How Hammurabi gave birth to the Constitution

A few months ago I was talking to my cousin, Naomi the Younger, about her recent family trip to Paris.

Of course, she and her two daughters visited the Louvre. In detailing the stuff they’d seen, Naomi surprised me by describing a 7 foot tall hunk of stone into which was carved the Code of Hammurabi.

Even if I hadn’t focused a part of my life on law I’d know about the Code. Although, come to think of it, I don’t know how I know; it seems to be one of those chunks of information I’d picked up in school–maybe in a history class. Maybe not.

But somehow I knew about the Code of Hammurabi. What I didn’t know, however, was that it has an actual physicality, inscribed, as it were, in stone. (Unlike the Ten Commandments, for instance, which exist in original physical form only the mind of Alabama’s Judge Roy Moore.)

That is, I didn’t know you could visit the Code at a museum and perhaps attempt to run your fingers over it at which you’d probably get yelled at by museum guards and, per Hammurabi, have to jump into the Seine (see below, for specifics), but never mind. There it is. In the Louvre. The Code.

Rather than telling you what I know of this ancient, primitive legal system–which seeded, among other bodies of law, our own Constitution–here is the link to the Wikipedia entry, followed by some excerpts:

Source: Code of Hammurabi – Wikipedia, the free encyclopedia

The Code of Hammurabi was one of several sets of laws in the ancient Near East.[9] The code of laws was arranged in orderly groups, so that all who read the laws would know what was required of them.[10]

The Code of Hammurabi is the longest surviving text from the Old Babylonian period.[13] The code has been seen as an early example of a fundamental law, regulating a government — i.e., a primitive constitution.[14][15] The code is also one of the earliest examples of the idea of presumption of innocence, and it also suggests that both the accused and accuser have the opportunity to provide evidence.[16]

The code consists of 282 laws, with scaled punishments, adjusting “an eye for an eye, a tooth for a tooth” (lex talionis)[1] as graded depending on social status, of slave versus free man.[2] Nearly one-half of the code deals with matters of contract, establishing, for example, the wages to be paid to an ox driver or a surgeon. Other provisions set the terms of a transaction, establishing the liability of a builder for a house that collapses, for example, or property that is damaged while left in the care of another. A third of the code addresses issues concerning household and family relationships such as inheritance, divorce, paternity, and sexual behavior. Only one provision appears to impose obligations on an official; this provision establishes that a judge who reaches an incorrect decision is to be fined and removed from the bench permanently.[3] A few provisions address issues related to military service.

And here, thanks to Yale University’s Avalon Project, is the entire Code of Hammurabi:

Source: The Avalon Project : Code of Hammurabi

As an appetizer, here are the first three items:

1. If any one ensnare another, putting a ban upon him, but he can not prove it, then he that ensnared him shall be put to death.

2. If any one bring an accusation against a man, and the accused go to the river and leap into the river, if he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser.

3. If any one bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death.

Wow, that Hammurabi! He certainly believed in the death penalty. (I did mention this was a primitive document, didn’t I? Sort of like the state constitutions of Texas, Kansas, et al.)

So how does Hammurabi treat women?

110. If a “sister of a god” open a tavern, or enter a tavern to drink, then shall this woman be burned to death.

Hmm. Marginally better is…

119. If any one fail to meet a claim for debt, and he sell the maid servant who has borne him children, for money, the money which the merchant has paid shall be repaid to him by the owner of the slave and she shall be freed.

128. If a man take a woman to wife, but have no intercourse with her, this woman is no wife to him.

130. If a man violate the wife (betrothed or child-wife) of another man, who has never known a man, and still lives in her father’s house, and sleep with her and be surprised, this man shall be put to death, but the wife is blameless.

Okay! But there’s a lot of inscribed punishment for women involving jumping into the river. No mention of whether Babylonian women knew how to swim:

129. If a man’s wife be surprised (in flagrante delicto) with another man, both shall be tied and thrown into the water, but the husband may pardon his wife and the king his slaves.

131. If a man bring a charge against one’s wife, but she is not surprised with another man, she must take an oath and then may return to her house.

Wait a minute–why doesn’t that guy have to jump into the river for false accusation?

132. If the “finger is pointed” at a man’s wife about another man, but she is not caught sleeping with the other man, she shall jump into the river for her husband.

No, no, no!

Take a read through yourselves. You’ll find some favorites, I’m sure. It’s really fascinating.

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