THE CURSE OF HAMMURABI
The Hanging of Saddam Hussein
and
Anglo-American Influence on the Rule of Law in Iraq
by John Benneth
The following 3800 year old inscription, called The Code of Hammurabi was found on a stone monument 
originally from Iraq. I’ve edited it for comprehension and brevity. In addition to a preface, epilogue and the following warning, or curse, it lists over 200 laws, which it is claims covers every conceivable conflict between the Iraqi people of its day, and for generations to follow. The Code of Hammurabi is one of the oldest (if not the oldest) and most complete records of law known in the world today.
Hammurabi, the protecting king of Iraq am I.
The great gods have called me in order to declare justice in the land, to settle all disputes, and heal all injuries, set up these my precious words, written upon my memorial stone, before the image of me, as king of righteousness.
Let the oppressed, read the inscription. The inscription will explain his case to him; he will find out what is just:
When he reads the record, let him pray with full heart to Marduk, my lord, and Zarpanit, my lady; him shall be put to death. The Code of Hammurabi
The Daily Show
The Daily Show with Jon Stewart ran jokes about Saddam’s death sentence. A Daily Show “reporter” did a fake “LIVE FROM BAGHDAD” segment under the headline “Autocratic Asphyxiation.” The reporter said the death sentence was part of a plea bargain because “hanging in Iraq still constitutes death by natural causes”. 
Laughing, Stewart asked, “So when can we expect this hanging?”
“In the spring, Jon, and if you’ve never seen a spring hanging, with the noose silhouetted against the honeysuckle . . .”
Nigel Farndale of the telegraph.co.uk. reacted to the Daily Show “humor” by writing:
“I dare say Americans have stronger stomachs for this sort of thing. They are comfortable with the concept of capital punishment, as they demonstrate every year with the execution of more than 100 of their citizens. But I couldn’t watch any more. I felt sick. The gags made me gag. Judicial murder degrades and dehumanises all concerned: judge, jury and executioner. Making jokes about someone who is to be executed, even if that someone is a genocidal tyrant, does the same.” http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2006/11/12/do1205.xml&sSheet=/opinion/2006/11/12/ixopinion.html
TURNED OFF
According to Wikipedia, the short drop is a form of execution used in most Middle Eastern countries that causes death by
aphyxiation. You do it by putting the condemned man on the back of a horse or a cart with the noose around his neck. The horse is then spanked away, the doomed is yanked from his perch and dangled by the neck until dead. Another way is to execute the short drop is to use a step ladder which is pulled away, leaving the victim hanging. A man hanged by a step ladder is said to have been “turned off.”
MARK TWAIN’s HANGING
The long drop is the preferred method in America calculated to kill the victim with a drop that is just long enough to break his neck without completely decapitating him.
“My own suspense was almost unbearable — my blood was leaping through my veins, and my thoughts were crowding and trampling upon each other. Twenty moments to live — fifteen to live — ten to live — five — three — heaven and earth, how the time galloped! — and yet that man stood there unmoved though he knew that the sheriff was reaching deliberately for the drop while the black cap descended over his quiet face! — then down through the hole in the scaffold the strap-bound figure shot like a dart! — a dreadful shiver started at the shoulders, violently convulsed the whole body all the way down, and died away with a tense drawing of the toes downward, like a doubled fist — and all was over! I saw it all. I took exact note of every detail, even to Melanie’s considerately helping to fix the leather strap that bound his legs together and his quiet removal of his slippers — and I never wish to see it again. I can see that stiff, straight corpse hanging there yet, with its black pillow-cased head turned rigidly to one side, and the purple streaks creeping through the hands and driving the fleshy hue of life before them. Ugh!” Mark Twain report to the Chicago Republican on the hanging of John Millian, the convicted murderer of Julia Bullette. http://dmla.clan.lib.nv.us/docs/nsla/archives/mtwain.htm
A SLOW AND AGONIZING DEATH
The face becomes engorged, turns blue through lack of oxygen and shows the classic signs of strangulation, little red dots on the face and in the eyes from burst blood vessels. The tongue sticks out, evidence of a slow and agonising death by strangulation. More at http://en.wikipedia.org/wiki/Hanging
American Justice, Iraqi Style
Just what is meant by the word law, and how is it applied comparitively in these two societies? Can American law provide for Iraqi justice? The word “law” comes from the Anglo Old Norse plural of lay, meaning those things laid down and settled. Follow along and this gets interesting. There is a nexus in this word lay in the English use of it. In the context of laity lay means “someone not of the clergy or professions,” traced back to the Greek “laos;” laos means the people, referred to as the “laity”; a layman is a common man, and in the oldest traditions of the law, the law man was the lay man.
