Now what is this the law of? To call it the rights of the Hebrew slave is surely to miss the whole point. It is still more misleading to call it the law of male slaves. It is the law of the hostage for debt. It concerns only the person assigned as mancipium. No other comes into view. And such is not a slave at all. There is, therefore, here no information about the treatment of slaves in Israel. All the fine talk about the humane character of the Mosaic law may apply elsewhere, not here. The law simply insists on the release of a debtor held to work off a debt at the end of a fixed term.
The further details of the case in the Book of the Covenant are considerations of special cases—(i) if the debtor is a single man when he enters on his term of service, (ii) or accompanied by his wife (and family?), (iii) if provided by his creditor with a wife during his service, (iv) if he prefers servitude in domestic freedom to destitute freedom. On these grounds we may remark—
(i) That he should go forth alone if he came in alone merely heightens the contrast. No restraint of the holder’s freedom is intended, but a limitation of the debtor’s claim. If his holder finds him a wife, and so children, he cannot claim to take them with him, that is all.
(ii) If his wife accompanied him she has the same rights to release as he has. His family is not named, but was surely in the same position. What is here ruled is simply that this class of servitude does not forfeit freedom for any one.
(iii) It is obvious that the holder might give him a slave-woman to be his wife. Had he been fully free the children of such a marriage would be at his own disposal. Now they are the holder’s property. As a single man held to work off his debt he probably was not free to choose his own wife. His children were a species of profit to his holder, just as if he were an ox.
(iv) The case where the man chooses to stay is instructive from many points: for a Hebrew could thus become a slave for ever. There were no degradations if no grades were recognized, and there were no religious disabilities. It did not even preclude wealth. The boring of his ear by the awl was a significant way of nailing his obedience, of which the ear was the organ and symbol, to a particular house.
So far in our comparison of the Code and the Book of the Covenant we have been content to show likenesses and contrasts. But there are not lacking cases in which some have not failed to see deliberate conscious change. One of the most surprising things in the Book of the Covenant, if it belongs there at all, is the prohibition to ‘favour the poor man’, Exod. xxiii. 3. The direction must be addressed to persons in the position of judges. It is sometimes maintained that the Book of the Covenant shows no trace of judges. However that may be, the directions must be addressed to those who decided causes, judges under some other name.
Now why was the poor man not to be favoured? We should not be at all surprised at judges being told not to favour the rich man. It can never have been superfluous in the East. But the Code does favour the mushkênu. We have seen that he was called ‘a poor man’ by several translators after the rendering ‘noble’ had been given up. That was partly because the Hebrew meskîn has always been taken to mean a poor man. Perhaps the original text of Exod. xxiii. 3 had meskîn. Then the later redactor, who seems to have known the Code, may have wished to obliterate a tell-tale word. The Code did favour the mushkênu in the sense that he could do wrong at less expense than his superiors. Also his offerings in the Temple were allowed to be smaller. Now this is exactly how Leviticus does favour a poor man, and that again suggests that by ‘poor man’ the Hebrew legislator did mean the same as the Babylonian mushkênu. Now if this otherwise very odd remark in Exod. xxiii. 3 was really old, one wonders that the Leviticus law does so favour ‘the poor’. But Exod. xxiii. 3 might well be passed later to abrogate this Babylonian tendency. Exod. xxx. 15 expressly forbids the rich to pay more or the poor less. The same word for ‘poor’ occurs in all cases. Did then the early Hebrew law aim at reversing the Code’s rule that ‘poor men’, or rather ‘plebeians’, should pay less? We may suppose that the Canaanites were the mushkênu in Israel. The ‘sojourners’ obviously were. But Hammurabi had neither riches nor poverty in view when he favoured the mushkênu. By the Tell-el-Amarna period the name had lost its exact value and become even in Babylonia more contemptuous. Later in Israel it became a name for a beggar. Did the Hebrew legislator catch the word when it only conveyed the meaning ‘poor’, and use his own term to avoid ambiguity?
The idea of God as the ultimate source of punishment is inferred as characteristic in the Book of the Covenant from Exod. xxi. 6; xxii. 8, 9, where the offender is brought ‘unto the judges’. These words are now more usually rendered ‘before God’, as there is no apparent reason why the word usually rendered ‘God’ should here be rendered ‘judges’, beyond a late opinion that such was the meaning of the phrase. This opinion is correct in so far as that analogy with Babylonia leads us to suppose that in every trial before judges the parties and the witnesses were put on oath before God. This direct appeal to God as the all-seeing Judge of men is in complete accord with the Babylonian practice, as revealed by the Code of Hammurabi. The conscience of the criminal and the fear of God’s vengeance on the perjured were in old times very powerful motives.
It is often said that the Jewish law is theocratic. So it is, when regarded as a whole and in the sense noted in the last paragraph. But this is not the attitude of the Judgements contained in the Book of the Covenant. At any rate they are not more theocratic than the Code of Hammurabi, which is extraordinarily free of religious motive. The type of a theocratic code is the Laws of Manu, a much more primitive type than the Laws of Moses. In some respects the Code of Hammurabi is practically a civil code, and so ahead of the Laws of Moses. But it must not be taken as a criterion of age that the Mosaic law is theocratic, nor pressed as a mark of primitive law. For it is theocratic mostly in a peculiar sense. The civil law of Israel comes to us embedded in a mass of religious law, and prefaced by a narrative of its production, serving to connect it with its divine author. Some portion of this framework bears a strong formal likeness to the Code of Hammurabi. This has been pointed out by S. A. Cook who, however, does not regard it as a sign of dependence.