The second of Hammurabi’s codes of law is as interesting as it is odd:
“If any one bring an accusation against a man, and the accused go to the river and leap into the river, if he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser.”
At the end of some of the codes there are elders and judges, so this one is a bit odd. It leaves things to fate, or to the gods, but why? And why is it the second code? Anyone know?
Sounds like a harsher form of “loser pays” in civil suits.
Exactly. Perfect question.
I don’t know the answer. I killed myself by jumping into the river in my post-grad, that is, by trying to figure out the mathematical catastrophes suffered by religious rules applied in legal cases. Brian, from an ethological (biological) point of view, there’s a hunch-ordering mechanism innately built into us. We understand these mechanisms imperfectly. Many animals hunt for food by using complex statistical patterns of food-searching. There’s an observable randomness or chaotic feature to our searches. These features may find expression in deliberately random behaviors like drawing straws. Or casting lots. As in the scripture.
The rewards for randomized behaviors don’t need to be coherent. Only Pavlovian. Intermittent rewards are good enough.
So the risk of death from jumping into the river might – might (inference: not fact) – be said to be adaptive behavior because the the risk reduces false accusations in court proceedings. The problem in this case is that false accusations favor good swimmers.
Like our current debt-ceiling accounting gimmicks. We’re in a constant hedge-war against our own lies. How long we can swim and keep afloat? – in our randomized rivers?
No final answers from me.
.. ps, I didn’t see Brian Roden’s good comment .. Brian, good point, save that ‘loser’ pays isn’t automatic except in a few fee-recovery cases, and it’s granted disparately, and usually only after several clear warnings against abuse of discovery, and after a case passes the laugh test (states a claim), and survives dismissal by summary judgment .. imho .. I’d say the river here may symbolize the civil procedure sensibility of contemporary legal warnings against abuses of discovery (rivers or floods of abusive discovery aimed at making lawsuits prohibitively expensive) .. or at least the river as this sort of question, with the loser paying in more ways than one .. I think (think? don’t know?) I’m a minimalist in saying, “beats me,” regarding these ancient texts, since so much context is lost in these codes … Brian dig, wait until the river is at low flow, then make the accusation? ~ Jim
The same test was used in reverse for witches in mediaeval England, except that the accused was helped into the river with a “ducking stool”. If the lady lived, she was a witch and was put to death. If she died, she was innocent, but I don’t know what happened to the accuser. There are still such stools on display.
@Brian: Yeah, a tad harsher!
@Peter: Except the medieval English version seems to be a bit more of a lose-lose.
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