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Protegitur et altera pars. Protection of the Innocent, Balance and Pragmatism in Ancient Near Eastern Law

Pages 33 - 40



1 Among modern theories, is the concept of Gustav Radbruch, one of the most important legal philosophers of the twentieth century particularly relevant. In his view, the main goal of law is justice, which in turn consists of three subgoals: expediency, legal certainty and formal equality (Grundzüge der Rechtsphilosophie, Leipzig 1914, 65–158). For an overview of the doctrine see e.g. D. von der Pfordten, Rechtsphilosophie. Eine Einführung, München 2013, 17–59; idem, What is Law? Aims and Means, Archive for Legal and Social Philosophy 97, 2, 2011, 151–168.

2 De legibus I 29.

3 Institutiones I 1.

4 See e.g. C. Wilcke, Das Recht: Grundlage des sozialen und politschen Diskurses im alten Orient, in: Das geistige Erfassen der Welt im alten Orient, ed. C. Wilcke, Wiesbaden 2007, 209–244; H. Neumann, Göttliche Gerechtigkeit und menschliche Verantwortung im alten Mesopotamien im Spannungsfeld von Norm(durch)setzung und narrativer Formulierung, in: Recht und Religion. Menschliche und göttliche Gerechtigkeit in den antiken Welten, ed. H. Barta, R. Rollinger, M. Lang, Wiesbaden 2008, 37–48.

5 See recently D. Charpin, Writing, Law and Kingship in Old Babylonian Mesopotamia, Chicago-London 2010, 83–96.

6 As the Prologue of the Code Hammurabi reads: kittam u mīšaram ina pī mātim aškun – “I established truth and justice as the declaration of the land.” Lack of proper judgement meant that the state no longer existed; according to the famous poem “Lamentation over the destruction of Ur”, one of the signs of the utter destruction of the city was that “the judgement of the land perished”. See P. Michalowski, The Lamentation over the Destruction of Sumer and Ur, Winona Lake 1989.

7 On the mīšaru edicts, cancelling debts incurred under economic duress as well as their consequences (e.g. restoring the original status of people enslaved for debts) see F.R. Kraus, Ein Edikt des Königs Ammi-şaduqa von Babylon, Leiden 1958; idem, Königliche Verfügungen in altbabylonischer Zeit, Leiden 1984; D. Charpin, Les prěteurs et le palais: les édits de mišarum, in: Interdependancy of Institutions and Private Entrepreneurs, ed. A.C.V.M. Bongenaar, Istanbul 2000, 185–211; B. Lion, L'andurarum à l'époque médio-babylonienne d'après les documents de Terqa, Nuzi et Arrapha, in: SCCNH 10, Bethesda 1999, 313–327; K.R. Veenhof, Redemption of Houses in Aššur and Sippar, in: Munuscula Mesopotamica, Fs. Renger, ed. B. Böck, E. Cancik-Kirschbaum, T. Richter, Münster 1999, 5990616; idem, The Relation between Royal Decrees and « Law Codes » of the Old Babylonian Period, JEOL 35–36, 1997–2000, 49–83.

8 On marriage in Mesopotamia see e.g. R. Westbrook, Old Babylonian Marriage Law, Horn 1988; S. Greengus, The Old Babylonian Marriage Contract, JCS 89, 1969, 505–532; idem, Redefining Inchoate Marriage in Old Babylonian Context, in: Riches Hidden in Secret Places: Ancient Near Eastern Studies in Memory of Thorkild Jacobsen, ed. T. Abusch, Winona Lake 2002, 141–154.

9 “If a man's first-ranking wife loses her attractiveness or becomes a paralytic, she will not be evicted from the house; however, her husband may marry a healthy wife and the second wife shall support the first-ranking wife.” All the translations of legal provisions follow M.T. Roth, Law Collections from Mesopotamia and Asia Minor, Atlanta 1995.

10 § 148: “If a man marries a woman, and later la'bum disease seizes her and he decides to marry another woman, he may marry. He will not divorce his wife whom la'bum disease seized; she shall reside in quarters he constructs and he shall continue to support her as long as she lives.”

12 A. Falkenstein, Die neusumerischen Gerichtsurkunden, München 1957, no. 6. See also B. Lafont, Les textes judiciaires sumériens, in: Rendre la justice en Mésopotamie, ed. F. Joannès, Saint-Denis 2000, 45.

13 “If a man's wife does not bear him a child but a prostitute from the street does bear him a child, he shall provide grain, oil, and clothing rations for the prostitute, and the child whom the prostitute bore him shall be his heir; as long as his wife is alive, the prostitute will not reside in the house with his first-ranking wife.”

