The Torah and Ancient Near Eastern Law Codes/0

The Torah and Ancient Near Eastern Law Codes

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Introduction

When studying the legal sections of Torah in light of their Ancient Near Eastern counterparts, one finds that there is both considerable overlap, and significant differences between the sets of codes. There is much that is shared in terms of both content and formulation. As is often the case, though, it is the differences between the codes which are most revealing. From the range of topics covered to specific details of the offenses and penalties, the collections vary widely. These variations reflect both the different underlying values and principles of each culture, 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 (CU) and Lipit Ishtar (LI), the Old-Babylonian codes of Eshnuna (CE) and Hammurabi (CH), 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, though, even the details of these laws are remarkable 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 the example of personal liability.² Sometimes, too, 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 the Hittite laws (197).
• Examples – Click below for two examples of many laws which bear a marked resemblance one to another:
Show / Hide Table

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, when a person violates the other law codes, it is considered a crime against a fellow man, whereas when one transgresses a Torah commandment it is considered a sin against God. 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 Finally, whereas the kings impose their law on their people, the Torah's commandments are presented as a covenant which the people agreed to
• Types of laws included – The Torah includes not just civil law, like the Ancient Near Eastern codes, but also 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 (if… then…). In Torah, on the other hand, alongside such laws there are also apodictic rules.¹⁰ These are general prescriptions of what to do or not to do, without defining a specific case.¹¹ Additionally, in Torah, often commandments are accompanied by some sort of rationale or motivation for obedience.¹² The equivalent is somewhat rare in the secular codes, and if it does appear, it will generally not appeal to one's historical or ethical sense.
• Context – Other 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 into its narrative material, and in some cases are not understandable without it.¹³
• Punishments – In many cases, the same crime will incur different punishments. For example, Torah never inflicts the death penalty for a property offense whereas this is not uncommon in other codes.¹⁴ On the other hand, where homicide is a capital crime according to the Torah, in the other legal collections it often requires just a monetary payment.¹⁵ Other penalties, such as bodily mutilation, multiple punishments for the same offense or vicarious punishment, which are frequently found in other codes,¹⁶ are either rare¹⁷ or totally absent from Torah. Finally, in Torah, penalties do not differ due to the social status of the criminal/victim (excepting slaves). In the other codes, in contrast, such social stratification is common.¹⁸
• Different conceptions of justice – At the core of many of these differences lies variant 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. The primary goal of the other codes, is instead, to preserve law and order.¹⁹ Compensation to the victim becomes more important than the idea of retribution for committing a wrong.²⁰ 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.²¹

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 nice case study for comparison. See the table to the left to compare the laws.

• The cases – The specific cases mentioned vary throughout the codes, with no total 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 negligence²² the penalties for goring a human are monetary. In 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 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.²³ 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.²⁴ 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.²⁵
• 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 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.

¹ Many scholars have analyzed the similarities and differences between Torah and Ancient Near Eastern law. What follows draws heavily upon the work of U. Cassuto in his commentary on Sefer Shemot, M. Greenberg in his article, "Some Postulates of Biblical Criminal Law," Jubilee Volume for Y. Kaufman, (Jerusalem, 1960): 5-25, and N. Sarna, Exploring Exodus (New York, 1996): 158-182.

² See Shemot 21:22-4; CH 209:14; MAL 50-53.

³ Thus, in the prologue to the Code of Hammurabi, the king writes, "Anum and Enlil named me to promote the welfare of the people... to cause justice to prevail in the land... I established law and justice in the language of the land, thereby promoting the welfare of the people.

⁴ See, for example MAL 10, "If either a seignior or a lady entered a seignior's [house] and killed [either a man] or a women, [they shall give] the murderers [to the next of kin] and if he chooses he may put them to death, or if he chooses he may spare (them but) take [their property.]"

⁵ If something is an offense against God no human can forgive or pardon in His place.

⁶ This includes both laws of social justice such as caring for the less fortunate orphan or widow, and mundane acts of kindness such as returning a neighbor's lost object or helping another load their camel.

