The Administration of Justice Across Mesopotamian History Aug 13, 2019 5:42:49 GMT -5
Post by us4-he2-gal2 on Aug 13, 2019 5:42:49 GMT -5
How did the Administration of Justice Develop over the Course of Mesopotamian History?
Description: the following essay represents one of two final writing assignments I completed at the end of the course work portion of my student career. The various headings below should serve as an introduction to the complexities of the discussion of Mesopotamia law and justice.
2.0 High Legal Authority in the Third Millennium
3.0 Law Codes and mīšarum-acts (Royal Decree type 1)
4.0 High Judicial Authority in the Second Millennium
5.0 High Judicial Authority in the First Millennium - Assyria
5.1 High Judicial Authority in the First Millennium - Babylonia
6.0 The Development of Local Authority in Mesopotamia
7.0 The Court, Court Procedure, and Jurisdiction
The following short essay will address the question: how did the administration of justice develop over the course of Mesopotamian history? The term “administration of justice” has a certain usage in Assyriological literature, it refers particularly to the legal activities carried out by the urban hierarchy — the king and his officials at the state and provincial levels, and the assembly at the municipal level. A reoccurring aspect of the study of the Mesopotamian legal history has been the difficulty in conceptualizing a legal system so far removed from our own; and so, while Landsberger recognized the essential invalidity of the term “law code” already in 1932, the problem of categorization is still heavily debated today (Rubio 2009, 32). What then, was the real raison d'être of the Mesopotamian law codes? And if statutory law was not the fundamental modus operandi of judiciary, what was? In investigating the administration of justice, the question of how law was promulgated is every bit as important as question of who did the administering.
An observation worth repeating is that, the way in which the administration of justice was attempted is “directly indicative of the nature of the state” (Jursa 2014, 36). This study is as much about the Mesopotamian state, therefore, as it is about the enchanting vagaries of Mesopotamian law. In the following sections, the development of high legal authority will be charted from the early third millennium to the late period, sections 2.0 – 5.1; due to space limitations, a full diachronic treatment is not possible and evidence from the late second millennium is omitted here. Local judicial authority, being collective, is categorically different and is treated in section 6.0. The execution of judicial administration is discussed in a section on the court and court procedure, section 7.0.
2.0 High Legal Authority in the Third Millennium
The sources for reconstructing the legal history of the third millennium are limited for several reasons. Texts bearing on legal matters emerge in the early to mid-third millennium in the form of land transaction documents (written on stone and often difficult to interpret); from the 24th and 23rd centuries, the edicts of Enmetena and Urukagina are extant; a law code is extant from the Ur III period; additionally, information from non-legal sources rounds out the picture to an extent (Wilcke 2007, 25-27; Wilcke 2003, 141-142). The first substantial corpus of texts bearing on litigation comes from the Third Dynasty of Ur (Culbertson 2009, 1). These sources are selectively discussed below.
A truism, the essential of which must inform any discussion of Mesopotamian legal authority, is that for most of Mesopotamian history legal authority was not exercised by a professional judge. Instead, the highest legal authority was that of the gods, secondly that of the king, thirdly that of his governors and his officials, in that order; to a large extent, then, divine and royal authority encompasses and defines justice in Mesopotamia (Westbrook 2006, 39; Wilcke 2003, 150; Van De Mieroop 2013, 279). However, this hierarchy of judicial authority is far from readily apparent in the extant materials from the third millennium, and the evidence must be collected from a variety of sources.
Private Legal Documents: dating from the early to mid-third millennium, the earliest private legal documents are fifty-seven land tenure documents published in OIP 14. Written on stone media (often stelae or obelisks) they are sometimes termed “early kudurrus” and record multiple transactions of real estate. These documents contain a description of “the object sold (measurements, location), the buyer’s and seller’s names, a description of the payment, and a
reference to a feast” (Wilcke 2003, 166) A late example is the obelisk of Manishtushu which records “the king’s acquisition of 3,420 hectares of land from eight groups of sellers in northern Babylonia” (Van De Mieroop 2013, 278). In the Ur III period, similar documents, and a related category dealing with the sale of humans and animals, were written on clay (Van De Mieroop 2013, 278).
In assessing the value of this corpus for the evolution of legal authority, the value is limited. There are, in fact, numerous times in which an énsi is mentioned in the early corpora as a seller or buyer of land (OIP 14 34 iv 11; 35 ii 16 and 41 v 25). This is incidental, however, and the purchasing party is not always royal. It also emerges that, in the early periods, the alienation of land did not rely on the authority of the king as in later periods (Gelb, Whiting and Steinkeller 1991, 17). These documents serve as records of transaction and carried legal force, but do not bear on the property or land disputes, for which one must turn to the di-til-la texts.
