Rechtsgeschichte

Wissenschaftliche Veröffentlichungen

THE LAWS OF ESHNUNNA

by REUVEN YARON

Second Revised Edition

THE MAGNES PRESS, THE HEBREW UNIVERSITY
E. J. BRILL
JERUSALEM-LEIDEN

CHAPTER FOUR

ADMINISTRATION, COURTS, PROCEDURE

FRAGMENTARY INFORMATION

Concerning the administration of the kingdom of Eshnunna, its system of courts and the procedure followed in them, the LE convey only very limited and fragmentary information. It may be said to consist only of some odds and ends, a word here, a phrase there, to be collected from all over the Material. In this respect the LE are in marked contrast with CH, which allots a prominent place, at the very beginning, to such matters as false accusations, evidence, ordeal, misbehaviour of judges, and the like. This difference becomes especially marked where a topic is treated in both sources. LE 40, on the purchase of stolen property, limits itself to the laconic statement that the buyer la ukin -"has not established" the identity of the seller; this is to be compared with the enumeration of details and possibilities, step by step, in CH 9-13. One gets the impression that the interest of LE centres on the question of substance rather than on procedure and proof. This state of the Material will necessarily determine the character of the chapter, since it cannot be our wish to deal in any detail with matters not reflected in the text itself.

ORGANIZATION OF THE REALM: KING AND PALACE

One is left almost completely in the dark about what might be called in modern terminology - the constitutional structure of the realm, and the organization of its administration. At the top there are the king (LUGAL – sarrum) and the palace (É.GAL = ekallum). Though closely related, they are by no means freely interchangeable, and their demarcation might be significant. Certain powers are specifically reserved to the king. So the jurisdiction in capital cases (LE 48; incidentally, such reservation need not preclude delegation). He is mentioned (LE 58) as the source of a particular provision, the

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promulgator of a simdatum ("decree, ordinance, regulation").1 Beyond the specific, one may assume that residuary powers, Le. powers not expressly allotted to others, will also have been vested in the king.

By contrast, the palace is rather elusive, impersonal, amorphous. It may denote the "administration",2 those who run the day-to-day affairs of the realm, ultimately at the king's behest, - but in fact relieving him of a great part of the burden and presumably often acting on their own. The palace too occurs twice in the LE, in secs. 34/ 35 and 50.3 In the first it figures in a private capacity, as the owner of a slave child which had been delivered by its mother to an outsider. Its function in sec. 50 is not as obvious: the palace is indeed mentioned (together with the muskenum) as owner of lost property which had been misappropriated (Tablet B iv 8), but the final provision, threatening intervention by the palace, need not depend on ownership. lt may reflect the fact that the culprit is a public official.

"CITY AND MASTER”

An expression alsu u belsu - "his city and his master", occurs in LE 30; this section concerns the marital rights of a man who "hated (izir) his city and his master", and absconded.4 The city figures in Old Babylonian legal texts, inter alia, in compound phrases, like alum u rabianum - "the city and the mayor",5 or alum u sibutum - "the city and the elders",6 but there is in them no parallel to alum u belum - "city

1 Note also the reference to "kingship", in line 3 of the heading.
2 For ekallum, see Driver?Miles 1952:107, note 4; a good description is "die Beamten im Regierungsgebäude" (Kraus 1973: 75); in substance, this is not very different from "Verwaltung" (offered already by Walther 1917:149). The rendering "Palast, palace" (for which lastly Kraus 1984: 329) has the advantage of avoiding too close links with modern terminology. The term "Obrigkeit", occasionally employed by Kraus, is too German in its flavour.
3 The actual situation may have varied from king to king-. see Kraus 1974a: 259, remarking that "die eigentlichen Entscheidungen dem König persönlich vorbehalten waren, von dessen Laune und Charakter es wohl auch abhing, wie intensiv er sich mit der Verwaltung beschäftigte".
4 The same situation is dealt with also in CH 136; for a different case of political entanglement see MAL B 3.
5 See C H 23, 24.
6 Schorr 1913, no. 259: 19f.; for additional references see CAD A/i 383.

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and master" (or "lord"), which seems altogether vague and of uncertain import.7 lf belum refers to the king, one wonders why his usual title sarrum - is not employed; also one would expect him to be mentioned first. An explanation may possibly be found, if one is justified in tracing the origin of this expression to a similar one occurring several times in Old Assyrian texts close in time to the LE.8 It is usual to interpret alum in these texts as referring to Assur, the City Uust as urbs, without further specification, often refers to Rome9), and belum as the Stadtfürst, the Prince of Assur.10 The fact that the City is given precedence over the Prince is explained by its being endowed with divine attributes, being actually identified with the god Assur. The personification (or rather deification) of the city finds expression also in the oath formulae nis alim - "oath of the City” 11 or nis alim u ruba im - "oath of the City and the Prince",12 in which alum takes the place which is ordinarily reserved for the deity.13

lt is then submitted that alsu u belsu of LE 30 may have been derived from an Assyrian provision, dealing with one who hated "the City and his Lord" (alam u belsu), in other words became involved in subversive activities, directed against the ruler, hence by implication also against the patron deity.14 If this is correct, it may bear also on the dating of the

