I generally agree with the conception of ANE law collections proper having
largely originated in scribal "scientific" lists of judicial decisions, in
line with Westbrook's proposal and various articles. The prologue and
epilogue that framed such case law collections such as the Laws of Hammurabi
make reference to the righteousness and justice such rulers established, but
the publication of law collections were not the mechanism by which this was
accomplished (as you appear to suggest). Rather, righteousness and justice
were established by the misarum decrees, often at the start of a ruler's
reign, but in the case of Hammurabi's in four separate years. The misarum
decree was a royal edict aimed at temporary social reform and social relief
such as forgiving of debts, release from debt slavery, release of certain
classes of prisoners, etc. Such edicts appear to have been the closest ANE
rulers came to enacting law, and such edicts appear to have been of limited
duration to address social and economic crises. Here I would suggest an
important modification to the basic proposal of scribal case law collections as
proposed by Westbrook and adopted by other specialists in ANE law. It seems
to me that the law collections as found in propagandistic publications
like the Laws of Hammurabi were themselves somewhat of a composite character,
including not only scribal records of case law but also certain provisions
lifted from misarum decrees. For instance, the Laws of Hammurabi contain
one provision for severely punishing a judge whose verdict is proved false
(presumably under the influence of a bribe):
(LH 5) If a judge try a case, reach a decision, and present his judgment
in writing; if later error shall appear in his decision, and it be through
his own fault, then he shall pay twelve times the fine set by him in the
case, and he shall be publicly removed from the judge's bench, and never again
shall he sit there to render judgement.
To me this reads like a judicial reform originating in a misarum decree, in
a royal response to popular complaints against judicial corruption, rather
than in scribal case records. Likewise I consider the following famous
provisions to have originated in a misarum decree:
(LH 117) If any one fail to meet a claim for debt, and sell himself, his
wife, his son, and daughter for money or give them away to forced labor:
they shall work for three years in the house of the man who bought them, or
the proprietor, and in the fourth year they shall be set free.
(LH 118) If he give a male or female slave away for forced labor, and the
merchant sublease them, or sell them for money, no objection can be raised.
LH 117 is thought to be the literary model for the biblical release of
slaves in the seventh year. In the Pentateuch this is a prescriptive law, but I
believe that the provision in LH was not intended to hold throughout
Hammurabi's reign, but was lifted out of context from one of his four misarum
decrees, where originally it was intended as a temporary measure for that
single year, in line with other misarum decrees.
The inclusion of certain supplementary provisions from misarum decrees
would be in line with the propagandistic or apologetic purposes of the
published law collection, intended to advertize the righteousness of the ruler's
On Wed, 11 Jan 2012, Lisbeth S. Fried wrote:
> In any case, I was talking about the historical people Israel who lived
> in the land of Canaan prior to 586. I think those people had an ANE view
> of the world. Imo, whatever law codes existed then were irrelevant for
> the daily life of the people, but were scribal speculations on the
> meaning of justice.
I'm afraid I find this to be a rather fanciful notion. The task of
scribes was not to speculate -- the task of scribes was to know. Apart
from chancery work in writing letters and drawing up contracts, the task
of scribes was to collect, codify, preserve, and transmit knowledge. Of
course, here I speak for Mesopotamia, where one actually finds "law
codes"; those who consider the ANE to be ancient Israel will doubtless
have a different take. Israelite scribes may have been much more given to
speculation than their Mesopotamian counterparts. Indeed, the entire
Hebrew Bible may be based on scribal speculation.
However, it seems much less likely that Mesopotamian scribes were wont to
speculate on the nature of justice. How one can look at a "law" that says
"If a man hires a boatman, he shall pay him six kor of corn yearly" and
declare it to be scribal speculation on the meaning of justice eludes me.
This is hardly an abstract maundering; it is very specific and down to
earth. It may not have the force of law, but it is certainly not an
abstraction and has little to do with the meaning of justice.
