WOMEN
IN BABYLONIA
UNDER THE HAMMURABI LAW CODE
Overview
"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 “an eye
for an eye and a tooth for a tooth”.
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 society’s
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
- Women’s sexuality should be sacrificed to ensure
legitimacy
- A family’s wealth should be administered by the
husband/father
- Women, especially widows and divorcees, needed
society’s help
Keeping these
axioms in mind will help us see Hammurabi’s 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
builder’s son if a new house collapsed and killed the owner’s 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 today’s 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 wife’s 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 parents’ 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 other’s 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.
Detailed Laws
We have seen that pre-literate societies used bride price to compensate the
bride’s 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 household’s 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 father’s 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 bride’s 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 father’s 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 father’s estate.
Instead they got a dowry that was intended to offer as much lifetime
security for the bride as her family could afford.
Adultery
At
marriage a woman’s 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 woman’s husband accused her she may in the presence of a
priest swear to her innocence and then return to her husband’s 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 woman’s 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)
Divorce and Remarriage
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 father’s 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)
Concubinage
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 wife’s 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 father’s house if she
wanted to do so: the choice was hers. (144-149)
A
wife’s 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 mother’s 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)
Dowry and Bride Price
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
husband’s 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 husband’s 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 father’s 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."
Excerpt from: - www.womenintheancientworld.com