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into Hammurabi 17 some of the old laws were, but in the Semitic speech of the Ak kadians and . He then had it engraved upon a splendid shaft of stone. At the top was a sculptured scene in which the king was shown receiving the law from the Sun-god. The new code was then set up in the temple of the great god in Babylon. This shaft has survived to our day, the oldest preserved code of ancient law. Fragments of other copies on clay tablets, the copies used by the local courts, have also been found. Hammurabi’s code insists on justice to the widow, the orphan, and the poor; but it also allows many of the old and naïve ideas ofjustice to stand. Especially prominent is the principle that the punishment for an injury should require the infliction of the same injury on the culprit—the principle of “an eye for an eye, a tooth for a tooth.” Injustice often resulted. For example, when a house fell and killed the son of the householder, the guilty builder must also suffer the loss of his son, and the innocent son was therefore condemned to die. Mar riage was already a relation requiring legal agreements between the man and his wife, and these are carefully regulated in Hammurabi’s code. Indeed the position of women in this early Babylonian world, as in , was a high one. Women engaged in business on their own account, and even became professional . Thus regulated, the busy Babylonian communities prospered as never before.

A Modern Hammurabi

SABATINO MOSCATI

The processes of scholarship continue, in Near Eastern studies as in every other discipline. New materials come to light, older docu ments are reinterpreted, former conclusions are revised. The follow ing selection, taken from Sabatino Moscati’s The face of the Ancient Orient, A Panorama of Near Eastern Civilizations in Pre-Ctassicat Times, represents the view of Hammurabi and his code in this generation as the selection from Breasted represents the view of a past genera tion. Assyriologist and one-time director of the Center of Semitic Studies, the University of Rome, Moscati provides the best modern introduction to the , reflecting his substantial schol arship, up-to-date research, and judicious conclusions. 18 Makers of World History The student should take note of a few important points of differ ence with Breasted. For example, other earlier law codes have now been discovered, such as the Lipit-Ishtar Code, predating Hammu rabi by more than a century and a half, or the Laws of , predating him by some two and a half centuries. These findings tend to diminish the originality of Hammurabi’s code if not its im portance and to link the Babylonians more closely to the earlier Sumerians in legal matters as in so many other areas of culture. The ordeal by water, for instance, is a Sumerian survival. But there are Babylonian innovations. Hammurabi’s code reflects a more com plex society and such practices as the marriage contract and legal ized polygamy, unknown to the Sumerians. And on the darker side, the principle of retaliation or punishment in kind is a new Semitic principle of the penal law, not an “old and naive idea,” as Breasted thought.

As we now know, this code is not the only, nor the oldest one in Mesopo tamia, and we can no longer count on its originality; but it still remains the most complete and organic synthesis of law that we possess, and therefore it most fully documents its epoch and environment. In its literary form, the Code follows the scheme of Sumerian times: prologue, laws, epilogue. The laws still have that analytic, piecemeal quality characteristic of the Sumerians; we find enunciated not gen eral principles, but individual cases with their appropriate solutions. But considerable differences are to be noted in the content of the laws. Those relating to persons reveal a society divided into three classes, which approximate to the conceptions embodied in the mod ern terms: patricians, plebeians, and slaves.12 Patricians and slaves correspond to the two classes already found among the Sumerians, but the concept of plebeians is new, in that the distinctive feature of their state is no longer dependence upon the palace, as in the case of the “partly free” Sumerians, but a different legal status: If a patrician put out another’s eye, his eye shall be put out. If he break another’s bone, his bone shall be broken. If he put out the eye or break the bone of a plebeian, he shall pay a mina of silver. The law relating to the family treats the father as its head. Mar riage is preceded by a betrothal gift from the bridegroom to the

