Code of Hammurabi
1. Discovery of the Code
2. Editions of the Code
3. Description of the Stone
4. History of the Stone
5. Origin and Later History of the Code
II. CONTENTS OF THE CODE
1. The Principles of Legal Process
2. Theft, Burglary, Robbery
3. Laws concerning Vassalage
5. Trader and Agent
9. Concerning Wounding, etc.
10. Building of Houses and Ships
11. Hiring in General, etc.
III. THE SIGNIFICANCE OF THE CODE
1. Hammurabi and Moses
2. The Code and Other Legal Systems
1. Discovery of the Code:
When Professor Meissner published, in 1898, some fragments of cuneiform tablets from the library of the Assyrian king Ashurbanipal (668-628 BC), he also then suggested that these pieces were parts of a copy of an old Book of Law from the time of the so-called First Babylonian Dynasty, one of the kings of which was Hammurabi (more exactly Hammurapi, circa 2100 BC). A few years later this suggestion was fully established. In December, 1901, and January, 1902, a French expedition under the leadership of M. J. de Morgan, the chief aim of which was the exploration of the old royal city Susa, found there a diorite stone, 2,25 meters high and almost 2 meters in circumference. This stone had a relief (see below) and 44 columns of ancient Babylonian cuneiform writing graven upon it. Professor V. Scheil, O.P., the Assyriological member of the expedition, recognized at once that this stele contains the collection of laws of King Hammurabi, and published this characteristic discovery as early as 1902 in the official report of the expedition: Delegation en Perse (Tome IV, Paris).
2. Editions of the Code:
At the same time Scheil gave the first translation of the text. Since then the text has several times been published, translated and commented upon; compare especially: H. Winckler, Die Gesetze Hammurabis (= Der alte Orient, IV, Leipzig; 1st edition, 1903; 4th edition, 1906); H. Winckler, Die Gesetze Hammurabis in Umschrift und Ubersetzung, Leipzig, 1904; D.H. Muller, Die Gesetze Hammurabis und die Mosaische Gesetzgebung, Vienna, 1903; R.F. Harper, The, Chicago, 1904; C.H.W. Johns, Babylonian and Assyrian Laws, Contracts, Letters, Edinburgh, 1904, 44 ff; T.G. Pinches, The in the Light of the Historical Records and Legends of Assyria and Babylonia, London, 1908, 487; A. Ungnad, Altorientalische Texte und Bilder zum Alten Testament, Tubingen, 1909, I, 140 ff; A. Ungnad, Keilschrifttexte der Gesetze Hammurapis, Leipzig, 1909; J. Kohler, F. Peiser and A. Ungnad, Hammurabis Gesetz, 5 volumes, Leipzig, 1904-11.
3. Description of the Stone:
The stone has the form of a column the cross-section of which is approximately an ellipse. The upper part of the face has a relief (see illustration). We see the king in supplicating attitude standing before the sun-god who sits upon a throne and is characterized by sun rays which stream out from his shoulders. As the king traced back the derivation of the Code to an inspiration of this god, we may suppose that the relief represents the moment when the king received the laws from the mouth of the god. Lower on the face of the stone are 16 columns of text, which read from top to bottom; 7 other columns were erased some time later than Hammurabi in order to make room for a new inscription. The reverse side contains 28 columns of text.
4. History of the Stone:
The stone was set up by the king, toward the end of his reign of 43 years, in the temple Esagila at Babylon, the capital of his dominion (circa 2100 BC). It was probably stolen from there by the Elamitic king Shutruk-Nakhunte, in the 12th century BC, at the time of the plundering of Babylon, and set up as a trophy of war in the Elamitic capital Susa. The same king had, it would seem, the 7 columns from the face side erased in order to engrave there an account of his own deeds, but through some unknown circumstance this latter was not accomplished. After the discovery of the stele it was brought to Paris where it now forms one of the most important possessions of the Louvre.
