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Cuneiform Law and the History of Civilization

Author(s): E. A. Speiser
Source: Proceedings of the American Philosophical Society, Vol. 107, No. 6, Cuneiform Studies
and the History of Civilization (Dec. 20, 1963), pp. 536-541
Published by: American Philosophical Society
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Accessed: 07/12/2009 04:52

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Proceedings of the American Philosophical Society.
A. M. Ellis Professor of Bible and Semitics, University of Pennsylvania
(Read April 19, 1963, in the Symposiumon CuneiformStudies and the History of Civilization)

"I, Hammurabi, am a righteous ruler, one to whom the Sun-god has

granted the eternal truths" (Code of Hammurabi xxvi 95-98)

I matter transcends regional, chronological, and in-

CIVILIZATIONS, like individuals, are known by ter-disciplinary boundaries.
their works. The most significant contributions of With so much involved, it is fortunate that the
pertinent sources are plentiful-indeed an embar-
antiquity are those that posterity took over and rassment of riches. Our material ranges in time
has kept alive. And nowhere is the survival span
from the middle of the third to the end of the first
greater than with the legacy of the historic civiliza- millennium B.C.,spanning thus the first half of all
tion of Mesopotamia.
recorded history. And because there is at first
Our cultural debt to that remote civilization is
far more substantial and varied than is generally nothing like it from any other land, the early legal
records from Mesopotamia constitute the initial
recognized. When we reckon today our years by
the sun and our weeks by the moon, and call the chapter in the history of jurisprudence in general.
Geographically, the records stretch from Iran to
days of the week after the planets; when we look the shores of the Mediterranean, and from Asia
at our time-pieces to tell the hours and the minutes
Minor to the borders of Egypt, thereby outstrip-
and the seconds in conformance with the sexa-
ping in each direction the boundaries of historic
gesimal system of numeration; when we approach
the "babel" of tongues with the tools of linguistic Mesopotamia. The languages involved include
Sumerian, Akkadian, Elamite, and Hittite, among
analysis; when we write our official records, our others. The total volume is literally incalculable,
scholarly treatises, our literary creations, or our since much that has been dug up so far is yet to
private letters; when we reaffirmour faith in laws be published, and new texts are coming to light
impersonally conceived and in government that all the time. A single private home in the small
shuns autocracy-when we do these and many
other things, we are utilizing, whether we know it provincial town of Nuzi, covering but a few gen-
or not, the results of an immemorial experiment erations, has yielded an archive of close to a
thousand legal documents-almost three times as
in living in which ancient Mesopotamia played a
many as have come down to us from all of Egypt
leading part.
Two of these achievements in particular stand prior to the Persian era. As a result, we know
that minor and out-of-the-way community from
out above all others, namely, writing and law. the middle of the second millennium B.C. more
Writing has been perhaps the greatest single factor intimately than we know many a European capital
in the advance of mankind to date; for though at the time of Columbus.
science may have overcome space, writing con- The main thing, however, is that the legal tradi-
quered time, by converting all history into a con- tion concerned is closely integrated in spite of the
tinuous and indelible record. Yet that particular
contribution of Mesopotamia was but an incidental underlying differences in date, geography, political
background, and language. The unifying factors
by-product, a surface feature rather than a basic outweigh all the divisive elements combined. One
element of the parent civilization. Law, on the such common bond is the cuneiform script which
other hand, was bound up intimately with the very was shared by all the languages and countries in
fabric of the underlying society. Since Mesopo-
tamian law was to emerge as the overriding cul- question, so much so that even precision-conscious
tural factor at home and a potent influence on other jurists speak today of "cuneiform law" rather than
cultures near and far, a closer look at that institu- Mesopotamian law.1 And if pedants should
tion should be of more than merely antiquarian in- 1 Paul Koschaker, "Keilschriftrecht," Zeitschr. d.
terest. It can be shown, I believe, that the subject deutschenmorgenldndischenGesellschaft89 (1935) : 26.

