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Re: [ANE-2] Law Codes in the ANE and in ancient Israel

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  • RUSSELLGMIRKIN@aol.com
    Bob, I generally agree with the conception of ANE law collections proper having largely originated in scribal scientific lists of judicial decisions, in line
    Message 1 of 34 , Jan 12, 2012
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      Bob,

      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
      reign.

      Best regards,
      Russell Gmirkin
      Portland, Oregon


      On Wed, 11 Jan 2012, Lisbeth S. Fried wrote:

      <snip>
      > 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.
      <snip>

      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

      <http://unisouthafr.academia.edu/SusandraClaassens/Papers/696163/The_so-called_Mesopotamian_law_codes_what_is_in_a_name>;
      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
      knowledge.

      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.

      Bob Whiting
      whiting@...







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    • robtyenow
      Dear Raz Many thanks indeed for the debate, and please keep me up to date on your future studies. It seems to me a pity that so few venture into this
      Message 34 of 34 , Jan 17, 2012
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        Dear Raz

        Many thanks indeed for the debate, and please keep me up to date on your future studies.

        It seems to me a pity that so few venture into this fascinating field, and also, that few take time to exchange opinions on the developments in it.

        sincerely

        Rob Tye, York, UK
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