Acta Universitatis Lodziensis. Folia Iuridica, 99, 2022
https://doi.org/10.18778/0208-6069.99.04

Lena Fijałkowska^*

https://orcid.org/0000-0001-5674-703X

At the Dawn of Legal History: Teaching Law in Ancient Mesopotamia

U zarania historii prawa: nauczanie prawa w starożytnej Mezopotamii

As stated by Raymond Westbrook in his introduction to the monumental History of Ancient Near Eastern Law, “law has existed as long as organized human society” (Westbrook 2003, 1). But it is the invention of writing that allowed for at least some of it to be recorded, and therefore studied by modern legal historians. As it were, both earliest written documents and earliest legal records originate from the ancient Near East. Writing was invented in Mesopotamia in the second half of the fourth millennium and first used mostly for administrative purposes.^[1] Documents concerning legal matters, both public and private, start to become numerous only 500 years later, though the first ones seem to date back nearly to the beginnings of writing.^[2] The oldest known records of private law are stone artifacts, each probably documenting several transactions concerning large areas of land,^[3] whereas legal texts on clay tablets appear in the so-called Fāra period (2600–2450) and grow in number with time. As for public law, Entemena, ruling the city Lagaš in the 25th century, issued the first “restoration edict,” cancelling debts and liberating people assigned to corvée labor.^[4] His successor, Urukagina, claims to have implemented much broader reforms.^[5] In the next two and a half millennia, thousands of legal transactions were recorded on clay tablets, and for the much rarer royal acts durable supports like stone were usually used.^[6] They all testify to the existence of a rich and diverse legal culture, with clear principles and, more often than not, surprisingly sophisticated institutions.^[7] Therefore, the question arises as to the people involved in in its creation and development. The most visible to us are scribes who wrote texts of legal practice, since they are usually named at the end of them.^[8] These scribes were not professional lawyers in our sense of the word, but they did receive at least some training in law, allowing them to competently write contracts.^[9] However, little can be said about scribal education in the earliest periods.^[10] As recently shown by N. Kraus for the Sargonic era (24th–22nd century), though it is hardly possible to reconstruct the scribal curriculum, the education would have taken place at some kind of administrative facilities, perhaps in form of apprenticeship in local institutions, as the school tablets were discovered in the proximity of such centers, and the emphasis seems to have been on the administrative uses of writing (Kraus 2021, 168–169). It is noteworthy that hardly any school texts concerning legal matters were found, save for one lenticular tablet with a property sale. Therefore, it remains unclear how Sargonic scribes learned to create legal documents, though they undoubtedly did learn it, numerous contracts from the Sargonic period bearing testimony to their skills (Kraus 2021, 106–111).^[11]

The small number of school texts from the Ur III state (22nd–21st century) makes any study of the scribal curriculum of the period even more difficult. However, the evidence brought about by literary texts points toward a major change introduced by Šulgi, the second king of the dynasty. In one of the hymns written in his praise, he boasts of founding schools in the city of Nippur, reputed for its scholarship, as well as in his capital, Ur:

In the south, in Urim, I caused a House of the Wisdom of Nisaba to spring up in sacrosanct ground for the writing of my hymns; up country in Nibru I established another. May the scribe be on duty there and transcribe with his hand the prayers which I instituted in the E-kur; and may the singer perform, reciting from the text. The academies are never to be altered; the places of learning shall never cease to exist. This and this only is now my accumulated knowledge! (Šulgi B 308–317)^[12]

The same hymn starts with a depiction of Šulgi’s own scribal training and his mastery of the scribal art:

I am a king, offspring begotten by a king and borne by a queen. I, Šulgi the noble, have been blessed with a favorable destiny right from the womb. When I was small, I was at the academy, where I learned the scribal art from the tablets of Sumer and Akkad. None of the nobles could write on clay as I could. There where people regularly went for tutelage in the scribal art, I qualified fully in subtraction, addition, reckoning and accounting. The fair Nanibgal, Nisaba, provided me amply with knowledge and comprehension. I am an experienced scribe who does not neglect a thing. (Šulgi B 12–20)

