Understanding the Legal System: Roots of the Law

Foreword

Understanding the intricacies of law often appears as a daunting task, shrouded in complex terminology and abstract concepts that can seem inaccessible at first glance. This perception, however, does not entirely capture the essence of law and its fundamental role in society. Before passing judgment on the complexity of legal systems, it's imperative to embark on a journey of understanding, tracing back to the very origins of law as we know it.

The key to demystifying law lies in exploring its roots, delving into the earliest attempts by civilizations to codify conduct and establish order within communities, by examining the foundations upon which modern legal systems are built, we gain invaluable insights into the evolution of law and its adaptation to the needs of changing societies.

This article aims to shed light on the initial forms of law; analyzing inscriptions on clay tablets offers a fascinating glimpse into how ancient societies sought to regulate behavior and resolve disputes. Through an exploration of these ancient legal codes, we can better appreciate the continuous journey of law from its rudimentary beginnings to the sophisticated systems that govern our lives today.

Figure 1: Urukagina's Cone, Louvre

From the very beginning to the first written Law: The Ur-Nammu Code

In rudimentary prehistoric communities, formal laws were unnecessary. Social consensus or the application of force typically ensured acceptable conduct. However, with the advent of advanced societies and the conglomeration of individuals into larger, more diverse assemblies, it became imperative to establish shared norms for conduct. Initially, legal principles emerged within the familial structure. The patriarch, as head of the household, dictated behavioral guidelines that functioned as the prevailing laws. As familial units grew and branched out, they formed clans, each governed by a chosen leader. Clans within a region would then amalgamate into tribes, appointing a chief to oversee the broader collective. Tribal chiefs would establish regulations to manage inter-clan relations, while clan leaders maintained jurisdiction over familial regulations. Transgressions against tribal regulations were adjudicated by the chief, who determined culpability and punishment, whereas clan leaders dealt with infractions within their own familial circles.

These clan and tribal rules, unwritten for innumerable generations, were transmitted orally from one generation to the next. The inception of cuneiform law marked the first instance of codification, which served to eliminate ambiguity and standardize legal principles for all subjects within a realm, thereby unifying legal procedures across its expanse. Cuneiform script, conceived by the ancient Sumerians and employed throughout the Middle East in the final three millennia BCE, chronicled these laws. This script recorded the laws of the ancient Middle East's predominant populations, notably the Sumerians, Babylonians, Assyrians, Elamites, Hurrians, Kassites, and Hittites. Despite their ethnic variances, these groups maintained interaction and cultivated parallel cultures. The cultural synergy was at times enhanced by the spread of Akkadian, a lingua franca and academic language also transcribed in cuneiform. Therefore, referring to these legal systems as “cuneiform” is scientifically justified and not merely convenient, as no other terminology encompasses solely these bodies of law. "Mesopotamian law" only encompasses a subset of these legal systems, while "ancient Middle Eastern law" is excessively broad, encompassing distinct traditions like Judaic and Egyptian law, despite potential scholarly links to cuneiform law.

The various compilations of cuneiform laws devised by different nations and kingdoms share common characteristics: many include introductory and concluding remarks where the sovereign highlights his legislative significance, clarifies his intentions, and mandates compliance, backed by blessings or warnings. Despite their divine presentation, the laws are secular edicts, articulated and formalized by the sovereign. Regardless of their diverse origins — be it established custom, judicial rulings, or intentional lawmaking — the endorsement by the sovereign confers upon them a legislative quality. Unlike contemporary codes, these ancient compilations do not methodically cover all laws pertinent to a specific legal domain; they address assorted issues but may overlook other critical regulations that were so intrinsically customary as to be unquestioned. Given the general familiarity with legal customs, these compilations concentrate on elucidating specific instances, employing them illustratively or as precedents, rather than presenting generalized, abstract principles. This lack of theoretical purpose leads to a seemingly haphazard case arrangement that often eludes modern legal analysis.

Figure 2: Stela of Ur-Nammu, The King worshipping the gods of Ur before the building of the tower

The Ur-Nammu Code holds the distinction of being the earliest surviving legal code. Authored in the Sumerian tongue on clay tablets around the years 2100–2050 BCE, it is traditionally attributed to King Ur-Nammu of Ur, however, there is scholarly debate that it may instead be the work of his progeny, Shulgi. The initial discovery of the code was made in Nippur, with two fragments uncovered and translated by Samuel Kramer in 1952. Due to its incomplete state, only the introduction and five laws were discernible. Subsequent finds in Ur and additional translations made in 1965 expanded the accessible portion of the code to about 40 out of the presumed 57 statutes. A separate version unearthed in Sippar displays minor differences.

