Gaps in the Law

Law codes, records of trials and legal transactions, royal edicts, as well as other types of documents such as lexical lists and letters, provide the legal historian of the Ancient

Near East with an untold wealth of data. These sources require careful treatment, since they reflect Ancient Near Eastern law imperfectly, each in their own way. For the historian studying one particular society within the Ancient Near East another type of problem arises. The sources that relate specifically to one society fail to provide a complete picture. Inevitably, there will be significant gaps in the reconstruction of that society’s law. In light of this, is it methodologically legitimate to look to the data from other Ancient Near Eastern societies in order to fill in those gaps?

This question speaks to the issue of continuity versus discontinuity. Some have argued that the societies of the Ancient Near East operated on a shared set of legal customs and procedures, that is, there was a great deal of continuity from one legal system to another (Westbrook 1985). There certainly were differences in the details. Nevertheless, the commonalities were so great that one may speak of a common legal culture that spanned the Ancient Near East chronologically and geographically. According to this view, it is legitimate, even desirable at times, to look to one society to fill in the gaps in the law of another.

There are also strong advocates for a view of discontinuity, though they often differ on how to understand the nature of the discontinuity and will allow for varying degrees of continuity (Finkelstein 1981: 17-20; a number of the essays in Levinson 1994 that respond directly to the work of Westbrook; Yaron 2000). Some Ancient Near Eastern societies were separated from each other by a great swath of distance, time, and language. Why should the law of one be presumed to reflect the law of another? Furthermore, it is difficult for the proponents of discontinuity to conceive how a common legal culture would have spread across the Ancient Near East. It may be understandable that certain legal traditions were spread by the scribal schools that were prevalent in Mesopotamia. But would this transmission of legal customs and concepts have made its way into western Syria and Palestine?

Both points of view - continuity and discontinuity - face difficult questions. The continuity school has no clear evidence to show the dissemination of law from one culture to another. It draws inferences from the legal commonalities among various Ancient Near Eastern societies, but it lacks a clear mechanism for explaining how those commonalities came to be. It is these very shared features, however, that pose a problem for the discontinuity school. Is their existence due simply to coincidence or to the characteristics that agrarian societies from that region of the world should be expected to share? A number of studies have drawn attention to points of connection between the legal systems of different Ancient Near Eastern societies, far removed from each other in terms of both time and space. This phenomenon deserves an explanation, but a truly satisfying one remains elusive.