I am already regretting setting out on this adventure into the critical change in human behavior that was triggered by the necessary restructuring of human activity around agriculture-urban development in the ancient Near East.
But! It’s so important to the understanding of “bad behavior” in humans ever since!
Below are links to other posts about hunter gatherers:
The “before and after” picture of human behavior clearly shows a conversion from the “hunter gatherer” easy-going lifestyle to horrible human behavior as a “result” of social organization into land ownership. The “advent of writing” is consumed by law codes that regulate boundaries between individuals and groups, which could no longer live together in any reasonable way. Rather than natural relationships of mutual respect, teamwork, and equality, which included freedom of association, humans living in new urban empires quickly saw “neighbors” as evil-doers who transgressed on “plots of earth” that belonged to “owners”. These arrangements are what modern people still rely on for social interaction!
The rapid and mindboggling shift from hunter gatherer small group living to the massive agricultural empires of the Near East and elsewhere, provides insight into “bad behavior” among humans. HG life offered mobility, access to nutritious wild food of many types, which was acquired with little labor and time investment; sharing of resources among all members, and freedom of “membership” exchange between groups. The loose HG lifestyle provided the individual a range of healthy choices and little interpersonal conflict, which should it occur, was alleviated by the individual joining a different group for awhile, or permanently. “I need to get away for awhile…”
By contrast, if you can read this article without cringing at the cruelty, divisiveness and crummy relations that resulted from land ownership, overcrowding and the need for slave labor – “the social hierarchy” – you must be happy with the awful conditions of human society today, with its institutional inequality, prejudice, racism, sexism, abuse, poverty, and all around bad behavior.
If this turgid, dreadful, dismal, petty, uninteresting and mind-bogglingly boring account of “civilization” is inherently WRONG for you, you likely are a “wild human” type trapped in neurotypical HELL.
NOTHING HAS CHANGED IN OVER 5000 YEARS!
Yale Law School Yale Law School Legal Scholarship Repository, 1/1/1995
Ancient Land Law: Mesopotamia, Egypt, Israel
Robert C. Ellickson Yale Law School Charles DiA. Thorland
This Article provides an overview of the land regimes that the peoples of Mesopotamia, Egypt, and Israel created by law and custom between 3000 B.C. and 500 B.C.
As much blah, blah, blah removed as possible! Masochists can go to: http://digitalcommons.law.yale.edu/fss_papers
Chicago Kent Law Review vol 71:321
I. THE ANCIENT NEAR EAST
Taken together, Mesopotamia, Egypt, and Israel provide a rich lode of material on ancient land institutions. Despite their relative proximity, these three civilizations (two Goliaths and one David) differed sharply in numerous respects, including religion, language, and writing system. All three embraced a variety of practices that offend modern sensibilities-slavery, polygamy, and (with the qualified exception of Israel) polytheism. Nevertheless, Mesopotamia and Egypt rightly are regarded as cradles of civilization. By 3000 B.C., before any other society, the peoples of these lands had separately developed systems of writing, were capable of living in cities, and were beginning to engineer earthworks and other massive construction projects that for millennia would awe travelers from abroad.
Ancient Israel, situated roughly equidistant between Mesopotamia and Egypt, took root in the highlands of Canaan during the late second millennium, nearly two thousand years afterward. The Israelites, however, ultimately had more direct influence on Western culture.
Mesopotamia, literally “the land between the rivers,” lies between the Tigris and Euphrates, largely in present-day Iraq. Babylonia, the southern portion of the area, offers the richest concentration of sources for our inquiry. Deceptively inauspicious, it is a semi-arid and exceptionally flat alluvial plain, with virtually no rain during the eight-month dry season and a mean daily high temperature reaching 122 degrees Fahrenheit in August. Babylonia’s climate and topography destined it to become a quintessential “hydraulic society,” to invoke Karl Wittfogel’s influential phrase. By no later than 4000 B.C., the natives of the region had recognized that, by controlling the Euphrates to provide irrigation, they could transform this inhospitable desert floodplain into fertile cropland. In its natural state, the Euphrates crossed the alluvium in shifting and meandering braids, dropping sediment that built up natural levees higher than the land surface. Especially at flood stage in spring, the water level in the river was higher than the riparian land. The natives’ challenge was to devise a system of gravity-flow irrigation for the late fall and winter, critical periods in the annual crop cycle. Over many centuries, the inhabitants of southern Mesopotamia perfected the necessary earthworks. These included: outlets cut in the sides of the natural river levees to feed canals; excavated canals (perhaps opportunistically congruent with abandoned meander channels); regulators (weirs) employed to keep canal waters above adjoining land surfaces; and localized canal outlets to allow for controlled inundation of fields. To build these earthworks, the Mesopotamians of the alluvium had to develop not only technologies but also social institutions that would enable them to mobilize large teams of men and animals. In this setting, investments in the social capital of civilization promised unusually high returns. In addition, because southern Mesopotamia was relatively invulnerable to invasion during its early burst of agricultural development, the Mesopotamians could expect good success in preventing aliens from seizing what they produced. To the west, the Syrian desert (home of pesky Amorite nomads) initially provided something of a buffer; the rugged Zagros Mountains (home of clannish but fragmented tribes) lay to the east; to the south was the marshy