Hello there:
It sounds like you are having an interesting debate. It also sounds
as though you are taking it seriously or you wouldn't be here. You
have told me you are on the "against" side but you also asked about
'both ' sides of the question. So, it would seem the best I could do
would be present both sides in as balanced a manner as possible. In
other words, I will give you the arguments, the philosophies, and the
counter arguments but the answer will end as a neutral document. The
final decision as to whether the code was/is good or bad is still up
to your own debating skills and those of the rest of your class.
Since I have no idea as to how much you already know about the Code of
Hammurabi, we'll start at the beginning.
Something many forget is that the Code of Hammurabi is not the oldest
set of laws, it is merely the oldest set which has survived.
Hammurabi is a King of Babylon and it is often hard to keep in mind
that Babylonian civilization represented the ending of an era rather
than its beginning.
Earlier laws have either vanished or simply not been found intact yet,
but there are several bits and pieces of them. Hammurabi's code
itself clearly makes you aware of them. Hammurabi is not inventing a
new code, he is simply doing a reorganization of what was long
established.
The exact date for the creation of the code is still open. It is
generally taken to have been created between the second year of
Hammurabi's reign, 1727 BCE and the end 1680 BCE. (you will notice
that I use exact dates rather than "circa." When a date is accepted
by more than 75% of the archaeologists and historians, I'll go with
it.)
For many, the most obvious feature of Hammurabi's Code is its attempt
to protect the weak from being brutalized by the strong. Hammurabi
believed he had been commanded by his gods to create the rule of law
and justice over his people.
In Hammurabi's own words: "Anu and Bel called by name me, Hammurabi,
the exalted prince, who feared God, to bring about the rule of
righteousness in the land, to destroy the wicked and the evil-doers;
so that the strong should not harm the weak..."
He called himself the "shepherd of the oppressed and of the slaves,...
these my precious words...That the strong might not injure the weak,
in order to protect the widows and orphans ... in order to bespeak
justice in the land, to settle all disputes, and heal all injuries
..."
Hammurabi's Code addressed the right of the poor to seek redress from
wrongs committed by the wealthy, addressed the rights of women,
including the rights of women to own property in their own names, and
even the right to divorce a husband for grounds that would be
recognized now.
Another interesting feature is that the Code of Hammurabi introduces
"restitution" into formal law. Many crimes were not crimes against
the state but against the victim and the victim's family. Restitution
was required for property and violent offenses. One of the major
drawbacks of the code is because of way this feature was to be
implemented and how deeply it inserted itself into the ancient
Mideastern mentality. It firmly established the "eye for eye, tooth
for tooth" concept into formal law thus providing a sanctioned tool
for personal vengence and vindictiveness which has lasted into the
legal debates of today. It greatly blurred the lines between
"justice" and "getting even." The fallout of this is most strongly
seen in the debates surrounding capital punishment. Is it state
sponsored vengence? Is it the right of society to take a life for
whatever reason? Is the number of innocents who have gone to their
death wrongfully accused and found guilty enough of a human sacrifice
to please the gods of vengence? Doesn't society have the right to rid
itself of dangerous people? and then , of course, the Biblical
argument demanding an "eye for eye and tooth for tooth." Where I
stand on the issue is of no importance. I am simply giving you some
of the arguments used with at least one of them dating back over 3500
years.
The "eye for eye" attitude toward justice is held by many who relate
to these ancient Mideastern philosophies either through religions
which originated there or other philosophical support from ancient
Mideastern authors. So the line from Hammurabi to modern times is a
rather straight one and it seems it is one of the less admirable
attributes of the code which has survived. In fact, a supporter for
the death penalty refers directly to the code: "Indeed, in its origin,
the Hammurabi mentality described by Ring once implemented methods now
viewed as fairly draconian. I submit, however, that the Code of
Hammurabi was not an attempt to incite barbarism but rather to
civilize a more barbaric people." Quote from "In Defense Of Capital
Punishment," Garrett M. Cradduck, 2000 CE.
