The Unfairness of Hammurabi's Code Laws

On display at the Louvre in Paris, on a stele made of black diorite and standing over seven and a half feet tall, is a portion of a relic of the Mesopotamian past. On this stele is the code of Hammurabi, an ancient artifact of 282 laws written in cuneiform script in the Akkadian language. The code of laws themselves are controversial even today. Were the laws laid out just or unjust? I believe this to be a difficult question to answer. While a law demanding that a man replace grain from a loss he caused from his neglect, seen in law 53, seems fair and reasonable, killing a man's daughter, however, for a crime that he committed, coming from law 210, seems unnecessarily harsh, particularly for the innocent daughter. It would seem to me that based on the inequality of laws for men when compared to women, the disparity between the laws for the elite, the common, and the slave class, and the reliance on the supernatural to be both judge and jury, that these laws cannot be considered fair nor just.

A woman's place in Babylon was to be subservient to her father or her husband. The rules laid out for a woman were oftentimes very strict, especially when compared to laws for men. Law 129 states “If the wife of a man has been caught in lying with another male, one shall bind them and throw them into the waters. If the owner of the wife would save his wife or the king would save his servant (he may).” While I'm sure many men today would see no problem with throwing an unfaithful wife into the waters, the laws are not the same for a male, and in fact, it was expected for men to have multiple partners or wives. Even law 154, “If a man has known his daughter, that man shall be expelled from the city,” seems much less harsh for a much greater crime of incest, in my opinion. In law 132 it states that if a wife is accused of laying with another man, she should plunge into the river for her husband. Note that she may be completely innocent of any wrongdoings here, but to save her husband the embarrassment, she needs to die. Not all the laws regarding women's rights are harsh, however. In law 142, if a woman wishes a divorce from her husband, she may be granted it and her marriage portion if she has been a good wife that has not belittled or embarrassed her husband or neglected her house.

This seems reasonable until getting to the very next law, 143, that would have her thrown into the waters if she has belittled her husband. There are however quite a few laws for women that would be considered fair, such as 138, where if a man is going to divorce his wife who did not give him any children, he will give her bridewealth and return her dowry. In many cultures even today, that would be unexpected. In 139, even if there was no bridewealth, he shall give her silver. Along the same vein, a man could sell his wife (or children) into service and they would have no choice in the matter, as seen in law 117.

If I had lived in the time of Hammurabi, I might have been reluctant to lay an accusation on someone. Law 1 says that if a man accuses another man of homicide and can't bring proof, the accuser should be killed instead. Often, even today, if a person is a witness to a crime, it cannot be proved. The only evidence a person may bring forth is their personal testimony. If I only had my word that a homicide was committed and no further proof, I might not come forth with an accusation. My reasons are that I value my own life too and would not want to be put to death for my accusation if I were not to be believed. If I had indisputable proof, then perhaps I would come forth, but only then. An example of the law is also seen in 3, where if a man were to give false testimony but cannot bring evidence, he shall be killed. My question is then, how is one to prove if the testimony is false?

In law 2 we learn of the River Ordeal. During the river ordeal, a man would swear his innocence and then plunge himself into the river. If he were to drown, he was considered guilty. If he was innocent, naturally he would survive. “If a man charges another man with practicing witchcraft but cannot bring proof against him, he who is charged with witchcraft shall go to the divine River Ordeal...if the divine River Ordeal should clear that man and should he survive, he who made the charge of witchcraft against him shall be killed.” The river ordeal was used as a judge and jury throughout many of these laws. I believe that using supernatural forces to determine a person's innocence or guilt cannot truly be a just method of upholding the laws.

Often in my life, I have heard of the phrase, an eye for an eye and a tooth for a tooth. While this is biblical, it also stems from Hammurabi's code. Law 196 states “If a man has caused the loss of a gentleman's eye, his eye shall be cause to be lost.” However, in law 198 we see that if a man has caused a poor man to lose his eye or his limb, the guilty party will only have to pay a fine. If a man were to strike another man of a higher standing them himself, he would be flogged. If he were to strike a man of the same standing, the would owe a fine instead. This inequality of punishments between the classes is seen throughout the code. Going back to law 210, for example, where if a pregnant woman miscarries and dies after being struck by a man, his daughter is to be killed. We see in the very next law that if he were to have struck a pregnant woman of a lower class, killing her and her unborn child in the process, his punishment is then only to be a fine rather than death of his daughter.

While I do believe that much of Hammurabi's code is harsh and unfair, there are some that seem reasonable, at least for the period. “If a builder has built a house for a man and not made strong his work, and the house he has built has fallen, and he has caused the death of the owner of the house, that builder shall be put to death.”(Law 229) While I understand that accidents can and do happen, I also can understand how this law would seem just during that period. If through a person's neglect, another person is killed, then the guilty party being put to death can be viewed as fair. However, in law 230 it states that if the son of the owner of the house was to die, the son of the builder would be killed as well. Much like in law 210, putting innocent people to death for the crimes of their fathers cannot be considered as just.

While I do take under considereation that many of the laws of Hammurabi's code made sense and were fair, particularly for the time, it is difficult to say that the whole of the code is just and reasonable. I think that many of the laws for women were actually quite progressive from my own perceived notions of the past. Viewing the code as it is, leaves me to wonder about circumstances in the law. If a son were to strike his father, such as in law 195, would the son's hand always be removed, or would the circumstances behind the why did he strike his father come into play? What if it ended up being self-defense?

I believe that in many of these laws, self-defense or a similar argument such as accident could be used, but was that allowed during this time? Were people allowed to defend themselves in order to avoid harsh judgment beyond being cast into the river? It would be easy to condemn the code of Hammurabi harshly, as we do not live in ancient Babylon. Though coming from a modern perspective and viewing the code in its entirety, I do not surmise that Hammurabi's Code was fair for the masses, therefore my personal belief is that they were not just.