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Code of Hammurabi
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Themes
The Legal Principle of Lex Talionis (“Eye for an Eye”)
The Code of Hammurabi provides what is perhaps the oldest and most famous appearance of a notable legal principle, usually referred to by its later Latin name: Lex talionis. The familiar adage “an eye for an eye” expresses this principle, and rests directly on the Babylonian precedent in Law 196 of the Code: “If a man put out the eye of another man, his eye shall be put out” (46). This law appears to represent an influential piece of jurisprudence in the ancient Near East, because it is echoed in Exodus 21: 24 of the Hebrew Bible and the Christian Old Testament. The Latin term, lex talionis, refers to a law of exact retaliation, and this form of retributive justice was advocated by some Roman writers like Cicero.
In the Code, the principle of “an eye for an eye” often required an exact balance of injuries. The “eye for an eye” example of Law 196 is immediately followed by a similar application in Law 197: “If he break another man’s bone, his bone shall be broken” (46). Other examples abound in the Code, such as in the laws governing the builders’ trade. If shoddy construction results in a collapse that kills the house’s owner, then the builder will be executed, or if it kills the owner’s son, then the life of the builder’s son is forfeited.
The principle did not merely apply to retributions in kind, however. The spirit of lex talionis was eventually extended to cover retributions of exact value, even if not of exact kind, and this expansion can be seen even within the Code. That is to say, instead of demanding the exact same loss as the punishment for an offense (an eye for an eye, killing an enslaved person for the death of an enslaved person, etc.), the Code made some provisions for a loss to be covered by financial compensation considered equal to the extent of the original loss. This application of the legal principle can be seen in the redress of physical injuries toward lower classes, which underscores the widely varying legal protections in Babylonian society. If a free-born man puts out a freedman’s eye or an enslaved person’s eye, for example, his own eye will not be put out; he will simply pay a fine (and in the case of the enslaved person, the fine would go to enrich the enslaver, not to the victim of the assault).
Despite the evident injustice in the inequal application of the principle to different social classes, the law of lex talionis was in some respects a step forward for jurisprudence in the ancient Near East. Where many earlier, less comprehensive law codes focused on the remuneration of victims, Hammurabi’s Code includes the other side of justice: Penalties, including corporal punishment when appropriate, for the offender. While the corporal punishments in the Code would now appear excessively brutal to modern readers (making broad use of executions and chopping off hands), they established the idea that offenders would not only be subject to payments, but to an equivalent injury to the one they caused, enacted upon them by the state.
The lex talionis principle may not still be used in its most straightforward application of a physical injury for a physical injury, but its broader sensibility of matching a painful punishment (like imprisonment) to the scale of one’s offense is still at the core of modern jurisprudence.
The Presumption of Innocence and the Importance of Intention
The Code of Hammurabi is important in the history of jurisprudence for many reasons, among which are its introduction of two core principles of systems of justice: The presumption of innocence and the importance of intention. Previous legal codes, like that of Ur-Nammu from the late 3rd millennium BCE, were usually just a simple list of casuistic laws (“if…then…”) applying a monetary fine to a particular offense. While Hammurabi’s Code includes many laws formatted in that same way, it also includes a great deal of mitigating context to its treatment of certain situations. Most importantly, the Code provides rules for raising a legal defense against accusations.
The first way in which a legal defense is empowered is by the presumption of innocence. This presumption is implied in the Code, and not directly stated as a legal principle, but it is evident in several places. For example, in Law 9, which deals with the possibility of theft in a situation where one discovers a lost item in another person’s possession, the latter person (the one accused of theft) is permitted to bring witnesses to testify to how they legally acquired the item: “If the person in whose possession the thing is found say, ‘A merchant sold it to me, I paid for it before witnesses’ […] the judge shall examine their testimony” (30). Not only are defendants allowed to bring witnesses in certain cases, but accusers must provide proof of their claims, as shown in Law 127: “If any one ‘point the finger’ [accuse] at a sister of a god or the wife of any one, and cannot prove it, this man shall be taken before the judges and his brow shall be marked” (38). With these requirements, someone falsely accused can mount an orderly legal defense and have confidence in a favorable outcome.
