You Could Look It Up: The Reference Shelf From Ancient Babylon to Wikipedia

by Jack Lynch

  CHAPTER 1

  JUSTICE IN THE EARTH

  Laws of the Ancient World

  The Code of

  Hammurabi

  c. 1754 B.C.E.

  Justinian

  Corpus juris civilis

  529–34 C.E.

  A list as pithy as the Ten Commandments fits comfortably in the memory. It can be learned quickly and passed on by oral tradition. As a society grows increasingly complex, though, a short list of thou-shalt-nots is insufficient.

  It is easy to forbid murder, for instance, even to guarantee an eye for an eye. But how to settle the terms of a no-fault divorce, or establish a fair price for caulking a boat, or adjudicate rival claims about agricultural fees after a storm destroys much of a crop? As legal precedents multiply, as finer and finer distinctions arise, as more and more circumstances have to be accounted for, it becomes impossible for even the wisest sage to keep everything in his head. The most capacious memory eventually breaks down.

  Laws, therefore, were among the first things to be written down in every literate society—and eventually those written laws grew long and complex enough to demand a reference book to make sense of them. Legal compendia are among the foundational reference works in nearly every civilization, and they take us back to some of the earliest known writing in the world. This chapter focuses on two important ancient legal codes, Hammurabi’s Code of Babylonian law and the greatest attempt to codify the laws of ancient Rome. Together the codes of these long-gone societies give us insights into daily life that we cannot get through any other channels.

  It is one of the oldest legal works in the world. The ancient story goes back thousands of years, but the modern story begins in the nineteenth century, when the French government began a series of exploratory digs in Iran. Modern Khuzestan—known in antiquity as Susa or Shushan, the city of the Persian kings—first attracted archaeologists’ attention in 1810, when John MacDonald Kinneir believed he had identified Susa. The ruins, Kinneir wrote, “consist of hillocks of earth and rubbish, covered with broken pieces of brick and coloured tile… . These mounds bear some resemblance to the pyramids of Babylon.”1 But nineteenth-century Persia was a dangerous place, and several attempts to explore the site ended badly.

  After a series of failed expeditions, Jacques de Morgan took over what the French government was calling the Délegation en Perse in 1897. De Morgan had trained as a mining engineer and worked in Transylvanian gold mines and Caucasian copper mines. His real passions, though, were geology and paleontology. When he was thirty-four he was named director of Egypt’s Service des Antiquités, and he did pathbreaking work on Egypt’s prehistory. When he arrived in Persia, de Morgan put another enthusiast for ancient Egypt, Gustave Jéquier, in charge of the daily operations, and the dig began on December 18, 1897, nearly ninety years after the site was identified. It was worth the wait: the location proved richer than anyone expected.

  In late December 1901, on a dig led by Jéquier, a shovel hit a large piece of diorite. In the next few days more pieces turned up, and the workers were able to assemble the fragments into a large round pillar 7’ 4” (225 cm) high and between 5’ 4” (164 cm) and 6’ 2” (190 cm) in diameter.2 And though to all appearances it was an architectural rather than a bibliographical find, it turned out to be a reference book of sorts—one of the oldest known in the world.

  On the stele, written in the cuneiform characters used throughout ancient Mesopotamia, were 282 laws. Ancient monuments are often badly degraded by the time they are excavated, but the stone on which these laws had been carved was uncommonly hard, and the inscription was still clear. Although the stele was broken into three pieces, they fit together almost perfectly, with no significant gaps. It is not in perfect shape—a substantial part of the text is missing—but the damage was caused not by time but by intentional human action. On the front, the last five columns have been erased; that part of the monument probably contained around thirty-five laws, some of which can be supplied from other sources, but others are now irretrievably lost. The surviving 282 paragraphs, though, are the most complete collection of laws we know of from the ancient Middle East, and they were compiled at the command of Hammurabi, the sixth king of Babylon and the first Babylonian emperor, who ruled for more than forty years in the early eighteenth century B.C.E. When he assumed power—in 1792 B.C.E., according to the usual calculation—Babylon was a small city-state. His father, who ruled before him, began to build it up, but Hammurabi turned Babylon from a minor outpost into the administrative center of an enormous Mesopotamian empire. He did it largely by codifying the legal system, and he did that largely by creating a work of reference.

