LAW & ORDER + CIVIL DISOBEDIENCE!

History 104A, September 14: LAW & ORDER + CIVIL DISOBEDIENCE!

Friday is the second group meeting. Please come prepared for it,

the second group meeting, about 20-25 minutes dealing with Egypt,

Mesopotamia, life and death in Egypt and Mesopotamia.

You have passed the deadline, for those that didn't turn in their

papers for the first group meeting. Just as a reminder, they were due

two weeks from the first group meeting. The first group meeting was

held the 29th. And I think we're now on 14 days, if my math is

somewhat correct on that. Any questions about the second group

meeting before I go on?

All right. We will be entering ancient Greece perhaps starting

today. Actually, today may be Crete. And then after the next couple

of weeks, we'll have the first exam.

I guess, I don't know what I said at the beginning of the

semester. I said I may have mentioned that on the exams, last

semester, we want back to my process of not giving a take-home

question. The take-home question dealt with the optional readings,

the readings that dealt with more world civilization. And my feeling

is that a lot of people spend a lot of extra time looking that stuff

up, the good students, but it was difficult for me to keep up with

some of the stuff they found out. And so I was feeling a little

insecure to be honest with you. The fact is that I guess I should

ask, how many of you would like one of the three questions as a

take-home question prepared? You won't be bringing it into class with

you. How many would prefer three straight questions? How many would

prefer that I not give them any take-home questions. How many prefer

that I give them a take-home question? How many don't give a dam?

That means I have to make the decision. I'll let you know in a week

or two which way I've decided to go.

I mentioned last time that I was going to read an article in part

or completely on comparing the law codes, Hamurabi codes with that of

the Mosaic Code, the Mosaic Code again being from the Bible-the Torah of

the Old Testament. The book I got this from is no longer printed or

available. It was a textbook I used years ago called Hangups from Way

Back. It had generally a section explaining materials and then direct

readings in say the Bible and the code of Hamurabi. And the concept I

think still holds. And that is that we are what we are because of our

past. I am what I am. And therefore, we have many hangups, many

things that hang us up based on our history. And that, of course, is

why I've always been fascinated with history. The past keeps

returning. For example, we have lost quite a bit of the treasures

of Mesopotamia because many of them were in various museums in Iraq

and they got looted and sold on the international market. Looted by

American troops? Perhaps. Looted by Iraqis? Perhaps. They're gone,

some of them destroyed but more stolen and distributed. We lose

things and yet Iraq again is now, 4,000 years from that civilization,

and yet it reappears simply in looting and of course the American

invasion, wars occur. And so we will go on from there to talk about

some of these things that were in existence and gave us the knowledge

of the history as well.

Okay. The title is called Hamurabi, Moses, and Eldridge Cleaver.

And that really is quote an old title. We spoke about Hamurabi and we

spoke about Moses. Does anyone in class know of Eldridge Cleaver?

It's a name from my past, if you will. Eldridge Cleaver was the

minister of information of the Black Panther Party. The Black

Panthers were a radical left wing political group of African-Americans

that started in the Berkeley/Oakland area in the middle to late 1960s.

They were one of the new African groups that were willing to work

closely with the white radicals, like Students for a Radical Society

and the Symbionese Liberation Front. And some of you may recall that

a couple of the people from the Symbionese Liberation Front were

picked up just a few years ago. They were in hiding. And of course

they became famous with their kidnapping of the Patty Hearst, the

daughter of the Hearst newspapers and at that time the San Francisco

Chronicle. Cleaver had spent a good portion of his life in prison.

And while he was there, he wrote a book called Soul On Ice. He later

fled the United States so he wouldn't be returned to jail where he

traveled in Muslim countries and stayed for many years -- in Morocco,

went to Cuba, and finally returned to the United States, gave himself

up, and had converted quote/unquote from a radical left winger to

become a born again Christian and then joined the Mormon church and

attacked left ring politics. Cleaver was a dangerous criminal to

some. And many felt he threatened the security of the country and

felt that he had undermined law and order. Of course today we are

living in an era, a time when we fear the breakdown of law and order

in various forms, from natural disasters to terrorism. Throughout the

course of history men have been considered heroes by some and

criminals by others. Indeed, the question of patriot or traitor, hero

or rebel is really a matter of who happens to be the judge. Criminal

is often defined by society. And what we're talking about here are

generally what we would refer to as political prisoners, political

criminals who disagree with the thrust of the law in a particular

society historically.

Well, let's look at some definitions historically. In the 18th

century in some European countries the punishment for stealing a loaf

of bread was death. In several 17th century colonies it was against

the law not to carry -- not to carry a gun to church every Sunday.

