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Forum LockedJustice and Hammurabi's Code

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    Posted: 28-Jan-2008 at 00:06
Does anyone know what were the similarities and the differences in the notion of justice in the earliest civilizations? How does Hammurabi's Code reflect the nature of that civilization? How does that Code compare with others?

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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 28-Jan-2008 at 01:30
The most significant role of Hammurabi's Code is the introduction of the principle of Talion i.e. the criminal should get exactly the same punishment as the victim has suffered.
 
That principal was later reflected in Bibilical laws "eye for an eye" and it is more or less reflected in all the early codes including the codes of European "Barbaric" Codes.
 
Another concept "judicum dei" or trial by ordeal also appears first in written form in Hamurabbi's Code.


Edited by Sarmat12 - 28-Jan-2008 at 05:36
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Aster Thrax Eupator Quote  Post ReplyReply Direct Link To This Post Posted: 28-Jan-2008 at 01:37
Most codes of these ancient peoples seem to be based on the premise of "an eye for an eye" (that moral maxim is itself a direct product of such civilisations) or based on some kind of abstract pseudo-religious and superstitious principles. We can't really use the word "justice" in relation to these people because the word only really becomes meaningfull in the classical age and those that suceeded it. Justice does implies something deontological - moral laws that are just ends in themselves - this kind of concept only really comes when we get personal religions of a usually monotheistic nature. Most of their laws may have been consequentialist/teleological, and appear to be fundamentally based upon the simple, primitive need for humans to co-exist. We've got to remember that these were very small communities in the beginings of civilisation (even Hammurabi's Babylon under the Amorite dynasty was still a pretty small affair in comparison to what we would meaningfully consider a largely functioning society) and thus many of the laws that are enforced are more for the simple, basic need for humans to co-exist on a peaceful basis. The whole concept of "god" and "fundamental" divinely ordained laws seem to only have been morally present comparitively recently. Like in most ancient cultures, although some moral laws may be offensive and hubristic to the gods or a certain god in question, religion on the whole isn't personal and thus religion has nothing to do with morality and morality is much more lax as it isn't tied in with an entire system of belief. For example, Neo-Assyrian kings and Aram-Damascan kings, when they met would pour libations to each others' gods, but this didn't actually imply that each set of gods represented a moral code for their people because gods were nothing to do with morality in that sense. Morals in this period came from the simple laws that common-sense provides us about how to live in a community - they are teleological and are based upon the way to keep people under the most control, to have the most stable society and to have the quickest results.
 
Here is the entire code - http://www.wsu.edu/~dee/MESO/CODE.HTM
 
For example, although - later on - many of the Greek tragedieans had morals behind their works (such as those of humility, the dangers of blood feuds and the dangers of hubris in Aeschylus's "Agamemnon"), these moral laws aren't set in stone insomuch as they haven't been socially forced upon the people of those societies - these moral laws to which they aspire are like Aristotle's virtues - fundamental aspects of personality which all humans admire in others, and it is from this basis that ancient morality appears to be based upon - primitive insticts being forcefully repressed by the need to live in a stable society.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 28-Jan-2008 at 05:34
Nope, on the contrary the divine origin of the laws concept is the exactly the product of the Ancient Eastern Civilizations. Note that even on the top of Hamurabbi Code's Stelle there is the god Shamash instructing him in the laws. The same concept later adobted in Bible, the God gives the laws directly to the people of Israel.
 
On the contrary for Romans and Greeks laws were just the products of human intellect. However, in the Middle Ages it changes due to the spread of Christianity that brought Biblical idea of divine inspired laws.
 
But going back to the origninal question what was the justice principal embodied in the Code?
 
It was still that simple "An eye for an eye" principal.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Aster Thrax Eupator Quote  Post ReplyReply Direct Link To This Post Posted: 28-Jan-2008 at 17:11
Quote Nope, on the contrary the divine origin of the laws concept is the exactly the product of the Ancient Eastern Civilizations. Note that even on the top of Hamurabbi Code's Stelle there is the god Shamash instructing him in the laws. The same concept later adobted in Bible, the God gives the laws directly to the people of Israel.
On the contrary for Romans and Greeks laws were just the products of human intellect. However, in the Middle Ages it changes due to the spread of Christianity that brought Biblical idea of divine inspired laws.
 
