Ideas: A History from Fire to Freud

Hammurabi (1792–1750 BC) was an adventurous and successful king. His capital was at Babylon, where he centralised the local cults in the worship of Marduk.¹⁰¹ As part of this he simplified and unified the bureaucracy throughout his realm, including the legal system. Altogether, nearly three hundred laws are now known from Hammurabi’s code, sandwiched between a prologue and an epilogue. They are arranged in this way: offences against property (twenty sections), trade and commercial transactions (nearly forty sections), the family (sixty-eight sections, covering adultery, concubinage, desertion, divorce, incest, adoption, inheritance), wages and rates of hire (ten sections), ownership of slaves (five sections). Hammurabi’s laws, as H. W. F. Saggs tells us, take one of two forms, apodictic and casuistic. Apodictic laws are absolute prohibitions, such as ‘Thou shalt not kill.’ Casuistic laws are of the type: ‘If a man delivers to his neighbour money or goods to keep, and it is stolen out of the man’s house, then, if the thief is found, he shall pay double.’ The prologue makes it plain that Hammurabi’s laws were intended to be exhibited in public, where citizens could read them, or have them read out.¹⁰² They are not what we would understand as statutes: they are royal decisions, a range of typical examples rather than a formal statement of principles. Hammurabi meant the code to apply across all of Babylonia, replacing earlier local laws that differed from area to area.

From the code we can see that, legally speaking, Babylonian society was split into three classes: free men (awelu), mushkenu, and slaves (wardu). The mushkenu were privileged, in that some military or civilian duty was performed in exchange for certain advantages. For instance, the fee for a life-saving operation was set at ten shekels of silver for an awelum, five for a mushkenum and two for a slave (§§ 215–217). Similarly, ‘if a man has pierced the eye of an awelum, they shall pierce his eye’, but ‘if he has pierced the eye or broken the bone of a mushkenum, he shall pay one mina of silver’ (§§ 196–198). Punishments were cruel by our standards but the objectives were not so different. Family law was designed to protect women and children from arbitrary treatment and to prevent poverty and neglect. Thus, although a wife’s adultery was punishable by death, her husband could always pardon her and the king could pardon her lover. This saved them ‘from being bound together and thrown into the river’ (§ 129).¹⁰³ Just as many Sumerian and Babylonian literary narratives prefigured those in the Bible, so did Hammurabi’s laws anticipate Moses’. For example: Hammurabi’s Laws, § 117 reads: ‘If a debt has brought about the seizure of a man and he has delivered his wife or his son or his daughter for silver, or has delivered them as persons distrained for debt, for three years they shall serve in the house of the buyer or distrainer; in the fourth year their freedom shall be established.’ Compare that with Deuteronomy 15:12, 18: ‘If your brother, a Hebrew man, or a Hebrew woman, is sold to you, he shall serve you six years, and in the seventh year you shall let him go from you.’

In places the Hammurabi code refers to judges and discusses the conditions under which they could be disqualified. This sounds as though they were professionals, who were paid by the state. They worked either in the temples or at the gates, in particular those dedicated to the god of justice, Shamash. However, the king was always the court of appeal, and intervened whenever he wanted to. The Babylonians were less concerned with an abstract theory of justice, and more with finding an acceptable solution that did not disrupt society. For example, the two parties in a case were required to swear they were satisfied with the verdicts and would not pursue vendetta.¹⁰⁴ When a case came before the judges, there was no advocacy, and no cross-examination. The court first examined any relevant documents and then heard statements by the accuser, the accused and any witnesses. Anyone giving evidence took an oath by the gods and if a conflict of testimony arose, it was settled by recourse to the ordeal – that is, the rival witnesses were forced to jump into the river, the idea being that the fear of divine wrath would pressure the lying party to confess. It seems to have worked, since the practice of ordeal was still in use in biblical times where it is mentioned in Numbers.¹⁰⁵

This all sounds very well organised and carefully thought out. It is important to add, therefore, that there is no direct evidence that Hammurabi’s code was ever adopted, and that no extant legal rulings of the period refer to his system.