Some cities, some states, some areas have banned today the carrying of

weapons, the owning of weapons, and the sale of weapons of any nature.

New York City is among those cities, since 1890, that have banned the

sale of guns except in extreme circumstances with carry permits issued

by the police. Of course the standard argument is, how can they,

since the Constitution provides that the people have a right to carry

weapons? The people's right to bear arms shall not be infringed, it

does say, in the second amendment. So how can a city or a state ban

weapons? Anybody know? Because there's a first part to that

amendment -- a well regulated militia being necessary for a free

society, the right of the people to bear arms shall not be infringed.

The Supreme Court interpreted, in 1939, that the right to bear arms

only applied to an organized state militia. And therefore, states can

ban weaponry. However, only about 15 years ago, one city in Georgia

passed a law saying that every head of the household must own a gun,

just the opposite, but it's left to the states.

As recently as 1940, half the states in the United States ruled

it a felony, which is usually means at least serving a year in prison,

a lengthy prison term. They ruled it a felony for any white or black

to marry each other, white or black intermarriage.

Faced with laws like these, men will naturally begin to

inquire -- who makes the law? Who determines what the punishment

should be for the crime? How widely the laws vary from time to time

and place to place? It is not surprising that some even began to

flirt with the following kinds of questions: Should unjust laws be

obeyed? Should one harbor and shield a person who is fleeing if the

law is unjust or cruel? Are disenfranchised citizens, citizens who

can't vote, obliged to obey laws imposed upon them by exploit of

powers? Must one obey a law they had no voice in the shaping? To put

it on a quite personal basis, imagine yourself in the following

situation. I'm going to ad-lib here. You are an individual who

opposes the war in Iraq and there is a draft and you know a number of

people who do not want to serve in the military in Iraq because they

do not believe in the war. Would you help them? By helping them, you

can go to prison. Would you help them leave for Canada? Would you

provide them food, clothing, shelter? Would you leave the country?

My son's got plans already. Would you go underground? Or would you

do what one young man I know did in the 1970s when he opposed the war

in Vietnam, he turned himself in to go to prison under the principal

not that he wanted to obey the law, but he wanted to radicalize the

prisoners to make them aware of the evil of the Vietnam War so when

they got out they could oppose -- these are perhaps tied to the

fugitive slave laws. Would you help the escaped slaves? Would you

help them go to Canada? Would you help them as part of the

underground railroad? Again, we live through these things

historically. Every era must deal with some of these issues. And of

course, there's a host of other additional questions. The main

question is, How did it get started? When did western men get hung up

on law and order, and what kind of law and order? I think we've all

heard about the times when witches were seen as devil worshippers and

of course burned at the stake or hung in Salem or thrown into a water

to find out if they were good or evil. If they sunk, they were evil.

If they floated, they were evil. I don't know. It was one of those

ways.

A Tied rocks to them.

THE PROFESSOR: Or do you ban a religion such as in the Tennessee

mountains, Kentucky mountains, that worshipped Christianity but they

believe that you can allow snakes, rattlesnakes to test your goodness.

And so in their churches, they allow rattlesnakes to go up their

bodies and if the snakes bite you, I guess that's the term, you're

considered evil. If they leave you alone, God's grace has been done.

We have loads of questions and people's faiths and political questions

that are raised. Where did it come from? What kind of communities

created these laws and why? Obviously with the earliest civilizations

in the Middle East, law codes had to be developed. The community

pressure that, for example, would be placed on the bushmen because

they were small communes -- they respected each other, they lived with

each other, no longer existed as they moved into larger communities

and into city. For any of you who have lived in big cities, we

realize that there are an immense diversity between people, between

values, between culture, especially in cities where there is large

immigration. And therefore, what do you do? How do you deal with

some of these differences between people? For example, there are many

countries in Africa that believe in female circumcision. And we have

had problems now in the Bay Area where women have been forcibly

circumcised from these areas. Is that a violation of our law? Well,

yeah, but it is part of their culture. And therefore, with the

earliest cities, we had to have laws to create a commonality. But who

made the law? Well, obviously, in most cases, it was made by the most

dominant culture or by a dictator, by a king who did it for purposes

of quote/unquote law and order, or better said, order, to make sure

people could live together and work together.

Among the first law codes was, of course, Hamurabi's code. And

the one we are most familiar with, the mosaic code, the laws of the

Bible. Of course today we raise questions about some of those laws.

