In this two-part article, the author presents an overview of what various ancient textual artifacts “remember” about the earliest loan closings known to history and their participants, exploring the commercial lending practices of ancient Mesopotamia and Egypt, a region often designated by scholars as the “Ancient Near East.” In this first part, the author introduces the topic. In the conclusion, to be published in the next issue of The Banking Law Journal, the author will explore ancient loan documents.[1]

1. INTRODUCTION
   Finance lawyers remember the first time they closed a loan. Mine? November 30, 1988. I know the date because I have artifacts evidencing this event: two black, leatherette loan documentation volumes, with my name, date and other details inscribed in a golden typeface on their spines. My deal closed over the course of three days, with a seller, a buyer, a mezzanine lender and the bank (our client), plus lawyers, negotiating and finalizing documents in conference rooms at the old Goldome Center in Buffalo, New York. We sat in swivel chairs surrounded by Redweld(T) folders, loan documents printed on heavy bond paper (green for promissory notes), blue ink pens, yellow legal pads and soggy sandwiches strewn across vast marble-topped tables. If my ‘88 closing description sounds like an archaic passage from Herodotus – it happened in the previous century, after all – it might surprise (and intrigue) some readers that written contracts existed about 2,000 years before Herodotus and are among the earliest documents from the birth of civilization, with loan agreements appearing in ancient Mesopotamia (roughly modern Iraq) as early as 2400 BCE. These truly ancient contracts contain surprisingly complex (and often modern-sounding) terms and provisions, so much so that the renowned evidence jurist, John Henry Wigmore, celebrated one such Mesopotamian loan
   agreement as the “oldest negotiable instrument in the world.”[2]

This article presents an overview of what these ancient textual artifacts “remember” about the earliest loan closings known to history and their participants, exploring the commercial lending practices of ancient Mesopotamia and Egypt, a region often designated by scholars as the “Ancient Near East” (ANE). The ANE also included Canaan where Israelites (among others) participated in similar transactions as recalled in their remarkable textual artifact, the Hebrew Bible, including, for instance, an account of Jeremiah’s real estate closing, the legal documents drawn up by his scribe Baruch, the deed witnessed and then “sealed according to the law.”[3]

1. 
   An ANE Common Law or Uniform Commercial Code?
   There is substantial documentary evidence that a common stock of “legal concepts, legal metaphors and legal terms”[4] emerged from the overlapping cultures of the ANE at a very early time before the invention of writing. Local law and its practice developed via continued borrowings from nearby locales, as well as via local innovations that differentiated such locales from each other over time, all the while demonstrating a “remarkable continuity in fundamental juridical concepts over the course of three millennia.”[5] In this sense there was a quasi common law in the ANE, albeit not in the strict Anglo-American usage of that term.

Most people are aware of at least two collections of ANE legal codes – the Law of Moses and the Code of Hammurabi – yet none of these ANE codes functioned like, say, the Uniform Commercial Code or other modern legislation. Instead, these ancient codes were non-comprehensive collections of fact patterns, pertinent contractual arrangements and relevant legal rulings, primarily illustrative uses and cases of practical law.

As explored in detail by Martha Roth,[6] archaeology has uncovered law codes in and adjacent to Mesopotamia:
(i) The Code of Ur-Namma;
(ii) The Code of Lipit-Ishtar;
(iii) The Code of Eshnunna;
(iv) The Code of Hammurabi;
(v) The Middle Assyrian Laws;
(vi) The Hittite Laws; and
(vii) The Neo-Babylonian Laws.

Ancient Israel had two such codes as part of the Law of Moses in the Hebrew Bible: (i) Exodus 21-22:16, and (ii) Deuteronomy 21-25.[7] Ancient Egypt has no surviving comparable legal codes or collections, although there is evidence for laws having been declared and/or collected, especially in later periods, with Bocchoris (circa 700 BCE) in particular having acquired a reputation as a lawgiver.[8] While monumental inscriptions containing these ANE codes likely served propagandistic purposes and tablet or papyrus copies of them served scribal education purposes, it is not clear if these codes were used as guides for judges deciding cases. Yet, given their wide distribution at different times by different ANE societies and by scribal students, ANE codes must have had an impact on judicial decision making as well.[9]

In addition to such legal codes, other sources for understanding ANE law include royal inscriptions, correspondence, narratives, myth and, in terms of commercial law, actual (and even form template) legal documents.