demur on the ground that no discipline is wedge- epitomized by the nontechnical phrase kittum u
shaped, and that such a label might be all too sug- mnsarum, literally "truth and right." The two
gestive of sharp practices, they may be assured nouns are mutually complementary. In the Epi-
that the name is only a short-cut and that the logue to his celebrated Code (from which the
practice was pursued with utmost propriety. quotation at the beginning of this paper has been
Another major unifying factor derives from the adduced) Hammurabi 3 states explicitly that the
character and content of cuneiform law: wherever sun god Shamash, patron of justice, bestowed on
the system was in force, and whatever local modi- him the various forms of kittum (expressed in the
fications it may have exhibited, the fundamental pl. kindtim), whereas the authority of the legis-
concept was one and the same. This concept can lator was limited to mearum. A slightly earlier
be traced in each instance to its home base in ruler of the nearby center of Mari goes even
southern Mesopotamia, the very region from further.4 Shamash himself was not the source of
which the script itself had fanned out as part of kittum but only its guardian, for that boon, being
a broader cultural process. All in all, we have eternal and universal, could not originate with
abundant material to study most of the periods gods, let alone mortals. An immutable aspect of
and areas concerned, and thus gauge the grip that the cosmic order, kittum is semantically the same
cuneiform law exercised on its host of followers as Biblical 'emet (from *'amint), the original
throughout the long history of Mesopotamian force of which still survives in the common loan-
civilization, as well as the effect that it had on word "Amen." The independent function of a
later cultures. ruler, whether divine or human, is confined to
II mesarum, that is, just and equitable implementa-
tion. In other words, kittum and mesarum com-
Complex systems are often found to stem from bined express eternal verities.5 Jointly, they spell
deceptively simple principles. Cuneiform law is
a case in point. law, but it is a broad and universally valid concept
The basic premise of cuneiform law, the source that is thus described, a system that is tantamount
to which the institution as a whole owed both its to a treasured way of life.
content and its vitality, may be summarized as How the Mesopotamians arrived at such an
follows: Law is an aspect of the cosmic order and affirmation is outside the scope of the present
hence ultimately the gift of the forces of the uni- statement. What matters is that they did and that
verse. The human ruler is but a temporary trustee this approach was to have immensely fruitful con-
who is responsible to the gods for the implementa- sequences. At home, it made for order and sta-
tion of the cosmic design. Because the king is bility under a state that was incompatible with
thus answerable to powers outside himself, his autocracy, not just in theory but in actual prac-
subjects are automatically protected against au- tice; and the subjects, for their part, cherished
the system, for it put even the lowliest among
tocracy, and the individual has the comfort and
assurance of certain inalienable rights.2 them on a par with the ruler in their common de-
Now if this is indeed the master key to the pendence upon higher powers. Abroad, various
social history of Mesopotamia, it ought to operate other lands proved eager to follow suit, however
with regularity regardless of time and place. The hostile they might be on other counts toward the
fact is that it does just that. The concept of law political set-up in contemporary Babylonia.
that has just been outlined is implicit in the very Let us review briefly some of the major results
term that the Mesopotamians used for a compre- in the central concept that has just been outlined,
hensive definition. In Akkadian, which merely re- starting with internal developments.
flects here the antecedent Sumerian, "law" is (1) Truths that are considered valid forever
2 I have dealt with various
cannot vary with time or person. Hence the laws
aspects of this subject on
several occasions. Cf. "Ancient Mesopotamia and the Be- 3 Col. xxiv, rev. 96-98; cf.
"Authority and Law . . ,"
ginnings of Science," Nature 146 (1940) : 705-709; "Some 12-13. The conventional form "Hammurabi" (instead of
Sources of Intellectual and Social Progress in the Ancient "Hammurapi") has been retained here for the sake of
Near East," Studies in the History of Culture, Waldo G. convenience.
Leland Volume (Menasha, Wisconsin, 1942), pp. 51-62; 4 Inscription of Yahdun-Lim, Syria 32
(1955): lines
"Early Law and Civilization," Canadian Bar Review 31 4-6: "[Shamash,] whose allotted portion is meserum
(1953): 863-877; "Authority and Law in Mesopotamia," (local variant of mesarum), and to whom k7natum(nom.
Jour. Amser. Or. Soc., Suppl. 17 (1954) : 8-15. See also pl. of kittum) have been granted as a gift."
Th. Jacobsen, "Primitive Democracy in Ancient Meso- 5 Cf. the Biblical pair "met we.sedeq "truth and right-
potamia," Jour. Near East. Stud. 2 (1943) : 159-172. eousness," that is, eternal truths justly implemented.

