You Could Look It Up (3 page)

It is one of the oldest legal works in the world. The ancient story goes back thousands of years, but the modern story begins in the nineteenth century, when the French government began a series of exploratory digs in Iran. Modern Khuzestan—known in antiquity as Susa or Shushan, the city of the Persian kings—first attracted archaeologists’ attention in 1810, when John MacDonald Kinneir believed he had identified Susa. The ruins, Kinneir wrote, “consist of hillocks of earth and rubbish, covered with broken pieces of brick and coloured tile… . These mounds bear some resemblance to the pyramids of
Babylon
.”
1
But nineteenth-century Persia was a dangerous place, and several attempts to explore the site ended badly.

After a series of failed expeditions, Jacques de Morgan took over what the French government was calling the Délegation en Perse in 1897. De Morgan had trained as a mining engineer and worked in Transylvanian gold mines and Caucasian copper mines. His real passions, though, were geology and paleontology. When he was thirty-four he was named director of Egypt’s Service des Antiquités, and he did pathbreaking work on Egypt’s prehistory. When he arrived in Persia, de Morgan put another enthusiast for ancient Egypt, Gustave Jéquier, in charge of the daily operations, and the dig began on December 18, 1897, nearly ninety years after the site was identified. It was worth the wait: the location proved richer than anyone expected.

In late December 1901, on a dig led by Jéquier, a shovel hit a large piece of diorite. In the next few days more pieces turned up, and the workers were able to assemble the fragments into a large round pillar 7’ 4
”
(225 cm) high and between 5’ 4” (164 cm) and 6’ 2
”
(190 cm) in diameter.
2
And though to all appearances it was an architectural rather than a bibliographical find, it turned out to be a reference book of sorts—one of the oldest known in the world.

On the stele, written in the cuneiform characters used throughout ancient Mesopotamia, were 282 laws. Ancient monuments are often badly degraded by the time they are excavated, but the stone on which these laws had been carved was uncommonly hard, and the inscription was still clear. Although the stele was broken into three pieces, they fit together almost perfectly, with no significant gaps. It is not in perfect shape—a substantial part of the text is missing—but the damage was
caused not by time but by intentional human action. On the front, the last five columns have been erased; that part of the monument probably contained around thirty-five laws, some of which can be supplied from other sources, but others are now irretrievably lost. The surviving 282 paragraphs, though, are the most complete collection of laws we know of from the ancient Middle East, and they were compiled at the command of Hammurabi, the sixth king of Babylon and the first Babylonian emperor, who ruled for more than forty years in the early eighteenth century
B.C.E.
When he assumed power—in 1792
B.C.E.
, according to the usual calculation—Babylon was a small city-state. His father, who ruled before him, began to build it up, but Hammurabi turned Babylon from a minor outpost into the administrative center of an enormous Mesopotamian empire. He did it largely by codifying the legal system, and he did that largely by creating a work of reference.

At first the discoverers were not sure what to make of the pillar. It prominently bore the name Hammurabi, king of Babylon, but the find was in Susa, in the rival kingdom of Elam, about 230 miles (370 km) from Babylon. The German scholar Friedrich Delitszch finally solved the puzzle. Even before the stele was discovered, he had published a learned article,
“Zur juristischen Litteratur Babyloniens”
(“On Babylonian Legal Writing”),
3
in which he suggested that such a sophisticated empire, with uniform laws across the whole of Mesopotamia, could not
have functioned without a thorough legal code—and he hinted that it might yet survive somewhere. Thinking about the name Code Napoléon, he began calling this strictly hypothetical legal compendium the Code Hammurabi. And now de Morgan’s team had found the very thing Delitszch had predicted. As James Pritchard notes, “Rarely in the annals of archaeology has the excavator been able to oblige his colleague the philologist by producing from the earth the very monument which the latter had suspected to have been in existence.”
4
Eventually the mystery of the origin was solved. The Code did not originally come from Susa or anywhere else in Elam. It probably came from Sippar, about 19 miles (30 km) from Baghdad. In the year 1168
B.C.E.
, many hundreds of years after Hammurabi’s death, it was carried to Susa by the Elamite king Shutruk-Nahhunte.
5

Word of the discovery spread quickly. De Morgan settled on Jean Vincent Scheil, a member of his team, to make the work public, and in just three months Scheil translated and published the
Code
—blazingly fast by scholarly standards.
6
By 1902, every archaeologist and historian of the ancient world was paying attention.

The
Code
falls into three sections: an introduction (entries 1–5), laws regarding property (6–126), and laws regarding persons (127–282). The sections on property and persons are each subdivided into three groups.
7
The introduction opens with an invocation of the gods and an assertion of the emperor’s authority:

When Anu, the supreme, the king of the Anunnaki, and Bel, the lord of heaven and earth, who fixes the destiny of the universe, had allotted the multitudes of mankind to Merodach, the first-born of Ea, the divine master of Law, they made him great among the Igigi… . Then Anu and Bel delighted the flesh of mankind by calling me, the renowned prince, the god-fearing Hammurabi, to establish justice in the earth, to destroy the base and the wicked, and to hold back the strong from oppressing the feeble.
8

The
Code
laid out the source of justice itself, the powers granted to the great Hammurabi, and the reason he was spelling out the laws. Then it introduced more specific laws. The laws themselves were not
original with Hammurabi, and many of them had been in circulation for centuries. The contract law, for instance, goes back at least to the time of Ur, and some of the laws were originally written in Akkadian, in use centuries earlier. Plenty of legal situations must have arisen in real life that are not addressed at all. This means we are dealing not with a new system of laws, nor with a comprehensive code of all the laws of Babylon, but a digest of earlier legal writing, edited and reorganized to make it more suitable for finding what the reader needs. In other words, a reference work.

