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Journal of Semitic Studies LV/2 Autumn 2010 doi: 10.1093/jss/fgq007

© The author. Published by Oxford University Press on behalf of the University of Manchester.

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Downloaded from http://jss.oxfordjournals.org at Columbia University Libraries on June 29, 2010



Abstract This article is a contribution to the question how far there was continuity between ancient Near Eastern and Islamic culture. It focuses on the practice of using lot-casting to allocate inheritance shares, conquered land, and official functions, and briefly surveys the history of this practice from ancient through Hellenistic to pre-Islamic times in order to examine its Islamic forms as reflected in historical and legal sources. It is argued that the evidence does suggest continuity between the ancient and the Islamic Near East, above all in the first century of the hijra, but also long thereafter, if only at a fairly low level of juristic interest. The article concludes with some general consideration of the problems involved in the study of the two disconnected periods of Near Eastern history.

In 1993 classical archaeologists made an exciting discovery at Petra.

This city, once the capital of the Nabataean kingdom, thereafter a major town in the Roman province of Arabia, had long been assumed to have been destroyed in an earthquake of 551 CE, but this proved to be wrong, and in the church of St Mary the archaeologists found a cache of papyri. Completely carbonized by the fire which had destroyed the church in the early seventh century, these papyri could nonetheless be read by means of sophisticated modern techniques, and an edition is in progress.1 They contained the private archive of a major family of the city, covering the years from at least 537 to 593 CE.

The papyri are in Greek but reflecting a community whose native language appears to have been Arabic, and among the papyri is a record of a division of an inheritance between three brothers. The For all this, see L. Koenen, R.W. Daniel and T. Gagas, ‘Petra in the Sixth Century: the Evidence of the Carbonized Papyri’, in G. Markoe (ed.), Petra Rediscovered (New York 2003), 250–61; J. Frösen, A. Arjava and M. Lehtinen (eds), The Petra Papyri, 1 (Amman 2002). Our thanks to Glen Bowersock for referring us to this literature.


estate, which consisted of land and buildings, was divided into three equal shares and awarded to the sons by a procedure which the editors, with reference to a comparable papyrus from Nessana, take to have been lot casting.2 The Nessana papyrus, written in 562 CE, also records the division of an estate, here among four sons. The property, which consisted of buildings, farmland and personal articles, was divided into four shares of roughly equal value and awarded to the sons by lot in the presence of friends and relatives. Here, as at Petra, Downloaded from http://jss.oxfordjournals.org at Columbia University Libraries on June 29, 2010 the parties concluded the proceedings by swearing by the Trinity and the Emperor’s health that they would abide by the division.3 The interest of this discovery to historians of the Near East lies in the fact that the procedure used for the division of the property in these two papyri is endorsed in Islamic law. It is also extremely ancient and raises the question how far, and in what way, the traditions of the ancient Near East lived on to contribute to Islamic culture. In what follows we briefly survey the attestations of lot casting as an official practice from ancient Near Eastern to Islamic times and discuss what we see as its significance.

Assigning land, booty, and other property by lot

In the ancient Near East (by which, for the purposes of this article, we mean the ancient Fertile Crescent), lot-casting was much used in the division of inheritances. The standard way of distributing an inheritance in Assyrian and Babylonian Mesopotamia was to divide the property into parcels and then to assign the parcels by lot to the heirs (with variations when the eldest son was privileged).4 The gods themselves are said to have divided the world by this procedure. ‘They took the box (of lots)…, cast the lots; the gods made the division’: Anu acquired the sky, Enlil the earth and Enki the bolt which bars the sea.5 This is Cf. Koenen, Daniel and Gagas, ‘Petra in the Sixth Century’, 251. The papyrus (Inv. 10, P. Petra Khaled and Suha Shoman) is still unpublished. There is no explicit mention of lots in the draft edition and translation that Crone has seen, courtesy of her colleague Glen Bowersock, but the parallels with the Nessana papyrus are certainly striking.

C.J. Kraemer, Excavations at Nessana, III (Non-Literary Papyri), (Princeton 1958), no. 21. Compare nos. 16, 31, where lots are not mentioned.

A History of Ancient Near Eastern Law, ed. R. Westbrook (Leiden 2003), 1, 57f (general), 395f (Old Babylonian), 542f (middle Assyrian), 2, 939 (Neo-Babylonian).

