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

by C. H. W. Johns

Reference may be made to the Bibliographies given in these and other books listed in the Bibliography printed on pp. 65 ff.

With such a volume of literature already published, it may seem superfluous to add a further contribution. Indeed, when the present writer read an account of the Code to the Cambridge Theological Society in October 1902, he was quite content to call his paper The Code of Hammurabi, fresh material for comparison with the Mosaic Code. He would have been well content to leave it as such, being rather concerned to furnish material for study than to make direct contributions to the application of it to subjects beyond his competence. Much that has been published on this comparison, however, seems to him really inadequate or so ill-considered that it appears to be a duty to submit a different view. He is fully conscious that it is only one view and may prove to be wrong. Yet it seems to him that it is a view which takes account of more facts than any other, and, while not admitting of formal proof, is both reasonable and probable.

Briefly stated, the view thus taken is that the Code of Hammurabi belongs to the same group of ancient legislations as the Hebrew, and that both are compromises between two distinct types of law.

One type is that which is perhaps best seen in the customs of the Arabs, as still surviving among the modern Bedawin, and known to us from the ancient Arabic writers. This has been called primitive Semitic custom. The Israelites, before their entrance into Canaan, as a nomad pastoral people, would be governed by such law, if it can be called law. The dynasty to which Hammurabi belonged was foreign to Babylonia. It owed its rise to an incursion of a Semitic people. That Semites were in Babylonia long before is true, but this was a fresh invasion by a probably nomad pastoral race. They had previously obeyed the same primitive laws as it is assumed the Israelites did before their settlement in Canaan. Forming as they did the ruling race in Babylonia, they yet clung with Oriental conservatism to their ancient customs. Even such a powerful ruler as Hammurabi could not, or at any rate did not see fit to, entirely change those customs. In the period when the Laws of Moses were instituted, the Israelites were similarly the ruling race in Canaan. Their earlier laws, as known to us, show the same conservation of primitive custom, and that of the same type.

The other type of law is that due to a settled community. In Babylonia it may have been evolved through long ages. It may have been, and probably was, largely due to a non-Semitic people, usually called Sumerians, whose racial affinities are not yet well made out. These were conquered by the Semites of Hammurabi’s race. In Canaan too the invading Israelites found a long-settled people in possession. They were governed by very similar laws to those of the settled Babylonians. That these laws had been imported from Babylonia is open to question. Much that is common to the laws of the two settled communities may have arisen independently. There is as yet no evidence that the Canaanites were of the Sumerian stock.[7] But Babylonian influence on the Canaanite law is quite conceivable, and is supported by historical evidence of long-continued intercourse between Babylonia and the West. As the Israelites became a settled population many of their nomad customs must have become inappropriate. They might have evolved new laws. They might have taken over the laws of the Canaanites, so far as these were innocent, or not too obnoxious to Hebrew prejudices. Exactly which course they followed in each case is a matter of history. The historical evidence may be inconclusive. We must make the best of it.

When, therefore, the Code of Hammurabi is compared with the Laws of Moses, the common material may be due to one of two common sources, primitive Semitic law (otherwise nomad law) and the law of settled communities. For the latter we may hesitate to fix on a racial name. But it is not necessarily that of any and every settled community. Inasmuch as we find it in its most developed form in the Code of Hammurabi, we may call it Babylonian. On the other hand, as the oldest known witness to the primitive type is the same Code, we may call that Babylonian also. In this modified sense we shall be able to speak of the Laws of Moses as being primitive Semitic law modified by Babylonian influence. That, however, would be a description easily misunderstood if divorced from its context.

It is better to say that both legislations are compromises between the two types of law, that they show different degrees of preponderance of one or the other type, and that the Laws of Moses manifest an independent development strongly influenced by the Code of Hammurabi.

We may still claim an independent development of the Laws of Moses.

For during the whole time that the Israelites were in Canaan they were, as usually supposed, independent of Babylonian rule. If they adopted laws which were already prevalent in Babylonia, we may be sure it was not solely because they were Babylonian. This may be disputed. For there were times when, if we may believe their own tradition, they did receive embassies from Babylonia, or even adopt Assyrian cults. This kind of influence might conceivably lead to the adoption of Babylonian or Assyrian law, which latter was always practically the Code of Hammurabi.

The Israelites may never have adopted Canaanite law consciously, but always supposed themselves to be creators of their own laws. But they could hardly avoid knowing the Canaanite law. When a man does as his neighbours do, he may be perfectly independent in his choice so to do, as some men count independence. But it is usual to regard him as influenced by their conduct. Even when he decides to do the very opposite to what they do we may contend that he was influenced by his knowledge of their conduct. Reaction may be claimed as a sign of independence, but it is also a sign of influence. The truth always is that every action exhibits both independence and influence. We may hold to the explanation that a man’s circumstances determine him, but we must then give a wide meaning to circumstance.