The laws of King Hammurabi included movable property. Characteristics of obligation and property relations according to the laws of Hammurabi. Sources of musul

1. Introduction………………………………………………………………………………..3

2. Main part……………………………………………………………4

2.1.Characteristics of property and obligations according to the laws of Hammurabi………………………………………………………4

2.2.Sources of Islamic law……………………………………….12

3. Conclusion……………………………………………………………...19

4. List of references……………………………………..20

Introduction

Muslim law had a profound influence on the history of the development of the state and law of a number of countries in the East. The scope of its action as a legal and ideological factor in our time also remains wide, which is largely determined by the close ties of Muslim law with Islam as a religious system, which still has almost decisive significance for the worldview of the broadest sections of the population in these countries. In addition, of all the world's religions, Islam is most closely related to the state and law. The connecting link here is Muslim law and Islamic ideology. In turn, emphasizing the state nature of Islam, Muslim law stood at the center of its teaching and was perceived not only as a system of norms, but not least as a universal political and legal doctrine.

Muslim law can be viewed from two perspectives. In a secular sense, it represents a unified Islamic system of social norms of regulation, which includes both legal norms and non-legal regulators, primarily religious and moral rules of conduct. Thus, J. Schacht notes that Islamic law is characterized by the dualism of religion and state. According to R. Charles, Muslim law is first of all religion, then state and culture. Islam, R. David emphasizes, is a religion of law, and Muslim law is not rational, but religious, “divine,” in nature. In life, mediated by social relations, all these norms closely interact and intertwine. However, as evidenced by the practice of legal development in Islamic countries, legal rules of conduct occupy a relatively independent place in this system. Moreover, over the centuries, the separation of legal norms from other non-legal Islamic regulators became more and more distinct; the system of such norms acts as Islamic law in legal meaning.

1.
Main part

1.1.
Characteristics of property and liability relations according to the laws of Hammurabi

Ownership.
During the reign of Hammurabi, private property reached a high level of development. In Babylon there were different kinds land ownership: there were royal, temple, communal, and private lands. Both the royal and temple households were managed by the king, and this was the most important source of income. The royal land was distributed to sharecroppers for use. The importance of the royal economy was great in the field of trade and exchange. Hammurabi's reign was marked by the intensive development of private land ownership, which was greatly facilitated by the expansion of the canal network. Private land ownership varied in scope. Large landowners used the labor of slaves and hired workers, while small ones cultivated their land themselves. The development of private land ownership led to a reduction in communal lands and the decline of the community. Lands could be freely sold, rented, and inherited; the sources do not mention any restrictions on the part of the community.

Obligations.
The laws of Hammurabi contain a number of articles regulating the lease of land, which obviously played a large role in land relations of that time. The fee for a rented field was usually "/3
harvest. When renting on the terms of giving up half of the harvest, the lessor was obliged to participate in the costs or work of cultivating the field. The garden, which provided more income, was rented out for 2
/3
harvest. The lease was short-term (one or two years). Undeveloped land was leased for a longer period. Legislation defining the relationship between land owner and tenant contributed to the development of the economy. If the tenant did not cultivate the taken land, then he had to pay the owner of the field based on the volume of crops grown by his neighbors.

In addition to renting a field and garden, the laws of Hammurabi mention various types of property rental of premises, domestic animals, ships, carts, and slaves. The laws established not only fees for renting things, but also liability in the event of loss or destruction of rented property. The personal hire agreement was widespread. In addition to agricultural workers, they hired doctors, veterinarians, and construction workers. Laws determined the procedure for remuneration of these persons, as well as responsibility for the results of work (for example, a doctor in the event of the death of a patient). The laws of Hammurabi regulated the loan agreement in quite detail. Characteristic feature legislation in this matter is the desire to protect the debtor from the creditor and prevent debt slavery. This is evidenced by the provisions on the maximum period for working off the debt (three years), the limitation of interest charged by the moneylender on both cash and in-kind loans, and the liability of the creditor in the event of the death of the debtor as a result of mistreatment.

In the conditions of the existence of private ownership of both movable and immovable property, the purchase and sale agreement has received great development. The sale of the most valuable items (land, buildings, slaves, livestock) was carried out in writing (on
clay tablets) in front of witnesses. The seller could only be the owner of the thing. The sale of property withdrawn from circulation (for example, “ilku” property) was considered invalid.

In addition to the legislation mentioned above, Hammurabi knows contracts of storage (luggage), partnerships, barter, and orders. The laws of Hammurabi provide for obligations arising from causing harm. The one who causes the death of a slave is responsible (the owner should give a slave for a slave); a shipowner who sank a ship along with the property entrusted to him for transportation is obliged to compensate the cost of the entire loss.

The Laws of Hammurabi contain a number of articles regulating the lease of land, which obviously played a large role in land relations of that time. Payment for a rented field was usually equal to one third of the harvest. When renting on the terms of giving back half of the harvest, the leaseholder was obliged to participate in the costs or work of cultivating the field. The garden that gave the most income was rented out for two-thirds of the harvest. The lease was short-term (one or two years). Undeveloped land was leased for a longer period. Legislation defining the relationship between land owner and tenant contributed to the development of the economy. If the tenant did not cultivate the taken land, then he had to pay the owner of the field, based on the volume of crops grown by his neighbors. In addition to renting a field and garden, the Laws of Hammurabi mention various types of property rental: premises, domestic animals, ships, carts, slaves. Laws establish not only fees for renting things, but also liability in the event of damage or destruction of rented property. Personal rental agreements were widespread. In addition to agricultural workers, they hired doctors, veterinarians, and construction workers. Laws determine the procedure for remuneration of these persons, as well as responsibility for the results of work (for example, a doctor in the event of the death of a patient).

