About Death Penalty. Reflections on Legal History

From the Code of Hammurabi and Sumerian Precursors up to Gemanic Law, the Roman Empire and the Middle Ages

Volker Krey

• Publisher: Kohlhammer Verlag
• Year: 2019
• ISBN:
  9783170367852
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The brief monograph at hand deals with the issue Death Penalty from a legal history standpoint. Here, after some introductory remarks on pre-state societies (hunters and gatherers), the following historic eras are subject matter: The Code of Hammurabi and Sumerian precursors, Germanic Law, the Roman Empire and the Middle Ages.Target groups of this publication particularly are criminal lawyers, legal historians and general historians, self-evidently also students of such academic subjects.

Chapter One:The Code of Hammurabi and Sumerian Precursors

1The Code of Hammurabi¹⁰, circa 1700 B.C., was the first largely comprehensive codification within the Near East (Vorderer Orient). This code consists of 282 legal regulations (articles) concerning predominantly civil law and, to a quarter, criminal law. Still today, Hammurabi’s code has often been characterized as the oldest known codification of mankind. However, there are Sumerian precursors. So, the author will start with some remarks on such a precursor.

I.The most Important Sumerian Precursor: Code of Ur-Nammu

1.General Overview

2At the beginning of the 3rd millennium B.C. the development of the first Sumerian cities Rtook place, and this occurred in the south of Mesopotamia, situated between the rivers Euphrates and Tigris.¹¹ Here, the first states arose, characterized with attributes of statehood like a city ruler, a public administration, and municipal law. Such law already was written down, namely on clay tablets with cuneiform script (in German: Keilschrift). Thus, one should not talk about a mere transition to statehood when discussing the early Sumerian city states.¹²

a) Around 2100 B.C., the so called Code of Ur-Nammu was created. This law, discovered in 1948, nowadays is denoted as the oldest codification of mankind, the wording of which became known.¹³ Ur-Nammu, the then-ruling King of Ur (being an important Sumerian city state at that time) has been designated as the creator of that code. Unfortunately, there is no complete copy (complete version) of his code – in contrast to the Code of Hammurabi. Compared with the latter, the preserved parts of Ur-Nammu’s Code consist of much less regulations than Hammurabi’s one.¹⁴

However, in equal measure as later on the Code of Hammurabi, already Ur-Nammu’s Code started with a prologue, praising the king as being the creator of justice and welfare for the poor and the weak on order of the gods.¹⁵

b) As regards the preserved criminal law provisions (Art.) of Ur-Nammu’s Code,¹⁶ the following hints shall be sufficient:

(1) The Code of Ur-Nammu, being around 400 years older than Hammurabi’s one, appears much more ancient than the latter. Obviously, the transition from the old private criminal law to public criminal justice still was not completed at that time.¹⁷ This may be illustrated by the fact, that there still were private sanctions like monitory compensation (punitive damages) instead of criminal punishment in cases of offences like bodily injury, accusation of sorcery, accusing a married woman of adultery, damage to someone else’s field (farmland). The code’s respective provisions read as follows:

18. If a man knocks out the eye of another man, he shall weigh out ½ a mina of silver.

19. If a man has cut off another man’s foot, he is to pay ten shekels.

20. If a man, in the course of a scuffle, smashed the limb of another man with a club (a mace), he shall pay one mina of silver

21. If someone severed the nose of another man with a copper knife, he must pay two-thirds of a mina of silver.

22. If a man knocks out a tooth of another man, he shall pay two shekels of silver.

31. If a man flooded the field of a man with water, he shall measure out three kur (apparently a unit of measurement) of barley per iku (apparently a square measure) of field.

Such provisions illustrate that the code’s penal law still was shaped by private criminal justice.

However, the urgent question that arises here is the following one: What happened to those perpetrators, who were absolutely unable to pay the respective compensations (punitive damages)? Presumably, the consequences for such perpetrators would be unpleasant.

(2) The mentioned regulations of Ur-Nammu’s Code for accusation of sorcery respectively for accusing a married woman of adultery say:

13. If a man is accused of sorcery, he must undergo ordeal by water, if he is proven innocent,¹⁸ his accuser must pay three shekels.

Here, it seems surprising, that the penalty for the offender of such a serious crime as being regulated in the Code’s Art. 13 was so lenient, although that accusation was absolutely life-threatening for the accused victim concerned. In contrast, the Code of Hammurabi ordered capital punishment for such cases of accusation.¹⁹

14. If a man accused the wife of a man of adultery, and the river ordeal²⁰ proved her innocent, then the man who has accused her must pay one-third of a mina of silver.

Here again, the threatened punishment is surprisingly lenient, considering the acute danger for the life of the accused woman due to the threatening water ordeal.

2.Crimes threatened with the Death Penalty

3The decisive difference between the Code of Ur-Nammu’s criminal law and the respective part of Hammurabi’s Code has been reduced by Wesel to the simple formula:

Hammurabi’s Code insofar was much harsher than Ur-Nammu’s.²¹

This statement is convincing to a great extent, particularly with regard to the death penalty:

In this respect, the Code of Ur-Nammu all in all can be characterized as exceptionally lenient because only very few criminal offences should be punished with death, namely the following:

Firstly, murder pursuant to Art. 1.

1. If a man commits a murder, that man must be killed.

Secondly, robbery, Art. 2.

2. If a man commits a robbery, he will be killed.

Thirdly, a very serious case of adultery committed by a man other than the husband, pursuant to Art. 6.

6. If a man violates the right of another and deflowers the virgin wife of a young man, they shall kill that male.

This rule seems astonishing because wives, still being virgins, might be rare. However, the code might have had cases of child marriages in mind, where the marriage still was not consummated. Here, the code has considered the deflowering of a married virgin by a man other than her husband as a very serious misdeed.

Fourthly, a case of adultery committed by a wife, Art. 7.

7. If the wife of a man followed after another man and he slept with her, they shall slay that woman, but that male shall be set free.

This provision seems to be extraordinarily misogynist, moreover inconsistent. This is because from the perspective at that time, the criminal offence of adultery, committed by a wife, violates the right of her husband. However, such violation has been committed by both, the wife and the adulterer. Therefore, it seems to be inconsistent, that only the wife shall be slayed, whereas the adulterer shall be set free without any punishment.

Furthermore, Art. 7 looks strange for an additional reason: As already mentioned, adultery committed by a wife then was considered as offence against her husband’s rights. Therefore, the cuckold consequently should have the right to forgive his wife and so to save her life. Such a regulation also might have been expected because Ur-Nammu’s Code still was shaped by private criminal justice.²²

Here, a reference to the Code of Hammurabi may be allowed: On the one hand, Art. 129 of this Code reads:²³

Wenn die Ehefrau eines Bürgers beim (Zusammen-)Liegen mit einem anderen Mann ergriffen worden ist, so bindet man sie beide und wirft sie ins Wasser.

Near translation by the author: If a wife is caught in the very act of committing adultery, both, she and the adulterer, shall be bound with fetters and thrown into the river.

On the other hand, Art. 129 continues:

Wenn der Herr der Ehefrau (gemeint: ihr Ehemann) seine Ehefrau am Leben l...

Table of contents

• Deckblatt
• Impressum
• Introduction
• Chapter One: The Code of Hammurabi and Sumerian Precursors
• Chapter Two: Germanic Law and Roman Law
• Chapter Three: The Early Middle Ages
• Chapter Four: The High Middle Ages
• Chapter Five: A brief Outlook for the Late Middle Ages