‘2These are the same terms that are rendered in the text of the code by the terms seigniors, commoners, and staves. There are also minor differences in the rendering of the quoted passages below.—En. Hammurabi 19

bride, the so-called “acquisition price,” something of which there is no evidence in Sumerian law. A further innovation, or, at least, something that cannot be traced back to Sumerian times, is the written contract: If a patrician has taken a wife, but has not made a contract with her, that woman is not his wife. Polygamy is permitted, whereas Sumerian marriage was mono gamic. Divorce is granted for an adequate reason. For example: If a patrician has been taken prisoner and there is not sufficient in his house to live on, his wife may enter the house of another; that woman shall incur no blame at all. The law of inheritance is based on legitimate succession. The inheri tance is divided between the male heirs, and daughters have no rights except when there are no sons; but they do have the right to share in usufruct, and to a dowry. Wills are not made, but their place is often taken by contracts of adoption. Property rights are highly developed and organized, as one would expect in an evolved sedentary society. There are deeds of sale and purchase, hire and lease, commercial partnerships, loans on interest, and so on. The penal law is dominated, so far as patricians are concerned, by the law of retaliation. We have already noted the application of this law: an eye for an eye, a tooth for a tooth; and we have observed that the most recent discoveries lead us to regard this law as of Semitic introduction; at any rate, it is unknown to the more ancient Sumerian legal provisions, which explicitly stipulate the payment of damages. An interesting feature of the Hammurabi Code is the punishment inflicted on medical practitioners for any ill consequences arising from their operations: If a surgeon has operated on a patrician with a bronze knife, and has

killed him . . . his hands shall be cut off.

The penalty prescribed for negligence in an architect is more in line with our own legal conception: If a builder has constructed a house for anyone and has not made his work solid, so that a wall has fallen down, that builder shall repair the wall at his own cost. Judicial proceedings take place beforejudges, to whom the litigants apply when they cannot reach a private solution of their dispute. Thus the law is subjective, not objective: if there is no private plaintiff there is no trial. During the hearing, both documentary and oral to

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Civilizations,

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written

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Press,

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of

Babylon

Hammurabi Sumerian

and

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Great

by

brilliant

History

Millennia, Rome Adventure (London:

1976)

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of

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recommended

and (New

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1965),

England:

History

A

Reiner

Press,

E.

(London:

East

Archaeology

Mesopotamia:

that

with

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Two first

renowned

culture History

Also

and Heartland

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recommended

Press,

Mesopotamia,

The

Chicago

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Waters

interpretive

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The

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and

Mesopotamia

the

from

are

are (New of

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(Chicago

Review

Intellectual the

Babylon largely

Central

Darkness:

by

on

1977).

and

continuity

Babylon:

folkstone,

irrigation

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Lloyd,

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Letters

Archaeological

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University

former work

Oates, is

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Press, and

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archaeologists

Valley,

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Mesopotamia,

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Clay Use

emphasizes

University

the

its

et

to

York:

Yale

That

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of

on

Joan

Treasures

Oppenheim

completed

on

pattern

1967).

and of

recommended letters

finegan,

Indus

general

either McCormick

In

Age 1989)

York:

Land

1959). Amorite

Civilization

Chicago

two

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Jacquetta

readable

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Leo

Oppenheim,

(New Samuel

of

author

Colorado,

the

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works

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Robert

Iran

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subculture

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treatment

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1972),

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A.

1978).

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serious

and

Private

Jacobsen,

of there

the

Henri

Doubleday, surveys:

emphasis

England

1979)

Near

(Boulder,

Settlement

Babton

Dawson,

Chicago Mesopotamia. the University

. 1969).

treatment

scholar.

Hammurabi’s

and

in

Mesopotamia, illustrated

of

Probably of

the

of

and

Saggs,

from

Assyriologists.

University Civilization,

Religion Sumerian sensitive

and

of

York: East

and

is

synoptic

in

Hudson, (Chicago

3).

F.

Finally,

Ancient

Thorkild

introduction

ancient

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Hutchinson,

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lished

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states learned use

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197 Civilization

London: W.

Assyriologist

Dead

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Life distinguished

and Press

Mesopotamia

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(New

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Cam

Gadd,

J.

(Chicago

Tite

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Cambridge

in

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profound

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chapter

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1946),

(Cambridge:

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his

I

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Press,

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See

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II,

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Vol

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History

interpretation.

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1973).

of

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Makers

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and stimulating Chapter University Man,

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