Biblical Vs ANE Law
If, as the Rabbis frequently stated, God employed the everyday language of human beings in order to communicate His will, 2 then there is no section of the Torah in which this principle is more patently manifest than in the collections of legal ordinances. Extant corpora of laws, records of court proceedings, and judicial decisions provide ample evidence to prove that in its external form, in legal draftsmanship, in its terminology and phraseology, the Torah followed long-established, widespread, standardized patterns of Mesopotamian law. Documents from the practice of law run into the many tens of thousands, uncovered at several widely dispersed sites in the Near East. Collections of laws recovered number no more than six. Two such collections have survived in the non-Semitic Sumerian language spoken in southern Mesopotamia during the third and early second millenniums B.C.E., written in cuneiform script. The older one is that of King Ur-Nammu3 of the city-state of Ur, founder of the Third Dynasty of that city in the twenty-first century B.C.E. The original has not been found, only a fragmentary copy from Nippur, a city about one hundred miles (ca. 160 km.) south of Baghdad. This has been supplemented by two broken tablets from Ur itself, both of which are much older. The extant materials preserve the prologue to the collection, together with twenty-nine stipulations, probably less than half of the original number. The prologue refers to “principles of equity and truth” and describes social abuses that the king sought to correct in order “to establish equity in the land” by standardizing weights and measures and by protecting the orphan, the widow, and the poor. The stipulations cover sexual offenses, support of divorcées, false accusations, the return of runaway slaves, bodily injuries, the case of an arrogant slave-woman, perjured testimony, and encroachment of another’s private property. The laws are formulated in “casuistic” style; that is to say, they are conditional, the opening statement beginning with “if” followed by the hypothetical, concrete case, and the concluding statement giving the prescribed penalty. The second Sumerian collection of laws comes from Lipit-Ishtar, 4 king of the city of Isin, in central lower Mesopotamia, in the nineteenth century B.C.E. Although an Amorite, he wrote his laws in Sumerian. There may once have existed also an Akkadian version, now lost. The laws, of which about thirty-eight remain, are estimated to have originally numbered about two hundred. They are framed by a prologue and an epilogue. In the former, the king writes that his god had commissioned him “to establish justice in the land” and “to promote the welfare” of his people. In the latter, he declares that he has restored domestic tranquility and established righteousness and truth. The extant laws, which belong to the concluding part of the corpus, deal with a variety of civil cases: the hiring of a boat, horticulture, the institution of slavery, house ownership, family laws such as marriage, divorce, polygamy, inheritance, and responsibility for injury to a rented animal. In these laws too, the casuistic formulation is the rule. The other law collections from Mesopotamia are all written in Akkadian. The earliest in this language derives from the city of Eshnunna, 5 situated about twenty-six miles (42 km.) northeast of Baghdad, on a tributary of the Tigris River. Its author is unknown, and its date is uncertain. The laws, some sixty in all, are preserved on two tablets, neither being complete. These were copied in the time of a contemporary of Hammurabi, but the original is believed to be considerably older. Neither prologue nor epilogue, if there were any, has been preserved. The legislation concerns the prices of various commodities, the cost of hiring a wagon and a boat, negligence on the part of the hirer, the wages of laborers, as well as laws pertaining to marriage, loans, slavery, property, personal injury, a goring ox, a vicious dog, and divorce. As before, the casuistic formulation is predominant. A peculiarity is that the application of the laws may vary according to the social status of the persons involved. Mesopotamian jurisprudence reached its zenith in the seventeenth or eighteenth century B.C.E., with the promulgation of Hammurabi’s great collection. 6 These were inscribed on an eight-foot-high black diorite stele that was originally placed in the temple of Esagila in Babylon. In the early part of the twelfth century B.C.E. it was looted by the Elamite king Shutruk-Naḥ-ḥunite and carried off to Susa (Hebrew, shushan), capital of his kingdom, where French excavators discovered it in 1902. It now resides in the Louvre in Paris. The upper front part of the stele bears a relief that features King Hammurabi standing before a seated deity, either the sun god Shamash or the chief god of Babylon, Marduk. The scene is often misinterpreted in popular books as Hammurabi receiving the laws from the god, but it is nothing of the kind. The god is really investing the king with the ring and the staff, which are the symbols of sovereignty. He thereby endows him with the authority, and perhaps also the wisdom, to promulgate the laws. The text makes it perfectly clear that Hammurabi himself is the sole source of the legislation. Written in cuneiformed Akkadian in fifty-one columns, the stele now contains what is calculated to be two hundred and eighty-two legal paragraphs. About thirty-five to forty paragraphs were erased by the Elamite king; a few of these have been restored from other tablets. An extensive literary prologue and a lengthy epilogue frame the legal section. The prologue abounds in lofty sentiments about the purpose of the legislation, which is to further public welfare, to promote the cause of justice, to protect the interests of the weak, and to ensure the rule of law. The epilogue repeats these noble ideals and adds that the statutes are there so that anyone may know the law in case of need and that a future ruler may be guided by Hammurabi’s ordinances. It closes with a series of blessings invoked on him who is faithful to the laws and heaps fearful curses on him who is perfidious. Both prologue and epilogue are unabashedly replete with Hammurabi’s copious and effusive self-praise and with massive hyperbole extolling his own greatness and mighty deeds. The corpus of the laws, mostly styled casuistically, includes a large variety of legal topics. The first