The Laws of Hammurabi regulated the loan agreement in quite detail. A characteristic feature of Hammurabi's legislation in this matter is the desire to limit the debtor from the creditor and prevent debt slavery. This is evidenced by the provisions on the maximum period for working off the debt (3 years), the limitation of interest charged by the usurer on both cash and in-kind loans, the liability of the creditor in the event of the death of the debtor as a result of ill-treatment. In the conditions of the existence of private property as movable , and real estate, the purchase and sale agreement has received great development. The sale of the most valuable items (land, buildings, slaves, livestock) was carried out in writing (on clay tablets) with witnesses. The seller could only be the owner of the thing. The sale of property withdrawn from circulation (for example, ilku property) was considered invalid. In addition to those mentioned, the legislation of Hammurabi knows contracts of storage (deposit), partnership, barter, assignments, the Laws of Hammurabi were aware of obligations from causing harm. The one who causes the death of a slave is responsible (the owner should give a slave for a slave). A shipowner who sank a ship along with the property entrusted to him for transportation is obliged to compensate the cost of all that was lost.

Table on the Laws of Hammurabi

City	Deity	Temple	Reason for inclusion in the code
1. Babylon	Marduk (Patron god of the city of Babylon and the Babylonian statehood.)	Esagila	State capital
2. Nippur	Ellil (God of the air, “first son of Anum” and “king of the gods”, really governing the cosmos and being the main deity Sumerian-Akkadian pantheon.)	Ekur - central temple	City in Southern Mesopotamia, religious and political capital Sumerian tribal union
3. Eridu	Ea (God of the sea and groundwater, considered a patron wisdom.)	Eabzu	Eridu, in the extreme south of Mesopotamia, was considered the oldest city in Sumer and the first center of Mesopotamian statehood.
4. Babylon	Marduk (patron god of Babylon, supreme deity of the Babylonian pantheon)	Esagila	State capital
5. Lv	Syn - Sumerian goddess love and female fertility; patroness of motherhood	Ekishnugal	An ancient Sumerian city in the south of Mesopotamia
6. Sippar	Shamash And Aya (God of the Sun, at the same time guardian and patron world justice. He bears the title of "judge of the gods." Aya-goddess, wife of Shamash. In her "chapel" (literally "grave"), Apparently, her cult was carried out.)	Ebarra	Sumerian city in Northern Mesopotamia
7. Larsa	Shamash (Utu)	Sumerian city in the south of Mesopotamia
8. Uruk	Anum And Ishtar (god of the sky, “father” and ancestor of the gods, highest in status deity of the Sumerian-Akkadian pantheon. Remained inactive a symbol of supreme power, entrusting the real arrangement of space and the power over him to Ellil;	Eanna	Sumerian city in the south of Mesopotamia; center of the 1st dynasty of Uruk. City of Gilgamesh.
9. Isshin	Egalmakh	A city in the middle part of Mesopotamia, played important role in 1 thousand BC
10. Quiche	Zababa (Warrior God, patron of the city of Kish)	Emeteur-sag	A city in the northern part of Mesopotamia
11. Khursagkalamma	Ishtar	Suburb of Kisha
12. Kutu	Erra (Sumerian god of plague)	Meslam	City in Northern Mesopotamia
13. Borsippa	Naboo (Tutu ) (son of Marduk, patron of writing, science and wisdom)	Ezida	A suburb of Babylon, a city on the right bank of the Euphrates. Center for the worship of the god Nabu.
14. Dilbat	Urash (the deity of the ancient Mesopotamia, associated with the fertility of the earth and arable land)	City in Mesopotamia, south of Babylon
15. Cash	Mother (Nintu ) - Mother Goddess, creator of people, patroness of fertility in Ancient Mesopotamia.	A city in Mesopotamia, the center of the cult of the goddess Nintu.
16. Lagash	Ningirsu (Girsu ) - Sumerian god.	Eninna	An ancient Sumerian city in Southern Mesopotamia; Ningirsu veneration center.
17. Bit-Karkar	Adad (god of thunder, lightning, rain and storms in Ancient Mesopotamia and Syria)	Eugalgal	City in Ancient Mesopotamia.
18. Adab	Emah is the temple of the goddess Ishtar in Akkad.	City in Ancient Mesopotamia.
19. Mashkanshabrim	Emeslam	Location unknown
20. Malgium	Ea And Damgalnunna (wife of Ea). Ea is the Babylonian-Sumerian god of the sea, patron of wisdom, oracle who gives healing. His wife is the mother of Marduk.	A city in Ancient Mesopotamia, east of the Tigris, the center of the cult is the city of Enki, the exact location is unknown.
21. Mayor	Dagan (Western Semitic, including Amorite, deity. God is the giver of food.)	The capital of the state of the same name in the middle reaches of the Euphrates River. He played an important role as an intermediary in trade, political and economic relations of the ancient Near East.
22. Tuttul	City in Ancient Mesopotamia.
23. Babylon	Ishtar , Ninazu - Son of Ellil, deity of underground waters and healing, patron god of the city of Eshnunna.	State capital
24. Akkad	Ishtar	Eulmash	Capital of Akkad
25. Ashur	Lamasu And I'm going	Winged gods stood at the entrances of all temples and palaces	Capital of Assyria
26. Nineveh	Ishtar	Emishmish	An ancient Assyrian city, left bank of the Tigris River.

