Hammurabi and His Ancient Babylonian Legal Code

Much is made in history texts of the ancient legal code ascribed to Hammurabi, the babylonian king. This is the law code associated with the most often popular God "Marduk," chief God (in most years of the Babylonian empire -- he was ousted briefly on at least one occasion). It contains a fair number of statutes [282] covering a respectably wide variety of situations one might encounter. But the public university praise for Marduk and the code of his servant, always goes too far, and leaves almost nothing to say of its clearly superior counterpart in ancient history, which is the law of the Lord. This is not to suggest that university professors have figured out that all legal codes are covenantal by nature, and thus have a god as their ultimate example and norm. Most are not nearly that self-conscious.

But some people are.

Here is one regulation from Hammurabi's code, which highlights its clearly inferior status when compared with the Word of God, showing its man-made and flawed character.

[25] reads: "If fire break out in a house, and some one who comes to put it out cast his eye [looks] upon the property of the owner of the house, and take the property of the master of the house, he shall be thrown into that self-same fire."

The most basic principle of justice recognized in the ancient world, and it was generally recognized, was called (and still is thanks to the Romans) "Lex Talionis." This is the principle of reciprocal judgement, "eye for eye, tooth for tooth, and life for life."

Now one can witness that HC #25 aims at this by refering to the "self-same fire." The idea intended is that if he has stolen from a man facing misfortune from a fire, who is his master, then he should receive punishment from the same fire which brought the misfortune he has tried unlawfully to exploit.

The simple problem with this prescription comes from the fact that the punishment does not fit the crime. In other words, the reciprocity (back and forth of mutual correspondence) cannot just come from any one part of the law, with any other part. This is a mismatch between several features of the crime in commision which must be studied separately to enjoin the proper response to this legal attempt as restitution.

First, this law involves an injustice in the form of a servant stealing from a master -- insubordination as well as theft.

These can and should be treated separately.

Second, There is the fact that this crime seeks to exploit one who has the right to trust his servant, who has secured his loyalty over the years. It involves a measure of the betrayal of trust.

Third, we have the simple fact of theft, without reference to the market value at all of what was in fact stolen. This is a crucial omission.

So here we can list then the four elements of the crime:

1. Exploiting a person at a disadvantage

2. The betrayal of trust (disloyalty)

3. Insubordination

4. The theft itself, meaning the unlawful taking of an item(s) of a certain market value

By ignoring the fourth, the law has implied that the first three elements require the death penalty regardless of the value of what is taken.

And finally, it seeks to make the method of execution (the judgment is death, its appointed means is fire) a reflection of element #1 ONLY, since the source of his disadvantage is in this case the fire. This could have required death by stoning instead, or by some other means. Fire is the method employed, and this can only be due to element #1 and the application of Lex Talionis to it exclusively.

Critical-Legal Analysis of this stricture:

1. It fails to take into account the very nature of the problem it seeks to address: the misfortune of the master on account of propery damage to his house and belongings therein.

For instance, in the ancient world of Hammurabi's time, a slave would cost about 15 pieces of silver. This was not cheap. To simply destroy the servant by fire would ONLY ADD to the master's property loss (slaves were reckoned as property then).

What good does it do, after losing your house to ruin what might be the one asset of real value you have left? Given their own assumptions, the Bablyonians ought never to have recommended this course of action, for it seeks to restore a loss by making it worse (why not shoot off your left foot while your at it?).

This shows that babylonian law was NOT restorative in character as is the Law of the Lord.

In contrast to this, the Bible would require two things for punishment and restoration. First, a certain number of stripes -- the sting of the whip on the back -- not facial beatings or some other cruel and unusual form of punishment. The maximum number allowed is forty, and the punishment in number would depend on circumstantial features like whether this was the first offense of theft by the servant, etc.

The second form of punishment would be restoration, whereas the first is both punitive and didactic. He is being taught not to steal again.

This means the servant would be put to work specifically earning wages double the amount of the value taken by what we call today "garnishing wages." The fact that in Babylonian society the man might have to do total slave work would remove this possibility. But in Hebrew society, slaves earned money for their masters AND themselves.

The slave's money was to be given him upon his release, with a liberal addition from a generous master. Slavery was not for life in biblical law either, as with other societies. The jubilee law guaranteed that most slaves would be freed in 7 years (slaves of war no more than 50, but often far less depending on when they became slaves relative to the next jubilee year) having learned a new marketable skill set from the master for whom he worked, and with sufficient money, some earned, some charitably given by the master.