  TITLE: Hammurabi’s Code

  COMPILER: Hammurabi, Emperor of Babylon (d. c. 1750 B.C.E.)

  ORGANIZATION: Entries 1–5, introduction; entries 6–126, property; entries 127–282, persons

  PUBLISHED: c. 1754 B.C.E.

  ENTRIES: 282 laws

  TOTAL WORDS: 5,500

  SIZE: 7′ 5″ × 2′ 2″ (225 × 65 cm)

  AREA: 15.7 ft2 (1.5 m2)

  WEIGHT: 4 tons

  At first the discoverers were not sure what to make of the pillar. It prominently bore the name Hammurabi, king of Babylon, but the find was in Susa, in the rival kingdom of Elam, about 230 miles (370 km) from Babylon. The German scholar Friedrich Delitszch finally solved the puzzle. Even before the stele was discovered, he had published a learned article, “Zur juristischen Litteratur Babyloniens” (“On Babylonian Legal Writing”),3 in which he suggested that such a sophisticated empire, with uniform laws across the whole of Mesopotamia, could not have functioned without a thorough legal code—and he hinted that it might yet survive somewhere. Thinking about the name Code Napoléon, he began calling this strictly hypothetical legal compendium the Code Hammurabi. And now de Morgan’s team had found the very thing Delitszch had predicted. As James Pritchard notes, “Rarely in the annals of archaeology has the excavator been able to oblige his colleague the philologist by producing from the earth the very monument which the latter had suspected to have been in existence.”4 Eventually the mystery of the origin was solved. The Code did not originally come from Susa or anywhere else in Elam. It probably came from Sippar, about 19 miles (30 km) from Baghdad. In the year 1168 B.C.E., many hundreds of years after Hammurabi’s death, it was carried to Susa by the Elamite king Shutruk-Nahhunte.5

  Word of the discovery spread quickly. De Morgan settled on Jean Vincent Scheil, a member of his team, to make the work public, and in just three months Scheil translated and published the Code—blazingly fast by scholarly standards.6 By 1902, every archaeologist and historian of the ancient world was paying attention.

  The Code falls into three sections: an introduction (entries 1–5), laws regarding property (6–126), and laws regarding persons (127–282). The sections on property and persons are each subdivided into three groups.7 The introduction opens with an invocation of the gods and an assertion of the emperor’s authority:

  When Anu, the supreme, the king of the Anunnaki, and Bel, the lord of heaven and earth, who fixes the destiny of the universe, had allotted the multitudes of mankind to Merodach, the first-born of Ea, the divine master of Law, they made him great among the Igigi… . Then Anu and Bel delighted the flesh of mankind by calling me, the renowned prince, the god-fearing Hammurabi, to establish justice in the earth, to destroy the base and the wicked, and to hold back the strong from oppressing the feeble.8

  The Code laid out the source of justice itself, the powers granted to the great Hammurabi, and the reason he was spelling out the laws. Then it introduced more specific laws. The laws themselves were not original with Hammurabi, and many of them had been in circulation for centuries. The contract law, for instance, goes back at least to the time of Ur, and some of the laws were originally written in Akkadian, in use centuries earlier. Plenty of legal situations must have arisen in real life that are not addressed at all. This means we are dealing not with a new system of laws, nor
with a comprehensive code of all the laws of Babylon, but a digest of earlier legal writing, edited and reorganized to make it more suitable for finding what the reader needs. In other words, a reference work.

