The Development of Law in Early Western History
Hammurabi’s code of law was a necessity in a land with so many resources. His law codified the strict social mores and hierarchy that existed within Mesopotamian society. But some form of justice did exist within these laws. Hammurabi stated that when, “a seignior came forward with false testimony in a case, and has not proved the word which he spoke, if that case was involving life, that seignior shall be put to death.” This could be seen as justice if the words were not part of a larger context. Hammurabi’s term “seignior” is similar to a term like “master” or “lord” as I noted previously. This means that the laws that are presented by Hammurabi are meant for the upper echelon of society, not the peasants and the common man.
For example, when speaking of punishments of crimes, it is said that if a “seignior” has “broken another seignior’s bone, they shall break his bone.” However, if this same “seignior” decides to break the bone of a common man, “he shall pay one mina of silver.” This is obviously not an equitable formula for punishment. Remuneration with material wealth can never really equal the amount of pain endured when bodily harm is inflicted. This was seen as the status quo for many hundreds of years, a harsh reality of social hierarchy that existed for a long time.
In Justinian’s Code, it can be seen that there are many more tendencies toward equitable treatment of the law toward women and the family in general. Significant portions of the code deal with marriage and divorce laws, which are definitely a strong component of any society. Justinian’s code of law creates a more level playing field for women; marriages, according to the code, “cannot take place without the consent of the parties.” This is not necessarily a departure from Hammurabi but is obviously important because it is stated within the context of law.
Justinian’s view of consent, however, can be questioned because of a statement about arranged marriages. It is stated within the law that “people who wrongfully prevent children in their power from marrying, or who refuse to provide a dowry for them can be forced” to by state officials. He goes on to say that “those who do not try to arrange marriages are held to prevent them,” an obvious attempt by those who follow the code to ease parental controls over their children. But this type of control does seem to have its benefits; families grow more from the coupling of people at certain times in their lives than if they are left to their own devices of arrangement. Consent is available through representation by the party’s parents.
Divorce is addressed very pragmatically within the Code, which seems to embody an ideal of resolution with conflict in marriages. An example used within the laws is that of divorce because of temporary and unfounded emotional swings. The code says, “…where repudiation takes place in anger and the wife returns shortly afterward, she is not held to have divorced her husband.” Therefore, marriage is not relinquished unless the bonds are meant to be broken permanently. However, if the man in the relationship is captured or presumed dead, after five years the wife can remarry under the assumption that there is a mutual satisfaction in dissolving the relationship. This seems to be very equitable indeed, considering that there is as much right to divorce for women as there is for men even if the burden of proof in carrying out a divorce is very high.
A similar code to Justinian’s, the Burgundian Code came about in the 5th century under the king Gunbobad as a means of codifying the new fusion laws that came about because of Roman influence on the Germanic tribes. There are several important recognitions in this set of laws that were absent in early law. First, there is an important recognition of chance as part of life and its effect on law enforcement. This code states, “if a lance or any kind of weapon shall have been thrown upon the ground…and if by accident a man or animal impales himself thereupon…he whom the weapon belongs shall pay nothing…” This is important because it does not seek to blame chance upon someone because this would be unjust; this code allow for error in human and animal life.
Another important realization that this code comes to is that female succession is important when male leaders become incapable of bearing a male heir. The code states, “…if anyone does not leave a son, let a daughter succeed to the inheritance of the father and mother in place of the son.” This seems to connote that there is some equality in rule for men and women, because in some ancient societies the nearest male heir would have taken over. Affairs of the state, at least at a micro-level, seems to have required the skill of the person, not the sex, in order to perform them efficiently and correctly. The Burgundian Code, as well as much of Germanic law, seems to promote family values and the importance of balance in the family as far as management of the household.
The three codes of law presented previously show the development of law over time in the Western world. There are some forms of equality that comes out because of time, even if it was a very gradual development. In the code of Hammurabi, there was “equality,” mostly allocated to the upper class of society but there are some very weak concessions to the lower classes. Justinian’s laws take large steps in providing equality in justice for men and women, notably as far as marriage and divorce were concerned. The code of Burgundy was a similar attempt to that of Justinian, though several wrinkles presented themselves in this code that were not really addressed previously. Looking back upon the foundations of our system of law, it is remarkable to note how far we have come and perhaps how far we have to go.
