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

by C. H. W. Johns

Seeing, however, that there is not yet full and final acceptance of critical views as to the exact classification of the Hebrew laws into separate codes, and that my audience is probably not completely familiar with either the separate codes in themselves or their dates, anything like a complete comparison of the Laws of Moses with the Code of Hammurabi is impossible without first at least sketching the character of each separate code. For comparative purposes we may begin with the earliest and see how it compares with Babylonian law, for the rest what has already been compared need not be repeated, but as it is necessary to limit our time I must leave all critical reasons for assigning a passage to a particular stratum to be consulted in Professor Kent’s volume and the extended literature which he names.

The usually accepted critical views of the sources of the Pentateuch regard the Book of the Covenant as the oldest code of Hebrew law now preserved to us. What law the people obeyed before we are not told, but it is obvious that they were not without law. Some scholars, attaching great weight to the traditions of the patriarchs and the implications of their story as to the growth of the people of Israel, assume that before the adoption of the Book of the Covenant they were nomad pastoral folk, and obeyed much the same customs as the Bedawin Arabs of the present day. For such a standpoint the late Professor W. Robertson Smith’s works on Semitic civilization, religion, and law are simply indispensable. Here, if anywhere, we can find a clear idea of common Semitic custom, so often appealed to to account for the similarities between Jewish law and the Hammurabi Code. But other scholars look on these narratives of the patriarchal life with deep suspicion as being a late attempt to sketch, in the light of a writer’s knowledge of what the nomads of his day were like, an instructive and edifying ancestral background for a set of very dissimilar tribes or clans, whom some political necessity led to amalgamate into the Hebrew people. A great deal in our research naturally depends upon our attitude to the questions, ‘Was Israel ever in Egypt?’ or ‘Was only one party of them ever there?’ Or again, ‘Was the Book of the Covenant promulgated at the unification of the component clans, or did it grow up long after?’ All such and many similar questions we must lay aside, as we start with the Book of the Covenant as accepted Israelite law.

We cannot suppose the Book of the Covenant preserved in its original state. Even if we suppose it was promulgated solely to decide those cases on which conflicting usage was causing disturbance, say between nomad Israelites settling down and the long settled Canaanite town dwellers; no one can be prepared to claim that it is complete. There must have been more of it. What we have now preserved may have been cut down to present limits for various reasons. It may be that later legislation superseded some of its regulations which later writers would thus think not worth recording. If the Code had been embodied in a document, that source may have become fragmentary in some way by the time the compiler of Exodus rescued it from oblivion. A careful perusal of the laws of Moses as arranged in their strata, by Professor Kent for example, will show that Hebrew writers had no hesitation in repeating earlier legislation. Hence we cannot argue that no more was preserved solely because it was embodied in later legislation.

Nor can we feel sure that no additions have been made to it. Some clauses seem to be very incongruous in their present context. This phenomenon, however, is not entirely absent from the Code of Hammurabi, which certainly has not been interpolated. But we must start on the Book of the Covenant, as critics have rescued it from its surroundings and set it down for us.

At once an external feature strikes us. In the Book of the Covenant many have discerned a systematic arrangement of the laws in pentads or decads. The Ten Commandments at once occur to one’s mind as a parallel. What is the significance of this partiality for five and ten? We are expressly told that the Ten Commandments were on two tables. We should not be surprised had there been seven. Some will think the human equipment of five fingers led to the adoption of five as a convenient method of remembrance. In some such way five or ten may have conveyed the idea of numerical completeness. Unfortunately the division of the laws made by Professor V. Scheil in his editio princeps of the Code is both arbitrary and inaccurate. No one has yet ventured to revise the numbering of the sections into which he divided the text of the Code; though several scholars have pointed out the inconsistencies. The lecturer, however, was struck by the fact that a more natural division at once shows an arrangement in pentads; and lately Professor D. G. Lyon has worked out this idea, as can be most conveniently followed in the rendering of the Code given by Professor R. W. Rogers in his Cuneiform Parallels to the Old Testament. Such an attempt will be resented by some as a purely subjective attempt to work up a likeness to the Mosaic laws and disputed accordingly. But the lecturer was led to it in the beginning solely by the fact that Scheil’s division did not agree with that made by the Babylonian scribes in the fragments of their copies which have survived. These divisions had no justification on the stela found at Susa, which divides only lines and even occasionally cuts a word in two. It shows no indication where a particular law begins or ends. Hence the Babylonian scribes, as all modern scholars, have had to divide as their common sense dictated. But the text on the stela was certainly copied from a clay tablet which may well have shown division-lines between the laws. At any rate, the divisions adopted by the Babylonian scribes, even if not original, have great weight as embodying an independent tradition among scholars who surely knew the meaning and connexion of the successive regulations in a very authoritative way. That their ruling does not agree with Professor Scheil’s where we can compare them shows that his division is not essential and may be neglected. Unfortunately our fragments of later copies do not help us often, and are too few to give us a canon upon which we can rely when we need it most, and we can rarely be sure that the division we propose was that of the original. Nevertheless there is great verisimilitude about Professor Lyon’s proposals, and it is a very striking likeness between the Book of the Covenant and the Code of Hammurabi that both adopted a division of laws into groups of five. We cannot press the argument too far, but the Roman Law at any rate shows that this arrangement is not a logical necessity nor a psychological demand of early legislation.

