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

by C. H. W. Johns

On these we may remark, first that in Israel the term of six years imposed by the Book of the Covenant was evidently resented, and has to be explained as really a double term (Deuteronomy xv. 18). Surely that indicates a knowledge on the part of the later lawgiver of what was not generally known in Israel, to wit, that the term had once been three years. Where and when, we may well ask? Surely not in Israel, or the creditor would not have so resented a regulation which gave him twice as much for his money. Nor in his neighbour cities of Canaan, or he would still have recognized his improved position. It must have been somewhere at a time now forgotten in a state of things which he would be expected still to respect. Where else could it be than in Babylonia, the home of his father Abraham? Would any one have quoted him a law unless it was one he was likely to respect as eminently just? He may not have known that law by the name of the Code of Hammurabi, but simply as ‘ancient law’ so highly revered by Orientals in all ages. ‘Ye have heard that it was said by them of old time’ was enough.

Here some one may be disposed to raise the objection that the creditor was not told that the six years was double the term allowed by ancient law, but simply that it was ‘the double of the hire of a hired servant’. Now if that does not mean the same thing it has no sense at all. For a term cannot be double the hire of anything. It is the value in work of the term of service which is double a hire. We must express both terms in the same denomination. In what sense could six years ever be double of anything but three years? How can we imagine three years to have any special connexion with the term of a hired servant? Is there any evidence that servants were usually hired for three years? The term in Israel, as in Babylon, must always have been matter of free contract. The writer has in his mind the other regulation that the hostage for debt must not be treated worse than a hired servant, and explains the six years’ term as double what the debtor would be likely to agree to if he was in the position of a hired servant and free to contract about the term. Why should he be thus expected to fix upon three years as a term? Probably because the custom, which had come down from the time when Canaan observed the same usages which Hammurabi codified, regarded three years as a proper term. If this view be thought not convincing, it may be rejected.

It is at least curious that the excuse given for demanding release for a hostage for debt at the end of six years is that this is after all double something—when it actually is double the term Hammurabi fixed. In whatever way the Deuteronomist meant his reader to understand his explanation it is difficult to imagine what else was in his mind. The something which he appears to allege may be a gloss on his words. The text may once have said ‘for the double he hath served thee’, and a dull glossator may have sought within his own consciousness for the rather pointless example suggested by the other reference to a hired servant’s service.

Anyway, the term is explained as a double one, and it was double of the term in the Hammurabi Code.

The second point of difference has a suggestion of greater ruthlessness in Babylonia in treatment of a hostage. ‘Blows and starvation’ point to efforts to get more out of the hostage. This, too, is the underlying thought of the later legislation in Israel which forbids his treatment as a bondservant.

The third point, too, suggests that in Babylonia it rarely occurred to a man to prefer comfort with servitude to freedom and destitution. The lot of the free destitute may have been more hopeless in Israel, the lot of the slave less tolerable in Babylonia. Or the love of freedom may have been greater in Babylonia. In any case, such a difference in law is the sort of addition which might be expected to grow up in five hundred years of advance, in a different state of society and a far-off land.

In the last resource the ground principle remains the same. A debtor may name himself, or one of his family, or his slave, as hostage for debt, but whatever the amount of debt, the hostage shall not be held beyond a fixed term. This in both laws only applies to a free individual and never affected a real ‘slave’.

We have hitherto assumed that the law contemplates only the Hebrew male ‘slave’. But are we to suppose that when an Israelite got into debt or was sold to pay an obligation that he alone was responsible? Could not he also assign his wife or child or slave to work off his debt? And if he did, are we to understand that they could be kept for ever in bondage? The words of the Book of the Covenant do not expressly answer any of these questions, but only a very pedantic interpretation of the letter of the law could confine its operation to the male head of the family.

We do have, however, an indirect answer in the next two clauses. He might come in alone or he might bring in his wife (and family presumably) with him. If so, they had to be released with him. The case where he assigned them in his place is not mentioned. Are we to assume that this was not done? Subsequent legislation extended the law. Deuteronomy xv. 17 has ‘so shalt thou do to thy female slave’. This may have been necessary to prevent an abuse of refusing to release a female ‘slave’ sold to work off a debt, on the plea that she was not covered by the words of the Act. This would be to assume a litigious spirit, of which we have no other proof to allege. It is better to regard it as commentary. It may, indeed, be contended that the law was intended to cover only one special case, but it is more reasonable to suppose that it takes a special case as norm for all.