What kinds of questions on the Bible, Biblical laws. Well, I remember

one time having some fun, I thought, with my fundamentalist

brother-in-law who's son yelled at him and the Bible in part says that

children can be put to death for disobeying their parents. I asked

him if he wanted to put his child to death. And he said, he would

love to, but he would rather preserve his own life. He was dead

serious—no pun intended. In the Bible, in the Old Testament, it says right in the

same section condemning homosexuality. It identifies the fact that

it's just as evil for a man to look on his wife nude when she is

having her period. That's not the words used, her menstrual cycle.

Is that on the same level as homosexuality? Do we execute by stoning

adulterers, as part of the mosaic code? When put to many

Christians, the response generally is, that is the code of the Old

Testament and that is the old law that has been changed in the New

Testament, and that is the readapted, considered the new law of the

New Testament. So again, for many of us, the mosaic code seems very

harsh. And so of course the code of Hamurabi.

Are we founded upon that code? Is it outdated? Those are the

things that we have to decide. The code of Hamurabi is frequently

cited as one of the major achievements of western society. It is

supposed to represent a step forward for man because for the first

time it defined what the crime was and prescribed the punishment for

it. Of course we pointed out that Samaria had law codes earlier, thus

removing crimes and punishment from the rulers. Perhaps Hamurabi's

code is overrated. Let us exam certain myths.

In the first place, Hamurabi was not the first person to

establish a written code of laws. The earliest is that of Samaria

about 500 years previously. In 1947 a clay tablet was discovered that

contains 47 laws preserved from an unknown larger number of laws. The

tablet is now referred to as the Lipit-Ishtar code. I'm not spelling

because you need to remember it. I'm spelling it because Connie needs

to put it in the notes and it's more helpful for her than for you.

And is another earlier code dating approximately about 1850.

Furthermore, scholars have known for some time now that Hamurabi,

living around 1700 BCE, codified many laws that had been written in

Babylonia as early as 2250 BCE. We just don't have the records of the

original laws in our possession.

Secondly, the birth of western civil law is with Roman law, not

the code of Hamurabi. As professor Cyrus Gordan quotes in his

Hamurabi's code, quaint or forward looking, we cannot speak of any

direct influence of the code on subsequent history because the code

was of limited circulation and the stela, a tablet, it was carried all

by the Elamites to Susa where it was eventually forgotten and lay

buried until French archaeologists unearthed it in 1901.

Thirdly, what is true that the Hamurabi code and the old

testament must be judged in the context of their times. We must not

be blinded to the degree of cruel and unusual punishment they imposed

on our standards today. Sometimes it is said that Hamurabi started a

forward, a more humane treatment of criminals. According to the

version of criminology history, prehistoric men functioned with bitter

vengeance. In prehistoric times, if a villager raped or stole or

killed, then a blood feud might develop. The entire village would be

destroyed to avenge the crime. Then came along Hamurabi who set up

the concept of an eye for an eye, a tooth for a tooth, which was a

softening of the preceding patterns of punishment. Ultimately,

Hamurabi was replaced with an even more humane philosophy which we

expound today, at least we being many people, not all our country,

rehabilitation rather than retribution. Once again, we are in an era

where we seem to be speaking for retribution than rehabilitation,

getting even. Actually however, Hamurabi does not start off the

trend. The cruelty of the old testament, written at least five

centuries after Hamurabi, attest to that lack of improvement. Several

examples illustrates in the code of Hamurabi, adulterers were

strangled to death and then thrown into the water. Strangulation is

not very pleasant, but at least the whole show is over in a few

minutes with a relatively painless passing from this world to the

next. Contrast the Hamurabic prescription for adultery with the old

testament which calls for stoning an adulterer to death. Of course

some of you are familiar with the scarlet letter. In Puritan times an

adulteress had to wear a red A to reflect on her evil and she was

banned to a large extent from the society. So again, times change.

Today what is the punishment for adultery?

A Complicated divorce.

THE PROFESSOR: LOL! A complicated divorce, that's what I was

thinking. Possibly or being forced to watch desperate housewives.

According to Hamurabic law 129, if a man's wife be caught lying

with another, she shall be strangled and cast into the water. If the

wife's husband would save his wife, the king can save his servant.

The thus there was some flexibility. Also the punishment is not as

bad as it sounds, for no one minds being drowned after he's strangled.

But in the old testament that is a less flexible more stringent code.

If there is a betrothed virgin and a man meets her in the street and

lies with her, then you should bring them both out to the gate of that

city and you should stone them to death with stones -- sort of a bit

redundant.

