The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples: The Schweich LecturesJohns, C. H. W. (Claude Hermann Walter)
History
The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples: The Schweich Lectures
Johns, C. H. W. (Claude Hermann Walter)
Jewish law; Law -- Iraq -- Babylonia
If the debtor has handed over wife, son, or daughter as hostage, they
have to be treated as freemen still. They are not to forfeit freedom for
ever. The Code orders their release at the end of three years’ service.
It is a noteworthy interference with the above power of a man over his
family (§ 116), Semitic or not. In such cases as these there is no
account whatever taken of the amount of debt. It is an arbitrary
interference on the part of a lawgiver with commercial principles, or
selfish instinct, in favour of the weak against the strong. It seems
clearly to be an innovation, for though earlier kings had declared
amnesty from debt on special occasions, that was a more primitive
measure of pity and a generous use of other men’s money peculiarly
unfair to the soft-hearted lender. This was a bold, calculated move in
the direction of humane regulation. It had its risks of abuse, and if
Hammurabi had stopped there, he might have done more harm than good. For
he would have left it open to the hard-hearted creditor to try and exact
more work, the utmost farthing in fact, out of his temporary slave.
Accordingly he declared that if the hostage for debt died of blows or
want in the creditor’s house, the creditor should suffer the same family
bereavement as he had brought on the debtor by his cruelty, a regulation
which might lead the creditor’s family to moderate his exactions, or
forfeit the average price of the slave he killed by ill use, and, what
the creditor would feel most keenly of all, lose all further claim on
the debtor.
Now by such regulations Hammurabi set a very effective limit on two
markedly Oriental vices. Men love to gamble by borrowing for present
enjoyment on security of some contingent future wealth. They pledge
crops, land, houses, family with gleeful irresponsibility. But others
are avaricious and only too willing to lend on decent security or even
most speculative future profit. Hammurabi’s Amorites and Babylonians
were by no means above these abuses. He forbade speculation in crops,
&c., and by his regulations on these points put a very stringent
restraint on debt. The debtor’s powers of borrowing were greatly
narrowed. A prudent lender found himself checked by the consideration
that if the debtor did not pay he would never be able to reclaim more
than three years’ average work out of the debtor, his wife, son, or
daughter. He would have a shrewd guess at what these assets were worth.
So the lawgiver cut at the root of much of the misery which his
predecessors tried to redress by their slap-dash amnesty.
We do well to remember that a respectable, pious, poor man in Babylonia
could usually borrow from his local temple without interest, and that by
the Code agricultural loans could not be pressed if the crop failed.
Hence we see that most of the debts which Hammurabi made so difficult
must have been due to improvidence, laziness, or a weak use of the
facility to borrow offered by wealthy, lazy, and avaricious
money-lenders.
Public-domain text, read in full here on John Shaqi.
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