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THE LAWS OF MOSES



AND



THE CODE OF HAMMURABI



THE



LAWS OF MOSES



AND THE



CODE OF yAMMURABI



BY

STANLEY A. COOK, M.A.

FELLOW OF GONVILLE AND CAIUS COLLEGIA CAMBRIDGE', MEMBER OF THE
EDITORIAL STAFF OF THE ' ENCYCLOPEDIA BIBL1CA '



'

or THE
UNIVERSITY

Of

/FOR



LONDON
ADAM AND CHARLES BLACK

1903



c



SENERAL



'PREFACE

THE chief aim of the present study is to provide a
full account of the contents of the recently discovered
Babylonian Code of laws promulgated in the twenty-
third century before Christ by Hammurabi, the
king whose name has been identified with Amraphel,
the contemporary of Abraham (Gen. xiv.). The fact
that it is the oldest collection of laws in existence,
and the advanced state of culture which Babylonia
had reached even at that remote period, make the
Code one of the most notable discoveries in the
history of cuneiform research,* and the great interest
which it has succeeded in arousing is evinced by the
rapidly growing number of monographs, pamphlets,
and articles which have already appeared in print.

To jurists and students of comparative law, the
Code, by reason of its antiquity, has an importance
surpassing that of similar collections from India,
Greece, or Rome. A critical estimate of the extent
of Babylonia's influence upon the culture of these
lands has yet to be made, but the varied traces that
have hitherto been adduced would suggest that in






vi THE LAWS OF MOSES

the department of law, too, these lands may be

'found to have been not entirely ignorant of

i' Hammurabi's Code. Semitic scholars, too, and

especially students of biblical and post - biblical

literature, will welcome the recovery of a monument

which for its bearing upon the laws of the Old

Testament exceeds in value even the discoveries of

Babylonian creation-legends and deluge-myths.

The Code comes at a time when the biblical
world is being flooded with literature, scholarly and
otherwise, dealing with the extent of Babylonian
civilisation upon Israel. It is, therefore, a particu-
larly opportune discovery, since a careful examination
should enable the unprejudiced reader to determine
how far if at all Israelite legislation was indebted
to Babylonia. If the indebtedness is beyond dis-
pute, then the influence of Babylonia must have
been of the most deep-seated character ; but if, on
the other hand, the dependence of Israel upon the
Babylonian Code is not proved, only the strongest
arguments will allow us to accept those views in
accordance with which Palestine had been saturated
with Babylonian culture and civilisation centuries
before Hebrew history took its rise.

As a preliminary to our account of the Code a
few pages have been devoted in Chapter II. to a
general consideration of Babylonia and Israel. The
problem of the origin of Hammurabi's dynasty
naturally came up for discussion, since, if it was



PREFACE vii

Canaanite, there would be the clearest grounds for
the view that the Code reflects Canaanite institu-
tions. If, on the other hand, the dynasty was
Arabian, the dependence of Israel, and more par-
ticularly of Israelite procedure, upon Northern
Arabia might suggest that this land was the
common home of the Babylonian and Hebrew
systems of legislation. Here it was impossible to
ignore the question of the antiquity of the old
Arabian civilisation, and so unwillingly enough
one found oneself drawn into the field of controversy.
The conclusion that was reached in this chapter was
not favourable to the view that Babylonia, or even
Arabia, would have been likely to influence Israel to
such an extent as to impose upon it a code of laws
representing a stage of society which the Israelites
had scarcely reached before the Exile, and this pro-
visional conclusion was not refuted by the results
which, it is believed, have been legitimately obtained
from a discussion of the actual contents of the Code.