Obviously, taking such a composition literally, as a mere account of events, would not be a good idea. However, the hymn clearly shows the importance of the scribal profession, confirmed in turn by the economic documents. The latter feature numerous scribes occupying various posts in the royal administration, from the highest (e.g. scribes at the court), to lower, but no less needed, at the palace and temples, performing various administrative tasks (Nissen 1993, 106–108). Their role in the field of law certainly encompassed writing documents of private practice as well as court records.^[13] The royal foundation of schools may have been a response to an increasing demand for scribes, generated by the needs of the large state bureaucracy. The so-called junior scribes, i.e. probably advanced scribal trainees/interns working in the administration to gain experience could be provided with food rations by provincial governors, as was the case at Girsu (Waetzoldt 1989, 39). Unfortunately, the only information on the material taught in those school is once again provided by literary texts, this time by the Edubba literature, i.e. Sumerian compositions describing various aspects of life at a scribal school.^[14] These compositions are not, obviously, accurate accounts of school life; rather, “they tell us much about how the scribes liked to view themselves and the educational process” (Black et al. 2004, 276).^[15] Be that as it may, they do provide bits and pieces of information on the matters taught, writing legal documents being one of them. In Edubba D, a student claims to have mastered the scribal art:

I want to write tablets: a tablet (of measures) of 1 gur of barley up to 600 gur, a tablet (of weights) from 1 shekel to 20 minas of silver, with marriage contracts that can be brought to me, partnership contracts (…), sale of houses, of fields, of slaves, warranties in silver, contracts of field lease, contracts of date palm cultivation, […], even adoption contracts, I can write all this. (Edubba D 40–48)^[16]

Much more is known about the scribal curriculum from the next period (Old Babylonian), since the number of school exercises discovered in several cities allowed for a reconstruction of school curricula and their local variations.^[17] As shown by Veldhuis for Nippur, the pupils first learned how to use the stylus and to write the elements of cuneiform signs and the simplest signs. A list of different combinations thereof followed,^[18] then came the list tu-ta-ti,^[19] and lists of Sumerian and Akkadian names. The next step consisted of the Sumerian lexical list ur5-ra, a thematic list of objects,^[20] followed by a series of more advanced lists, probably introduced at the same time as mathematical exercises^[21]. At this point, the students also had their first encounter with law, thanks to a list of legal phrases in Sumerian – Proto-ki-ulutin-bi-še (“at the agreed time” – the incipit of the list). The first 15 lines begin with this expression, followed by ca. 40 lines of verbal paradigms (he gave, he gave to him, they gave to him, he paid, he paid him etc.), and then the vocabulary of loans, sale, marriage, and inheritance.^[22] As with other lexical lists, first the pupils would have copied fragments written down by the teacher, and later they would have noted them from memory (Tanret 2002, 157). In Sippar, basic legal phraseology was taught a little earlier in the curriculum, before the list ur5-ra, by means of the Sippar phrasebook, a collection of terms and expressions concerning family relations, types of real estate, time designations, verbal paradigms and other terms used in Sumerian contracts (Veldhuis 2014, 188–190). Possibly in late Old Babylonian period that phrasebook became a part of the ur5-ra list, appended to it as its two first tablets (Veldhuis 2014, 156).^[23] It remained a part of the elementary education through the first millennium, whereas the Nippur phrasebook, better known under the name ana ittišu, became rare in the later times and is known only from a few copies from Assyria (Veldhuis 2014, 328–329).^[24]

Aside from legal terms and expressions, the Sippar Phrasebook also comprises a few so-called model contracts. This term refers to school texts containing one or more contracts in Sumerian, usually devoid of elements such as witnesses, date, and place, and unsealed. Some of them were written on prisms, i.e., multi-sided clay objects, others on large, multicolumn tablets; both types could contain even a dozen or more contracts. There are also teacher-student exercises, on the obverse of which, in the left column, the teacher would write the text for the student to copy multiple times in the right column. The reverse usually contained a previously studied literary or lexical text.^[25] It is not always clear, however, which of those texts are really models, and which are student exercises, either copied from a model, written on dictation, or composed from memory, using previously learnt legal formulae (Charpin 2017, 162). Another problem consists in establishing the relationship between those exercises and actual legal documents. In other words, are the formularies and vocabulary similar enough for the former to be a useful tool in teaching the composition of the latter? Studying a prism containing, among others, several model contracts, Roth concluded that it “reflects the legal reality of the Old Babylonian documents” (Roth 1979, 255). However, in her edition of model contracts from Nippur, Spada notes similarities, but also important differences between both types of documents (Spada 2018), and Charpin points out that several of the exercises from Yale edited by Bodine do not have any “real-life” counterparts. Besides, many of the model contracts are unprovenanced, and since local legal traditions could vary considerably, it makes their comparison with real-life documents a problematic endeavor (Charpin 2017, 163). Another question concerns the dating of the models used for this kind of exercises; according to Bodine, one of the Yale texts was based on documents from the Ur III rather than on Old Babylonian ones (Bodine 2014, 133–134). His arguments seem valid, but such a practice, especially if widespread, would undermine the practical purpose of legal education. After all, it would not prove very useful to learn how to write contracts the way it was done several hundred years earlier, even considering the conservative character of the Mesopotamian culture. Finally, the place of those texts within the curriculum is not obvious. Bodine puts them at the “intermediate” stage, without further clarification (Bodine 2014, 178), whereas according to Veldhuis and Spada, they were a part of the first stage of the curriculum (Veldhuis 1997, 69; Spada 2018, 3), as suggested also by the connection to the Sippar Phrasebook, used early in the learning process.

