Now one of Israel’s circumstances was Canaan. The Canaanites had settled laws, and to some extent those laws must have embodied the results of experience of what was suitable in Canaan. Israel might have arrived at the same results, by the same way. It is, however, surely difficult to deny that they availed themselves of Canaanite experience and adopted Canaanite laws. If they did so at all, it is mere quibbling to deny Canaanite influence. Even if they had so framed their laws as to avoid a likeness to Canaanite laws altogether, that would still show Canaanite influence. That they did neither, but achieved a totally distinct type of law, can alone show complete independence. That they did not adopt all Canaanite customs, but made a selection, shows the best sort of independence. That there was always a strong tendency to adopt too much that was Canaanite, is the lament of their best teachers. These also protested against much that was Israelite custom. But it is not certain that these protests were always against what had been Canaanite. It may sometimes have been more primitive custom, properly more Israelite. For, at any rate, regarded from the point of civilization, we must admit that the Canaanites were more advanced.
It might now be supposed that the differences of opinion which have been called forth by comparisons of the Hebrew and Babylonian legislations resolve themselves into this: that one opinion emphasizes the independence, the other dwells upon the influence. That is partly true, but does not cover all the divergence. For when similarities are accounted for by a common Semitic origin, or an Urgesetz, or as the natural outcome of human intellect acting similarly in similar circumstances, not all the factors of the problem are taken into account. These might be adequate solutions if Israel had been separated from all other Semitic races and entered an empty Canaan. They might even account for the similarities, such as they are, between the laws of the Babylonians and the Aztecs. Men everywhere do reach the invention of pottery, but man anywhere will use the pot he finds ready made.
What these contentions leave out of account is the existence of ready-made laws. This cannot be denied. The Canaanites were there, by all admitted. They must have had laws and customs. No one surely denies that. What proof could ever be produced that Israel did not adopt such as were convenient? In the selections and rejections which the Israelites made they showed whatever independence we may give them credit for. That they could have invented the same themselves, or obtained them elsewhere, is perfectly irrelevant. To assert that they did invent them, not adopt them, is to describe the same fact in different words. It looks very like perversity. We may pretend to have invented something exactly like what some one else has done before, but the Patent Laws usually prevent our getting much profit out of it. Even when we introduce judicious little variations there is sometimes astonishing reluctance to credit us with the inventiveness which we feel to be our own.
Some writers have boldly gone to the root of the matter and minimized the extent to which Canaan was influenced by Babylonia. This is perfectly legitimate. We cannot be too cautious how we use the facts of history. Eastern lands show to-day that the tide of conquest may roll over them and leave little trace behind. Egypt was influential in Palestine once, but there is not much trace of its influence in Canaan. This, however, is not entirely absent. Explorations in Palestine do exhibit considerable traces of Egyptian influence in some directions. What traces of Israelite influence are there to compare with it? Here, however, the question is being taken into a totally irrelevant field.
The Canaanites adopted exactly what suited them, they submitted to what was imposed, just so long as they were obliged. That they adopted all the Babylonian laws is absurd to suppose. Just as absurd as to suppose that under Israelite rule, they adopted all Israelite law or custom. If they had, there would then be nothing left for Israel to select or reject. Let us give them credit for some independence even when conquered. Their law was a Canaanite version of Babylonian or Israelite law, in any case. If they had it written down in cuneiform even, it was probably translated into Canaanite. Some would maintain that that was Hebrew. At any rate, what we know of it is very similar. But that they could have escaped Babylonian influence on their laws is almost inconceivable. What we know of the Laws of Moses either proves that they were, in some cases, practically the same as Babylonian, or else shows direct Babylonian influence. We may turn this evidence the other way and say that the Code of Hammurabi shows Canaanite influence, from what we can see in it to be like the Laws of Moses. There are not lacking some to call the dynasty of Hammurabi ‘Canaanite’. But the evidence rather goes to show that what Hammurabi’s race contributed to his Code was more like what Israel contributed to the Laws of Moses and not at all like what a settled folk, such as the Canaanites, would contribute. We may perhaps concede that the Canaanites were Semitic and of the same race as those who conquered Babylon and founded Hammurabi’s Dynasty. At that time they may have been nomads, as the Israelites were later when they came into Canaan. But if, in Canaan, they retained a primitive type of law and evolved a settled law or adopted it from some previous inhabitants, so that their law also, like the Code of Hammurabi and the Laws of Moses, was a blend of the two types; then we have no longer the means to separate their particular blend from the other two.
