Final Paper

Topic
The Rights to Inherit under the Code of Hammurabi and the Magna Carta

Name: Than Sakseka
ID: 03973
Prof.: Stan Starygin
Course: Human Rights and World Politics (M/W 9:30-11:30)

Introduction

In the world, all states now always create or have their own laws in order to make easy for government to manage the disorder in their countries or their societies, and protect human rights; therefore, there were two laws created in the past such as the Code of Hammurabi and Magna Carta. These two laws are known as the earliest law instrument for developed the laws in the world today.

Significant Problem

The reason I choose the topic of the rights to inherit under Hammurabi Code and Magna Carta to write as my final paper of the Human Rights and World Politics class because I want to know clearly about the meaning of this right in these two laws that why in this paper, I try to take out some articles from two laws that related to the rights to inherit to explain what this rights mean; how the rights set an obligation to people; and whom will get or take care of the inheritances. Moreover, I will discuss about the similarities on the intention of creating the rights to inherit between Hammurabi Code and Magna Carta and the differences in the concept and meaning of the right to inherit under both laws, and I will make a comparative on which of the two laws afforded a broader rights to inherit and which of the two laws stood a better chance of affording effective protection to this rights.

Hypothesis

In order to make this paper related more to the course I have studied; therefore, this paper will attempt to answer some following questions:
 How do the rights in both laws reflecting into human rights?
 Why does the Magna Carta law still exist in today law of most countries, but not the Hammurabi Code?

Literature Review

Before starting to explain the meaning and making a comparison between the rights to inherit under the two laws, I think we should know briefly about the background of Hammurabi Code and Magna Carta.

First of all, the Code of Hammurabi is created in 1780 BC by the king Hammurabi. This law is known as the first law in ancient Mesopotamia created in the world that were carved on the stone as the king thought it will remained the same on the stone forever so, all people could all know the law and look at the law whenever they need. In addition, at that time was the period of the God King; therefore, the law is created on King own wills, but this law is still focused on women’s rights, marriage’s right, children’s rights, slave’s right, theft, murder, death, injury, and agriculture.[1]

Second, the Magna Carta is created in 1215 by the royal chancery and landowner according to the rebellion of the English’s barons and civil war against the right of the king. As a result, this law is created as a formal document to limit the power of English king at that time and to protect an individual right for particular groups who wrote this.[2]

According to the limitation of this paper, I will take out only 8 articles related to right to inherit from 282 articles in the Code of Hammurabi[3], and only 5 clusters of the rights to inherit from 63 clusters in the Magna Carta law [4] to summarize in this paper. Furthermore, all these materials are taken out from one book of “Human rights and World Politics, by Stan Starygin.”

After I have already shown a briefly background of creating these two laws and the material that I use for writing this paper, now in this part I will show the meaning of any articles that related to the rights to inherit under these two laws.

• Some articles of the rights to inherit under Hammurabi Code [5]:

Article 137: means that in the case of separation between a man and a wife that has his children, and the requested is made by a man, then the law set an obligation to a man to give back her dowry and a part of his properties to the children, and putting the obligation to women to keep the properties and raise up the children, and when the children grow up they will have the right to get all properties from mother. However, in the same case if a wife has no child, then a wife has the right to get back her dowry and the purchasing price from her husband only.

Article 150: means that in the case of father died, but before his death he already gave his properties to his wife, then a wife have authority to pass on the properties to any child whom she likes and other children whom she does not give, they will get nothing.

Article 162: means that in the case of women or wife died and she has children, then the children will get her dowry, but in the same case that a women has no child, then the following article 163 give the right to the father’s house to get a women’s dowry.

Article 165: means that in the case of father died and already gave some part of his properties to one among his children, then that one will get those properties and the rest children will divide the rest of their paternal properties and get it.

Article 170: means that in the case of father died, he has wife with having children and a maid servant with children, the children of the maid servant are recognized as his son, then all children of both women have right to share the inheritance equally, but the children of his wife have more authority in choosing those properties.

Article 177: means that in the case of the children are not grown up, and the widow or the children’s mother wish to remarry, then even the judge decide to let her do so and she can keep the properties, but only for take care the properties in order to raise up the children, and she and her new husband cannot spend any money or sell any properties of the child. At the time the children grow up, they will get all the properties from their mother.