The di-til-la Trial Records: first making an appearance in the Ur III period, the di-til-la trial records contain essentially the same information as later private litigation documents; however, while later trial records were retained by the parties involved in the dispute, a distinction is that the di-til-la records were drafted by the central administration in order to be filed in its archives (Westbrook 2003a, 8; Lafont and Westbrook 2003b, 193). Yet this fact, together with the frequent translation of di-til-la as “completed case,” should not evoke notions of top-down criminal prosecution. The etymology of the Sumerian word di, typically translated “legal case,” has proved problematic: it does not derive from Akkadian dīnum (as has sometimes been suggested) on account of the omissible d consonant (the technical normalization should be di.d). The basic lexical value of this noun seems to derive from the Sumerian verb di, which is the imperfect form of dug “to speak” — Wilcke, in fact, explains the meaning of di.d as simultaneously “speaking” and “judgement” (Sommerfeld 2006, 61; Wilcke 2007, 41). Culbertson’s 2009 study of the trial records from the Ur III provinces helps to nuance the legal dynamic of this corpus, which overwhelming involves civil lawsuits issuing from the bottom up. According to this finding, the proceedings in question were driven by “local, competitive forces among urban, provincial families of elites who sought to maintain and create power by way of local disputing traditions” rather than a top down enforcement of law as an extension of state power (Culbertson 2009, 16). However, in addition to texts which clearly involve a dispute between two parties, the notation di-til-la is also found in texts which deal with non-adversarial situations, such as marriage pacts. The solution, for Culbertson, is to understand that while a di often involves a dispute, the basic implication of the term is merely that two parties deliver oral statements to authoritative entities in public (in order to officialise an arrangement) (Culbertson 2009, 54). The participation of judicial authorities is thus implicit as the corpus attests:
BM 106427 (Umma): “Alu son of Lugal-inim stole sheep belonging to Akala son of Hurunu. Because he stole the sheep, Lugal-inim has cut off Alu as his heir. Before Ur-Mami… Ur-Manišdu, his (?) son, started a di before the governor [énsi]. He cut-off the status of heir” (Culbertson 2009, 207).
BM 95843 (Lagaš): “Case Closed. Witnesses [swore that], Igizubara, when alive, appeared and declared to Ur-Baba, his son, “by the king, you will indeed not be my heir.” Igizubara [removed?] Ur-Baba as heir… [PN was the maškim. Lu-dingira and Ur-Ištaran were its judges. Šu-Suen I” (Culbertson 2009, 203).
As fleeting and opaque as these accounts are, scholars have demonstrated a complete overlap of the judicial officiary and the imperial hierarchy, with the adjudicating functionary in the provinces being, in some cases, the énsi, more often being a di-kud (an official functioning as a “judge” although his primary profession is, as a rule, not specified), or even in rare cases, the sukkal-mah (grand vizier) (Lafont and Westbrook 2003, 193). The direct involvement of the king is rarely attested, although this is likely a limitation of the evidence (only a minor number of legal texts from the period have so far been unearthed from the central cities of Ur and Nippur). Of the two hundred and fifteen legal texts edited in Falkenstein’s Die neusumerischen Gerichtsurkunden, only a single exemplar (Prozeßurkunde 114) contained a reference to the king’s participation: di-díb-ba-lugala “Rechtsspruchgewährung durch den König” (Falkenstein 1956, 36). The king’s indirect involvement is indicated by i) the participation of di-kud lugal “judges of the king” which is attested in four di-til-la texts from Nippur; and ii) a number of di-til-la texts which attest to the fact that the lu2 kin-gi4-a lugal “royal messenger” could function as maškim or witness (Culbertson 2009, 9, 158-161). In terms of the involvement of the provincial administration, a small corpus of court records from Umma indicate the frequent involvement of (variously) the énsi, the maškim or the lu2 kin-gi4-a (Molina 2010, 125).
3.0 Law Codes and mīšarum-acts (Royal Decree type 1)
No body of legal texts has sustained the level of intrigue and scrutiny from modern scholarship that the so called ‘law codes’ (or ‘law collections’) have, however, these are texts which continue to evade basic categorization and scholars struggle to define their Sitz im Leben. The extant examples of this genre date from a period which spans some 600 years and includes i) the law code of Ur-Namma – LU (Ur III); ii) the law code of Lipit-Eshtar – LL (Isin I dynasty); iii) the first Akkadian law code, the law code of Eshnunna – LE (Old Babylonian); iv) the law code of Hammurabi – LH (Old Babylonian); v) there is, additionally, a collection of Middle Assyrian laws (Rubio 2009, 31-32).