5. Origin and Later History of the Code:
If, however, Hammurabi was not the first legislator of Babylonia, still he was, as far as we can see, the first one who used the language of the people, i.e. the Semitic idiom. We know that nearly 1,000 years earlier a king, Urukagina, promulgated laws in Babylonia which have been lost; an ancestor of Hammurabi, Sumulael, appears also to have given laws. As we are able to recognize from the actual practice of Babylonian social life, the legislation of Hammurabi signifies nothing essentially new. Even before his time laws after the same principles were administered. His service lies before all in that he gathered together the extant laws and set them up in the Semitic language. The laws were promulgated already in the 2nd year of his reign, but the stele known to us was set up in the temple at Babylon about 30 years later. Moreover, the laws were set up in more than one copy, for in Susa fragments of another copy were found. How long the laws were in actual use it is impossible to determine. In any case, as late as the time of Ashurbanipal (see above), they used to be copied; indeed we even possess copies in neo-Babylonian characters which are later than the 7th century BC. Fortunately the duplicates contain several passages which are destroyed on the large stele in consequence of the erasure of the seven columns. Thus we are able, in spite of the gaps in the large stele, almost completely to determine the contents of the Code.
II. The Contents of the Code.
The laws themselves are preceded by an introduction which was added later, after the law had already been published about 30 years. The introduction states in the first place that already in the primeval age, when Marduk the god of Babylon was elected king of the gods, Hammurabi was predestined by the gods "to cause justice to radiate over the land, to surrender sinners and evildoers to destruction, and to take care that the strong should not oppress the weak." Hammurabi’s Code is, indeed, conceived from this standpoint.
Farther on, the king lauds his services to the principal cities of Babylonia, their temples and cults. He appears as a true server of the gods, as a protector of his people and a gracious prince to those who at first would not acknowledge his supremacy. To be sure, this introduction is not entirely free from presumption; for the king describes himself as "god of the kings" and "sun-god of Babylon "! The hopes of a Saviour, which heathen antiquity also knew, he regards as realized in his own person.
The Code itself may be divided into 12 divisions. It manifests, in no way, a very definite logical system; the sequence is often interrupted, and one recognizes that it is not so much a systematic and exhaustive work as a collection of the legal standards accumulated in the course of time. Much that we would expect to find in a Code is not even mentioned.
1. The Principles of Legal Process:
The first five paragraphs treat of some principles of legal process. In the first place false accusation is considered. The unprovable charge of sorcery is dealt with in an especially interesting manner (section symbol 2). The accused in this case has to submit to an ordeal at the hands of the River-god; nevertheless nothing is said concerning the details of this ordeal. If he is convicted by the god as guilty, the accuser receives his house; in the opposite case, the accuser is condemned to death and the accused receives his house. The law also proceeds rigorously against false witnesses: in a process in which life is at stake, conscious perjury is punished with death (section symbol 3). Finally the king strives also for an uncorrupt body of judges; a judge who has not carried out the judgment of the court correctly has not only to pay twelve times the sum at issue, but he is also dismissed with disgrace from his office.
2. Theft, Burglary, Robbery:
The next sections (section symbol, section symbol 6-25) occupy themselves with serious theft, burglary, robbery and other crimes of a like nature. Theft from palace or temple, or the receiving and concealing of stolen property, is punished with death or a heavy fine according to the nature of what is stolen (section symbol, section symbol 6, 8). As it was a custom in Babylonia to effect every purchase in the presence of witnesses or with a written deed of sale, one understands the regulation that, in certain cases in which witnesses were not forthcoming, or a deed could not be shown, theft was assumed: the guilty person suffered death (section symbol 7). A careful procedure is prescribed for the case in which lost goods are found in the hands of another: he who, in the investigation, cannot prove his legitimate right, suffers death, just as a deceiver who tries to enrich himself through making a false accusation (section symbol, section symbol 9 ff). Kidnapping of a free child or carrying away and concealing a slave from the palace is punished with death (section symbol, section symbol 14 ff). As slavery had the greatest economic significance in Babylonia, detailed regulations concerning the seizing of runaway slaves and similar matters were given (section symbol, section symbol 17 ff). Burglary, as also robbery, is punished with death (section symbol, section symbol 21 ff). If a robber is not caught, the persons or corporations responsible for the safety of the land had to make compensation (section symbol, section symbol 22 ff). Whoever attempts to enrich himself from a building in conflagration is thrown into the fire (section symbol 25).
