SYSTEMIC Argument

The systemic argument is an overall argument, referring to a definition of a whole (i.e. a code, etc.) as a structure in which nothing is superfluous, nothing is missing, nothing is contradictory, the elements fit together perfectly.

– Nothing is superfluous, or the principle of economy, : see redundancy.
– Nothing is missing: see completeness.
– Nothing is contradictory, see consistency. In law, the argument from the title postulates that the text is locally thematically coherent.
– The elements fit together perfectly : this principle asserts that each element of the system takes on its full meaning only in the light of its relationship to the other elements of the same system, and that it must be interpreted and applied accordingly.

The application of the argument a pari, opposite, a fortiori, schemes depends on the effective realization of these systemic requirements in the system under consideration.
In the case of law, the systematic aspiration of the Code is directly confronted with the destabilizing, complex forces of social and historical developments.

The systemic argument applies to specific laws in collections of laws, as well as to statements and passages in sacred texts and literary masterpieces.

Why Hammurabi’s “Code” is not a code

According to Wikipedia, the Code of Hammurabi is a code:

The Code of Hammurabi is a Babylonian legal text dating from around 1750 BC, the most complete of the known codes of law from ancient Mesopotamia. (Code of Hammurabi, 27-08-20)

As early as 1982, Jean Bottéro showed that the text engraved on the stele of Hammurabi was not a code. He concludes that this term, which has come into use, is erroneous and can only be maintained if it is placed between quotation marks. The question is this:

Is the Code of Hammurabi really a code of laws? The answer is no! And here’s why.
Jean Bottéro, Le “Code” de Hammourabi, 1982 [1]

The demonstration is based on the following observations.

– The text is not exhaustive, it has shortcomings, “gaps in the legislation” (Id.), for example, certain crimes are not mentioned,

While the beating of a son on his father is covered, neither parricide nor infanticide. (Id., pp. 196-197)

– The text is redundant. The same offense, a case of failure to return a deposit, is dealt with twice.

– The sanctions are contradictory. In one case, it says

There is no legal recourse in this case,

while in the second case, it says that the depositor “shall be put to death”.

This text is not a code, because it does not fulfill any of the conditions that characterize a code as a system.
Bottéro concludes that the articles are not laws, but “sentences”, and that the “Code” of Hammurabi is a “collection of jurisprudence”, which is not subject to the structural constraints of the legislative code.