Intertextual Perspective: it is arguable that this text genre cannot be contextualized on the basis of the internal evidence alone, however, through an analysis of the development of LU and its dependencies on earlier royal decrees, scholars gain key insights. In fact, this approach is not new — ever since the publication of Kraus’ 1958 Ein Edict des Königs Ammiṣaduqa of Babylon and Falkenstein’s 1961 Ammiṣaduqa’s Edict and the Babylonian “Law Codes” (JCS 15 91-104), scholars have endeavored to frame these genres against each other and discern their interrelations (Veenhof 1997-2000, 47-49).
It is necessary to nuance several key lexemes in order to accurately discuss the royal decrees (variously: royal edicts). The Akkadian mīšaru from ešēru ‘to be well, prosper’ carries connotations or ‘equity’ and ‘social justice’ and the term is given in the texts as an aim of the royal decrees type I (ṣimdat šarrum) (Rubio 2009, 34 n. 34; Veenhof 1997-2000, 49). Veenhof’s term “mīšarum-act” will sometimes be used here in order avoid confusion with a categorically different type of royal decree type II (also ṣimdat šarrum in Akkadian, for which see 4.0 below). Royal decrees of the mišarum-act sort are known to have been enacted throughout Mesopotamian history, with early examples coming from the reigns of Entemena and Urukagina (twenty-fifth and twenty-fourth century Lagishite kings) and from the Old Babylonian ruler Amiṣa-duqa (Wilcke 2004, 141). In a system sometimes riddled with debt-slavery, these decrees secured the release of the people from debt and illegitimate exercise of power, from abuse by officials and elites in power. Often issued by newly appointed or usurping kings, both king and state stood to gain politically and economically through the mišarum-act; in order to curry political favor and present themselves as kings of justice, the Mesopotamian ruler may free one population only to subjugate another as their replacements. Importantly, everyday and legal documents refer to these decrees as the justification for legal actions, and it is clear that these decrees carried the force of law in everyday life (van Dassow 2011, 208-210; Veenhof 1997-2000, 49-52).
A compelling analysis of the royal decrees of Entemena and Urukagina and the early law codes was made by Zhi Yang who traces a rise in the rhetoric of the “king of justice”. She argues that the Ur III king Šulgi created a new text genre when he embellished the just role of his father, Ur-Nammu, by writing down examples of cases (the Ur-Nammu law code). The new genre, nevertheless, was close in parts with the wording of the earlier Lagashite decree (Yang 1991, 249). The intertextuality of the texts is apparent in the following example:
Prologue from the Law Code of Ur-Nammu: “By granting immunity in Akkad to the maritime trade from the seafarers’ overseer, to the herdsman from the “oxen-taker”, the “sheep-taker”, and the “donkey-taker”, he set Sumer and Akkad free” (Zhi 1991, 246).
Reform Text of Urukagina: “He removed the head boatman from (control over) the boats, he removed the livestock official from (control over) asses and sheep, he removed the fisheries inspector from (control over) …” (Zhi 1991, 246).
This finding compliments pioneering work done by Falkenstein, who argued that the first twenty-one laws of LE likely borrow from the text of a royal decree; this form-critical argument is based on the apodictic style of the lines which follows the form of a royal decree but not the typical casuistic form (tukumbi/šumma) of the law codes (Veenhof 1997-2000, 50-51). However, extensive and conclusive intertextual studies have yet to be carried out.
Significance of the Casuistic Structure: a major line of interpretation, current in studies of Mesopotamian law, is that the structure of the law codes itself bears on the raison d'être of this genre. In fact, Kraus had already made the argument that the casuistic structure of the law codes parallels that of the omen collections, and that they both represent examples of a type of Mesopotamian scientific literature (Rubio 2009, 32). This structure was “the means whereby raw data could be cast into a generalized, objective form, stripped of any connections with circumstances irrelevant to their universal application” (Westbrook 2009, 112).
Sitz im Leben and Application: scholars have long recognized that the law codes are not cited in legal verdicts, in fact in the Babylonian context, “judgements do not cite law, only evidence as the basis for the decision” (Westbrook 2005, 38). This is different from the situation known from Old Assyrian contexts where law is cited (see 6.0 below). With the understanding that the law codes were formulated in an academic structure, the suggestion that they served a didactic function, a reference manual for the king, or for scribes training function in some legal capacity, seems convincing (Westbrook 2009, 10; Rubio 2009, 33-34).
Royal Ideology: Interestingly, in the epilogue of LH, Hammurabi is described as the “king of justice,” a self description in use already by the Early Dynastic king Entemena, who issued the first royal decrees (Charpin 2010, 99; Yang 1991, 243). These self-descriptions, descriptions of high judicial authority made by the highest judicial authority of the time, are of high import — the image of the king reinforced the word of the king, and the word of the king was law.
4.0 High Judicial Authority in the Second Millennium
The Old Babylonian period evidence for law is rich in comparison to other Mesopotamian contexts with information coming from law codes, royal decrees, administrative orders, private legal documents, scholastic documents and letters (Westbrook 2003b, 360-363).
