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

by C. H. W. Johns

In both legislations man-stealing is reckoned with murder and punished by death. So is witchcraft, according to the evident implications of the Code and the express declaration of the Book of the Covenant. That offences against parental authority were treated differently is to some extent true. They are summarily dealt with in the Book of the Covenant with a death penalty. The Code spares the son for a first offence in such crimes as would naturally disinherit him, and enacts mutilation for violence to a parent. One may question whether death or loss of the hands was the worse penalty in Babylonia, and may remember that some critics hesitate to ascribe the law enacting the death penalty to the Book of the Covenant. The fierce resentment of the sons of the desert against any form of mutilation would account for the substitution of the death penalty. Other cases of injury in the Book of the Covenant are treated as proper occasions for self-help or for private suits to be adjusted at the sanctuary. That is exactly the view taken by Hammurabi, only explicit provision is made for suits which cannot be so adjusted by judges. Contemporary legal practice bears witness to frequent settlements ‘out of court’.

The case of the goring ox is treated by both legislations. Both make no amends to the victim of the attack made by an animal suddenly become savage. Here the Hebrew Code orders the death of the ox, a piece of useless barbaric revenge that has only recently died out amongst us. The poor beast got no trial and could not plead, but was held responsible. This may be very human, but it is to the credit of Hammurabi that he is at least silent on the point. On the other hand, if the ox was known by his owner to be vicious and death resulted, the Code inflicted stated fines on the owner according to the estimated value of the life destroyed. The Book of the Covenant does the same, fixing a ransom for the death of a slave to be paid to the owner, but death of the ox’s owner if the man killed be a freeman. And again, the ox is killed. The difference between the two fines for the death of a slave is noteworthy as probably marking average value in each case. This illustrates the reason why other fixed money payments do not correspond. Money values differed. Otherwise the treatments could scarcely be more closely alike.

In the case of specific and particular bodily injuries both laws exact a retaliation. The Book of the Covenant is here the more explicit: ‘life for life, eye for eye, tooth for tooth, burning for burning, wound for wound, stripe for stripe’ is more detailed at any rate than the Code, which only enumerated ‘eye for eye, limb for limb, tooth for tooth’. The difference, such as it is, can hardly be pressed as really giving a different complexion to the legislation. On the whole, despite its extra detail, the Hebrew law is less clear, and the arrangement certainly looks like a hasty compilation. For as it stands these words occur attached to the case of a woman with child hurt by blows. At any rate Exodus xxi. 24-5 introduces them with the words ‘and if any mischief follow’. It may be, as some suggest, that they have slipped in here from some other context, or be merely an expansion of the ordinary ‘eye for eye’ to give a fuller formulation of the lex talionis. But it is difficult to see how the loss of a limb, or an eye, or a burning could be the mischief done by a blow to a pregnant woman. Miscarriage or death, or both, are the mischiefs likely to happen. The Code of Hammurabi deals with the case more reasonably. In fact, as it stands, the Exodus passage, xxi. 18-25, looks very like a loose summary of Hammurabi (§§ 196-200) without its logical connexion. At any rate, it is hardly credible that this collection of words was ever put forward at any time in the world’s history to enunciate a new law for a community of any type that ever existed. The most intelligible way of regarding this clause is as an attempt fully to enunciate the law of retaliation, and that its presence in its present place is due to the desire to explain some phrase which less effectively quoted that law; but in the quotation of the fuller statement the fact was overlooked that some of its clauses were unsuited to the cases under consideration. It is no excuse to say that it looked back over all the preceding cases of assault, for ‘burning’ nowhere applies. The only clause which really applies is the first, ‘life for life’.

Doubtless some critical rearrangement may be made to justify the use of the clauses somewhere, but as it stands it looks like a stupid interpolation or an undiscerning quotation of the law of retaliation bringing in the sense ‘if any mischief follow then it shall come under the law of retaliation’. That would yield some sense if interpreted with common sense in particular cases. The Code of Hammurabi is much more distinct. If miscarriage followed, a fine was set down. If the woman died also, the assailants daughter was put to death when the dead woman was of patrician family, otherwise a fine was set down. The Book of the Covenant evidently held to the strict retaliation throughout, but gave no hint as to how it was to be carried out. The Code slips into the same vagueness if the assailant had no daughter to pay the penalty of her father’s fault.

