The Woman in Marriage as Reflected in the Code of Hammurabi

Ichiro NAKATA
(Professor Emeritus of Chuo University, Tokyo)

 

A. SURVEY

 

I. The women in some Akkadian expressions of getting married

The verbs most frequently used in the CH to express the action of getting married are “to take (in marriage) or to seize” (aḫāzum)[1] and “to enter” (erēbum). The grammatical subject of aḫāzum is male and the woman appears only as the object of aḫāzum.

(1) “if a man takes a wife in marriage but does not make a contract for her, . . .  (šumma awīlum aššatam īhuzma riksātiša la iškun) “. (§ 128. See also §§ 144, 148, 162, 316, and 167) [2]

(2) “if that man has a debt incurred before he takes that woman in marraige  (šumma awīlum šû lāma šinništam šuāti iḫḫazu ḫubullum elišu ibašši)”. (§ 151)

Although the verb aḫāzum is used with a prospective husband as subject, the following expression pays some attention to the will of a woman.

(3) “a husband of her choice shall take her (in marriage) (mut libbiša iḫḫassi)”. (§ 172)

The subject of erēbum, on the other hand, is always female, as shown below. The verb is intransitive and does not require a grammatical object.

(4) “If a debt should be incurred by them after that woman enters the man’s house, both of them shall satisfy the merchant (šumma ištu sinništum šî ana bīt awīlim īrubu elišunu ḫubullum ittabši kilallāšunu tamkāram ippalū)” (§ 152). See also §§ [133a], 133b, § 134, 135, 136, 151, 152, 173, 176a and 177.

Note that the underlined paragraphs deal with cases of remarriage. §§ 133a~135 deal with cases of remarriage of a wife whose husband is a prisoner of war in an enemy land, while §136 deals with a case of a wife of a husband who has deserted his family and his town. §§ 173 and 177, on the other hand, deal with a widow who gets remarried. Thus, of ten paragraphs of the CH in which erēbum appears, seven paragraphs deal with cases of remarriage. However, the remaining three cases are most probably those of the first marriage. Thus, the use of erēbum cannot be considered limited to cases of remarriage[3].

It is important to pay attention here to the cases in which aḫāzum and erēbum are employed for referring to the same marriage. For example, at the end of § 172, we find “a husband of her choice shall take her (in marriage) (mut libbiša iḫḫassi)”. This same marriage is rephrased from the standpoint of the woman in the following paragraph (§173): “if that woman should bear children to her latter husband into whose house she entered (šumma sinništum šî ašar īrubu ana mutiša warkîm mārī ittalad) “.

The same type of rephrasing is found in § 176: “if a slave of the palace or a slave of a muškēnum marries a woman of the awīlum-class (u šumma warad ekallim ulu warad muškēnim mārat awīlim īhuzma . . .” //” (and when he marries her,) she enters the house of the slave of the palace or of the slave of a muškēnum together with the dowry brought from her father’s house (qadum šeriktim ša bīt abiša ana bīt warad ekallim ulu warad muškēnim īrubma) “ and § 151: “if that man has a debt incurred before marrying that woman (. . . šumma awīlum šû lama sinništam šuāti iḫḫazu ḫubullum elišu ibašši)”// “and if that woman has a debt incurred before entering the man’s house (u šumma sinništum šî lāma ana bīt awīlim irrubu ḫubullum eliša ibašši)”.

However, in the Old Babylonian marriage, as reflected in the CH, the father of the bridegroom and the father (or mother or brother, when the father is deceased) of the bride are considered to be parties to the marriage at least in a stage prior to the marriage of their respective son and daughter (or sister). The action of the father on the side of the future bridegroom taken toward the marriage is expressed by the verb ḫiārum (§ 155) or even aḫāzum (§ 166).