The second way in which a legal defense is empowered is by giving legal weight to the importance of intention. In this way, even if a person is guilty of the offense, they can appeal to the court that they did not commit it willfully, and thus merit a lighter sentence. This does not apply in all cases, since some offenses, like a builder who constructs a house with shoddy workmanship, causes injury specifically because of his negligence and lack of intentionality. In a few cases, however, the Code allows for considerations of intention, as in Law 206: “If during a quarrel one man strike another and wound him, then he shall answer, ‘I did not injure him wittingly,’ and pay the physicians” (46-47). Thus, if a person in a fight can establish that the injury was not inflicted with grave intention, then that person would not fall under the lex talionis principle of receiving a similar injury in kind, but would simply pay for the victim’s care.
The introduction of these two principles, though still understated in the Code, mark a major turning-point in the history of jurisprudence. The presumption of innocence and the importance of intention undergird the concept of justice in most societies and cultures today, thus providing protections under the law for those accused of crimes.
Social Position as a Measure of Legal Rights
Despite the advancements in jurisprudence represented in the Code of Hammurabi, it still represents the justice system of a society that did not recognize equal protections under the law for all persons. Rather, legal protections operated on a sliding scale based on one’s position in society. The main considerations for that scale had to do with class and gender, usually considered independently of one another.
When it comes to the social classes addressed by the Code, three are mentioned most frequently: Free-born Babylonians (usually simply referred to in translation as “any one” or “a man”), freedmen, and enslaved persons. There are a few other distinctions of roles as well, such as the differentiation between landowners and tenants or renters, but in terms of social class, the three above are the main categories under consideration. Most of the Code’s strongest legal protections are given to free-born Babylonians (and especially, in certain cases, to those of high standing). They receive both the highest remunerations for offenses against them, as well as the strictest punishments levied against their offenders. Freedmen (former enslaved persons) fall in the middle of the scale, with offenses against them still redressed by the court, but at a lower rate.
Enslaved persons receive the fewest protections. While any injuries to an enslaved person are a matter for consideration by the court, most decisions in their favor would accrue to the benefit of their enslaver, not to themselves, as they are considered property. This distinction is perhaps most easily seen in Laws 196-199, which dictate the law of exact retribution for injuries: If a free-born man seriously injures a man of equal status, the former will incur the same injury on himself; if he injures a freedman, he will pay a fine of one gold mina to the freedman; and if he injures an enslaved person, he will pay half of the enslaved person’s value back to the enslaver.
Beyond one’s class, one’s gender also factors into how the legal protections of the Code apply to one’s situation. As in most ancient Near Eastern societies, Babylon employed a patriarchal system of family relationships, and this carried over into their legal system. Most (but not all) property rights were assigned to men, and so all the laws governing the use of property tend to address themselves exclusively to men. Women are largely addressed in the Code in the context of marriage and family law, and the legal status of children only arises in questions of property, as of the status of an enslaved person’s children or the division of property by a man’s children after his death. Children also appear in considerations of crimes when they are the victims, such as in cases of kidnapping, rape, or the death or injury of a man’s son or daughter. In such cases the legal solution is generally directed toward the redress of the father or of the household in general.
Nevertheless, the mere fact that the Code addresses women and children at all was a major development in the history of jurisprudence. Granting them legal protection against various accusations and injuries granted them a security of position that was not always the case in many ancient societies. For example, the Code provides for a woman’s legal defense in accusations of adultery, which in most ancient societies tended to put women in a very precarious position. As Law 131 shows, such women had robust protections in Babylonian law: “If a man bring a charge against one’s wife, but she is not surprised with another man [that is, caught in the act of adultery], she must take an oath and then may return to her house” (39). The Code’s provisions for women and children—addressing cases in which they could retain their own portion of a household’s property, for instance, or ensuring their continued care after the husband or father was killed or captured—established a new level of stability in society.
The Code of Hammurabi certainly does not rise to the level of most modern systems of jurisprudence in their attempts to establish equal protections for all. The Code’s protections were decidedly unequal if one were a freedman or an enslaved person, and certain types of rights were not held by women and children at all. Nevertheless, while the protections offered were unequal, the mere fact that the Code offered protections to women, children, and enslaved persons is noteworthy, making the Code a remarkable document for its time.
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