( http://www-tech.mit.edu/V119/N9/In_Defense_Of_C.9l.html ) - you will
find the quote here.
In the implementation of these "eye for eye" laws, there was a way
out, if you had the class that is. As you read through the laws, you
will find different punishments for the common man and the noble. You
will learn how punishments are administered according to the social
status of the attacker and the victim. "Equality before the law" was
as rare in ancient times as it often seems now. Once again, things
have not changed that much.
It may be said that if it were not for the Code of Hammurabi, somebody
else would have created the glitch in law which gives public sanction
to personal vindictiveness in the name of justice, but since it is
there, just like Mt. Everest, unavoidable, Hammurabi has to take the
blame. After all, his code did lay the basis for later Hebraic and
European law.
Just how much influence should a code from another age have in our
time?
Once again, on the positive side, there are still the valid claims
that Hammurabi's code represented the first attempt to give rights to
women, though men's rights still were dominant. However, throughout
most of the later law code in the ancient Mideast, these rights for
women held up. It was not till a later philosophical movement in the
west, that women's rights were trampled in the mud once again. ( now
there is a subject which can be used by those who are both for and
against. Those "for" can point them out as examples of early
enlightenment. Those against can point them out as laws which would
lead to their own destruction for economic reasons. Much ancient law
permitted a woman to inherit and to keep her property if she
remarried. Another body of ancient law gave widows a tax exempt
status. - you can work out the numbers - then, just as now, women
outlived men on a regular basis and inherited a lot of property, the
income from which was then denied the state because of the tax
exemptions. It also became popular for women to will property to a
daughter rather than a son. While I do not mean this as a "sexist"
statement, what happened to a number of ancient Mideastern
civilizations (mostly small ones) was that the country actually went
broke. In all of these, the majority of the property was owned by
women who did not have to pay taxes, but even more importantly, didn't
have to provide a levy of soldiers to the national militaries. They
made very easy pickings for advancing Roman legions. In fact, there
are a number of eastern Roman provences where Rome did not conquer at
all, but were welcomed as liberators.
So, in this case, an enlightened policy toward woman and property
actually brought down nations. The philosophies of the Code of
Hammurabi changed the very direction of western civilization.
Restitution law can be and is used as a valid and workable aspect of
justice and is widely used in modern court systems.
The code also established that there be a "Procedure" in law. The
code is very clear that there are penalties for those who make
wrongful accusations as well as penalties for those found guilty. It
made people think twice before bringing up charges against somebody.
Today is is called in the US: "Without due Process."
The code could almost be considered the foundation of modern American
government. Our form of Republic is based on the Republican division
of powers found in the "Republican" era of Ancient Rome in spite of
how many are being taught we were founded according to the principles
of Greek democracy. "The Twelve Tables" which embodied earliest Roman
law incorporated most of the basics of Hammurabi. Fragments of the
code have been found in early Roman sites so it could be safely
assumed the Roman lawmakers knew of it. Of course from Roman law has
evolved the basis of modern law.
That straight line connection from Hammurabi to the modern world
carries a certain amount of enlightenment as well as the baggage
mentioned previously.
Just how much influence should a code from another age have in our
time?
I think as you dig deeper into the subject, you will find aspects of
the code effecting us in ways you would never imagine. I have tried
to give examples of some of them above. The arguments and statements
covered are the "main" items of contention about the code in any
debate. There is such a balanced outcome to such a debate, the pros
are so close to the negatives, the philosophies and argument involved
could become very circular if approached from a purely 'logical'
approach.
In a debate where the outcome is so close, I would move away from the
logic somewhat and steer things into more of an emotional
confrontation based on interpretations of issues rather than on the
code and its direct effects on ancient and modern times. The "nations
falling because of women's property rights" statement could be
controversial enough work in that direction. It brings Hammurabi
right up and current.
You realize of course, that the debating techniques I use to answer
your question are simply ones used by me. However I have had some
good mentors.
