Legal History

Land Ownership in Babylonian Cuneiform Documents

by R.J. (Bert) van der Spek

R.J. van der Spek,  ‘Land Ownership in Babylonian Cuneiform Documents,’ in: M.J. Geller, H. Maehler, A.D.E. Lewis eds., Legal Documents of the Hellenistic World. Papers from a Seminar arranged by the Institute of Classical Studies, the Institute of Jewish Studies and the Warburg Institute, University of London, February to May 1986  (London: The Warburg Institute, University of London 1995), 173-245.

This article discusses the concept of ownership of land in the Late Babylonian period, especially the Hellenistic... more This article discusses the concept of ownership of land in the Late Babylonian period, especially the Hellenistic period. All kinds of transaction concerning land ownership are discussed, such as contracts of sale, lease, pledge, donation and quitclaims. Attention is paid to different legal formularies and the ways in which ownership was protected. The article challenges the accepted opinion, expressed by Koschaker, Petschow and Cardascia, that the Babylonians lacked a concept of ownership that knew the distinction between ownership as ultimate right (in Latin dominium) and actual possession or holding (in Latin possessio and detentio). Koshaker and Petschow argued for a Babylonian concept of  “divided ownership” of e.g. lessor and lessee of land and Cardascia calls pledge a “conditional alienation” and lease a “temporal alienation”. In my view the Roman distinction between ownership as highest and ultimate right and actual possession, though not identical, is closer to the Babylonian situation.
Another point at issue is the status of temple land and royal land, that was in the possession of individuals, could be sold and leased, yet remained in ownership of the temple or palace (bIt ritti).

At the end of the article ten cuneiform texts are presented in transcription, translation and brief commentary. One of these texts is a very important tablet, discovered already the beginning of the 19th century and copied by Carl Bellino by c. 1818. It was published by Robert Ker Porter in 1822. It was one of the first published tablets, copied and published in a time when the cuneiform script was not yet deciphered. Yet the copy is quite good and readable. I first edited this tablet in my dissertation, where I reproduced Bellino’s copy op p. viii and a transliteration and Dutch translation in the Appendix, text 5, p. 202-11. My dissertation, Grondbezit in het Seleucidische Rijk (Amsterdam: VU Uitgeverij 1986), is available online:
http://dare.ubvu.vu.nl/handle/1871/15433 ; or
http://dare.ubvu.vu.nl/bitstream/1871/15433/2/Grondbezit%20in%20het%20seleucidische%20rijk.pdf

In this article I provide an edition with English translation in the appendix as text 9, pp. 238-241. Meanwhile, however, after this publication (1995) a new (partial) edition was provided by Francis Johannès, ‘La Babylonië méridionale: continuité, déclin ou rupture?’ in: P. Briant, F. Joannès eds., La Transition entre l’empire achéménide et les royaumes hellénistiques (vers 350-300 av. J.-C.). Actes du colloque organisé au Collège de France par la « Chaire d’histoire et civilisation du monde achéménide et de l’empire d’Alexandre » et le « Réseau international d’études et de recherches achéménides » (GDR 2538 CNRS), 22-23 novembre 2004, (Paris: De Boccard, 2006), 101-35, on pp. 113-4. In the same volume Michael Jursa discussed the text in note 32 of his article ‘Agricultural management, tax farming and banking: aspects of entrepreneurial activity in Babylonia in the Late Achaemenid and Hellenistic periods’, ibid., 137-222, esp. p. 148.
Both authors suggested improved readings which I shall present here and I shall present a new English translation of lines 4-15, slightly differing from Joannès’s and Jursa’s (esp. line 10).