7 For alu u belu in omen texts see CAD A/ i 383b (top), 388b (top).
8 See Eisser-Lewy, nos. 253 (and VAT 926 1, quoted there), 325a: ana alim
u belia awati bila - "bring my matter to the City and my master".
Eisser-Lewy, no. 298 provides that certain tablets mahar alim u belini
issakkunu - "be deposited before the City and our master". In Eisser
Lewy, nos. 325 and 326, there is a request that alum u belum dini liddin
- "the City and the master may judge my case". And see already
Szlechter 1965: 290, note 6.
9 See Quintilianus 6.3.103: "urbis appellationem etiamsi nomen proprium non adicieretur, Romam tamen accipi, sit receptum."
10 See Landsberger 1925: 8; Goetze 1957. 72; Garelli 1963: 324f.-, Larsen 1974:295; CAD A/i 383,388a.
11 E.g., Eisser-Lewy, nos. 6, 9, 239, 241, etc.
12 E.g., Eisser-Lewy, nos. 253, 306, 325a.
13 The name of the city as part of the oath formula occurs eccasionally also in documents from Sippar: e.g., in Schorr 1913: nos. 2, 32, 86, 87, 169, 182. There is, however, the significant difference that in the Sippar documents the city usually comes last, after god(s) and the king (no. 32 has town before king; in text 169 the king is omitted).
14 Cf. 1 Kings 21: 10, 13. For a close connection of the spiritual and the
temporal, see also Digesta Iustiniani 48.4.1 pr: "Proximum sacrilegio est

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LE, since the short period when Assyria is believed to have been governed by Naramsin, King of Eshnunna,15 would be particularly suitable for such a reception. This would bring the Laws very near to the times of Hammurabi.16
It should be stressed that our remarks are confined to the phrase as such. The import, context and consequences need not have been the same. As for the import, one ought to note that in LE the suffix -su is added. the City becomes "his city", any city. It is a return to the local, provincial level. Thereby the reference to belum becomes awkward and incongruous, giving rise to the questions which have already been noted. If the king is meant by belum, what place remains for alum at his side, as the object of "hatred"- As for the context, in LE 30 only the highly personal matter of a fugitive's rights vis- à-vis his wife is in issue, but the postulated Assyrian source of "hating the City and his master" may have dealt with the situation on a much wider basis. The consequences are in turn determined by the context: in LE all that happens is that on his return home the husband is denied the power of interfering with a second marriage which his wife may have contracted. 17 A political undertone is indeed present in LE 30, but it is weak and no stress is put on it.
While the Assyrian element in this provision of the LE is admittedly a matter of hypothesis only, one is on considerably firmer ground when comparing LE 30 with the corresponding section 136 of CH. 18

OFFICIALS
LE 50 mentions the title of some officials, who may possibly have been involved in the misappropriation of fugitive slaves or stray cattle. Those specified are the sakkanakkum (GÌR.NITÁ), sapir narim and bei tertim. The task which they Ought to have fulfilled - the seizure of lost property and its delivery to Eshnunna - is of a purely administrative

15 Cf. Landsberger 1954: 35, note 24; Edzard 1957: 164
16 Naramsin was followed on the throne of Eshnunna by his brother Dadusha, who was an early contemporary of Hammurabi; see P. 20, note 6, above.
17 See PP- 208f- below-
18 For a detailed discussion of the relation between the two sections, see pp. 89ff., above.

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nature, but it does not enable us to delimit exactly the scope of their functions. The sakkanakkum is the king's highest representative in a particular town; 19 as such he takes an active and leading part also in the adjudication of lawsuits.20 He is usually designated as the sakkanakkum of a town, e.g. of Saduppum,21 in one text also as sakkanak larrim "sakkanakkum of the king".22

Thc position occupied in the hierarchy by the sapir narim is below that of the sakkanakkum, and this is indicated also by his place in the list. In Old Babylonian texts there occur various officials who bear the title of sapirum - "one who issues commands" (Gebieter), the noun is derived from saparum, basically "to send ", hence "to send an order, to command" etc. As for the sapir narim, his main task will have been to supervise the systern of irrigation, of vital importance to the economy of the country, but one finds him exercising also other functions, including judicial ones.23 By contrast, it would appear that bel tertim is not the designation of a specific official, rather it is a general term denoting "person of authority", 24 there is then no room for any further definition of it.