1.2. Sources of Islamic law

Researchers identify two groups of interrelated norms within Islamic law. The first of these consists of the legal injunctions of the Koran and Sunnah. The second group consists of norms formulated by Muslim legal doctrine on the basis of “rational” sources or logical methods of interpretation. This is, first of all, the unanimous opinion (ijma) of the most authoritative jurists - mujtahids and fuqihs, and qiyas (qiyas) - a judgment by analogy.

The norms of the first group, especially those recorded in the Koran, are considered fundamental.

At the same time, researchers rightly note that a number of nations and ethnic groups that adopted Islam as a religion (dogmatics and cult), in regulating the relationships of individuals, continued to adhere to the previous social norms, especially customs, which often directly contradicted Islamic law. For example, the Bedouins of many regions of Arabia, the Berbers North Africa or Islamized peoples Tropical Africa in their intra- and inter-tribal relations they very zealously defended the priority of ancient customs and resisted attempts to extend Muslim law to them as a system of legal norms. A similar dualism has been observed up to the present day. Characteristic in this regard is the example of Yemen, where Islamic law was traditionally applied only in cities, and in the territories occupied by tribes (mainly in the northern regions of the country), old pre-Islamic customs prevailed. Attempts of Imam Yahya in the 20s of the XX century. obliging the tribes to be guided by Islamic law did not lead to anything, and the state was forced to come to terms with the autonomy of the tribes in matters of law. Pre-Islamic tribal social norms were so strong that soon after gaining independence, the PDRY even adopted a law criminalizing blood feud. There is evidence of the persistence of this custom, which is contrary to Muslim law, even in modern Egypt, a country that was one of the first to become the object of Arab-Muslim conquests.

The vitality of tribal customs as opposed to Islamic law is confirmed by the presence of customary courts in a number of Muslim countries. Similar courts, along with qadi courts, remained until the end of the 60s in Iraq and until the beginning of the 70s in the Republic of Yemen; they still function in Jordan, where there is even legislation recognizing tribal customs as a source of law (similar legislation was adopted in his time in Iraq). It should be emphasized that the dogmatic and ritual parts of Islam were and are perceived by the tribes in these countries quite consistently, although they are subject to a certain influence of local traditional religious beliefs. The above can also be applied to a number of African countries, where a significant part of the population professes Islam. Here, the effect of many institutions of Islamic law is limited or even completely excluded by local customary law. A largely similar situation has developed in Indonesia and a number of other countries in Southeast Asia, where local customs (adat) exclude the application of many norms of Muslim law and even influence the ritual-dogmatic side of Islam (“adat Islam”). The liberal attitude of Islam towards the customs of the local population, according to Rene David, contributed to the widespread spread of Islam throughout the world

Quran and Sunnah

The most important is the Koran - the holy book of Muslims, consisting of parables, prayers and sermons attributed to the Prophet Muhammad. The Qur'an consists of 114 chapters (suras), divided into 6219 verses (adat). Most of The Koran is mythological in nature, and only up to 500 verses contain instructions for believers - sharas or Sharia, relating to the rules of conduct for Muslims. Shar or Sharia means “the path to follow” and constitutes what is called Islamic law. However, the legal provisions contained in the Koran are clearly insufficient due to the reflection of early feudal relations in it. In this regard, the Sunnah acts as the next authoritative source of law. Sunnah (sacred tradition) - consists of numerous stories (hadiths) about the judgments and actions of Muhammad himself. The Sunnah contains norms of marriage, inheritance, evidentiary, judicial and some other branches of law.

The Koran is undoubtedly the first source of Islamic law. Meanwhile, it is obvious that the legal provisions contained in it are clearly insufficient to regulate all relations that arise between Muslims and individual fundamental institutions of Islam, which are not even mentioned in the Koran. Today, only a few major scientists turn directly to primary sources. Moreover, this appeal is limited to a number of issues, and it is difficult to imagine that a new theological and legal school can emerge in our time. However, it is precisely based on these sources, as well as on the doctrine, that specialists in Islamic law are trying to find an answer to solve modern problems. This is the case, for example, when regulating issues of artificial insemination or the sale of human organs. However, the legal provisions of the Qur'an can be found in a certain number of its verses (Muslim jurists call them "legal verses").

There are stanzas that establish personal status (there are 70 of them); stanzas concerning " civil law"(also 70); stanzas criminal law(in the amount of 30); stanzas regulating judicial procedure (13); “constitutional” stanzas (10); stanzas relating to economics and finance (10) and finally stanzas relating to “ international law"(25).

