This innovative civilization did not just invent the state or writing. She wrote the first codes of justice which already punish homicide, rape... and financial crimes!
Mesopotamia:diorite stele of the Code of Laws of Hammurabi (or Hammurabi). It is covered with cuneiform inscriptions and at the top King Hammurabi stands before the Mesopotamian Sun God, Shamash, deity of Justice. It is one of the oldest pieces of legislation. From the Susa site.
The plan seems unstoppable. In a few precise words, the man gives the order not to follow the usual trade routes and to take a circuitous route. A dangerous stratagem:this new path, unprotected by the authorities, would be the playground of bloodthirsty looters. What does it matter! However, another solution may be preferred:declare only part of the goods and have the surplus transported clandestinely by its employees, in... their underwear.
At the time of the Panama Papers, this strategy of circumventing customs seems almost familiar to us. However, the letter which reveals it dates from the beginning of the II th millennium before our era! Written on a clay tablet by an Assyrian merchant, it was discovered at the site of Kültepe, in central Anatolia. Has our caravanner succeeded in his bet? We may never know. However, a number of his peers, whether caught in the act or simply denounced by a competitor, have been arrested and punished over time, as other tablets found in the ancient city tell us. :warnings, fines or searches, even imprisonment for tax evasion!
Pecuniary penalties and blood penalties
The rediscovery of Mesopotamia in the course of the 19 e century, has changed our view of the world. Rarely has civilization been so innovative:birth of agriculture, appearance of the city and the state, invention of writing… the list is long. But, less known, it is also at the origin of the collections of laws, and therefore the first, from the 3 e millennium before our era, to try to take the measure of a human society plagued by the difficulty of living together. What relativizes the too often Eurocentric approach of contemporary man:certainly "enlightened", the human of the 21 e century remains a slave to the same baseness as its distant ancestors in Iraq and Syria.
"The Syro-Mesopotamian civilization is neither less evolved nor more obscure than ours , testifies Laura Cousin, researcher associated with the Archeology and Sciences of Antiquity laboratory (CNRS/Nanterre). With a few exceptions, the crimes most often cited in the documentation of the time are the same ones that plague the world today:assault and battery, financial and sexual offenses (adultery, incest, rape), homicides (involuntary, premeditated, voluntary), abductions, thefts (simple or aggravated), etc."
Historians have gradually brought to light a civilization aware of the evils that plague it, taking legal action over time. With in particular the essential discovery, in Susa, during the winter of 1902, of the "code" of Hammurabi, a Babylonian king from the beginning of the 2 e millennium (1792-1750):beyond the grandiose aspect of the stele which bears it - 2.25 meters high -, it is in fact to this day the most complete source on the legal, economic and social realities from Lower Mesopotamia from the 18 th century BC.
"The themes addressed by the “code” of Hammurabi revolve mainly around the family, the property or even the trade , explains Laura Cousin. Criminal law is relatively repressive. There, pecuniary penalties and blood penalties coexist. The Mesopotamians practiced a form of commutative justice, a sort of law of retaliation consisting in inflicting as punishment an evil similar to that which constitutes the offense. Paragraphs 196 and 200 of the “code” testify to this:“If a man has gouged out another man's eye, his eye will be gouged out”; “If a man has knocked out another man's tooth, he will be will break a tooth"".
This system of repression testifies to a civilization perfectly capable of appreciating the relative seriousness of a situation, but also of adapting to any circumstance. "The notions of “crime” and “criminal law” do not exist in the vocabulary of the Mesopotamians, continues the Assyriologist. However, the latter distinguished very well between civil wrongs and criminal offences. Some misdeeds, such as homicide or theft, were felt to be “criminal” in essence; others, on the contrary, seem to us to have been judged as such because of the sanction applied to them:physical mutilation or the death penalty."