The Epistolary Evidence: while far from a theoretical treatise, the letter corpus provides valuable insight into the law in practice in Old Babylonian society. Some letters record royal verdicts that invite comparison with the law code of Hammurabi, the best example is the following:
LH 21: “if someone has broken through [the wall of] a house, he will be put to death in front of the hole and will be hanged there” (Charpin 2010, 73).
AbB XII 12: “The son of Ipqusha the goldsmith told me this: ‘Last year, thieves broke through [the wall of] my house and seized my property…At present, I have just sent you this son of Ipqusha. Tie up the thieves whom he seized, place them under strong guard, and have them brought to me…” (Charpin 2010, 73).
While this letter from Hammurabi reflects only the preliminary investigation and does not mention the verdict, Charpin’s understanding is that LH 21 is likely to have been based on the verdict that the king subsequently issued (Charpin 2010, 73). The letter correspondence of Hammurabi further informs on matters of jurisdiction and reveals that the king may try a case personally, give a decision on a legal point and remit the case to local judges, or simply remit the entire case to local authorities (Leemans 1968, 109; Westbrook 2005, 28).
Additionally, epistolary evidence reveals the importance of the royal decree type II (ṣimdat šarrim/ awat šarrim) in the actual legal practice of the day. A difficulty is that, since tablets bearing the text of these decrees have not been recovered, scholars must refer to the everyday documentation which refers to the decrees (typically) using the expression kīma ṣimdat šarrim ‘according to the decree of the king’ (Veenhof 1997-2000, 53). This type of decree is distinct from type I (discussed above 3.0) in the following ways: i) these decrees have no temporal specificity (whereas a mīšarum act was typically a relief for a short time); ii) their subject matter was restricted to one legal issue, typically, a penalty or compensation for breech of contract (or similar issue) (Rubio 2009, 34; Veenhof 1997-2000, 53).
BM 12846: “Zu Sîn-iddinam sprich: also (sagt) Hammu-rabi: Der Ortsvorsteher der Ortschaft Medûm has mir über den ihm (zugefügten) Schaden berichtet. Jetzt schicke ich dir hiermit den betreffenden Ortsvorsteher von Medûm. Untersuche seine Angelegenheit. Schicke (Nachricht), daß man seinen Prozeßgegner zu dir bringt und verschaffe ihnen Recht unter Beobachtung der gesetzlichen [kima ṣimdatim] Verordnungen” (AbB 2 19: 1-13).
The above letter, sent from Hammurabi to a governor, belongs to a specialized sub-genre referred to as “administrative orders” in Assyriological literature (Westbrook 2005, 362). In this text example, the king adjures the governor of Larsa, Sîn-iddinam, to administer justice in a case according to (a prior) royal decree (Veenhof 1997-2000, 54). The importance of the royal decrees in the actual administration of justice is demonstrated by the epistolary evidence generally, and in particular, by the administrative orders. In fact, while not ratified by an assembly, scholars sometimes refer to the royal decrees (type I and II) as the “legislature” of the day (Westbrook 2003b, 364).
Model Court Cases: while of a certain importance, the model court cases are understood to be “literary accounts of celebrated trials” often lacking typical features of a legal text, such as witness lists and dates, they are categorized as scholastic documents and served (presumably) didactic purposes (Westbrook 2003b, 364; Klein and Sharlach 2007, 2). With these caveats in mind, an interesting example from Old Babylonian Nippur was treated by Sharlach and Klein and involves (a scholastic retelling of) a case involving litigation. The case involved a nephew (Sîn-magir) who is in a property dispute with his uncle who he accuses of seizing his property — the nephew approaches the king about this case and the texts records:
CBS 11324: “Išme-Dagan, the king, commanded that the assembly of Nippur and (its) judges should be gathered, (and) judge the case in Ubšu-uk-kina” (Sharlach and Klein 2007, 10).
These small details bearing on legal authority and jurisdiction, often less explicit than in the above example, are of high importance for reconstructing a picture of the administration of justice in Mesopotamia. For the assembly of Nippur see 6.0 below.
5.0 High Judicial Authority in the First Millennium - Assyria
The sources available for the study of law in Assyria include private legal documents, letters, royal decrees and sealings; while copies of earlier law codes are extant from this period, there is no Neo-Assyrian law code (Radner 2003, 883-884). In this period there was, again, no divide between administrative and judicial responsibility. Functionaries from state (headed by the king), provincial and municipal levels could fulfill a judicial role, as could temple officials and (in certain capacities) the gods (Radner 2005, 42, 48; Matilla 2000, 87).
Documents from the State Archives: the discovery and publication of the royal archives, primary from Nineveh but from other sites as well, provide a rich corpus for the consideration of judicial administration:
K 00211: “I, Assurbanipal, [great king, mighty king, king of the world, king of Assyria], king of the four questers, [true shepherd, who does] good, the just king, lov[er of truth,…” (SAA 12, 25: 4-7).