1. ANE Lawyers?
   Legal scholars have long skirmished over the earliest dates for the emergence of the legal profession as we recognize it today, with some claiming a medieval European setting circa 1230 CE,[10] others looking to the jurists of ancient Rome, such as Cicero,[11] and yet others celebrating the speech writers and advocates of 4th Century BCE Greece, like Demosthenes, as our proper legal profession progenitors.[12] These debates are vigorous, interesting and often entertaining, but sometimes they seem circular by reducing the concept of a lawyer to being a member of a monolithic legal profession.

In making their arguments several commentators mention ancient scribes as potential forerunners to the legal profession whose “drafting of decrees, contracts and treaties reveals a dedicated legal vocabulary and an ability to manipulate terminology in the interests of guarding against eventualities.”[13] Even among opponents, Roscoe Pound is forced to admit that while he thinks ancient “scribes can hardly be thought of as lawyers . . . some part of the lawyer’s functions have been differentiated from their manifold tasks.”[14] More sympathetic views can be found in more recent publications. Blain Andrus, in his recent ABA-published text, Lawyer: A Brief 5,000 Year History, notes:

A scribe [in the ANE] might have been called on – not unlike a modern-day transactional lawyer – to prepare a purchase and sales
contract. This type of document contained the object of the transaction with its physical and legal description, its price, the buyer’s and
seller’s names, and the operative verbs for buying and for taking the object into possession. . . . The document required the name of the witnesses in whose presence the deed was concluded, and frequently mentioned the location of the transaction and the date when the
document was written.[15]

Similarly, in the publication accompanying the 2023-2024 exhibition “Back to School in Babylonia” at The Institute for the Study of Ancient Cultures Museum at The University of Chicago, Assyriologist Susanne Paulus in her chapter “Practicing Law” is more open to recognizing ancient scribes as legal experts or professionals who practiced law since, by her assessment, “[i]nteractions with the law infused the daily life of Babylonian scribes as they wrote legal documents, were governed by royal legislation, and participated in different roles in legal decision making.”[16] I suggest a cease-fire compromise by referring to ancient scribes as “lawyer-scribes” or “legal experts” when they performed
legal functions to avoid “professional” disputes.

1. ANE Law School
   Mesopotamian scribes underwent rigorous training in scribal schools (called the edubba meaning “house of tablets”),[17] studying for several years, beginning with reading and writing and then covering a number of topics in more advanced studies, similar in some ways to post-graduate studies today: vocabulary/lexical lists, math, astronomy, literature (such as myths, epics and hymns), proverbs (not unlike modern-day rules of professional conduct for lawyers) and law (including drafting contracts). Scribal training in Egypt and Canaan covered substantially the same topics.[18] In one 19th-Century BCE cuneiform tablet we have an example of an ANE scribal student’s homework, a lesson tablet inscribed by a pupil that reads:

Schoolkid, where have you been going since the beginning of time?
I went to school.
What did you do at school?
I recited my tablet, ate my meal.
I formed my tablet, wrote, and completed it.
They assigned me my teacher-student exercise.
In the late afternoon, they assigned me my round tablet.
When school was out, I went home.
I came home; there my dad was sitting.
I read aloud my round tablet to my father.
I recited my tablet to him, my dad was pleased with me.[19]

As for studying the law, an ANE scribal student in advanced training boasted to a fellow classmate that he had mastered his studies of legal documents and was able to write “marriage contracts, company contracts . . . sales contracts for houses, fields . . . securities in silver, lease contracts for fields, contracts for cultivating palm groves, and even adoption contract tablets.”[20]

1. ANE Scribes in the Marketplace and Society
   While it appears that most scribes in the ANE were attached to palaces, temples, or wealthy landowners’ estates, in each case being paid wages
   (depending on the period, perhaps twice as much as most other professions),[21] ancient scribes also worked for private individuals for a fee, including for their legal services.[22] Among other duties, scribes who worked for the palace wrote documents such as correspondence (both domestic and foreign), treaties, contracts, annals, texts for public display and kept other records of state, and, acted as heralds, translators and envoys, and when performing legal services, they were essentially government lawyer-scribes. Scribes who worked for temples wrote religious texts and legal documents, kept records of the temple, and performed legal services serving the role of basically in-house lawyer scribes. Scribes who worked for merchants or individuals wrote correspondence, personal religious texts and legal documents, and when performing legal services, they were in all practical respects, private practice lawyer-scribes.