Another problematic genre of school text are the so-called “literary legal decisions” or “model court cases,” recording legal proceedings full of interesting, and sometimes even sensational details, but usually lacking elements necessary in actual documents, such as witnesses and date.^[26] One of them is the famous Nippur murder trial, relating a murder of a Sumerian priest by three men. The killers confessed to the victim’s wife, who failed to denounce them. As a result, both the murderers and the wife were condemned to death.^[27] The text, however, does not merely relay the facts of the case, as is usual for judicial records. On the contrary, its interest lies above all in the account of the discussion in the assembly of Nippur, before the judgment was rendered. This never happens in actual trial documents, and the question arises as to the reason for such a presentation.^[28] As pointed out by Neumann, it shows that legal teaching within the scribal curriculum was not limited to the merely technical skill of writing standard contracts, but it also aimed at developing other important professional abilities, such as proper juridical reasoning, argumentation, and discussion, as well as creativity (Neumann 2004, 92). By the same token, two other texts of this kind provide a factual justification of the assembly verdict, which is very rare in actual trial records, but was necessary for teaching purposes.^[29] Moreover, some of those model cases could have been used as exercises in solving particularly complicated legal problems, as at least two of them concern complex inheritance matters.^[30] Still, it is not clear at which stage of the schooling they were used, though they seem to be appropriate for rather advanced pupils. Furthermore, the legal reasoning they teach, as well as the degree of complexity of some of the cases, would point towards students in the higher levels of education, perhaps even somewhat specialized in legal matters. A related problem concerns the frequency of their use, or, in other words, whether they were a permanent or only rare or even accidental part of the curriculum. Their scarceness in comparison with the several hundred of preserved model contracts would point to one of the two latter options, though that may change with further publication of Old Babylonian school documents used for legal education.

Yet another kind of legal material studied by scribal pupils were law collections, as testified by extant copies of the “codes” of Ur-Nammu, of Lipit-Ištar, and of Hammurabi, as well as of the Laws of Ešnunna, at least some of them being undoubtedly school exercises (Roth 1979, 12–17; Neumann 2004, 76). Additionally, small compilations dealing with single issues were used, such as “Laws about Rented Oxen” or “A Sumerian Laws Exercise Tablet” (Roth 1997, 40–45).^[31] Once again, the question arises as to their place in the curriculum, and even to the very reason of their presence therein. Few scribal students would ever have use for that knowledge, mostly those who would later be active as judges or other high officials, whereas most would spend their lives drawing simple contracts or performing unsophisticated administrative tasks. Therefore, they should be taught to fairly advanced, perhaps even specialized students. However, this assumption is contradicted, at least regarding the smaller compilations, by the many mistakes in the preserved copy of the Sumerian Laws Exercise (Roth 1979, 16, and 1997, 43). Moreover, as pointed out by Veldhuis, compared with the practical requirements, students learned a lot of completely unnecessary Sumerian material, such as most of the lexical lists, and not near enough Akkadian (Veldhuis 1997, 82–83). That in turn suggests that one of the main goals of education was enculturation and formation of identity, rather that practice (Lenzi 2019, 23). Law collections could have been used for a similar purpose, as a part of cultural heritage common to all students rather than as teaching material essential only for those who in future would deal in depth with legal matters.^[32]

School texts from the next, Middle Babylonian period (2nd half of the 2nd millennium), are few and far between. Most of the Old Babylonian curriculum remained in place, though the Akkadian language was introduced to a degree by far exceeding its sporadic use in the earlier times (Volk 2000). The ur5-ra list, now with the Sippar phrasebook as its fixed first part, was taught both in unilingual and bilingual versions, as well as the Hammurabi Code (Volk 2000, 71–72), which at this point was obviously a part of cultural heritage rather than a tool used to teach contemporary law.