Surely you must be aware that the idea of religion being linked to morality is comparitively recent? Almost all ancient codes seem to be very similar in their makeup, and thus appear to be based on teleological moral maxims more than anything else - the idea of "moral laws" that one must practice to be a "good" person was meaningless then - although obviously certain religious practices demanded certain conducts, these weren't neccesarily practiced by the citizens in everyday life, and remember, as religion then went beyond Polytheism to actually believing in territorial and national gods, that would mean that morality would confict all the time when in actuality, it didn't - remember that Romans in particular often practiced several different religions and cults (although obviously the devout followers of the "eastern mystic" cults from Egypt, Syria and Asia minor did experience religion on a personal and moral level), and weren't connected morally to any of them - were this the case, the behaviours of the gods would become templates for moral actions, even in fundamentally animistic societes. Regard the example of Ptolemy II Philidelphius - who married his sister causing utter outrage in Egypt and amongst the Hellenistic world - if you are correct, then the behaviours of the gods would be moral templates and this would have been perfectly socially acceptable - however it wasn't, despite the fact that Cronos and Rhea were brother and sister, as were Uranus and Gaia, and as were Jupiter and Juno. It would appear that, from reading the ancient epics, we can clearly see that the gods are attributed with fundamentally human instincts superimposed from humans onto them rather than the other way around - religion is an invention of man, and thus man personified various aspects of the world to form animistic superstitions which were the basis for ancient religion. This would mean that, as we are using the earliest religions of civilisation as a template, that you almost believe moral laws to be a priori and to come from something else other than man? Remember man invented civilisation because of the needs to be in communities - moral laws fundamentally come from this need, and not from the explanation as to how the frightening and strange world of nature works, which was the basis of ancient religion. There is no connection between the two - Hammurabi's code is really a guidebook as to how to maintain a society rather than stating godly laws which are a later creation of the Judeo-Christian ethic. The synthesis of morals and religion comes much, much later.
 
Moreover, you can't attempt to seriously compare the complex and infinate principle of one supreme deity who is limitless - the alpha and omega - to the animistic, human-like gods that the ancient religions portray - moreover, the early Jewish religion was in all probability polytheistic, and in that respect is no different from what I am discussing above. The act of using Shamash to instruct him the laws is probably him appealing for the highest power that he knows - the sun god - to grant him the authority to make such laws, not the laws in themselves. Further, this section -
 
Quote then Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash, 6--->and enlighten the land, to further the well-being of mankind.
 
...Indicates my point - they are giving Hammurabi authority to enforce his laws and to construct a lasting society, they are not giving him the template to do such. Moreover, the statement "so that the strong should not harm the weak" is not neccesarily an example of a divine law, it could just be appealing to what makes society and civilisation different from savages - the co operation of humans on a grand scale to live together in communities. Because this is one of the most deep-set laws in the very essence of civilisation, it would appear to be a divine one, but we can see from the above extract and by looking at "divine" laws in this reading that morality would appear to be a prosteriori - and is based on the emprical evidence that humans have learn is needed to secure a working society. I don't want to troll here though (although I probably already have LOL) and have started discussing epistemology and ethics more than the topic - my apologies


Edited by Aster Thrax Eupator - 28-Jan-2008 at 17:20
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 10:37
I manage to agree with Aster that the actual origin of morality is from the need for humans to co-exist (and it would be nice if that were still the case). However I also manage to agree with Sarmat that the idea that morality is divinely prescribed comes from the ancient Middle East. 
 
In fact I don't see any real disagreement there. The belief in divine inspiration comes as a myth that accounts for existing moral rules.
 
In the extreme of course, the universe existed before the belief in its divine creation.


Edited by gcle2003 - 29-Jan-2008 at 10:39
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 12:49
Hummurabis codes and those of Ur-Nammu were much closer to modern justice systems than say those of Greece or the early part of Rome, since they contained a lot of what we expect of a modern legal system, including a system of substantive law and a system of procedural law. They also had appeals.
 
