The cultic versus the forensic: Judahite and Mesopotamian judicial procedures in the first millennium B.C.E.

• Author: Wells, Bruce
• Position: Report

Throughout most periods of ancient Near Eastern history, religious rituals frequently played an important role in the resolution of legal disputes that were brought to trial. It appears that judges would sometimes make use of them arbitrarily but often when they felt the available evidence was insufficient or at least too ambiguous to render a decisive verdict. The rituals--or cultic procedures, as I will call them--fall essentially into three categories, memorable for their alliteration: the oath, the oracle, and the ordeal. Each term is sometimes preceded by the word "judicial" to distinguish it from similar rituals that occurred outside the context of a trial. By means of these procedures, courts appealed to the divine realm to help decide the matter at hand. Some recent scholarship has observed changes in how and how often these procedures were used in later periods, predominantly in Mesopotamia. These studies suggest that the degree to which Mesopotamian courts relied on such methods decreased in the Neo-Assyrian, Neo-Babylonian, and Persian periods. (1) Trials began to take on a less religious orientation. In light of the changes that occur, some have gone so far as to propose a process of "secularization" during this time in Mesopotamia. (2)

The relevant evidence from Mesopotamia--cuneiform texts related to trial proceedings and other judicial matters--deserves a more thorough examination than it has previously received. In addition, evidence from biblical texts, specifically Deuteronomic and priestly legal texts from ancient Judah, is important to include in this discussion. The primary purpose of this study is to consider the evidence for changes in Judahite and Mesopotamian judicial procedure and explore the possibility of a relationship between the changes that took place in the two regions. The combined evidence points to a number of potential conclusions. The frequency with which courts resorted to cultic procedures to resolve legal disputes does indeed seem to decline in the second quarter of the first millennium B.C.E. The nature of the oath and how it is used at trial also appear to change during this same time period, as the oath begins to play a less crucial role in the judicial process. Moreover, connections can be observed between features of these developments in Mesopotamia and significant aspects of biblical legal texts that deal with judicial procedure.

Thus, this article agrees with the basic premise of the few previous studies on this topic, although it takes exception to some of their conclusions, which, I will argue, were based on too little data. In brief, in both the biblical and Mesopotamian material, there appears to be a distinct movement toward a greater reliance on rational or empirical methods to decide cases. Most of the evidence--biblical and cuneiform--for this stems from the late seventh through the early fifth century B.C.E. (3) That this phenomenon is the result of a widespread process of secularization or increasing rationality in the ancient Near Fast, however, seems unlikely. There appear to have been other factors (e.g., economic, political) at work, driving this tendency to disfavor the use of cultic procedures and to rely more strictly on what I will call forensic procedures: ordinary judicial and investigative procedures such as the hearing of witness statements and the examination of physical evidence. (4) While it is fairly clear that the former were not entirely abandoned in either Mesopotamia or Judah, the evidence strongly suggests an important and even radical shift in the legal thinking of this era.

1. TERMINOLOGY AND THE THREE O'S

   There is some debate regarding how precisely to understand the oath, the oracle, and the ordeal. Standard terminology in Assyriological circles distinguishes between the rational (what I am calling forensic procedures) and the supra-rational (what I am calling cultic procedures). (5) This language can be problematic because it assumes a particular way of thinking about rationality that may be unhelpful. That is, using this terminology could imply that a decrease in the use of "supra-rational" procedures would almost certainly result in a corresponding increase in rationality, as we moderns conceive of rationality, but this may or may not be the case. I have decided to use what seems to be a more neutral term--namely, cultic. A closer look at each of the three main types of procedures reveals the distinctly cultic nature of each. (6)

