The best known and most complete of the ancient pre-Roman law codes is that of Hammurabi, Eighteenth Century BCE ruler of Babylon. It was the Hammurabi Code that said that one who destroys the eye of another should have his own eye put out as punishment and one who murders should himself be put to death, thus giving rise to the expression ďan eye for an eye and a tooth for a toothĒ.
It is unlikely that Hammurabi was a great jurist making up laws on the spot, but rather a pragmatist who sought to put in writing the judicial practices of his day. Victims expected to be avenged; putting the penalties in writing acknowledged societyís interest in crime and punishment and sought to establish a maximum retribution. All too often the victim or his family had gone beyond what the perpetrator or his family thought was appropriate and had begun an endless cycle of revenge. Hammurabi felt that once the perpetrator had paid the price the incident should be considered closed.
Elsewhere in this website I have stressed the need to look at the past through its own eyes and not through our own. The following principles might well be questioned today but their validity in the Ancient World was regarded as self-evident:
- Social order was more important than individual rights
- Womenís sexuality should be sacrificed to ensure legitimacy
- A familyís wealth should be administered by the husband/father
- Women, especially widows and divorcees, needed societyís help
Keeping these axioms in mind will help us see Hammurabiís Law Code in the same way the Babylonians saw it. Numbers in brackets refer to the section numbers in the code.
Perhaps the clearest example of the sacrifice of individual rights on the altar of social order is the provision that would spell death for the builderís son if a new house collapsed and killed the ownerís son. A wife may or may not have been considered property in the same way a son or daughter was, but her sexuality belonged exclusively to her husband, and any interference therewith had to be punished as much as any other serious theft.
Many in todayís world are worried that population growth will soon outstrip the resources of planet earth. The reverse was true in the Ancient World where society needed more and more workers and families needed young people as a guarantee the old would not be left destitute and lonely. People took pride in having a large number of offspring for they were living up to their social responsibilities and, of course, guaranteeing they would have someone to look after them in old age.
Unwanted babies were exposed by many ancient societies. Should the children of a slave or concubine be raised by their mother as a separate family or together with the other children of the father and his wife? To the extent allowed by the laws of each society, fathers regularly had to decide whether to claim any newborn as his child. At the head of the list of undesirable babies were those conceived as the result of a wifeís affair. While motherhood was obvious, fatherhood was not. The solution was to place severe restrictions on female sexuality. The double standard would remain almost universal until the development of a reliable means of birth control in the second half of the Twentieth Century.
In the Industrial World it is possible for men or women to live on their own for a period of time between leaving their parentsí home and getting married. That option does not exist in an agrarian society. If people are going to live in family units anyway, perhaps it makes sense to have assets owned by the family, not the individual. While Babylonia appears to have had no law against women owning property, they did not do so as a matter of course. In the normal state of affairs, the husband or father was the custodian of the family assets.
The Ancient World knew perfectly well that all of this left women at a certain disadvantage. The system worked very well in normal, happy marriages, but when disaster struck, whether it be death, desertion or divorce, it was usually the woman who paid the price. We need to look at how the legal system attempted to redress this economic inequality.
Most women expected to marry and have a family. A fair body of love poetry would suggest that girls did have some say, but marriage, at least in theory, was arranged by their fathers or brothers. According to the Hammurabi Code a contract was necessary to make a marriage. Based on the few that have survived, the contracts dealt mainly with what would happen if the marriage ended through death, divorce or desertion, but other clauses might exempt each from the otherís prenuptial debts or even require the bride to serve as servant to her mother-in-law.
The most important item to be negotiated was the size of the bride price.
We have seen that pre-literate societies used bride price to compensate the brideís family for the loss of labor and Israelite society restricted it to a token amount as a symbol of engagement. In Babylonia the bride price almost always became part of the dowry. Depending on social status, the bride price could represent a significant transfer of wealth---perhaps a house and several acres of land--- but at the bottom of the economic ladder it might have been little more than an item of furniture or some kitchen utensils. Whatever it was it was, it became part of the new householdís assets and as such was administered by the husband, but legally it had to be kept separate for it was designed for the support of the wife and her children. (151-152)
It frequently happened that the bride remained in her fatherís house for as much as a year after the contract was signed. If in the course of that time the groom changed his mind he did not have to marry her but he lost the full bride price. (159) The brideís father might also have changed his mind, in which case he would have been required to refund the purchase price in full (160). If a wife died before giving birth to a son the dowry, less the bride price, was returned immediately to her fatherís house (163-164). We will see later how the law strictly regulated the disposal of the dowry in other cases. Daughters did not normally inherit anything from their fatherís estate. Instead they got a dowry that was intended to offer as much lifetime security for the bride as her family could afford.