A major change in the educational set-up occurred in the Neo-Babylonian period, when the first stage of schooling was divided in two parts. During the first one, the pupils learned to write, read, and apply basic mathematics, aided by material similar to the one from previous periods. The first three tablets of the ur5-ra list played an important role (Gesche 2001, 61, 77). It must be noted, however, that its significance for the legal education was severely undermined by the character of the terminology it contained, in use a thousand years earlier and now largely outdated. Later the students would learn to write administrative and legal texts, sometimes quite complicated.^[33] The laws of Hammurabi were still copied in schools, but they certainly could not be a source of legal knowledge anymore (Lambert 1989; Charpin 2009, 51). However, another legal collection seems to have been used for teaching, the so-called Neo-Babylonian Laws. The preserved tablet is a damaged school text containing only 15 provisions, and there is no indication that it may be a copy a Neo-Babylonian royal code.^[34] According to Oelsner, it could be a fragment of a set of instructions for judges and other judicial functionaries (Oelsner 1997, 225), thus perfectly useful for the education of aspiring scribes in matters of jurisprudence.^[35]

The second stage of study encompassed the classical compositions of Babylonian literature, more advanced lexical lists, as well as texts conveying knowledge needed for an āšipūtu, i.e., exorcist (Gesche 2001, 172–173).

Students who completed the first stage of schooling could work in the administration or as notaries, preparing contracts and other legal documents. However, their education was not yet sufficient, and they needed to significantly broaden their professional knowledge before becoming full-fledged specialists. This was the purpose of what Gesche calls Fachausbildung, while stating that its course is practically unknown (Gesche 2001, 218).^[36] Traces of such training may have been found in a Neo-Babylonian family archive of Bēl-rēmanni, containing a surprisingly high number of duplicates of contract types usually not kept in several copies, such as debt notes, receipts, prebend sales, and a work contract (Jursa 1999, 13–14). According to Jursa, their origin lies precisely in the professional training of at least one family member. Not only was he tasked with copying whole legal documents, but he also had to learn to use the formulary in a flexible and creative way (Jursa 1999, 17, 30–31).

Another indication for the after-school professional training is the existence of highly specialized scribes, such as royal notaries active in Babylon and Borsippa during the reigns of Nabonidus and Cyrus the Great, who wrote and sealed real estate sales, probably officially registered (Baker, Wunsch 2001). It is rather safe to assume that the highest level of professional competence was required of such officials, and they certainly did not achieve it at school.

Though our knowledge of the scribal education, including its legal part, is still fragmentary, we can easily observe and assess its results, thanks to countless texts of legal practice, as well as such monumental sources as the law codes. As emphasized by Neumann, the very order of the Laws of Hammurabi, arranged according to typical scientific principles of the time, points towards a systematic work of the editors.^[37] The same is true for the integration of customary practices and of earlier legal dispositions into the Code, which may be taken as a sign of nearly dogmatic thinking as well as of legal knowledge (Neumann 2004, 92). In addition, scribes were willing to interpret and clarify the provisions of the codes in various ways, by means of translation, of creating new variants while recopying, and of revising material shared among various law collections (Barmash 2008). Obviously, all of the above required not only wide juridical knowledge, but also the ability of correct legal reasoning as well as a solid dose of creativity.

The same qualities may be found in documents of practice. This statement may prima facie seem rather problematic, given that the latter are often described as highly formulaic and repeatable. Indeed, such a description is accurate for most of them, but not all. Occasionally, the scribe would be faced with an unusual legal situation, a very complicated dispute, a surprising request from a client, and their creativity would find an outlet. A truly extreme case are family law documents from the peripheral sites of Emar and Nuzi (2nd half of the 2nd millennium), full of instances of sham transactions and of very ingeniously used legal fiction, usually applied to circumvent legal prohibitions (Fijałkowska 2017). In Mesopotamia proper, the development of the sale on credit while maintaining the appearance of a cash transaction may be cited (Pfeifer 2013, 83–113), as well as the practice current among the prebendaries of the Nabu temple of Borsippa in the first millennium, who tended to conceal prebend sales under the guise of donations (Jursa 2008, 608–610).^[38]

To sum up, it may be said that all in all, the goals of Mesopotamian legal education seem to have been very similar to the modern ones – building on a general cultural background, to provide the students with solid juridical knowledge, good professional skills and the ability to think creatively. The effects, in the form of works left behind by so many of them, bear testimony to its success.

^* Lena Fijałkowska, University of Lodz, Faculty of Law and Administration, Department of the Studies in the Development of State and Law, lfijalkowska@wpia.uni.lodz.pl