(5) “if a man selects a daughter-in-law for his son (šumma awīlum ana mārišu kallatam iḫīrma) “(§ 155)

(6) “if a man takes wives for his grown-up sons but does not take a wife for his young(est) son, . . . (šumma awīlum ana mārīšu ša irbû (text: iršû) aššātim īḫuz ana mārišu ṣeḫrim aššatam la īḫuz…)” (§ 166)

Action of the father (or mother or brother) of the bride, on the other hand, is expressed by the verb (ana mutim) nadānum.

(7) “if a father sets up a dowry for his daughter, who is a šugītum, gives her to a husband, and writes a sealed document for her, . . .( šumma abum ana mārtišu šugītim šeriktam išrukšim ana mutim iddišši kunukkam išṭuršim)” (§ 183). See also § 184.

II. Steps to the Consummation of Marriage

II-1. Prior to an Inchoate Marriage

When an agreement (riksātum) is reached between the father of a future bridegroom and the father of a future bride (or her brother or mother in case her father is deceased) regarding the marriage of the two, a ceremonial banquet (kirrum)[4] takes place. It is likely that the amount of terḫatum and the details of the dowry (šeriktum) are specified in this agreement. However, the agreement (riksātum) needs not be in a written form[5]. The existence of this process is not clear in the CH, and is only inferred from §§ 27-28 of the Laws of Eshnunna (hereafter LE)[6].

II-2. Inchoate Marriage[7]

When the biblum (presents for the wedding feast) is delivered and the terḫatum is given by the bridegroom to his father-in-law, a big wedding feast takes place[8]. After that, the bridegroom and the bride are regarded as “husband” and “wife” to the outside world. When both the bridegroom and the bride have by then reached the age ready for childbearing, the bride enters the household of the bridegroom, and their marriage are consummated by their sexual union, but when the bridegroom or the bride is too young for childbearing, the bride may either stay with her father[9] or move into the household of her father-in-law as a daughter-in-law (kallatum)[10].

The period between this wedding feast and the consummation of the marriage is regarded as a period of inchoate marriage. The bride in this period is a “wife” to the outside world and is legally protected as such from any sexual offence against her.

II-3.  Consummation of Marriage

An inchoate marriage is consummated, when both the bridegroom and the bride have reached the age ready for childbearing, by the bride’s moving into the household of her bridegroom and by the sexual union of the couple, or simply by their sexual union in the case of the kallatum-marraige[11].

III. Women in Dissolution of Marriage

III-1. Dissolution of an inchoate marriage

III-1-1. Dissolution initiated by the side of the bridegroom

Case 1:  If he (bridegroom), being attracted by another woman, declares to his father-in-law, “I will not take your daughter in marriage”, the father of the daughter will take full possession of whatever has been brought to him (i.e. biblum and terḫatum). (§ 159)[12]

Case 2:  If the father-in-law lies with her daughter-in-law, before his son (i.e. the bridegroom) carnally knows her, the father-in-law must pay 1/2 mana (30 shekels) of silver and restore to her whatever she brought from her father’s house, and “a husband of her choice may take her in marriage”. (§ 156)[13]

Cf. § 155: If a man selects a bride for his son (šumma awīlum ana mārišu kallatam iḫīrma) and his son carnally knows her, after which he (the father of the bridegroom) himself then lies with her and they seize him in the act, they shall bind that man and cast him into the water.

III-1-2. Dissolution initiated by the side of the bride

Case 1:  If the father of the bride declares, after he received biblum and terḫatum, “I will not give my daughter to you,” he must return twofold everything that has been brought to him”. (§160)[14]

Case 2:  If a man has biblum brought to the house of his father-in-law and gives terḫatum, and then his friend slanders him (with the result that) his father-in-law declares to the husband (bēl aššatim), “You shall not take my daughter in marriage”, he (the father-in-law) must return twofold whatever had been brought to him; moreover, his friend shall not take his “wife (aššassu)” in marriage. (§ 161//CL § 29)[15]

