mixed statutory and case law in ancient Mesopotamia

Consider this law:

If a man says to his comrade, either in private or in a public quarrel, “Everyone has sex with your wife,” and further, “I can prove the charges,” but he is unable to prove the charges and does not prove the charges, they shall strike that man 40 blows with rods: he shall perform the king’s service for one full month; they shall cut off his hair; moreover, he shall pay 3,600 shekels of lead.[*]

This written law was established in Assyria about 3100 years ago.  It’s a defamation law, but it specifies a highly particular form of defamation.  Did the Assyrian have a written law covering every major type of defamation (you’re a bastard, your mother’s a whore, you’re a clumsy oaf, etc.)?  Most likely not.  “Everyone has sex with your wife” seems to have functioned in Assyrian law as a synecdoche for defamation.

The Assyrian law differs from case law.  The parties to the action are generic “man,” “comrade,” and “wife.” The law occurs within a list of similarly structured, written laws that make no particular references to historical case judgments.

Particularization apparently was not a generic characteristic of ancient Mesopotamian legal texts. Ancient Mesopotamian laws combined general categorizes of parties with highly particularized actions and punishments.  Whether these laws mattered in practice is a subject of considerable academic debate.  Perhaps these laws indicate that making laws and judging cases were closely connected institutionally in the Assyrian kings’ administrative organs.

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Note:

[*] Text from the Middle Assyrian Laws, ca. 1076 BCG, of the city of Assur.  See Roth, Martha Tobi, Harry A. Hoffner, and Piotr Michalowski. 1995. Law collections from Mesopotamia and Asia Minor. Writings from the ancient world, no. 6. Altanta, Ga: Scholars Press, p. 159.  The preceeding law: “If a man should say to another man, “Everyone has sex with your wife,” but there are no witnesses, they shall draw up a binding agreement, they shall undergo the divine River Ordeal.”  The witnesses are most plausibly relevant to uttering the statement, not having sex with the wife.   Evidently, this law concerns a situation where the defamation defendant denies making the statement.  In contrast, the law quoted above includes the defamation defendant asserting that he can prove the wholly implausible statement that “everyone” has sex with the wife. These laws make most sense together as defining defamation at different levels of insult and injury.  A similar set of laws is organized around the statement, “Everyone sodomizes you.”

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