   I begin with the oath. When ancient Near Eastern courts (7) employed the judicial oath, they would require one of the litigants (less frequently, the witnesses for one of the litigants) in a trial to swear by one or more divine beings that his or her version of events was true. (8) Litigants who took such an oath won their case, because the oath was dispositive: it automatically disposed of the case in favor of the oath-taker. When the courts resorted to the oath, they were transferring the responsibility for ensuring that justice was done to the divine court, which would be certain to punish anyone who happened to swear falsely. (9) The judicial oath is mentioned more frequently in trial records from Mesopotamia than in those from other regions. It occurs in Old Akkadian trial records (10) from the third quarter of the third millennium B.C.E., appears regularly in Neo-Sumerian (11) and Old Babylonian (12) trial records, and remains a fixture of Mesopotamian trials well into the Neo-Assyrian period. (13) While not frequently mentioned in biblical texts, the judicial oath is referred to in a variety of places, including Exod. 22:9-10, Lev. 5:21-26, Num. 5:11-31, Deut. 21:1-9, and 1 Kings 8:31-32. (14)

   Use of the oracle occurred when a verdict was sought directly from a deity, usually by consulting cultic paraphernalia. Evidence for judicial oracles in Mesopotamia is scarce. Oracles and divinatory procedures of other types were prevalent, but very few extant records show trial courts relying on oracles to decide cases. There are at least three Neo-Assyrian trial records in which the god Adad is said to be the one who issued the verdict. (15) In addition, prayers and other literary texts may reflect some knowledge of the judicial oracle in Mesopotamia. (16) By way of contrast, there is a fair amount of data from Egypt on the use of judicial oracles, particularly from the New Kingdom site of Deir el-Medina. (17) There, it was typically the statue of the deified Amenhotep I that was consulted. (18) Israel and Judah also utilized the judicial oracle (e.g., Exod. 18:15-16; 22:6-8). One of the prime examples is the trial of Achan in Joshua 7. The text indicates that the guilty party was pinpointed when Yahweh "selected" (lakad) the appropriate tribe, clan, household, and then the individual. (19) What is sometimes described as the casting of lots was likely one of the means by which an oracle from Yahweh was solicited. (20)

   Though probably not unheard of in ancient Israel and Judah, the judicial ordeal is best known from the river ordeal described in a number of Mesopotamian texts. (21) This was a special means of soliciting a verdict from the divine court. Typically, one of the litigants would be instructed to enter a river in order to see what would happen to the person. Unfortunately, the details of the procedure are rather obscure, though it was probably the case that persons who floated were deemed in the right, while those who sank were judged to be guilty. References to the river ordeal occur in several law collections and in documents of practice from a variety of time periods. (22)

   It is certainly understandable why some scholars apply the term "supra-rational" to these procedures. They constitute methods that rely not on the examination of what today would be considered empirical evidence but on particular beliefs about divine beings and supernatural reality. In this way, they can be seen as going beyond the realm of human logic or rationality. Nevertheless, it is not clear that it is the supra-rationality per se of these procedures that linked them together in the minds of ancient scribes, litigants, judges, and other legal practitioners. (23) The more evident unifying factor among these procedures is their culticnature. To be sure, ancient Near Eastern courts made regular use of forensic procedures and often employed both forensic and cultic procedures in the same trial. A given trial, for instance, could entail the hearing of witness statements and the examination of documentary evidence and then conclude with a cultic procedure such as the oath. (24) Still, it was the cultic procedures that carried a decisive force that their forensic counterparts typically lacked.

2. A SHIFT IN MESOPOTAMIA

   To date three scholars have explicitly proposed that a shift away from a reliance on cultic procedures to decide trials occurred in Mesopotamia during the first millennium B.C.E. The first was Eckart Otto in 1998. (25) He observed that in the Neo-Assyrian period (he does not comment on any texts from the Neo-Babylonian or Persian periods), the frequency with which the oath was employed appears to have been significantly less than in the Old Babylonian period and that the oath and the ordeal were used only in exceptional cases in the Neo-Assyrian period. In the following year, Gerhard Ries published his observations that the judicial oath was now, as reflected in Neo-Babylonian trial records, susceptible to contradiction by rational evidence. (26) He states that this demonstrates a weakening of the complete and unwavering trust that previous eras had placed in their religiously oriented methods for resolving legal disputes. In fact, both Otto and Ries use the word "Sakularisierung" to describe what is happening within Mesopotamia's legal system. (27)

   The third scholarly reference to this trend came in F. Rachel Magdalene's 2004 article on legal metaphors in the book of Job and their...