The scope of the work is indicated by the title. \
It is primarily restricted to a discussion of the <
Pentateuchal legislation and the Code of Hammur-/
abi. As regards the " Laws of Moses," the critical
standpoint has naturally been adopted, 1 and this
procedure appears to be entirely justified by the
result. The Code is essentially a collection of civil
laws, and on this account the numerous Hebrew

1 See below, pp. 42-47.



viii THE LAWS OF MOSES

regulations which apply solely to cult and ritual do
not fall to be considered. The Code has been
supplemented by other laws from Babylonian or
Assyrian sources, and illustrated from the numerous
contract -tablets. The necessity of keeping the
book within limits, however, has prevented the
writer from dealing at too great a length with this
department, otherwise Chapters VI I. -IX. would
easily have been double their present length.

The present writer has no claim to any inde-
pendent knowledge of Assyrian. Three translations
/of the Code of Hammurabi have been published,
and the general agreement between them may be
unhesitatingly accepted as a sure indication that
save only in a very small number of cases is there
any doubt about the meaning of the Code. These
three translations have been constantly consulted
and compared, and he must accordingly express his

indebtedness to Father Scheil, whose transliteration

"* "a^^ j,

and French translation form the basis of all sub-
sequent studies ; to Dr. Hugo Winckler, whose
German edition with notes is published in con-
venient form in Der Alte Orient ; and last, but not
least, to the Rev. C. H. W. Johns, whose handy
English translation, with its complete digest of the
contents of the Code, is indispensable for English
readers.

The question of the dependence of Israelite law
upon the Code has been steadily kept in view, and



PREFACE ix

the attempt has been made to work it out on the
lines already indicated in an article by the present
writer in The Guardian of 22nd April. Then
essential difference between the highly -cultured
Babylonians and the more primitive Children of .
Israel, which is obviously reflected in their laws, has
rendered it necessary to widen the inquiry. The
post- biblical legislation, therefore, has not been
ignored,) and the illustrations are significant of the
traces of Babylonian law which a complete survey
of Talmudical and post-Talmudical literature might
have multiplied. Further, the valuable fifth-century
law-book edited by Bruns and Sachau has been
frequently drawn upon, and its importance for the
study of comparative Semitic legislation must be
recognised to be of the very first order. In spite of
its admitted indebtedness to Roman law, it is difficult
to avoid the suspicion that a number of the analogies
are to be ascribed to the general similarity of
conditions which prevailed in the two lands, rather
than to actual dependence upon Rome.

The point of departure for the study of Semitic \
law must be sought among those communities where j
society is least complex. The attempt has been
made, accordingly, to pay some regard to early pre-
Mohammedan usages in so far as they have been
collected by others, notably by Robertson Smith
and Wellhausen ; and if the chapters dealing with
"the Family" in all its phases and aspects are



x THE LAWS OF MOSES

unduly lengthy, the explanation must be sought in
the fact that the former scholar in his Kinship and
Marriage in Early Arabia 1 - has emphasised the
importance of the subject in its bearing upon the
comparative study of Semitic institutions.

Finally, primitive Semites are still to be found
; the present day between the Tigris and the Nile.
The tenacity with which ancient religious customs
have been retained by the Fellahin and Bedouin is
familiar. No one can read the observations of such
workers as Burckhardt, Doughty, Baldensperger,
Curtiss, Jaussen, and others, without the conviction
that distinct traces of primitive Semitic religion
have been preserved among the modern Arabs and
Syrians, and that they may be detected either in
their native form, or slightly, but recognisably,
tinged with Mohammedanism. If this be true of
religion, if the peculiar characteristics of Babylonian
worship, for example, have not left their stamp upon
the ruder tribes, surely we may expect to find in
their laws and customs, also, the primitive principles
which the Israelites brought from the desert, and
modified under the influence of their settled agricul-
tural life in the land of Canaan, and which the
earliest Semitic Babylonians developed, altered, and-
adapted to suit their growing civilisation. To trace
the growth of these principles, as we see them at

1 A new edition of this work is now being published under the
editorship of the present writer.



PREFACE xi

the present day in the East, down to the finished
code of law of a Hammurabi, as it existed over four
thousand years ago, belongs rather to a handbook
of Semitic legislation and lies far outside the scope
of the present volume. Nevertheless, in spite of its
shortcomings, this collection of material from various
parts of the Semitic field will, it is hoped, not be
without some interest to those whose inclinations
lead them to the study of the unchanging East.