delta at the top of the Persian Gulf; and, finally, to the north of the irrigable plain was a protective stretch of territory too inhospitable to sustain much settlement. Responding to their conducive natural conditions, during the fourth millennium the residents of Sumer (the southern portion of Babylonia) led human civilization into the Bronze Age. Their extraordinary innovations included axled vehicles, bronze tools, mathematics, the world’s first practical system of writing, and (by inference) methods of managing large organizations. As the third millennium progressed, several dozen rivalrous walled city-states, surrounded by hinterlands of villages and farms, evolved in both Sumer and Akkad (northern Babylonia). Powerful states arose during the Old Akkadian (c.2350-2200 B.C.) and Ur III (c.2100-2000 B.C.) periods under charismatic rulers, only to collapse again under the weight of foreign invasion, internal revolt, and the region’s relentless centrifugal forces. A highpoint of the subsequent Old Babylonian period (c.2000-1600 B.C.) was the kingship of Hammurabi of Babylon (beginning c.1792 B.C.). In the sixteenth century B.C., however, all of Mesopotamia entered into something of a dark age after successive foreign invasions. The region’s influence later revived, especially c.950-500 B.C., the era of the great Assyrian and NeoBabylonian empires. In all, Mesopotamia enjoyed more than a 3000-year run as the site of one of the world’s leading civilizations. Mesopotamian societies developed sophisticated legal institutions, and more is gradually being learned about how they functioned. A village’s council (elders and “mayor”) may have served as a court of first resort. Many cities eventually housed temple- or palace-affiliated courts, whose judges were capable of dealing with complex disputes. The law codes, a primary source of legal information, mainly date from the period 2100-1700 B.C. Fragments of these codes have been found written in cuneiform on stone pillars (stelae). Four of the oldest and most complete of the known codes, all issued under the name of a ruler of an ascendant city-state, are the Laws of UrNamma (c.2100 B.C.); the Laws of Lipit-Ishtar42 (c.1930 B.C.); the Laws of Eshnunna43 (c.1770 B.C.); and the renowned Code of Hammurabi 4 (c.1750 B.C.). Although published by rulers of distinct regimes in different centuries, these codes share numerous themes and provisions. These similarities suggest enduring commonalities in the customary law of Babylonia (and also, perhaps, a compiler’s tendency to start from an existing text). Whether Old Babylonian judges actually heeded these code provisions is a matter of vigorous debate. No one disputes, however, that the code provisions are a valuable source on the customs and institutions of the era.
Ancient Egypt also was a hydraulic society centered on a desert floodplain. Apart from regions such as the Fayyam just south of the Nile delta, however, its arable lands were in a fixed valley basin, not a flat alluvial expanse. The Nile inundated its valley each summer and then receded, leaving moist fertile soils prime for planting with barley (the staple grain of the ancients), flax, or emmer (a hard-to-thresh wheat). The Nile’s floods are more reliable and predictable than that of any other major river. Its relative regularity enabled the Egyptians to operate a largely decentralized irrigation system less complex than the Babylonians’. In ancient Egypt, as in southern Mesopotamia, the expected returns from investing in the social capital of civilization were unusually high. To prevent a Hobbesian land-rush in late summer on fields in the moist flood basins, the ancient Egyptians had to devise systems for surveying and recording land titles. This circumstance undoubtedly helped spur the development of mathematics and writing. In addition, Egyptian farmers were strongly motivated to coordinate with one another to develop irrigation systems to enable them to grow a second crop of vegetables and fodder. The Egyptians’ investments in civilization were even less risky than the Mesopotamians’. Protected by deserts to the east and west, cataracts of the Nile to the south, and the Mediterranean Sea to the north, the Egyptians could anticipate the success they would have in keeping foreigners from capturing riches they produced. Ancient Egypt had a far more unified and stable political structure than did Mesopotamia, perhaps because there were fewer potential invaders nearby and because the Nile was more suited than the Euphrates for large ships. In any event, Menes, the first pharaoh, succeeded in uniting the Upper and Lower Kingdoms of the Nile valley in around 3200 B.C. He was succeeded by thirty dynasties of pharaohs, whose reigns lasted until 341 B.C. Although periodically riven with internal chaos, with one exception Egypt was free of foreign invaders until the late second millennium. The civilization along the Nile prospered particularly during the Old (2695-2160 B.C.), Middle (1991-1785 B.c.), and New (1540-1070 B.C.) Kingdoms. The ancient Egyptians’ showy accomplishments overtly symbolized their organizational prowess. By the end of the Old Kingdom, they had sailing vessels 170 feet long and pyramids far taller than any ziggurrat temple the Babylonians would ever erect. Although the Egyptians’ painting, sculpture, and architecture were long unmatched, their hieroglyphic method of writing was less compact than Mesopotamian cuneiform (wedge-shaped markings on clay or stone). In addition, because papyri are far less durable than cuneiform’s primary media, comparatively few ancient Egyptian documents have survived. As a result, while troves of Mesopotamian documents await translation, the structure of Egyptian land institutions must be inferred from a small number of texts written centuries apart. The most important of these are the farmer Hekanakht’s letters (2002 B.C.), records of the lawsuit of Mose (c.1250 B.C.), and the cadastral survey contained inthe Wilbour Papyrus (1142 B.C.). Historians can derive some solace, however, from the exceptionally conservative and static character of Egyptian civilization; what is discovered about Egypt’s early legal system almost invariably accords with the better documented portrait of its institutions in later eras.