Case 3a:  If a woman hates her husband, and declares, “You will not take me in marriage”[16], her circumstances shall be investigated by the authorities of her city quarter, and if she is circumspect and without fault, but her husband is wayward and disparages her greatly, that woman will not be subject to any penalty; she shall take her dowry and she shall depart for her father’s house.  (§ 142)

Case 3b: If she is not circumspect but is wayward, squanders her household possessions, and disparages her husband, they shall cast that woman into the water. (§ 143)

III-2. Dissolution of a Consummated Marriage

III-2-1. Dissolution of a consummated marriage is expressed by the verb ezēbum (abandon, leave) with a husband as subject, though it is his wife that leaves his house.

Case 1:  If a man decides to divorce (ezēbum) a šugītum who bore him sons, or a nadītum who provided him with sons, they shall give her one half of (her husband’s) field, orchard, and property, and she shall raise her children; after she has raised her children, they shall give her a share comparable in value to that of one heir from whatever properties are given to her sons, and a husband of her choice may take her for marriage (muttu libbiša iḫḫassi). (§ 137)

Cf. If a man has begotten sons, but divorces his wife and marries another woman, he must be expelled form the house and whatever there may be therein, . . . (LE, § 59)

Case 2a:  If a man divorces his first wife (ḫīrtašu) who has not born sons to him, he must give her as much silver as her terḫatum and restore to her the dowry she brought from the house of her father and he may divorce her. (§ 138)

Case 2b:  if there is no terḫatum, he (an awīlum) must give her 1 mana of silver as divorce money (uzubbûm) (§ 139). If he is a muškēnum, he shall give her 1/3 mana of silver (§ 140).

Case 3a:  If a man takes a woman in marriage, and later la’bum-desease seizes her and (if) he decides to take another woman in marriage, he may take her in marriage. (However,) he may not divorce his wife whom la’bum-desease has seized; she shall reside in the house he built and he must support her as long as she lives. (§ 148[17])

Case 3b: If that woman does not agree to reside in the house of her husband, he (the husband) may restore the dowry she brought from her father’s house, and she may go. (§ 149)

IV. terḫatum, šeriktum and nudunnnûm　

IV-1. terhatum

IV-1-1. What is terḫatum?

terḫatum was basically cash (silver), given by a bridegroom to his father-in-law. However, in some cases, it contained a female slave and/or small cattle. The total amount of terḫatum, or a portion of it was often tied to the hem of the bride’s garment and brought with her to the house of her bridegroom together with her dowry at the time of her move. The terḫatum may be placed under the custody of the bridegroom, but its ownership belongs to the bride.

P. Koschaker stated in 1917 that terḫatum was either an earnest money or bride price depending on whether it was given at the time of engagement or at the time of actual marriage[18]. Koschaker’s view of Kaufehe was challenged by E. Cuq[19], and G. R. Driver-J. C. Miles[20] among others. In 1950 Koschaker modified his view of 1917 by accepting Driver-Miles‘ inchoate marriage theory and abandoning his hypothesis on engagement together with his concept of earnest money. However, he continued to regard terḫatum as bride price to purchase the right to acquire a bride from her father[21]. R. Westbrook also took it as his task to criticize Koschaker’s theory on Kaufehe in his OBML, 1988, pp. 53-58.

Here are the main objections of scholars against the Kaufehe theory, as summarized by R. Westbrook[22].

(1) §§138-40 presupposes a marriage without terḫatum: If a man (=awīlum) intends to divorce his wife (ḫīrtašu) who did not bear him sons, he must give her silver as much as was her terḫatum . . . If there was no terḫatum, he (=awīlum) must give her 1 mana (60 shekels) of silver as a divorce settlement (uzubbûm). If (he is) a muškēnum, he must give her 1/3 mana of silver[23].

(2) If terhatum were to be a bride price, its amount would be too small. (Note that the amount of terḫatum is in generally either 5 or 10 shekels, as shown below. 10 shekels would be more or less equivalent to the average price of a slave in the Old Babylonian period, but 5 shekels would be less than the average price of a slave in the OB period[24].)