⁷ This would include precepts about sacrifices, holidays or purity and impurity. In the Ancient Near East such topics comprised their own distinct genres of literature, unconnected to the legal codes. For a more exhaustive discussion of the point, see מ. ווינפלד, "לתפיסת החוק בישראל ומחוצה לו," בית מקרא (תשרי תשכ"ד); which can be accessed here. The Torah's combination of the two realms is related to its Divine origin. In M. Greenberg's words, "The entire normative realm, whether in law or morality, pertains to God alone... there is no source of norm fixing outside of him" (ibid. p. 11). The Torah is not coming just to prevent disorder in society but to allow for man to cling to God's ways.

⁸ See Cassuto, in his introduction to Parashat Mishpatim,and N. Sarna, Exploring Exodus (New York, 1996): 175, who elaborate on this point.

⁹ See, for instance how the prohibition against witchcraft and sacrificing to other gods are sandwiched between laws dealing with rape on the one hand, and those dealing with concern for the less fortunate on the other (Shemot 22:15-23).

¹⁰ This point has been noted by many. See Cassuto ibid.

¹¹ An apodictic formulation would read "Do not steal" rather than the casuistic "if you steal, then you must pay a fine." An apodictic formulation is concerned with setting up principles of right and wrong whereas case law would seem to be more concerned with law enforcement.

¹² For example, see Shemot 22:20 where the prohibition against oppressing a foreigner is related to the fact that we were foreigners in Egypt. Similarly, a few verses later the Torah warns against taking a poor person's cloak as collateral on a loan overnight, since it is his only covering and "in what shall he sleep?"

¹³ See, for instance the laws of inheritance which emerge from the story of Tzelophchad's daughters in Bemidbar 27, or the laws regarding the second Passover in Bemidbar 9.

¹⁴ See, for instance, MAL 5, CH 25 and 108.

¹⁵ See HL 5 and CH 206-7.

¹⁶ See MAL 9, 15, 19-20,and CH 194 and 205 which speak of castration, the cutting of lips, ears or breasts. See also MAL 55 which speaks of vicarious punishment for a rape, where the penalty for the rapist is that his wife is given to be raped. CH 255 similarly states that if negligent building caused the son of the owner to die, the son of the builder should be put to death. The Torah, in contrast, states, "לֹא יוּמְתוּ אָבוֹת עַל בָּנִים וּבָנִים לֹא יוּמְתוּ עַל אָבוֹת אִישׁ בְּחֶטְאוֹ יוּמָתוּ" (Devarim 24:16). Though Shemot 20 states that God is "פֹּקֵד עֲוֹן אָבֹת עַל בָּנִים", this refers to God's justice, not what is done in human courts.

¹⁷ Devarim 25:12 does mention cutting a woman's hand and Shemot 21:22-25 and Vayikra 24:19-20 speak of talion (an "eye for an eye.") For an extensive discussion of how these verses have been understood, see An Eye for an Eye.

¹⁸ See, for instance CH 96-105, where the laws of battery are discussed and punishment varies depending on the rank of both the criminal and the victim. If one strikes another of the same status he is fined differently than if he strikes one of more noble stature. Contrast this with the Torah's emphasis on the fact that: "תּוֹרָה אַחַת וּמִשְׁפָּט אֶחָד יִהְיֶה לָכֶם וְלַגֵּר הַגָּר אִתְּכֶם" (Bemidbar 15:16).

¹⁹ This stems from the Divine origin of Torah and is reflected in the apodictic versus casuisitic formulations of the two systems and the existence of explanatory moral motives in Torah.

²⁰ Thus, the right to pardon exists in the other codes but not in Torah. Similarly the importance of restoring the status quo gives way to vicarious punishment, a feature absent from human courts under Torah law.

²¹ Thus, in other codes a life might compensate for lost property while in Torah, such a law is unthinkable. In contrast, bloodshed becomes the ultimate offense and is a capital crime which can not be atoned for by a mere monetary payment. See Greenberg (ibid) who speaks about this point, and the more general idea of viewing law as an expression of underlying postulates and values, at length.

²² This refers to a case where the ox was known to be a habitual gorer and the owner did nothing to prevent future attacks.

²³ The laws immediately following deal with a vicious dog while the last law in the section discusses a tumbling wall.

²⁴ To some extent the laws serve to segue between the two sections, fitting into both negligence-related laws and agricultural ones.

²⁵ Finkelstein, in his article, "The Ox that Gored" in Transactions of the American Philosophical Society 71/2 (1981) explains the grouping, pointing out that the goring of humans are placed amidst other "laws of persons" while those dealing with the goring of animals belong with other "laws of things".