The extant law collections of ancient Mesopotamia are the Laws of Ur-Namma/Urnammu (LU), the Laws of Lipit-Eštar (LL), the Laws of Ešnunna (LE), the Laws of Ḫammurāpi (LH), the Middle Assyrian Laws (MAL), and fragmentary Neo-Babylonian Laws (NBL). While all the texts are written in cuneiform, the Laws of Ur-Namma and Lipit-Eštar are Sumerian and all the others are Akkadian. The oldest collections, the Laws of Ur-Namma (ca. 2100) and Lipit-Eštar (ca. 1900), come from southern Mesopotamia, the cities of Ur and Isin respectively. The Laws of Ešnunna (ca. 1770) and Ḫammurāpi (ca. 1750) are from Ešnunna and Babylon respectively. With the exception of the LE, these collections have a tripartite structure consisting of a prologue, a selection of laws, and an epilogue. The LH appear on a magnificent stele that includes a carved scene portraying King Ḫammurāpi receiving the laws from the god Shamash and it is likely that at least the LU and LL, but probably also the LE, were similarly inscribed on monuments at one point. The latter three, however, are only extant in scribal copies as also the much later Neo-Babylonian Laws (ca. 7th century), which come from Sippar in central Mesopotamia. By contrast, the Middle Assyrian Laws (ca. 14th century) are a part of the royal archives of Assur and "give no indication of having originally had a monumental form" (Westbrook 2003:9). The LU, LL, and LE have only pecuniary punishments, the LH, MAL, and NBL contain corporal/talionic and pecuniary punishments.
It has been a dominant convention to refer to these collections as law codes or codices. This convention, however, belies a debate about whether such terms are, strictly speaking, appropriate for the collections. The debate centers on whether the laws in these collections had statutory force and, therefore, were normative for the arbitration/judicial process in the relevant time period. While some scholars have assumed the collections did have statutory force, there is no evidence to support this; the collections are generally not cited in trial records, economic texts, instructions, or correspondence. Indeed, Westbrook argues that legislation in general plays a relatively small role in ancient Mesopotamian law, primarily reserved for constitutional, administrative, and economic affairs and even then on a largely ad hoc basis (2003:14-15). Instead, "courts", such as they were, would enforce customary laws and judgments reflecting regional norms and standards (Westbrook 2003:14).
Moreover, the form and content of the collections inveighs against the presumption that these are law codes. As Westbrook notes, the collections reflect "the method of Mesopotamian scientific inquiry … to compile lists … [and] to classify the product of theoretical disciplines" (2003:17, following Kraus). Literary parallels include omen collections and astronomical texts. The laws probably were, therefore, illustrative rather than normative. This and the copying of the laws on clay tablets in the scribal schools of ancient Mesopotamia further suggests that the collections likely had an important didactic purpose. For example, Westbrook argues that the cuneiform laws, typically in casuistic form, and stripped of "non-essential facts," are "a theoretical hypothesis [in the protasis], with its legal solution [in the apodosis]" (2003:18). These hypothetical cases "were then altered to create a series of alternatives, for example, that would change liability to non-liability, or would aggravate or mitigate the penalty," all of which would serve as "intellectual exercises" for instruction in the legal tradition (Westbrook 2003:18, following Kraus and Bottéro).
The idea of an illustrative rather than normative purpose also accords especially well with the prologue and the epilogue of the LH, which suggest that the primary function of the display is illustrative. The stonework, prologue, laws, and epilogue function together to testify that the king has fulfilled his duty to establish and promote justice. As such, the stele, as an imaginative and impressing evocation of royal power and divine legitimation, has the very pragmatic purpose of inspiring loyalty and discouraging rebellion. Finkelstein even argues that the LH, LL, and presumably LU too belong to the genre of apologetic narû-literature, that is the propaganda of stelae (1961:101). Indeed, as Finkelstein also notes, given the conquests and accomplishments listed in the prologue, the LH were clearly written late in Ḫammurāpi’s reign, adding weight to the idea that the laws themselves are illustrative and commemorative (1961:101).
