The Torah and Ancient Near Eastern Law Codes

Introduction

There is both considerable overlap and significant differences between the legal sections of the Torah and its Ancient Near Eastern counterparts. While much is shared in both content and formulation, it is the differences between the codes which are most revealing. From the range of the topics covered to the specific details of the offenses and penalties, the collections vary widely. These variations reflect both the different underlying values and principles of the cultures, and their different conceptions of justice and punishment.¹

The Ancient Near Eastern Law Codes

Lists of laws have been preserved in seven major cuneiform collections - the Sumerian codes of Ur-Nammu and Lipit Ishtar, the Old-Babylonian codes of Eshnuna and Hammurabi, and finally, the Middle Assyrian, Old Hittite and Neo-Babylonian lists. The degree of preservation varies for each text. Some, like the code of Ur-Nammu, remain only in bits and fragments, while others, like the famous code of Hammurabi, contain over 200 laws. The texts date to several different time periods. While the laws of Lipit Ishtar were composed as early as the nineteenth century BCE, the Middle Assyrian laws appear as late as the twelfth century BCE.

Points of Contact

• Common categories – Many areas of law are common to both the Mesopotamian and Biblical law collections. These include prohibitions against dishonest business dealings, false testimony, murder or rape, and laws dealing with adultery, illegal entry or theft, and personal injury.
• Specific details – In many cases, even the details of these laws are extremely similar. For instance, when discussing battery, the various collections contain an identical catalog of injured bodily parts: eye, tooth, hand, and leg. Both the Torah and several of the codes bring the unusual case of the striking of a pregnant woman in a brawl as an example of personal liability.² Sometimes, even the same extenuating circumstances appear in both sets of sources. Thus, in the case of rape, the same distinction between a city and an outlying field is found in both Sefer Devarim and Hittite Law 197.
• Examples – Click below for two examples of laws which bear a marked resemblance to each other:
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Code of Eshnuna 37	שמות כ"ב
If the depository's house either collapsed or is burglarized... the owner of the house shall swear an oath "together with your property my property was lost, I have done nothing improper or fraudulent." If he swears... he shall have no claim against him.	(ו) כִּי יִתֵּן אִישׁ אֶל רֵעֵהוּ כֶּסֶף אוֹ כֵלִים לִשְׁמֹר וְגֻנַּב מִבֵּית הָאִישׁ אִם יִמָּצֵא הַגַּנָּב יְשַׁלֵּם שְׁנָיִם. (ז) אִם לֹא יִמָּצֵא הַגַּנָּב וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ. (ח) עַל כָּל דְּבַר פֶּשַׁע עַל שׁוֹר עַל חֲמוֹר עַל שֶׂה עַל שַׂלְמָה עַל כָּל אֲבֵדָה אֲשֶׁר יֹאמַר כִּי הוּא זֶה עַד הָאֱלֹהִים יָבֹא דְּבַר שְׁנֵיהֶם אֲשֶׁר יַרְשִׁיעֻן אֱלֹהִים יְשַׁלֵּם שְׁנַיִם לְרֵעֵהוּ.
Middle Assyrian Laws 8	דברים כ"ה
If a woman crushed a seignior's testicle in a brawl, they shall cut off one finger of hers...	(יא) כִּי יִנָּצוּ אֲנָשִׁים יַחְדָּו אִישׁ וְאָחִיו וְקָרְבָה אֵשֶׁת הָאֶחָד לְהַצִּיל אֶת אִישָׁהּ מִיַּד מַכֵּהוּ וְשָׁלְחָה יָדָהּ וְהֶחֱזִיקָה בִּמְבֻשָׁיו. (יב) וְקַצֹּתָה אֶת כַּפָּהּ לֹא תָחוֹס עֵינֶךָ.