THE WARD (babtum)

Another legal entity occurring in the LE is the babtum - "ward, district". In sees. 54/,56/, and 58, the babtum has the function of giving the owner due warning (ana belisu usedi - "had [it] made known to its owner") concerning the dangers arising out of the fact that his ox is a gorer (respectively, that his dog is vicious, or a wall of his house is sagging). We do not know how the ward went about its business, e.g., by what procedure it gained cognizance of the matter; but the occurrence of such functionaries as the wakil babtim -"overseer of the

19 For remarks on this oflicial anä the variety of his functions, see Schorr
1913: 341; Landsberger 1915: 508, Walther 1917. 127ff.; Förtsch 1917.~
160ff., Krückmann 1932:445a; Goetze 1956: 127.
20 See, e.g., HG 111 (1909) no. 743; Schorr 1913, no. 275.
21 See Goetze 1958:14, text 1 (IM 51503).
22 Quoted by Goetze, ibid., p. 11, note 19, from IM 51652 (unpublished).
23 See Walther 1917. 143ff.; Krückmann, ibid.
24 So Goetze 1956:127. AHw 120b renders "Beauftragter" ' "Kommissär"
Note also ARM 1, 61, lines 29-30: summa bel tertim UD 2 KAM uD 3 KAM
la uwer tertum ul ihalliq - "If a bei tertim did not issue orders for two
days (or) three days, would the administration not disappear-"

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ward",25 and its redum - "runner",26 shows that the babtum had developed a definite organizational structure.

In LE, and also in CH 251 / (which corresponds to LE 54/ ), the task of the babtum is one of supervision and prevention: on the one hand it is desired to anticipate trouble and forestall it, on the other hand the notice given serves to lay the foundation for the liability of the owner in case he does not heed the warning and damage ensUeS.27 Although in the LE the occurrence of the babtum is confined to this one topic, it adds to our knowledge in one respect: LE 58 goes beyond CH 251 /, in that it concerns a source of imminent danger which is inanimate; this widening of the ward's duty and of its competence would not necessarily have been obvious.

CH 126 and 142/143 show us further functions of the babtum. The former gives expression to duties of the ward, rather than to its powers: a man claims that property of his has been lost, and accuses his babtum in this connection. When his allegation is shown to be unfounded, he has to pay a double penalty to the babtum. It is a necessary implication that in certain circumstances, that is to say if the claim had been true, the babtum might have been liable to make good the loss.28 In sec. 142/143 the babtum is charged with the finding of facts in a severe conflict between a husband and his wife; it is unlikely that the babtum was itself competent to render judgement, since the case may have involved the capital punishment of the wife.

JURISDICTION

LE 48 should now be considered. The section is poorly preserved, and perhaps altogether incomplete;29 it deals with matters of jurisdiction, assigning cases involving a penalty from 20 to 60 shekels to some tribunal the designation of which has been lost,30 but reserving awat

25 See, c.g., ARM VI, 43, line 18.
26 Schorr 1913, no. 123, line 6.
27 See pp. 297f., below.
28 It would take us too far to go into all the details and difficulties. But sec the comment of Driver-Miles 1952: 244f., who regard CH 126 as concerning a case of deposit.
29 See p. 28, above.
30 For various restorations which have been proposed, sec the notes to the section- n. 72? above.

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napistim – “a charge (concerning) life" (i.c., "capital" cases) for the king. Nothing comparable occurs in any other cuneiform collection of laws.31 It has been noted that the extant text does not provide for the adjudication of cases where the penalty is below 20 shekels, as in the preceding sections 42 (for mehes letim - "a slap in the face') and 47 (for a bodily injury, the nature and circumstances of which are not yet clear to us). The absence of any provision for cases in excess of 60 shekels (= 1 mina) may be due to the fact that the LE (just as later the CH) do not impose fixed penalties higher than that sum.

The term awat napistim (and also din napistim - "a case of life") has usually been understood as implying that the life of the accused is in jeopardy: his conviction will (or may) result in the imposition of the death penalty. This may indeed be the rule, but a document from Mari shows that a stiff pecuniary penalty may sometimes have been substituted. In ARM VIII, 1 a payment of 200 shekels is provided in case of contravention of an undertaking, and this sum is termed kasap din napistim - "silver of a case of life".32 Indeed, one must not lose sight of the difference of context: the document from Mari is a contract. Nevertheless, it seems reasonable to assume that the substitution of silver for life will have had its origin in the sphere of judgements in matters of delict, with the sovereign exercising his power of mercy.33 The fact that the death penalty is not expressly mentioned in LE 58 may indicate that composition was possible.

Another point emerges rather clearly from the fragmentary LE 48. There was in legal Akkadian of the Old Babylonian period (or at least in the LE) no abstract term for "jurisdiction". As a somewhat clumsy substitute, LE 48 uses the preposition ana, in the clause awat napistim ana sarrimma - "a charge (concerning) life (belongs) to the king himself".34

31 See Korosec 1964: 90.
32 See already the remarks of Boyer 1958.- 168; also Petschow 1958: 562,
note 60. Compare further the phrase napsate mullu in M A L 50, 52, C 3;
ARM XIII 145. For a discussion of this phrase see Driver-Miles 193.5:
1 lOff.; Cardascia 1969: 242, Paul 1970: 72; Finkelstein 1981: 22, note 1.
33 Cf. Yaron 1962a. 245ff.
34 Sornewhat loose is Landsberger's rendering (1968: 101), «... obliegt dem König"; ana does not carry the notion of a duty incumbent on someone. See GAG, sec. 114d; AHw 47f.