The Mesopotamian legal compendia have been a subject of intense debate for
as long a as they have been known. The "scribal" theory is one of several
interpretations that have been put forward. It seems to have been
popularlized by Roth, Bottéro, and Westbrook. There are others who
believe that the laws in some way represent legislation and reflect the
rule of law (i.e., they are prescriptive).
I suggest reading a recent article that summarizes the discussions
briefly: S. J. Claassens, "The So-Called 'Mespotamian Law Codes': What is
in a Name?" Journal for Semitics 19 (2010), 461-478 (It is available on
the web at
I believe she wrote her dissertation on the topic, or at least some aspect
of it). In addition to providing an overview of the various theories on
their nature, the article makes the point that calling these ancient legal
compendia "law codes" invests them with characteristics that they may not
have had because of what we consider a "law code" to be in our modern
terms. This is a classic example of the violation of Landsberger's
celebrated "Eigenbegrifflichkeit" -- namely, that ancient institutions
have to be understood in their own terms and not in ours.
For my own part, I long ago decided that "law codes", as we understand the
Code of Diocletian or the U.S. Code to be, was not what these collections
of laws were and I have since referred to them as legal compendia.
Similarly, I have long doubted that the legal compendia represent
legislation, either passed by a legislative body or proclaimed by the
king. I have always considered them a collection of precedents, and I
have no doubt that the cases reflected in the "laws" actually took place
at some point. I don't know that I would consider them prescriptive in
the sense that you might say "you can't do that, it's against the law",
but they doubtless provided a model for judges to base their decisions on
in similar cases.
In many ways I can see the legal compendia as a scribal tradition.
Knowledge in ancient Mesopotamia was based on lists. Beginning with the
very first writing, lists were compiled of various categories of
knowledge. The legal compendia share many features with the omen texts.
Both present lists organized by categories and both text types share the
same format, namely a protasis -- apodosis structure wherein the "if such
and such happens" is followed by "then such and such will result". It
seems quite likely that court decisions were reduced to this format in
some kind of scribal milieu and then lists were compiled from these
generalized cases. That this represents "scribal speculations on what is
meant by the word justice" seems somewhat farfetched. It is just a
matter of scribes going about their business of collecting and codifying
And of course it is well known that the prologue and epilogue of the Code
of Hammurabi are different from the laws themselves. They are written in
a different register of the language and form a clearly defined
propagandistic "envelope" for the laws. The many gaps in the "laws" also
argues against them being a body of legislation and speaks more in favor
of them being a collection of generalized precedents.
But with regard to prescriptiveness, one can immediately see the
difference in presciptiveness between the biblical "Thou shalt not kill"
and the Mesopotamian "If a man causes the death of another man ...". As I
said, the Mesopotamian legal compendia share the format of the omen series
with their "if ... then ..." structure. This is understandable if the
legal compendia are compilations made by professionals in the field with a
scribal background. And let's face it, anything written down in ancient
Mesopotamia was written by a trained scribe -- any project involving
writing was a scribal project.
Still, the fact that the legal compendia were promulgated by kings must
give them some kind of prescriptive authority regardless of their origin.
After all, in those days the king's word was law. And if they lack any
prescriptive force at all then Hammurabi's claim to protecting the widow
and the orphan and preventing the strong from oppressing the weak is just
rodomontade. I'm still willing to stick by my characterization of the
legal compendia as collections of precedents redacted and generalized by
scribes involved in legal proceedings, although I can see their
transmission as part of the scribe's scholarly curriculum. After all,
tablets containing Hammurabi's laws were found in Assurbanipal's library.
However, I can't see them as "scribal speculations on the meaning of the
word justice". They had a purpose and the purpose wasn't speculative.
The purpose may have been the preservation of judgments from previous
cases in a redacted and generalized format, with the side benefit of a
judicious king being able to carve them on a stela and claim the mantle of
"shar misharim". But that's just an opinion. The matter is more than a
question for brief discussion. It is a dissertation topic, or perhaps
several dissertation topics.
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