The critical account usually given of the Book of the Covenant is that it embodies the consuetudinary law of the early monarchy. It is regarded as embracing the formulated decisions which had gradually accumulated among the people up to that age. It is admitted that it, or at any rate parts of it, may well be older than the narrative (E.) in which it was incorporated. Its place in the scale of civilization is estimated by the fact that it imposes many restrictions on the arbitrary action of the individual, while it retains the lex talionis. Further, prominence is sometimes given to the fact that God is regarded as the immediate source of punishment. It is styled theocratic law, but breaks away from the purest type of such laws. The Code of Hammurabi goes further in the direction of purely civil enactment.

The picture which W. Robertson Smith draws of the state of society contemplated by the Book of the Covenant is founded on the assumption that there was no more of it. The basis of life is agriculture, cattle and agricultural produce constitute the chief part of wealth, and the laws of property deal almost exclusively with them. Only we cannot say that this was all. True, there is no longer preserved any regulation of the relations between principal and agent, if such ever existed. There is no widely extended tariff of wages for artificers and workpeople. Too much cannot be made of the fact that the Code of Hammurabi proves the existence of such specialized classes in Babylonia. For it does so without ever mentioning them in just those laws which can best be compared with the Book of the Covenant. If we were acquainted only with that part of the Code of Hammurabi which does correspond to the Book of the Covenant we might similarly construct from it a picture of the state of society in Babylonia just as simple as the Book of the Covenant warrants us in recognizing in Israel. Nevertheless it was not so.

The fact is that the Book of the Covenant does not present a complete picture of the state of society in Israel in the early days of the monarchy. That may not have been so advanced as in the days of Hammurabi. But the kings of Israel at any rate had need of skilled workmen. We read, indeed, that Solomon had to send to Hiram of Tyre for certain workmen, but this is not enough to prove the entire absence from his dominions of other classes of artisans. The absence of blacksmiths in Saul’s time is ascribed to an exceptional cause. In fact, the only way in which the entire absence in Israel of all but agriculturalists and shepherds could possibly be accounted for is by supposing that the Israelites had killed out all the Canaanites. We know they did not. We may point out other ways in which it would be dangerous to deduce from the absence of mention in the Book of the Covenant the non-existence of any particular institution whatever.

It is of more importance to notice that the principles of criminal and civil justice are those still current among the Arabs of the desert, namely, retaliation and money compensation. It is precisely the same with the Code of Hammurabi. If these features in the Book of the Covenant compel us to consider the Israelites for whom it was compiled as nomads in much the same state of civilization as the Bedawin, the same features compel us in the case of the Code to ascribe similar civilization to the Babylonians of Hammurabi’s period. The fact probably is that in both cases the dominant folk, Amorites or Hebrews, really were conservative of customs once in place in the desert if not too unsuitable for a settled life to retain.

It is a truer way to present the facts to say that both the Book of the Covenant and the Code of Hammurabi do not so much enact the lex talionis as interfere to limit its action in certain directions. For example, it is scarcely correct to say in either case that murder was dealt with by the law of revenge or left to the avenger of blood to punish. In the Code murder in general is not mentioned; we cannot suppose it condoned. But as in the Book of the Covenant it is distinguished from manslaughter, and this is expressly exempted from the death penalty. The innocent man-slayer might take refuge at the altar, as was still the case with those who feared for their lives down to the time of Solomon. It is clear that a murderer might do the same, for he was to be taken thence. Some sort of trial must have taken place before he was delivered up to the avenger of blood. We are nowhere told what was the procedure in Babylonia, but we may assume it was the same, for the innocent man-slayer was liberated on oath of want of malice. The oath was taken at the altar or before the emblem of the god. It is singular enough that no penalty for murder is stated, but there is nothing whatever to indicate that it met with different treatment in Israel and Babylonia.