So then, given that the collections were likely for didactic and/or commemorative purposes, they are not strictly speaking law codes. Still, though not normative, they are illustrative and therefore provide real insight into the underlying legal traditions and principles. It is also apparent, following Westbrook, that these collections exhibit remarkable continuity, that is they share "a canon of traditional problems" that remain relatively fixed (2003:18; cf. Otto 1994). The primary evolution or change in the collections is the amount of the pecuniary punishments and these changes actually seem to reflect the reforms brought about by the truly productive legal documents of the ancient Near East: the royal decrees (Westbrook 1994:22-28).
Indeed, these collections, while perhaps the best known sources of Mesopotamian law, are by no means our only sources. In addition to these collections, there are also, as just mentioned, extant royal decrees, including the royal edicts of Irikagina of Sumer, Samsu-iluna, and Ammi-ṣaduqa and the Middle Assyrian Palace and Harem Decrees, as well as instructions, trial records, lexical texts, contracts and other economic records, correspondence, and citations or allusions in literature that provide a wealth of native Mesopotamian legal information. From nearby regions, the Hittite Laws, parts of the Hebrew Bible, and various documents from Egypt also provide evidence relevant to understanding the nature of ancient Mesopotamian law. The Hittite laws, the laws of the Hebrew Bible, the legal discourse of Egypt share in the same currents of jurisprudence reflected in Mesopotamian laws (Westbrook 2003:23-24).
In a series of seminal articles and books, the economic historian Karl Polanyi argued that the market economy is a product of the industrial revolution in Europe. In eras and areas unaffected by the industrial revolution, Polanyi postulated a pre-market economy wherein redistribution and reciprocity were the primary means of exchange. Inasmuch as markets and currency existed, they existed simply to facilitate redistribution and reciprocity. The primary motives for exchange were social status and need rather than profit or the creation of wealth. Furthermore, in Polanyi’s view of the pre-market economy, the bulk of the economic activity is public and state-driven with limited private enterprise. This view of a marketless economy has had a significant influence on historians of ancient Egypt and the Near East.
In particular, Polanyi’s model of a pre-market economy of redistribution and reciprocity has resonated among Egyptologists, many of whom consider it "the best approach for explicating the ancient Egyptian economy" (Bleiberg 1995:1375-1376). In support of this position, Bleiberg offers several lines of evidence:
He points out the lack of a distinction in the Egyptian language for items bought or sold (Bleiberg 1995:1376-1377).
He cites documentary evidence for private barter (Bleiberg 1995:1377).
He refers to the royal expeditions and trade missions that acquired resources and goods for the kingdom through barter or gift exchange (Bleiberg 1995:1377-1379, 1380-1382).
He observes that salaries and payments are typically in kind rather than monetary (Bleiberg 1995:1379-1380).
Furthermore, most evidence, including the great Pharaonic land surveys, suggests that Egypt consisted primarily of patrimonial, autarkic households and domains, collectively organized and ultimately drawn together under the household of the Pharaoh.
Similar large-scale patrimonial and bureaucratic systems are evident in ancient Mesopotamia. Drawing on Bücher’s concept of a "geschlossene Haushaltswirtschaft," Renger argues that the household economy was the basic theoretical and structural basis of the ancient Mesopotamian economy (1994:170f). The household, ideally characterized by "unity of labour … and consumption where there are no prices, no wages, no rent, no profit or capital," is manifested writ-large in the institutions of temple and palace. Following Polanyi, Renger questions the importance of markets, arguing that scholars are often ignoring the historical, social, or political context and details of transactions and also "the quantitative role of these phenomena within the overall economic system of a given period" (1994:175). He argues that allocation, redistribution, barter, subsistence production, and Selbstverbrauch were the primary sources for food and the necessities of life (1994:166-185). He denies the existence of supply and demand price patterns or competition and he reinterprets evidence for real estate transactions and active financial and merchant sectors in antiquity, holding that these are simply extensions of the "Palastgeschäft" that help facilitate redistribution or other economic operations within or between households (1994:184-203).