BM 123360: “They came forward for judgment before Issaran-zeru-ibni, a royal bodyguard, Issar-na’id, a royal body guard, and Girittu, the deputy (governor), who told them: “Go off to Nineveh for judgment before the vizier and sartinnu” (SAA 6 133: 3-9).
ND 2648: “PN of the city of Baqar is appealing to the king [a-bat LUGAL i-zak-kar] and claims that he is exempt. I have installed a delegate there.” (SAA 19 39: 19-20).
K 00031: “The king appointed a vizier (sukkallu) and a chief judge (sartennu) in the land, saying: “Render true and just judgements in my land” (SAA 18 181: 11-13)
In the above examples, one of Assurbanipal’s epithets is ‘the king of justice’, an aspect of royal ideology well known since Hammurabi (Radner 2003, 886). SAA 6 133 attests to the judicial role of the sukkallu (the vizier) and the sartinnu; with 14 and 11 textual attestations in judicial roles (respectively), these are the Neo-Assyrian officials most frequently attested in the role (Radner 2005, 49-52). With reference to legal documents in particular, Mattila notes that these two officials are given as judges in approximately half of the cases in which the role of judge is specified, hence, they may have functioned with a special level of judicial authority such as chief judge (Mattila 2000, 84-90). The third text example records an interesting feature of the Neo-Assyrian legal system whereby anyone could appeal directly to the king concerning (perceived) wrong doing by ‘invoking the king’s word’ (abat šarrum zakāru) (Fales 2017, 416). The final example, as discussed in Baker and Groß, is a royal appointment especially notable in that the king also explicitly specifies the judicial role to be carried out (Baker and Groß 2015, 77). Further insights can be gained specifically from the epistolary evidence which, as Radner relates, feature instances of the abat šarri ‘the king’s word’ (the royal decree) which serve to overturn earlier legal decisions that the king objects to; the king is thus the “supreme court” and appeals could be directed to him (Radner 2005, 66).
Neo-Assyrian Judicial Procedure texts: a small corpus of texts dating mainly to the seventh century and dubbed the ‘judicial procedure’ texts, or ‘dēnu texts’ (the word which these texts start with), bear a special relevance to legal studies of the period (Jas 1997, 1). The texts sketch the rudiments of a legal procedure (sometimes, at minimal, the parties involved, the issue at stake, the witness list and date), but scholars still understand “next to nothing” about the legal context of the documents (Jas 1997, 2). A study by Deller of the judicial authorities named in the dēnu texts makes these basic observations i) “in der überwiegenden Mehrzahl der Fälle wird die Rechtsprechung von dem hazannu, dem sertinnu und dem sukskallu ausgeübt”; and ii) “die richterliche Gewalt ist aber nicht auf diese drei Beamten beschränkt; gelegentlich fungieren auch der abarakku, der ša muhhi āli, der šangû, der šaniu, der ša pān dēndni ša sukkalli und andere Beamte als <<Richter>>” (Deller 1971, 649).
5.1 High Judicial Authority in the First Millennium - Babylonia
Due to weak kings and instability in the first quarter of the first millennium, the best legal documentation comes from the period of the Neo-Babylonian empire and later. These sources include law codes, royal decrees and administrative orders, kudurrus, private legal documents, scholastic documents, administrative documents, and letters (Oelsner, Wells and Wunsch 2003, 911-914). It is in the Neo-Babylonian period that, for some scholars, the paradigm of the Mesopotamian king of justice seems to falter; if the king in this period assumed the judicial prerogatives, it is less explicit in the absence of extant royal archives such as are available for the Neo-Assyrian period (Sandowics 2014, 246).
Babylonian Kudurrus: two Babylonian kudurrus, BBSt 9 and BBSt 10, depict the king acting in his role as supreme judge (Oelsner, Wells and Wunsch 2003, 918):
BBSt 10 l. 10, 14: “Damals hat man Nabû-ušallim, den Sohn des Dakkúru, von den König gerufen und wegen dieser Klag[e]… dass den Antiel kein [ša]knu (und) šā[pi]ru des Landes Kaldu [vermindern durfte], hat der könig ihn beim Gott schwören lassen. Auf Adad-ibni den Sohn des Mušēzib-Marduk hat er..” (Paulus 2014, 145).
The above extract, consisting merely of two lines, is from a text involving a land claim by a man (Nabû-ušallim) whose father had been granted land by Esarhaddon, both of whom subsequently died. Šamaš-šuma-ukīn ratifies this claim, and on lines 29-30 legalizes it with his royal seal. To any assessment of the king as active supreme judge in this period must now be added BM 114574, a ‘royal writ’ or deposition text, which specifies that five thieves were to be arrested according to the word of the king (amat šarri); as Sandowicz observes this “demonstrates that the king interfered in the execution of justice on a local level…” (Sandowicz 2014, 248).