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THE ROYAL ORDINANCE (simdat sarrim)

The phrase awat napistim ana sarrim has to be juxtaposed with the phrase (napistum) simdat sarrim of LE 58, which has repeatedly been rendered by "jurisdiction of the king".35 I found "jurisdiction" questionable, either way: if it were the correct rendering of simdatum, why was that term not used in sec. 48 (which clearly concerns jurisdiction)- If “jurisdiction” had been intended in sec. 58, would they not have repeated the wording of sec. 48 ... ana sarrim- True, the argument is by no means conclusive, but it justifies a closer look at the matter.

The exact import of simdatum and simdat sarrim has been the subject of repeated discussion, a detailed survey of which was given by Lautner.36 If some early, overly literal renderings are disregarded, the predominant view could he formulated, with San Nicolo,37 as follows: simdat sarrim is a royal ordinance ("Satzung”, concerning substantive law or procedure.

Enter Landsberger, with a paper which was to have much impact, "Die babylonischen Termini für Gesetz und Recht".38 While the discussion of simdatum occupies central place, it is in fact ancillary to another question, that of the role of (written) laws in Old Babylonian society. In an isolated, but revealing sentence, Landsberger notes: "Wir müssten Gesetzen oder gesetzesartigen Bestimmungen hervorragende Bedeutung im Denken und sozialen Leben der alten Babylonier einräumen, wenn wir berechtigt wären, simdatu mit 'Gesetz' oder 'Satzung' zu übersetzen" (p. 225). This observation is not continued. It is only its formulation, as an unreal supposition, which guides the reader to supply his own (negative!) conclusion: "wir sind nicht berechtigt".

Why this concentration on simdatum? The term occurs in a considerable (and growing) number of Old Babylonian texts, and its accepted rendering by "Gesetz" or "Satzung" was a major obstacle in the endeavour to redefine the nature of the CH (and, one may add, also

35 So Goetze, in all his translations; followed by Böhl, Korosec, Haase
(both translations), Bottéro. See also CAD S 195b; Petschow 1968a:
140, note 5. Similar is the term "Verfahren", Kraus 1979. 61.
36 Lautner 1936: 177-190; and see especially p. 177, note 527.
37 1931: 68f.
38 1939: 219-234.

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the other Old Babylonian law texts).39 But, perhaps, that obstacle was imaginary only, and would disappear once one had achieved a better, more penetrating understanding of simdatum?

An examination with ulterior motives in mind has its obvious risks. Too easily one might be led astray by the desire to achieve a particular result. "Der Wunsch ist der Vater des Gedankens": even scholars should heed the warning implicit in this proverb. Peer criticism is an important corrective, but unfortunately it is not always applied impartially. Towering figures may - in fact though never in theory be exempt from it.

At the very beginning of his paper (p. 220, top), Landsberger observes that simdatum "wurde bisher allgemein mit 'Gesetz' oder 'Satzung' übersetzt ... ;40 insbesondere in der Verbindung simdat sarrim schien diese Übersetzung voll gerechtfertigt; aber im folgenden soll gezeigt werden, dass sie viel zu eng ist, dass simdatu zwar die Gesetze mit einschliesst, aber die gesamte geltende Rechtsexekutive, einschliesslich aller ungeschriebenen Regeln und Praktiken, umfasst". In this fashion, the alleged semantic scope of simdatum is considerably broadened. In effect, this means also that the concrete import of the term is much diluted: what had been specific, more or less well-defined, has become non-descript, vague.

39 For a description of the switch in attitude, see Kraus 1960: 283f. "Seit
ihrer Entdeckung gilt die Inschrift der in Susa gefundenen Stele des
Hammurabi, als ein Gesetzbuch ... Der Codex Hammurabi, wie die
Inschrift seit ihrer Veröffentlichung heißt, wurde als Gesetzbuch
behandelt, interpretiert, kommentiert, analysiert. Koschaker half 1917
der Meinung zum Durchbruch, es handle sich um 'einmal Kodifikation
und zum anderen Reform'...“
"Für die vergleichenden Rechtshistoriker war der Codex Hammurabi
längst zum Mittelpunkte des altbabylonischen Rechtes und zum Fundament
aller ihrer Arbeiten über altmesopotamisches Recht geworden,
als Eilers 1932: 8, ein Schüler von Koschaker und Landsberger, unter
dem Einflusse Landsbergers 1932 den Verdacht äußerte, dass 'das
große Gesetzgebungswerk des Königs nur Repräsentation geblieben
und niemals Rechtswirklichkeit geworden sei."
40 There are many near?synonymous renderings into German. AHw 1102
renders throughout "königliche Verordnung". Kraus, 1979:58, uses, for
part of the texts "(königliche) Maßregel”. We shall stick with "Satzung",
without objecting to any of the others.