The
Code of Hammurabi
spelled out guidelines for dealing with matters of civil law, including relations between landowners and tenants, between buyers and sellers, and between masters and slaves. Laissez-faire economics was not the goal: commerce was strictly regulated. Hammurabi sets the fees for ox drivers and the liability for shoddy contracting in new houses. The interest charged on both money and grain was 20 percent. Doctors’ fees varied for different social classes: for a major operation, the ratio of fees was 10 for the rich, 5 for the middle classes, and 2 for the poor.
9
Even very specific situations are covered in detail, as in law 48:

If a man is liable for interest, and the god Adad has flooded his field, or the harvest has been destroyed, or the corn has not grown through lack of water; then in that year he shall not pay corn to his creditor. He shall dip his tablet in water, and the interest of that year he shall not pay.
10

Or, even more strangely, law 108:

If a (female) wine-seller has not accepted corn as the price of drink, but silver by the grand weight has accepted, and the price of drink is below the price of corn; then that wine-seller shall be prosecuted, and thrown into the water.
11

A long section covered the criminal law. There were rules for people who cast wicked magic spells and for those who bore false witness in court. Those who stole from temples, or even received the stolen property, were condemned to death. Death was also the penalty for doing
business with a child or a slave without the consent of a parent or master. One who stole an ox or a sheep had to repay thirty times its value, unless he was poor, in which case he had to repay ten times its value—or if he was really poor, and could not afford the fee, in which case he faced the death penalty. There were even rules for judges who reached the wrong conclusion in convicting someone.

Most notorious is the
lex talionis
, usually summed up as “an eye for an eye.” The Latin
talio
refers to a punishment that is identical to the offense, so the
lex talionis
is a law of retribution. It appears most famously in Exodus 21:23–25: “And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” (Exodus has many similarities with ancient Babylonian law, leading to extensive investigation of whether there was any direct influence.) The
Code of Hammurabi
has a series of laws that enact retribution on criminals:

195. If a son has struck his father, his hands shall be cut off.

196. If a man has destroyed the eye of a free man, his own eye shall be destroyed.

197. If he has broken the bone of a free man, his bone shall be broken.
12

The
Code
, though, was hardly a model of enlightened social thinking—these were the penalties for blinding or breaking the bones of free men. Poke out a poor man’s eye or break a poor man’s bone, and there was merely a hefty fee; do it to a slave, and the penalty required only part of the cost. Retribution is not always directed at the guilty party:

209. If a man strike the daughter of a free man, and cause her fœtus to fall; he shall pay ten shekels of silver for her fœtus.

210. If that woman die, his daughter shall be slain.
13

Passages like this are a reminder of why the study of ancient law can be so rewarding: nowhere else are the mores of a society on display more
clearly. Legal codes do not set out to reveal the deep unconscious of a society; they are concerned only with regulating real-life legal conflicts. But they tell stories whether they want to or not. Here we see the world as the Babylonians saw it: some lives are worth more than others; all life is cheap; and if one life is not available for forfeit, another will do just as well.

Another legal code is among the oldest written documents in Western civilization, but still more than a thousand years younger than the
Code of Hammurabi
. Historians confidently attribute a legal code to an ancient Athenian named Draco, and they say his laws were established in 622 or 621
B.C.E.
, but when pressed, they admit they are not even sure whether Draco existed, so intertwined are the historical figure and the legend.
14
The stories tell us that Athens at the time had no written laws, and Draco—who may have been an Athenian official already, or who may have been appointed specifically for this job—was charged with crafting a set of laws to govern the polis.

The result was a set of laws to cover various responses to both just and unjust killings. Manslaughter was to be punished with exile. In cases of homicide, kings were charged with judging whether the planner or the actual killer should face punishment. If some in a family were in favor of reconciliation, anyone who objected was able to veto the proposed penalty and call for retribution.
15
The actual law was a sophisticated piece of legislation, with several sections covering twenty or more provisions. What is remembered about Draco’s laws, though, is not their complexity but their brutality. An Athenian named Demades said “Draco’s laws were written in blood” rather than ink, because the penalties for almost all violations were so harsh.
16
“The distinguishing Character of
Draco
’s Laws,” wrote an eighteenth-century historian, “was
Severity
, or rather
Cruelty
; for every little Offence, and even Indolence itself, was by him punished with Death, for which he assign’d this Reason;
Small Faults seem to me worthy of Death, and for the most flagrant Offences I can find no higher Punishment
.”
17
Legend held that Draco would carry out punishments even against inanimate objects: a statue that toppled and killed a man was put on trial and banished. (History does not record the statue’s defense.) Though they were called “the noblest and most hallowed
[laws] of all … forever unaltered,”
18
they became unpopular, though they managed to last three centuries almost unchanged.