4. Add ina IGI in the break (Jursa)
7. Add KUR in the break (Joannès)
9. Read [i-(te)-ri-i]š instead of [iš-ku]n; Joannès reads ina áš-bi instead of ina qí-bi, but Bellino’s copy has a very clear qí (KI), so I shall not follow him in this. He reads the personal name mPar-ta-ri-ih?-li-su as mtu!?-ri-il!-li-su (Troilos?). The copy, however, has a clear par-ta. The reading of the first sign, par (UD, tú), is a mere guess. The reading –ut-  is a good alternative. The sign read as ih or il is difficult to interpret. Collation (1984) did not help. It seems indeed that a Greek name is at issue, ending on –lēs, -lios or –klēs perhaps.
10. Read [lúGAL] É LUGAL (Jursa) and ig!-re-e’ instead of EN re-‘i (Joannès and Jursa), from the verb gerû, ‘to start a lawsuit’. See CAD G, p. 62, s.v. gerû, 1 b 3’: dīna gerû. Certainly correct. It is uncertain whether the phrase mišil ... našatat?, “half of the barley which returns from the land, the property of Shamash, is (to be) brought(?) to the royal treasury”, is the result of the verdict (so Jursa), or the reason to start the lawsuit. I opt hesitatingly for the latter option: I suspect that the legal dispute originated in the fact that suddenly in year 9 the chief of the royal treasury requisitioned half of the yield of the entire estate of the Shamash temple.
11. Joannès reads ta-tu-ru instead of ta-tur-ru, but this is erroneous. Taturru is the present tense, which means that the barley is not harvested yet or is in the process of being harvested. Jursa reads na-šá-ti?! sup. ras. instead of na-šá-tat?; both readings problematic. Collation did not help. I assume that the form is a fem. stative of našû. Note that taturru is also feminine . The subject, uțțatu, “barley”, is feminine.
13. Read mu-šu-ur instead of  MU-šu lu (Joannès and Jursa). Certainly correct. From the verb uššuru (wuššuru, muššuru), “to let go; to release; the hand over; to exempt, remit debts, annul obligations”; cf. CAD U and W, s.v. uššuru, p. 310-325. It is probably a stative: muššur ; cf. undašar for undaššar in line 13.
19. Both Joannès and Jursa read É LUGAL TIN.TIR.KI as Bīt šar Bābili, and do not interpret it as Treasury (Bīt šarri =lit.  ‘house of the king’, but always ‘royal office’, ‘royal treasury’ or ‘royal estate’) of Babylon (TIN.TIR.KI), but as the locality with the name Bīt šarri Bābili (mostly written, however, with the determinative for ‘city’ URU), a locality close to Babylon. N.B.: the royal treasury is mentioned in line 10! If so, Iltalimatu has nothing to do with the royal treasury of Babylon and is no more than some city governor who accidentally had rented an estate belonging to the temple of Shamash.

New translation of lines 4-20:

4.  [.......... arable land,] property (makkūru) of Shamash, king of the world,
5.  [.......... was at the disposal of Ilt]alimatu, the governor
6.  [of Bīt-šar-Bābili,] the slave of Intaphernes, the governor
7.  [of the land? Sa?]-gashtu. Later, in the 9th year
8.  [of Alexand]er, son of ditto (=308-7 BC), he jointly (with the temple) [cultivate]d(l. 9)  the land in question
9.  and he started lawsuits at the command of Partarihlisu (Uttari x lisu),
10. [the chief] of the royal treasury (on account of the fact that) half of the barley in question, which will return from the arable land,
11. [the pro]perty (makkūru) of Shamash, is (to be) brought to the royal treasury.
12. Iltalimatu will leave(l.13)  the arable land at the disposal
13. of the exchequer (makkūru) of Shamash and the barley, the rent (sutu) of this arable land,
14. is relinquished(l. 15) by the exchequer of Shamash to Iltalimatu.
15. There will not be(l. 17) any lawsuit, legal proceeding or claim on the part of the Temple Council (kiništu)
16. of Ebabbar with regard to the barley, the rent (sutu) of these arable lands,
17. against Iltalimatu in perpetuity
18. and there will not be(l. 21) any lawsuit, legal proceeding or claim on the part of Iltalimatu,
19. the governor of Bīt-šar-Bābili, with regard to these arable lands
20. against the exchequer of Shamash and the Temple Council of Ebabbar in perpetuity.