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It is of significance, that Landsberger does not, cannot exclude the rendering "Satzung"; this finds expression also elsewhere.41 Incidentally, this points to a major weakness in Landsberger's position. Unable to replace "Satzung" throughout by one different term, he is forced to opt for multiple renderings.42 As a matter of method, this means that the basic rendering, accepted by all (i.e., also by Landsberger) which sees simdatum as a royal fiat, must serve as a starting point, for every single text. He who wishes to deny it can do so only for particular occurrences, and has to show why "Satzung" is not suitable. Otherwise too much room is left for arbitrariness, and resulting uncertainty. So, for example, Landsberger's rendering of simdat sarrim in CH 51 and M (= 89) has not found response.43

In his detailed discussion Landsberger accords excessive significance to the host of prepositions by which simdatum is governed. The import of simdatum does not depend upon the divergences in import of kima, ana, ina (and the like). An interesting point is made coneeraing warki ("after"): this has to be taken in a temporal sense, and refers to legal acts which are later than a given simdatum (and therefore not affected by it).

41 See p. 226: "Wir entnehmen diesen Belegen, dass simdatum sich auf ein Gesetz oder dessen Inhalt beziehen kann", or, at p. 230, where he renders simdatam sakanum by "(allgemein) Recht schaffen", and explains this as "synonym mit mesaram sakanu -'gerechte Ordnung schaffen'.

42 Multiple renderings may be necessary, but require justification. And See the discussion on muskenum, pp. 132ff., below (and already YLE, pp. 83ff.).

43 For Landsberger simdat sarrim in these two sections, means "dass für die in ausserordentlichen Fällen zugelassene Umwandlung von Geld- in Naturaldarlehen gerichtliche Regelung vorgeschrieben war" (p. 230). The reasoning that follows is tortuous, leading even to the assertion that in C H 51 the phrase ana pi simdat sarrim may be an addition ("Zusatz"). By contrast, Driver-Miles render "ordinances of the king"; and so Finet, "ordonnances du roi". Meek (1950: 168f.) has "ratio fixed by the king", and comparably, CAD S 195b, "royal tariff". Lastly, see Kraus 1979: 61f.: "So kann ich nicht glauben, dass in CH 89/M mit den Worten kima simdat sarrim 'gerichtliche Regelung' vorgeschrieben wurde, wie Landsberger ... denkt." And, "... nach modernem Gefühl scheint mir hier 'nach diesem Paragraphen' beabsichtigt ... Der nur einmal belegte Ausdruck ana pi simdat sarrin; in CH 51 scheint mir die Auffassung 'gemäss diesem Paragraphen' zu bestätigen. Landsbergers Erklärung ist gezwungen."

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But even here the essence of simdatum as a royal ordinance remains the same. That ordinances may have a wide range of use, may differ considerably, is not denied.

Occasionally correct, literal renderings are modified by "explanatory" paraphrases. At p. 226, note 33, the phrase kima simdati sa mahrika ibassu is translated "... gemäss der simdatum, die vor Dir ist (die Du besitzest) The literal rendering is quite sufficient, but if a paraphrase is desired, then "die Dir vorliegt" would have been preferable. At p. 227, Landsberger's paraphrase is utilized in forming the notion "richterliche Gewalt, die der Besitz der simdatum dem Rechtssprecher gab". lf possession indeed enters the pieture,44 it would be simpler and better to see it as referring to the physical possession of a tablet on which the simdatum is written out,45 rather than the abstract power with which a judge would be endowed. Arbitrary is the paraphrase (at p. 23 1), of ina simdatim ina manahtika usellika -"ich werde dich 'nach dem Recht' (durch ein Gerichtsurteil) Deiner Investition verlustig erklären lassen". One fails to see why "nach dem Recht" is preferable to "nach der Satzung", nor why the circumscription "durch ein Gerichtsurteil" is necessary.

So far about Landsberger's paper. It has been much acclaimed, with "grundlegend" as its often-repeated attribute. Its influence peaked in publications such as Kraus 1958: 244ff.; Kraus 1960 (passim), and Finkelstein 1961: 103f. 1 am not aware that Landsberger ever returned to the issues which he had raised.46

Later one can discern a gradual retreat from the theses of Landsberger. His propositions concerning the character of Old Babylonian laws were scrutinized by Wolfgang Preiser, and greatly modified, in an important paper, hidden away in a little-read Festschrift.,47 15 years later the views of Preiser were endorsed by Kraus:48 "Zur Frage der Geltung der 'Gesetze' im modernen Sinne, die ich früher geleugnet

44 This is possible; even more so in the phrase kima si(md)atim sa ina qatikunu ibassu, ABIM 33: 12ff. (quoted in CAD Q 189b).
45 And see AbB i 14: 22, ana pi tuppi simdatim (noted in YLE, p. 79).
Regarding this document, see further Kraus 1984: 9.
46 Not necessary for our discussion is the footnote inserted by Landsberger, apud Kraus 1951: 158, note 5.
47 1969: 17?36.
48 1984: 114f.