(3) If terḫatum is really a bride price, it would be very difficult to explain the institution of giving a nudunnûm to ensure the livelihood of a wife in future when she becomes widowed.

(4) The OB law did not treat her as the property of her husband.

Westbrook prefers to see an analogy between child-adoption and marriage institution rather than between the sales and marriage institution[25]. He thinks that terḫatum is a payment to a bride’s father for the right to control over their daughter[26].

IV-1-2. The amount of terḫatum

The amount of terḫatum ranged from 1 to 40 shekels of silver in the OB period apart from some rare cases, but it is normally either 5 or 10 shekels of silver. It may be noted that Šamšī-Adad I thought that ４ biltu’s (240 mana roughly equivalent to 120kg) of silver might not be sufficient as terḫatum for a daughter of the king of Qatna who was going to get married with Yasmaḫ-Addu, his son, and suggested 5 biltu’s (300 mana, roughtly equivalent to 150kg) of silver would be more appropriate as her terḫatum （ARM I, 77:11f. Cf. ARM I, 46:5）.

• 1 shekels：VAS 9, 192:5ff.
• 1.5 shekels+15 barleycorns：CT 4, 18b:13
• 4 shekels：CT 8, 76:9
• 5 shekels：BIN 7, 173:8; CT 33:34:9; CT 47, 40a:10; CT 48, 55:15; PBS 8/2, 252:15; YOS 13, 440:2; TIM 4, 46:3: TIM 4,47:26; YOS 12, 457:6; YOS 13, 440:2
• 6 shekels：CT 48, 53:10(case) (5 shekels on the tablet)
• 10 shekels： CT 48, 51:9, 52:6, 55:15, 57:7; Donbaz-Yoffee, OB Kish, p. 72 ｒ.7；Meissner, BAP 90:8; VAS 8, 92:8; YOS 13, 440:2
• 20 shekels：Waterman, Business Doc. 39:2
• 40 shekels + a slave：VAS 8, 4:11

IV-2. šeriktum (dowry)

A šeriktum in the CH is a dowry given to a bride by her father and is brought to the house of her bridegroom, when the bride enters his house as a bride or as a daughter-in-law (kallatum). šeriktum (dowry) consists of garments, accessories, oil, kitchen utensils, furniture, a slave (or slaves), small cattle, etc., and does not normally include money (silver). Although this use of the term šeriktum for dowry is found in the Middle Assyrian Laws (MAL A, §29), šeriktu(m) does not appear in the “documents of practice” in the post-OB periods. šeriktum only means “gift” in a very general sense in the post-OB periods. In the NB Laws šeriktu is used in a sense very similar to that of nudunnûm in the CH[27].

IV-3. nudunnûm

The term nudunnûm is used outside of the CH, in the documents of practice, to designate dowry[28]. This is especially true in the NB period[29], but in the CH a nudunnûm is a gift given together with a written document (ṭuppum) by a husband to his wife in order to ensure her and her children’s livelihood after his death. After the death of the wife, the nudunnûm is inherited by her sons.

The nudunnûm may include a part of the husband’s field, orchard and house and (or and/or?) movable property, if § 150 (If a man awards to her wife a field, orchard, and house and (or and/or?) movable property and makes out a sealed document for her,…) refers to a nudunnûm, as G.R. Driver-J. C. Miles (BL, I, 1952, p. 268) and R. Westbrook, OBML, 1988, pp. 95-96 so suppose.

The wife (ḫīrtum) can take her dowry and the nudunnûm which her husband awarded to her in writing, and she can continue to reside in her husband’s dwelling; as long as she is alive she can enjoy the use of it, but she may not sell it; her own estate shall belong (as inheritance) only to her own children. (§171).

