APPENDIX: ALTERNATE PENALTIES IN THE LAWS OF ESHNUNNA

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Emile Szlechter argues that alternate penalties also exist in LE because of the

differences in the way capital punishment is formulated in LE.34 In LE 24/26,

the formula is d¯ın napiˇstim . . . imˆ at, “it is a case of life . . . he shall die.” In

LE 58, the formula is napiˇstims.

imdat ˇsarrim, “[it is a case concerning] life:

decree of the king.” In LE 12, 13, and 28, the formula is imˆ at ul iballat.,

“he shall die, he shall not live.” Szlechter interprets the first two as indicating

differences in the administration of the penalty, that the punishment

could be mitigated and that the punishment could be imposed by the offended

party immediately upon discovering the offense. He argues that d¯ın

napiˇstim . . . imˆ at indicated that the death penalty was applicable only in

the absence of a settlement between the perpetrator and the victim’s family,

whereas the emphatic expression imˆ at ul iballat. indicated that the death

penalty was mandatory and that the offended party could resort to it immediately

in a self-help mode. Benno Landsberger and Ulrich Sick agree with

Szlechter’s first thesis but not with his claim about self-help.35 Szlechter himself

omits the self-help thesis in his 1978 publication. Yaron argues for the

opposite conclusion – although the emphatic nature of the phrase imˆ at ul

iballat. implies that the death penalty is mandatory, its mandatory use in these

particular cases appears out of line because LE 12, 13 and 28, where this

formula appears, share a common element in that the offender was caught

in flagrante delicto.36 This is reflected in the use of nas.butum, “to be seized,

caught,” in all three provisions. In LE 12 and 13, trespass, an offense that

generates the lowest penalty, ten shekels, the most minor amount to be paid

as a fine, becomes greatly aggravated when it occurs in the nighttime. When

trespass occurs at night, the penalty is death, not a fine. The owner reacts

violently to the intrusion and kills the intruder, justified in fearing for his life.

In LE 28, the husband, outraged by catching his wife in the lap of another

man, kills her. The offended party may kill in the moment of fear or fury, but

once that moment has passed, normal judicial procedures come into play.

34Szlechter, Les lois dEˇsnunna (Publications de l’Institut de Droit Romain de l’Universit´e de

Paris 12; Paris: Centre National de la recherche scientifique, 1954), 110–11, and “Les lois

d’Eˇsnunna,” RIDA 25 (1978), 197–198.

35Landsberger, “Jungfraulichkeit,” in Symbolae Iuridicae et Historicae Martino David Dedicatae

II, 72; Ulrich Sick,Die To tung einesMenschen und ihren Ahndung in den keilschriftlichen

Rechtssammlungen unter Beru cksichtigung rechtsverglechenderAspekte (Ph.D. diss., Eberhard-

Karls-Universit ¨ at, 1984), 150.

36Yaron, The Laws of Eshnunna2, 260.

The statutes provide a license for immediate punishment, but the remedy

effected when matters calm down is different.

In my opinion, it is questionable whether intrusion during the night is

so heinous as to exclude a lesser penalty. If adultery is pardonable in other

ancient Near Eastern law collections, LH 129, MAL A 15, HL 197–198,

there is no reason to assume that it was otherwise in LE. However, it is critical

to note that the phrase imˆ at ul iballat. is not extant elsewhere in Akkadian

legal formulations. The phrase fits the style of the other formulations of the

death penalty in LE, each of which contains two clauses. The formulation

d¯ın napiˇstim . . . imˆ at contains clause 1) d¯ın napiˇstim, and clause 2) imˆ at. The

formulation napiˇstims.

imdat ˇsarrim contains clause 1) napiˇstim, and clause

2)s.

imdat ˇsarrim. The formulation imˆ at ul iballat. also contains two clauses,

imˆ at and ul iballat.. The emphatic nature of this formula is more apparent

than real. Yaron himself suggests that the purpose of the double clauses was

to present a smooth literary style in place of a curt and abrupt one-word

decree of the death penalty.