This document is a verdict concerning a legal conflict between two parties, namely Ebabbar, the temple of the god Shamash in either Sippar or Larsa, and a certain Iltalimatu, the governor of Bit-šar-Babili (= a settlement at the edge of the city of Babylon, perhaps the summer palace of Babylon). Apparently some arable land, belonging to the Ebabbar had become at the disposal of Iltalimatu and he cultivated it jointly with the temple, which probably meant that the profit should be divided, half would go to the temple, half to Iltalimatu. The conflict seems to concern the fact that half of the harvest was requisitioned by the state (represented by Partarihlisu), so that Iltalimatu could not pay half of the harvest to the temple (his sutu, his rent). Now Partarihlisu seems to have ordered or advised a lawsuit (or perhaps better a settlement), so that the mutual claims by temple and Iltalimatu were rescinded: Iltalimatu relinquishes his right to cultivate the temple land and at the same time is freed from the obligation to pay his rent to the temple. One should note that it was during or briefly after the Babylonian War between Antigonus and Seleucus (311-308) when the grain prices were extremely high.  Now the result of this lawsuit is: half of the yield of year 9 (308-7 BC) goes to the royal treasury and the contract between Iltalimatu and the temple is dissolved: the temple is granted ownership rights of the arable land and Iltalimatu is freed from paying rent to the temple in perpetuity.

Book review - "The Capitulations and the Ottoman Legal System: Qadis, Consuls, and Beratlı in the Eighteenth Century"

by Mathieu Grenet

review of Maurits H. van den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls, and Beratlı in the Eighteenth Century (Leiden and Boston: Brill, 2005).
in Cahiers de la Méditerranée, forthcoming (2012)
UNPUBLISHED PAPER - PLEASE DO NOT COPY OR QUOTE WITHOUT THE AUTHOR'S PERMISSION

Contesting the commons - reconstructing the politics of English common land, c. 1550-1650 (Working Paper).

by Jonathan Healey

Jurisprudence for Foxes

by Leslie Green

forthcoming in the International Journal of Constitutional Law

This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog', that is,... more This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog', that is, a monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. Some conjectures are offered as to why Simpson so misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.

Equality and the Rule of Law in Classical Athens

by Paul Gowder

In this paper, I defend three claims.

First, contra some classicists and legal historians, classical... more In this paper, I defend three claims.

First, contra some classicists and legal historians, classical Athens during the democratic period substantially satisfied the demands of the rule of law (excepting its treatment of women, noncitizens, and slaves). I show that arguments to the contrary mostly represent an unduly narrow conception of what might count as law in Athens, one that inappropriately excludes common-knowledge social customs.

Second, Athenians saw the rule of law as serving the equality of mass and elite, oligarchs and democrats: there was no contradiction (again contra some classicists) between the democratic power of the masses and the rule of law. This equality consisted in two topoi frequently deployed in the Athenian legal and social discourse. First is the respect topos, according to which the laws represent respect for the democratic polis. To disregard them is to reveal one's lack of respect for the polis and one’s oligarchic character. Second is the strength topos, according to which the laws are the way that the democratic polis exercises its power: weak members of the masses cannot stand up to strong members of the elite alone, they need the backing of the whole community, and that backing is coordinated through the law; to undermine the law is thereby to undermine the political power of the masses.

Third, this connection between equality and the rule of law explains the most striking fact about Athenian legality, to wit, the otherwise puzzling effectiveness of the amnesty enacted for crimes committed under the Thirty Tyrants. The strength topos explains why the democrats in Athens refrained from avenging themselves against the Thirty despite their opportunity to do so: by doing so, they would have undermined the law, and thereby their own equality. The strength topos led the Athenians to take the internal point of view on the law.