Article 191: means that in the case of adopting other people’s child and later the adoptive father has child and wish to send adopted child out, the law set an obligation to adoptive father to give one-third of a child portion from his wealth to that adopted child.

• Some articles of the rights to inherit under Magna Carta [6]:

Cluster 2: means that in the case of any earl, baron, or other who hold lands of the Crown and they died from serving in military, then their inheritances must belong to their heir, but the law set an obligation to the heir to have full age or grow up in order to get the inheritance, and the heir must also have an obligation to pay the relief for entire barony. However, according to cluster 3 in the same case but the heir was under age, when the heir reached the age of getting an inheritance, the heir no obligation to pay for relief or fine.

Cluster 4: means that in the case that the heir was under age, the kin can represent as an guardian which has right to take care of the heir’s inheritances until the time that heir reached the age of getting an inheritance; moreover, the guardian could get revenue or profit from those inheritances while he take care of that properties, but he could not destroy it, if not the guardian will be punished.

Cluster 6: means that the case of giving inheritance to the heir in marriage is only practiced for higher class, for the heir of lower social standing cannot get the inheritance.

Cluster 7: means that in the case that the husband died, the law set an obligation to a widow or a wife of that man will get the marriage portion and an inheritance in the forty day after her husband death.

The similarities and differences between the rights to inherit under these two laws

In case of both laws has indicated some articles or clusters that related to the right to inherit as I have shown above; therefore, in this section I will show the common intention that both laws creating this right.

As I already explained that the Hammurabi code is produced from the will of the God King Hammurabi, unlike the Magna Carta is produced from the baron through rebellion to limit the right of the king and protect an individual rights of the particular groups that created the laws. However, this two laws still have the same intention in creating the law in order to protect people rights such as the right to inherit and so on because if there is no law stated clearly or showing specific areas of the right and protecting the right of people and the right to inherit, then member of one family, brothers, sisters, the kin, and everybody will get into the conflict with each other and fight or kill each other for the properties and power; for example, in England before the creation of Magna Carta, there was no law to protect or state clearly about the right to inherit; as a result, after King Richard’s death, John as a younger brother of King Richard had a conflict with Arthur; who is King Richard’s nephew, in order to get a power over the throne and become the king of England; and this problem led England to lose the territory to French King as Arthur went to ask French King to help so, in order not to let French King help Arthur, John had to give French-speaking territories to French King to be on his side, not on Arthur’s side, and at the end Arthur is killed by John.[7]Consequently, we can see that without the law to protect the right of people, the people will not be safe, there will lead to have disorder in the society as no law and no punishment then people will not respect and be afraid in doing bad thing, and the country will be dominated or violated from other country. Therefore, Hammurabi Code and Magna Carta have the same objective or purpose in creating the law for their nation in order to serve people, protect people rights, give laws and orders for people to respect and if not, people will be punished so people will not do whatever they like, get conflict with each other or kill each other. In short, I can say that the intention in creating of these two laws are not really depend on whom create it, but the common purpose of every laws are produced only to serve and protect the right of people, and make the country be peaceful by avoiding from the conflict among people, then people will live in happy life by having, respecting and enjoying the law and order of their nation.

Although, Hammurabi Code and Magna Carta have the same intention and objective in creating the law to protect the right of people, but it is not mean that these two laws will produce the same concept or idea in their articles or cluster that state out about each right of people such as the right to inherit under these two laws will not state the same; therefore, the differences between the right to inherit under these two laws will be shown as following:

First, there are different words showing in the articles and the clusters of these two laws. According to articles in Haummurabi Code always use the words children in getting the inheritances after the death of their parents, and in Magna Carta always use the words heir refer to the person who have right to get the inheritances after the death of barons, in this case why did these two laws use the different word? Because the Code of Hammurabi tended to state out clearly word for people to get easy to understand that the law is created to protect the right to inherit of children, and protect the children’s or women’s right as well as protect the human right of all people in their country. However, Magna Carta did not state clearly who is the heir so, it can mean that the heir would be brothers or sisters or children of the barons who have the rights to get the inheritances, and this law is not really protect the human right exactly as every clusters, the law has mention only to protect the rights of individual for particular groups such the church members and the barons. On other words, I can say that different word using also can show different concept of the law, but just a different word or concept then who would care about it? Of course, the people will care about it because these laws are created for people to respect, follow and obey it, and protect the people right or human right then if they don’t understand clearly about the concept of the laws and the laws is not benefit or show the protection to them, then people would not show their respect to the laws or need to obey it.