According to the degree of certainty, according to Muslim doctrine, all the norms of the Koran and Sunnah are divided into two categories. The first includes absolutely precise regulations that do not allow for different interpretations, among which are all the rules of religious worship and some norms governing relationships between people. Most of these establishments arose in individual cases when the Prophet resolved specific conflicts, assessed individual facts, or in response to questions asked of him. The predominant part of the normative prescriptions of the Sunnah also has a causal origin. This category norms do not allow for ijtihad, but represent clear and unambiguous rules of conduct that can be directly and uniformly applied in practice. Moreover, if Muslims should perceive specific rules for the performance of religious duties as a divine revelation, the meaning of which they are not given to understand, then specific norms of relationships between people in many cases can be rationally explained. This concept made it possible, in essence, to refuse to apply these norms in favor of others.

The second type consists of abstract and insufficiently clear instructions. Their presence is explained by the fact that Muslim law, without paying much attention to legal subtleties and details (with the exception of detailed regulation of certain types of relations - for example, issues of inheritance), leaves them to the discretion of Muslims, and follows the path of establishing only general guidelines for behavior. It is argued that Muhammad did not seek to create law in the strict sense, but to teach people how to act in all life situations, how to relate to this or that event, fact, action, etc. Therefore, many modern researchers believe that the main thing in Islamic law is to establish the most general parameters of relations between people on a religious basis. And legal details are considered secondary, as long as the religious and moral boundaries of behavior are not violated. These norms not only allow for different understandings of their meaning, but also imply specification in various rules of conduct based on ijtihad, as a result of which mujtadid jurists may come to divergent conclusions. Without such specification, these vague and ambiguous instructions cannot be applied at all to assess people's behavior and normatively regulate social relations.

Ijtihad (literally “zeal”, “diligence”, “persistence”) is a search for rules of behavior based on a rational interpretation of the most general postulates or ambiguous provisions of the Koran and Sunnah, or in the case of lacunae in these sources. On its basis, the vast majority of norms regulating relationships between people are formulated. Of course, such freedom to evaluate worldly problems “at our own discretion” is not absolute and is not granted to everyone. The essence of ijtihad is to find an answer to a question that does not have a ready solution that would correspond to Sharia. That is why Muslim jurists believe that a mujtahid (an expert in Sharia vested with the right to ijtihad) does not create a new rule of behavior, but only seeks and “extracts” it, discovers a solution originally contained in Sharia - if not in its exact provisions, then in its ambiguous regulations or general principles and purposes.

Ijma is seen as "the general consensus of the Muslim community." One of the adats reads: “What Muslims consider fair is fair in the eyes of Allah.” This situation allowed and now allows doctors of Islam to create new legal norms adapted to changing living conditions. Rejected by some Shiites, Ijma is considered the third source of Islamic law. According to the unanimous opinion of doctors of law, it is used to deepen and develop the legal interpretation of divine sources. Legitimized by its connection with the Koran and Sunnah, ijma acquired force only after the death of the prophet and under the presence of a number of conditions. Ijma can be clearly expressed or assumed, but the power of the latter is much less.

In order for a rule of law to be based on ijma, it is not necessary that the mass of believers recognize it or that this rule corresponds to the common feeling of all members of society. Ijma has nothing to do with “custom” (orf). The required unity is the unity of competent persons (mujtahids and fuqahas) - fuqaha. Their unanimous opinion gives the legal decision the force of law.

Recent codifications, which are increasing in number in areas previously traditionally regulated by classical fiqh, reinforce the opinion expressed by Snoke-Hurgronier and mentioned by Edouard Lambert: “In the apt expression of Snoke-Hurgronier,” writes Edouard Lambert, “ijma is currently the only dogmatic basis of Islamic law. The Koran and Sunnah are only its historical foundations. A modern judge looks for reasons for a decision not in the Koran or collections of traditions, but in books that contain decisions consecrated by ijma. A qadi who would try to interpret with his own authority the provisions of the Koran or would like to evaluate for himself the possible authenticity of adats would commit an act as contrary to respect for orthodoxy as a believing Catholic who would like to establish for himself the meaning of church texts published in support of its dogmas. This third source of Islamic law - ijma - has an exceptionally large practical significance. Only when written down in the ijma, the rules of law, regardless of their origin, are subject to application"1
.

1
Lambert E.
Fonction du droit civil compare. 1908. P. 328

Kiyas

Muslim jurists, charged with interpreting the law, call upon reasoning (qiyas) to help. In this way they were able to “combine revelation with the reason of man.” According to qiyas, a rule established in the Quran, Sunnah or Ijma can be applied to a case that is not expressly provided for in these sources of law.

Qiyas becomes legitimate thanks to the Qur'an and Sunnah. Reasoning by analogy can only be considered as a way of interpreting and applying law: Islamic law is based on the principle of authority. Thanks to the presence of reasoning by analogy, the possibility of a rational interpretation of the sources of Islamic law has been created; but in this way it is impossible to create fundamental norms comparable in nature to the system of traditional norms created in the 10th century. Muslim legalists in this case are different from common law lawyers who, using the technique of difference, create new rules.

Conclusion

The laws established not only fees for renting things, but also liability in the event of loss or destruction of rented property. The personal hire agreement was widespread. In addition to agricultural workers, they hired doctors, veterinarians, and construction workers. Laws determined the procedure for remuneration of these persons, as well as responsibility for the results of work (for example, a doctor in the event of the death of a patient). The laws of Hammurabi regulated the loan agreement in quite detail. A characteristic feature of the legislation in this matter is the desire to protect the debtor from the creditor and prevent debt slavery. This is evidenced by the provisions on the maximum period for working off the debt (three years), the limitation of interest charged by the moneylender on both cash and in-kind loans, and the liability of the creditor in the event of the death of the debtor as a result of mistreatment.

