The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples / The Schweich Lectures

by C. H. W. Johns

Still, nothing depends in our comparison of the Laws of Moses with the Code of Hammurabi on our knowledge of the personality or circumstances of Moses. Much would depend on how much of the Laws of Moses we should consider to be his. In a similar way, the use of such terms as the Book of the Covenant, Leviticus, or Deuteronomy, The Priestly Code, and the like, neither implies nor denies the appropriateness of the terms nor any adhesion to any theory of their source or date. They must be regarded as merely names for more or less definite pieces of legislation. That the balance of argument is in favour of assigning to them the extent usually assigned to them by Old Testament critics may be granted for purposes of comparison. It is an opinion which may not be shared by all. But it is not by any means essential to our comparison that any one of the views now held about any of them should be final.

Thus it is enough to grant that the Book of the Covenant is the sole relic of the earliest Hebrew legislation and that the rest may be regarded as later development. In that case, however, it is incumbent on those who hold the theory of this development as an evolution on native soil to show intelligibly what influenced the particular form which that development took. Our comparison may suggest that if this supposed later law be really not of the Exodus period also, and not a product of the same mind which modified Babylonian law into the Book of the Covenant, yet its likeness to Babylonian law excludes the idea of a free uninfluenced development. We may hold further that early or late Babylonian influence is still there. And we must account for its persistent influence. On the supposition of its being later than the Book of the Covenant we may be inclined to hold that it was adopted, not directly from Babylonia, but from the relics of pre-Israelite Babylonian influence on Canaanite law.

It may be asked at once—what do we know of Canaanite law? Confessedly very little; but so far little attempt has been made to inquire into the subject. Scholars have been too ready to endorse the judgement of the old Jewish writers who denounced all Canaanite usages. As yet no documents of Canaanite production have been found, unless we include those of near neighbours like the Phoenicians, Moabites, and Northern Syrians. We may deduce something from the Old Testament, but that is a hostile source. A certain amount of information may be collected from the Tell-el-Amarna tablets, which supply evidence for times before the Israelites entered Canaan. Much of the law or custom witnessed to by later times may really be very old. Some scholars of late have argued with great force that the First Dynasty of Babylon were not only Amorites but came into Babylonia from Canaan. There were Amorites left in Canaan when the Israelites settled there. If these were of the same stock, much that in the Code of Hammurabi marks change from the old settled Babylonian Semitic law may be due to a Canaanite source. The subject of the Amorite characteristics, apart from their peculiar proper names, has as yet received next to no attention. The researches of Macalister on Palestinian soil will be awaited with great interest, as he appears to have recognized such distinct characters about his Amorite finds as to enable him to identify them as such without hesitation. He will, it is to be hoped, soon tell us something of their civilization. Gradually, no doubt, we shall be able to tell what was the exact character of each of the peoples in Canaan; and in the end the Code of Hammurabi may prove to be the best witness we have to the Canaanite law.

The Laws of Moses were once, and in some quarters still are, supposed to be all contemporary with that great national hero and lawgiver, and to form a complete body of law imparted to men by Divine inspiration. The Jewish commentators, however, of old treated this view with considerable freedom. Modern scholars, who have devoted two centuries to a critical study of the Pentateuch, have lately gravitated towards a fairly definite theory implying the existence of several codes, so to speak, and those of very different dates, all much later than the time of Moses. As experience shows there is very little permanence about the critical views, we had best confine ourselves to the latest presentation. We need not trouble to inquire into the merits of the earlier critical theories, and may leave their refutation to the last writer on the subject. We may take two good examples for our purpose. Mr. S. A. Cook in his excellent work The Laws of Moses and the Code of Hammurabi assumed the critical view of the Pentateuch as then presented, and made the most successful defence of the originality of the Mosaic Law yet attempted. It will be noted that one of the so-called ‘destructive’ critics made a most vigorous defence of the uninfluenced character of the Mosaic fragments adjudged by that school to be early. Naturally so; for such critics it is vital to maintain the exclusion of external influence. There is no criterion of date for them if the orderly continuous evolution along well-known lines can be supposed to be overwhelmed by a catastrophic influence from without. The history of the development being unknown or rejected in favour of a theoretical reconstruction upon lines evolved out of the supposed results of comparative law, religion, or the like, it was delightful and easy to build up a purely imaginary self-consistent view of the order in which ideas developed or evolved. The consistence of the view impressed its authors as proof of reality. There was no history to test the reconstruction by except such as could be brushed aside as unreliable because inconsistent with the view. But some late things, dated as late upon this theory, turned out to be a thousand years older than the early ones, and so the almost forgotten maxim ‘what is primitive need not be old’ had to be revived. For the evidence of the Hammurabi Code had to be rebutted anyhow.

It is most remarkable that the champions of the traditional view never seized upon the Code as a weapon to beat the critics with, while the Rationalists made a good show of learning and even indulged in argument on the matter. But after the dust of controversy cleared off it was perceived that the Code was a new fact to be reckoned with, neither attacked nor minimized nor exploited, but studied and respected. As it had surprised and even disconcerted the lawyers, so it had gradually compelled divines to reconsider.

A work which freely accepts the critical division of the Hebrew laws is Professor C. F. Kent’s book—Israel’s Laws and Legal Precedents in the Old Testament Student Series. If any modification of critical views may have been thought necessary as a result of the new material provided by the Code of Hammurabi, it is here tacitly but fully allowed for. Further study may be expended on the comparison and somewhat modified views may have to be taken, but the nature of the questions involved is clearly and concisely shown in this work.

Were it possible to institute the comparison between the Code of Hammurabi and the whole Hebrew legislation treated as one indivisible body of laws, it would be much less difficult than when a set of regulations are picked out as early and treated as the only rules which deserve to be regarded as in the remotest sense Mosaic, while all else is treated as later and scarcely to be regarded as law at all, but merely pious wishes or aspirations. By such a careful selection there is not only very little to compare, but the very things ruled out as late or unhistorical aspiration on account of their relatively high tone are just those most like the Babylonian. On such principles with criteria so carefully selected to rule out all disagreeing evidence a verdict is easy to attain. It is the fact that these criteria were invented before the Code of Hammurabi was dreamt of, but it does afford a very strong test of them and should lead to some revision. The critical theory is now so firmly rooted in the minds of all scholars who are not allowed in youth to imagine any alternative that we too must accept it or be lost in a perfect morass of unintelligibility. Only we ought to remember that in so doing we make the comparison as difficult and complicated as possible.

Accepting the present division of the Hebrew laws it is possible to divide the periods of Babylonian influence on Israel correspondingly. The conclusion to be drawn is that Babylonian influence was strong in the case of the earliest Israelite law perhaps through common Semitic custom, recalling that Abraham traditionally came from Ur of the Chaldees through Haran, a Babylonian Province, to settle there under strong Babylonian influence where Babylonian language and writing were still used down to the time of the Exodus. The impression of Babylonian is said to be less prominent in later codes until after the Assyrians, whose civilization was specifically of Babylonian origin and type, had held Palestine vassal for two centuries. The Exile was to Babylon itself, and Babylonian influence is naturally strongest after the Return from the Exile, and even more powerful on the Jewish doctors of later days, many of whom continued to live in Babylonia.