[By Kevin Underhill:] Laws that continue to baffle me

July 11

For this last day of my guest-blogging stint on weird laws (see also Day 1, Day 2, Day 3, and Day 4), I wanted to mention a few of the more mysterious laws I came across when researching my book. There are times when weird laws become less weird with a little research, or sometimes with a lot of research. Sometimes they even start to make sense. But there are a few that, even after a lot of research, continue to baffle me. Your input would be welcome.

Especially from any experts in Hittite law.

As many of you may know, the Hittite Empire covered most of what is now Turkey and Syria from about 1600 B.C. to 1180 B.C. (They might or might not be the same “Hittites” mentioned in the Bible, but what I just read on Wikipedia is all I know about that.) Tablets containing some of their laws have been found; this isn’t the earliest known code of laws, but it’s close. Of course some of these laws make sense, because human beings are not that different today, and have many of the same problems. The Hittites had laws about bee ownership, for example, and today the German Civil Code has at least four sections on that topic.

Those are definitely worth reading, by the way, but are beyond the scope of this post.

But whether due to translation issues or cultural differences, some Hittite laws are hard to figure out. “If anyone steals a door as a result of a quarrel,” one provided, “he shall replace everything that shall get lost in the house, and he shall pay one mina of silver.” Door-stealing just does not seem like an efficient way to get back at someone, partly because you’re going to have a difficult time hiding the fact that you just stole a door. What are you going to do, pretend to be a traveling door merchant? So it seems hard to believe people actually did this.

Then there are the Hittite laws on … let’s say, fraternization with the animal kingdom. If a man were caught fraternizing with a cow, sheep, or pig, the penalty was death (for the man). Horses and mules, though, no penalty at all — except that you could never become a priest. But then there was Section 199, which provided the death penalty for any ox that “spring upon a man” for the same purpose. (Does this happen?) The man would not be punished in this scenario, but a sheep would be killed as a substitute. So, bad for oxen and sheep, but pigs caught springing (does that happen?) were expressly exempted from any punishment. I guess this might all be explained by religious taboos, which we can’t expect to make too much sense. Still, Section 199 is perplexing.

Again, any Hittite scholars who have studied this matter are encouraged to comment.

Moving forward several thousand years, and changing topics entirely, a federal law passed in 1968 authorizes compensation for dairy farmers who are forced to take milk off the market due to certain kinds of contamination. This includes “the presence of products of nuclear radiation or fallout,” but only “if such contamination is not due to the fault of the farmer….” I doubt there are any nuclear-armed dairy farmers these days, but the ’60s were a scary time. Still, that seems unlikely. And even if it was once the practice to irradiate milk for some reason, that doesn’t seem to be what this law is about. Dairy farmers and/or scholars of the nuclear age are also encouraged to comment.

Finally, perhaps someone can clarify the meaning of the New York Penal Law section that appears to authorize dental strangulation.

New York law defines three kinds of “strangulation.” The first is “criminal obstruction of breathing or blood circulation,” which is basically attempted strangulation. One is guilty of this if, with intent to impede those things, one “applies pressure on the throat or neck” of another or “blocks the nose or mouth of such person.” If doing that causes some kind of injury, the offense is “strangulation in the second degree.” If it causes serious injury, it’s first-degree strangulation.

But as to all three crimes, “it shall be an affirmative defense that the defendant performed such conduct for a valid medical or dental purpose.” This I do not get.

First, it seems doubtful that someone who had such a purpose would also have the necessary intent. One might, for example, block the nose or mouth of a person to give mouth-to-mouth resuscitation. That would be a “valid medical purpose.” But the intent would be to restore normal breathing and circulation, not to impede it. So the affirmative defense does not seem necessary.

What has really stumped me so far, though, is trying to think of a “valid dental purpose” for doing this. Dentists obviously need mouth access, but I’ve never had one actually try to interfere with my breathing. A nitrous-oxide mask comes to mind, but that doesn’t really block anything, it just adds laughing gas to the dental experience. So, not as perplexing as Hittite animal husbandry practices, but still baffling at least to me.

I guess the lesson for Day 5, if any, is that while some laws may make no sense at all, sometimes there is an explanation out there but we lack the cultural context or information to explain them (or maybe it’s just me). I did my best to exclude those from the book, but may not have completely succeeded. Another possible explanation is that a legislature has simply tried and failed to articulate a rule in a way that makes sense. Legislators are human, too, and sometimes judges (and the rest of us) just have to struggle with interpreting the results.

Judges are also human, of course, but that is also beyond the scope of this post.

I’ve enjoyed guest-blogging here at the Volokh Conspiracy. Thanks to Professor Volokh for asking me and the other Conspirators for tolerating me. If you liked these posts, you will probably like my book, The Emergency Sasquatch Ordinance, and my legal-humor blog, Lowering the Bar, and I would encourage you to buy the former and read both. Thanks!

————

Note: following up on my Day 2 post, I learned this week that the 1856 Guano Islands Act came up less than two weeks ago in a case involving Kingman Reef in the Pacific. Reading the description of Kingman Reef, it’s not clear to me why anyone wants that place, either, but the U.S. isn’t going to let them have it, and doesn’t have to pay them $54 million for (allegedly) unlawfully taking it. So if you had any plans to lay claim to Kingman Reef or Navassa Island or any of the other islands the U.S. still claims under the Act, then you haven’t totally wasted your time by reading these posts. You’re welcome.

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