During the late medieval period and up until modern times, there

was something known as the inquisition. The inquisition, of course,

investigated people's faith. And if they were not good Christians and

they broke the Christian law, they were brought before the inquisition

and they were asked to confess. If they didn't confess, stones were

piled on them to make them confess one way or another. Of course that

also occurred with the witch trials in Salem. If they confessed to

being evil, to doing evil, they would be garreted, which is another

big word or strangled, but with a piece of wire metal, and then burned

at the stake. But if they refused to confess their sins, they were

burned at the stake alive. And of course those were called autdefe

A-U-T-D-E-F-E, the testing of faith, the burning by fire through

faith. Fire was considered a cleansing force. It healed you. And of

course that may explain the ever lasting fires of hell, which I

pointed out, is also similar, is not coming from the Zoroastrian

religion coming from Persia. Our background is there, our stories or

history, our myths. Maybe they're preparations for the coming of

modern religion, Christianity, Muslim, or other faiths.

If any the trends or Hamurabi the old testament is toward more

rigid and more cruel punishment rather than less as sometimes alleged,

this difference can be seen in the corresponding sections of the

generation Hamurabic law. If a son has struck his father, his hand

shall be cut off. The old testament, whoever curses his father or his

mother shall be put to death. Is there anybody here who would be

alive today? Never curse your parents? I don't think I ever did

either. I hate to say that. I did get along well with my parents. I

was perverted.

Another example in the corresponding section on runaway farm

animals. This on poor animals. According to Hamurabic law 250-251,

if a bull has gone wild and gored a man and caused his death, there

can be no suit against the owner. However, in a man's ox be agora

(sic) and reveal his evil propensity as agora and he has not shut up

the ox and then that ox has gored a freeman and caused his death, the

owner shall pay after a mina of silver. Of course in San Francisco

when a dog attacks you -- nothing happens to the ox who is, after all,

a dumb animal and the owner, even in the most severe cases, is

permitted to pay a fine. But in the mosaic code, the ox is to be fund

by stoning and the owner could be killed as punishment. If an ox

gores a man or a woman and -- mosaic, then the ox shall surely be

stoned and worse, that poor ox -- ready? His flesh shall not be

eaten. You can't even eat the ox or the flesh of him. But if the ox

then accustomed to gore in the past and the owner has been warned but

has not kept it in and it kills a man or a woman, the ox shall be

stone and its owner shall also be put to death. Sometimes I wish when

I read about some of those animal attacks that took place, that this

was still in affect, but that's my sense of retribution. If a ransom

is laid on him and he should give for redemption of his life, whatever

is laid upon him. In other words, the owner can be fined heavily.

Furthermore, we must not forget about the sins of the fathers be

visited upon the sons unto the fourth and fifth generations. That

aspect of the mosaic code resembles the curse and plague syndrome of

Greek culture than it does Hamurabi.

Hamurabi does push upon the type of law now as law 230 indicates.

If the builder as caused the owner of the house to die owning to the

house's faulty construction, one shall put to death the son of that

builder. It may have been worse going into construction in those days

and trying to rip people off. The different treatment before the law

that the near eastern code sanctioned is the prominent feature of the

code of Hamurabi.

Note the different punishments given for those of different

status. If a man has knocked out the eye of a patrition (phonetic)

meaning noble upper class, his eye be knocked out. There's an eye for

an eye and a tooth for a tooth from Hamurabi's code. If he has broken

the limb of a patrician, his limb shall broken. If he has knocked out

the eye of a plebeian, a common person or has broken the limb of a

plebeian, he as pay one minute of silver. So all those common people

starving and suffering and no place to live in New Orleans, all we

have to do is send Bechtel and Halliburton in to take care of them and

so we're paying another fine there. Had you heard that? It is

Halliburton and Bechtel who are doing the clean up, the largest

contributors to the Republican Party, Bush and Cheney. It's not just

Iraq that they go in to build. If he has knocked out the eye of a

patrition servant or broken the limb of a servant, he shall pay half

his value. In other words, the slave's value. In this respect, the

old testament did not improve upon Hamurabi, ceasing upon this

opportunity to free the slave exodus 2126. When a man strikes the eye

of his slave, male or female and drys it, he should let the slave go

free for the eye's sake. There are other palms and exodus that

provide for the possibility of freedom for slaves. But the overall

tenure of the order to uphold slavery as a way of life just as

Hamurabi did.

