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

by C. H. W. Johns

So if we could fasten upon just such a point in the Code of Hammurabi which appears so artificial or arbitrary, so purely local in its character that we cannot imagine it to have independently arisen elsewhere, we could use it as a test case to decide whether the great amount of common matter found in that Code and also the Laws of Moses may be set down as due to common Semitic origin, or to common human genius faced by similar needs. There is no question as to the relative age of the codes to be compared; we know definitely which is older and more original.

Let us then consider a case which, like the need for pottery, might arise anywhere when men had reached the same stage of civilization. A man has lent money to another, or its equivalent in goods. The debtor, as is commonly the case among men, finds himself unable to repay the loan, for he has consumed the goods and been unable to acquire what will replace them. His labour is probably of some value; it should be worth more than his keep; the surplus value, if he can find employment and wages, should in time enable him to repay the debt. Now in his area employment may be scarce, wages low; but at any rate he may offer to work for his creditor. The custom of making such an offer, which differs little from taking service for wages, except that the wage has already been prepaid, may arise almost anywhere. It is probably universal amongst civilized peoples. The creditor soon can count on it as his right to demand his debtor’s labour to repay the loan. He probably calculates upon it as his security when he lends, and, if prudent, lends no more than he can reasonably expect to be repaid in this fashion.

Thus far common human experience and its dictates. As a responsible man and the head of his family, the debtor, at least among the Semites, had power over the labour of the other members of his family. There may be peoples where this power does not exist, if so, the power may be called a Semitic trait. But in both the Code of Hammurabi and the Book of the Covenant we have some reason to suppose the debtor would have power to offer not only his own labour but that of his wife, often the better worker of the two, or that of a son or daughter, or of a slave, as well as or instead of his own. Exactly how far his power over the members of his own household extended may be set down, if we chose, as depending upon Semitic custom, if we can show that this extent of power is common to all Semites, at any rate in early times, and is not shared with non-Semitic folk. The parallels in Roman law do show that it did not remain exclusively Semitic, unless it be held that the Twelve Tables were so influenced by Eastern civilization as to have derived this feature ultimately from a Semitic source. It was probably Sumerian also, but there we may perhaps derive it from an early Semitic source. At any rate we do find it common to both Babylonia and Israel, whether they derived it from a common source or obtained it independently.

Now how long shall the debtor or his hostage serve the creditor to pay off the debt? The creditor might well say in the case of a slave, who in practice was often taken as an antichretic pledge for a loan, his labour being supposed to pay the interest on the loan without affecting the capital, that he had a right to keep him always. Theoretically this was true if the loan was about the value of the slave. It would practically be accepting the slave as a payment of the loan. The value of a slave was often very little in excess of the cost of keeping him, feeding, clothing, and housing him. Indeed, he was even an anxiety after he became adult. The owner usually did wisely in providing him with a slave-girl for wife and so breeding a family of slaves, who after they had been kept to adult age might be sold profitably. But even this was a speculation, and at the best not a very profitable business. The creditor who accepted the debtors slave as a hostage for debt usually took the opportunity of a sale to pass him on. A slave-girl had other uses than her work and was usually more saleable. Hence she was more likely to be accepted and offered as a hostage.

The Code of Hammurabi here steps in with a remarkable set of restrictions upon the freedom of action of the debtor and creditor. The debtor cannot complain if the creditor sells the slave given him as hostage. But if it is a slave-girl who has borne children to the debtor, she cannot be sold. She may be pledged or given to work off a debt, but not alienated by the creditor (§ 118).

If the debtor has handed over wife, son, or daughter as hostage, they have to be treated as freemen still. They are not to forfeit freedom for ever. The Code orders their release at the end of three years’ service. It is a noteworthy interference with the above power of a man over his family (§ 116), Semitic or not. In such cases as these there is no account whatever taken of the amount of debt. It is an arbitrary interference on the part of a lawgiver with commercial principles, or selfish instinct, in favour of the weak against the strong. It seems clearly to be an innovation, for though earlier kings had declared amnesty from debt on special occasions, that was a more primitive measure of pity and a generous use of other men’s money peculiarly unfair to the soft-hearted lender. This was a bold, calculated move in the direction of humane regulation. It had its risks of abuse, and if Hammurabi had stopped there, he might have done more harm than good. For he would have left it open to the hard-hearted creditor to try and exact more work, the utmost farthing in fact, out of his temporary slave. Accordingly he declared that if the hostage for debt died of blows or want in the creditor’s house, the creditor should suffer the same family bereavement as he had brought on the debtor by his cruelty, a regulation which might lead the creditor’s family to moderate his exactions, or forfeit the average price of the slave he killed by ill use, and, what the creditor would feel most keenly of all, lose all further claim on the debtor.

Now by such regulations Hammurabi set a very effective limit on two markedly Oriental vices. Men love to gamble by borrowing for present enjoyment on security of some contingent future wealth. They pledge crops, land, houses, family with gleeful irresponsibility. But others are avaricious and only too willing to lend on decent security or even most speculative future profit. Hammurabi’s Amorites and Babylonians were by no means above these abuses. He forbade speculation in crops, &c., and by his regulations on these points put a very stringent restraint on debt. The debtor’s powers of borrowing were greatly narrowed. A prudent lender found himself checked by the consideration that if the debtor did not pay he would never be able to reclaim more than three years’ average work out of the debtor, his wife, son, or daughter. He would have a shrewd guess at what these assets were worth. So the lawgiver cut at the root of much of the misery which his predecessors tried to redress by their slap-dash amnesty.

We do well to remember that a respectable, pious, poor man in Babylonia could usually borrow from his local temple without interest, and that by the Code agricultural loans could not be pressed if the crop failed. Hence we see that most of the debts which Hammurabi made so difficult must have been due to improvidence, laziness, or a weak use of the facility to borrow offered by wealthy, lazy, and avaricious money-lenders.

The Hebrew legislation on the subject is precisely similar save that the term is six years. Whether three or six, the term is so absolutely arbitrary that no possible explanation can be given to account for it. It equally ignores the amount of debt, the value of the debtor’s work, and the sacredness of contract. Had both legislations hit upon a three years’ term, we might have racked our brains to find a reason why in the world three years should have commended itself to both lawgivers. We should have been tempted to think that these Semites had some sanctity about the term which made it appropriate to select. At any rate we should have wondered what a money-lender in Israel had done to deserve to get twice as much work for his money as the Babylonian. Some might even have been tempted to see early evidence of Jewish aptitude for business. Others would doubtless begin to play with the importance of the value seven to the Jewish mind. Then one would begin to see the influence of P. as in the first chapter of Genesis. Unfortunately the Babylonians of the Hammurabi period had about as much reverence for seven as for three, and perhaps as much for both as the Israelite in the Book of the Covenant.