If her husband has not given a nudunnûm to her, they must restore her dowry and she may take a share of the property of her husband like any one of the heirs. If her sons make her life impossible so that she may go out, the judges must investigate her case and must impose penalty upon her sons; this wife does not need to go out of her husband’s house. If this woman decides to go out, she must leave to her sons the nudunnûm her husband has given her. She may take the dowry (brought) from her father’s house, and a husband of her choice may take her in marraige. (§172).

.

B. A FEW OBSERVATIONS

1. In a sharp contrast to assertive and aggressive Mesopotamian goddesses such as Ishtar who asked Gilgamesh to get married with her on his way home from his adventure into the Cedar Mountains and Adgarkidu, daughter of Numušda who insisted on getting married with Martu against strong advices of her girl friend, the woman in Mesopotamia, at least as reflected in the CH, does not seem to have had a say in her own marriage.

Usually some ones other than she decide with whom she gets married. This situation is collaborated by the lack of Akkadian expressions of getting married in which the verb takes a woman as subject and a man as object. It is true that the verb erēbum is used with a woman as subject, but erēbum is an intransitive verb and does not require an object.

An oblique expression that takes into some consideration the will of the woman is “the husband of her choice may take her in marriage (mut/mutu libbiša iḫḫassi)”. This expression appears in three paragraphs of the CH (§§ 137, 156 and 172), but they all deal with cases of remarriage. Besides, here too, the woman appears as object of the verb aḫāzum and not as subject.

This situation in the OB period reminds us of that of pre-modern Japan, when men used to say, “watashiha Hanako-sanwo yomeni morau (I take Hanako as wife.). However, women could not say, “watashiha Taro-sanwo ottoni morau (I take Taro as husband.). Women in those days could only say, “Watashiha Taro-sanno tokoroni yomeiru (I enter the household of Taro as bride/daughter-in-law.). In those days, women in Japan had little say in their marriage that was often arranged by their parents.

2. The penalty of the father-in-law who lies with his daughter-in-law (kallatum) whom his own son has known carnally is death by being thrown into water (§ 155). This would not surprise us. However, the penalty of the same act by the father-in-law that takes place before his son knows her carnally (payment of 1/2 mana of silver and dissolution of the inchoate marriage) seems to be too lenient (§156) in comparison to the penalty (death) for a sexual assault against a woman in the state of inchoate marriage by an unrelated man (§130). Is this because the father-in-law was regarded as a party to the marriage contract? (Cf. § 166: šumma awīlum ana mārīšu ša irbû (text: iršû) aššātim īḫuz ana mārišu ṣeḫrim aššatam la īḫuz . . .)

3. There are cases of dissolution of an inchoate marriage the process of which the bride initiates by declaring, “You will not take me in marriage (, meaning you will not consummate this marriage)”. (§§ 142-143) However, it is far more difficult for a bride to do so than for a bridegroom, because she has to be investigated by the authorities of her city quarter, risking her life in the worst case. A bridegroom, on the other hand, can initiate the same process, if he is willing to forfeit the biblum and the terḫatum he has presented to his father-in-law.

4. Dissolution of a consummated marriage without children (written: sons) was possible with conditions that the divorcing husband would give his wife as much silver as her terḫatum and restore to her the dowry she had brought from the house of her father (§138). If there were no terḫatum and if he were an awīlum, he would have to give 1 mana of silver to his wife as divorce money (uzubbûm) (§139). If he were a muškēnum, he would have to give 1/3 mana of silver (§140). The amount of the divorce money was large and must have had discouraging effects on a man who was contemplating a divorce.

Even if a man’s wife were to become seized by la’abum-desease so that he might not be able to beget sons, this would not be considered as an excuse for divorcing his sick wife, though he may be allowed to take a second wife, unless she (the first wife) desires to get divorced under the circumstances (§§148-149).

