Now on such a view of the general similarities many have expressed the opinion that the Hebrew laws are a more or less revised adaptation of the Babylonian law, perhaps as locally already modified in Canaan to suit the prejudices of the invaders while they were changing their habits of life and became a settled people. But this view is not vivid enough for others. There is a certain delight which some feel in propounding views calculated to shock some one. The cruder view that the Hebrew lawgiver, call him Moses or some higher critical periphrasis for the same thing, sat down with a cuneiform copy of the Code before him and copied out the Babylonian laws with some adaptations, may have been enunciated with some such amiable wish, but was too crude to disturb any one. It is barely worth record. The differences between the Codes are too important for us to adopt it. If he made a copy it was a very bad copy. Some allowance for the difference in age must also be made. Such a length of time as five hundred to a thousand years must have been marked by great changes in Babylonia or in Canaan. The advent of the Israelites must have introduced new forces into the life of Palestine. Here we have to weigh carefully our evidence, which points on the whole to the Israelite contribution being more primitive in type, and in some degree a return to early conditions which held before the time of Hammurabi in Babylonia. Dear as these changes were to the later Jewish mind, they were not what we should call improvements.
But when merely considering such general resemblances, along with such marked differences, we can readily see that a theory of common origin will suffice to account for the likenesses; while many subordinate theories can be put forward to account for the differences. Between the theories of these differences it must be impossible to decide until we know more accurately the exact circumstances of the Israelites at, or soon after, their conquest of Canaan. We may, for example, have to regard the conquest as extending over a long period and admitting of many gradations of supremacy in different parts. It is not likely that a clean sweep was made of the old inhabitants and their customs at any one epoch or place. We may have to extend this period of conquest down to the end of the time of the Judges. Parallels are not wanting in the history of Babylonia. The so-called Amorites had been some centuries in the land before Hammurabi’s supremacy, even before they appear as founding a dynasty.
A favourite theory of the resemblances is that they are due to a common Semitic origin. Let us examine that theory more closely. In support of it we have to show that the common features are of a Semitic type. This is more difficult than is generally supposed. When practically the only pastoral nomads whose customs were at all well known to theologians were the Arabs and, as usually assumed, the Israelites, many features were put down as Semitic which are now recognized as rather due to the exigencies of the nomadic life. The recognition of the Babylonians as a type of settled Semites led by slow gradations to the admission of other features as also Semitic, while some things hitherto only known among Semites have been recognized as the common possession of many unrelated folk. Gradually, and probably unconsciously, ‘common Semitic origin’ has become a mere euphemism for ‘Babylonian’. For to what part of the Semitic world can we look for so advanced a civilization as to be common both to the Babylonian and Israelite law? It must be at least as advanced as the things common to those laws and yet not presuppose a state of society which could not be true of a Semitic people. It would be interesting if we can find anywhere a clear sketch of what conceivable state of society the common Semitic origin really implies. It might then be argued that no such society ever existed. At present all we can say is that we do not know where to find it. It is really only a convenient term, like evolution, to conceal our ignorance of history.
If it could be shown that just those features which are common to the Hammurabi Code and the Israelite, and therefore presumably existed in the common Semitic origin, are unlike anything in the Sumerian or pre-Semitic laws of Babylonia, then the fact of a common Semitic origin might have to be admitted without our being able to fix upon a locality for it. In Babylonia a predominance of Semites, at least in the north, may be dated, perhaps a thousand years before Hammurabi, under Sargon of Akkad. But while we know of Sumerian Family Laws and have references to legal reforms under the Sumerian Kings of Babylonia even in pre-Sargonic times, we have not yet sufficient material from those early days to know exactly how far Hammurabi’s Code was really an advance upon older Sumerian law. Slowly but surely we are learning that precisely the same legal forms were in use, long before Hammurabi, among the Sumerians of the south. The legal documents of Hammurabi’s age are full of the old Sumerian words and phrases, used just as dog-Latin or Norman-French was in our deeds of early English times. We could not claim a common use of Teutonic translations of Roman law terms in England and Germany, if such existed, as proof of a common Teutonic origin for the laws. But the Hammurabi Code is full of Semitic translations of Sumerian terms. This would be quite fatal to the theory of common Semitic origin but for the fact that the Sumerians had been conquered so long before by Sargon, and we cannot yet clearly sift out what may have been due to his Semitic followers from what may have been imposed on them by the subject Sumerians. The conquest of Babylonia by Elam may have affected its laws more than we think. The barbarous Elamite punishments survived in Babylonia, in Mesopotamia, even in Israel, two thousand years or more. But one can hardly argue much from that. The early history of Babylonian law is still very obscure, and we can only state probabilities of more or less cogency.
The Semitic origin seems afflicted by lack of cogency. One must respect it for the attachment which certain estimable divines show to it. One rather wonders whether Noah was a Semite as well as his eldest son, and whether these laws really go back as early as Shem. Elam had claims to be a Semite, and an early Semitic kingdom in Elam seems to have been long predominant there. Was Elam the real common Semitic home both of Amorites and Israelites? There was a district not far from the border of Elam over which Kudur-Mabuk, the father of Rîm-Sin, once ruled, and which was known as the land of the Amorites. Thence the First Dynasty of Babylon may have come. Whether the ancestors of Abraham in Ur of the Chaldees were once Amorites or earlier Elamites we cannot yet decide. But with all these speculations scientific folk show small patience: for they have another way of solving the problem.
