Part VII

Almost one-fourth of the Code is taken up with the regulation of family relationships, including such subjects as adultery, false accusations, divorce, rights of wives, slave wives, desertion, widows, adoption, rights of daughters, and disinheritance. Taken together, these family laws, as we may collectively call them, throw more light on social conditions prevailing in ancient Babylonia than any other portion of the Code ; and since in addition they furnish further illustrations of legal procedure and of the underlying principles of justice, it is worth while in concluding our analysis of the code to take up some features of these laws:

A wife is still viewed as an acquisition, and therefore no marriage is valid without a contract (§ 128). Divorce can be granted in case of a childless marriage, but the marriage gift, as well as the dowry which the woman has received from her father's house, must be returned to her; and if there was no marriage gift the husband must in that case give his wife a mina of silver ^[1] an amount which is reduced to one-third in case the husband belongs to the plebeian class (§ 138-140).

Two other causes for divorce are

1. improper conduct on the part of the woman or
2. incompatibility between husband and wife.

If the improper conduct goes no further than that the woman is in the habit of going out and, as the Code puts it, "commits indiscretions", neglects her house and husband, then the husband has the choice of dismissing her without giving her anything, or he may reduce her to the rank of a maid and take another wife in her place (§ 141). If, however, the woman goes further than this and lays herself open to suspicion, she is thrown into the river, by which is presumably meant that she must submit to an ordeal (§ 143).

Incompatibility is expressed by a euphemistic phrase to indicate her unwillingness to have sexual intercourse with her husband. If it can be shown that she is otherwise without reproach, or that her husband has neglected his duties towards her, then the woman receives her dowry and returns to her father's house (§ 142).

This is as far as the Babylonian law goes, but the advance over former conditions may be seen from an older Sumerian law which stipulates that a woman who refuses to have intercourse with her husband is to be thrown into the river, ^[2] without further investigation as to the cause or whether the woman is otherwise without reproach.

The authority of the husband was at one time absolute, as was the authority of either parent over the children. The father or mother could disinherit the son by the formula, "thou art not my son", ^[3] which deprives the son of all rights and privileges; "he is excluded from house and wall" as the phrase runs, while the son who disowns the authority of his father or mother by the formula, "thou art not my father", or, "thou art not my mother", is branded as a slave and sold if he rebels against his father, and branded and driven from home and town if he rebels against his mother. ^[4]

The Code endeavors to curb this absolute authority without denying the principle on the conventional supposition that a once existing law cannot be annulled, because it represents a divine decision.

In the case of the son, it provides that the father must bring his intention to disinherit his son to the notice of the court. A decision of the judges is needed and the judges are instructed to inquire into the merits of the case. If they find that the son has not been guilty of a crime sufficient to justify the disinheritance, the father is restrained from carrying out his intention ( 168); and the law goes even further in providing that the first offence must be condoned.

Only in case of a second offence, can the disinheritance be regarded as legal (§ 169) . The older and severer law, however, remains in force in the case of an illegitimate child or one of low estate who, if he says to his foster father, "thou art not my father", or to his foster mother, "thou art not my mother", i.e., if he rebels against their authority, has his tongue cut out.

In case the son discovers the identity of his father, and rejects his foster parents in order to return to his father's house, his eye is plucked out (§ 192-193), the principle involved being that such a child if once adopted belongs absolutely to the foster parents and cannot be reclaimed (§ 187).

A trace of the older status of absolute authority of the pater-familias is to be seen also in the provision that a legally adopted child cannot be reclaimed after it has been reared, but then follows immediately the later modification that if the child after being taken, longs (?) for his father and mother, it must be returned to his father's house (§ 185-186). The purpose of the modification is to protect the child against forcible adoption.

Similarly, the adopted child must be given the same status as the other children, and if that is not done he may return to his father's house even after he has been reared. According to the Babylonian laws an artisan may adopt a child who is apprenticed to him, and after the former has taught the apprentice his trade, no claim can be put in, but if he fails to teach the child a trade, he may return to his father's house, that is, the contract of adoption is annulled (§ 188-190).

The Code recognizes the legitimacy of the children of a handmaid or concubine, provided the father during his lifetime recognizes them as his own by pronouncing the formula "my children" in regard to them, that is, by a formal adoption. In that case they share in the paternal estate equally with the children of the main wife. If the formal adoption has not taken place, then the children of the handmaid have no share in the estate, but on the other hand protection is given to them by the grant of their freedom after the death of the father ; and it is specifically provided that the children of the main wife have no claim on the service of their half-brothers or sisters.

A man's heirs are his children not his wife. His widow receives her dowry and the marriage gift on the death of her husband and is allowed to remain in her husband's house as long as she lives, but she is not allowed to sell it, for it belongs to her children (§ 171). If no marriage gift has been made, then the widow receives in addition to her dowry, an amount equivalent to the share of a son. The widow is further protected from maltreatment by her children, who may not force her to leave the husband's house without good cause.

If, however, she leaves of her free will, then she forfeits the right to the marriage gift, but can dispose as she pleases of the dowry and is allowed to marry whom she pleases (§ 172). On her death, the dowry shall be divided between the children of the first and second marriage, or if there is no issue from the second marriage, then the dowry goes to the children of her first marriage (§ 173-174). In no case, therefore, does the husband receive the dowry.

A widow whose children are still minors cannot marry without the consent of the court. To obtain that consent an inventory of the estate must be made, and the woman and her second husband must agree by a written contract to administer the estate for the benefit of the children whom they are obliged to rear. They may not dispose of the estate, and he who makes such a transaction forfeits his claim (§ 177). The children inherit the dowry of the mother.

If the mother dies, and the husband takes a second wife and has children by her also, upon the death of the father the children of the first wife receive the dowry of their mother, and after this is deducted the paternal estate is divided between the children of both wives (§ 167).

Under ordinary circumstances it would appear that the estate was equally divided, but the father had the right to favor one son if he so chose. In that case the special property field, orchard or house is given outright to the son so favored, and the" balance of the property divided (§ 165).

The question must have arisen whether a son who had not reached the age of majority on the death of the father should receive the same share as the others. The Code provides that if all the other sons having reached the age of majority are married, that is, have established households of their own, they shall set aside from the estate an amount equivalent to a marriage gift ^[5] for the minor brother so as to enable him to take a wife (§ 166).

Footnotes and references:

[1]:

An older (?) law (Rawlinson, V., PI. 25, col. iv, 8-12) fixes the amount at one-half of a mina.

[2]:

Rawlinson, V., PI. 25, Col. iv, l-7.

[3]:

Ib., Col. ii, 34-39.

[4]:

Ib., Col. ii, 22-33.

[5]:

A passage like this proves that the marriage gift or settlement, as we would say, is made by the bridegroom, but is deposited with the bride's father for her benefit. The dowry on the other hand is given by the bride's father to the prospective son-in-law. Of the two customs, the marriage gift on the part of the husband appears to be the older, a survival of the custom of marriage by purchase, dating from a time when the husband owned his wife and children as part of his chattels. The dowry, on the other hand, while originating likewise from the days when a child was obliged to do service for the father and representing the pay for such services on the change of the daughter's status to become the property of another, nevertheless represents a higher stage of society, recognizing the obligation not to send the daughter away empty-handed as though she were merely a piece of property, thus disposed of.