It is of great importance to discern what was Canaanite law, and we shall find some traces of it. But on the whole, we can only infer it by separating from Israelite law what they are likely to have contributed to it. It is not a very safe method, but we have no other yet. Some contributions are made by the Tell-el-Amarna tablets. More may be expected from fresh discoveries. There is another indirect method. The laws of Phoenicia and Carthage may give some help. Even the Roman Laws of the XII Tables may be of use. They do show surprising likenesses to the Code of Hammurabi. How these laws could find their way from Babylonia to Rome is not easy to imagine. Phoenicia may be thought of as an intermediary. If this be tolerated as a solution, then we may assume that where Babylon agrees with Rome, especially if Phoenicia can be shown to agree also, it is probable that Canaan was also very similar. If then Israel is the same as well we can hardly doubt whence the original motive came.
There are possibly some indications that the Laws of Moses mark an advance on the customs which ruled in the days of the Patriarchs. In view of modern critical contentions that these stories of the Patriarchs are a sort of reflection back into the past of what the later writers felt would be appropriate to the time in which they set the eponymous heroes of the old days, we may hesitate to regard such attributed customs as trustworthy for a comparison. Nor is it beyond question whether the Israelites ever obeyed the laws of Bedouin Arabs. But assuming that on their entrance into Canaan the Israelites acquired fresh customs, we may make some important reflections. Supposing there was a change in law, can we detect it? If we can, what exactly does it establish? Have we merely a change due to a change of habitat, or have other factors to be taken into account?
Now we may question whether this change of law was due to the change in habits from a nomadic life to a settled state, simply and solely. The Israelites when they invaded Canaan found there an already settled people, if we may believe their own account. There were cities and houses and crops already there. From secular sources, such as the Tell-el-Amarna tablets, we know that some time before the conquest there was an advanced state of civilization in Canaan. We even know the names of many kings and cities. What became of this settled population? It is contrary to all analogy and to the Israelite tradition itself to suppose that they were all exterminated. They were obviously possessed of a higher civilization than their invaders, already, what the Israelites in time became, a settled people. Can it be thought that they exerted no influence on their conquerors? We cannot but expect that as the Israelites became settled they would adopt the customs of the settled population. We have it on record that their own teachers charged them with doing this. Some of these customs must have been innocent enough, and such as would be equally appropriate for Israelites when settled. Others would be obnoxious to the racial prejudices, religious or social, of the more conservative Israelites. There would naturally be conflict in some cases between conflicting views of right. In some cases one view would prevail, in others a different result would follow. Even compromises are not inconceivable. To insist that all laws in Israel were the product of the national genius, even if dignified by the name of revelation, is to make a heavy demand on our credulity.
It seems then to be a reasonable working hypothesis that the Israelites did at first succeed in impressing a primitive type of law on the land, especially in those matters which were not entirely unsuited to both peoples. This seems to be supported by the character of what is regarded as the earliest law code in Israel. We at any rate may say that they themselves regarded such as their laws. It would require strong proof before we could admit that the surviving conquered people obeyed them too. As the Israelites became a settled people they may have invented fresh laws. It does require proof, however, that these were invented, and not already the laws of the conquered race. Provided that they were not too repugnant to the Hebrew genius it would be a step towards unification to adopt existing laws. Proof must be overwhelming that they were not adopted before we can think otherwise. The selective power to adopt or reject, to modify and concede, completely guards independence. On the other hand, unless we can prove that there was no adoption at all, we admit influence. Here the controversialists seem to have confounded the issue. They either deny all influence in order to maintain independence, or they destroy all independence by hardening influence into origination. On either assumption Moses does not get credit for much initiative.
Hitherto we have not considered the question whether the settled Canaanites were governed by the Code of Hammurabi before the Israelites came. Some have tried to make the whole controversy turn on this point. It is difficult to see how an answer can be given to that question, except by the discovery of a copy of the Code itself in a pre-Israelitish city. If, on the other hand, we admit that the civilization of Canaan was essentially Babylonian before the conquest, we may suppose that it was governed by Babylonian laws, at any rate, to a large extent. It is to be expected that there would be local variations. Can we test such an hypothesis? We do now know what Babylonian law was in the time of Hammurabi some five hundred years before the conquest of Canaan. We do know that in Babylonia that law remained practically unchanged for a thousand years longer. We must then admit that if Babylonian law had sway in Canaan at all, it must have been that of the Code to all intents and purposes. We thus have a linked chain of hypotheses. If Canaanite civilization was once an offshoot of Babylonian, and gradually asserted its influence over Hebrew legislation, then we ought to find more and more likeness to the Code of Hammurabi in Israelite law as time goes on. For that purpose we may concede as much as the critics wish to claim for their arrangement of successive codes in the Books of Moses before the Code was discovered. The later the law is, according to them, the more likely will it be on our hypothesis to resemble the Code. We assume that the Canaanite element in the nation held on to their old law, while submitting to the innovations introduced by the invaders. If the other proposition holds true, either this was the fact, or the particular law, instead of being late, must be redated before Canaanite conservatism was overcome.