Halbig and Hammurabi

Halbig and Hammurabi

In the wake of the Halbig decision, liberals sniffed: Surely, Ezra Klein wrote, the Supreme Court is not going to gut the sublime work of policy poetry that is Obamacare in order to “teach Congress a lesson about grammar.” My friend Dave Weigel posited, absurdly, that conservatives had won a “Leninist victory” in the case, as though Cato were attempting to hasten the revolution like a gaggle of cracked Shining Path fanatics in some miserable, sweaty jungle. Without trespassing too deeply into the turf of the many excellent lawyers whose subtle meditations you may read in these virtual pages, the Halbig decision is simply about the fact that the law says what the law says. Literate people who suffer through Mr. Klein’s prose cannot be surprised by his contempt for the concept of grammar, but law is nothing if not language. The ancients understood something that has been neglected in recent centuries: Grammar is the foundation of logic.

Surely Hammurabi was not the first, but his code is our oldest example of the written law. Somewhere in the penumbras of pre-history, some long-forgotten Promethean genius did humankind a favor that surely ranks up there with the wheel and fire: the written law. It is a simple thing — “simple as a flower, and that’s a complicated thing.”

Hammurabi’s law covers a great deal more than his take on “an eye for an eye,” which was, like our own criminal laws, graded according to the status of the victim — a slave’s eye was not worth what a prince’s eye was. (You think we’ve evolved past that? Consult your local statutes regarding assault on a police officer, or on employees of the New York Metropolitan Transportation Authority, who are practically begging for a bit of battery.) The Hammurabic Code, along with its presumptive predecessors, represented something radical and new in human history. With the law written down — with the law fixed — a man who had committed no transgression no longer had reason to tremble before princes and potentates. If the driver of oxen had been paid his statutory wage, if a man’s contractual obligations had been satisfied, and if his life was unsullied by violations of the law, handily carved upon slabs of igneous rock for all to see and ingest, then that man was, within the limits of his law, free.

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