Law #2: 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. The Code of Hammurabi
It is my underlying thesis here that the American legal system is one of America’s inherent strength. Not only does she have a large legal class trained in the finer points of law, but more importantly, her trump card is that she employs her laity, the common man as the bulwark of the law. Her professional class of lawyers is overseen by councils of grand and petit juries, constituted by her ordinary non professional citizens, drawn randomly from her communities. Her common class provides a check and balance for her professional class.
This is not entirely unusual on the planet, but the American grand and petit Juries appear to be unique in the world today.
Law #3: If any one bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death. The Code of Hammurabi
It may be just coincidence that the one country that makes most use of her laity as jurists in deliberating in actions in law has been regarded as the wealthiest, its high crime rate notwithstanding.
The lay jury system essentially throws into the system a roll of the dice. There’s no control by the legal class of who sits 
on the indictment jury, and control of who sits on the petit juries is restrained.
The tradition of the laity being the law, as is exemplified in democracy and Western juries is at times in conflict with the carnival atmosphere of show trials attendant to professional lawyers and judges. Do commercial pressures on the law affect our judgment of it?
Consider how powerful the secret grand Jury is in American society. A Federal grand Jury can indict anyone or anything, from the President of the United States down to . . . it has been said jokingly . . . a ham sandwich. The grand Jury arguably has more power than any other collective body in American government, and yet it remains a collection of anonymous laymen, selected at random, who are paid nothing but a minimum of their expenses, dragooned by duty to temporarily sit as secret, and hopefully impartial judges, assembled to decide whether or not to formerly accuse, or indict, those suspected of crimes.
Traditionally, if the grand Jury indicts, it issues what is called a “true bill” and remands the accused for trial by a petit jury.
Sortition is a lottery, where the choices are made by chance. In this way the jury differs from a government of democratic election, as a government of Anglo Saxon sortition. Greco-American democracy and the Anglo-American jury system theoretically synchronize to work side by side in American society.
“Juries invest each citizen with a sort of magisterial office; they make all . . . feel that they have duties toward society and that they take a share in its government.” Alexis de Tocqueville, Democracy in America
The Anglo-American war to make Iraq democratic raises the question of what kind of legal system American lawmakers are settling for in Iraq. If it is incumbent on American foreign policy to impose a political system on a country, then the question of what kind of legal system that country is supposed to have automatically goes with it. Is American style democracy compatible with the Iraqi legal system? If not, will America face the task of changing the Iraqi legal system? Is civil war breaking out in Iraq because the Iraqi legal system cannot temper the will of the masses evoked by democracy?
If there is an incompatibility between the political and legal systems of Iraq, could it be because the ideologues of American law and politics have not identified it as a problem yet?
O.J. GOLFS, SADDAM HANGS
When Americans fing themselves in a position of having to deploy their political system in a foreign country that they have invaded, they also find themselves in the position of having to deploy a compatible legal system to go with it. It naturally follows then that Americans must believe that their legal and political systems are profoundly good and wise. It must also be understood, that a political system cannot operate without a compatible legal system.
The trial of O.J. Simpson shook American confidence in the jury’s ability to render competent verdicts. In India the jury system, have given up the use of juries over cases where the popular opinion was that the accused should have been found guilty.
Law #4: If he satisfy the elders to impose a fine of grain or money, he shall receive the fine that the action produces. The Code of Hammurabi
Once the Prime Directive of noninterference has been violated, it is even more irresponsible to simply walk away from it 
without leaving an operational system that keeps crime and mayhem at a minimum. Can Americans claim that their politico-legal system keeps crime and mayhem at a minimum? Or would America be exporting her own chaos in imparting her political and legal systems to Iraq?