Preceding legal codes, such as the Urukagina Code, have been acknowledged, yet the Ur-Nammu Code is the oldest to which we currently have access. It predates the Code of Hammurabi by three centuries. The structure of the laws within follows a conditional format, presenting a stipulation of "if" a particular offense is committed, "then" a specific penalty ensues. This formulaic approach would be emulated by successive legal systems. Despite its antiquity, the Ur-Nammu Code is noted for its sophistication, introducing monetary compensation for physical harm, a marked deviation from the reciprocal 'eye for an eye' doctrine characteristic of later Babylonian legislation. Nevertheless, it maintained capital punishment for the most severe transgressions, such as homicide, theft, adultery, and sexual assault.

Its foundational structure of correlating laws with their consequent penalties laid the groundwork for a legal paradigm that would become a standard and offers a window into the social fabric of the period known as the "Sumerian Renaissance," reflecting the era's legal and civil organization.

Figure 3: Inscription of Ur-Nammu, Stone tablet

The Code of Lipit-Ishtar, the Pre-Hammurabi Code

Focusing on the Code of Lipit-Ishtar, an antecedent to Hammurabi's Code, it represents a significant corpus of Sumerian legal thought, originating in the third millennium BCE, Ur-Nammu's statutes addressed sorcery, slave escape, and bodily harm. The Code of Lipit-Ishtar, although fragmentary, provides insight into issues of personal rights, matrimonial agreements, inheritance, and punitive measures. The unearthing of tablet fragments bearing this code has augmented our comprehension of the legal developments in ancient Mesopotamia, suggesting an intricate tapestry of law predating Hammurabi's renowned codification.

The legal system of Lipit-Istar, like those of other Mesopotamian rulers from Ur-Nammu to Hammurabi, was not rooted in the power of the king alone but was seen as deriving from the divine beings who had appointed him as their representative over the territory and its inhabitants. In Mesopotamia, the role of the king developed from being a tribal leader to the head of a community or village, and eventually to the sovereign of an entire kingdom by the Early Dynastic Period (2900-2334 BCE). The legitimacy of a king’s authority was believed to be based on the favor of the gods, and his leadership remained legitimate only as long as it appeared that the gods continued to endorse his governance.

Figure 4: Code of Lipit-Ishtar

In the Code of Lipit-Ishtar, the presentation of each legal case or "article" consists of two parts. The first, which legal scholars refer to as the protasis, presents a situation using a conditional clause. The second, known as the apodosis, contains the judgment or punishment. For instance: "If a man accused another man without any reason or for something of which the accused was unaware, and if this man could not prove his accusation" (protasis), "the accuser was subjected to a penalty equivalent to the matter for which he had made his accusation" (apodosis). This configuration of legal articles can also be found in the Code of Ur-Nammu and the Code of Hammurabi.

In Mesopotamian codes, not only the format in which the articles are presented is repeated, but also the tripartite structure according to which they are set up. Along with the actual body of laws (which varies from code to code depending on the number of laws, the themes addressed and the language used), a prologue and an epilogue are invariably present, which are of particular interest because they reflect the ideology that legitimizes kingship. The prominence of the gods of the Sumerian-Akkadian pantheon in the prologue is clear, as they (Enlil, Shamash, Marduk) grant the king the prerogative to legislate. The epilogue underscores the sanctity of the act of legislating because it curses those who dare violate the promulgated law. In this way, the codes reinforce a political agenda that requires adding the image of the just king to that of the warrior king. Thus, these texts serve more as reflections of the ideal values of Mesopotamian royalty than as codes to be applied to the letter.

These early legal codes, epitomized by the Code of Lipit-Ishtar, served as a precursor to the more detailed legislations required by the complex social structures that emerged over time. These foundational laws, while not exhaustive, laid the groundwork for the evolution of legal systems, delineating societal norms and contracts with increasing precision as the concept of equitable behavior under the law became more sophisticated.

The Code of Hammurabi

The Code of Hammurabi stands as one of the earliest extant legal documents, comprising a compendium of legislation from the ancient civilization of Babylon within Mesopotamia. Authored circa 1754 BCE under the reign of Hammurabi, the sixth ruler of Babylon, this legal code was inscribed upon both monumental steles and more modest clay tablets. Encompassing a total of 282 edicts, the code articulated a variety of sanctions, modulated by the social echelons of the implicated parties — from slaves and freemen to landholders. Its most renowned tenet, the principle of retributive justice — "an eye for an eye, a tooth for a tooth" — exemplifies the lex talionis. This code was not singular in its era; it followed in the legislative lineage of prior codes, such as that of Ur-Nammu and the precepts from Urukagina's cone and the statutes of Lipit-Ishtar.