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habe,49 verweise ich jetzt ... vor allem aber auf Preiser ... eine rechtshistorische Stellungnahme, welche in diesem Punkte meine einseitig philologische Ansichten in für mich akzeptabler Weise korrigiert."

We must return briefly to our immediate topic, simdatum, to note how matters developed after the 1939 publication of Landsberger's paper. He gained wide adherence, but there were notable exceptions. Driver-Miles 1952: 19 continued to hold that "simdatum is a concrete term denoting certain definite ordinances and does not mean abstract law or justice". And we have already mentioned the uniform rendering "königliche Verordnung" offered by von Soden in 1974 (AHw). The adherence of CAD S (1962) to the views of Landsberger was hesitant and lukewarm.

Of additional texts in which simdatum occurs, one might note especially two. In 1967 Finkelstein published an Old Babylonian fragment of CH.50 This is what he says about the colophon-. "The colophon, although only partially preserved, is of considerable importance. The preserved lines may be restored and read as follows: DUB si-im-da-[at Ha-am-mu-ra-pi // su i-na-é-ul-mas-NUMUN // DUB.SAR.TUR. This reveals the fact that the term simdatum could be used to denote the 'laws'."51 Two years later Finkeistein published a new fragment of the Edict of Ammi-saduqa.52 Sec. 4 ends in the following statement: sa ana simdat sarrim la utaru imat - "Whoever does not make refund in compliance with the king's ordinance, shall die."53 Kraus renders "wer nach (diesem) Paragraphen (scil. des vorliegenden Edikts) nicht restituiert, muss sterben", and I accept this as "inhaltlich korrekt".54

49 Kraus refers to 1960: 288?292, II and III.
50 1967. 39-48.
51 lbid., p. 42; sec also note 4, there.
52 1969c. 45-64.
53 Ibid., p. 50; see however, the elaboration in the "Commentary by Sections", p. 58, there: "whoever refuses to make such refund as required by the standing orders of the king shall be put to death"; and see, further, note 4, there: "Here 1 take simdai sarrim as referring not to the edict, but to royally endorsed usage in general, as applicable to any specific set of circumstances" (with reference to Landsberger, p. 220).
54 Kraus, 1979: 62. Note that here Kraus is in disagreement with Finkelstein (as quoted here. note 53).

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Particularly interesting are some texts apparently using simdatum in interstate treaties,55 referring jointly to both the parties. An interpretation, even within the wider, more varied framework suggested by Landsberger, is difficult. Quite hypothetically, one might mention some possibilities. In treaties between unequal partners, an overlord might impose his ukaz on his subordinate. This reality might be hinted at by the use of simdatum, even though it is called "their" simdatum. Treaties between equals might contain provisions necessitating separate decrees in the area subject to each. But all this is quite speculative. One might also contemplate a further possibility, namely that we have here a genuinely different use of simdatum.

To sum up: just as in other aspects of the paper, there is growing erosion in the support for Landsberger's analysis of simdatum. This process is not yet complete, as long as the division between "Satzung" and "Verfahren" (the terms distilled by Kraus from Landsberger's propositions) continues to be in use, even though with greater caution. As for simdatum in LE 58, 1 see no reason for a switch from "decree"56 to "jurisdiction", and the like.57

PROCEDURE

It remains now to consider those few elements of the procedure followed at Eshnunna, which are discernible in the LE. In sec. 25 occurs the phrase ana bit X sasum ? "to claim at the house of X". This phrase, it appears, reflects the moment when performance is due. At this stage, resort to a court is not yet actively contemplated, but litigation may follow if a positive response is not forthcoming. It should however be noted that ordinarily the claim is one put by a public authority for the performance of feudal services and extra-judicial coercive measures will have been taken to ensure compliance.58 In LE 25 the context is one

55 Put together and discussed by Kraus, 1984: 10f. See also von Soden 1985: 134.
56 "Decree", and equivalents in other languages, are offered in a series of translations; so in Szlechter 1954 and 1978, Borger, Saporetti, Beuzon, Kunderewicz. On simdat sarrim in LE 58, see further pp. 302f., below.
57 On simdatum see lastly Gumey 1987.- 197f.
58 See Kraus 1958:54ff. Walther (1917. 215) and Lautner (1936: 22) regard sasum as one of the terms for "to bring an action", "start litigation". The detailed examination by Kraus does not support this view.