For the convenience of those who have not access
to the Babylonian and other texts cited herein, a
transliteration of the more important terms or
phrases has frequently been added. The indexes
have been made fairly complete for the greater
facility of reference, and readers who do not happen
to possess a translation of the Code will notice that
the pages indicated in heavy type in the first index
(p. 289 sqq.) will usually be found to contain either a
translation or a paraphrase of the section in the Code
in question.

Attention may also be directed to the Addenda \
which take account of the most recent literature of /
the Code and include some corrections of import- '
ance. In spite of the care exercised by myself
and by the printers to the accuracy of whose
reader I am indebted errors doubtless remain, for
notification of any of these I should be exceedingly
obliged. STANLEY A. COOK.

LONDON, October 23, 1903.



CONTENTS



PAGE

LIST OF PRINCIPAL AUTHORITIES AND ABBREVIATIONS xvii



CHAPTER I

THE CODE OF HAMMURABI

Sources of the inquiry The discovery of the monument Descrip-
tion The Prologue Synopsis of the Code The Epilogue
"Blessings and Curses" Reign of Hammurabi Associations
with Israel Preliminary questions .... i

CHAPTER II

BABYLONIA AND ISRAEL

Hammurabi's dynasty of foreign origin The arguments Linguistic
evidence doubtful Alleged traces of monotheism Theory of
the Arabian origin of the dynasty Ancient Arabian culture and
its antiquity Babylonian influence over Canaan General con-
siderations Importance of the Code as a test Legal literature
in Babylonia contrasted with the Mosaic laws Development of
Israelite law ......... 20

CHAPTER III
ELEMENTS OF LAW AND PROCEDURE

Babylonians and primitive Semites Tribal custom the foundation of
law Blood -revenge Judicial authorities Institution of judges
in Israel Centralisation of justice Divine decisions Resort
to a deity Oaths of purgation " before God " Semitic ordeals
Procedure in Babylonia Laws relating to judges and witnesses . 48

xiii



xiv THE LAWS OF MOSES

CHAPTER IV

THE FAMILY

PAGE

Position of women Marriage- types Marriage by purchase Details
" Breach of promise " Modifications of purchase-system Laws
of the dowry and marriage-settlement Survivals of earlier con-
ditions Wife's position in the family 71

CHAPTER V
THE FAMILY (continued}

Bars to marriage Babylonian laws against incest Chastity and
slander Parallel Hebrew laws Laws of adultery Ordeals
Childlessness and bigamy Polygyny in the Old Testament
Sarah and Hagar Other laws of separation or divorce Divorce
in Israel Wife's ability to divorce herself Later Syrian laws . 96

CHAPTER VI

THE FAMILY (concluded}

Parental authority Old Babylonian family - laws Adoption of
children Special laws bearing on the same Limits to disin-
heritance Wills and division of property Rights of concubines
and maid-servants Position of the widow Ability of women to
inherit Laws for special classes The votary Law of intestacy 128

CHAPTER VII

SLAVES AND LABOURERS

Slaves in Babylonia Their protection Rights of slave -owners
Slavery for debt Marriage-laws of slaves Their position in
Israel Laws for Hebrew slaves Humane tendency of Deuter-
onomy Status and wages of hirelings Responsibilities of
labourers and of shepherds General resemblance of laws
among pastoral folk . . . . . . . 153

CHAPTER VIII

LAND AND AGRICULTURE

Common lands among the Semites Rise of individual property
Lands on fief Holders of crown-lands, their rights and duties
Old agricultural precepts in Babylonia Laws for farmers and
gardeners Land on metayer Israelite laws and usages Irri-
gation Miscellaneous Babylonian laws Damage to crops by
animals or fire . . . 1 80