that embody or reflect such truths are both time- substituted. For the most part, however, the seal
less and impersonal. was deemed to be adequate. It identified the
(2) Interpretation of the law conceived in this wearer as a responsible member of a civilized
fashion must not be left to lay parties. It has to community, one who had been deputized, as it
be entrusted instead to professional judges. were, by the immortal stewards of the universe.
(3) In their effort to arrive at decisions in As Herodotus was to remind us after the books on
consonance with sanctioned norms, the judges an independent Mesopotamia had already been
were often obliged to look to established precedent. closed at long last, no self-respecting Babylonian
In this pursuit they were aided not only by com- was likely to be seen without such a seal.1l And
pilations or codes,6 but also by comprehensive the Bible tells us that even distant cultural clients
dictionaries of legal phrases and clauses, which of Mesopotamia subscribed to the same beliefs and
had been compiled as early as 2000 B.c.,7 some practices, as witness the incident of Judah and
centuries before Hammurabi. Tamar.12 The seal was thus in effect an isotope
of Mesopotamia's cultural expansion and an index
(4) A professional judiciary and the validity of to that country's influence. All this gives new
precedent go hand in hand with the paramount
authority of the written document, its ubiquitous meaning to the term "Fertile Crescent," a mean-
presence, and its reverent handling. This is why ing that was scarcely apparent to J. H. Breasted
when he coined the phrase.
Mesopotamians were such ardent believers in
texts, and more particularly the legal document,8 III
the written word serving as a tangible guarantee
of the rights of the individual in society, and of So much for the essential characteristics of
harmony between society and the cosmos. Mesopotamian law in its domestic operation. Its
strength derived from the premise that law on
(5) A commitment in writing was a commit-
ment not merely to the other party or parties, but earth must be in harmony with cosmic law and
even more so to the higher powers from whom the order. It remains now to examine the dynamic
law stemmed. This solemn obligation was under- capabilities of the Mesopotamian system as evi-
scored by the use of the cylinder seal. Attestation denced by its effect on Babylonia's neighbors. other
by means of a seal impression was markedly more societies of the ancient Near East, and finally the
binding than a signature or a sworn assurance. Classical world and hence ultimately also Western
The cylinder was fundamentally a detachable sur- civilization.
To begin with, Assyria remained to the end
rogate for the person, a piece of oneself.9 In leav-
the bitter political rival of Babylonia. As a so-
ing its impression on a clay tablet, man sur-
rendered himself to the powers of nature, who ciety, however, Assyria was thoroughly Baby-
could then mete out due punishment in case of lonianized-in language, religious and cultural
noncompliance. In exceptionally serious situa- traditions, and particularly in law. There is in-
tions even this ominous pledge was insufficient; deed the inherent probability that the spread of
hence the still more personal imprints of finger- legal concepts was largely responsible in turn for
the other instances of cultural and social coloniza-
nails,10 or impressions of the fringe of the garment
tion. The same holds true of Western Iran in
worn at the time in question were either added or
so far as law and government were concerned.
6 G. R. Driver and
J. C. Miles, The Babylonian Laws To be sure, both Assyria and Elam were ruled at
(Oxford, 1952) 1: pp. 5 ff. one time or another from Southern Babylonia,
7 B. Landsberger, ana ittisu (Rome, 1937). which might have accounted for the nonpolitical
8 Par. 7 of the Code of Hammurabi states explicitly
influence as well. But there are other instances
that a purchase without contract and witnesses exposes
the buyer to suspicion of theft and a possible death where no comparable political factors were at
penalty; cf. also par. 40 of the considerably earlier Code work. The Syrian city-state of Alalah, for ex-
of Eshnunna; see A. Goetze, The Laws of Eshnunna,
Ann. Am. Sch. Or. Res. (New Haven, 1956) 20: pp. 11 II 195. On the legal significance of the seal in gen-
113-115. eral cf. M. San Nicolo, Beitrige zur Rechtsgeschichte im
9 For this function of the seal and its analogues cf. P. Bereiche der keilschriftlichen Rechtsquellen (Oslo, 1931),
Koschaker, Uber einige griechische Rechtsurkunden aus pp. 135-141.
den ostlichen Randgebieten des Hellenismus (Leipsic,
12 Genesis 38: 18. The
point of this incident is not just
personal identification but basic responsibility. In this
1931), pp. 116-117.
10 G. Boyer, Symbolae Koschaker, Studia et Documenta particular instance the seal, as a solemn voucher, literally
(Leiden, 1939) 2: pp. 208-218. made the difference between life and death.