The civilization of ancient Israel arose relatively inconspicuously, in the early Iron Age. The Israelites appear to have settled in the hill country of Canaan during the thirteenth century B.C., following their exodus out of enslavement in Egypt. Giving up their previously pastoral ways, they turned to cultivating wheat, barley, grapes, and olives, and raising sheep, goats, and other livestock. Agriculture was less centralized than in the hydraulic societies of Mesopotamia and Egypt. Israel has a Mediterranean climate, and essentially no rain from mid-May until September. In Canaan the basic tools of water management were the household cistern and the hillside terrace. Urbanization accelerated in Israel after David established his monarchy in 1000 B.C. The population of Jerusalem, King David’s capital, grew from about 2,000 in c.1000 B.C., to about 25,000 in c.701 B.C. Alien emperors, such as Sargon 11 of Assyria and Nebuchadrezzar ofBabylonia, bullied Israel, particularly during 721-587 B.C. The Israelites’ perennial concerns about security influenced their institutional arrangements. The Hebrew Bible (or Old Testament) is the primary textual source on ancient Israelite society. Its first five books, the Torah (or Pentateuch), include several law codes, seemingly highly redundant, that contain numerous provisions on land. The Torah is thought to have been written in patches and fragments over many centuries. Its first portions date from no earlier than 1200-1100 B.C., and are recordations of oral accounts of events of the prior several centuries. Deuteronomy, the last of the five books, probably dates from the seventh or sixth century B.C. In 587 B.C., Babylonian invaders removed many Israelite priests to Babylon after sacking Jerusalem, and kept them there for the next fifty years. In anticipation of their eventual return to Canaan, the exiled priests interstitially inserted fresh material into the Torah and added glosses to older texts. This priestly material (the “P source”) reflects the influence of egalitarian prophets Amos, Hosea, Micah, Isaiah, Jeremiah, and others-who angled during 800-587 B.C. to reform the wickedness of their prospering and urbanizing society. The land law of the Hebrew Bible thus reflects over 500 years of development and reveals a variety of normative perspectives. Some of the Biblical land rules-particularly those created during the Babylonian captivity-appear not to have had any practical significance. Many provisions, however, unquestionably reveal customary practices that priests involved in the administration of the Israelite judicial system would have honored. Another window on ancient Israel is the archival material unearthed in the port of Ugarit, a site in what is presently northern Syria. Ugarit’s rich store of administrative and political documents, some in Akkadian and some in Ugaritic, has been dated to the fourteenth and thirteenth centuries B.C. Some texts provide information about land transactions, and the institutions depicted commonly parallel those described in the Hebrew Bible.
II. PRIVATE PROPERTY IN LAND
To an unblinking reader of formalist ancient texts, the pharaoh owned all land in ancient Egypt, and Yahweh, all in Israel. Contrarily, for more than a century, some commentators have asserted that ancient man knew only communal property. Evidence of actual social practices in ancient settings belies both of these reductionist perspectives. This Part demonstrates that in all historical periods some lands in ancient Mesopotamia, Egypt, and Israel were held as private property. Private property connotes both a type of owner and a core set of entitlements. The discussion in this Part assumes that a private owner is either an individual, a nuclear household, or a household extended to include sons’ wives and children. A private landowner’s basic entitlements are the right to exclude trespassers, the privilege of deciding how the land is to be used, and the power at death to pass ownership interests in the land to successors. The civilizations of the ancient Near East conferred entitlements along these lines, but-like other societies that honor private property-also hedged the entitlements in certain respects.
A. Evidence of Private Land Ownership
Law-and-economics theory suggests that a society is almost certain to devolve to private households responsibility for dwelling maintenance and hard-to-monitor agricultural operations. In the three ancient civilizations, small family units indeed tended to dominate these land activities.
1. Houses and Gardens
All commentators agree that, from the earliest periods of ancient Near Eastern history, free family households-even the poorest of them-typically owned their own houses and garden plots. Although some stone and wood was in use, the basic domestic building material was mud brick, at times reinforced with straw. On farmsteads and in rural villages, where most of the population resided, an extended household might dwell in a cluster of one-story buildings. A wealthy family, rural or urban, might have a two-story house with an unroofed central court. Even within the crowded areas of walled cities, private homeownership appears to have been the norm. A text from Ugarit suggests the intensity of interest in security in one’s housing: Ammistamru …. king of Ugarit… gave the house of Anndr… to bdmlk… and to his sons for ever. Nobody shall take it away from them. This house is in the hands of bdmlk… and in the hands of his sons for ever, and there is no corvee from it. The prevalence of home ownership in Israel seems reflected in the opening words of the Tenth Commandment: “You shall not covet your neighbor’s house. ‘
2. Croplands, Orchards, and Vineyards
Of the three civilizations, Israel seems to have had the most privatized system of agriculture. The Hebrew Bible is rife with incidents and rules involving farmers’ fields, vineyards, and orchards. Israelite practice was hardly exceptional for its region. Legal texts from Ugarit, the seaport in northern Syria, attest to the existence of privately owned estates in 1400-1200 B.C. In the hydraulic civilizations of Mesopotamia and Egypt, ownership of agricultural lands was more varied. Most scholars currently agree that during all historic periods some croplands in both regions were in the hands of private owners who owed no special services to the crown. There has been much debate over the extent of private land tenure in southern Mesopotamia during the third millennium, the earliest historic period. An outdated view holds that Sumerian culture then recognized only institutional or communal ownership of arable land, and that Semitic immigrants imported the alien institution of private landownership, bringing it first to Akkad toward the end of the millennium. The most recent scholarship on Mesopotamia, however, indicates that private property in fields co-existed with palace and temple property throughout the third millennium. While Diakonoff and other members of the Soviet school have argued that almost all land was held communally prior to the rise of the temple in the mid and late third millennium, some of the earliest recorded land sales are by individuals, not groups. Even during the Ur III period in Sumer, when palace power was at a peak, investigators have found records of sales of private houses and orchards, field leases, and royal grants of fields to individuals. In any case, there is universal agreement that outright private ownership of agricultural lands was widespread in northern Babylonia by the start of the second millennium (the Old Babylonian period). By that time and place, at least, there appear to have been brisk markets for agricultural workers and other farm inputs. A provision of the Code of Hammurabi deals explicitly with breach of a promise to faithfully supervise crop-growing operations: If a man hires another man to care for his field, that is, he entrusts to him the stored grain, hands over to him care of the cattle, and contracts with him for the cultivation of the field-if that man steals the seed or fodder and it is then discovered in his possession, they shall cut off his hand. Evidence on land tenure is thinnest for Egypt. Perhaps because the coordination of post-inundation land recoveries may have been particularly crucial along the Nile, land ownership appears to have been more centralized there than in southern Mesopotamia and Israel. A number of parties, private and institutional, sometimes retained concurrent claims on the same land. Even so, the emerging scholarly consensus holds that private owners controlled some agricultural lands throughout ancient Egyptian history. In the Early Dynastic period of Egypt (3050-2695 B.c.), some royal officials controlled landed estates that had been transferred to them (perhaps by pharaonic grant, perhaps through inheritance), and villagers honored traditional private land holdings. There is some evidence of private land ownership in the Old and Middle Kingdoms, and much for the New Kingdom. Perhaps to diversify risks of variations in the Nile’s inundation, many private landholders held not a single discrete farm, but a collection of scattered plots, some owned outright, and others rented from a temple or other landholder.’ The Wilbour Papyrus, the richest source on ancient Egyptian land tenure, identifies smallholders by 54 different professions, some of the most frequent of which were: priest, stablemaster, soldier, herdsman, and scribe. Perhaps surprisingly, 11% of the identified smallholders were women.
