古巴比伦法官判案不援引《汉穆拉比法典》原因探析——以古巴比伦王国司法实践为中心的考察

Why Hadn' t the Old Babylonian Judges Invoked the Code of Hammurabi When They Judged Cases?——Based on the Judicial Practice in the Old Babylonian Kingdom

学界关于《汉穆拉比法典》性质的争议聚焦于该法典法律效力,究其原因在于古巴比伦王国的审判记录从未明确提及它,然而,个中原因十分复杂:首先,汉穆拉比可能在临终之际颁布了《汉穆拉比法典》,根本无暇实施,其子孙面临内忧外患,不可能强力推行它;其次,虽然汉穆拉比统一了两河流域的广阔区域,但中央集权制的政治体制尚未完备,地方法官和审判机构掌握相当大的司法权;再次,古巴比伦法官断案主要依据各地的惯例,有时也要遵照国王的敕令,但后者大多属于国王针对具体案件所做的指示而非普遍意义的审判原则,敕令不可能是《汉穆拉比法典》。总之,古巴比伦法官未曾援引《汉穆拉比法典》判案,既受它因政治环境而未曾广泛实施的影响,又涉及王权与地方势力在司法权方面的角力,还牵涉习惯法在司法审判中的巨大影响力,因此,古巴比伦法官断案不引用《汉穆拉比法典》并不能成为否定其性质的主要依据。

The core of the academic discussion about the nature of the Code of Hammurabi is its legal effectiveness,for the fact that the Old Babylonian court records had never cited it,and the main reasons may be as follows:Firstly,Hammurabi himself may not have time to carry out his code,which had been promulgated when he was dying,and his descendants facing the domestic trouble and foreign invasion could not implement it either;Secondly,the centralized political system of the Old Babylonian kingdom was no mature,and local judges and institutions were powerful;Thirdly,the Old Babylonian judges mainly invoked local customary rules to decide the cases,and mentioned the royal decrees occasionally,which were specific order to different cases rather legal principles of university,i.e.the Code of Hammurabi.In one word,the factors that the Old Babylonian judges had not invoked the Code of Hammurabi when they performed their roles were complicated,such as its political situation,the wresting of the royal and local powers,and the importance of local customary practices,therefore the silence of the Code of Hammurabi in the Old Babylonian judicial practice may not be the main reason to deny its legal nature.