I think our
legal system likely would not work better if our punishments resembled the Code of Hammurabi, or
we would have stuck with that code. The Code of Hammurabi was the basis of many legal systems
around the world for centuries, but we changed to modern systems for a reason.
There are some things modern legal codes share with the Code of Hammurabi. One is
clearly delineated laws formally spelled out in writing. That was probably the Code of
Hammurabi's central innovation; instead of rules being vague social norms people more or less
learned by assimilation, Hammurabi's rules were explicit, codified laws that were written down
and couldn't be argued with. It established a system of land ownership and taxation not too
different from what we use now.
Many aspects of Hammurabi's code are
appalling today. For one, the Code explicitly defines people into upper, middle, and lower
classes, and explicitly grants more legal rights to the upper class. The Code includes a number
of regulations on slavery, meaning slavery was allowed and considered a legitimate institution.
It grants extreme power to the king (who wrote it, after all)essentially the authority to
override any rule or property right at will.
The only part I can see anyone
really wanting to go back to today is the criminal justice system, specifically its very harsh
punishments which are specifically tailored to the crime. It is what we call a lex
talionis, a law of retaliation, under which the way things work is that if someone
does something to you, you can do it back to them. If someone punches you, you can punch that
person back. If someone pokes out your eye, you poke out that person's eye.
This didn't really work for more abstract crimes like fraud; if he defrauds you, can
you really defraud him? Instead, the Code prescribed physical punishments for non-physical
crimes. Theft and fraud resulted in your hand being cut off (something still done on occasion in
Saudi Arabia). Indeed, a great many crimes were assigned the death penalty, ranging from
kidnapping and murder to trespassing and selling unlicensed alcohol.
What
would happen if we did this today? Revolution. Violent revolution is
essentially the only logical result of such a legal system. Historically, that is ultimately
what happened, although Hammurabi conquering a whole bunch of neighboring countries clearly
contributed to that.
Why? Because almost everyone breaks some laws on
occasionoften for fairly low-risk crimes such as parking improperly, speeding, and jaywalking.
If the penalty for all crimes was death, then once you've committed a small crime, what's your
incentive not to commit a larger one? If you're going to be executed for jaywalking, why not go
ahead and aim for treason, since the punishment is no worse? Treason at least offers the
potential for an escape: If you overthrow the government, the government can't enforce its rules
on you. Since everyone breaks some laws, the revolution will have a huge amount of popular
support.
Modern legal systems are lenient on purpose,
because they retain their legitimacy by making punishments feel fair even to most of
the people being punished. A $50 parking ticket is annoying, but if you did really park
illegally you can't really argue with it, and the legitimacy of the fine or the government
executing it is not really in question. If parking in a fire lane carried a sentence of hanging
instead, everyone who has ever parked in a fire lane would rise up against the government,
because we'd have little to lose and no real other way to try to survive.
There's aabout this, usually told as a Chinese general:
"General, we are late for the rendezvous with the Emperor!"
"What is the penalty for tardiness before the Emperor, Lieutenant?"
"Death, sir."
"I see. And what is the penalty for
revolution, Lieutenant?""Also death, sir."
"I see. Revolution it is, then. We march on the palace at dawn."
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