We must, however, allow some weight, one way or another, to this likeness. Either this setting is original, or it is not. If it essentially belongs to the Book of the Covenant, that is theocratic to about the same extent as the Code of Hammurabi, and another striking similarity is added to the list of arguments for dependence. If it is not original, then the Book of the Covenant, unlike the rest of the Hebrew law, was originally purely civil unless it had a different religious setting (Babylonian or Canaanite?), and so still more like the body of the Code of Hammurabi.
We have two pictures, so to speak, with very similar art and very similar frames. In one case we know the picture and its frame are contemporary. In the case of the other, which is certainly later, both picture and frame are very like the older. If now the later frame be not contemporary with its picture, we cannot use it to conclude that the pictures are independent studies of the same subject. It gives no evidence as to its picture. If the later frame be original and contemporary, the later cannot be treated as an example of art repeating itself. The copied frame is a very significant argument in favour of the later picture being regarded as a copy too. Now it is very important to much of the critical argument that the frame is original.
LECTURE III
In the first and second lectures we have dwelt upon the external features of the two codes of law to be compared, and pointed out some things remarkably similar. We have now to consider the various theories which have been propounded to account for them. The progress of the discussion has shown that the higher critics are as eager as the orthodox Jewish or Christian writers to repel the oft-repeated assertions of dependence.
There are obviously many ways of treating the resemblances and accounting for the differences, and some of them may, and probably will, long be held which do not attempt to take account of more than a selection of the facts. That theory will surely be finally accepted which takes account of all the facts. Hasty dogmatism only succeeds in imposing on the credulous public and provokes the resentment of those whose judgement is alone worth considering. I should esteem it then a real misfortune if anything I might say should lead any one to form a conclusion based solely on what he considers to be my opinion. Therefore I expressly warn you that I have not given you my opinion, nor do I intend to do so. I desire solely to make you aware of the facts, and invite you to form your own opinion.
Now the first thing to deal with is the general similarity of the Code to the Book of the Covenant, considered as our best witness to the primitive Hebrew law. It has been calculated that out of forty-five, or possibly fifty-five judgements preserved in this old Hebrew law, thirty-five have points of contact with the Hammurabi Code, and quite half are parallel. Of course, there are also marked differences to be accounted for. The Hebrew law appears to have legislated for a small people, among whom human life was precious and property scanty. The Babylonian law protects property with far severer penalty, and makes little account of a criminal’s life. This is appropriate to a nation of commercial instincts and a wealthy populous state. It recognizes grades of wealth and position. The theft of an ox is punished by a five-fold restoration in the Hebrew law, in the Babylonian by thirty times its value, or in the plebeian’s case by a ten-fold penalty. We may estimate the difference by saying that in the desert five oxen was about all a man had, and his family would probably have to help him to pay, and so the penalty was an effective restraint; while in Babylonia, thirty oxen were to many men not more costly, and even the commoner was twice as wealthy as an Israelite. It is, however, more likely that the penalties were not calculated at all upon an estimate of what they meant to the criminal, but on an artificial system of the value of numbers. For example, in Israel, five may have been ideally complete. Professor D. H. Müller has most ingeniously worked out the possible significance of the numbers.
It is not particularly profitable to insist upon the superior humanity of either code. Impartial judges, acquainted with ancient codes, will perceive that the balance between the rights of the individual and those of the State is always very difficult to hold level. Severe penalties may be due to the determination to suppress crime at any cost. The desire to save the criminal from the results of his crime is not to be expected of any early legislator. Only when his life was worth more to the State than the loss he was likely to cause could the criminal hope for pardon. As Hammurabi put it, the king might wish to save his servant’s life.
Points of close agreement are numerous. The treatment of sorcery, the law of deposit, the punishment of kidnapping, injury to a pregnant woman, regulations as to shepherds, and a score more may be noted as very similar. These are given in many books, very conveniently in Professor S. R. Driver’s Genesis in the Cambridge Bible for Schools.