In the case of the injured woman in Exodus xxi. 22, the punishment, if no mischief follow, was left to be assessed by her husband, obviously for motives of delicacy; but the decision of the amount to be paid lay finally with the judges. In Hammurabi’s Code it was fixed by statute and graded according to the status of the woman (§§ 209-14). What, we may ask, is the essential difference? Can any one suppose that in Israel the husband could demand and secure what compensation he chose? Surely the Hebrew law is a concise way of saying the same thing as Hammurabi’s Code does. The scale of payment could hardly be expected to be the same in both lands owing to the difference in money values. A discretionary power in the judges, or a liberty of composition between the parties, is implied in the Code which everywhere states maximum penalties. This is made clear by contemporary practice. Both legislations further take into account the possible death of the woman herself. Else, what is the meaning of the phrase ‘and if mischief follow’? The Hebrew law, however, in that case legislates most awkwardly for what could hardly happen in its endeavour exhaustively to express the law of retaliation which was to rule the case.

While we are comparing the laws as to assaults and their penalties, we may pause to note one conspicuous difference between the legislations. The Babylonian lawgiver made a considerable allowance for class distinctions. His was eminently class legislation. Some at once feel that this fact places his law on a lower level than the law of God. Such is a grotesque misapprehension. In Babylonia there was what we have not yet attained nor can do until the State bears all law expenses and gives a poor man justice free of cost. There was one and the same law for both rich and poor. But the aristocrat was treated differently from the commoner. In the eyes of some this is a far worse crime than favouring the rich against the poor, which is the vice of all democracy. But Hammurabi was in this much finer than we might expect, for he treated the aristocrat more severely in every respect than the man of humble birth. I do not attempt to defend that method, but it does need a little explanation.

The facts are these, the aristocrat in Babylonia took a very high view of his personal dignity as one of the conquering race. On his continued support and loyalty the safety of the throne, and consequently the welfare of all Babylonia, depended. The commercial-minded Babylonians, rich or poor, like any other commercial group in the history of the world, could never defend for long even their own money-bags, and for all their industry, brains, and wealth could only pay for protection so long as the pay they were willing to offer exceeded the spoil their mercenaries could wring from them. The aristocrat was actually of a lower civilization, as conquerors were always apt to be, but he held the land by force of arms. Hammurabi was as dependent on his noble Amorites as William the Conqueror was on his Normans. He held them to his allegiance in practically the same feudal manner as did William and his successors hold the Barons.

Now the aristocratic amêlu or patrician of Babylonia was very sensitive to a personal injury. He would accept no compensation for a blow as might a commercial plebeian. The exact retaliation ’eye for eye, tooth for tooth, limb for limb’ was his sole satisfaction. The mushkênu or commoner had to be content with a money payment. So far for the contemporary public opinion. We say that the proud patrician was conservative of a more primitive type of law, which we find to be that of a nomad Semitic folk, the Bedawin Arabs, still. So far as the Hebrew clung to the same law we discern aristocratic views with a lower type of civilization.

But there is no trace of such class distinctions in the Book of the Covenant. It is not, therefore, a higher type of law. It would be lower if it were purely aristocratic in the sense of love of retaliation. Why, we may ask, were there no social grades in Israel? Possibly because in proportion to the conquered the conquerors were relatively more numerous than in Babylonia. Or possibly the conquered were more thoroughly subdued. Possibly also because the references to class distinctions have since been expurgated from our copies of the legislation.

Now let us take the view that the higher law which accepts compensation for injury in place of strict retaliation emerged later in Israel. Are we to regard this as a natural evolution? Surely not. We are not convinced, surely, that it is a higher law or more inspired. It was probably, as in Babylonia, already the older law of the land before the Israelite invasion, the more civilized law of the more civilized inhabitants of Canaan. Later, according to the critical arrangement of the law codes as preserved to us in the Pentateuch, this more civilized custom is growing, and it has to be forbidden in the interests of conservatism (Leviticus xxiv. 22). At any rate, there, after repeating the law of retaliation, differences of treatment are forbidden. Why should this be done, unless they had been growing? Later still, in Deuteronomy xix. 21, deviations from strict retaliation are again forbidden with the words ‘thine eye shall not pity’. Once more, we may ask, if compensation had not been a growing custom among the Israelites, why should this effort be made to strengthen the observance of a lower law? Was it solely because of their reverence for Moses and his law, or was it not because it was all along the Canaanite law and so repugnant to the Jewish lawyers? If so, were not the Canaanites in the same position to the Israelites as the Babylonian mushkênu to their Amorite conquerors in the old days of Hammurabi?