While there is no doubt that redistribution and reciprocity were important economic mechanisms in antiquity, any conclusion that markets or at least market behaviours did not exist in the ancient Near East is simply not tenable. Perhaps the most compelling case study for private enterprise and price-fixing markets is the Old Assyrian trade network. The network, though protected by international treaties, subject to taxation, and occasionally subject to state interventions, was established and run by private entrepreneurs. These entrepreneurs created markets in Anatolia, centred at Kanesh, through which they acquired personal wealth in bullion (usually silver but also gold). From their home at Assur, the traders would carry tin and textiles to Kanesh where it was sold or exchanged for bullion, which in turn they used to acquire more tin and textiles in Assur. Depending on the local markets in Anatolia, the tin and textiles were sometimes first exchanged for copper and wool and then sold for bullion outside Kanesh. The entire network was underwritten by investment partnerships and private merchant bankers (Veenhof 2003:78-80). The documentary evidence shows that the prices were not fixed and indeed subject to market forces of supply and demand (Veenhof 2003:105-116).
Even in Egypt, there is evidence for private enterprise and price-fixing markets. O’Connor observes that while some individuals were completely dependent on the state, most received salaries and contributed to the state only ‘part-time’ (1995:320). Consequently, they "were able to engage in well-developed entrepreneurial activities … [where p]rofit was derived from agricultural surplus, direct access to raw materials and their sources (mines, quarries), and participation in intra-Egyptian and foreign-trading networks" (O’Connor 1995:320). Significantly, the Heqanakht Papyri illustrate just this point. It seems from the papyri that Heqanakht may have owned his land as well as the rights to rent the fields, cultivate the land as he chooses, and employ labour at variable rates.
Moreover, in the Ur III period—the period of one of the most heavily bureaucratic systems of the ancient world, there is also strong evidence for markets. In a study of the Umma damkar accounts, van Driel definitively showed that silver functioned as currency and the prices of goods were subject to market fluctuations (2002). Steinkeller further elaborated on the private economic activity in his analysis of the Ur III economy. He argued that the Ur III economy operated on a quota system that assigned a significant portion of the economic activity to the state but once the quotas were met individuals were entitled to use their surpluses or apply their skills for themselves (2004). Steinkeller also analyzes the Umma damkar accounts and similarly concludes, as Van Driel, that Umma merchants are engaged in significant private enterprise, albeit within the institutional economy (2004:99-103). Still, Steinkeller does not believe that the level of private enterprise in the Ur III economy or "ancient Mesopotamian economy more broadly" constituted a "market economy" as the prices did not fluctuate in unison over large areas, the economy was not self-regulating, and there was no labour market but he does assert that these economies exhibited "market-like reflexes or behaviors" (2004:111).
One of the fundamental problems in this debate is the tendency to posit very monolithic and static administrative systems that change little with time, geography, or strategic interests and/or alternatively to impose models on the evidence that are either anachronistic or highly ideological. Smith, adapting the work of Carole Smith on peasant economies, approaches the evidence with a more synthetic and flexible model that classifies ancient economies by the level of commercialization and the type of political system (2004:78-81 PDF). This scheme gives some credence to the tensions between commercialization and political systems. Under the scheme, ancient Egypt is classified as an uncommercialized territorial state, Assyria as an intermediate commercialized empire, and Old Assyria as an advanced, precapitalist, commercialized city-state (Smith 2004:79 PDF). The advantage of this approach is that it puts ancient economic systems on a continuum rather than imposes a this or that model. It also allows for considerable variation in time and place, which is preferable to the teleological development hypothesized by Steinkeller and many other ANE historians (see esp. Steinkeller 1994:110-111).
Law 'Codes' in the ANE
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