Through many years of development, Islamic law has developed a huge array of legal norms. But not all norms recorded in the Koran and Sunnah, or developed by Muslim theologians and jurists, can be classified as Muslim law. Being fixed in holy scripture, traditions or works of the mujtahids, they are, first of all,

are normative religious prescriptions or a moment of Muslim legal ideology. And right in in every sense Only those that actually operate and are supported by the state become words.

List of used
literature

1. Syukiyainen L.R. "Muslim Law". M., 1986

2. Syukiyainen L.R. “Sharia and Muslim legal culture” M., 1997

3. Koran. Translation and comments by I.Yu. Krachkovsky, M., 1963

4. Charles R. “Muslim Law.” M, 1959

5. David R., Joffre-Spinosi K. “Basic legal systems of our time.” M., 1999

6. Internet: website www.yandex.ru

· Sykiyainen L.R. “Sharia is an open book”

· Enikeev Z.I. "Muslim law in Bashkortostan"

7. General history State and law: Textbook in 2 volumes. Second edition. Ed. Omelchenko O.A.. T.1 – M, 1999. – 528 p.

8. General history of state and law: Textbook. for universities specializing in "Jurisprudence" / Ed. K. I. Batyr. - M.: Bylina, 1999

9. “History of state and law foreign countries", edited by O.A. Zhidkov and N.A. Krashennikova. – M., 1990.

10. History of state and law of foreign countries: textbook. / K. I. Ba-I89 tyr, I. A. Isaev [etc.]; edited by K.I. Batyr. - 4th ed., revised. and additional - M.: TK Welby, Prospekt Publishing House, 2005

General history of state and law: Textbook. for universities specializing in "Jurisprudence" / Ed. K. I. Batyr. - M.: Bylina, 1999

The reign of Hammurabi is the time of the highest prosperity of Babylonia in 2 thousand BC. The Laws of Hammurabi are an extensive legislative monument consisting of 282 articles. Externally, the codex is a black basalt pillar discovered in 1902 by a French archaeological expedition in the city of Susa, the ancient capital of the Kingdom of Elem (the territory of modern Iran). (This pillar is kept in the Louvre, a copy of it is in the Moscow Museum named after A.S. Pushkin).

Hammurabi's Code of Law touches on a variety of legal issues, but is very far from accurate and complete. Of the 282 articles, modern researchers do not know the content of only 21 articles. In science, the question of the Hammurabi Code system is resolved in different ways.

The legal provisions are presented casuistically, without generalizations. It is possible that Hammurabi's laws were records of court decisions.

The first 5 articles of the Code of Law contain provisions of a procedural nature. They are directed against the arbitrariness reigning in the courts. 6-126 articles are devoted to regulation property relations, protection of property and the right to dispose of it. Articles 26-39 talk about the land allotments of warriors.

The next section, including articles 127-195, is devoted to marriage and family relations and inheritance law. Articles 196-214 contain provisions on the protection of the individual and his health. The last part of the code (Articles 215-282) is devoted to labor and tools. It contains articles establishing the remuneration and responsibility of a doctor, veterinarian, builder, articles on hiring, agricultural workers, hiring animals, tools and slaves.

Let's look at the different types of law of that time.

1. Public law.

The free population of Babylon was heterogeneous. Slave owners can be divided into two groups: Avilum and Mushkenu.

Avilum means "husband" or "man".

Mushkenu means “small people” in Okkadian.

The last category of slave owners occupied a lower position compared to the avilum. Presumably the Mushkenu came from the southern parts of the country, “subjects” of the king. A number of scholars believe that the muskenu conditionally owned a plot of royal land for service or duties.

2. Ownership.

The owner of the “ilku” property was obliged to personally perform military service in favor of the state. If he hires a deputy, whom he sends to serve in his place, the property will be transferred to the deputy, and the employer will be subject to the death penalty (Article 26). If a warrior was captured, then the plot and garden of the ilku were transferred to the adult son under the condition of serving. If the son was young, then 1/3 of the field and garden were transferred to the mother so that she could raise her son.

In Babylon, land was owned by the state, community or private individual. Many documents have reached us about the sale of houses, fields, gardens, slaves, etc. State lands belonged to the palace. The king transferred part of these lands to small landowners for payment in kind (sometimes even with equipment), the other part was presented to officials and soldiers as a reward for service (sometimes with residents, house and equipment) as “ilku” property.

The owner could claim his property from any person; if the owner refuses to return the item, the first one attracts witnesses. If the owner could not prove the good faith of the acquisition of the thing, then he was subject to the death penalty, like the seller of the thing. If the plaintiff failed to prove his ownership, he was put to death as a slanderer.

Werdum slaves were the property of the owner. They are sold, given as gifts, loaned out, passed on by inheritance. If in Egypt the main source of law was military captivity, then in Babylon not only foreigners became slaves, but also, under certain conditions, the inhabitants of Babylon. True, Art. 117 says that debt slavery is temporary slavery, which cannot last more than 3 years.