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of private law: a bridegroom ana bit emin issi - "claimed consummation of the marriage" (lit. "claimed at the house of the father-in-law"), but was rejected by him.59

The verb sabatum ? "to seize" occurs in LE in several contexts, prior to litigation. It can refer to a person being held in connection with some offence, whether seizure is in flagranti delicto,60 or not.61 Again, if a person sees a chattel of his in the possession of another, he will "seize" it, that is to say, will formally claim it. So in LE 33, where a man recognizes his slave child, who had come into the hands of a free woman.62 Of no technical legal import is "to seize" in LE 6 and 50.63 Not evidenced in LE and CH is the use of sabatum to denote a preliminary stage, in the commencement of proceedings: a claimant "seizes" his adversary and hales him into court. Finally, a person may be "seized" in the demand that he give evidence.64

Not every conflict need develop any further. A claimant might obtain satisfaction directly from his opponent. But in case he did not, he would wish to start a suit (dinum, awatum). To express the act of suing, some verbs meaning "to speak, shout" ' etc. are in prominent use. So ragamum, which is employed as a general term, in the sense "to claim, to suc"; in LE it occurs only once (sec. 30), and there in a negative way, ul iraggam - "he shall have no claim”.65 This is an elliptic formulation, equivalent in its import to a fuller version dinum su rugummam ul isu

59 See the detailed discussion, pp. 190ff., below. 60 So in LE 12, 13; possibly also in LE 26, j 28.
61 So in LE 49, where a man is seized ina wardim sarqim ? "in possession of a stolen slave"; cf. pp. 2671f., below. And contrast AbB viii 82, where the writer tells of having seized some persons ina saraqin - "while stealing".
62 Cf. CH 19. Note also CH 136, where the returning fugitive would lay claim to his wife. See already p. 90, above.
63 Similar to the usage of LE 50 is that of CH 17 and 20 (sabitanum "seizer').
64 On sabatum see further Walther 1917. 213; Lautner 1936: 12f. See also the full treatment of the verb in CAD.
65 So also in CH 162, 171, 175; slightly different is the use in CH 163/: there the husband, who is the subject of ul iraggam, is in actual possession of the object of possible contention, the dowry brought by his late wife; "he shall not claim" means there "he is not entitled (to retain)”. In CH 126 the verb occurs without negation; so also in many documents.

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- (lit.) "that case has no claim", Le., an action brought on these facts is bound to fail.66 "The brief ul iraggam may reflect the language of the private legal documents, in which the undertaking not to sue is often one of the main clauses.67,68

Rather undefined is awum - "to speak". There is no evidence for attributing to it the technical import "to sue", even though its derivative, the noun awatum (lit. "word, matter") is a term denoting “case, charge, litigation"(LE 48). The use of awum in LE 50 may be due to the identity of the offenders, and the notion behind ekallum surqam ittisu itawwi - "the palace (with) theft will charge him" may be one of extra-judicial, disciplinary retribution. This interpretation may find support in a document from the region of Eshnunna, IM 51234.69 An official is warned: in case there is a deficiency in the harvest of some sesame, ekallum ittika itawwu - "the palace will have words with you".70 Prima facie, an actual, definite offence need not at all have been present in this case.

Not used in the sense "to sue"(we have just seen) is sasum - "to call"; nor is qabum, another verb meaning "to speak". This occurs in the documents at the final stage of the proceedings, in the sense "to pronounce" a decision.71 A more specific term for "to sue" is baqarum: the proper use of this is in the sphere of claims of ownership, in vindication. It does not occur in the LE, but is frequent in CH,72 and also in the documents.73

After suit has been brought, there follows a stage expressed by the phrase (daiani) dinam usahzusu / nuti - "(the judges) caused

66 See CH 115, 123, 250.
67 See the detailed discussion by San Nicolò 1922: 39ff.
68 The verb dababum – “to speak" does not occur in LE and CH, but is
used in contemporary documents in the sense "to sue"; see, e.g., Schorr
1913, nos. 269: 4; 308: 18; 313: 2 1; see also Lautner 1936: 23.
69 Goetze 1958:35f., text 14:19ff.
70 Literally, "the palace will talk with you". Less pregnant is Goetze's
rendering? "When the sesame in question falls due, the palace will
negotiate with you."
71 See Schorr 1913, nos. 269: 26; 271: 11; 293: 10. Cf. the remarks of
Walther 1917.- 244; Lautner 1936: 36.
72 Secs. / 118, 150, 179; also in the context of adoption, secs. 185, 187, 188.
73 On baqarum, see Walther 1917.- 217; Lautner 1936: 6ff.; San Nicolò
1922.- 154ff.

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him/them to 'hold' the proceedings" (or the decision").74 This literal rendering is far from providing a satisfactory interpretation, and consequently widely divergent opinions have been voiced as to the exact import of the phrase. Vague in itself is the favourite German rendering "Prozessverfahren gewähren"; 75 very broad and consequently diffuse is the rendering "to conduct a trial, try".76 Lautner 1936: 27 Sees dinam suhuzum as expressing the court's readiness to entertain the case; Walther 1917. 218 relates the phrase to the opening of the proceedings ("Aufnahme des Verfahrens”), but would extend it to cover also later stages ("die Rechtssprechung überhaupt"). Landsberger suggests that by dinam suhuzum the parties express their submission to the powers of the court.77 Driver-Miles 1952: 71 render literally, "let (the parties to the case) have the law", and explain this to mean "to deliver thejudgement".78 Altogether, then, one is faced with a bewildering variety of suggestions.

