- T L A N E L
I have described the law of the ancient Near East as lacking cer-
tain features of modern law. That lack is not absolute, however: the
seeds of many modern legal institutions are already in evidence. It
is perhaps in these embryonic forms rather than in developed struc-
tures that the legacy of the ancient Near East to later legal systems
is to be sought.
The ancient kingdoms lacked a legislature in the modern sense,
but they had assemblies, which at the local level were capable of
creating binding rules. They had no legal theory as we would under-
stand it, but they developed a pragmatic science of lists, which served
as a vehicle for theorization and categorization of the law, albeit by
inference. They had no jurists, but the drafting of decrees, contracts
and treaties reveals a dedicated legal vocabulary and an ability to
manipulate terminology in the interests of guarding against eventu-
alities. They did not have a formal system of citation, but they
referred to decrees and precedents and relied upon a formalized wis-
dom to trace some of the contours of amorphous custom and fill
some of its gaps. They did not have legalism, with its reliance on
the strict letter of the law, but they showed some consciousness of
the notion in their careful formulation of oaths and in their creative
use of legal fictions, which maneuvered between legal categories if
not yet between legal terms.
There are, however, two highly developed features of the ancient
law that modern systems can truly be said to emulate. The first is
case-law method, or the objectivization of cases into paradigms and
the use of analogy to extend their reach—a method that is still a
pillar of modern jurisprudence. The second is their view of the office
of judge. The qualities expected of a judge included not only probity,
but also a heightened sense of right and justice, and a special regard
for the weaker elements of society. Indeed, greater stress was laid
upon these qualities than in modern society, and for good reason.
Modern law relies upon the absence of personal interest and adher-
ence to the letter of the law to ensure the objectivity of its judges.
Ancient judges, often administrators and wealthy local landowners,
were not shielded from personal interest in disputes or from acquain-
tance with the parties, and could not seek refuge in the strict word-
ing of legal texts. It therefore fell to personal qualities to achieve the
same ends. As the hymn to Shamash, god of justice, declares (99–102): 87
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