Of course there's a danger in relying exclusively upon a literal

interpretation of the laws of society. How the laws are implied and

how strictly they are enforced need to be considered less one be miss

lied. Never the less, the general orientation of the laws does mirror

what societies are like. By these standards, the code of Hamurabi was

not the forerunner or more humane forerunner of treatment towards

criminals. The difference, treatment before the law, the support of

slavery, these are among the more objectionable features of both the

code of Hamurabi and the old testament. They are features that are

frequently glossed over as historians praised the unique and

comprehensive achievements of early civilized man. Perhaps an eye for

an eye is a little better than a blood feud involving an entire

family, but we must also be aware of Hamurabic law 235.

If a slave has struck a freeman, they shall cut off his ear.

Expect for the specific part of the anatomy involved, this type of

mutilation resembles the treatment of slaves in America we deceived

for confinement an unruly majority. Putting Hamurabi in perspective

then, we find the double standards are authorized and that equality

before the law is not a part of ancient law codes. We live in an age

in which equality before the law, both in theory and in practice, is

one of the most relevant issues. If Hamurabi is to shape our

attitude, then law and order will be the number one goal, not justice.

What room is there in our society for those who prefer to follow

heritage of great dissent figures. Watch Antigone, Thoreau, and

Martin Luther King junior, all of whom protested unjust laws. With

Antigone we come from the first major symbol of nonviolent dissent in

western civilization. She is the character in the Sophocles play,

Antigone, who buries her father in defiance of the degree of the city

Creon to permit burial because Antigone's brother was a traitor.

Antigone cannot except the ban on his burial because burial meant so

much to the Greeks and because she feels she has an unbroken loyalty

to her brother, so she becomes the spokesperson for the law. This is

higher than manmade law. She disobeys civil authority because she

believes in justice of what she is doing and because, in her view, the

man made law is unjust. Antigone became a much talked about symbol of

evil through the years of western civilization and was bloodying up

the battlefields. From the time the play was written, in the 15th

century BC to the middle of the 19th century, this was merely an

academic symbol. Although there are many protests against established

law before the mid 19th century, none of them mentioned Antigone by

name. However, about 1850 new vitality and relevance was breathed

into Sophocles famous --

The issue was brought to the head with slavery, the very same

institution upheld in so many ways but the law code of the ancient

near East. The horrible injustice and cruelty of the slavery

stimulated many Americans to question the validity of the law of the

government that upheld them. One questionnaire was a man named Henry

David Thoreau who wrote a famous essay on civil disobedience.

Excerpts -- well okay. Thoreau advocated defiance of unjust laws and

spent a day in jail for refusing to pay his poll tax as a protest

against his government's support of slavery as an institution as a

measure of his defiance. There is a famous exchange between Thoreau

and his essayist and poet Ralph Waldo Emerson. And of course this has

been quoted many times. Emerson says -- what are you doing in jail,

Henry? And Ralph says -- what are you doing out of jail? In the

times to come, similar to the Vietnam War era, I have a feeling you'll

be hearing more and more of this candidly, why are you not in jail

protesting rather than out of jail? What is your choice going to

mean? Some of you will readily support the government, but you are

college students, and there will be some of you who will oppose

government action. It's just the innate nature quote/unquote of

college students. So this is more than an academic exercise. It's a

reality I think of where we exist. Of course this is Ohlone College,

not Berkeley, so it may not be as many of you as might be at Cal,

although some of you are going to Cal to get perverted. Since the end

of the second world war, American society has been undergoing the most

serious and sustained challenges to the stability of its cultural

canons and social institutions. A very important role in protest

movements against established myths and traditions can be made by

individuals and groups who show the influence of the spirit of

Antigone, Thoreau, Gandhi, and King. Gandhi, King -- civil

disobedience, different from what many people are willing to do in our

society today. Civil disobedience was taking the punishment.

Translation, when you broke the law, you were willing to go to prison

and take the punishment without complaining. Today people complain if

they're punished for breaking the law or do less, promote violence.

And that's quite a difference than the nonviolent philosophy of Gandhi

or Martin Luther King Jr. We are perhaps living in more violent times

or we don't have the leaders to try and convince people to protest and

take their punishment, which creates sort of a more moral standard

image and acceptance of natural law, I guess, is what you'd call it.

Current events have created something that basically needs us to

reassess the old western civilization and look at the relevance of the

old laws from the ancient near East. So basically what is your

future? What do you think? Where does the relevance lie? Are you

for law and order? And if so, to what level and to what extent? I

felt that this particular essay as written in 1971 has a lot of

relevance to decision making today and I am definitely a believer in a

pendulum; in other words, history repeats itself, obviously not in the

same manner or fashion. But those who do not study history are doomed

to repeat it. And that's a different element of a tragedy in and of

itself.

Yeah. I guess I'll leave it with my sermon for today. You can

leave your money in your hat as we go out.

---oOo---