Incidentally morality is rather ill-defined here, Ur-Nammu for example justified his laws on the need to protect the strong from the weak, rather than any religious laws.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 15:27
We also need to bear in mind that Law is not equal to Morality per se. Yes, truly, sometimes Legal rules interchange with Moral rules, but most of the times Legal rules do not relate to Morality at all, or Moral standarts are complitely different from Legal standarts.
 
However, the feature of the ancient Middle Eastern Codes as well as Biblical code is that there law expressed the local moral rules to a larger extent. This kind of feature still exists in Islamic law, but doesn't exist in Western legal systems.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 15:31
^
That is not the feature of Islamic Law at all. Incidentally when you say "western systems" what do you mean? In the "west" you either have common law or civil law, each is rather different with a different view on morality, the common law system is distinguished by a lack of concern for morals and morality, while the civil law system seems to have a moral basis.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 16:04
It is true that law and morality are different things (the first is objective, the second subjective, for instance: law deals with what is legal and what illegal, and morality deals with what is good and what is bad), and I wish that the distinction was more clearly made in legislatures. Sadly though, politicians and people in general will go on trying to use the law to enforce their personal moral codes.
 
In the modern world, laws are indisputably laid down by human agencies, even though they may be decided upon on the basis of their morality. However even now, and much more in the ancient world, the meaning of the words has been so blurred - mostly because of the feeling that 'laws' ought to reflect morality in some way - that the distinction is in practice probably an over-fine one to draw.
 
So the reality probably goes something like: punishments are inflicted for various antisocial acts; those punshments become standardised, and eventually codified; because people grow up knowing that some things are punished, they take them to be 'bad' in a moral sense; thus a moral code develops.
 
The myth on the other hand goes: a divinity establishes what is right and what is wrong - establishes normative rules for behaviour; that defines a moral code; to ensure that these rules are followed, laws are written, and punishments inflicted for transgression.
 
Oversimplified, of course.
 
Specifically I think it's a misapprehension to say that Western legal systems do not express the local moral code. Take incest for instance. Or drugs and prostitution.
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 16:10
 
Originally posted by Sparten Sparten wrote:

^
That is not the feature of Islamic Law at all. Incidentally when you say "western systems" what do you mean? In the "west" you either have common law or civil law, each is rather different with a different view on morality, the common law system is distinguished by a lack of concern for morals and morality, while the civil law system seems to have a moral basis.
 
The English civil law consists primarily of two branches - contract and tort. Tort by definition covers cases where a wrong has been done to someone by someone else. Contract covers situations where one or other side has failed to deliver on its bargain, which is seen as a wrong thing to do.
 
Other minor civil law concerns, like inheritance and child welfare provisions are also very much concerned with fairness, which is a moral concept.
 
I would in fact have said that the criminal system is less concerned with morality (though morality does enter into it) than the civil law was.
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 16:11
Originally posted by Sparten Sparten wrote:

^
That is not the feature of Islamic Law at all.
 
Very strange point. One example.
Here is the link about punishment of adultery pursuant to Islamic law.
 
 
In Islam adultery is both immoral and illegal. The same approach existed in the Biblical law of the Old Covenant and Ancient Middle Eastern Codes.
 
In the modern Western legal systems there no any illegality in this. However of course it's critisized from the point of social morale but it doesn't have any relation to law at all.
 
 
Originally posted by Sparten Sparten wrote:

^
 Incidentally when you say "western systems" what do you mean? In the "west" you either have common law or civil law, each is rather different with a different view on morality, the common law system is distinguished by a lack of concern for morals and morality, while the civil law system seems to have a moral basis.
 
I mean both systems and both of them have very limited concern about Morality compare to Sharia law or for example Hindu traditional law.


Edited by Sarmat12 - 29-Jan-2008 at 16:16
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 16:52
Gcle2003,
I think you have mistaken "Civil Law" as in continental law and "Civil law" as in non-criminal private law.
 
Sarmat12,
I can give the near universality of anti-polygamy laws in the western system as a counter-example or the fact that Common Law requires there to be an elem en t of dishonesty in theft. I can't speak for Hindu law but I can for Common Law and Islamic Law. Common Law and common law philosophers like John Austin and HLA Hart both regarded "morality" as being more or less incidental to law, while Civil Law lawyers like Lon Fuller believed in the "inner morality of law". As for Islamic Law, well kindly tell me which school "is based on morality?" A lot of Islamic Law was taken ad vertium from Roman Law, and Persian Law. How can say Abu Hanifa's concept of trusts be based on "morality", or indeed Abu hanbals?
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 17:37
I didn't say that the Islamic law is complitely based on Morality. I already noted that the Law is not Morality per se and the Law can't be complitely based on morality a priori.
 
