This can best be demonstrated with an issue that has received a great deal of scholarly attention, namely, the nature of the so-called law codes or, more accurately, law collections. Nine such documents have survived - seven in the form of cuneiform on clay and two from the Hebrew Bible. They are: the Laws of Ur-Namma (LU), the Laws of Lipit-Ishtar (LL), the Laws of Eshnunna (LE), the Laws of Hammurabi (LH), the Hittite Laws (HL), the Middle Assyrian Laws (MAL), the Neo-Babylonian Laws (NBL), the Covenant Code in Exodus 21-3, and the Deuteronomic Code in Deuteronomy 12-6.1 These codes or collections have been the primary focus of much of the legal-historical study of the Ancient Near East.
The most famous of these is LH, and its suitability as a source for studying Ancient Near Eastern law has been under scrutiny for some time (Kraus 1960; Westbrook 1985; Bottero 1992a; Fitzpatrick-McKinley 1999; Roth 2000). It contains approximately 280 law-like stipulations. A cursory glance at the code’s epilogue would seem to show that these stipulations formed the law of the land. There, King Hammurabi of Babylon states:
In order that the mighty not wrong the weak, to provide just ways for the waif and the widow, I have inscribed my precious pronouncements upon my stela... Let any wronged man who has a lawsuit come before the statute of me, the king of justice, and let him have my inscribed stela read aloud to him, thus may he hear my precious pronouncements and let my stela reveal the lawsuit for him. . . May any king who will appear in the land in the future, at any time, observe the pronouncements of justice that I inscribed upon my stela. May he not alter the judgments that I rendered and the verdicts that I gave...(Roth 1997: 134)
A close analysis of the actual stipulations in the code reveals, however, that the code, in and of itself, would not have made for very effective law. First, the collection of rules in the code is far from comprehensive, omitting a number of important issues, including murder.2 Second, many of the provisions in LH assume a certain amount of legal savvy on the part of the reader. This suggests that there was a substantial body of law apart from LH, and the authors of LH believed their readers would have knowledge of it. Third, quite a few of the laws treat situations that were unlikely to occur; they appear to be essentially hypothetical.3 In addition to all of this, it is not at all clear that LH was treated as law by the ancient Babylonians themselves. Perhaps the most telling sign is that LH was never cited in any of the hundreds of trial records stemming from the same general time as LH as the legal basis for a trial court’s verdict. Other documents of practice - legal texts such as contracts and letters - also omit mention of the code (for two possible but uncertain references to LH, see Roth 2000: 22-9). This is in contrast to the frequent reference in such documents to royal decrees and edicts, about which more will be said below.
The purpose of Hammurabi’s publication of these laws, then, must have been for some other reason than to enact legal statutes for the governing of his land. After much study of the collection, along with its prologue and epilogue, most scholars now agree that the code was created to justify and legitimize Hammurabi’s reign. Simply put, LH is political propaganda. Its target audience was the gods and the ruling elite, and its provisions were meant to show the wisdom, fairness, and equity of the king. The prologue to LH virtually says as much. Hammurabi himself probably had little to do with composing the individual provisions in LH and most likely assigned the task to a group of his officials and scribes.
The other law collections are subject to the same basic critique. Based on their own prologues, LU and LL also appear to be propagandistic tools in the hands of their respective kings. The biblical codes are used in the service of a religious agenda. LE and NBL come to us on scribal exercise tablets. They may well have been copied from larger monumental inscriptions and, thus, may be interpreted in the same manner as LH, though it is conceivable that they were really nothing more than scribal exercises. Both HL and MAL come from royal archives and may have had some applicability within the confines of the palace personnel, but there is no indication that either was intended as binding legislation. Thus, it is likely that the primary purpose of each of the codes had little or nothing to do with establishing societal law. To be sure, they yield important insights into the various Ancient Near Eastern societies from which they come - insights into royal ideology, politics, scribal training, and religion. But do they tell us anything about law?
This question is still one of sources, but it takes us one level deeper. We must now ask what were the sources for the provisions in these law collections. This is where scholarship diverges and disagreements are keen. The starting point is usually the idea that the codes are the product of the same pseudo-scientific efforts that gave us other collections or lists: god lists, astronomical lists, omen lists, mathematical lists, and medical lists (Bottero 1992a). All of these lists appear to be products of scribal schools; thus, it seems reasonable to conclude that the law codes - or law lists - are as well. But whence did the scribes obtain the individual stipulations contained in the codes? Did they simply make them up? For some of the provisions, particularly the ones that seem more hypothetical, this may in fact be what happened. Some have argued, though, that virtually all of the provisions in the law codes derive entirely from scribal intellectual activity and constitute scribal wisdom or, as one scholar dubs it, scribal advice (Fitzpatrick-McKinley 1999). According to this view, there is very little connection, if any, between the provisions in the codes and the law that was in effect in Ancient Near Eastern societies. Conversely, other scholars believe that the codes are an excellent source for the historian to learn about Ancient Near Eastern law (Westbrook 1989; Greengus 1995). They argue that the scribes drew heavily upon the law that was being practiced in their societies as they formed the codes or law lists. From this perspective, then, the stipulations of the codes are descriptive, rather than prescriptive, and they are an important point of access into the law of that time.
There is data to support both points of view. Several studies have highlighted points of correspondence between contemporary practice and certain provisions in the law collections (Petschow 1984; Ries 1984; Oelsner 1997). It is true that documents demonstrating such correspondence are not abundant, but they do raise the possibility that the codes contain descriptions of operative law. On the other hand, there are studies that have shown that some provisions in the codes were not followed in practice - that there are, in fact, contradictions between what was done in real life and what was called for by the codes (Jackson 1973: 10; Fried 2001: 74-5). There is not, however, an abundance of this material either. Ultimately, it seems that the law collections represent the practiced law of their societies accurately to some degree and inaccurately to some degree. But in either case, we do not know to what degree. Further research may help to clarify the situation.
World History