B. A Landowner’s Right to Exclude Trespassers
The foundational norm of private property in land is an owner’s broad (but not unlimited) right to control entry. On this legal issue there is much textual evidence from Mesopotamia and Israel, the two civilizations for which law codes have been found.
Sumerian and Akkadian boundary inscriptions commonly included general “curses” against boundary crossers. The Akkadian verb meaning “to cross,” like the English “trespass,” sometimes connotes immorality.’ All four major Mesopotamian codes include provisions that condemn trespassing. To violate certain of these provisions, a trespasser had to have not only entered the land without permission, but also either to have committed an additional wrongful act or harbored an improper motive. For example, several codes impose stiff monetary penalties for felling a tree on another’s land’ or entering an orchard with an intent to steal.” A provision in the Laws of Eshnunna, however, makes a trespasser strictly liable for being in cropland, even in the absence of aggravating circumstances: A man who is seized in the field of a commoner’ among the sheaves at midday shall weigh and deliver 10 shekels silver; he who is seized at night among the sheaves shall die, he will not live.” This provision, by distinguishing cropland from, say, pasture, signals the importance of protecting investments in cultivation. The chief livestock in ancient Mesopotamia were sheep and goats, with cattle and pigs next in importance. Animals commonly were placed in the care of shepherds, who specialized in locating fodder and pasture within the semiarid environment. The Code of Hammurabi includes two provisions on a fieldowner’s remedies for trespass by sheep; these triple the sheep-herder’s liability once the crop has progressed beyond the stage of green shoots.” The Israelites’ Covenant Code requires a party to make restitution for having intentionally (and perhaps even negligently) caused livestock to trespass. The ancient codes are especially unforgiving of an unconsented entry into a dwelling. Applying distinctions reflected in the English common law three millennia later, the Laws of Eshnunna call for the death of a trespasser who is discovered in a commoner’s house at night. The Code of Hammurabi prescribes capital punishment for a trespasser who has broken into a house. Exodus 22:2-3, only slightly more forgiving, privileges a house owner to kill a burglar caught breaking in at night, but not “after sunrise,” when the owner’s successful use of lethal force would be deemed excessive enough to justify the burglar’s kinfolk avenging the burglar’s death. Private property in land presupposes sanctions against encroachments and interferences with valid boundary monuments. The earliest of the known codes, the Laws of Ur-Namma, provides that a farmer who violates the “rights” of another by growing a crop on his field forfeits all expenses.
A number of cuneiform codes from northern Mesopotamia deal explicitly with encroachments. Under the Middle Assyrian Laws, a bad-faith encroacher has to forfeit his improvements to the land’s owner, but one who improves another’s land while its owner looks on without objection is entitled to keep the improved land if he compensates the owner with equivalent land. In Egypt, a similar concern with physical boundaries is manifested in the charter of a temple foundation at Abydos (c.1300 B.C.). 12 0 The Hebrew Bible includes numerous condemnations of those who tamper with boundary markers, for example, Proverbs 23:10: “Do not remove an ancient landmark or encroach on the fields of orphans.’ 121 In exceptional circumstances, Anglo-American common law privileges a passerby to enter the private land of another without consent. For instance, a parent can invoke private necessity to enter to retrieve a wandering toddler. In a similar vein, and without any known Mesopotamian precedent, the Torah of the Israelites authorizes impoverished persons to enter upon private agricultural lands to obtain small quantities of food.122 Leviticus 19:9-10 provides an example: When you reap the harvest of your land, you shall not reap to the very edges of your field, or gather the gleanings of your harvest. You shall not strip your vineyard bare, or gather fallen grapes of your vineyard; you shall leave them for the poor and the alien.’ 23 The exact terms of this archaic social-insurance program vary from passage to passage in the Hebrew Bible. While the Leviticus Holiness Code confers entry rights upon “the poor and the alien,” portions of the Deuteronomic Code define the beneficiaries as “the alien, the orphan, and the widow,” somewhat more definite categories of persons.124 All Torah provisions limit the amount that can be taken, but vary in how the ceiling is set. An entrant seeking grain is variously restricted to: the leavings after the harvest; the crop growing at the edge of the field; or what the entrant could gather without use of a sickle.
The extent to which this system of social insurance was honored in ancient Israel is impossible to know. Perhaps instructive on this front is the story of Ruth, who was both an alien (Moabite) and a widow. Before going upon Boaz’s barley and wheat fields to glean for food, Ruth asked him “please”-perhaps an indication of her lack of privilege, but, alternatively, perhaps just a courtesy or an overture to the man she would later marry.’