The sartennu and the sukallu: the importance of these royal officials in judiciary roles continues in the Neo-Babylonian period and these officials frequently preside over a court (Oelsner, Wells and Wunsch 2003, 919; Jursa 2014, 136). Certainly, the continued import of these officials seems to borrow something from the Neo-Assyrian system. In a study of Richterkollegien in the reign of Nabonidus, Wunsch charts the judicial activity of these officials by collecting the occurrences of their sealings on legal documents (Wunsch 2000, 568, 570-571). The Richterkollegien are the officials who would have sat next to the royal judges in the Neo-Babylonian court.
The Royal Judges: it is sometimes stated that (in contrast to other Mesopotamian contexts) a professional judge existed in Neo-Babylonian contexts: “in contrast to contemporary Babylonia, the profession and professional title of “judge” did not exist [in Assyria]” (Radner 2005, 42). However, that the royal judges constitute a novel Neo-Babylonian profession could be disputed on the following grounds: i) the title “royal judge” appears sporadically throughout Mesopotamian history, with instances already in the Old Babylonian period. Possibly even earlier, should one count the instances of di-kud lugal discussed above in section 2.0. Westbrook sees “royal judge” as a title indicating rank (Westbrook 2005, 30; Westbrook 2003b, 367); ii) while the apparent prerequisites for holding this title were significant (scribal education, experience in lower courts, seniority), the fact that royal judges continued other business activities on the side means that it was “not a profession” (Oelsner, Wells and Wunsch 2003, 920). The best evidence for the activity of the royal judges is, again, the study of sealings done by Wunsch which provides a detailed account of the activity of the royal judge in this period; the textual attestations have been collected by Holtz (Wunsche 2000; Holtz 2009, 253 fn. 82).
6.0 The Development of Local Authority in Mesopotamia
It is generally understood that judicial authority in Mesopotamia was spread across the state, provincial and local levels (Radner 2005, 69; Westbrook 2005, 28). Discussion of the latter often centers around the assembly (Sum. ukkin, Akk. puḫrum), a collective non-hierarchal body the precise significance of which seems to elude modern scholars. A significant aspect of this challenge is, without doubt, the paucity of descript textual sources which bear on the assembly. Scholars offer varying socio-political models: the assembly was the body through which ancient Near Eastern societies (in conjunction with local leaders) participated in “governing their communities, thus in governing the state, or at least checking its power” (von Dassow 2011, 217); for Van De Mieroop, the assembly was “an institutionalized decision-making body” while, at the same time, an assembly could simply be “an ad hoc meeting of people with shared interests” (Van De Mieroop 2013, 280); an interesting insight comes from Fleming, who suggests that systems of collective governance (in his study, those around Mari) have their origins in a time that pre-dated complex polities — in other words, the collective authority of the puḫrum may essentially be kin group or tribal in nature (Fleming 2004, 237).
The evidence for the assembly in the third millennium is meager. Ever since Thorkild Jacobsen’s seminal article Primitive Democracy in Ancient Mesopotamia (Jacobsen 1943), special emphasis has been given to the literary evidence for the puḫrum in Uruk. Two passages, in particular, have held sway. The first comes from the Sumerian composition Gilgamesh and Akka, which depicts Gilgamesh seeking the support of an assembly of elders against a threat from the city of Kiš:
Gilgamesh and Akka 3-8: “Gilgamesh before the elders of his city, laid the matter, seeking for words: ‘to finish the wells, to finish all the wells of the land, to finish all the shallow wells of the land, to finish all the deep wells with hoisting ropes, let us not submit to the house of Kish, let us smite it with weapons’” (Katz 1993, 41).
Upon repeating his entreaty to a second assembly, the guruš, Gilgamesh receives their support and they name him as king:
Gilgamesh and Akka 30-35: “Uruk, the handiwork of the gods, Eanna, the temple descended from heaven, whose parts the great gods created, its great wall standing on the ground (like a cloud), its lofty abode established by An, they are entrusted to you, you are king and warrior” (Katz 1993, 41).
As the assembly may have constituted one of the principle judiciary bodies of the period, it is of no small importance for the development of judicial administration. It must be admitted that the nature of the evidence here is not entirely compelling: for one thing, the literary material may refer back to the mid-third millennium, but is only persevered on tablets dating to the early second millennium. And while the sign ukkin occurs already in the archaic Uruk period script, these rare occurrences do not specify the composition or function of their referent. They may even refer to unions between different polities (Katz 1993, 21; Seri 2005, 164). Indeed, regarding the prospect of substantiating literary depictions of a third millennium assembly capable of opposing royal decisions (or functioning in any capacity whatsoever), Wilcke stated “if such a body existed… it finds no reflection in the documents of practice” (Wilcke 2003, 186). Hence, discussions on this subject (which may or may not touch on “primitive democracy”) have always hinged on analogies with the divine assembly or with material from the subsequent millennia.