Second, in Hammurabi Code even did not state clearly that the laws were created for protecting the right to inherit of people but many articles in family law of this code always indicate clearly that all legitimated children can share equally of father’s inheritance and have the right to inherit after the death of fathers for every family in ancient Mesopotamia. Otherwise, according to cluster 6 of Magna Carta was kind of discriminate on the low standing class so it showing more that this law created at that period focus more on the higher class such as church members and barons, not really for protecting human right of the lower class as an ordinary people of England. In short, I can say that Hammurabi code is focused more on human right and afforded the broader rights to inherit than Magna Carta as it show clearly that all children in every family have equal rights in getting inheritance and mother has the right to take care of their children inheritance if they are under age after the death of their fathers.

Finally, in the case of children are not grown up in article 177 of Hammurabi Code, a mother can only take care of their children’s inheritance after a father’s death. Even she asked for remarry, she and her new husband cannot spend any money or sell any things in that property, and they must only keep those inheritances for raised up the children and pass it to children when they are grown up. Nevertheless, in the same case as above, the kin who represent as the guardianship of the heir’s inheritances in cluster 4 in Magna Carta cannot destroy or damage the heir’s properties, but he can get the reasonable revenue or profit from those properties while they take care of it. Therefore, I can say that Hammurabi Code stood a better chance of affording effective protection to this right than Magna Carta.

Conclusion

All in all, we can see that all laws in this world, not only the Code of Hammurabi or Magna Carta are all created with the same intention or objective of protecting the people right, making people be safe by avoiding from conflict, and managing the disorder in the society. However, even all laws represent the same objective, but not mean that all concept of the laws are same because law of each country must create depend on the situation happened in their country. Therefore, there are some differences between the rights to inherit under these two laws; first of all, these two laws using different word in explaining their articles and clusters which it led these two law has the different concept as the Hammurabi Code tended to protect and related to human right than Magna Carta that protect only the right of the church members and the barons. Secondly, Hammurabi code afforded the broader rights to inherit than Magna Carta as it show clearly that all children in every family have equal rights in getting inheritance and mother has the right to take care of their children inheritance if they are under age after the death of their fathers. Finally, Hammurabi Code stood a better chance of affording effective protection to this right than Magna Carta as the mother can represent the guardianship who will keep the properties after the death of her husband and give it back to the children when they grown up, but a mother cannot spend or get any benefit from that properties like the kin who represent the guardianship in Magna Carta can get revenue from the properties while they take care those properties. As a result, I can say that the right to inherit under both laws are also related to Human Rights even though Hammurabi Code focused more in protecting all people’s right than Magna Carta that focused more in protecting only the right of high classes people, but it is better than in the past that there was no law that focused on the right of people created before these two laws, that is the reason why these two laws are known as the earliest law instrument to develop the laws that protected to human right in the world today. However, why does Magna Carta law still exist in today law of most countries, but not the Hammurabi Code? Because Hammurabi Code was just a law that carving on the stone for people easily look at the law whenever they need it, but Magna Carta is first formal law document created in England at that period, and as English’s people always immigrated to other countries such as in the United States, the first immigrant to there was English’s person; therefore, the influence of Magna Carta can be seen in the United States Constitution and Bill of Rights. Moreover, after England always put colony on other different countries in the world so, all countries under English’s colony will follow the English Laws such as Magna Carta law of ancient time as well as English’s common law.

[1]Stan Starygin, Human Rights and World Politic, 15 (2007)
[2]Id, at 131-133
[3]Id, at 25-44
[4]Id, at 149-157
[5]Id, at 33-35
[6]Id, at 150
[7]Id, at 132

References:
Stan Starygin, Human Rights and World Politic,(2007)