The Laws that Time Forgot
Many men of distinguished opinion have made known their thoughts on the oddest elements of the law. Some point to legal complexity and bureaucracy; others point to passage and safekeeping; others yet consider the reasoning behind the minds which shaped it. I would cautiously posit that the strangest thing about the law, considering all factors, must be its existence.
When judges strike their gavels and politicians obfuscate their financial interests, they are taking part in an ancient song and dance tracing back to time immemorial. In English law, time immemorial generally ends with the reign of Henry II in the twelfth century, the progenitor of the common law tradition. Aboriginal Australians are generally seen as having inhabited the land for thousands of years; again, time immemorial.
But on whom do we rely for this information, for these truths that we hold near and dear? The question on my mind is simple; who remembers time immemorial? Let us embark on a journey spanning 4000 years and 500 words; let us turn to the Code of Hammurabi.
Seventeen hundred years before the birth of Christ, Hammurabi reigned over the Babylonian empire — a dominion the size of Victoria, called home by hundreds of thousands. It is difficult to stress how truly archaic this era was. The Trojan War was not to take place for another half-millennium; the invention of writing was but a recent memory.
This was an era in which the characters of men are deduced from their names and achievements; a truth which makes itself painfully clear in any attempted assessment of Hammurabi. Sources detail administrative movements and business transactions; a rogue copper tradesman or a set of diplomatic demands. Ancient Man is seen in his natural habitat: a disposable cog in an eternal machine who resigned himself to being born, used, and replaced.
The laws of Ancient Man, then, ought to have been similar. It would be appropriate for a throwaway populace to craft throwaway laws, laws that changed with fads and fashions. The 281 laws of Hammurabi’s code themselves are, charitably put, a mixed bag. Although erroneous judges were liable to pay the defendant’s damages twelvefold, a burglar would be subject to execution at the site of the break-in. But in Hammurabi’s explicatory writings, a strange phenomenon can be observed.
Throughout the prologue, we see Hammurabi appeals not to men, but to gods. He testifies that he received the code from Shamash, the god of justice. He declares the immutability and universality of the laws and condemns those who deface them. He talks of his laws as something he had discovered; something given to him. He would have known, as we do now, that men die, that empires fade, and that even the King would eventually be replaced in the eternal machine.
It is not the place of the author to determine the provenance of the law. But consider that Hammurabi, sole ruler and governing authority in the land, appealed to a greater figure, one that would be recognised by all as the arbiter of justice and the personification of truth. It is so that we have come to our answer; equally accepted by positivists and natural law theorists alike.
Who remembers time immemorial? The one who is greater than Hammurabi.