3. Laws concerning Vassalage:
The next paragraphs (section symbol, section symbol 26-41) control vassalage, particularly in reference to rights and duties of a military kind, concerning which we are not yet quite clear. Here also Hammurabi’s care for those of a meaner position is exhibited, since he issues rigid regulations against misuse of the power of office and punishes certain offenses of this kind even with death (section symbol 34). The crown had, in every case, authority in reference to estates in fee which a vassal could not sell, exchange or transmit to his wife or daughters (section symbol, section symbol 36 ff, 41); as a rule the sons took over the estates after the death of the father together with the accompanying rights and duties. The same was the case if, in the service of the king, the father had been lost sight of (section symbol, section symbol 28 f). The estates in fee of what we may call "lay-priestesses" (concerning whom we shall have to speak later) take a special position (section symbol 40).
A longer section (section symbol, section symbol 41 ff) is given to immovables (field, garden, house); for the economic life of the ancient Babylonians depended first of all upon the cultivation of grain and date-palms; the legal relations of the land tenants are exactly explained (section symbol, section symbol 42 ff): neglect of his work does not liberate the tenant from his duties to his overlord. On the other hand, in cases of losses through the weather, he is so far released from his duties that of the rent not yet paid he has to pay only an amount corresponding to the quantity of the product of his tenancy (section symbol, section symbol 45 f). Also the landowner with liabilities, who suffers through failure of crops and inundation, enjoys far-reaching protection (section 48), and his business relations generally are adequately regulated (section symbol, section symbol 49 ff). As the regular irrigation of the fields was the chief condition for profitable husbandry in a land lacking rain, strong laws are made in reference to this: damage resulting from neglect has to be compensated for; indeed, whoever had not the means to do this could be sold with his family into slavery (section symbol, section symbol 53 ff). Special regulations protect the landowner from unlicensed grazing on his fields of crops (section symbol, section symbol 57 f).
The regulations concerning horticulture (section symbol, section symbol 59-66) are similar; here also the relation of the proprietor to the gardener who had to plant or to cultivate the garden is carefully considered; the same is true with respect to the business liabilities of the owner. These regulations concerning horticulture are not entirely preserved upon the stele, but, through the above-mentioned duplicates, we can restore them completely.
Our knowledge concerning the legal relations between house-owners and tenants (section symbol, section symbol 67 ff) is less, because the parts dealing with these on the stele are entirely lost and can only be partially restored from duplicates. Reference is once more made to vassalage (section 71). The relations between neighbors are also regulated, but we cannot ascertain how in detail (section symbol, section symbol 72 ff). Concerning the precise rights of tenants and landlords we are also but slightly informed (section 78).
On account of the gaps, we are not able to determine how far the regulations concerning immovables extended. In the gaps there seem to have been still other laws concerning business liabilities. The number of missing paragraphs can only approximately be determined, so that our further enumeration of the paragraphs cannot be regarded as absolutely correct.
5. Trader and Agent:
The text begins again with the treatment of the legal relations between the trader and his agents (section symbol, section symbol 100-107); these agents are a kind of officials for the trader whose business they look after. While the Code discusses their responsibilities and duties to their masters, it also protects them from unjust and deceitful ones.
The taverns of Babylonia (sections 108-11) seem very often to have been the resort of criminals. As a rule they were in the hands of proprietresses who were made responsible for what took place on their premises (section 109). Priestesses were forbidden to visit these houses under penalty of being burned (section 110).
