We may now state the broad principle to be tested. The more primitive laws in the Mosaic Codes are properly Israelite, and an inheritance from old nomadic custom. The more advanced laws are due to gradually assimilated Canaanite sources. These should show, if not identity, at least affinity with the Code of Hammurabi. If they do not, we have several alternative views to weigh. Either the law of Hammurabi did not continue to bear sway in Canaan, or it never did on that point, or the law is a new creation. The mere fact that a given, late, non-primitive law in Israel is not found in the Code of Hammurabi proves nothing as to the origin of any unconnected law. We have to do with a long chain, of which we can only compare the two ends. What happened between we do not know.
We may do well to clear out of the way some obstacles that might at least distract attention. An apparently strong point has been made against any connexion between the legislations on the score of philology. It is said that while the names of the things dealt with are the same, the technical terms are different. Thus, while the words for silver and gold, sheep and oxen, fields and houses are the same, those for rulers, for laws and customs are different. This is partly an argument from silence, partly an ignoration of facts. It is true that ‘to marry’, in Babylonian, is aḫâzu, and in Hebrew lāḳāh; but in Assyrian it is laḳû. Now we may reply that the Assyrian shows that it was once laḳû in Babylonian also. The connexion for which we contend does not demand transliteration, but translation. What would be thought of any student of mediaeval history who denied the influence of Roman law on English because Latin words were not used? If this be the test, the Tell-el-Amarna tablets show much stronger Babylonian influence than we contend for. Practically the whole of their vocabulary is Babylonian. They also show that the writers had words of their own, Semitic, if not Hebrew, which they glossed by Babylonian. Some think the Israelites learnt their Hebrew in Canaan. If the Canaanites were speaking Hebrew and had Babylonian laws, the translating into Hebrew was done before the conquest. The fact is that the whole philological argument breaks down unless we can show that the words compared are the only words in use with the same meaning. The lexicons do not on the whole afford a sufficient source for the comparison. They embody little of the vocabulary of the legal documents or contracts.
Of much more cogency than the agreement of separate items would be a similarity of order in the arrangement of the common matter. Professor D. H. Müller has found some interesting examples of this in comparing the Code with the Twelve Tables. This leads him and others to suspect an Oriental influence on early Roman Law. That must remain little more than a suspicion unless we can indicate the route by which such influence could come in. In the case of Israel the problem is to show how it could be kept out.
A comparison of the Code with the Laws of Moses from this point of view is greatly hampered by the fact that the latter are not in any particular order. If we follow the critical division of the material we find that we are left with a variety of legislations of very different dates and qualities well shown in The Hexateuch, or in articles in Dict. Bible. It will hardly be claimed for any one of these that we have it still in a completely preserved form. If so, then the intention must have been to leave a great deal to the action of the well-known customary law.
This solution, however, is not to be rejected off-hand. For the Code of Hammurabi does not deal expressly with all cases: it omits murder. Hence we must not insist that any Israelite code either, when first promulgated, covered all cases of crime and misdemeanour. There is, however, good ground for saying that each Israelite legislation included some things which are now omitted from the Books of Moses. If this be denied, then we must account for the very incomplete nature of these codes. We may do so thus. It was only to be expected that a new legislation would deal chiefly with cases that had not hitherto been decided, or on which old law had grown obsolete, or where conflicting views of right had come to be held. If, then, we can regard any Israelite code, as now known to us, as being on the whole preserved in its original order, even though other portions have been suppressed or abrogated, we may compare the order of its clauses with those of the Code of Hammurabi. We need not take account of the suspicions which will now be thrown on that order by critics, unless they were expressed before the Code of Hammurabi was known. And on the whole case we may plead with respect to any Israelite code, that either it once covered much more than it does, as we know it now, or that its incompleteness is due to the existence of well-established custom on the omitted points, and that it simply enacted changes.
As a result of the intensive work done on the Code of Hammurabi itself by the many scholars who have devoted their study to it, we now understand it far better than before. It would be invidious to attempt to assign each step to its own author, and I expressly disclaim any originality for views that I may have held long before some one else published them, but it may add to the confidence with which my readers follow me, if they remember that nearly everything has been independently reached by two students at least. My chief desire, however, is to make my views clear, and to state my reasons as intelligibly as may be.
I propose to deal first with the external features of the Code of Hammurabi, dwelling chiefly on those that are useful for a comparison with the Israelite legislation. Then, secondly, I will point out briefly the types of likeness between the Babylonian and Hebrew laws, and the associated contrasts. Then I will venture to discuss in my way and attempt to estimate the extent of dependence, if any. But I cannot claim to have said the last word on any point raised here. We are still at the mercy of future discovery. Let us hope it will be merciful to some theories, at any rate.