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

by C. H. W. Johns

That the Code of Hammurabi punishes the aristocrat so sharply may have been due to the uneradicated predatory instinct of his Amorite retainers, or to the arrogance of conquerors who were disposed to hold that the conquered had no rights against them. That the Book of the Covenant instances only ox and sheep may be due to the fact that its legislation was meant for a pastoral folk entering upon a new environment. The peculiar numerical calculations which brought about the penalty of multiple restitution and decided how many times may have been founded on some theory as to the significance of numbers which now escapes us.

But one point must be carefully borne in mind. The Code of Hammurabi states the maximum penalty. Its ‘shall’ is not imperative but permissive, it may best be rendered ‘may’. A considerable licence was allowed to judges, and there was always appeal to a higher court and ultimately to the king.

Damage to crops by animals is explicitly treated both by the Code and by the Book of the Covenant. Hammurabi (§ 57) separates two types of damage—one where the crop may recover and even benefit by the growing corn being fed off and trodden by sheep, the other where the corn in the ear is irretrievably destroyed. It is not clearly the case, however, which is treated in Exodus xxii. 5. If not, then we can allege no contrast; but the LXX and the Samaritan Pentateuch add the case of complete consumption. This might be due to a later acquisition of knowledge concerning Babylonian or Canaanite usage, but is so distinct that we cannot fairly insist on conscious antiquarian interest. The case could hardly be left undecided.

Damage by flooding a neighbour’s field, dealt with in the Code, §§ 53-6, is foreign to Israelite soil, irrigation being rare, but the same type of law is given for damage by fire in Exodus xxii. 6. This is not referred to in the Code.

The Code of Hammurabi deals at length with the case of property claimed as lost from a holder who asserts ownership (§§ 9-13). The corresponding section of the Book of the Covenant, Exodus xxii. 9, may be said to condense the whole with extreme brevity thus: In any case of breach of trust, whether it concern ox or ass or sheep or clothing, or any kind of lost thing of which one saith ‘This is it, the case of both parties shall come before God; he whom God shall condemn shall make double restitution to his neighbour’. This seems to be the best that Professor Kent can make of the Hebrew. Now can any unprejudiced person suppose for a moment that this clause sets out a new law in an intelligible fashion. Is it not obviously drawn up in the manner of one who is summarizing a well-known series of enactments? To my mind it is very difficult to resist the impression that it is meant to reduce a rather wide and perhaps not a very uniform series of judgements to a single formula. That the law thus sought to be simplified was the Code of Hammurabi does not appear, for the simplification is of a type that destroys almost all likeness. Only this may be said: in both legislations, if any man is found holding property his right to which is challenged by another, the claims of both are to be rehearsed before the judges. So far the resemblance is exact, but while the Code takes each contingency separately, and whoever is proved to have made a false claim is judged to be a would-be thief and as such condemned to death, in the Book of the Covenant the culprit has merely to pay double to the man he has defrauded. This is indeed a marked change, if not improvement. But one would expect progress in five hundred or a thousand years of settled life in Canaan. That so primitive a folk as Israel is usually supposed to have been on entrance into Canaan, or even in the early days of the monarchy, should have a law so advanced would be remarkable enough. But we note that apparently the Book of the Covenant wishes to include breach of trust as well as unlawful detention of property.

Now the law of deposit or trust is dealt with in the Code very clearly and precisely. The depositee is responsible for all loss. Even if the deposited goods are stolen from him he must repay and recover at his own charges from the thief if he can find him. If the depositee wrongly denies or disputes the deposit he pays double. One point only is not decided. The thief has, of course, to be killed when caught. But he may not be caught, and his death in any case will not restore the goods. Now Exodus xxii. 7, dealing with deposit also, does not repeat or resume the surely necessary points treated by the Code, but does take up one of its difficulties. If the thief is caught he, too, pays double. If he cannot be produced, the depositee is brought to the judges to see if he has appropriated the goods. The sequel is not stated, but is usually supplied by supposing it covered by verse 11, which, however, formally applies to a different case, the case of animals entrusted to a shepherd or farmer, which is treated in the Code (§§ 244, 249, 267). There unavoidable accidents are cleared by an oath of innocence, just as in verse 11. But as in Exodus xxii. 13, evidence of the animal being killed by a lion is demanded in the production of the remains; we can hardly regard this as on all fours with robbery from a granary, for example. In the case of negligence or theft of a deposit both legislations require restitution. There are certainly differences, but no fundamental difference of view. No one can deny that the regulations in the Book of the Covenant might have arisen quite independently, founded on natural experience; but surely, in that case, the law would have explicitly treated more points. These must have arisen in practice. Why were they not treated?

The answer which seems to meet the case is that the Book of the Covenant assumes just what the Code contains, repeats some of it summarily, adds a fresh case or two, revises the penalties, but, if completely preserved, does all this in a rather crude fashion. We may not have it all, and that must not be forgotten. The Exodus passage as it stands has all the appearance of supplementary legislation, and, if it be as early as is commonly supposed, where are we to look for what it assumes already known?

So far we have instituted a comparison between the Hammurabi Code and the Book of the Covenant without exploiting the subsequent Hebrew legislation. We have seen great likeness mingled with decided contrasts. We have followed quite carefully critical views without being able to exhaust all the ramifications of criticism. We have taken the usual acceptation of the Hebrew laws. Considerations of time and space prevent our extending our researches to the limits of exhausting our subject. Much clearly remains to be done. We could examine most of the points taken up much more closely. Before we leave this part of our subject let us look from another point of view at the cases of slavery already dealt with.

The Book of the Covenant, Exodus xxi, legislates for slaves, both male and female, but especially for those of Hebrew race. A moment’s consideration will show that this is not an exhaustive treatment of the questions relating even to them; only selected points are dealt with. Now we may ask, Why should just those points be selected? Was it because the nomads before entering Canaan had no slaves, or were there none of the Hebrew race, or was it the case that in the desert none could sink so low? Or were there no slaves under the early kings of Israel? At what time did the use of slaves arise? Definite ideas on such points are necessary before theories of the date of the laws can be sustained. The usual view is that the institution of slavery is long anterior among the Israelites to the Book of the Covenant, whose regulations introduce no new regulations, only fix customary usages. On the other hand, a very frequent view is that a change in habits on entrance into Canaan had brought new conditions and so had given rise to new sociological problems. Perhaps the conquest of Canaan added largely to the numbers of slaves. The older views on the subject of slavery had to be modified in order to meet new conditions. The Book of the Covenant on this view did introduce new regulations which aimed at teaching a newly settled folk how to treat particular cases. Did the lawgiver, then, treat the subject de novo, or merely adopt regulations already in force in Canaanite cities, or did he seek inspiration from the land to which his people’s traditions ascribed their origin?

Now the answer to such a question depends upon what we can find elsewhere in the people’s previous experience in the desert, in Canaan, or in dim memories of far-off Babylonian days. That is to say, if these really denoted distinct epochs in their history with distinct civilizations. For if a law on these points already existed, was recalled, or observed in force, which proves to be practically the same as that here adopted, or could be ascertained on inquiry by Hebrew legislators, then the view that they did not attempt to ascertain it, nor recalled it, nor observed it, but independently concocted a fresh law, and in so doing hit upon exactly the same result as they might have ascertained, recalled, or observed, needs only to be stated to refute itself. An appeal to inspiration to explain this kind of miracle is only laughable, and if the best of men professed to so account for any of his actions in ordinary life, we could only doubt his sanity so long as we believed his sincerity.