The next division (sections 112-26) deals especially with deposits, although some of its regulations are only indirectly therewith connected. Deceptive messengers are to be punished (section 112). The debtor is protected from violent encroachments of the creditor (section 113). Detailed regulations are given concerning imprisonment for debt (sections 114 ff). The creditor must guard himself from mistreating a person imprisoned for debt, in his house; if a child of the debtor dies through the fault of the creditor, the jus talionis is resorted to: a child of the creditor is killed (section 116). The members of a family imprisoned for debt have to be released after three years (section 117). If anyone desires to give something to another to be saved for him, he must do it in the presence of witnesses or draw up a statement of the transaction; otherwise later claims cannot be substantiated (sections 122 ff). Whoever accepts the objects is responsible for them (section 125), but is also protected from unjustified claims of his client (section 126).
The sections occupied with the rights of the family are very extensive (sections 127-95). Matrimony rests upon a contract (section 128) and presupposes the persistent fidelity of the wife (sections 129 ff), while the husband is not bound, in this respect, by regulations of any kind. An unfaithful wife may be thrown into the water, but the partner of her sin may also, under certain circumstances, suffer the penalty of death. Long unpreventable absence of the husband justifies the wife to marry again only when she lacks the means of support (sections 133 ff). On the part of the husband, there are no hindrances to divorce, so long as he settles any matters with his wife concerning her property, provides for the upbringing of the children and, in certain cases, gives a divorce-sum as compensation (sections 137 ff). Disorderly conduct of the wife is sufficient for the annulling of the marriage; in this case the husband may reduce the wife to the state of a slave (section 141). The wife may only annul the marriage if her husband grossly neglects his duties toward her (section 142). If a wife desires the annulling of the marriage for any other reason, she is drowned (section 143).
As a rule, polygamy is not allowed. If a barren wife gives to her husband a slave girl who bears children to him, then he may not marry another wife (section 144); otherwise he might do so (section 145). The slave given to the husband is bound to show due deference to her mistress; if she does not do this she loses her privileged position, but she may not be sold if she has borne a child to the husband (sections 146 f). Incurable disease of the wife is a ground for the marriage of another wife (sections 148 f).
Gifts of the husband to the wife may not be touched by the children at the death of the husband, but nevertheless property has to remain in the family (section 150). Debts contracted before the marriage by one side or the other are not binding for the other, if an agreement has been made to that effect (section 151 f).
Rigid laws are made against abuses in sexual life. The wife who kills her husband for the sake of a lover is impaled upon a stake (section 153). Incest is punished, according to the circumstances, with exile or death (sections 154 ff).
Breach of promise by the man without sufficient reason entails to him the loss of all presents made for the betrothed. If the father of the betrothed annuls the engagement, he must give back to the man twice the value of the presents (sections 159 ff); especially the sum paid for the wife to her father (Bab terhatu).
Matters concerning inheritance are carefully dealt with (sections 162 ff). The dowry of a wife belongs, after her death, to her children (section 162). Presents made during the lifetime are not reckoned in the dividing of the inheritance (section 165), apart from the outlay which a father has to make in the case of each of his sons, the chief portion of which is the money for a wife (section 166). Children borne from different mothers share the paternal inheritance equally (section 167).
Disinheritance of a child is permitted only in the case of serious offenses after a previous warning (sections 168 f). Illegitimate children borne from slaves have part in the inheritance only if the father has expressly acknowledged them as his children (section 170); otherwise, at the death of the father, they are released (section 171).
The chief wife, whose future needs had not been secured during the lifetime of her husband, receives from the property of the deceased husband a portion equal to that received by each child, but she has only the use of it (section 172). A widow may marry again, but then she loses all claim on the property of her first husband, in favor of his children (sections 172, 177); the children of both her marriages share her own property equally (sections 173 f).
The children from free women married to slaves are free (section 175). The master of the slave has only a claim to half of the property of the slave which he has acquired during such a marriage (sections 176 f).