It is most probable that some of the features which Hammurabi’s Code has in common with the early Hebrew legislation are only slightly modified from the still earlier codes which date from the time of earlier Sumerian supremacy in Babylonia. Hence we should remember that a common Semitic origin may really be only a step towards a reference of both to an early Babylonian origin. At present we are not likely to find evidences of early Semitic custom anywhere so early by some thousand years as in Babylonia; and though we are quite justified in supposing that Arab customs may be older still, as they certainly are more primitive, we can never date them with certainty except when we can show them to arise purely and simply out of local circumstances. Then we may perhaps affirm that they must always have been the custom in Arabia and treat them as a witness to early Semitic law. On this side of the question Mr. S. A. Cook’s work is invaluable.
But the evolutionist or scientific man has a much easier solution. He has made a comparison of laws among such foreign folk as are wholly unconnected with Semites or Sumerians. It is found that all men everywhere do hit upon much the same solution of the same social problem. We may say that the likenesses we perceive between the Code of Hammurabi and the Hebrew laws are due to the natural dictates of human experience. If we take up the laws, one by one, which are common to the two systems, we can account for almost all the likenesses in this way. Some very remarkable similarities have been shown by Professor D. H. Müller to exist between the Code of Hammurabi and the Twelve Tables of the Roman Law. Professor Cohn, of Zürich, has pointed out strong likenesses to the laws of the West Goths. On the other hand, Dr. H. Grimme has pointed out some very close agreements between the Mosaic Laws and an ancient Semitic Law of Bogos, which goes back before the coming of the Amhara into Abyssinia. There are some likenesses even with the old Indian laws of Manu, and even the laws of the Aztecs have been compared. We could not expect much assent if we argued for a common parentage of these widely scattered laws and their descent from the Code of Hammurabi.
The scientific view is that the common laws are due to common human experience, which is much the same everywhere. It is closely allied with the doctrine of evolution as applied to human institutions. If we could only assume that the nations developed each separately and independently, without mutual intercourse, it might suffice. But for ages before the institutions we are considering, both Babylonia and Palestine had been the meeting-place of many peoples. We cannot tell by any a priori method which race introduced which custom. All we know is that an improvement is often readily adopted by people from those with whom they come in contact, even when not forced upon them by conquest. But we also know that even superior usefulness or comfort is not always sufficient to keep a custom alive. We now know that without much apparent reason even an essential craft may die out. In fact, this common humanity origin of common customs is very useful, like the theory of evolution, to account for observed results when we have no knowledge of what preceded them and can only guess at the previous history. One can then, without fear of contradiction, assert what we consider most likely to have led up to them as their antecedents. But these easy explanations do not absolve us from careful research where history can be produced to work upon. The evolution of human institutions, if such be a legitimate expression to use, has many a set-back or reaction, and we may very well at any time be comparing progress in one history with reaction in another.
But while the evolutionary theory of human institutions may be appealed to for satisfying our curiosity when no possible answer can be given by history, there are things often to be observed which it does not well account for, and then recourse to it is the reverse of scientific. An illustration taken from the arts may help to clear our minds on this point. It may be assumed that all men everywhere may be expected to hit upon the device of burning clay vessels until they obtain some rude form of pottery and then develop the potter’s art to some extent. We may call this evolution. Not only can the making of pots and pans be adduced from all parts of the globe, but truly astonishing resemblances can be discovered between pottery from districts so remote that we cannot believe there can ever have been communication between them. Here an independent evolution has produced the same results in unconnected areas. If that were all, the modern science of pottery evidence would be impossible. We cannot afford time or space even to sketch here the chief results of the intensive comparative study of pottery, which has become so powerful a weapon in the hands of the modern archaeologist. Not only the age of the stratum on which it was found, but even the nationality of the maker, can frequently be asserted beyond reasonable question. Every one must be familiar with such statements as that Mycenaean pottery has been found on some site or other recently examined in Greece, Asia Minor, or Palestine. We are led to suppose that there is something distinctive about it which fixes its origin and age quite unmistakably. Now this is not its special fitness for meeting a want which could be met no other way, so that every people everywhere must have produced Mycenaean pottery once they reached the compelling stage of civilization which demanded it. It is some non-essential feature which marks its distinction from all other than deliberate imitations of it. It must be something that appeals to a taste which could only arise after the thing itself had arisen. The admiration felt for Mycenaean pottery would lead to a demand for it, and that might lead to imitation of it, but no conceivable set of circumstances could have led men to achieve it independently. If this could be conceded, the whole science built on modern study of pottery comes to an end. The presence of such pottery in Palestine does not indeed prove that any Mycenaean potter ever visited the country, but that his wares were brought there, were valued and in request. Further, the pottery came within fairly definite limits of time.
Now it is this sort of non-essential, for the most part useless but approved, characteristic which shows conscious imitation, adoption, or adaptation, that proves influence, indebtedness, or copying. In this case instanced, in the absence of all documentary evidence, by its frequency of occurrence, by its adaptation to local circumstance or other local appropriateness, we also fix the locality of its origin. Conclusions of this kind are accepted as legitimate in most modern researches into prehistoric times.