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Comparing the Code of Hammurabi with U.S. Law
The Code of Hammurabi dates back to the second millennium BC (approximately 1772 BC). Consisting of 282 laws, Hammurabi's Code became the rule for ancient Babylonians, just like today's Americans look to the Constitution for their rule. Although separated by thousands of years, Hammurabi's Code and the laws of the United States actually have some similarities. They are also, of course, different in many ways. This paper will examine the ancient Code of Hammurabi, compare it to the laws of the U.S., and show in what ways it is similar and in what ways it is dissimilar.
The Code of Hammurabi is noted for its severity. Eight of the first ten laws end with the assertion that the transgressor "shall be put to death" (Johns 144). While the death penalty is not foreign to the United States, it is not so often used or applied in general terms. While Hammurabi's Code is clear-cut and sweeping in its terms, forever chiseled into stone, U.S. laws are constantly undergoing revision, and even in terms of punishment the degree of justice that is to be meted to individuals is often left to judges to decide.
Hammurabi's Code deals with essentially seven different subjects: law, a code of conduct, worker's duties, trade, slavery, military service, and religion. Each subject is seen as bearing a direct impact on the Babylonian people and thus deserving of scrutiny from Babylon's ruler. Believed to have been called upon by the gods to establish his Code, Hammurabi writes in the law's preface that he has been personally ordered to establish order in the realm. In one sense, therefore, the Code may be seen as a kind of divinely inspired set of laws. This would certainly make it different from the laws of the United States, which make no such assertion and are viewed, rather, as the product of the Age of Enlightenment.
The main foundation for U.S. law is in the U.S. Constitution. The Constitution essentially points out the limits of federal power, reserving all other powers to the states. Unlike the Code of Hammurabi, which is very precise, exact and simple, the Constitution contains a number of passages that modern-day lawyers, judges and statesmen interpret according to their own lights. This "room for interpretation" makes U.S. law somewhat trickier to define than the terse Code of Hammurabi. Indeed, John Wright states that the U.S. "possesses a highly unusual, innovative legal system as complex as it is elegant" (639). The complexity of the law of the U.S. contrasts sharply with the simplicity of the ancient Code of Hammurabi. It also contrasts with the Babylonian king's Code in the subjects with which it deals.
Almost half of Hammurabi's Code concerns human contracts, such as the matter of fair wages for laborers or the extent to which a builder is liable for a building that fails to sustain its supports. Another third portion of Hammurabi's Code deals with issues of family life, such as might pertain to matters of inheritance, sex, and the proper maintenance of the household. Perhaps the most famous law in Hammurabi's Code is that which concerns "an eye for an eye." This sense of justice summarizes a good portion of the laws of Hammurabi, especially from law 195 onward: whatever one does to another shall be done to him.
Implicit in Hammurabi's Code is the fact that Hammurabi is the Law-Giver and that his law is concerned primarily with civil law. In civil affairs, Hammurabi, King of the Babylonians, shows his fatherliness, his care for his subjects, whom he sees as children to be reared, guided, protected and punished by him. His law shows no favorability to certain subjects over others. Justice is its primary aim. As Robert W. Shaffern notes, Hammurabi's Code "established two principles. First, that justice should be impartial and second, that, essential to the principal of impartiality, only the government made law and that law must be made public" (Shaffern 3).
This system of law is not really similar to the system of law used in the U.S. At all. The system of law in the U.S. is one in which courts are used, defenses are put forward, witnesses are called, and prison time is served (in most cases). To show how the two codes of law differ, however, one may examine the current U.S.'s view towards the killing of fetuses with that which was put forward by Hammurabi. Today's U.S. laws actually make legal some actions which Hammurabi condemned. For example, in the U.S. abortion is legal, but in ancient Babylon, Hammurabi had a strict punishment for any man who killed a woman's fetus. Jeffrey H. Reiman observes that "articles 209 and 210 of The Code of Hammurabi…provide: 'If a seignor struck a seignior's daughter and has caused her to have a miscarriage, he shall pay ten shekels of silver for her fetus" (Reiman 16). Of course, one may argue that Hammurabi's law was concerned primarily with unwanted violence towards a fetus. But the Code is more concerned with the violation of paternal rights in the matter of a lost fetus than with the violation of maternal rights. That is because Hammurabi's Babylon was a paternal society. America in our day and age is much more focused on the maternal aspects of society and women's rights. Such may be one reason why the two codes of law apparently differ on the matter of the deaths of a fetus.
Still, Hammurabi's Code is not exactly explicit on every matter concerning the death of a child. On the contrary, the Code says nothing about many matters that might arise within a kingdom the size of Babylon. Ultimately, 282 laws is a quite small number considering the size of the population for whom they were intended. One may wonder at the reason for so small a number. Peter N. Stearns surmises that Hammurabi's Code was not meant to be all-encompassing but rather a code to "highlight selected decisions the king and his officials rendered for the purpose of providing precedents for just rulings" (Stearns 26). In other words, Hammurabi's Code could have been used as a launching point for further legal decisions, judgments, punishments, etc. Like the U.S. legal code, as written in the Constitution, it may be assumed that what was not explicitly stated, could be decided upon by the lower courts themselves.
Still, Hammurabi's Code, in comparison to the that of the U.S., was similar and different in other ways. For example, the Babylonian Code "was designed to ensure order, strengthen the government…and establish the legal rights of citizens" (Lefton 371). These same measures may be attributed to the United States Constitution as ratified by the Founding Fathers at the Constitutional Convention in Philadelphia in 1787. America at that time was coming into its own and asserting its authority as an autonomous governmental power. Just as Babylon would have to assert its authority over city-states and nations that it conquered, America had to assert itself as a united Republic, which is what its Constitution was meant to do.
One difference between the spirit of the two codes, however, may be seen in what Philip Lefton identifies as another reason Hammurabi's Code was put into effect: it was meant to "protect the weak" (371). It is debatable whether the U.S. Constitution was ratified with a similar spirit or frame of mind. The principle players involved in the ratifying of the Constitution were concerned mainly with the argument of centralization vs. decentralization. If they were concerned with protecting the weak, it was in the sense of protecting the smaller states from the bigger ones and states' rights from federal tyranny. One may judge for himself today which way the U.S. has gone with respect to the idea of "protecting the weak."
The biggest difference between the two codes, however, may be seen in the sense that both attempted to convey. Hammurabi attempted to convey in his Code the idea that he was the ultimate source of justice, as the gods themselves apparently recognized, so he states in his Code. The U.S. law system, on the other hand, was meant to convey a sense of fairness, of democratic egalitarianism, of liberty, and other Enlightenment values. Jackson Spielvogel asserts that Hammurabi's Code was less a system of a law and more of "an attempt by Hammurabi to portray himself as the source of justice to his people" (10). Thus, the Code emphasizes its strict degrees of justice, many of which have violent if not mortal repercussions.
The Constitution, and its initial Articles of Confederation, had much more practical aims. It saw its citizens as civilized, cultured human beings. It concerned itself primarily with the matters of sovereignty, freedom, the delegation of power, the raising of funds, and basically the essential elements of maintaining itself. If Hammurabi was concerned with being viewed as the seat of justice, the Articles and the ensuing Constitution of the United States was concerned…[continue]
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