Points of Difference

• Authorship – Hashem is the author of the Torah's laws, whereas it is the king rather than the deity who writes and promulgates the Mesopotamian codes.³ As such, a Torah transgression is considered a sin against God, and not just a crime against a fellow man. For the same reason, while many of the codes give the victim the right to pardon the offender,⁴ in Israelite law, this is not possible.⁵
• Types of laws included – While the Ancient Near Eastern codes include just civil law, the Torah also incorporates ethical and moral precepts⁶ and religious and cultic law.⁷ The idea of interweaving religious and secular law is unique to the Torah,⁸ and often laws from the two categories flow seamlessly into one another.⁹
• Formulation of laws – In the Mesopotamian codes, all the laws are casuistic in style, formulated as case law. In the Torah, on the other hand, alongside such laws, there are also apodictic rules, absolute prescriptions of right and wrong.¹⁰ Additionally, in the Torah, commandments are often accompanied by some sort of rationale or motivation for obedience.¹¹ This is somewhat rare in the secular codes.
• Context – The Ancient Near Eastern collections contain just a list of laws and rules, framed perhaps by an introduction or epilogue. The laws in the Torah, in contrast, are embedded within narrative material, and in some cases are not understandable without it.¹² Moreover, the Torah's commandments are presented as a covenant to which the people agreed, and not merely a list of laws imposed upon them by a king.
• Punishments – In the Torah, life and property are never considered commensurate, while in the Ancient Near Eastern codes, they are often equated.¹³ Other penalties, such as bodily mutilation, multiple punishments for the same offense, or vicarious punishment, which are frequently found in other codes,¹⁴ are either rare¹⁵ or completely absent from the Torah. Finally, in the Torah, penalties do not vary depending on the social status of the criminal/victim (excepting slaves) while in the other codes, such social stratification is common.¹⁶
• Different conceptions of justice – At the core of many of these differences lie contrasting understandings of the purpose of the judicial code. The Torah attempts to lay forth principles of right and wrong and to set up a just society, while the primary goal of the other codes is to preserve law and order.¹⁷ Compensation to the victim becomes more important than the idea of retribution for committing a wrong.¹⁸ Different value systems further pervade the codes. In the Ancient Near Eastern codes, an economic principle prevails; safeguarding property is of the utmost importance. In the Torah, in contrast, the sanctity of human life takes precedence.¹⁹

A Case Study – Laws of Goring Oxen

The laws dealing with goring oxen are remarkably similar between the Codes of Eshnuna, Hammurabi and Parashat Mishpatim, and as such, serve as a useful case study for comparison. Click on the Table to the right to compare the laws.

• The cases – The specific cases mentioned vary throughout the codes, and there is not complete overlap regarding victims and culprits. Shemot has the widest range of cases, speaking of both a non-goring and habitually goring ox, and matching each to both a human and animal victim. The Code of Hammurabi, in contrast, deals only with human victims and differentiates in this realm between the goring and non-goring culprit. The Code of Eshnuna deals with both human and animal victims, connecting the first with a habitually goring culprit and the latter with a non-goring culprit. In speaking of human victims, all three codes differentiate between freemen and slave. Shemot, though, goes out of its way to emphasize that the same laws apply to children as well.
• The punishments – In both the Codes of Hammurabi and Eshnuna, in cases of negligence,²³ the penalties for goring a human are monetary. In the Torah, in contrast, this is considered a capital offense, and both the ox and its owner are condemned to death, though the latter has the option of paying a ransom instead. In the case of a non-habitual gorer killing a man, both the Torah and the Code of Hammurabi do not hold the owner accountable at all. In Shemot, though, the ox is considered guilty and he is thus stoned to death.
• The context – In the Code of Eshnuna, the oxen laws are grouped together with other laws of negligence.²⁴ In the Code of Hammurabi, the laws are sandwiched between those that deal with negligent construction/navigation of both houses and boats and those that discuss all sorts of agricultural concerns.²⁵ The placement of the goring laws in Shemot is unique in that not all the laws are grouped together. There is a gap of two verses between the laws dealing with the goring of humans and those concerned with the goring of other oxen. The former follow a discussion of assault and battery, while the latter are connected to other cases of animal injury due to negligence.²⁶
• Understanding the differences – Much of the above can be explained in light of the differing values placed on life versus property in Torah and the other codes. In the Torah, where human life is supreme, laws related to the killing of animals and the killing of people are distinct. The death of man is incomparable to the death of an animal. Similarly, bloodshed, being the ultimate sin, requires the taking of a life, and thus, even in cases of non-negligence, when man is not held responsible, the goring ox is put to death. In the other codes, where a compensatory system prevails, vicarious punishment exists, allowing for the possibility that a child be killed to replace another's lost child. Here, in contrast, the Torah emphasizes that even if a child is the one killed, it is still the adult ox owner who is punished, not the son.