Atrahasis in B.R. Foster, Before the Muses: an Anthology of Akkadian Literature∞3 (Bethesda, Maryland 2005), 229; also in S. Dalley (tr.), Myths from Mesopotamia, revised ed. (Oxford 2000), 9.


famously one of the ancient Near Eastern myths that passed into Greek culture: Zeus, Poseidon and Hades divide the world among themselves by lot in the Iliad, and here as in the Akkadian myth, the three gods are brothers.6 The custom is well attested in the Bible, too.7 God Himself distributed the desolate land of Edom to wild animals by lot (Isa. 34:17), and He also instructed Moses to divide the Promised Land by lot when it had been conquered;8 Joshua duly did so.9 Micah seems to Downloaded from http://jss.oxfordjournals.org at Columbia University Libraries on June 29, 2010

have envisaged conquest as the result of divine or angelic lot casting:

he prophesied that Israel would have nobody in God’s assembly to cast lots for land for it (Mic. 2:5). Ezekiel added that the land would be divided up anew by means of arrows in the messianic age (Ezek. 45:1;

47:22). Land and captives taken by the Babylonians and Assyrians were apparently divided up in the same way: the Babylonians entered Israel’s gate and ‘cast lots for Jerusalem’ (Obad. 1:11); but God would punish the nations for having divided up his land and cast lots for his people (Joel 3:3). When the Assyrians conquered Thebes in Egypt in 663 BCE, ‘lots were cast for her nobles’ (Nahum 3:10). The Bible does not refer to inherited land being divided by this method.

The idea of allocating new land by lots reappears in Jewish Hellenistic works. In Jubilees, composed by a Palestinian Jew in the second century BCE and later translated from Hebrew into Greek and Syriac, Noah divides the earth by lot between his three sons, Shem, Ham and Japheth; Canaan, the son of Ham, nonetheless settled in Shem’s portion.10 In Maccabees, Antiochus IV (175–63 BCE) is described as sending a Syrian commander with orders to wipe out the residents Cf. W. Burkert, The Orientalizing Revolution (Cambridge, Mass. and London 1992), 90f; id., Babylon, Memphis, Persepolis: Eastern Contexts of Greek Culture (Cambridge, Mass. and London 2004), 36. For the subsequent history of this myth, see A. Silverstein, ‘From Atrahasis to Afridun: on the Transmission of an Ancient Near Eastern Motif to Iran’ (forthcoming).

Cf. Th. Gataker, On the Nature and Use of Lots2 (London 1627), modernized and updated by B. Boyle (forthcoming Exeter 2008), ch. 4, §10, an extremely learned work still worth consulting despite its age; J. Lindblom, ‘Lot-casting in the Old Testament’, Vetus Testamentum 12 (1962), 164–78.

Num. 26:52ff; 33:50ff (at 54); 34:13; cf. also Josh. 21:4ff; 1 Chron. 6:54ff, where priests and Levites are given certain cities to dwell in by lot.

Josh. 18:3ff, 10; 19:51; cf. Josephus, Antiquities, book 5, ch. 1, pars. 22, 24, 26.

Jubilees, 8:11ff, 10:30 (tr. O.S. Wintermute in J.H. Charlesworth [ed.], The Old Testament Pseudepigrapha [New York 1983–5]), ii; cf. also his introduction.

The detail that the division was effected by lots seems to have been lost in the later Greek, Latin and Syriac translations, but it was apparently known to the Muslims, cf. Silverstein, ‘From Atrahasis to Afridun’.


of Judaea and Jerusalem and to ‘settle aliens in all their territory, and distribute their land by lot’ (I Macc. 3:36).11 Thereafter, leaving aside mere retelling of the Biblical passages, the theme of lot casting for land and/or its inhabitants seems to disappear from the indigenous sources for a long time.

Lot casting must be a universal institution, and not just as a private or ad hoc method of decision making: both land and fortune are things that one is ‘allotted’ in a great many languages. In Greek, too, Downloaded from http://jss.oxfordjournals.org at Columbia University Libraries on June 29, 2010 a piece of land was known as a lot (kleros), reflecting the fact that lots were used to distribute land when colonies were set up in order to ensure that every group received an equal share. Moveable booty was distributed in the same way,12 but whether inherited land was also divided in this way is uncertain.13 The practice is not attested at Athens14 nor, it would seem, anywhere else in Greek antiquity, except in a speech once attributed to Dio of Prusa (in Anatolia, d. c. 120), now held to be by Favorinus (d. mid-second century), a native of Arles: here we are told that ‘brothers also divide their patrimony that way’.15 Wherever the orator may have encountered the practice, it certainly sounds similar to that attested in Petra and Nessana, but it is hard to say more on the basis of a single passage.