In Babylon, the slave was given the right to own property, as well as to transact in relation to his property. But after the death of the slave, the property passed to the owner.

It was allowed to free a slave, and a special ceremony took place - cleansing his forehead, i.e. removing the sign of his servitude.

Ilku's property was withdrawn from circulation. In accordance with Article 40 of the Code of Hammurabi, two exceptions were established: it could be sold, firstly, to tamkars; secondly, to other buyers with the fact that the buyer assumes the payment of fees to the treasury.

Community land was divided between villages (communities) and divided into parcels, distributed among the residents of a given area - “neighbors” for temporary use by lot.

The land was purchased without any special formalities; a document was drawn up, to which the seller attached his seal. The law strongly protected private property: A thief faced the death penalty if he was unable to pay the huge fines established by law.

3. Law of obligations.

The law of obligations of the times of Hammurabi knows:

a) contractual obligations;

b) obligations arising from causing harm.

Contracts were executed according to samples (forms) on clay, dried in the sun or baked in a fire and turned into a hard tablet.

The following agreements are known: purchase and sale and interpersonal and property rental, loan, deposit, assignment, partnership, tamkara agreement with shamalu (money people - with sales agents).

Obligations arising from causing harm provided for compensation for harm caused in the following cases:

causing damage to irrigation structures;

the carelessness of a shepherd, through whose fault the cattle were grazing in someone else's field;

cutting down a tree in someone else's forest;

ship collisions (responsible for those floating up the river);

wounded in a fight;

accidental killing of a male or female slave.

4. Family law.

The marriage was concluded through a contract. In Babylon, marriages between slaves and free people were allowed. Children born in such marriages were recognized as free. The wife occupied a fairly high position in the family, but the husband still had significant personal power over her. A man could marry another woman, and ex-wife leave in the house as a slave. A man could get a divorce freely, but it was difficult for a woman to get a divorce.

5. Criminal law.

There is no mention of the custom of blood feud in the Laws of Hammurabi. It is imposed in some cases by punishments imposed by state authorities, in other cases by rewards paid by the criminal to the victim or relatives.

At the same time, the law retains quite a few remnants of primitive relations:

a) responsibility for a crime by the entire territorial community in cases where the identity of the offender is unknown (Articles 23,24);

b) responsibility of children for crimes committed by parents (Articles 116, 210, 230);

c) expulsion of the criminal from a given area or “from home”;

d) preservation in a number of cases of the principle of talion “Equal for equal” (Articles 196, 197).

For the same crime, the avilum, the musken and the slave were given different punishments. Thus, the law had a pronounced class character.

The laws of Hammurabi know the following types of punishments:

death penalty (in more than 30 cases);

self-harm punishments;

corporal punishment (lashes);

imposition of the mark dishonored;

expulsion from native area or home;

monetary penalties;

dismissal from a position with a ban on holding it in the future.

The crime system contains:

malfeasance (the judge who changed the verdict, who received a bribe is punished with a fine equal to 12 times the value of the claim and is deprived of his position without the right to occupy it in the future);

false accusation, perjury (punishable by death);

crimes against the person, accidental murder (punishable by death for the culprit or his son or daughter), murder of a husband by his wife (the culprit was impaled);

the doctor's responsibility for unsuccessful treatment entailed self-mutilation; other crimes were punished according to the talion principle;

abduction of young children (punishable death penalty Art. 14);

property crimes:

a) theft of property from a palace or temple (Article 8) (punishable by death);

b) theft of domestic animals (compensation 30 times the amount or, in case of non-payment - death penalty) (Article 8);

c) theft by burglary of a wall (punishable by burying the thief near the wall);

d) theft during a fire (the culprit was thrown into the fire).

crimes against family and sexual crimes:

a) violation of marital fidelity;

b) sexual intercourse with close relatives (relationship between mother and son is punished, father and daughter - by expulsion of the father);

c) insult by the action of the father on the part of the son.

Characteristic features of Babylonian criminal law:

1) imposition of punishment according to the principle of talion (an eye for an eye, a tooth for a tooth);

2) punishment for the same crime differs depending on who the perpetrator (victim) is: avilum, muskenum or slave;

3) widespread use of the death penalty (by drowning, burning, impalement, hanging);

4) collective responsibility of the community for robbery in cases where the identity of the criminal is unknown;

5) casuistry.

6. Judicial law.

Babylonian law does not distinguish between civil and criminal proceedings. The following are used as judicial evidence: oaths, witness statements, written documents, ordeals (water trials). The laws of Hammurabi establish strict penalties for perjury and baseless accusations in court.

The reign of King Hammurabi was marked by the creation of collections of laws. The collection of laws is engraved on a black basalt pillar. The text was divided into 3 parts. In the first part, Hammurabi announces that the gods handed over the kingdom to him so that “the strong would not oppress the weak.” This is followed by a list of the benefits that were provided to Hammurabi by the cities of his state. There were 282 articles of laws.

1) Under King Hammurabi, private ownership of land reached highest level development. In Babylon there were the following types of land ownership: royal; temple; community; private. The king managed the royal and temple households.

The legislation of Hammurabi knows the following agreements: leases; property rental; personal hiring; loan; purchase and sale; storage; partnerships; instructions.