forty-one paragraphs deal mainly with matters of public order; the rest belong overwhelmingly to the domain of private law, matters that affect the individual citizen. Distinctive features of the laws are the extraordinarily large numbers of capital offenses (some thirty in all), the penal mutilation of the body, vicarious punishment, the principle of talion, or legal retaliation in kind, intense concern with the protection of private property, and an innovative approach to several areas of private wrong that are now recognized as issues of public welfare to be regulated by the state. Finally, as in the laws of Eshnunna, those of Hammurabi reflect a stratified society; as mentioned above, the penalties and judgments may vary according to the social standing of the litigants. Considerably different from the collections hitherto described is the body of legislation that has come to be known as the Middle Assyrian Laws. 7 Uncovered at the ancient city of Asshur on the Tigris River, about two hundred and fifty miles (563 km.) north of Babylon, the several clay tablets on which these are inscribed come from the twelfth century B.C.E., but the legislation itself may well go back three centuries earlier. Although they conform to the casuistic pattern, the legal formulations and terminology as well as the prescribed penalties suggest influences, presently unknown, other than the standard Mesopotamian traditions. One hundred and sixteen paragraphs are preserved in full or partial form. An extraordinarily large number deal with matters relating to the status of women and to family law. Peculiarly characteristic of these Assyrian laws are the savagery and severity of the punishments they mete out: numerous instances of the death penalty, even for offenses against property; mutilation of the body; flogging, even to the infliction of one hundred lashes; pouring pitch over the head; tearing out the eyes; subjection to the water ordeal; forced labor; and the exaction of grievously heavy fines. There are also instances of multiple punishments imposed for a single offense. Greatly under the influence of Mesopotamian legal traditions but deriving from quite a different cultural and linguistic milieu and geographic region are two hundred Hittite laws8 that have survived from the Old Hittite kingdom in Asia Minor, now central Turkey. The extant tablets date from about 1250 B.C.E., but they go back to a much larger corpus of laws, apparently promulgated or collected for the use of jurists about five centuries earlier. A unique feature of this compilation is the clear references to earlier laws that have been revised. Capital punishment has been restricted to but a few offenses and has been replaced by restitution. The casuistic style is extensively employed. At this point it should be emphasized that none of the collections discussed can be considered to be codes in the usually understood sense of the term. First, one and all, they omit important spheres of legal practice, and none comes close to being a comprehensive regulation of the citizens’ lives. Second, not one of the compilations decrees that it is henceforth to be binding on judges and magistrates. Third, none is ever invoked as the basis of a legal decision in all the thousands of extant documents from the actual practice of law in the courts. For these reasons, the various collections are to be regarded as recording emendations and additions to bodies of existing unwritten common law that are seen to be in need of reform. This conclusion applies equally to the corpus of laws embedded in the Torah. It is silent on matters of commercial law, on such indispensable practices as sales and contracts, the transfer of ownership, the legalization of marriage, the regulation of professions, and on most aspects of inheritance. Clearly, there existed in Israel a body of unwritten common law, orally transmitted from generation to generation, knowledge of which is assumed. What is prescribed in the Torah is a series of innovations to existing laws. It should be further underlined that the review of the legal corpora of the ancient Near East given above unquestionably establishes that when the people of Israel first appeared on the scene of history, their world was already heir to a widely diffused common legal culture of long standing. No wonder, then, that Israelite laws exhibit so many points of contact with the earlier collections. Like them, the Torah expresses itself in terms of concrete, real-life cases, and, like them, the underlying legal principles are not abstractly stated but are to be deduced from the resolutions of those cases. Another feature that is common to both ancient Near Eastern law collections and their Torah counterpart is the difficulty in uncovering the organizing principle that determines the arrangement and sequence of legal topics, although some progress has been made in this regard in recent years. 9 The affinities and analogues that abound between the Israelite and the other Near Eastern law collections tend to obscure the fundamental distinctions that exist between the two, a subject that must now be addressed. First and foremost is the essential fact that biblical law is the expression of the covenant between God and Israel. Several important consequences flow from this. The legal sections of the Torah cohere with the Exodus narratives and cannot be separated from them without losing their integrity and identity. Their sole source and sanction is Divine will, not the wisdom and power of a human monarch. As imperatives of a transcendent, sovereign God who freely entered into a covenanted relationship with His people, the laws are eternally binding on both the individual and society as a whole. Hence the public nature of the law. There can be no monopoly on the knowledge of the law, and the study of it is a religious obligation. Further, there can be no differentiation between the branches of public and private law and between both of them and religion and morality. All topics that fall under any of these rubrics are equally binding. Law is not severed from morality and religion. As to the substance of the law, the Torah allows of no vicarious punishments, no multiple penalties, and, apart from the special category of the slave, demands equal justice for all, irrespective of social status. Finally, whereas the Near Eastern laws place great stress on the importance of property, the Torah’s value system favors the paramount sacredness of human life.