If you were a slave, which society would you prefer? If you were the master, which legal code would you want -- the one that ruins your chance of recovery (along with your house), or the one that repays twice the value of the money stolen, and teaches the servant not to do it again?

The far better option -- the Law of the Lord -- aims at restoration as the primary object of its judgments in the case of non-capital crimes, and even then provides for the possibility of restoration in some cases. Not so with Babylonian law. Recall the biblical account of Shadrach, Meschach and Abednego. If one failed to comply with Nebuchadnezzar's command to bow down to the idols he had created, he also would be thrown in the fire. Babylonians just had a thing for fire.

The Bible avoids this as a punishment except in very extreme cases (depending on one's interpretation, perhaps in all cases). The case of witch-burning seems clearly to be a command not to give a proper burial to the witch (after stoning), and then cremate the body instead. This was seen as an extreme denigration to the person so disposed of, as it symbolized hellfire in the afterworld. When even wicked king Saul's body was abused, some of the men of Israel valiantly recovered it so that it avoided leaving it to be eaten of animals in the open.

Burial after death stems from the Adamic curse, "from dust were you taken, and to dust shall you return." This implies that burial is an ordinary dignity to be afforded all men, so that we do not witness the unpleasantries above ground of what happens to our loved ones post-mortem. They are then hidden from sight so that the living, having grieved properly, can move on with their lives. Burning the most sinister aims to display damnation to come for the most hardened rebels against God, and for no others. These are highly exceptional.

Thus HC #25 fails to restore what injustice was perpetrated, and instead aggravates the condition of the impoverished man, and leaves no room for repentance of the man condemned to death in the most cruel and unusual fashion for a mere thief. It also allows for no mitigating circumstances, as with biblical law (which leaves the number of stripes up to the victim -- in this case, the master -- and the judges -- as the two parties shall agree.

Thus, for all the vainglorious praise the servant of Marduk receives from men for his unjust laws, the hamurrabic deficiencies show by way of contrast that much more is praise, glory and honor due the God of the Bible. For the law of the Lord is perfect, RESTORING the soul -- not tossing it in the flames for a potentially minor infraction -- and the judgements of the Lord are altogether righteous. They properly restore what is due the victim, promote the life and welfare (to whatever extent possible) even for the perpetrator, seeking his reformation and restitution, and they promote the greatest total productive and money value to the economy as a whole.

Every servant you kill is one laborer for a lifetime lost, who could have produced a large sum of economic value (shekels, minas, whatever) for both himself and others. Any king who deliberately decapitalizes his own economy tears his house down with his own hands. But the Lord is not like Hammurabi, nor any other king. Will not the judge of all the earth do what is right?

By way of sum then, the Bible handles the first three elements listed above as what one uses to calculate (with other features like repeated crimes or first time offenses) to figure the number of stripes to be administered to the man's back.

The fourth element is used to calculate the sum of twice the value of what was stolen, so that what the perpetrator intended to happen to the victim, first, does not happen to the victim (the money is restored to him) and then, second, what damage the perpetrator sought to inflict on the victim exactly comes upon the perpetrator instead. That is lex talionis in proper balance, only with respect to the market value of what was stolen, not the aggravating NON-economic factors and circumstances. That is called "justice."

It is victim oriented (seeks the good of the victim before that of the perp), and it is restorative in nature, not merely punitive without respect to the cost to everyone in society. The underlying principle then behind this is: you shall love your neighbor [just] AS yourself. For with the measure you use [against others] so will it be measured to you. The innocent must go free, and ONLY the guilty must pay. Society is not the perpetrator when a man steals. The man is.

Praise the Lord, for He is good -- even in justice and judgment -- for his mercy endures forever.
Marduk? Not so much. We can toss his images and legal code in the fire, and -- as demonstrated (granted, in brief only) society will be the better for it.

My utterly unscientific postscript.

Babylon is destroyed in fire, in the book of Revelation (see chapter 19). The probably reason for this is its UNJUST reliance on heavy-handed pseudo-justice for crimes better handled by far lesser punishments. Thus, in its overreliance on unjust methods, God chooses (again by Lex Talionis) to dissolve this false religion with its foolish legal principles in the fervent heat.

God is Just, and Wise beyond reckoning. You have His Word on it.

[But someone will say, of course He would. But the obvious answer is that since it is true, what else could He say since He cannot deny perfection? The final authority must testify of the final authority, else the testimony would be suspect and fallible].