Big role In the land relations of that time, the lease of land plays a role, therefore, in the Laws of Hammurabi there are a number of articles devoted to the lease of a field, a garden, and not yet developed land. The Laws of Hammurabi mention various types of property rental: premises, domestic animals, ships, carts, slaves. A fee for renting things is established, as well as liability in case of loss or destruction of the rented property.

Agricultural workers, doctors, veterinarians, and construction workers were hired using personal employment contracts. Laws determine the procedure for remuneration of these persons and their responsibility for the results of their work. A feature of Hammurabi's legislation regarding loan agreements (both monetary and in kind) is the desire to protect the debtor from the creditor and prevent debt slavery. The laws regulated the following provisions in detail:

Limiting the maximum debt repayment period to three years;

Limitation of interest charged by moneylender;

Liability of the creditor in the event of the death of the debtor as a result of ill-treatment.

The contract of sale and purchase was also very common due to the existence of private ownership of movable and immovable property. The purchase and sale was regulated by the following provisions:

the sale of valuable items (land, buildings, slaves, livestock) was carried out in writing with witnesses;

the seller could only be the owner of the thing;

the sale of property withdrawn from circulation was considered invalid.

2) The marriage was concluded on the basis of a written agreement between the future husband and the father of the bride and was valid only in the presence of this agreement.

The head of the family was the husband. A married woman had some legal capacity: she could have her own property, retained the right to the dowry she brought, had the right to divorce, could inherit after her husband along with her children. However, the wife’s rights were limited: for infidelity (defined in law as adultery) she was subject to severe punishment; if she was barren, then the husband was allowed to have a side wife.

As the head of the family, the father had strong power over the children: he could sell children, give them as hostages for his debts, cut out their tongues for slandering their parents.

Although the law recognizes inheritance by will, the preferred method of inheritance is intestate inheritance. The heirs were:

children; adopted children (the Laws of Hammurabi allow the adoption of children); grandchildren; children from a slave-concubine, if the father recognized them as his own.

The father had no right to disinherit a son who had not committed a crime.

3)General concept crimes and a list of all acts that are recognized criminal, the Laws of Hammurabi do not give. From the content of the codification, three types of crimes can be distinguished.

against the person;

property;

against the family.

Laws include reckless homicide as a crime against a person. Nothing is said about premeditated murder. Various types of self-harm are discussed in detail: damage to the eye, tooth, bone. The infliction of beatings is separately noted.

Among property crimes, the laws name the theft of livestock and slaves. Crimes other than theft include robbery and the concealment of slaves.

Crimes that undermine the foundations of the family, the laws consider adultery (the infidelity of the wife, and only the wife) and incest. Actions that undermined paternal authority were also criminal. The purpose of the punishments provided for by the Laws of Hammurabi was retribution, which determined their types. The main types of punishment were: the death penalty in various versions.

When determining punishments for crimes, committed against an individual, the legislator was guided by the “principle of talion” - “measure for measure”, when the perpetrator was assigned the same fate as the victim.

Punishments for property crimes were the death penalty, self-harm, or a fine many times the value of the stolen goods. If the fine was not paid, the culprit was executed. Crimes that undermined the foundations of the family were also punishable by death (for adultery) or self-mutilation - for example, cutting off the hand of a son who hit his father.

4) The conduct of trials in criminal and civil cases was carried out in the same way and began upon a complaint from the injured party. Evidence included testimony and oaths. According to the norms of procedural law, the judge was obliged to personally examine the case. The judge could not change his decision under the threat of a large fine and deprivation of his position without the right to return to it.

1. The first codification of the laws of Babylonia, dating back to the beginning of the reign of King Hammurabi, has not reached us. Known to us Laws of Hammurabi were created at the end of this reign.

The collection of laws is engraved on a black basalt pillar. The text of the laws fills both sides of the pillar and is inscribed under the relief, which is placed at the top, on the front side of the pillar, and depicts the king standing before the Sun god Shamash, the patron of justice. The presentation of laws differs in that it is done in a casuistic form; the texts do not contain general principles, do not have religious and moralizing elements. The text of the collection consists of three parts:

an introduction in which Hammurabi declares that the gods handed over the kingdom to him “so that the strong would not oppress the weak,” and also lists the benefits that they provided to the cities of their state;
282 articles of laws,
extensive conclusion.

The sources for compiling the collection were:

customary law;
Sumerian judges;
new legislation.

2. Under King Hammurabi, private ownership of land reached its highest level of development. The following types of land ownership existed in Babylon:

royal;
temple;
community;
private.

The king managed the royal and temple households.

With the development of private ownership of land, communal lands were reduced and the community declined. Therefore, lands could be freely sold, leased, passed on by inheritance; there were no restrictions on such transactions on the part of the community.

Large landowners used the labor of slaves and hired workers, while small landowners cultivated their land themselves. The land plots of soldiers, as well as the property of soldiers, were subject to a special legal regime.

3. The legislation of Hammurabi knows the treaties:

rent;
property rental;
personal hiring;
loan;
purchase and sale;
storage;
partnerships;
barter;
instructions.

