................................313 6:16...........................................392 6:20-23 .....................................392 12 ..............................................448 12:1-6 .......................................307 12:1-14 .....................................305 12:1-15 .....................................445 12:5-6 .......................................446 12:6...........................................448 12:9...........................................447 13:13................................ 309, 440 14:1-20 .....................................305 14:4-11 .............................. 30, 307 19:29.........................................447 21:1-11 .....................................269 21:1-14 .....................................273 21:7...........................................372 21:8-9 .......................................392 1 Kings 1:17...........................................167 2:26...........................................446 3:16-28 .....................................307 3:17-22 .....................................308 3:27...........................................308 7:7.............................................307 9:16...........................................312 12:1-20 .......................................30 12:19.........................................366 20:35-43 ...................................305 20:39-41 ...................................309 20:39-42 ...................................447 21 ..............................................272 21:8-11 .....................................306 21:8-14 .....................................305 21:9-13 .....................................309 21:10................................ 309, 448 21:13.........................................448

552 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources 2 Kings 1:1 ............................................ 366 3:5 ............................................ 366 3:7 ............................................ 366 5:20-27..................................... 259 6:26-29..................................... 307 8:3-6......................................... 307 8:20 .......................................... 365 8:22 .......................................... 365 9:24-26..................................... 441 9:26 .......................................... 272 10:1-11..................................... 441 10:19 ........................................ 261 14:6 ..................................301, 440 20:1 .......................................... 258 20:2-3....................................... 259 20:4-5....................................... 259 22:8 .......................................... 301 Isaiah 1:2ff. ........................................ 366 3:13-15..................................... 309 3:14 .......................................... 307 5:1-7......................................... 308 16:3 .......................................... 351 28:7 .......................................... 351 38:1 .......................................... 258 38:2-3....................................... 259 38:4-5....................................... 259 50:1 ..................................309, 313 60:15 ........................................ 401 Jeremiah 2:29 .......................................... 308 3:1 ............................................ 404 3:8 ....................................309, 313 11:20 ........................................ 307 20:1-3....................................... 308 22:15-16................................... 307 26 .............................307, 425, 427

26:1-6 .......................................426 26:7-9 .......................................426 26:8...........................................431 26:8-9 .......................................426 26:9.................................. 427, 432 26:9-10 .....................................427 26:10.........................................438 26:11................................ 309, 433 26:11ff......................................432 26:12.........................................434 26:12-15 ...................................434 26:16................................... 435-37 26:17................................ 428, 431 26:17-19 .......................... 302, 436 26:20-24 ...................................436 26:24.........................................437 32:6-15 .....................................112 32:11.........................................309 34 ..............................................448 34:1-10 .......................................29 34:8-10 .....................................302 34:8-16 .....................................443 34:14.........................................444 36:10-19 ...................................438 Ezekiel 16:4-6 .......................................141 16:8...........................................310 16:10-12 ...................................312 16:16-18 ...................................312 16:51-52 ...................................350 18:32.........................................258 20:37-38 ...................................367 20:38.........................................366 44:24.........................................308 Hosea 2 ................................................305 2:4.............................................313 2:16-22 .....................................310

Index of Ancient Sources

553

8:1 ............................................ 367 10:14 ........................................ 415

30:21-23 ...................................407 30:23.........................................401

Joel 2:16 .......................................... 311

Ruth 1:1.............................................301 4 ................................................315 4:1-10 .......................................305 4:1-11 .......................................309 4:1-12 .......................................301

Jonah 3:4-10....................................... 434 Micah 6:2-4......................................... 308 Zechariah 3:1 ............................................ 309 13:3 .......................................... 262 Malachi 2:16 .......................................400-1 Psalms 19:6 .......................................... 311 72:1-4....................................... 307 106:30 ...................................... 350 133:1 ........................................ 315 Job 31:9-10..................................... 348 31:10 ........................................ 348 31:11 ........................................ 348 31:26-27................................... 348 31:28 ........................................ 348 31:35 ........................................ 308 Proverbs 4:17 .......................................... 383 6:31 .................................... 35, 448 16:33 ........................................ 384 24:24 ........................................ 308 28:24 ........................................ 367 30:18-19................................... 406