In the second millennium, scattered references to the assembly occur in legal accounts and letters from Babylonia and Assyria. Old Babylonian epistolary evidence indicates that assemblies functioned in judiciary roles at the time. One letter from Sippar (AbB 12 2) stated that “Ipqu-ilīšu, the judge, has spoken against Ilšu-ibni in the assembly”; according to another letter (AbB 3 114) “two men without title, namely, Ibbi-Enlil and Pî-Šamaš-rabi, the judges, and the ‘shepherds’ (sipameš) stood and spoke in the assembly before the awīlû” (Seri 2005, 168). An interesting trial record from OB Nippur, known as the Trial for Homicide in Assyriological literature (PBS 8/2 173), involves the assembly at Nippur. The case involved three individuals who murdered a man and then told the man’s wife what they had done — she kept her mouth closed and did not report the crime. The text then reports “their case was taken to Isin before the king. King Ur-Ninurta ordered their case be accepted for trial in the assembly of Nippur” (Jacobsen 1970, 199; PBS 8/2 173 5-10). Several men who seem to be part of the assembly, including a birdcatcher, a potter and an orchardman, address the assembly and voice the allegations against the four offenders. The assembly seems to deliberate the guilt of the wife amongst itself before reaching a decision and all four “were delivered up to be killed” (Jacobsen 1970, 201; PBS 8/2 173 59). The judges at Nippur seemed to have been specially designated as the ‘assembly of Nippur,’ whether this is categorically different than assemblies meeting elsewhere is unclear (Westbrook 2003b, 367-368).
In the Old Assyrian period, the tin and textile trade between Assur and Kanesh was at its height. The heavy travel, commerce and correspondence of Assyrian merchants is now well documented by some 20,000 documents recovered from Kanesh. From this substantial body of evidence, much of it epistolary, important political and legal insights emerge, and notably, the kārum had its own administrative body which was an assembly. Documentation from Mesopotamia almost never describes the constituency and jurisdiction of an assembly, but the three tablets which form the document known as the Statutes of the Colony are a rare exception (Sari 2005, 159). The statute sets out rules for convening of decision making by the assembly, which consisted of a scribe (acting as secretary) and a committee of “big men” — a plenary assembly could be convened in the event of an impasse (Veenhof 2003, 432; Veenhof 2010, 66 n. 53). More striking still is that, in Assur, the high legal authority was not the king but the City Assembly, to which the traders of the kārum would appeal decisions made locally. Because a statute document is lacking for Assur, the assembly is essentially anonymous although it is likely made up of “important traders and merchant bankers” (Veenhof 2010, 45, 65).
The Old Assyrian king should not necessarily be deemed “weak”; rather, his “political and legal powers were framed within a comprehensive system of civil government of oligarchic nature” thus his status was “first among equals” (Fales 2017, 408). Both the king and the assembly may be invoked in oaths and in appeals, but when both occur, the assembly appears first (Veenhof 2003, 435). The juridical system tends to reflect the nature of the state. What is most striking, when weighed against other Mesopotamian contexts, is the development of statutory law in the Old Assyrian period. The verdicts which the assembly frequently issued seemed to have been written down on stelae, thus they were “published”; what distinguishes this situation from the Babylonian context is that, while everyday documents indicate that the OB law collections were not consulted in actual practice, the OA letters and verdicts alike make frequent reference to ‘the words of the stele’ (Veenhof 2003, 437; Veenhof 1997-2000, 59). Hence, the direct connection between written law and trial verdict which cannot be found in the Old Babylonian context is there in the Old Assyrian context.
In the Neo-Assyrian period, the hazannu “mayor” and ša muhhi āli emerge as the most important judicial functionaries at the local level. These functionaries, while non-elites, were appointed by the king as indicated in a letter: “your servant, Sin-na’di, hazannu of the Inner City, whom the king, my lord, appointed” (SAA 13, 25: 2-4; van Buylaere 2010, 232; Radner 2003, 889). The hazannu seems to have headed the assembly, reporting to the king on local matters and thus acting as intermediary between the municipal and state levels (van Buylare 2010, 233-234). The role of the hazannu as judge is substantial – in fact, in a group of legal texts studied by Matilla, where the sartinnu was cited as judge seven times, and the sukkallu six times, the hazannu was cited as judge nine times (Matilla 2000, 87). This must have more to due with jurisdiction than authority. While the ša muhhi āli could also function as judge, attestations of this are less frequent. This functionary is however, more often than the hazannu, the sealer of real estate deeds (van Buylaere 2009/2010, 152-153).
