Documents that chronicle legal transactions are often one of the most fruitful sources for legal historians of the Ancient Near East. These are texts that record property sales, marriage agreements, wills, loan arrangements, rental contracts, trial records, letters, and the like. Reading these documents uncritically, however, can also run the risk of a distorted view of Ancient Near Eastern law. Such documents do not carry legislative force; rather, they operate within the bounds of existing law. As Westbrook states, ‘‘A contract is not direct evidence of legal norms, but of the reactions of the parties to those norms. . . The norms of positive law remain a shadowy presence behind the terms of the individual transaction, still to be reconstructed by the historian’’ (2003: section 1.1.2.6).
Let us take marriage agreements as an example. Several records of marriage agreements from the Old Babylonian period state what should be done to the wife if she divorces, or attempts to divorce, her husband. They specify rather severe punishments. The following text, BAP 90 (Meissner 1893), is typical:
Rimum, the son of Shamhatum, married Bashtum, the daughter of Belisunu, the priestess of JSamas and the daughter of Usi-bitum. Belisunu has received [?] shekels of
Silver as the bride-price of Bashtum. Her heart is satisfied. If Bashtum says to Rimum her husband, ‘‘You are not my husband,’’ Bashtum will be thrown into the river (to drown).
If Rimum says to Bashtum his wife, ‘‘You are not my wife,’’ he will give her 10 shekels of silver as her divorce payment.
Documents like this one might lead to the conclusion that wives were forbidden by law to divorce their husbands during this period. After all, if the woman who was part of this marriage tried to divorce her husband, she would have suffered the ultimate punishment, death. But, because contracts do not constitute statutory law, this conclusion is unwarranted. The very fact that divorce by the wife was treated as it was in this document points to the opposite conclusion: that divorce by a wife was legal. The woman above was not prevented from divorcing her husband by law but by contract. If divorce by a wife were already treated in this manner by societal law, the contract would have been silent on the issue. Contractual stipulations, therefore, should not automatically be equated with law.
Trial records are another important source of law for the legal historian, but they, too, must be handled with care. Owing to the fact that extenuating circumstances often influenced court decisions, not every verdict in a trial can be assumed to reflect precisely the law governing the issue at trial. To compound the situation, large numbers of extant trial records contain no verdict, leaving scholars at a loss to know how the ancient courts ruled on many of the matters brought before them.
Even when it comes to trial law and procedure, trial records can be perplexing. The one site from which more trial records come than any other is that of ancient Nuzi in central Iraq. In a number of instances at Nuzi, one of the parties at trial brought one or more supporting witnesses, and it was the testimony of those witnesses that won the case for that party. Some important details, however, were not made clear. To begin with, there are no recorded cases in which both parties brought witnesses to court (Liebesny 1941: 132-3). It seems hardly possible that this situation never occurred, but we simply do not know how judges acted when confronted by witnesses from both sides. In other trials, a party brought witnesses, the witnesses testified in favor of that party, but the judges were not satisfied. Instead they required that one of the parties or their witnesses go through a particular ritual, the lifting up of the gods (Frymer-Kensky 1981). It was by means of this ritual that the winner was determined. The document JEN 347 (Chiera 1934) provides an example:
Tehiptilla entered into a dispute, concerning a stolen sheep, with Arsimika before the judges. The witnesses of Tehiptilla gave testimony before the judges that Arsimika was in the process of stealing the sheep of Tehiptilla from the midst of the [pen?], and the witnesses caught him in the act. The judges spoke to Arsimika and said, ‘‘Lift up the gods before the witnesses.’’ Arsimika lifted the gods before the witnesses. Tehiptilla won the case. And the judges imposed upon Arsimika a fine of 12 sheep to be paid to Tehiptilla.
It is not clear why the judges at Nuzi would issue an immediate verdict after hearing the testimony of some witnesses and why they would call for the lifting-of-the-gods ritual in other instances when they have heard witness testimony. Trial records are often drafted tersely, and the procedural law they reveal is sometimes rather obscure.
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