If you can steer the conversation in the emotional direction you want,
most of the time (not always) you will control the direction of the
conversation from then on. The reason the technique works is that you
would be using logic to craft your statements into emotional come-ons
while still thinking clearly. Such a 'leading' question can even be
made to sound innocent of any emotional baggage at all. Your opponent
will be able to do nothing except respond, usually without much time
for forethought. Keeping the opposition off kilter gives you a little
edge. So try not to be 'predictable.'
If you want to throw a little "color" into the discussion, the code
has no 13th law. Then, just as today, 13 was evil and unlucky. Maybe
you could get into a discussion on how the code effects modern
superstitions? I meant the previous question facitiously, but it just
demonstrates how afar afield you can go and still "relate" to the
Hammurabi Code. Only the pre-agreed rules of your debate need limit
the amount of trivia you can enter into discussion to keep your
opponents off guard.
How far you are willing to go in such debate techniques is up to you
and your own code of ethics. Much of which has been formed by ideas
and concepts which have been floating around for a few thousand years.
Just how much influence should a code from another age have in our
time?
---
Some of the above information was compiled from these websites.
"The Code of Hammurabi" - from LawResearch.com
( http://www.lawresearch.com/v2/codeham.htm ) - You will find a full
translation of the code here as well as a good essay.
"Legal History - Links to Legal Resources..."
( http://mishpat.net/law/Jurisprudence/legal_history/index.shtml ) -
links to Hammurabi code and Avalon Project
"Internet Ancient History Sourcebook: Ancient Legal Texts"
( http://www.fordham.edu/halsall/ancient/asbook-law.html ) - just what
the name implies
"Twelve Tables, Tabularium"
( http://www.mmdtkw.org/VTwelveTables.html ) - relating American
Constitution to the Roman Twelve Tables
"Women in the Ancient and Medieval Worlds"
( http://www.faculty.de.gcsu.edu/~dvess/ids/women/mesowom.html ) -
excellent index of sites relating to ancient women.
And sources on the bookshelf.
If I can clarify any of the above please don't hesitate to ask. Some
of the statements may need expansion and if so, I do not consider the
question answered till they are. Your choice.
Good luck in your debate
digsalot |
Clarification of Answer by
digsalot-ga
on
18 Sep 2002 22:13 PDT
This clarification will wind up in an essay form for the simple reason
so many of the arguments against the Code of Hammurabi are special
interest arguments rather than generalized social responses. They
have to be fitted together in bits and pieces. Perhaps if I do this,
it may make things a little easier for you.
Society has had to contrive a wide range of punishments to fit a wide
range of crimes One of the major reasons for this is that in modern
American society, so many laws are not related to "crime" but to
social regimentation. We are rapidly becoming a nation that fears and
hates those who 'think differently,' 'believe differently,' choose
lifestyles different than the majority, etc, etc. We are making a god
out of conformity, religious, political, and otherwise. And we are
trying to do it on the ancient basis of making the "punishment fit the
crime." The origin of this idea is not in the Bible, as many people
choose to believe, but almost 2000 years earlier than Christ in the
ancient city of Babylon.
"If a man put out the eye of another man, his eye shall be put out."
It is this phrase, approximately 4000 years old, which in the Old
Testament became the modern day cliche "An eye for an eye, a tooth for
a tooth." The idea was that when a crime is committed against someone,
the same act should be committed against the original offender. It
seemed to make sense. Break a window, lose a window, ruin a crop, lose
a crop, steal an item, lose an item. In old Babylon, this must have
seemed an indisputably logical and fair form of punishment. No wonder
it has lasted so long, at least in philosophy if not always in
practice.
We actually don't practice this kind of law now. The common forms of
punishment are financial fines and prison terms, neither of which in
most cases resemble the crimes they are attempting to equalize.