C. A Landowner’s Protection from Expropriation
Confiscation is a far larger insult to the right to exclude than is trespass. In the ancient Near East, an alien invading force might suddenly seize lands. A conviction for treason could result in forfeiture of property to the palace. Potentially most worrisome of all was the risk of an unprincipled and land-hungry monarch. As Samuel put it, a king might be tempted to “take the best of your fields and vineyards and olive orchards and give them to his courtiers.’ 130 Nevertheless, royal officials may have been somewhat constrained by norms against “takings,” especially without compensation.’ 31 Two anecdotes strongly suggest the existence of norms along these lines. Postgate reproduces a translation of a letter from Hammurabi to his governor at Larsa, complaining of misconduct by someone who appears to have been a lower-level royal bureaucrat:sources on Egyptian agriculture prior to the New Kingdom are two letters that a prosperous farmer, Hekanakht, wrote to his sons in 2002 B.C., a few weeks prior to the onset of the planting season. Hekanakht appears to have been able to make farming decisions without the approval of any higher authority: Now as for all the affairs of my estate and all the affairs of my farm in . . . wi,-I had planted them with flax-don’t let anybody go down onto it (to rent it)…. And you shall sow the farm with northern barley. Don’t sow emmer there. But if it turns out to be a high inundation [of the Nile], you shall sow it with emmer. The degree of a farmer’s autonomy in ancient Israel is difficult to divine. Biblical vignettes, such as the “Song of the Vineyard” (a depiction of a farmer’s efforts to grow new vines), make no references to restraints on land users. The Torah codes, on the other hand, include a number of injunctions aimed at controlling farmers’ practices, for example: to avoid sowing with two kinds of seed; to leave the crops at the edges of fields for the poor and alien; and to fallow the land every seventh year.’ Many of these may have been priestly exhortations that went largely unrealized. Several passages in the Hebrew Bible, for example, imply that Israelite farmers commonly failed to adhere to the fallow year. Postgate speculates that, in the heavily irrigated territories of southern Mesopotamia, villagers may have made communal decisions about when to fallow fields. Ur III texts suggest that a field typically was a long thin strip whose most elevated end abutted an irrigation canal. A narrow strip would have been an efficient shape for a field because plow oxen were extremely difficult to turn and because irrigation water could be relatively easily distributed once it had been introduced at a strip’s higher terminus. By fallowing adjacent strips in the same year, villagers could open the whole area as a commons for grazing, thus achieving efficiencies of scale in fencing and herding (and perhaps also irrigation management).
2. Building Projects
There is no evidence of legal constraints on a rural landowner’s construction of dwellings and farm structures. Urban structures were another matter. Most houses in ancient cities were crammed closely together and separated by walls, which provided support and defense against trespassers. An inadequate wall could pose serious risks to neighbors or passersby. Ancient legal systems dealt with these issues not by requiring building permits, but by imposing after-the-fact sanctions, especially on someone who had been warned that his premises were subpar. A provision in the Laws of Eshnunna, probably written in response to a notorious incident, calls for a severe response: If a wall is buckling and the ward authorities so notify the owner of the wall, but he does not reinforce his wall and the wall collapses and thus causes the death of a member of the awilu-class-it is a capital case, it is decided by a royal decree. The Laws of Lipit-Ishtar specify a civil remedy for a dispute likely to arise only in an urban context: If a man-adjacent to whose house another man has neglected his fallow [bare?] land-(if this) house-holder declares to the owner of the fallow land: “Your fallow land has been neglected; someone could break into my house. Fortify your property!” and it is confirmed that this formal warning was given, the owner of the fallow land shall restore to the owner of the house any of his property that is lost. Although the law of executory contracts was in its infancy at the beginning of the second millennium, there is some evidence that neighbors might occasionally coordinate by express agreement. Design and construction defects in buildings pose risks to occupants as well as neighbors. In an early manifestation of products-liability law, the Code of Hammurabi calls for the death of a builder of a house that collapsed and killed the owner who had hired the builder.’49 The Deuteronomic Code cautions the builder of a new house to install a parapet to prevent anyone from falling off the roof. In general, however, the Hebrew Bible’s many descriptions of building projects make no mention of land use controls.’
3. Other Activities that Might Generate Harmful Spillovers
There appear to be no ancient precedents for a nuisance action to obtain relief from fumes, dust, noise, and odors. Several codes do deal, however, with invading floods and fires, two of the most traumatic of land-use spillovers. Paragraphs 53-56 of the Code of Hammurabi address liability when irrigation waters spill out and accidentally flood neighbors’ lands. Foreshadowing the controversy that surrounded Rylands v. Fletcher,152 a famous torts case 3500 years later, the Code seems to waffle on whether liability is to be strict or instead turn on negligence: 55: If a man opens his branch of the canal for irrigation and negligently allows the water to carry away his neighbor’s field, he shall measure and deliver grain in accordance with his neighbor’s yield. 56: If a man opens (an irrigation gate and releases) waters and thereby he allows the water to carry away whatever work has been done in his neighbor’s field, he shall measure and deliver 3,000 silas of grain per 18 ikus (of field).’ 53 The Hittite Laws contain the earliest-known code provisions on the liability of a landowner who starts a fire that spreads to consume a neighbor’s orchards and fields; they impose liability without regard to negligence.
III. KINSHIP GROUPS AND ORGANIZATIONS AS LANDOWNERS .
In practice, contrary to the texts that assert overarching deistic claims, none of the three civilizations allocated all lands to a single owner, or even to a single type of owner. The land tenure patterns that emerged were attuned to the high risks that were present. People in a subsistence society live in fear of crop failures, illness, and attack by pillagers. Because ancient Mesopotamia, Egypt, and Israel all were semiarid, the denizens had to be especially anxious about drought. The Euphrates and even the Nile could be fickle, in one year inadequate for irrigation, in the next, overample enough to wash away crops and earthworks. For their part, Israelite villagers, who had to adapt to riverless highlands and rainless summers, strove to spread risks by diversifying crops and planting in varying ecologic niches.