Twice, Iraq may not have a trained legal class to sustain an adversarial legal system. However, the beauty of the American legal system is its willingness to draw its judges from the common population to create, in effect, a common law judicature that is not necessarily dependent on a trained legal class. The grand jury does not employ the adversarial process.
Rather, it employs the inquistitorial where proceedings are secret and the accused is questioned directrly by the jury which also acts as the final judge, for indictment. The grand Jury can operate with no professional judge or attorney, and theoretically, if it could not only indict, why couldn’t it also try, abjure, find innocent or convict? Where there is no petit jury to remand to, where there is no adversarial process, the grand Jury form of proceedings could also act as the final arbiter.
Can a common law judicature be created in Iraq? This is a profound question.
LAW #5: If a judge try a case, reach a decision, and present his judgment in writing; if later error shall
appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge’s bench, and never again shall he sit there to render judgement. The Code of Hammurabi
We want them to have peace and prosperity, just as we wish it for ourselves. American democracy, with its will of the majority and all its election pageantry, tempered by the law as uttered out of the mouths of faceless American juries, are contrasted here in this article with the capture of a foreign leader, Saddam Hussein, by American forces. Hussein is put on trial in his own country under American martial rule.
What form of law is used to judge Hussein? And will it stick? How will it be judged historically by the Iraqi and American people, and the rest of the world? What kind of justice is being wrought here? What stage does it set for future justice in America, with her death sentences, prisons and crimes? Can American justice work in foreign lands? Does it work in her own?
Contrast American justice with other systems of law-finding in other countries, such as Japan, India and in Arabic and European countries, where sometimes professional judges alone decide the outcome of cases.
I DARE SAY . . .
Was Saddam Hussein indicted for murder or any other crime by a jury of his peers?I don’t think so. The references I’ve found so far to an “Iraqi jury” appear to be mainly mere assumptions on the part of uninformed American pundits and bloggers (what is the difference?) In truth, apparently, Iraqi juries don’t exist.
From a Google News Search, 11/11/06: “Your search – ‘Iraqi juries’ OR ‘Iraq juries’ – did not match any documents.”
Jurist, at http://jurist.law.pitt.edu , a Web based legal research service run by the University of Pittsburgh School of Law reports: “The Iraqi judiciary is not independent, and there is no check on the President’s power to override any court decision. In 1999 the UN Special Rapporteur on
Iraq and international human rights groups observed that the repressive nature of the political and legal systems precludes the rule of law. . . . Trials in the regular courts are public, and defendants are entitled
to counsel, at government expense in the case of indigents. Defense lawyers have the right to review the charges and evidence brought against their clients. . . . There is no jury system; panels of three judges try cases.” http://jurist.law.pitt.edu/world/iraq.htm
The emphasis is mine. I haven’t seen anything otherwise to indicate that the trial of Saddam Hussein was tried in any way different than the way described by Jurist.
- THERE IS NO JURY SYSTEM IN IRAQ.
- THE IRAQI JUDICIARY IS NOT INDEPENDENT.
- THERE IS NO CHECK ON THE PRESIDENT’S POWER TO OVERRIDE ANY COURT DECISION
The judiciary in the Iraqi constitution contains no reference to a jury in its judiciary section. http://en.wikipedia.org/wiki/Proposed_Iraqi_constitution
Iraq apparently has no ”jury” other than what has been stated; panels of three judges try cases. From the land of Hammurabi, that is their traditional law.
NOT FOR THE SUPERSTITIOUS
Iraq may well be the birthplace of the oldest written laws on the planet, known as The Code of Hammurabi, 282 statutes full of death sentences, immolations and impalings, governing the disposition of slaves, wives, children, incest, adultery and presumably just about any kind of dispute, including judicial error.
Law #21: If any one break a hole into a house (break in to steal), he shall be put to death before that hole
and be buried.
One can read in Hammurabi, that the Iraqi people have traditionally, depended upon a demagogue for leadership since the beginning of recorded time. Here is Hammurabi, speaking of himself and what he hasdone for his people, who he speaks of in terms of ownership:
I have not withdrawn myself from the men, whom Bel gave to me, the rule over whom Marduk gave to me, I was not negligent, but I made them a peaceful abiding-place. I expounded all great difficulties, I made the light shine upon them. With the mighty weapons which Zamama and Ishtar entrusted to me,