Note 129.1 — Chapter VII · The Deities as Social-Powers.

Some parts of it are missing, but we may be allowed to pass a temporary judgment on that which is preserved, and which appears to be the greater part of the whole corpus.129.1 The code, as I have mentioned, is inspired by the god, safeguarded by the god, and the legislation is in that sense theocratic; but as compared, for instance, with the Jewish books of the Law, it impresses us as the work of a cool-headed lawyer, of secular utilitarian principles, bringing legal acumen to bear on the problems of a complex society. At certain points it is still on the barbaric plane: the principle of “an eye for an eye” is enacted; the sense of individual responsibility for wrong-doing is not yet so far developed but that vicarious punishment is still allowed; a man’s son or daughter might be put to death for his own offence. But in many respects it reveals an advanced moral and intellectual view, and the religious atmosphere is absent where we should most expect to find an infusion of it. In the enactments dealing with the fees due to a physician, we seem to discern that medicine has become a free and secular science. Still more important for our purpose are the clauses concerning homicide, for it is particularly in regard to homicide that religious feeling has been most operative in the early legislation of society, and the evolution of our modern morality concerning this offence has been at times retarded by religion. Only one clause in the code happens to deal with deliberate murder, and only murder in special circumstances, those in which Clytemnestra murdered Agamemnon: Hammurabi would have impaled Clytemnestra: a few other clauses are concerned with culpable homicide and unintentional. Hammurabi being himself a master-builder, is severe with bad architects who build houses so weakly that they fall in and kill the owners: in such a case he kills the architect. But he is singularly equitable and mild with a man who is drawn into a quarrel in which blows are passed, and who unthinkingly wounds or kills his opponent; if he can take an oath that he acted “without knowledge or without will,” he has only to pay the physician if the man is wounded, and half a mina of silver if the man is killed and was of free birth. Here there is no mention of the blood-feud, and Babylonian society seems wholly to have escaped from that dangerous principle of tribal barbarism.130.1 Neither is there any hint of the inherent impurity of all bloodshed, whatever is the manner of the shedding; and it seems that this society was no longer in bondage to that religious feeling, to which our modern moral sense concerning murder is in many ways indebted, but which is often obstructive of legal and ethical progress, and which coloured so deeply the early Judaic and Hellenic law of homicide. Further, we note that Hammurabi’s code has come to allow the consideration of motives and extenuating circumstances; and in this vital respect it ranks with modern civilised legislation. Between such a society and the proto-Hellenic community, at least in regard to the view of homicide, there was a great gulf fixed.