A. The Theory of the Sizing of Landowning Entities
The economic theories of the firm and household can illuminate how members of ancient societies accommodated relevant considerations when deciding on mixes of landowning institutions. To simplify, a society prospers by having enterprises whose sizes serve to minimize the sum of (1) transaction costs and (2) deadweight losses arising out of coordination failures. A deadweight loss can arise in the land-tenure context when, for example, efficiencies of scale in production are not exploited or risks that could have been spread among individuals are instead concentrated. There are two basic methods of preventing these sorts of deadweight losses. One is to create and manage organizations large enough to capture the advantages of size. The other is to utilize family households or other close-knit units that can most cheaply monitor against shirking and grabbing by members, and to depend on these small units to coordinate with one another by contract and norm to exploit scale-efficiencies and riskspreading opportunities. Both approaches involve transaction costs: large firms give rise to (exponentially?) increasing costs of internal governance; on the other hand, a proliferation of small units entails greater exclusion and contracting costs. Economic theory generally predicts that the leaders of a landowning entity will attempt to adjust its size to minimize the sum of the transaction costs and deadweight losses that its members incur.’
1. The Mixed Influence of the Rise of Civilization
The rise of civilization-of literacy, metallurgy, urbanization, and so on-tends to create countervailing pressures on the optimal sizing of landowning groups. When a society first develops writing and mathematics, it is likely to achieve technological advances that create net economies of scale in military, legal, and water-control operations, among others. More concretely, in the earliest periods of ancient Mesopotamian and Egyptian history, innovations in engineering and organizational governance created new regional scale-economies in the management of the waters of the Euphrates and Nile, and also, at the village level, localized scale-economies in irrigation, fallowing, and plowing. All else equal, these new production possibilities would have tended to increase the scale of agricultural operations in these societies. But the rise of civilization also introduces new opportunities for contracting and risk management, and these tend to reduce the scale of landowning entities. Civilization helps to free people from clannishness by enabling them to circulate in social networks larger than insular villages. As trustful relationships with outsiders multiply,trade and other cooperative interactions expand. “Civil society” matures, transaction costs of contracting fall, and people have less need to use membership in a close-knit village or hierarchical institution as a method of coordinating economic production. Civilization brings other advantages. During the earliest historic periods, people tend to live in extended families on ancestral farmsteads in (rather reliably) close-knit villages. This age-old system helps spread risks, but locks participants into rigid economic and social roles and concentrates much of their wealth in a highly undiversifled asset, the farmstead.166 Civilization affords people new and better ways to spread risks, for instance, by engaging in market transactions, diversifying investments, and creating broad-based charitable institutions.
2. Two Illustrative Cases: Southern Babylonia and Israel
Because the rise of civilization commonly has countervailing influences, its net effect on the size of landowning units depends on context. In at least two of the locales under examination, the presence of risk, scale-efficiencies, and coordination alternatives appears to have had the effects anticipated. Conditions conducive to the emergence of large-scale landowning entities prevailed in the alluvial plain of Babylonia. The aridity and extreme flatness of this region gave rise to unusually great scale-economies in water management. A major canal, for example, was beyond the capability of a single village. Risks in southern Babylonia were unusually high, however, because water flows in the Euphrates were erratic. A flood could even displace a strand of the river into a fardistant channel. Excessive irrigation also could contaminate soil with salts brought up by capillary action.’ As anticipated, the palace and temple-two bureaucracies well adapted to exploiting scale efficiencies and spreading risks-during most periods owned far more land in the southern part of Babylonia than they did in the north. In ancient Israel, by contrast, family farmsteads always dominated the landscape. Lacking rivers to feed irrigation canals, the Israelites had little use for entities capable of large engineering projects. The Israelites also seem to have been unusually successful in developing systems for spreading risks to entities larger than the extended household. Indicative are the biblical provisions that entitle the poor to glean in others’ fields, and the Israelite clan’s traditional obligation to help a member in need. Large landowning institutions, which held few advantages in Israel, were relatively absent there.
3. The Universality of Diverse Landowning Entities
Until recent decades, scholars of the ancient Near East, particularly of Mesopotamia, have been prone to imagine a stage of history in which a single type of entity controlled all land.173 The Soviet school, influenced by Marx’s views,174 contended that extended patriarchal households dominated agriculture in Mesopotamia until the middle of the third millennium.175 Anton Deimel envisioned temples controlling all agricultural lands in Sumer prior to 2250 B.C., when he asserted a secular state took sway.’ 76 Some have recklessly interpreted the undisputed rise of kingly influence during the Ur III dynasty as a fullblown system of “state socialism.”‘ 1 77 All of these unitary conceptions of land-tenure patterns have fallen into disrepute. Archeologists have disproportionately found the artifacts of palaces and temples because those bureaucracies were particularly disposed toward record-keeping. Recognizing this bias in the textual sources, scholars of the ancient Near East have begun to stress that there also existed a relatively independent private sector.178 Indeed, the latest research indicates that households, temples, and palaces (when they existed) all owned some land in every period of ancient Near Eastern history for which evidence is available. 179 To generalize, the palace was unusually prominent in Egypt; the temple, in Sumerian cities; and the private agricultural sector, in Israel. Within the private sector, kin-based units were central.
B. Kinship Groups
In order of increasing size, territorial social groups of the ancient Near East are conventionally classified as extended patriarchal households, clans (or communes or villages), and tribes.180 An extended household contained more adults and more generations than did a nuclear-family household; in the prototypical case, not only were the patriarch and his wife present, but so were their adult sons and those sons’ wives and children.181 The ancient clan was a kinship-based aggregation of several extended households. A tribe, in turn, was an agglomeration of several clans, perhaps as much on the basis of territorial propinquity as on kinship.