In the arena of transactional documentation, the practices of lawyer-scribes across different ANE societies were analogous to the legal practices among lawyers across different states in the United States where the similarities between laws, customs and conventions are often greater than most local jurisdictional differences. And, just as we suggested a kind of quasi-common law existing in the ANE, one can also speak of a scribal “culture” throughout the cultures of the ANE:

The culture to which scribes belonged was cosmopolitan. The scribe . . . “appears before rulers and travels through the lands of foreign
nations” ([Ben Sira] 39:4). Scribes interpreted texts and tongues: the knowledge of foreign languages was part of their profession. The cosmopolitan spirit of scribal culture made it open to influences from the outside world. The influence of Egypt, in pre-exilic times, and of Mesopotamia, from the exilic period onward [for instance], on the scribal culture of Israel [for instance], and thus on the Bible, is widely
recognized.[23]

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[1] The author offers special thanks (i) to Jan Stephens for her review and editorial assistance in writing this article, (ii) to Cooper West for his review and philosophical suggestions, (iii) to the State Bar of Georgia and its Business Law Section for supporting the Ancient Foundations & Modern Equivalents CLE series which I chair and at which the ideas in this article were explored in several presentations, (iv) to Emory University’s Michael C. Carlos Museum for sponsoring and supplying space for this CLE series and for the privilege of serving on its board as co-chair over the years, and (v) to the many co-presenters and attendees at this CLE series over the years and their numerous supportive and thoughtful observations.

[2] See 1 John Henry Wigmore, A Panorama of the World’s Legal Systems 69 (1928).

[3] Jeremiah 32:11.

[4] Alejandro F. Botta, The Aramaic and Egyptian Legal Traditions at Elephantine 202 (2009).

[5] Raymond Westbrook, Introduction: The Character of Ancient Near Eastern Law, in 1 A History of Ancient Near Eastern Law 4, 64-67 (Raymond Westbrook ed., 2003).

[6] See Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (2d. ed. 1997).

[7] This list excludes both the Ten Commandments contained in Exodus 20 and the so-called Priestly Code contained in Leviticus and Numbers, neither of which qualify as codes of practical, day-to-day law, the focus in this article. See Westbrook, supra note 5, at 8-9.

[8] Richard Jasnow, Old Kingdom and First Intermediate Period, in 1 A History of Ancient Near Eastern Law 93 (Raymond Westbrook ed., 2003); Richard Jasnow, Middle Kingdom and Second Intermediate Period, in 1 A History of Ancient Near Eastern Law 255-256 (Raymond Westbrook ed., 2003); Richard Jasnow, New Kingdom, in 2 A History of Ancient Near Eastern Law 289-290 (Raymond Westbrook ed., 2003); Richard Jasnow, Third Intermediate Period, in 2 A History of Ancient Near Eastern Law 777-778 (Raymond Westbrook ed., 2003).

[9] Raymond Westbrook, Biblical and Cuneiform Law Codes, in 1 Law from the Tigris to the Tiber: The Writings of Raymond Westbrook 1-20 (Bruce Wells and F. Rachel Magdalene eds., 2009).

[10] See James A. Brundage, The Medieval Origins of the Legal Profession (2008), for a book-length argument for this position.

[11] See Aldo Schiavone, The Invention of Law in the West (2012), for a book-length argument for this position.

[12] See Part II in Roscoe Pound, The Lawyer from Antiquity to Modern Times (1953).

[13] Westbrook, supra note 5, at 87.

[14] Roscoe Pound, The Lawyer from Antiquity to Modern Times 30 (1953).

[15] R. Blain Andrus, Lawyer: A Brief 5,000 Year History 62 (2009).

[16] Susanne Paulus, Practicing Law, in Back to School in Babylon 133 (Susanne Paulus ed., 2023). Similarly, Reinhard Achenbach refers to such scribes as “legal experts” in Reinhard Achenbach, Legal Experts: Ancient Near East and Hebrew Bible, in 1 The Oxford Encyclopedia of the Bible and Law 518-527 (Brent A. Strawn ed., 2015).

[17] Dominique Charpin, Reading and Writing in Babylon 25-33 (2010).

[18] See the comparative scribal education discussions in David M. Carr, Writing on the Tablet of the Heart: Origins of Scripture and Literature 17-90, 111-176 (2005) and Karel Van Der Toorn, Scribal Culture and the Making of the Hebrew Bible 51-108 (2007).

[19] Madeline Ouimet, Living in the Edubba’a: School as Sensory Experience and Social Identity, in Back to School in Babylon 41 (Susanne Paulus ed., 2023).

[20] Charpin, supra note 17, at 37.

[21] See Van Der Toorn, supra note 18, at 18.

[22] See Charpin, supra note 17, at 97-98.

[23] Van Der Toorn, supra note 18, at 53.