The Romans, who took over from the Greeks, also used lots for the distribution of land, both at home and in connection with the foundation of colonies.16 Moveable booty, too, was (or might be) distributed by lot.17 But the evidence relating to conquered land and Settling foreigners on land confiscated from the local population was an Assyrian practice later adopted by the Achaemenids and Macedonians alike, but this passage could be inspired by Obadiah on foreigners casting lots for Jerusalem.

Cf. G. Wissova, Pauly’s Real-Encyclopädie der classischen Altertumswissenschaft (Stuttgart 1894–1980, hereafter Pauly-Wissova), s.v. ‘Losung’, col. 1463 (Ehrenberg);

D. Asheri, Distribuzioni di terra nell’antica Grecia (Turin 1966), 13 (drawn to our attention by D. Roussel).

Ehrenberg categorically denies it, against earlier authors (cf. Pauly-Wissova, s.v. ‘Losung’, cols. 1478b).

Cf. A.R.W. Harrison, The Law of Athens: the Family and Property (Oxford 1968), ch. 5 (where the possibility is not even discussed).

Dio Chrysostom, (attrib.) Oratio, 64, 25, where ‘that way’ refers to ‘by lot’ (klerotas). Adduced by Gataker (Nature and Use of Lots, ch. 4, §12 (pp. 102 of the original work, where the references are given, misprinted as 46.25); cf. The Oxford Classical Dictionary3, ed. S. Hornblower and A. Spawforth (Oxford 1996), s.v. ‘Favorinus’. We are much indebted to Glen Bowersock and Christopher Jones for help with this passage.

Pauly-Wissova, s.v. ‘Losung’, col. 1493; D.J. Gargola, Lands, Laws, and Gods (Chapel Hill, NC 1995), 95ff. For examples, see Dionysius of Helicarnassus, Roman Antiquities, II, 16; II, 35; V, 60; X, 32.


booty peters out in the third century, and the Romans do not seem to have used this method in connection with inherited property either, except in three specific circumstances. First, in actions for the division of an inheritance or common property, or for the regulation of boundaries, it was difficult to decide who was the plaintiff and who the defendant, but the person who appealed to the law was generally considered plaintiff; to this Ulpian (d. 223) adds that if the parties appealed at the same time, the matter was usually decided by lot.18 Downloaded from http://jss.oxfordjournals.org at Columbia University Libraries on June 29, 2010 Secondly, in 428 a law was passed which entitled the curia (city council) to claim one fourth of the estate left by a member of the council to an outsider: the estate was to be divided into four parts, of which the curia would take one by lot.19 Thirdly, in 531 Justinian ruled that when several persons had been given the option, by bequest, to pick an item such as a slave and disagreement arose, they could cast lots: the winner would pick the item and pay the others the value of their share.20 Division of the estate among the heirs by lot as the normal procedure in intestate succession does not seem to be attested.

In line with this, it is mostly as a literary theme that lot drawing for land is attested in the Near Eastern literature (Jewish and Christian) from the second century onwards, with no sense of a live practice behind it. The gods cast lots again, this time for the nations of the earth, in the Pseudo-Clementine Recognitions, a Jewish Christian work of the mid-fourth century: Simon Magus, representing heresy, here argues that there are many gods, and that it was to one of the lower gods that the Jews were assigned (a gnosticizing paraphrase of Deut. 32:8f).21 In the same vein, Pirqe de Rabbi Eliezer, a Jewish work of (perhaps) the mid-eighth century, tells us that when seventy angels descended in order to confuse the nations building the Tower of Babel, they cast lots among the nations and Israel fell to God (who is not, of course, a lower God here).22 The nations are also divided up by lot in the Acts of Thomas, but now among the apostles rather Cf. the story of the third-century emperor Probus in Historia Augusta, Life of Probus, 8 (ed. and tr. D. Magie [London and Cambridge, Mass], iii, 319).

Justinian, Digest, book 5, tit. 1, 13f (ed. and tr. T. Mommsen, P. Krueger and A. Watson [Philadelphia 1985], i, 167).

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