  The Code of Hammurabi spelled out guidelines for dealing with matters of civil law, including relations between landowners and tenants, between buyers and sellers, and between masters and slaves. Laissez-faire economics was not the goal: commerce was strictly regulated. Hammurabi sets the fees for ox drivers and the liability for shoddy contracting in new houses. The interest charged on both money and grain was 20 percent. Doctors’ fees varied for different social classes: for a major operation, the ratio of fees was 10 for the rich, 5 for the middle classes, and 2 for the poor.9 Even very specific situations are covered in detail, as in law 48:

  If a man is liable for interest, and the god Adad has flooded his field, or the harvest has been destroyed, or the corn has not grown through lack of water; then in that year he shall not pay corn to his creditor. He shall dip his tablet in water, and the interest of that year he shall not pay.10

  Or, even more strangely, law 108:

  If a (female) wine-seller has not accepted corn as the price of drink, but silver by the grand weight has accepted, and the price of drink is below the price of corn; then that wine-seller shall be prosecuted, and thrown into the water.11

  A long section covered the criminal law. There were rules for people who cast wicked magic spells and for those who bore false witness in court. Those who stole from temples, or even received the stolen property, were condemned to death. Death was also the penalty for doing business with a child or a slave without the consent of a parent or master. One who stole an ox or a sheep had to repay thirty times its value, unless he was poor, in which case he had to repay ten times its value—or if he was really poor, and could not afford the fee, in which case he faced the death penalty. There were even rules for judges who reached the wrong conclusion in convicting someone.

  Most notorious is the lex talionis, usually summed up as “an eye for an eye.” The Latin talio refers to a punishment that is identical to the offense, so the lex talionis is a law of retribution. It appears most famously in Exodus 21:23–25: “And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” (Exodus has many similarities with ancient Babylonian law, leading to extensive investigation of whether there was any direct influence.) The Code of Hammurabi has a series of laws that enact retribution on criminals:

  195. If a son has struck his father, his hands shall be cut off.

  196. If a man has destroyed the eye of a free man, his own eye shall be destroyed.

  197. If he has broken the bone of a free man, his bone shall be broken.12

  The Code, though, was hardly a model of enlightened social thinking—these were the penalties for blinding or breaking the bones of free men. Poke out a poor man’s eye or break a poor man’s bone, and there was merely a hefty fee; do it to a slave, and the penalty required only part of the cost. Retribution is not always directed at the guilty party:

  209. If a man strike the daughter of a free man, and cause her fœtus to fall; he shall pay ten shekels of silver for her fœtus.

  210. If that woman die, his daughter shall be slain.13

  Passages like this are a reminder of why the study of ancient law can be so rewarding: nowhere else are the mores of a society on display more clearly. Legal codes do not set out to reveal the deep unconscious of a society; they are concerned only with regulating real-life legal conflicts. But they tell stories whether they want to or not. Here we see the world as the Babylonians saw it: some lives are worth more than others; all life is cheap; and if one life is not available for forfeit, another will do just as well.

  Another legal code is among the oldest written documents in Western civilization, but still more than a thousand years younger than the Code of Hammurabi. Historians confidently attribute a legal code to an ancient Athenian named Draco, and they say his laws were established in 622 or 621 B.C.E., but when pressed, they admit they are not even sure whether Draco existed, so intertwined are the historical figure and the legend.14 The stories tell us that Athens at the time had no written laws, and Draco—who may have been an Athenian official already, or who may have been appointed specifically for this job—was charged with crafting a set of laws to govern the polis.