Figure 5: The Code of Hammurabi

The codification was methodically grouped to facilitate comprehension among the populace, an approach that has been perceived by some as an embryonic manifestation of constitutional governance, incorporating notions akin to the presumption of innocence and the substantiation of claims with evidence. The code also acknowledged the role of intent in meting out justice, harshly addressing negligence. Certain enactments within the code are believed to serve the dual purpose of justice and sovereign aggrandizement. Despite potential biases, the Code of Hammurabi became a paragon for juridical thought and practice for over a millennium and a half subsequent to its origination.

In its opening declaration, Hammurabi professed his commitment to the establishment of justice, the eradication of malevolence, and the protection of the vulnerable from the powerful. The breadth of the code’s purview included defamation, commerce, servitude, labor obligations, larceny, culpability, and marital dissolution. A significant portion of the code addressed contractual matters, specifying wages, transactional terms, and indemnities for property damage. Moreover, it allocated extensive coverage to familial and domestic regulations, touching upon inheritance, marriage dissolution, paternity, and moral conduct. Notably, the code instituted a recourse for judicial accountability, permitting the permanent removal of judges for misjudgments. It also broached aspects of martial obligations.

Law 196 of the Code has gained notoriety for epitomizing the lex talionis, asserting that equivalent corporal retaliation was warranted for inflicted physical harm, with variable reparations based on the social status of the victim.

In matters of matrimony, women entered into wedlock via contractual agreements secured by their kin, bringing dowries and reciprocal betrothal gifts. Divorce, while sanctioned by the husband, necessitated dowry restitution and financial provision for the ex-wife and offspring. A wife adjudged delinquent faced dire consequences. Furthermore, legal provisions permitted women to seek separation on grounds of maltreatment. Cases of adultery typically warranted capital punishment, barring spousal clemency.

Figura 6: Discovering the Code of Hammurabi, 1901, Suse

The unearthing of the Code of Hammurabi at Susa, led by Gustave Jequier and others in 1901, and its initial translation by Jean-Vincent Scheil the following year, underscores its historical significance. The basalt stele inscribed with the Akkadian cuneiform text resides in the Louvre Museum in Paris, with replicas displayed internationally. Its dissemination across various cultures over a millennium signifies its enduring impact in the ancient Middle Eastern legal milieu.

The Talion, Assyrian and Hittite Law

The principle of lex talionis, a fundamental aspect of ancient Babylonian justice also echoed in biblical and early Roman law, required that offenders face punitive measures exactly mirroring the injury they caused. This notion was concretely applied in many early civilizations.

In olden Palestinian societies, private disputes, such as those arising from bodily harm or theft, were settled directly between individuals rather than by state intervention, a concept also widespread in nascent Roman society. Although talion was the maximum retribution a claimant could demand, monetary settlements were an alternative solution. The tradition of directly reciprocal punishment eventually gave way to financial reparation in Palestine, and by the 5th century BCE in Rome, fiscal sanctions began to replace the talion standard, though it reemerged in certain European locales during the Middle Ages.

The Assyrian legal inscriptions, drafted later than those from Babylon, present a more elemental social construct, concerned with private and real estate ownership and domestic affairs, indicative of a stringent, male-dominated culture. The Assyrian tablets, which originated between the 15th and 13th centuries BCE — prior to the ascendancy of the Assyrian Empire — address issues related to private ownership, real estate and family, depicting a society with rigid patriarchal norms. Insights into the condition of women in ancient Assyria, mainly drawn from administrative records and legal codices, suggest a picture of pronounced male dominance. Comparisons with women's roles in Babylonia or nearby regions show some similarities, but Assyrian practices towards women were markedly harsher. While Assyrian law did not universally strip women of rights, it relegated them to a lesser status. As typical in strongly male-driven societies, a woman’s worth was largely tied to her role in procreation. Hence, her sexual integrity was rigorously policed by her kin, with her virtue and loyalty seen as a testament to family honor. In these respects, ancient Assyria shared commonalities with other contemporary realms, yet its particular enforcement of these social norms was distinctively cruel, potentially a reflection of Assyria's singular political milieu.

The Hittite Code, originating around the 14th century BCE, encapsulates the Hittite’s insular agrarian society and their feudal nobility. Hittite punitive regulations, though milder compared to Assyrian laws, are remarkable for their substantial financial penalties.