Instead we act as if there is a "currency" of value that can be
translated between crimes and punishments. Crime 'A' is assigned an
equivalent value of fine 'B' or prison sentence 'C'. Just who gets to
makes these qualitative judgments is frankly, quite beyond me.
Nevertheless, the basic idea is still there. Simply put, the
punishment must fit the crime.
Those who defend the Hammurabi code as a valid basis for modern law in
most cases still think of justice as deterrant and vengence. The code
of Hammurabi only addressed those two issues: retribution and
deterrant, with the emphasis on retribution.
However, in present day society we at least try to convince ourselves
that there is a third goal in punishment as well, that being
rehabilitation. This is an aspect of modern justice that those who
value Babylonian and Old Testament law not only reject but try to
demean and remove from the justice system. Aspects of the code have
even been applied in trying to overturn "insanity pleas." the code
supports those who would remove any sense of humanity, compassion,
extenuating circumstances, or mercy from the legal system.
Instead of generalizing as I did in the main part of the answer, I
will take the two main negative concepts of the code and isolate them.
First and formost, the code of Hammurabi was just too violent.
Hammurabi's solution to just about anything and everything was to kill
somebody. For example: " if an architect's work falls in and kills
the son of the owner of the house, then the architect's son dies." The
architects son did nothing wrong but was put to death. I think that
paragraph was pretty selfexplanatory.
Treatment of the social classes would probably rank second. I had
covered this above but a reiteration of it might not be a bad thing.
In its simplist form different punishments are give out according to
the social class of the person the crime was committed upon. Equal
justice was only for equal rank.
You should concentrate on these two aspects even if you ignore
everything else.
Now to jump back to the part of your question about debating
techniques. The negative examples of the code shown above can both
help and hurt you depending on the way they are presented. When you
use evidence, don’t just mention the example or the primary source.
Explain how this source proves your point. You don’t have to tell
those you are debating the whole story. You do have to give them
enough to see how it supports your assertion. Let’s say you are
arguing that Mesopotamian society had a violent structure. If all you
say is "as the Code of Hammurabi shows," you haven’t proved your
point. You aren’t showing them how you’ve reached your conclusion; you
aren’t even showing them that you know what’s in the Code of
Hammurabi. If instead you say, "the Code of Hammurabi demonstrates the
violence of Mesopotamian society, because a wrongdoer’s punishment was
based on his class and on the class of his victim, and the punishment
of death was born mostly by the classes least able to defend
themselves," then you’re proving your point. If you have a chance
before your debate, go through the code law by law and be able to give
the number of the law you are quoting.
You can bring the negative effects of the code into the modern world
two different ways. The method you might select may very well be
determined by the nature of your class. I have no idea whether you
are in a school that is philosophically conservative or liberal and
what you might be able to get away with.
However, the two lines of arguement are:
1 - The negative philosophies of retribution and class exclusivism
made their way into modern times because the code became the basis of
later and equally as detrimental law codes in the Old Testament and on
into the attitudes expressed by the even later Christian Church. Even
the death penalty for wrong religious belief (heresy) can be traced
back to the code. Certain elements in Christianity, and who have a
growing power in the US, are advocating for the return of Old
Testament law as the official law of the land. They are called
Christian Reconstructionism. - - - A note here: I do not want to get
into religious discussions, pro or con. The mention of the
organization is a valid example of how ancient law codes are affecting
modern society and the reference to Hammurabi made by many of them who
are part of that organization. To ignore such resources simply
because they are controversial is to short change and severely censor
what a student may learn. One example was linked in the site above.
2 - But, if you need to worry about scholastic censorship and the
argument needs to avoid religion as the means of passing the negative
atributes of the code to modern times, the alternative is the code's
influence on the "Twelve Tables" of Roman law and its passage into and
influence on modern law.
In many ways (most ways), the two blend together. But you should know
your classmates and school and be able to decide which path to
concentrate on and how much of each you can use.
Recommended online sources are still the same as above.
It is now the 19th. If you need additional clarification, I will find
time for you today.
Cheers
digsalot
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