ample, was never dominated by Babylonia; yet who has dealt with both the Biblical and the
it used Babylonian law and struggled with the Mesopotamian material. Yet mere correspond-
Akkadian language as far back as the age of ence in detail does not begin to define the close-
Hammurabi. Just so, the kingdom of Mitanni ness of the relationship involved. It is in the
followed the same course at a time when Mitanni basic concepts of law and government that the
was the leading state in Western Asia. Similarly, strong ties between the Bible and Mesopotamia
Ugarit had its own dialect and employed a local are especially prominent and significant.
alphabetic script for various administrative and In Israel, as in Mesopotamia, man was never
literary purposes. When it came, however, to the source of the law but only its servant. In
legal and diplomatic matters, Ugarit fell back on both lands law was a gift from on high, a way of
syllabic cuneiform and the Akkadian language, life that made all the difference between civiliza-
for such was the accepted practice in that part of tion and barbarism. The Bible epitomizes this
the world. The Hittites, for their part, composed approach in its term "Torah." If the Torah were
their legal code in their own distinctive kind of no more than a collection of legalistic norms,
Indo-European or Indo-Hittite. Yet the very Israel could scarcely have pointed the way to
fact that the Hittites produced a law code alto- spiritual and social progress. Yet it was in
gether, one which reflects Mesopotamian influence Mesopotamia that the process got underway,
not only in script but also in concept, places the thanks to the realization that mesarum without
product within the province of Mesopotamian kittum (or sedeq without 'emet in biblical termi-
jurisprudence. nology) would be but a blind alley.
It is thus apparent that one of the outstanding As in Mesopotamia, moreover, so too in Israel
characteristics of Mesopotamian law was its strong the law was the real backbone of society. This is
appeal to other cultural centers. Where the ex- why legal analysis was taken up with renewed
ported goods still carry their original wrapping vigor in the Mishnah, and eventually attained its
and labels-the script, the language, and the formal fullest scope in the Babylonian Talmud. This
document 13-the ultimate source can be identified last achievement surely owed a great deal to the
at a glance. But even where such identifying circumstance of its Babylonian locale. Although
marks are absent, the content can still be traced to historic Mesopotamia had expired centuries earlier,
its home base. A primary case in point is fur- her legal traditions were far from extinct. Small
nished by the Bible. wonder, therefore, that the Babylonian Talmud
This is not to dredge up once again the old pan- teems with loanwords not only from the Akkadian
Babylonian heresy. On the contrary, it is now in- but even from the antecedent Sumerian. Thanks
creasingly apparent that the biblical process as a to such interconnections, the Talmudic and the
whole originated in a resolute protest against the cuneiform sources have much to offer each other
religious orientation of Mesopotamia.14 But this in terms of illustration and clarification; this
does not imply by any means that the Biblical enormously rich mine of information is as yet
leaders renounced everything that stemmed from virtually untapped. To this very day, the ortho-
east of the Euphrates. There is scarcely a section dox Jew uses a Sumerian term when he speaks of
of the Old Testament, especially in its early por- divorce. And when he participates in the reading
tions, that fails to reflect some form of influence of the Torah lesson in the synogogue, he still
from Abraham's homeland-which is precisely touches the pertinent place in the scroll with the
what one should expect in the circumstances. fringe of his prayer shawl, wholly unaware of the
And nowhere is such influence more pronounced fact that he is thus re-enacting the scene in which
than in the general field of law. the ancient Mesopotamian impressed the hem of
Whether one takes up the Book of the Covenant his garment on a clay tablet, as proof of his com-
in Exodus, the legal material in Leviticus, Num- mitment to the provisions of the legal record.15
bers, or Deuteronomy, or pertinent passages in The language and the persons and the circum-
various narrative accounts, the most intimate kind stances have changed, the objectives are different,
of connection is immediately apparent to anyone but the symbolism remains the same after some
forty centuries.
13 Koschaker, "Keischriftrecht,"28.
14Cf. my paper, "Three Thousand Years of Bible 15 The pertinentformula
appears in the documentsfrom
Study," Centennial Review 4 (East Lansing, Mich., Nuzi as follows: "[The participant] left an impression of
1960): 206-220 (esp. p. 228). the hem of his garment in the presence of witnesses."