At marriage a womanís sexuality became the property of her husband. Adultery was defined in Babylonia as elsewhere in the ancient world as a sexual relationship between a married woman and a man not her husband. The marital status of the man was irrelevant. Even the appearance or possibility of adultery was taken very seriously. A wife caught in the act of adultery was to be tied to her lover and thrown into the water and drowned. A husband could save his wife but then he had to save her lover as well. (129)
By its nature adultery is a secretive activity, yet the mere possibility of such a serious offence was disruptive of the social order. If a womanís husband accused her she may in the presence of a priest swear to her innocence and then return to her husbandís home. If someone else accused her she would have to undergo an ordeal in which she would swear before the gods to her innocence and then jump into the river. If she drowned it was a sign of guilt; if she survived it meant that the river spirits knew of her virtue and saved her. (Note that this is the reverse of the medieval European ordeal.) To the modern mind judgment was based on the womanís ability to swim, but the ancient Babylonians were convinced of supernatural intervention. Swearing innocence was not as easy as it sounds because most people were quite certain that the gods would punish anyone who lied in their names, but any wife willing to risk divine retribution was free to return to her home if her only accuser was a jealous husband. If an outsider laid the charge the woman was likely to lose because few in Babylonia knew how to swim. Whatever the justice of the verdict for the individual, the matter was settled and order was restored in the community. (131-132)
Although marriages were arranged by the parents, there is no reason to suppose that they did not involve considerable love, affection and mutual support. Some relationships were bound to fail, however, and the code spelled out in considerable detail all of the options. If he simply ran away and deserted her she was free to marry someone else; even if he returned later he could not reclaim her; nor could she opt to return to her first husband: the Code, not the woman, made the choice. (136)
A man could divorce his wife without giving a reason, but if she had borne him children there were some serious conditions: she kept the children; she got the dowry; she also got the use of a field or property so she could raise her children. When her ex-husband died she got a portion of his estate equal to that given to each of her sons and was free to marry someone else. (137) If a wife had no children she could be divorced by simply returning her dowry along with a sum equal to the purchase price. If there was no purchase price he had to give her one mina of gold. A shepherd could expect to take about six years to earn such a sum so in theory at least it could have been invested to go some way to maintain her. (137-140)
If the woman wanted out of the marriage or if the husband wished to avoid returning the dowry the courts had to be involved. If she could demonstrate her innocence and his neglect she could take her dowry and children and return to her fatherís house. If it were established, however, that she was to blame and had neglected her house and husband, then he sent her away without dowry or children; if he wished, he could opt to keep her as a servant. In serious cases the court might rule that she should be thrown in the water and drowned. (141-143)
Throughout the Ancient World childlessness was considered to be a serious problem. If a wife failed to bear children she might give her maidservant to her husband. If the maidservant produced a baby it counted as the wifeís child. If such a maidservant started to take on airs and act the equal of the wife she could not be sold but she would be kept strictly as a slave. If neither wife nor maidservant produced a child a man was permitted a second wife but again she was not allowed to be equal in status to the first wife. If his wife acquired a long-term illness he could take a second wife but he must continue to look after his first wife for as long as she lives. She could take her dowry and return to her fatherís house if she wanted to do so: the choice was hers. (144-149)
A wifeís dowry was administered by her husband as part of the family assets. He had no say, however, in its ultimate disposal. If she died childless, her dowry reverted back to her family---her father, if he was alive, otherwise her brothers. If she had sons, they would share it equally. A man divided his estate among his sons after having provided a suitable dowry for each daughter and an appropriate bride price for each son. If he died before arranging all of this his heirs were expected to do so before dividing the balance of the estate. If a man had children by two wives, all of his sons shared his estate equally; they got a portion of their birth motherís dowry but nothing from their stepmother. (166-167, 183-184) Likewise a woman who had children by two husbands divided her dowry equally among her sons by both marriages. (173)
If in life the father acknowledged sons by a slave or concubine, they were entitled to share equally in his estate. If he had not acknowledged them they had no right to inherit, but the slave or concubine and her children were freed on his death. (170-171)
The marriage gift was property set aside at the time of the marriage for the support of the bride after the death of her husband. If no such gift was made a widow was entitled to a share of her husbandís estate equal to that of a son. She also had the right to remain in the family home for as long as she lived. If she opted to remarry she would, of course, have to move and she would lose the marriage gift. A widow with dependent children required judicial consent to remarry. Her first husbandís assets were inventoried and kept in trust for his children. (172, 177)
A father might have dedicated a daughter to serve a particular god as a nun. Apparently some girls made this choice themselves as an alternative to an undesirable marriage. The nun was still entitled to her share of her fatherís property as a dowry even if she did not marry. Unless he gave it to her outright it would be administered by her brothers on her behalf after their father died. (178-182) If she became a hierodule (a lady of high standing in a temple) or a Marduk priestess her dowry was only a third of the normal size because such women had a number of tax advantages.