Unmarried daughters mostly became priestesses or entered a religious foundation (Babylonian, malgu); they also received, very often, a sort of dowry, which, however, remained under the control of their brothers and which, on the death of the former, fell to the brothers and sisters, if their fathers had not expressly given them a free hand in this matter (sections 178 f). In cases where the father did not give such a dowry, the daughter received, from the property left, a share equal to that of the others, but only for use; those dedicated to a goddess obtained only a third of such an amount (section 180 f). The lay-priestesses of the god Marduk of Babylon enjoyed special privileges in that they had full control over any property thus acquired (section 182).
As a rule, adopted children could not be dismissed again (sections 185 ff). Parents who had given their child to a master, who had adopted it and taught it handwork, could not claim it again (sections 188 f). Gross insubordination of certain adopted children of a lower class is severely punished by the cutting off of the tongue (section 192) or the tearing out of an eye (section 193). Deceitful wet-nurses are also severely punished (section 194). The last paragraph of this section (section 195) states the punishment for children who strike their father as the cutting off of the hand.
9. Concerning Wounding, etc.:
The next division (sections 196-227) occupies itself with wounding of all kinds, in the first place with the jus talionis: an eye for an eye, a bone for a bone, a tooth for a tooth. Persons lower in the social grade usually accepted money instead (sections 196 ff). A box on the ears inflicted by a free man upon a free man cost the former 60 shekels (section 203); in the case of one half-free, 10 shekels (section 204); but if a slave so strikes a free man, his ear is to be cut off (section 205). Unintentional wounding of the body, which proves to be fatal, is covered by a fine (sections 207 f). Anyone who strikes a pregnant free woman, so as to cause a miscarriage and the death of the woman, is punished by having his daughter killed (section 210); in the case of a half-free woman or a slave, a money compensation was sufficient (sections 212 ff). The surgeon is responsible for certain operations; if they succeed, he receives a legally determined high reward; if they fail, under certain circumstances his hand might be cut off (sections 215 ff). Certainly this law was an effective preventive against quacks! Farther on come regulations concerning the fees of surgeons (sections 221 ff) and veterinary surgeons; to a certain degree the latter are responsible for the killing of an animal under their charge (sections 224 f).
10. Building of Houses and Ships:
Later, the building of houses and ships is treated of (sections 228-40). The builder is responsible for the stability of the house built by him; if it falls down and kills the master of the house, the builder is killed; if it kills a child of the house, a child of the builder is killed (sections 229 f). For any other damages incurred, the builder is likewise responsible (sections 231 ff). The regulations for the builders of ships are similar (sections 234 ff). The man who hires a ship is answerable to the proprietor (sections 236 ff). With the busy shipping trade on the canals, special attention had to be given to prevent accidents (section 240).
11. Hiring in General, etc.:
Already in earlier sections there were regulations concerning hiring (rent) and wages. This eleventh division (sections 241-77) deals with the matter more in detail, but it also brings many things forward which are only slightly related thereto. It states tariffs for working animals (sections 242 f), and in conclusion to this makes equally clear to what extent the hirer of such an animal is responsible for harm to the animal (sections 244 ff). Special attention must be given an ox addicted to goring (sections 250 ff; see below). Care is taken that unfaithful stewards do not escape their punishment: in gross cases of breach of confidence they are punished with the cutting off of the hand or by being torn (in the manner of being tortured on a rack) by oxen (sections 253 ff). The wages for agricultural laborers are determined (sections 257 f), and in connection with this, lesser cases of theft of field-utensils are considered and covered by a money fine (sections 259 f). The wages of a shepherd and his duties form the subject of some other paragraphs (sections 261 ff). Finally, matters having to do with hiring are mentioned: the hiring of animals for threshing (sections 268 if), of carriages (section 271), wages of laborers (section 273) and handworkers (section 274), and the hire of ships (sections 276 f).