Another case in point is the legal material in sis, it sprang from man's hope to achieve harmony
Old Aramaic. The papyri from Elephantine, at with the cosmos. The question that remains to be
the southern extremity of Egypt, a small island posed is whether these social attainments in the
manned by a Jewish garrison in the fifth century ancient Near East had any important bearing on
B.C., represent legal records that are unmistakably the Classical world. The problem can be stated at
Mesopotamian in contents and phraseology.16 So this time only in barest outline.
strong was the underlying legal tradition that it A direct comparison of cuneiform and Classical
could be maintained, in a different tongue and law is all but ruled out by chronological considera-
amidst a sharply dissimilar society, nearly two tions. Legal documents in Greek do not turn up
thousand miles from its ultimate center of origin. until the sixth century B.C., and then only in a
There is further the instance of Islamic law. trickle. The Twelve Tables of the Romans are
So many heterogeneous traditions converge in later still. Moreover, what little we do get at
that vast conglomerate that to separate the com- first is admittedly primitive, and hence reflects
ponent parts is a task calling for a combination of an early stage of development.18 In short, where
specialists. Nevertheless, the fact is plain that formal law was concerned, the Classical lands got
this discipline did not begin to thrive until Iraq- off to a relatively late start. By then, Assyria
Mesopotamia's Arabian successor-had taken a had already retired from history, and Babylonia
hand in it. Devotion to law was evidently in the was no longer a self-ruled country. Cuneiform law
local air, or soil. as such had only a few centuries of reflex existence
A brief word, in passing, about the situation in left to it. In these circumstances there is little
ancient Egypt. No country could have achieved opportunity to synchronize legal data from the out-
Egypt's cultural record, and maintained it over a going East with those from the emerging West.
comparable period of time, without a solid frame- In their attempts at a comparative appraisal,
work of internal law. The only question, then, is nevertheless, some students have sought to trace
the kind of law that prevailed there. The answer the Twelve Tables and the prior legal material
is not far to seek. The same article of faith that from Greece all the way back to the Code of
deified the pharaoh made it inevitable that he be Hammurabi.19 All such efforts are foredoomed to
also the source and master of all law. It is no failure. Even in Hammurabi's time, legal imports
surprise, therefore, that Egypt has yielded no evi- from Babylon were adjusted to local needs and
dence of any kind of legal code impersonally con- practices. Nor were Hurrian and Hittite and
ceived, since the authority of such a code would Biblical laws direct transcripts of Mesopotamian
have competed with the personal authority of the models. How, then, could there be a direct cor-
pharaoh.17 Nor can the virtual absence of legal relation between Classical law and Mesopotamian
records-there are fewer such witnesses from all prototypes of far away and long ago?
of Egypt over a period of two millennia than there The question, therefore, is not so much one of
are from a single stray house in Mesopotamia outright borrowing as of geographic and chrono-
representing no more than two centuries-be logical links. In due course, Hellenism was to
charged to pure coincidence. The obvious reason constitute a bridge between the Near East and
was the dominant concept of law in Egypt. By Rome, which carried legal traffic among other
the same token, Egyptian law had scant appeal kinds. To quote Paul Koschaker, himself a pro-
for outsiders. As suggested above, complex issues fessor of Roman jurisprudence, "In my opinion
can sometimes be reduced to surprisingly simple there can be no doubt about the inclusion of
explanations. oriental legal matter in Roman law-using the
IV term 'oriental' in its broadest sense to include
Hellenistic material as well." 20 But the Hellen-
There is thus abundant and compelling evidence istic age cannot be pushed back past the middle
that the legal tradition which originated in Meso-
potamia had enough vitality to exceed its native 18 For
present purposes it will suffice to refer to the
limits in time as well as in space. It was a living very general account of J. Wigmore, Panorama of the
and life-giving tradition because, in the final analy- World's Legal Systems (Washington, 1928), chs. 6-8.
19Cf. M. Miihl, Untersuchungen zur altorientalschen
16 See especially E. Kraeling, The Brooklyn Museum Gesetzgebung(Leipsic,1933); for
und althellenistischen
Aramaic Papyri (New Haven, 1953). Koschaker's criticism see his "Keilschriftrecht":31, note
17 J. A. Wilson, The Burden of Egypt (Chicago, 1951), 3.
20 Ibid., 29.
pp. 49-50.