  The result was a set of laws to cover various responses to both just and unjust killings. Manslaughter was to be punished with exile. In cases of homicide, kings were charged with judging whether the planner or the actual killer should face punishment. If some in a family were in favor of reconciliation, anyone who objected was able to veto the proposed penalty and call for retribution.15 The actual law was a sophisticated piece of legislation, with several sections covering twenty or more provisions. What is remembered about Draco’s laws, though, is not their complexity but their brutality. An Athenian named Demades said “Draco’s laws were written in blood” rather than ink, because the penalties for almost all violations were so harsh.16 “The distinguishing Character of Draco’s Laws,” wrote an eighteenth-century historian, “was Severity, or rather Cruelty; for every little Offence, and even Indolence itself, was by him punished with Death, for which he assign’d this Reason; Small Faults seem to me worthy of Death, and for the most flagrant Offences I can find no higher Punishment.”17 Legend held that Draco would carry out punishments even against inanimate objects: a statue that toppled and killed a man was put on trial and banished. (History does not record the statue’s defense.) Though they were called “the noblest and most hallowed [laws] of all … forever unaltered,”18 they became unpopular, though they managed to last three centuries almost unchanged.

  TITLE: Corpus juris civilis

  COMPILER: Tribonian (c. 485–542) on behalf of Justinian I (c. 482–565)

  ORGANIZATION: 4 parts: the Codex, containing imperial pronouncements; the Digest, a compendium of Roman law; the Institutes, a textbook; and the Novellae constitutiones, supplements to the original

  PUBLISHED: 529–34 C.E.

  VOLUMES: 66

  TOTAL WORDS: 1.35 million

  Draco’s laws, though, were limited—they introduced written law to the Athenian polis, but it was a manageable body of law. Things were very different a few centuries later in Rome, by that time not a city-state but an empire that stretched from southern Spain to Jerusalem. It comprised a great many cultures, traditions, religions, and belief systems. To turn them into a coherent political entity required a substantial administrative machinery, and the Romans obliged. Rome was always a more regulated society than Greece. The Roman emperors believed in reorganizing, codifying, and structuring. “Their legal system,” wrote Andrew Riggsby, “was vastly larger, more encompassing, more systematic, and more general than anything else that existed at the time.”19 Their most enduring gift to humanity, if we can call it a gift, may be bureaucracy.

  By the sixth century C.E., though, the Empire had split in two, the Western Roman Empire centered on Rome and the Eastern Roman Empire centered on Constantinople. The Italian peninsula was nominally part of the Empire, but in practice it had become an Ostrogoth kingdom. The old order seemed to be breaking down.

  This seeming chaos prompted Flavius Petrus Sabbatius Iustinianus Augustus, better known as Justinian the Great, to try to reassert the authority of the Empire. Unlike most of the emperors before him, Justinian came not from aristocratic stock but from a peasant family, and he was born not in Rome or Constantinople but in what is today part of Macedonia. His rise came when his uncle, Justin, adopted him as a son and took him to Constantinople. In 518, Justin was named emperor, and Justinian’s influence on his uncle was considerable. Justin welcomed the input and took him on as a high-ranking adviser—in 527, he became a kind of co-ruler of the empire.

  Not many months later, Justin died, and Justinian was his obvious successor. One of
his first concerns was to put Roman law in order. The legal system was a mess, with extensive collections of statutes, precedents, and commentaries on the laws having piled up over the centuries; by this point they were filled with redundancies and even contradictions. Legal proceedings were getting bogged down in needless complexity. Modern law, Justinian was convinced, was decadent.20

  Early in 528, therefore, he established a commission of ten legal experts, including his chief aide Tribonian and a Constantinopolitan law professor named Theophilus, and ordered them to come up with a new catalog of laws (mostly civil, but also constitutional) based on the three major legal codes of the empire. Their job was not mere compilation: they were to reject everything that was out of date, and to adjust some provisions to make them more suitable to modern conditions. This work took fourteen months.

  The next step was to compile the writings of the jurists, the legal scholars, who had been commenting on the laws for generations. Tribonian was placed in charge of that process, and he charged a committee of sixteen members, including Theophilus and his colleague Dorotheus, “to make excerpts from the ancient writers of authority.” Obsolete commentaries and those that duplicated or contradicted something already in the code were eliminated. The result was the Digest, a compilation of fifty books, each subdivided into titles. The work displays good scholarly habits: all the excerpts came with the names of their sources, the titles from which the extracts were taken, and the volume number of the quotation.21