7.0 The Court, Court Procedure, and Jurisdiction
The place where the administration of justice would impact the everyday Mesopotamian, the plaintiff and defendant, was of course the court. What the “court” was in ancient contexts proves difficult to define. There is little evidence for a “courthouse” in the early periods and oaths were generally sworn at a temple (Westbrook 2005, 33). In the Neo-Assyrian period, court was held wherever a high official acting as judge happened to be operating, however, in the Neo-Babylonian period, the term bīt dīni “house of decision” seems to indicate a purpose built structure – a courthouse (Radner 2008, 43; Oelsner, Wells and Wunsch 2003, 918).
Jurisdiction: questions of jurisdiction are obscure in most periods. Capital cases, adultery and witchcraft appear often to have been presided over by the king in Old Babylonian period, although its clear that he could also remit such cases to lower courts (Westbrook 2005, 33). The situation seems similar in the Neo-Babylonian period with the king presiding over capital cases, or appeals from lower courts (Oelsner, Wells, and Wunsch 2003, 918).
The Oath: the evidentiary oath is one of the more important forms of (suprarational) evidence in a Mesopotamian court. It is imposed on one side or the other (plaintiff or defendant) and, if taken, could considerable sway the verdict in the oath taker’s favor (Westbrook 2003a, 89). The oath is essentially a self-curse, wherein the penalty for committing perjury and breaking the oath is spelled out in the oath itself – punishment by the gods (Sandowicz 2011, 17-18). In later periods, it is clear that the oath was taken before a divine symbol, for example, in the Neo-Babylonian period oaths were taken by the divinized weapon of Marduk, or the stylus of the god Nabû (Oelsner, Wells and Wunsch 2003, 925).
Court Procedure: The evidence for court procedure is best attested in the Old Babylonian period. The following steps seem standardized: i) before trial, both parties could exchange claims before a witness (possible resolution); ii) if not, one or another party “approaches” the judges (or “seizes” the other, if a crime is involved); iii) trial: claims are reiterated, evidence presented. The court may summon and interrogate witnesses. The court may compel the oath or the ordeal (Westbrook 2003b, 371).
Court procedure in Old Assyrian contexts was different in several respects: cases from a kārum court could be directed to the higher court in Assur if appealed or if involving a death; if authorized by the City Assembly, a plaintiff could hire an ‘attorney’ who would represent him in court; in addition to witness testimony and the oath, written evidence was admissible (Veenhof 2003, 445). Again, as Veenhof relates, quite striking is that verdicts in the OA period could refer to “words on the stele,” to written law (Veenhof 2003, 447).
For the Neo-Assyrian period, despite the fact that some one hundred documents referring to lawsuit are extant, Radner relates that “we know little about court procedure in general due to the succinct phrasing of these texts” (Radner 2003, 890). The following is clear: the plaintiff who initiates the trial is responsible for producing the defending party; a reliance on supranatural evidence is well attested, especially the river ordeal and the oath; witness testimony is the most important form of rational evidence (Radner 2003, 890-981).
In the Neo-Babylonian period, the following is distinctive: a new court officer, the kizû appears, who would retrieve evidence for the judges (perhaps not unlike the maškim); in trials involving theft, interrogation involving torture is used to produce a confession; use of the oath and ordeal declines and rational evidence such as documentary evidence seems preferable to witness testimony (Oelsner, Wells and Wunsch 2003, 922-923).
Penalties: on reaching a decision the court may i) order the restitution or division of property; ii) the court could order a criminal into service or to death; iii) if the plaintiff’s claim was rejected, the court could impose a penalty on him or her for false claims (Westbrook 2003b, 371).
The preceding study has examined the development of the administration of justice in Mesopotamia as exercised by the high judicial authorities, and by the collective authority of the assemblies at the local level. It has been particularly useful to study the Old Babylonian and Old Assyrian legal systems together. Because power is manifested differently in these two states, the judicial systems are correspondingly distinct: while the king is the high legal authority in Babylon at this time, the high legal authority is the assembly at Assur (with the king participating); perhaps due to the power of the king, and the king’s word, statutory law never took off in Babylonia and the law codes were not cited in the verdicts of actual law courts (they seem to have served a didactic purpose). This is contrasted with the situation in Assur, where everyday documents and trial verdicts refer to the ‘word of the stele’, which must correlate in some way with the atypical administration of Old Assyrian state at the time. Atypical for Mesopotamia. In the first millennium, a powerful Assyrian king occupied the throne, the supreme judge whose influence judicial was, again and as in other Mesopotamian contexts, particularly apparent in the ‘king’s word’ or royal decree. With few exceptions, there is an essential continuity in the administration of justice in Mesopotamia, seen for example, in the appearance of the sartinnu and sukkallu in the Neo-Babylonian period where they join the royal judges — a title attested already in early periods.
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