The Code of Hammurabi & the Rule of Law: Why Written Law Matters [No. 86]


The Code of Hammurabi tells us an immense amount about Babylonian society. Much of what we have is contract law. Much of what we have is liability law. We have a lot of family law having to do with
divorces, custody of children, and so forth. There’s a certain amount of criminal law that
survives in it, and there are even laws about the responsibility of public officials. So it gives you a picture of the details of
common life on a scale that exceeds what we know about, say, ancient Athens in the fifth
century B.C. There are 282 laws in what survives of this
diorite stela, they call it, and the laws take the form of if/then. If someone does X, then something else will
happen. And so it’s clearly directions for judges
in how they are to dispose of particular cases. Everything that you would find in current
day law is present in that. Equality, impartiality, consistency in law,
damages, retribution, everything’s there. The law code is really very much like a modern
law code, except in one particular. It seems to be case law. Take the family law. The family law items are all grouped together,
and you can see that it is a developed system. So, for example, you begin with the rules
for divorce. The next thing is, who gets what property? Then it gets more complicated. If you have no children, who gets what property? If you do have children, who gets what property?
And what it looks like is you had started off with a single principle to deal with divorce,
and then judges found themselves confronted with situations where the simple application
of the simple principle that they began with would produce injustice, and so what they
did is they complicated it by adding “if this circumstance pertains, then the result will
be this. If that circumstance pertains within a divorce,
the result will be other.” And the same thing is true with all the contract law. They’ve run into circumstances and situations
that they didn’t anticipate, and so what they’ve done is they have taken rather simple prescriptions,
and they’ve made them more complicated to fit the more complex social situations and
contractual situations that they faced. It seems to have evolved very much in the
same way that the common law evolved. I think the odds are that elements in the
Hammurabi Code and the very idea of having a code of laws may go back as much as 800,
900 years before Hammurabi. There are a whole series of law codes. There’s one other though that deserves special
mention, and that is the Old Testament. And if you compare the Book of Deuteronomy
with Hammurabi Code, you realize there’s some continuity. If a man destroys the eye of another man,
they shall destroy his eye. That goes right into the Jewish law. If a man knocks out the tooth of a man of
his own rank, they shall knock out his tooth. Again, that goes right in “an eye for an
eye and a tooth for a tooth.” The Jewish people or the Hebrews drew up their
law code in a context where they were very much under the influence of the Mesopotamians,
and that law code is the inspiration behind not only Jewish law, but all of the law codes
that were established in Christendom, including the first law codes that were established
by the English colonists who came to Massachusetts and to Connecticut. One of the things missing from the Hammurabi
Code is there is no political constitution. There is no notion that there is anyone but
the king who is responsible, but what there is is a responsibility of the king to the
gods, and there is a sense that Hammurabi is binding future kings by laying out a law
code and pronouncing a curse on them if they fail to enforce these laws. You really ought to read the Hammurabi Law
Code. It’s not very long, but it gives you a sense
of what all law codes must do, and you may not agree with the penalties always. The death penalty seems to be very common
in the Hammurabi Law Code, but it addresses almost all of the crimes that we can think
of in our own time.

5 comments

  1. The Jewish Talmud contains a lot of essentially tort law, property law and so on too which is interesting. Of course it is newer and didn't start to be written down until I think 200 AD or so

  2. So who made the law? Did Jews have it and then share it with Babylon when they were taken captive? Or did the Jews copy from the Babylonians?

Leave a Reply

Your email address will not be published. Required fields are marked *