1. Patriarchal Extended Households
As Part II stressed, in all three civilizations the family household was the basic provider of food and shelter, and also the key production unit in agriculture. 82 Within a household, whether nuclear or extended, intimate kinship ties could be expected to foster a strong ethic of sharing of internal resources, a primordial method of risk spreading. In general, theory suggests that the ratio of extended-family households to nuclear households would be higher in earlier historical periods than later ones, and in rural areas than in cities.183 Technological progress and urbanization give rise to both easier contracting and alternative techniques for risk-spreading, which in turn tend to reduce household size. In Mesopotamia, which has provided an unequaled quantity of evidence on the issue, there was indeed some evolution from extended-family to nuclear-family (and individual) ownership between the third millennium and the middle of the second.’ 84 The Mesopotamian pattern was hardly tidy, of course; evenin the early second millennium, members of extended families were still routinely leasing fields in Ur.185 There is little direct historical evidence about household governance. Members of a group who share occupancy of a parcel of land generate internal rules to govern their substantive rights and decision making procedures. Especially when co-occupants are few and kin-related, these rules are highly likely to be informal (not expressed in written contracts) and based on custom, not law.186 An overarching issue was the right, if any, of a patriarch to govern without the consent of others in the household. In general, a patriarch is thought to have possessed vast powers even when his adult sons resided with him.’ 87 Despite the obvious demerits of autocracy, the custom of dictatorial patriarchy reduced the transaction costs of both internal decision-making and bargaining with outside entities. Scholars of Mesopotamia have attempted to infer patterns of household ownership and governance from names listed on land sale documents. 188 After a mid-third-millennium Sumerian land sale, payments and gifts commonly were distributed to one or more “primary sellers,” and also (in smaller amounts) to various “secondary sellers” who were kinsmen of the primary sellers; single sellers became more typical in later periods. 189 It is unclear whether these additional signatories had full ownership interests, had only vestigial powers (say to veto a transfer outside the family or clan), or were merely functioning as witnesses. 190 Conversely, when an ancient tablet identifies a singleindividual as the seller or buyer, that person might be acting not on his own but rather as the agent of a number of household members.191 Foster concludes that during the Sargonic period (c.2350-2150 B.c.) members of some extended households had rights of apportionment; some of these households diversified their risks by assembling a varied collection of holdings and then entering into leases with professional farmers.192
Clan ownership of land and labor gives rise to greater internal monitoring costs than does household ownership. But communal ownership also affords various benefits, among them, risk-spreading, efficiencies of scale, elimination of the costs of policing the boundaries of household claims, and solidary relations. 193 Villagers in the ancient Near East appear to have turned to clan ownership in instances where it promised net advantages. 194 For instance, low-quality pasturelands, which would not have been worth fencing, may have been used as commonses for grazing.195 Diakonoff has adduced evidence that a Mesopotamian clan (or village) was likely to be governed by a council of elders, one of whose functions was to deal with legal problems.196 Especially on the alluvium of southern Babylonia, villages were key social units, much involved in irrigation operations and perhaps in decisions on the fallowing and grazing of irrigated fields.197 A Mesopotamian text suggests that a village might sometimes itself be a land claimant: An official and the judges of Larsa write to “the mayor and elders of Bulum: Watar-Shamash has informed me that he bought an orchard five years ago and that the village is claiming it from him.
Examine his case and pass judgment according to the edict. If it is too difficult (?) for you, send him and his adversaries to us.”198 In the same vein, the Hittite Laws that governed northern Mesopotamia provided that a land parcel exempt from royal duties reverted to the “village” in the event that the landholder disappeared or defaulted from his local obligations.’ 99 Ancient Egypt’s society may have been even more village-based than Mesopotamia’s. 200 In Israel, villagers pooled labor at harvest time, shared work on terracing projects, and rendered emergency aid to a household that had fallen on hard times.201 The Israelites also may have had communal threshing floors and communal grazing lands. 202
Tribes, the largest of the informal social groups, appear to have been the least consequential in land management.2 0 3 Although the Hebrew Bible reports that each of the twelve tribes of Israel had been allotted a broad territory,204 in practice the Israelite clan was the far more significant institution.2 0 5 Indeed, a tribe was not necessarily even the product of decentralized social forces. A palace or temple might designate a particular territory as a tribe (or equivalent administrative unit) to make the group’s members jointly responsible for contributing revenues needed to support the army and court.20 6C. Organizations as Landowners
The advance of civilization gave rise to new hierarchical institutions whose activities came to partially eclipse the extended household, clan, and tribe.
1. Types of Hierarchical Landowners
The organizational owners can be loosely classified as temples (usually the first to appear207), palaces, and private owners of large estates (latifundia). Before describing their land management strategies, we introduce these institutions.
A temple typically was staffed by members of a hereditary priestly class and support workers. The temple’s basic comparative institutional advantage lay in the relative literacy of its leaders and its credibility in divine affairs. Morris Silver surmises that the devout would have been relatively trustful of temple-affiliated enterprises.2 0 8 Temples unquestionably played central roles in ancient Near Eastern economies, accumulating assets through gifts, offerings, and other methods.2°9 In Mesopotamia, especially in the earliest historical periods, temples were significant landholders.210 During Egypt’s Old Kingdom period (2695-2160 B.C.), a professional priestly class took root and pharaohs made large grants of arable land in perpetuity to temples. Both priests and others holding these temple estates were exempt from the fiscal obligations the crown imposed on other landowners.211 By the late New Kingdom (late second millennium), temples had increased their landholdings; the Harris Papyrus shows them possessing fully one-third of Egypt’s arable land at the time of thereign of Rameses IV.212 By then, some wealthy ancient Egyptian donors were making gifts of land to priests in a mortuary cult to endow the costs of the cult’s providing the donor, after his death, with an eternal stream of offerings, prayers, and ceremonies. 213 Israelite temples also relied on land donations; the Holiness Code addresses redemptive rights of a family member whose ancestral lands had been given to priests.214
