.. It is excellent to have giant’s strength but it is tyrannical to use it like a giant…
Is it a question of legal over-reach or legal activism that has kept the legal scientist throughout the world baffled as to what significant contribution Code of Hammurabi can be to world jurisprudential development is something that needs to be answered in time.
Traditional approach has been quite native in sense; we say this because when sources of law are talked about the traditional approach limits itself to three basic postulates, namely:
(b). Legislation, &
No doubt ‘customs have the force of law’, legislation as the source of law establishes the law drafting supremacy of Parliament and State Legislatures and precedents render effectuality to judicial decisions.
But, if traditional approach is so wide and comprehensive then why do we criticise it—attempt here is not to criticise but to analyse the traditional approach in regards to legal reform which modern approach offers.
Modern approach associates itself with no particular names of jurists or legal scientists but with the culture and trend in regards to which present day judgements are delivered and appraised. Two basic postulates that hereby come up are:
1. God is great, religion is not.
2. Good laws have their source in bad morals. An unjust law is no law.
Code of Hammurabi:
When legal antecedents are talked about, in both spheres of civil jurisprudence and criminal jurisprudence the name that comes up with great efficacy is that of ‘Code of Hammurabi’.
Hammurabi was the sixth king in succession in the Babylonian state, he ruled for more than four decades, approximately 42 years, from 1792 B.C. to 1750 B.C.
Hammurabi’s passion for law was self-evident. He nomenclatured a set of 282 rules, which according to him were rules of universal acceptance.
These rules covered almost all spheres and arenas of civility & criminality from liability in regards to tort to capital punishment, from contractual liability to punishment for adultery. These rules also nomenclatured rules as to trade, commerce and intercourse and attempted to craft out difference between a simple hurt and a grievous hurt—between a murder and culpable homicide.
Legal scientists also apprehend that this code is the source in regards to which the Old Testament bears its existence, and it is well acknowledged that the New Testament bears its existence to Old Testament.
In no way then can the importance of this code be overlooked.
Contribution of this code to modern day jurisprudential antithesis:
The doctrine of ‘the divine rights of the king’ is well acknowledged in this code. If analysed this code regards the king as man of Godly representation, who can do no wrong. This code views the King as the sovereign and flow of power from the ruler to the subjects. It is a matter devoid of any doubt that theories and analogies that Bentham and Austin supported- emanated from this very code i.e. theory of ‘the command of the sovereign’.
Hammurabi through this code signified his immense faith in codification of laws and making the public know the law before punishing them for its breach. Once a law was made public it was ipso facto held that public knows it and shall be obeying it. Here the modern legal scientist point out that it was this very code that propounded the theory in regards to ‘ignorance of law is no excuse’.
‘Equality before law’ was well regarded by Hammurabi however there are some speculations in regards to this, but almost all legal scientist agree that Hammurabi’s more than four decade rule over Babylon was possible because of his effectual implementation of this rule.
‘Presumption of innocence of the accused’ is the regal premise of criminal jurisprudence; this premise owes its existence to this code.
Need of evidence for corroboration of facts was essential in court of Hammurabi, this premise is still existing in present day courts.
So far as theories of punishments are concerned, the trend has been revolutionary – from retribution and deterrent theories of punishment to reformative and rehabilitative theory of punishment. Hammurabi believed in ‘an eye for an eye and a tooth for a tooth’, this belief no more exists in present day jurisprudence. The present day context monologue is ‘every saint has a past and every sinner has a future’.
In the much revered book—the criminology and criminal administration, author goes in length to quote many national – international authors to establish the fact that concept of victimology first came forth in this code.
It is doubtless to say that present day legal oration owes greatly to Code of Hammurabi – But,
The question is the same as I posed in the beginning of the monologue— Is it necessary to quantify, systemise and analyse the past to forecast the future?
The answer is yes.
But, the one who follows the blind is no less a blind. When traditional approach said that customs have the force of law, it was the modern approach that said that customs to have the force of law must have elements of uniformity, consistency and compliance since time immemorial.
When traditional approach said that legislation is the source of law, it was the modern approach that said- each legislation should have a preamble that mentions its objective, scope, extent and applicability, each legislation must adore the spirit of salus populi est suprema lex.
When traditional approach said that precedent is the source of law, it was the modern approach that carved out the difference between ratio decidendi and obiter dicta.
Code of Hammurabi is vital pedestal in channelizing the modern day jurisprudential thought but its infirmities cannot be ignored – from element of brutality (chopping off the hands of a person who committed theft) to believe that even wrong occasioned by king is right, king is above ordinary human inefficiencies to belief in oracle sciences – spells and magic.
*Disclaimer: All thoughts and opinions expressed are reflection of author’s view on the particular topic that is subject to review in light of apt arguments. Efforts have been made to zero down all personal biasness. All criticism in all forms is most welcome. Author cherishes your prestigious reading.
Regards: Shivam Goel.