Figure 7: Hittite clay tablet

The compilation of Hittite legal mandates, commonly designated as The Laws, appears not as a centrally issued code but as an aggregation of civil and criminal ordinances traditionally upheld by the community, evidenced by the numerous provisions detailed within. The earliest mention traces back to the Old Kingdom, around 1650 BCE, which in turn cites even earlier iterations. In essence, these stipulations advocate for cooperation over retribution or incarceration for transgressions. While some provisions focus on criminal acts, such as kidnapping, larceny and murder, others pertain to civil matters linked to matrimony, livestock management, and assorted services. Additional context on Hittite judicial customs emerges from documentation on court practices and declarations by the monarch or ruling officials, with The Laws furnishing fundamental insights into Hittite jurisprudence.

Conclusion: Ongoing influence on the modern legal system

In undertaking an analytical juxtaposition between these early codes, particularly the Code of Hammurabi and contemporary statutes, it is necessary to examine both convergences and divergences. They constituted a judicial framework for ancient Babylon, advocating for the principle of reciprocal justice, encapsulated in the adage "an eye for an eye, a tooth for a tooth." This paradigm of lex talionis, wherein the punishment mirrors the transgression, is at variance with the prevailing ethos of modern jurisprudence, which often emphasizes rehabilitative measures over purely retributive ones.

A salient disparity is evident in the adjudication based on social hierarchy. Hammurabi's legal edicts meted out disparate sanctions for analogous offenses, contingent on whether the individuals involved were of noble birth, commoners, or enslaved persons. In contradistinction, contemporary legal frameworks generally endorse the tenet of equality under the law, irrespective of societal rank. Nonetheless, the extent to which socio-economic status influences judicial resolutions remains an area of active discourse within current legal studies.

Further differentiation arises with the inception of foundational legal doctrines such as the presumption of innocence and the requisition of evidentiary support, which, in Hammurabi's epoch, were nascent but have since evolved into bedrocks of the modern legal system. Although Hammurabi's Code made overtures towards establishing safeguards and equity within its jurisprudence, these were relatively elementary by today's standards.

Conversely, there exist parallels: both the ancient codex and contemporary laws endeavor to orchestrate a society that is orderly and governed by regulations, ensuring the safety of its constituents and the dispensation of justice. They also coincide in their codification, providing documents accessible for public consultation, though modern legal codes are characteristically more elaborate and nuanced.

Bibliographical References

Barmash, P. (2020). The Laws of Hammurabi: At the Confluence of Royal and Scribal Traditions, Oxford University Press

Roth, M. T. (1997). Law Collections from Mesopotamia and Asia Minor. Atlanta, GA: Scholars Press

Kramer, S. N. (1981). The Sumerians: Their History, Culture, and Character. Chicago, IL: University of Chicago Press

Van De Mieroop, M. (2005). King Hammurabi of Babylon: A Biography. Malden, MA: Blackwell Publishing

Charpin, D. (2004). Reading and Writing in Babylon. Cambridge, MA: Harvard University Press

Roth, M. T. (1995). Mesopotamian Legal Traditions and the Laws of Hammurabi. Chicago, IL: Oriental Institute of the University of Chicago.

Harris, R. (2000). Gender and Aging in Mesopotamia: The Gilgamesh Epic and Other Ancient Literature. Norman, OK: University of Oklahoma Press.

Driver, G. R., & Miles, J. C. (1952). The Babylonian Laws. Oxford, UK: Clarendon Press.

Visual References

Figure 1: Urukagina's Cone, 2500 BCE - 2340 BCE, © 2005 RMN-Grand Palais (musée du Louvre) / Franck Raux https://collections.louvre.fr/ark:/53355/cl010120707#

Figure 2: Stela of Ur-Nammu, King of Ur, circa 2120 BCE, The King worshipping the gods of Ur before the building of the tower, Penn Museum https://www.penn.museum/sites/bulletin/files/2020/12/nammu1.jpg

Figure 3: Inscription of Ur-Nammu, Stone tablet, 2112 BCE – 2095 BCE, The British Museum

https://www.britishmuseum.org/collection/object/W_1919-0712-615

Figure 4: Code of Lipit-Ishtar, 1934 BCE - 1924 BCE, Louvre https://collections.louvre.fr/ark:/53355/cl010166109

Figure 5: Code of Hammurabi 1792 BCE - 1750 BCE, Louvre https://collections.louvre.fr/ark:/53355/cl010174436

Figure 6: Discovering the Hammurabi Code, 1901, Suse

https://collections.louvre.fr/ark:/53355/cl010174436

Figure 7: Hittite Clay Tablet, circa 1300 BCE, The British Museum

https://www.britishmuseum.org/collection/object/W_1913-1011-22