The last division (sections 278-82) treats of slaves in so far as they are not already mentioned. The seller is responsible to the buyer that the slave does not suffer from epilepsy (section 278), and that nobody else has a claim upon him (section 279). Slaves of Babylonian origin, bought in a foreign land, must be released, if they are brought back to Babylonia and recognized by their former master (section 280). If a slave did not acknowledge his master, his ear could be cut off (section 282).
Here the laws come to an end. In spite of many regulations which seem to us cruel, they show keen sense of justice and impartiality. Thus the king, in an epilogue, rightly extols himself as a shepherd of salvation, as a helper of the oppressed, as an adviser of widows and orphans, in short, as the father of his people. In conclusion, future rulers are admonished to respect his laws, and the blessings of the gods are promised to those who do so. But upon those who might attempt to abolish the Code he calls down the curse of all the great gods, individually and collectively. With that the stele ends.
III. The Significance of the Code.
The significance of the Code has been recognized ever since its discovery; for, indeed, it is the most ancient collection of laws which we know. For judgment concerning the ancient Babylonian civilization, for the history of slavery, for the position of woman and many other questions the Code offers the most important material. The fact that law and religion are nearly always distinctly separated is worthy of special attention.
1. Hammurabi and Moses:
It is not to be wondered at that a monument of such importance demands comparison with similar monuments. In this reference the most important question is as to the relation in which the Code stands to the Law of Moses. Hammurabi was not only king of Babylonia but also of Amurru (= "land of the Amorites"), called later Palestine and Western Syria. As his successors also retained the dominion over Amurru, it is quite possible that, for a considerable time, the laws of Hammurabi were in force here also, even if perhaps in a modified form. In the time of Abraham, for example, one may consider the narratives of Sarah and Hagar (
Between the Code and the Law of Moses, especially in the so-called
One can hardly assert that the parallels quoted are accidental, but just as little could one say that they are directly taken from the Code; for they bear quite a definite impression due to the Israelite culture, and numerous marked divergences also exist. As we have already mentioned, the land Amurru was for a time Babylonian territory, so that Babylonian law must have found entrance there. When the Israelites came into contact with Babylonian culture, on taking possession of the land of Canaan (a part of the old Amurru), it was natural that they should employ the results of that culture as far as they found them of use for themselves. Under no circumstances may one suppose here direct quotation. Single parts of the Laws of Moses, especially the Decalogue (
2. The Code and Other Legal Systems: It has also been attempted to establish relations between the Code and other legal systems. In the Talmud, especially in the fourth order of the Mishna called Neziqin (i.e. "damages"), there are many regulations which remind one of the Code. But one must bear in mind that the Jews during the exile could hardly have known the Code in detail; if there happen to be similarities, these are to be explained by the fact that many of the regulations of the Code were still retained in the later Babylonian law, and the Talmud drew upon this later Babylonian law for many regulations which seemed useful for its purposes. The connection is therefore an indirect one.
The similarities with the remains of old Arabian laws and the so-called Syrio-Roman Lawbook (5th century AD) have to be considered in the same way, though some of these agreements may have only come about accidentally.
That the similarities between Roman and Greek legal usages and the Code are only of an accidental nature may be taken as assured. This seems all the more probable, in that between the Code and other legal systems there are quite striking similarities in individual points, even though we cannot find any historical connection, e.g. the Salic law, the lawbook of the Salic Franks, compiled about 500 AD, and which is the oldest preserved Germanic legal code.
Until a whole number of lost codes, as the Old Amoritish and the neo-Bab, are known to us in detail, one must guard well against hasty conclusions. In any case it is rash to speak of direct borrowings where there may be a whole series of mediating factors.
(Concerning the questions treated of in the last paragraphs refer especially to: S. A. Cook, The Laws of Moses and Code of Hammurabi, London, 1903; J. Jeremias, Moses and Hammurabi, Leipzig, 1903; S. Oettli, Das Gesetz Hammurabis und die Thora Israels, Leipzig, 1903; H. Grimme, Das Gesetz Hammurabis und Moses, Koln, 1903; H. Fehr, Hammurapi und das Salische Recht, Bonn, 1910.