The Code of Hammurabi · 9 of 12

Laws 210–234

210. If that woman has died, one shall put to death his daughter.

211. If the daughter of a poor man through his blows he has caused to drop that which is in her womb, he shall pay five shekels of silver.

212. If that woman has died, he shall pay half a mina of silver.

213. If he has struck a gentleman's maidservant and caused her to drop that which is in her womb, he shall pay two shekels of silver.

214. If that maidservant has died, he shall pay one-third of a mina of silver.

Insight

Laws 215–223 establish medical malpractice in roughly its current shape. The doctor who cures gets paid (ten shekels for a successful eye operation on a gentleman; less for treating a commoner; less still for a slave). The doctor who kills loses his hands. Risk and reward both scale by the patient's class, and the surgeon takes literal physical risk on every operation. The Hippocratic Oath would not be composed for another fourteen hundred years, but the basic moral physics of the medical profession, accountability for outcomes and payment for skill, is already here. The hand-amputation penalty stands out as evidence that the Mesopotamians took surgical malpractice as seriously as we take it through licenses and tort law.G. R. Driver and J. C. Miles, The Babylonian Laws (1952–55), commentary on §§215–223.

215. If a doctor has treated a gentleman for a severe wound with a bronze lancet and has cured the man, or has opened an abscess of the eye for a gentleman with the bronze lancet and has cured the eye of the gentleman, he shall take ten shekels of silver.

216. If he (the patient) be the son of a poor man, he shall take five shekels of silver.

217. If he be a gentleman's servant, the master of the servant shall give two shekels of silver to the doctor.

218. If the doctor has treated a gentleman for a severe wound with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with the bronze lancet and has caused the loss of the gentleman's eye, one shall cut off his hands.

219. If a doctor has treated the severe wound of a slave of a poor man with a bronze lancet and has caused his death, he shall render slave for slave.

220. If he has opened his abscess with a bronze lancet and has made him lose his eye, he shall pay money, half his price.

221. If a doctor has cured the shattered limb of a gentleman, or has cured the diseased bowel, the patient shall give five shekels of silver to the doctor.

222. If it is the son of a poor man, he shall give three shekels of silver.

223. If a gentleman's servant, the master of the slave shall give two shekels of silver to the doctor.

224. If a cow doctor or a sheep doctor has treated a cow or a sheep for a severe wound and cured it, the owner of the cow or sheep shall give one-sixth of a shekel of silver to the doctor as his fee.

225. If he has treated a cow or a sheep for a severe wound and has caused it to die, he shall give a quarter of its price to the owner of the ox or sheep.

226. If a brander without consent of the owner of the slave has branded a slave with an indelible mark, one shall cut off the hands of that brander.

227. If a man has deceived the brander, and has caused him to brand an indelible mark on the slave, that man one shall kill him and bury him in his house, the brander shall swear, 'Not knowing I branded him,' and shall go free.

228. If a builder has built a house for a man and has completed it, he shall give him as his fee two shekels of silver per SAR of house.

229. If a builder has built a house for a man and has not made strong his work, and the house he built has fallen, and he has caused the death of the owner of the house, that builder shall be put to death.

Insight

Builder liability in Law 229 (a house falls, the owner dies, the builder is executed) is the principle in its starkest form. Law 230 extends it horizontally: if the owner's son dies, the builder's son is killed. This is vicarious punishment, and it is one of the places the Mosaic legal tradition explicitly diverges. Deuteronomy 24:16 will rule it out: 'The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers; every man shall be put to death for his own sin.' Five centuries between the two codes, and that is the moral movement. The Hebrew code rejects the substitution principle that Hammurabi takes for granted.Deut 24:16, Ezek 18:20; Moshe Greenberg, 'Some Postulates of Biblical Criminal Law' (1960), on the divergence from ANE substitution.

230. If he has caused the son of the owner of the house to die, one shall put to death the son of that builder.

231. If he has caused the slave of the owner of the house to die, he shall give slave for slave to the owner of the house.

232. If he has caused the loss of goods, he shall render back whatever he has caused the loss of, and because he did not make strong the house he built, and it fell, from his own goods he shall rebuild the house that fell.

233. If a builder has built a house for a man, and has not jointed his work, and the wall has fallen, that builder at his own cost shall make good that wall.

234. If a boatman has navigated a ship of sixty GUR for a man, he shall give him two shekels of silver for his fee.