The account of the rule of law deployed in this paper is that developed in my Equality Under the (Rule of) Law, also available here. This paper serves the function, in part, of demonstrating the cross-cultural applicability of the conception of the rule of law developed in that paper.

Anmeldelse: Død som straff i middelalderen

by Audun Kjus

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Women before the qāḍī under the Abbasids

by Mathieu Tillier

Published in: Islamic Law and Society, 16 (2009), p. 280-301.

In this article, I examine the appearance of Muslim women before the judge during the Abbasid period... more In this article, I examine the appearance of Muslim women before the judge during the Abbasid period (132-334/750-945), both in theory and practice. The cases involving women found in law books suggest that they came freely to the court, especially for familial or marital purposes, and that the judges employed some women as court auxiliaries. However, a comparison of judicial manuals and the biographical literature shows that a woman's appearance before the judge could create a social disturbance and that not all women were allowed to appear in court. I argue that the social distinction between those who could leave their houses—and thus come before the judge—and those who could not correlated with the social hierarchy.

Qāḍī-s and the political use of the maẓālim jurisdiction under the ʿAbbāsids

by Mathieu Tillier

Published in: Christian Lange et Maribel Fierro (éd.), Public Violence in Islamic Societies: Power, Discipline, and the Construction of the Public Sphere, 7th—18th Centuries CE, Edinburgh University Press, Edinburgh, 2009, p. 42-66.

Does the Priest Have to Be There? Contested Marriages Before Roman Tribunals. Italy, Sixteenth to Eighteenth Centuries. In: Österreichische Zeitschrift für Geschichtswissenschaften, 3, 2009, 10-30.

by Cecilia Cristellon

The Council of Trent established the requirements that a marriage be celebrated by the parish priest and two or more... more The Council of Trent established the requirements that a marriage be celebrated by the parish priest and two or more witnesses be present at the marriage (1563), but neglected to specify who the parish priest was. The decrees provoked confusion among both laymen and churchmen. Traces thereof can be found in the hitherto essentially unexplored documentation of The Congregation of the Council. This institution was founded in 1564 specifically to resolve the questions that arose all over the catholic world by the application of the decrees promulgated at Trent. The related records are held in the Vatican Secret Archive. Through an examination of this documentation, complemented by files of the Holy Office the author analyzes how the new rules were understood, experienced, used, circumvented, and manipulated both by laymen and churchmen in order to end an unwanted marriage, to facilitate a union that was socially transgressive, opposed by family, or even heterodox, and to respond to pastoral concerns.

L'ufficio del giudice: mediazione, inquisizione, confessione nei processi matrimoniali veneziani, 1420-1532. In: Rivista Storica Italiana, 3, 2003, 851-898.

by Cecilia Cristellon

Cittadinanza, proprietà terriera e horoi di garanzia nell´antica Atene (Citizenship, Land Property and Security Horoi in Ancient Athens)

by Andrea Colorio

published in "Derecho, persona y ciudadanía: una experiencia jurídica comparada", Madrid, Marcial Pons, 2010

Within an investigation of some of the most relevant historical-juridical themes of the Greek world, this paper deals... more Within an investigation of some of the most relevant historical-juridical themes of the Greek world, this paper deals with an analysis of specific aspects connected to the complex relationship existing between the right of Citizenship in Classical Athens and the political-religious participation in the polis guaranteed by the right of Ownership of Land. After a brief socio-economic overview of Athenian everyday life, it is here attempted to approach the important issue of real securities, a significant capital creation mechanism which, notwithstanding their key role within the polis commercial economy, was unavailable to metics. In this light, the nature of security horoi is reinterpreted with special regard to the deep social and sacred reasons which facilitated and sustained their development and spread.