Of all these, that of Landsberger seems closest to the phrase as it is before us. suhuzum is a causative form: while the judges are indeed the express or implied formal subjects, it is the litigants (or one of them) who are caused to do something, namely to proclaim their readiness to abide by the decision which will be rendered in due course.79 This interpretation is also well in accord with the central position occupied in Babylonian proceedings by the tuppi la ragamim - "document of not suing", by which the parties bind themselves not to renew the litigation.80

lt is a moot question whether the formal dinam suhuzum of LE 48 still reflected the realities of its time, or rather was a fossilized remain of earlier periods, when in each case the submission of the litigants had to

74 The object is as a rule in the plural, occasionally in the singular, Le. referring to one party only, the defendant: so in LE 48, and in NBC 8237 (see p. 271, below).
75 See AHw 19b.
76 Goetze 1956:119; CAD A/i 178a.
77 1939: 228: "... die Streitenden ... sich unter die Bindung der richterlichen Gewalt begeben (dinam ahazu)." And cf. Roman iudicium accipere, Oxford Latin Dictionary, p. 210 (no. 16); Vocabularium Iurisprudentiae Rormanae 1, col. 84.
78 Similarly Bottéro 196511966: 95: "rendre jugement à l’(accusé)".
79 See AbB vi 96: subsequent to dinam suhuzum, a litigant refuses to obey. He is summoned before the judge to Babylon.
80 See, instead of all others, Lautner 1936. 35ff.

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be exacted beforehand. It is notorious that terminology tends to remain as it was, even if no longer corresponding to the actual state of matters.

EVIDENCE AND OATHS

The LE tell us very little concerning the steps which a litigant (whether claimant or defendant) would take in order to establish (kunnum) his case.81 It may be noted that in comparison with CH documents occupy only a minor place in the LE: the only reference to a written instrument may be in sec. 27/28, in the context of marriage.82 Again, it must be borne in mind that quite possibly the Laws in this respect lag behind reality, and one should hesitate to draw conclusions from their silence. We are once more up against the very fragmentary character of the information supplied.

There is no reference at all to witnesses, nor is there mention of an ordeal.83 On the other hand, oaths occur in sees. 22 and / 37. In both the instances the oaths are assertory ones, a party’s solemn declaration concerning a past occurrence (/37), or concerning an existing state of affairs (22); promissory oaths do not occur in either LE or CH. In sec. /37 the oath is taken by the defendant, who thereby clears himself (exculpatory oath), and is absolved of liability: mimma elisu ul isu "he shall have nothing upon (- against) him".84 While this may appear as essentially similar to dinum su rugummam ul isu, considered above, there is the difference that in LE /37 this result is reached only after litigation, when each party has had his say, and - more particularly subsequent to the oath. The situation is more complicated in sec. 22: there the oath is taken by the complainant, who has to swear that there was no justification for the distress of his slave woman. On having

81 Cf. Goetze 1956: 108f.; Walther 1917.- 223ff.; Lautner 1936:32ff.
82 Ort CH 128, see pp. 201, 203f., below. Documents are mentioned in
connection with sale (CH 7), loan (47, 52), deposit (7, 122, 123) and the
hire of a shepherd (264).
83 In CH see secs. 2,132; and cf. Driver-Miles 1952:63ff.
84 For the same phrase in a different context, see LE 22 and 23 / 24. It may
have originated in the sphere of loan, with isu eli taken quite literally:
"to have something upon" - "to have something owing from". In sec.
/ 37 the import is more abstract.

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sworn he becomes entitled to compensation.85 It is a necessary assumption that neither party was able to produce written proof or witnesses.
In both sections the oath is taken by the deity: nis ilim izakkar ? "he shall swear by a (or: the) god'~ In sec. / 37 it is further specified that the ceremony of swearing takes place at the temple of the patron deity of Eshnunna, the God Tispak."86
Ostensibly, the right to take the oath improves the position, of the claimant in sec. 22, of the defendant in sec. / 37. There is another side to the coin: he who refuses to exercise his right has lost his case.87 Judgement will be given against him.
Nothing in the LE tells about the termination of proceedings and the execution of the judgement rendered.

85 See pp. 276ff., below. Cf. CH 120: there also it is the claimant who
swears and obtains satisfaction.
86 On oaths, see Driver?Miles 1952.? 466ff.; Walther 1917.- 191ff.
87 Cf. Digesta Iustiniani 12.2.38: "Manifestae turpitudinis et confessionis est nolle nec iurare nec iusiurandum referre”.