Wednesday, July 11, 2007

The comparisons between family law of the Code of Hammurabi and the Magna Carta

The Code of Hammurabi was created in 1780 BC. The Code focus on agriculture, property damage, women’s rights, marriage rights, children’s rights, slave rights, murder, death, and injury. In addition, for Magna Carta was an English charter originally story and created in 1215. As a result, both Hammurabi and Carta produced the law of family in the different concepts. According to family law in the Code of Hammurabi, most articles are focused on marriage couple who have born children or not because in Hammurabi’s Government was interested on child birth in order to produce more soldiers for their nation; therefore, the law set an obligation to all marriage couple to have children; for instance, article 128 stated that if a man take a woman to be wife, but have no intercourse with her, this woman is no wife of him. This article means that if a marriage couple won’t have relationship with each other then they will not have children. If the children were not born, then the rate of solider was declined so, a couple after marriage must have relationship with each other and if not, then it will not consider as a marriage; consequently, a woman or a man can be free and remarry to other people and have children and their children will become a soldier when they are grown up. In addition, Monogamy was the rule in the Code of Hammurabi, but a childless wife might give her husband a maid (who was no wife) to bear him children; for example, article146 stated that if a man take a wife and she give this man a maid-servant as wife and she bear him children, and then this maid assume equality with the wife, but he may keep her as a slave, reckoning her among the maid-servant. This article means that the man can take only one wife even if she have no children for him, but she give him a maid servant to bear him children and even this maid assume to be equal to the wife, but that doesn’t mean this maid can become as a second wife because he may keep her as a slave. The most important in this article 146 is shown about Monogamy as a rule in the code and it is also shown that government really concerned on the child birth. On the other hand, only few clusters such as cluster 3, 6, 7, 8, and 11 in the Magna Carta that stated relate to family situation included inheritance and paying debt, but not interested much on child birth as family law in the Code of Hammurabi because this law is created by the rebellion of the barons to limit the power of the king; therefore, it might not focused much on family situations.

Another different ideas between family law in the Code of Hammurabi and the Magna Carta is that according to article 177 in the Code of Hammurabi has shown that a widow after her husband died, then she must took her’s husband place in family, living in his house, and bringing up the children. Moreover, she is allowed to remarry but only with judicial consent and the judge will examine the estate and hand it over to a widow and her new husband, but both of them could not be able to sell a single utensil of her first husband’s property in the house. In this case of remarried, all her children must shared equally in her dowry and the first’s husband gift fell to his children or to her selection among them, but if she didn’t remarry then she could live in her husband’s house and took a child’s share on the division of his estate when children grown up. This article is kind of set an obligation to a widow to take care of her husband’s properties in order to raise up her children and give those properties to children when they are grown up even she is allowed to remarry, but she could not take her husband’s properties to sell for money in order to enjoy happiness with her new husband. In contrast, a cluster 7 in the Magna Carta has shown that a widow after her husband died, a widow may have her marriage portion and inheritance, but in cluster 8 stated that no widow shall be compelled to marry as long as she want, but must be give security by royal consent. Moreover in cluster 3 and 4, if there were a heird who under age, then the kin could assume as the guardianship of the estate and the guardianship can enjoy all the profits until the heir came of age to get his inheritance.

In conclusion, we can see that the differences between family law in the Code of Hammurabi and the Magna Carta are that the Code of Hammurabi has set up a lot of articles that relate to family law which has also set up an obligation to couple to have children for becoming soldiers of the nation and set an obligation to the couple to respect the rule of Monogamy by having only a wife or husband; moreover, the law also set up an obligation to a widow even she has remarried but must be examine by judicial consent, and she still have the duties to be a wife and mother who taking care of husband’s property in order to raise up the children and give to children when they are grown up. On the other hands, there were few clusters in the Magna Carta that focused on family law, but still some clusters in family law of the Magna Carta has shown the different from the Code of Hammurabi in case of husband death, the widow could avoid from compelling to marry by royal consent, but may have an inheritance. If the inheritance is given to the heir under age, the guardianship should take care of it and get benefits on it until the heir reach the age of getting inheritance. Therefore, both family laws of Hammurabia and Carta even had different explain and thought but they looked good because both have same objective to serve the people and made the country got peaceful and avoid from the conflict by let people lived in happy life.
(Group work by Than Sakseka and Kray Sokkanha)


Stan Starygin said...

What are children's rights at divorce under Magna Carta or their parents' death? Do have an entitlement to any of their property? Do you believe that Magna Carta provides any protections for children in the form of rights at all?


Seka said...

According to inheritance situation in Magna Carta I think it also protect to children's right but it may be less protection than in Hammurabi because in Magna Carta when the inheritance share to a children who under age to get inherit then the next kin will take care of the properties for the child but they can get profit on this properties which different from Hammurabi that nobody can sale out the inheritance of the first husband's properties for his children. But I think even it less protection for children in Magna Carta, but it is fair to the guardianship because they try their best and waste their time to take care the children's properties therefore they should get some benefits back.