However, divorcing a wife who has born sons seems to have been strongly discouraged. A pertinent paragraph on this point is §137. This paragraph is concerned not with divorcing an ordinary woman, but with divorcing nadītum who provided her husband with children (written: sons) or šugītum who bore children (written: sons) for her husband. According to the prevailing principle regarding the nadītum and šugītum during the OB period, namely, “The marrier of one marries the other; the divorcer of one divorces the other“,[30] it is difficult to explain the situation of §137, because it deals with a divorce of either nadītum or (ulu) šugītum. Leaving this problem aside, they (the city authority or the elders of the town?) require the husband in this case to return to his wife her dowry and give her one half of his field, orchard, and property so that she may be able to raise her children. They also require the divorcing husband to give his wife a share comparable in value to that of one heir from whatever properties are given to her sons as well as freedom to get remarried with a man of her choice. Here I should like to draw you attention to § 59 of the Laws of Eshnunna which says: “If a man has begotten sons but divorces his wife and marries another woman, he must be expelled from the house and whatever there may be therein, . . .”

5. It is without saying that OB women had very little say in their own marriage. However, they are not without protection or security for their future life in case something happens with their husbands.

Married women according to the CH have their own possessions such as her dowry (šeriktum), a part or whole of terḫatum that is tied to the hem of their garment by their father and is returned to their husband’s household (cf. §§ 163 and 164) when they move in, and lastly nudunnûm which is given to wives probably when they have their first child. They are probably under the custody of their husband while he is alive, but if, for example, their husband dies, they can live on their own possessions at least for sometime. These possessions of the wives are inherited, when they die, by their sons.

The welfare of the wives and children of Babylonian soldiers, when they are captured in an enemy land and held as prisoners of war is another matter of concern of the CH (§ 29).

The protection of married women especially with children is well in accord with the concern of Hammurabi for the weakest of the society (orphans and widows), as can be seen in the words of Hammurabi in the epilogue of the CH as well as in those of other lawgivers before him indeed.

List of Abbreviations

AL	G. R. Driver-J. C. Miles, The Assyrian Laws, Oxford, 1935
ARM	Archives royales de Mari
ArOr	Archiv Orientální
BAP	B. Meissner, Beiträge zum altbabylonischen Privatrecht, Leipzig, 1893
BE	The Babylonian Expedition of the University of Pennsylvania
BIN	Babylonian Inscriptions in the Collection of J. B. Nies
BL	G. R. Driver-J. C. Miles, The Babylonian Laws, 2 vols., Oxford, 1952-1955
Business Doc.	L. Waterman, Business Documents of the Hammurapi Period from the British Museum, London, 1916
CAD	The Assyrian Dictionary of the Oriental Institute of the University of Chicago, Chicago, 1956-
CH	Code of Hammurabi
CL	Code of Lipit-Ishtar
CT	Cuneiform Texts from Babylonian Tablets in the British Museum
Droit matrimonial	A. van Praag, Droit matrimonial Assyro-babylonien, Amsterdam, 1945
JAOS	Journal of the American Oriental Society
JCS	Journal of Cuneiform Studies
Law Collections	Martha T. Roth, Law Collections from Mesopotamia and Asia Minor, SBL Writings from the Ancient World Series, 6, Atlanta, 1995
LE	Laws of Eshnunna
MAL	Middle Assyrian Laws
OBML	R. Westbrook, Old Babylonian Marriage Law, AfO, Beiheft 23, Horn, 1988
OrNS	Orientalia, Nova Series
PBS	Publications of the Babylonian Section, University Museum, University of Pennsylvania
RvSGgH	P. Koschaker, Rechtsvergleichende Studien zur Gesetzgebung Hammurapis, Königs von Babylon, Leipzig, 1917
Symbolae David	J. A. Ankum et al. (eds.), Symbolae Iuridicae et Historicae M. David Dedicatae, Vol. 2, Leiden, 1968
TIM	Texts in the Iraq Museum
VAS	Vorderasiatische Schriftdenkmäler der Königlichen/ Staatlichen Museen zu Berlin
YOS	Yale Oriental Series, Babylonian Texts

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