Lamentations 3:59...........................................307 5:14...........................................306 Daniel 5:19...........................................256 Ezra 7:25.................................. 302, 308 Nehemiah 8:18...........................................302 1 Chronicles 2:34-35 .....................................439 12:12.........................................384 23:4...........................................308 2 Chronicles 10:10.........................................366 19:5-11 .....................................307 21:8...........................................366 21:10.........................................366 25:4.................................. 301, 440 Matthew 5:31-32 .....................................389

554 Writings of Westbrook, Vol. 2: Cuneiform and Biblical Sources Greek and Roman Caesar Bell. gall. 1.22.5........................ 17 Cicero Att. 13.16.1 ................................ 22 Verr. 2.4.106 ............................. 19 Claudian Rap. Pros. 3.330-331 .............................. 19 Demosthenes In Timocratem 113.................. 253 Digesta 10.2 .......................................... 335 41.1.1-5.................................... 415 Diodorus Siculus Bib. Hist. V 4.3 ......................... 19 Gaius Inst. III 154a-b ........................ 335 Inst. III 184-185 ...................... 216 Inst. III 189-190 ...................... 216 Prov. Ed., book 7 .................... 335 Gellius noctes Atticae 10.23.5............. 253 Hymn to Demeter .......................... 19 Iliad 11.153-154 ................................ 16 11.473-75................................... 17 Justinian Inst. 2.1pr. ............................... 415

Laws of Gortyn II 20-28.....................................227 V 28-34 ....................................335 VII 15-IX 24 ............................320 Livy 1.59.1..........................................17 Lucilius 920..............................................18 Ovid Fast. 4.491-494..........................19 Metam. 5.437-443 .....................19 Metam. 8.130 .............................18 Metam. 12.234 ...........................18 Philo of Alexandria Special Laws 3.30-31 ..............388 Plautus Mercator 836-837 .....................22 Pseudolus 249............................18 Rudens 261-262 .........................22 Quintilian Institutio Oratoria 1.1.27..........21 Strabo 10.2.9........................................382 Statius Thebaid 12.270-273 ..................19 Twelve Tables VIII 12-13 ................................253 Virgil Aeneid 5.788 ..............................17

Index of Ancient Sources Xenophon Cynegeticus 6.19 ....................... 17

Egyptian Horemheb, Edict of III 21-22..................................... 39 IV 24-27 .................................... 39 Lawsuit of Mose.......................... 336 Urk. IV 697:4-5..................................... 289 1234:17-1236:1....................... 283 1304:2 ...................................... 283

Aramaic Cowley no. 2 ..................................83, 85-7 no. 6 ........................................... 86 no. 14 ......................................... 86 no. 15 ...................... see TAD B2.6 no. 20 ......................................... 86 TAD B2.6 (= Cowley 15) ......82, 84, 87 133, 313, 399

555

B3.3 (= Kraeling 2) ...133, 162-63 313, 399-400 B3.4 (= Kraeling 3) ...................80 B3.6 (= Kraeling 5) .................163 B3.8 ................................. 133, 313 B3.8 (= Kraeling 7) .................133

Rabbinic Mek. Chapter VIII.............................342 Mishnah m. Gi. 9.10 ..............................398 m. Ketub. 1.2............................395 m. Ketub. 10.1-2 ......................394 m. Ketub. 7.1............................394 m. Ketub. 7.6..............314, 398-99 m. Yebam. 10.1 ........................312 m. Yebam. 7.1 ..........................312 m. Yoma 6.3 .............................379 Talmud (Babylonian) b. B. Qam. 10b .........................351 b. B. Qam. 82b .........................395 b. Gi. 90a.................................398 b. Soah 10a .............................349