14 “If a man establishes his household (by reckoning as equal with any future children) the young child whom he took and raised in adoption, but afterwards he has children (of his own) and then decides to disinherit the rearling, that young child will not depart empty-handed; the father who raised him shall give him a one-third share of his property and he shall depart; he will not give him any property from field, orchard, or house.” For a commentary on the provisions of the CH concerning adoption see R. Westbrook, The Adoption Laws of Codex Hammurabi, reprinted in: Law from the Tigris to the Tiber, vol. 2, Cuneiform and Biblical Sources, ed. B. Wells and F.R. Magdalene, Winona Lake 2009, 139–148.

15 Laws of Eshnunna: § 29: “If a man should be captured or abducted during a raiding expedition or while on patrol, even should he reside in a foreign land for a long time, should someone else marry his wife and even should she bear a child, whenever he returns he shall take back his wife.”

21 § 45: “If a man leases his field to a cultivator and receives the rent for his field, and afterwards the storm-god Adad devastates the field or a flood sweeps away the crops, the loss is he cultivator's alone.” § 46: “If he (the owner) should not receive the rent for his field (before the catastrophe destroys the field) or he leases out the field on terms of a half share or a third share (of the yield), the cultivator and the owner of the field shall divide whatever grain there is remaining in the agreed proportions.”

22 “If a man has a debt lodged against his, and the storm-god Adad devastates his field or a flood sweeps away the crops, or there is no grain grown in the field due to insufficient water – in that year he will not repay grain to his creditor; he shall suspend performance of his contract and he will not give interest payments for that year.”

23 “If an ox gores another ox and thus causes its death, the two owners shall divide the value of the living ox and the carcass of the dead ox.”

24 Black's Law Dictionary, ed. B.A. Garner, 9th Edition, 2009, 1134.

25 “If an ox gores to death a man while it is passing through the street, that case has no basis for a claim.” For a commentary see Yaron, The Laws of Eshnunna, 291–303. For the “Goring Ox” topos in the ancient Near Eastern and Biblical law J.J. Finkelstein, The Ox that Gored, Philadelphia 1981.

26 See R. Westbrook, Witchcraft and Law in the Ancient Near East, reprinted in: Law from the Tigris…, vol. 1, 289–302.

27 “If a man charges another man with witchcraft but cannot bring proof against him, he who is charged with witchcraft shall go to the divine River Ordeal, he shall indeed submit to the divine River Ordeal; if the divine River Ordeal should overwhelm him, his accuser shall take full legal possession of his estate; if the divine River Ordeal should clear this man and he should survive, he who made the charge of witchcraft against him shall be killed; he who submitted to the divine River Ordeal shall take full legal possession of his accuser's estate.”

28 § A 27: “If either a man of a woman should be discovered practicing witchcraft, and should they prove the charges against them and find them guilty, they shall kill the practitioner of witchcraft. A man who heard from an eyewitness to the witchcraft that he witnessed the practice of the witchcraft, who said to him “I myself saw”, that hearsay-witness shall go and inform the king. If the eyewitness should deny what he reports to the king, he shall declare before the divine Bull-the-Son-of-the-Sun-God, “He surely told me” – and thus he is clear. As for the eyewitness who spoke (of witnessing the deed to his comrade) and then denied (it to the king), the king shall interrogate him as he sees fit, in order to determine his intentions; an exorcist shall have the man make a declaration when they make a purification and then he himself (i.e. the exorcist) shall say as follows “No one shall release any of you from the oath you swore by the king and his son; you are bound by oath to the stipulations of the agreement to which you swore by the king and by his son.”

29 “If a man seizes a woman in the mountains (and rapes her), it is the man offense, but if he seizes her in her house, it is the woman's offence; the woman shall die. If the woman's husband discovers them in the act, he may kill them without committing a crime”. See S. Démare-Lafont, La preuve du viol dans les droits du Proche-Orient ancient, in: La preuve en justice de l'Antiquité à nos jours, Rennes 2003, 13–22. On crimes committed by and against women see S. Lafont, Femme, droit et justice dans l'antiquité orientale, Freiburg 1999. On adultery see also R. Westbrook, Adultery in Ancient Near Eastern Law, reprinted in: Law from the Tigris…, vol. 1, 245–288.

30 See e.g. the heated discussion and abundant legal scholarship on the so-called date and acquaintance rape.

31 § 60: “[If] a guard is negligent in guarding [a house], and a burglar [breaks into the house], they shall kill the guard of the house that was broken into […], and he shall be buried [at] the breach without a grave.”

32 G. Eisser, J. Lewy, Altassyrische Rechtsurkunden vom Kültepe, I-II, Leipzig 1930–35, no. 287.

33 C. Wunsch, Die Urkunden des babylonischen Geschäftsmannes Iddin-Marduk. Zum Handel mit Naturalien im 6. Jh. v. Chr., Groningen 1993, no. 90; see also F. Joannès, Les textes judiciaires néo-babyloniens, in: Rendre la justice…, 227–229.

34 Art. 56 § 1 and 2, art. 60 of the Code of Family and Custody Law, Dz. U. 1964 nr 9 poz. 59.

35 Yaron, The Laws of Eshnunna, 209.


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