of the first millennium B.C., let alone leave room the Mesopotamian pioneers promoted a way of
for the required incubation period. The contacts, life that militated against autocracy in government,
then, must be sought elsewhere and much earlier. it would be an anachronism to persist in the claim
We know, of course, that the Phoenicians that the Greeks' aversion to authortaranism was
flourished at the turn of the second millennium, wholly a homegrown product.
and that farther back the Hittites were a dominant When it comes to the development of Roman
power. Both peoples were in close touch with law, there are many threads to disentangle. One
the Aegeans. Indeed, Hittite relations with the has to reckon with the influence of Greece, eventual
West were intimate enough to be reflected in contacts with the Near East itself, and the grow-
Greek mythology and literature.21 Nevertheless, ing administrative pressures of an increasingly
the case we are after does not have to be made unwieldly political structure. Each of these factors
abroad. Aegeans themselves have been positively must have had its effect on Roman law. The re-
identified in Syria in the fourteenth century B.C. sults could scarcely be homogeneous. At a mini-
In the port of Ugarit a special quarter was oc- mum, Rome was indebted to the Near East,
cupied by Minoans who had established there a though indirectly rather than directly, for the law
merchant colony. Similar trading posts existed in code and the legal document. That these instru-
all likelihood elsewhere along the Phoenician coast. ments did not in the end prevent absolutism was
Now trade was the one occupation above all others due apparently to internal developments. But
in which the written document was a necessity in one cannot help wondering, just the same, whether
all areas within the reach of cuneiform law. As Rome's growing familiarity with Egypt, the one
was pointed out above, there are many business Near Eastern exception to an otherwise consistent
documents from Ugarit itself which were written, anti-autocratic norm, did not play its part in
significantly enough, not in the local alphabet but bringing absolute rule to Rome.
in syllabic cuneiform and in the Akkadian lan- Today, though we freely acknowledge our mani-
guage. The Minoan traders could not escape in- fold debt to Greece and the Bible, we do not al-
volvement in such written business transactions. ways appreciate the extent to which Israel and
In due time, they were bound to copy the process Greece contributed to one of our fundamental af-
in dealings among themselves. As a matter of fact, firmations, namely, that truly constructive power
samples of Minoan script have actually turned up is power vested outside the agent who wields it.
in Ugarit, for law and literacy went hand in hand. This abiding truth, however, was discovered long
The subsequent adoption of the Phoenician alpha- before the start of the Biblical and the Greek ex-
bet by the Greeks was due undoubtedly to similar periences. It was first glimpsed in ancient Meso-
commercial intercourse. Thus it was barter, not potamia; and once glimpsed, it was held on to
Homer, that made the Greeks literate. Progress tenaciously as a source of strength at home and an
often travels by such devious paths. example to others abroad.
Now when traders take over a script in com- In over-all retrospect, we are justified in adding
pliance with the legal demands of their profes- to the proverbial maxim Ex Oriente Lux a fitting
sion, they have been exposed not only to the twin with the name of Ex Oriente Lex. The light
juridical details but also to the underlying con- in this instance is in many ways but another aspect
cepts. Since the ideas that shaped the law of of law. And the region of the Orient which had
21 much to do with the progressive dissemination of
Cg. H. G. Giiterbock, "The Hittite Version of the
Hurrian Kumarbi Myths: Oriental Forerunnersof both light and law was ancient, but by no means
Hesoid,"Amer.Jour.Arch. 52 (1948): 123-134. outmoded, Mesopotamia.