A palace can be envisioned as a ruler (king, pharaoh), perhaps supported by regional rulers (governor, nomarch, vizier), and sustained by a network of royal agents. The palace had a military arm and hence a comparative advantage in force. Kings tended to foster the belief that gods had legitimated their rule.215 The manifest advantages in Mesopotamia and Egypt of having a strong state to assist hydraulic and surveying activities also no doubt allayed potential opposition to the rise of these authorities. Nevertheless, contrary to extreme extensions of Wittfogel’s “hydraulic society” thesis, even in these settings the palace did not emerge solely to manage water projects, and kings of the ancient Near East rarely sought, much less achieved, total control over economic affairs.216 Instead, a royal bureaucracy typically had unencumbered ownership of only selected territories. On some additional lands, it could require feudatories to perform special services to the crown. Beyond that, the palace had to content itself with imposing various forms of taxes.21 7 The amount of crown-owned land appears to have fluctuated widely over time. In Mesopotamia, the Sargonic kings were particularly aggressive in pursuing land acquisitions.218 This burst of stateenterprise and regulation is conventionally seen as peaking in the Ur III period.2 19 Many centuries later, the Hittite royal domains are thought to have been unusually vast because feudatories of that empire had large holdings.220 Even as early as the Early Dynastic period of Egypt (3050-2695 B.C.), royal officials were holding landed estates, perhaps as a result of kingly grant, but also perhaps as a result of inheritance.221 The pharaonic palace owned considerable agricultural land during the Old and Middle Kingdoms,2 22 but apparently somewhat less by the New Kingdom.2 23 There was much crown land in Ugarit224 and some in Israel.225
c. Private latifundia
A rise in foreign trade for agricultural products may have stimulated land consolidations in Sumer and Akkad, Egypt, and Israel.226 Egyptian records indicate that during the Fourth Dynasty (c. twentysixth century B.C.) one Metjen assembled 6000 arouras (about 4000 acres) through purchases from what appear to be freeholders. 227
There is evidence from eighteenth century B.C. Mesopotamia that a few unrelated investors sometimes did pool capital in a partnership dedicated to the acquisition of large acreages.228 Nonetheless, large private landowning bureaucracies are relatively inconspicuous even well into the second millennium.229 The surviving portions of the Code of Hammurabi include only two provisions relating to partnerships. 230 The first half of the first millennium appears to have been a time of private land-consolidation. Large manorial estates emerged in the Neo-Assyrian empire,23′ and Israelite priests denounced land assemblages that threatened ancestral land holdings in the Canaan highlands. 232
2. Management of Agricultural Operations on Large Tracts
An entity that owns large arable acreages can manage agricultural activities hierarchically through a supervised workforce, or decentralize operations by granting or leasing portions of its holdings to others.233 Because efficient industrial organization is highly dependent on context, it is not surprising that institutional owners in the ancient Near East employed variations on all these approaches.234
a. Hierarchical administration
Top-down management might involve the hiring of wardens to supervise teams of slaves, corvee laborers, or hired hands. Mesopotamian examples of hierarchical administration are best attested.23 5 Shulgi (c. 2095 B.c.) and other kings of the Ur III Dynasty undertook “a massive programme of bureaucratic control,”236 which undoubtedly increased the centralization of field management. During the same era, the Namhani temple referred to its centrally managed acreages as “ox fields”; 237 the label hints that scale efficiencies arising from technical innovations in plows and plowing may have been prompting experiments in large-scale grain cultivation. The overly centralized Ur III system collapsed, however, by 2020 B.C. 2 38 Hierarchical administration of crown lands again became pronounced after 1600 B.c., when various parts of Mesopotamia came under the sway of the Kassites, Hittites, and Hurrians; their systems also failed to endure, breaking down entirely by the end of the second millennium.239 Harris has provided a rich description of agricultural organization in Old Babylonian Sippar during the first portions of the second millennium.240 Sippar investors tended to hire a steward to manage their lands. This steward in turn would hire laborers, for example, “5 men on 8 days for the third ploughing.”241 Free men were paid in silver (plus a barley ration); slaves, in barley only.242 As rational-actor models anticipate, the problem of agent opportunism appears to be timeless. Belijatim, the steward about whom Harris gathered the most evidence, was accused by an employer, in a letter, of being “not trustworthy (since) every year at harvest time concealed barley and stolen amounts intended for payment for my oxen are discovered in his possession. ” 24 3
b. Subdivision by tenurial grant
The owner of an extensive tract of land can use various methods to subdivide it. One is to sell (or give away) subparcels unconditionally. Although institutional owners in the ancient Near East sometimes did this, they were more likely to attach strings to lands grants. When transferring pieces of its holdings to members of its own circle, a palace or temple commonly required the grantee and his successors to meet special tenurial obligations. This sort of “feudal”244 system served to perpetuate, and hence cement, interpersonal relationships within the institution’s clique.245 Many ancient Near Eastern institutions engaged in the practice of granting land to compensate staff. Conditional grants to loyalists are in evidence in the Sargonic period,246 in and after the Ur III Dynasty,247 in Old Babylonia, 248 among the Hittites,249 and in Egypt,250 Ugarit,251 and Israel.252 The Mesag estate reveals the potential complexities of conditional land transfers.253 Sargon I of Akkad, who ruled c.2350 B.C., became a great landowner, buying up much arable land from extendedhouseholds and then parcelling it out to his followers.254 Mesag, a provincial bureaucrat in Sargonic Sumer, came to control over 2500 acres, probably only a portion of a yet larger royal plantation. The royal administration appears to have granted Mesag 33% of his acreage as “domain land,” part of whose yield he was to keep for his sustenance, and part to deliver to the palace.255 Mesag is thought to have paid in some fashion for the remaining 67%.256 Mesag in turn subdivided his large holdings, allocating parcels both to subordinates as compensation for their services and to teams of field workers (who received collective grants). These recipients were free to further sublease and subdivide.257
D. Open-Access Lands
A complex society inevitably has a network of roadways and other public lands to enable citizens to travel and socialize with one another.258 During the Ur III period, serviceable highways were already sources of pride, as well as great aids to monarchs undertaking demanding cultic pilgrimages.259 Archeologists not surprisingly find that ancient cities had streets.260 The Akkadian language included a word for square, which was used roughly in the manner of the Sumerian term for “wide street.” The area just within the city gate appears often to have been a key public space.261 In sum, ancient Near Eastern civilizations, which on the one hand consistently recognized private property in houses and gardens, on the other opened selected lands to the general public.
I can’t go on…..