Cruel Intentions in Criminal Punishment
Our crim law prof tends to ramble quite a bit about justifications for punishment (and pedophilia/sexual misconduct in general). So it shouldn't come as a surprise that I've thought a bit about Hammurabi's Code and modern criminal punishment. Being the dork that I am, I saw a program today on the History Channel on the history of punishment. The narrator condluded with something to the effect of, "Ever since the time of Hammurabi, cruelty and vengeance have dominated punishment." I take exception to this.
The generous use of the death penalty often creates the impression that the Code is vengeful. But this does not explain quite a few other provisions. For example, Code 49 states:
I've only read less than 200 pages in my contracts text and I can tell you this sounds like typical remedy for breach. Unjust profits you say, give them back. In 107 we see a similar situation.
But the "six times the sum" bit clearly does not sound like damages for breach. Yes I know, but this was about 4000 years ago, so the common law was not as developed if you will. There is a punitive factor in all the codes, don't get me wrong. However, these measures are more accurately described as deterrants rather than "vengeance and cruelty" based punishments. The best example of this is the eye for an eye bit.
Does this sound like vengeance and cruelty or deterrent and expectation? At the very least I mean to suggest that there is quite a bit more depth t0 the Code than the Hist. Channel implies.
The generous use of the death penalty often creates the impression that the Code is vengeful. But this does not explain quite a few other provisions. For example, Code 49 states:
49. If any one take money from a merchant, and give the merchant a field tillable for corn or sesame and order him to plant corn or sesame in the field, and to harvest the crop; if the cultivator plant corn or sesame in the field, at the harvest the corn or sesame that is in the field shall belong to the owner of the field and he shall pay corn as rent, for the money he received from the merchant, and the livelihood of the cultivator shall he give to the merchant.
I've only read less than 200 pages in my contracts text and I can tell you this sounds like typical remedy for breach. Unjust profits you say, give them back. In 107 we see a similar situation.
107. If the merchant cheat the agent, in that as the latter has returned to him all that had been given him, but the merchant denies the receipt of what had been returned to him, then shall this agent convict the merchant before God and the judges, and if he still deny receiving what the agent had given him shall pay six times the sum to the agent.
But the "six times the sum" bit clearly does not sound like damages for breach. Yes I know, but this was about 4000 years ago, so the common law was not as developed if you will. There is a punitive factor in all the codes, don't get me wrong. However, these measures are more accurately described as deterrants rather than "vengeance and cruelty" based punishments. The best example of this is the eye for an eye bit.
196. If a man put out the eye of another man, his eye shall be put out.
197. If he break another man's bone, his bone shall be broken.
198. If he put out the eye of a freed man, or break the bone of a freed man, he shall pay one gold mina.
199. If he put out the eye of a man's slave, or break the bone of a man's slave, he shall pay one-half of its value.
Does this sound like vengeance and cruelty or deterrent and expectation? At the very least I mean to suggest that there is quite a bit more depth t0 the Code than the Hist. Channel implies.
posted by Armen Adzhemyan at 9:06 PM
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