Historical Origin of the Name "Boracay"

by Historically Digitized

Boracay etymology and word history

Judicial Supremacy and the Politics of Executive Judicial Relations

by David Miles

Honours Dissertation for my MA at the University of St Andrews, Scotland, 2010

Analysis of the emergence of judicial supremacy within American politics, as shown in the work of Whittington, reveals... more Analysis of the emergence of judicial supremacy within American politics, as shown in the work of Whittington, reveals the important role played by political actors and particularly the presidency in the formation of the Supreme Court’s power. This dissertation builds on Whittington’s work regarding judicial supremacy but differs in the extent to which it emphasises the salient role of judicial agency in the formation of the Court’s authority. Judicial agency sees the Court as a political actor making calculations in the context of the prevailing circumstances and adopting strategies to maximise its authority. The relationship between the Supreme Court and the presidency defies easy categorisation, yet the political benefits to presidents of the Court’s ability to render favourable rulings on preferred policies appear to outweigh the undeniable disadvantages which have accrued to presidents from their recognition of judicial authority.

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Prostitution, Islamic Law and Ottoman Societies

by James E Baldwin

Journal of the Economic and Social History of the Orient, 55 (2012)

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Colonial Legislation Meets Sharīʿa: Muslims' Land Rights In Russian Turkestan

by Paolo Sartori

Central Asian Survey.” Theme issue “The land question in colonial Central Asia,” ed. P. Sartori, 29/1 (March 2010): 43-60

The goal of this paper is to analyse the impact of Russian legislation on the notary activity of sharīʿa courts with... more The goal of this paper is to analyse the impact of Russian legislation on the notary activity of sharīʿa courts with regard to transactions involving landed property. The hypothesis is that incorrect assumptions made by Russian lawmakers as to the 'tradition' of Muslims' land rights caused a substantial loophole in the application of colonial substantive laws. On the one hand, the Russian state attempted to retain land ownership for itself by introducing regulations that formally restricted Muslims' land rights to possession and usufruct; on the other hand, the colonial administration never established regulations that ensured that these laws would be enforced by sharīʿa courts and failed to integrate them into the application of Islamic law. Therefore, this paper aims to highlight how the colonial definition of Muslims' land rights was largely disregarded when the Muslim judiciary notarized transactions on land in accordance with sharīʿa. This will lead to the conclusion that the limited effectiveness of the colonial legislation with regard to land in Turkestan stemmed from the failure to reform Islamic procedural law, a process that would have entailed codifying it.

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by Henri Decœur

Illegal evictions? Overwriting possession and orality with law’s violence in Cambodia

by Simon Springer

Springer, S. Forthcoming. Illegal evictions? Overwriting possession and orality with law’s violence in Cambodia. Journal of Agrarian Change.

The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of... more The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of landholding, which are entrenched in notions of community consensus and existing occupation. The discrepancy between such orally recognized antecedents and the written word of law have been at the heart of the recent wave of dispossessions that have swept across the country. Contra the standard critique that corruption has set the tone, this paper argues that evictions in Cambodia are often literally underwritten by the articles of law. Whereas ‘possession’ is a well-understood and accepted concept in Cambodia, a cultural basis rooted in what James C. Scott refers to as ‘orality’, coupled with a long history of subsistence agriculture, semi-nomadic lifestyles, barter economies, and–until recently–widespread land availability have all ensured that notions of ‘property’ are vague among the country’s majority rural poor. In drawing a firm distinction between possessions and property, where the former is premised upon actual use and the latter is embedded in exploitation, this article examines how proprietorship is inextricably bound to the violence of law.

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by Kristin Kleber

In: Robert Rollinger, Martin Lang und Heinz Barta (eds.), Strafe und Strafrecht in den antiken Welten. Unter Berücksichtigung von Todesstrafe, Hinrichtung und peinlicher Befragung (Philippika 51), Wiesbaden 2012, pp. 215-231.

The contribution treats the question of torture, physical punishments and the death penalty in Babylonia. The contribution treats the question of torture, physical punishments and the death penalty in Babylonia.

Madero, Marta (2010), Tabula Picta: Painting and Writing in Medieval Law (Material texts; Philadelphia: University of Pennsylvania Press) xi, 141 p. (Review)

by Aden Kumler