The lease of land played a major role in land relations of that time, therefore the Laws of Hammurabi contain a number of articles devoted to the lease of a field, a garden, or yet undeveloped land. The Laws of Hammurabi mention various types of property rental: premises, domestic animals, ships, carts, slaves. A fee for renting things is established, as well as liability in case of loss or destruction of the rented property.

limiting the maximum debt repayment period to three years;
limiting the interest charged by the moneylender;
liability of the creditor in the event of the death of the debtor as a result of ill-treatment.

The contract of sale and purchase was also very common due to the existence of private ownership of movable and immovable property. The purchase and sale was regulated by the following provisions:

the sale of valuable items (land, buildings, slaves, livestock) was carried out in writing with witnesses;
the seller could only be the owner of the thing;
the sale of property withdrawn from circulation was considered invalid.

4. The marriage was concluded on the basis of a written agreement between the future husband and the father of the bride and was valid only if there was this agreement.

As the head of the family, the father had strong power over the children: he could sell children, give them as hostages for his debts, cut out their tongues for slandering their parents.

Although the law recognizes inheritance by will, the preferred method of inheritance is intestate inheritance. The heirs were:

children;
adopted children (the Laws of Hammurabi allow the adoption of children);
grandchildren;
children from a slave-concubine, if the father recognized them as his own.

The father had no right to disinherit a son who had not committed a crime.

5. The Laws of Hammurabi do not provide a general concept of crime and a list of all acts that are considered criminal. From the content of the codification we can distinguish three types of crimes.

against the person;
property;
against the family.

Laws include reckless homicide as a crime against a person.

Nothing is said about premeditated murder. Various types of self-harm are discussed in detail: damage to the eye, tooth, bone. The infliction of beatings is separately noted.

Among property crimes, the laws name the theft of livestock and slaves.

Crimes other than theft include robbery and the concealment of slaves.
The laws consider adultery (the infidelity of the wife, and only the wife) and incest to be crimes that undermine the foundations of the family. Actions that undermined paternal authority were also criminal. The purpose of the punishments provided for by the Laws of Hammurabi was retribution, which determined their types. The main types of punishment were:
death penalty in various versions - burning, drowning, impalement;
self-mutilation punishments - cutting off a hand, cutting off fingers, tongue, etc.;

fines;

The penalties for property crimes were death, self-mutilation, or a fine many times the value of the stolen goods. If the fine was not paid, the culprit was executed. Crimes that undermined the foundations of the family were also punishable by death (for adultery) or self-mutilation - for example, cutting off the hand of a son who hit his father.

6. Lead processes in criminal and civil cases was carried out in the same way and began upon a complaint from the injured party. Evidence included testimony, oaths, and ordeals (for example, a test by water, regulated by the legislator). According to the norms of procedural law, the judge was obliged to personally examine the case. The judge could not change his decision under the threat of a large fine and deprivation of his position without the right to return to it.

The laws of Hammurabi paid great attention to the institution of property, especially land ownership. In Babylon, land was owned by the state, communities or private individuals. State lands belonged to the royal palace. Some of these lands were transferred into ownership or lease. Small landowners owned land for payment in kind, the other part of the land was transferred to officials and soldiers as a reward for service (sometimes with residents, house and equipment) as property Ilku.

The Laws of Hammurabi speak in detail about the land plots issued to warriors. This property was withdrawn from circulation. The laws established only two exceptions: it could be sold, firstly, to tamkars, and secondly, to other buyers, but on the condition that the buyer undertakes to pay the due fees to the treasury. A soldier’s refusal to go to war entailed the death penalty and loss of military property. And if a warrior sent a hireling, then he himself was subject to death, and the property was transferred to the hireling. In the event of the death of a warrior or his capture, the property passed to his son, subject to his military service. If the son was young, 1/3 of the land plot was given to the mother. If a warrior returned from captivity, the property given to another warrior was returned to him. A temple or palace paid for the ransom of a warrior from captivity. All this was aimed at protecting the soldiers from ruin and tied them financially to the king.

Land relations within the community, which retained control over the land (meadows, pastures for livestock) and over the irrigation system, were regulated in detail. Personal plots, gardens, and arable land were owned by individual families. A peasant could sell, exchange, mortgage, lease, or inherit his plot - this did not even require the consent of the community. It was only necessary to meet two conditions:

1) all these transactions could be carried out only by a full member of the community; those who left the community lost all rights to the land plot;

2) transactions regarding land can only be concluded within the community; alienation of land outside the community was not allowed.

The laws reflected the process of attack on communal lands by the secular and priestly nobility. There was also the practice of the king distributing communal land to his entourage. The community received certain compensation for the confiscated land, but had no right to oppose the alienation.

Private ownership of land was established early in Babylon, but it was not widespread.

Slaves ( vardum) were the property of the owner (they were sold, given, loaned, passed on by inheritance). In Babylon, not only foreigners became slaves, but also, under certain conditions, the inhabitants of Babylon. Debt slavery was temporary and could not last more than three years. The laws of Hammurabi gave the slave the right to own property, as well as make transactions in relation to it, but after the death of the slave, the property passed to the owner.

Judging by the Laws of Hammurabi, the legislator guards the interests of the ruling class of the rich and noble. The protection of property is given special importance. The law establishes detailed analysis cases of theft of private property and punishes by death the street thief, as well as the seller and buyer involved in the theft. The person responsible for the theft of temple and palace property was to be killed. The law in this case did not require special testimony and did not provide for mitigating circumstances.