What I said is only that the Islamic law makes morals rules legal rules to a much larger extent than the Western legal systems and this is the fact.
 
I also noticed that that the law can be consistent with the local morality. The allowance of poligamy doesn't mean that the Islamic law is less moral in this regard, simply in this particular case the concept of poligamy is considered Moral in Islamic world unlike in the Western world. However, most of the basic fundamental moral standarts including the negative attitude to adultery are common for Islamic and Western world, so in this regard those standarts are legally embodied in the Islamic law to a much larger extent than in the Western Law Systems.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 18:42
Originally posted by Sparten Sparten wrote:

Gcle2003,
I think you have mistaken "Civil Law" as in continental law and "Civil law" as in non-criminal private law.
I'm not sure what you mean here. I specifically said English civil law, and what I said is true of English civil law. It may or may not be true elsewhere.
 
For instance, in English contract law oral engagements are just as binding as written ones, because sticking to one's word, when both parties have given it, is seen as a moral imperative. Moreover, in adjudicating on contract issues, the court, other things being equal, is bound to favour the party that did not write the contract, something else that goies to the heart of the fairness concept.
 
I'm not saying English law is unique in this respect. For instance in European (EU) law, it is necessary that both parties are able to read the contract in a language they are familiar with, which again incorporates the moral imperative of fairness.
 
I would have said, incidentally, that systems of contract law which require contracts to be written and signed are less morality-based than the English (Anglo-Saxon in general) system.
 


Edited by gcle2003 - 29-Jan-2008 at 18:45
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Aster Thrax Eupator Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 19:47
hmmm I think we should move this thread to the philosophy section now...
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 01:58
Originally posted by gcle2003 gcle2003 wrote:

Originally posted by Sparten Sparten wrote:

Gcle2003,
I think you have mistaken "Civil Law" as in continental law and "Civil law" as in non-criminal private law.
I'm not sure what you mean here. I specifically said English civil law, and what I said is true of English civil law. It may or may not be true elsewhere.
 
 
I think glce2003 is correct. At least in the US which is also a common law country all the law which regulates the disputes between individuals is called Civil as opposed to Criminal law which regulates the disputes between indivuduals and the state. In other words all the law that is not Criminal is Civil. I believe England probably has the similar concept.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 04:46
Okay terminology defination time here.
 
1) There are two great legal systems in the world today, Common Law, which is based on the legal system in England and Wales, and the Civil law, which is based on the system in use in Continental Europe, hence why its also called the continental law system.
 
2) In all systems, non-criminal, non-public law (that is which dose not have to do with public bodies) is typically called civil law. Another term used to avoid confusion with the above term is Private Law though again strictly speaking Private Law is a lot more expansive than civil law.
 
I'll (for once) defer to wiki here, since I can vouch for its effectiveness since I helped write some of these articles.
 
 
 
 
 
The Germans also take vacations in Paris; especially during the periods they call "blitzkrieg".
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 05:13

The point was that gcle2003 referred to the Civil law as limited notion within the English legal system. Another point is the in the US for example the notion which is used to refer to the law which not involve state is strictly Civil law, not Private law.

Private law is more appropriate for the Continental law system where it is widely used. On the contrary the use of this concept with the reference to the Common law could create confusion.

The traditional Common law didn't know any public/civil law division it's a new trend, perhaps triggered by the interaction with the continental law systems, though it's based in Common law on different principles than it's based in Continental law.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Brian J Checco Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 06:10
He put out the first "bartending" laws. Essentially, purveyors of bum hooch either lost limbs or were drowned. If only those laws were still in tact, some of us might not accrue the bum tabs we rack up...

"108

   If a tavern-keeper does not accept corn according to gross weight in payment of drink, but takes money, and the price of the drink is less than that of the corn, they [sic] shall be convicted and thrown into the water."

http://www.wsu.edu/~dee/MESO/CODE.HTM
 
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