In criminal matters, however, the sentences handed down are mostly pecuniary. A trend far removed from the fantasies of violence and blood that often fuel our imagination. Frequently quoted in the legislations of the 3 e and 2 th millennia, corporal punishment is not in fact systematically applied, as revealed by the study of judicial documentation (letters referring to disputes, trial minutes, evidence from investigation files, etc.); except for political crimes, they even disappear from the sources of the 1 st millennium. "Generally, the death penalty was required for intentional and proven crimes:several trials, judged at the end of the III e millennium in the city of Nippur, in present-day Iraq, allow us to get an idea of the culprits and their faults. Thus the case of a widow accused of complicity in the assassination of her husband and sentenced to death."
Among the penalties envisaged, imprisonment is, on the other hand, relatively common. A case evoked by a text from Northern Babylonia from the end of the 18 e century BC remains particularly famous:a woman imprisoned because of her father's debts realizes, on his release, that her husband has taken a new wife... If the situation inspires pity, it is also very instructive :a sanction can be transmitted to the close relations of the author of an offence. "From the assassin to the merchant fleeing taxes and taxes, the prison population is relatively heterogeneous, says Laura Cousin. A text found in Nippur, and dating from the 2 th millennium, mentions in particular, for a list of prisoners, the reasons for their condemnation:"because he hit his mother"; "for hurting his older brother", etc." . Depending on the jurisdiction, the sentence was served in municipal or state facilities, closed by heavy doors. Residents there were generally subjected to forced labor and physical abuse.
Victims put in irons for fear of a scandal
More broadly, Mesopotamian justice seems to operate on two levels:the first based on local institutions (councils of elders, neighborhood councils, etc.); a second placed under the authority of royal power. "We still do not know on what criteria the choice of the competent court was made , remarks Laura Cousin. In our experience, a serious crime (literally, “life affairs”), such as homicide, automatically fell under the king's justice, while other offenses, subject to a fine, essentially depended of “lower” courts. A sort of complementarity of legal bodies, probably due to the gradual integration of local institutions into an increasingly developed and centralized State judicial apparatus (professional judges, governors, etc.). Anyway, we still have a lot to learn:some professions, such as lawyers and police officers, remain very little known, because they are barely documented."
What we do know, however, is that justice is done collegially, often in an open and public place. Hearings of witnesses, analysis of exhibits... Many archival documents allow us to understand in-depth investigations. The guarantee of an impartial judgment? Not always ! Witness the governor of Saggarâtum, in Upper Mesopotamia. Having received a complaint from foreign merchants robbed by locals, he puts the victims in irons for fear of a scandal. Far from stopping there, he then proposed to the king to imprison them for life or sell them as slaves... to other caravaneers. A blatant abuse of authority that has nothing to envy to those still committed today!
I swear, by Shamash!
Two particular figures are represented at the top of the stele of the "code" of Hammurabi:standing on the left, the king of Babylon in person; on the right, seated and recognizable by the rays emanating from his shoulders, the god Shamash, personification of the solar star and of justice. A far from trivial association:just as the deity judges in heaven and decides the destiny of men, the king judges on earth and guarantees fairness for all. In this regard, the temples of Shamash played a vital role in Mesopotamian justice. Sorts of courts, they were the privileged theater of the taking of oaths, like that known as "by the net":an irrational proof which the Mesopotamians sometimes used to settle a case of justice, for lack of traditional proof. The accused or the witness had to swear to the truth of his statement under a net suspended from the ceiling. Symbolizing the rays of the sun, the latter represented the divine wrath that would fall on anyone who perjured himself.
The process reveals a reality very different from ours:"The role of the temples of the god Shamash in the judicial sphere in no way means that Syro-Mesopotamian justice was a "religious" justice. On the contrary, it is a fundamentally secular institution! Assyriologist Laura Cousin insists. For the Mesopotamians, “religion” was present in everything. In other words, there was not a judicial world on one side, a religious world on the other, but only one world:the Mesopotamian world."
By Jerome Pace
This article is from the magazine Sciences et Avenir Special issue n°194 "Crimes and punishments" dated July-August 2018.