CONTENTS xv

CHAPTER IX

TRADE AND COMMERCE

PAGE

Business in Babylonia contrasted with Israel Scantiness of evidence
in Israel Methods of conducting business General laws for
the furtherance of business and trade Theft and burglary
Analogous Hebrew laws The receiver of stolen and lost
property Laws for property in the charge of another The
boatman Hired animals in Israel and Babylonia Laws of
deposit Debtor and creditor Pledges and security Simplicity
of procedure in Israel Antichretic pledge in Syria Trading
journeys Laws for agent and principal ..... 204

CHAPTER X

PROTECTION OF THE PERSON

The king Kidnapping Witchcraft and sorcery Responsibilities of
the builder Of the doctor and veterinary Traces in Syrian
law Principles of the jus talionis Modifications Assaults
upon men Assaults upon women Manslaughter and murder
The unknown murderer Evolution of the talio Stage reached
by the Code of Hammurabi Individual responsibility . . 240

CHAPTER XI

CONCLUSION

General considerations Phraseology not conclusive CH contrasted
with Book of Covenant and Deuteronomy Divergent treat-
ment of identical topics The humanity of the codes Strangers
and foreigners Laws relating to cult, religion, and ethics
Influence of CH in post-exilic period Comparative Semitic
legislation .......... 263



ADDENDA 283

INDEX TO THE CODE OF HAMMURABI .... 289

INDEX OF BIBLICAL PASSAGES 293

GENERAL INDEX . 299



LIST OF PRINCIPAL AUTHORITIES
AND ABBREVIATIONS

V. Scheil, DtUgation en Perse. Memoires publics sous la direction
de M. J. de Morgan, delegue general. Tome iv. Textes la-
mites-Shnitiques. Deuxieme SJrze (Paris, 1902). The Code of
Hammurabi with the complete text reproduced by photogravure,
transliterated and translated.

H. Winckler, Die Gesetze Hammurabis, 4th year, part four of Det
Alte Orient-, second edition, Leipzig, 1903; complete transla-
tion with introduction and short notes. 1

C. H. W. Johns, The Oldest Code of Laws in the World. Second
impression, Edinburgh, 1903 ; translation of the Code with an
introduction and a complete digest of the contents. Philological
notes in the American Journal of Semitic Languages, 1903,
Jan., April.

Johannes Jeremias, Moses und Hammurabi (Leipzig, 1903). General
account of the contents of the Code, in the light of the Old
Testament ; with Assyriological and other notes.

S. Orelli, Das Gesets Hammurabis und die Thora (Leipzig, 1903).
General account of the Code with Old Testament parallels. 2



Beitrdge zur Assyriologie, ed. Delitzsch and Haupt (Leipzig, 1 890- ).
Keilinschriftliche Bibliothek, Sammhing von Assyrischen Texten, ed.

Schrader, vol. iv. : Texte juristischen und geschdftlichen Inhalts,

ed. Peiser (Berlin,



1 A third edition has recently appeared.

2 Among the more important articles may be mentioned those by Father
Lagrange in the Revue Bib lique, 1903, January, pp. 27-51, and by Dareste in the
Journal des Savants, 1902, Oct., pp. 517-528; Nov., pp. 586-596. Some notice
of the latest literature will be found in the Addenda.

xvii



xviii THE LAWS OF MOSES

King, Letters and Inscriptions of Hammurabi, I. III. (London,

1898-1900).
Kohler and Peiser, Aus dem Babylonischen Rechtsleben, I. -IV.

(Leipzig, 1894-1898).

Meissner, Beitrdge zum altbabylonischen Privatrecht (Leipzig, 1893).
Pinches, The Old Testament in the Light of the Historical Records

and Legends of Assyria and Babylonia (London, 1902).
Sayce, Babylonians and Assyrians (London, 1900).



Encyclopedia Biblica, I.-IV. (London, 1899-1903) = EBi.
Robertson Smith, The Old Testament in the Jewish Church (second

edition; London, 1892).

The Prophets of Israel (second edition ; London, 1895).
Lectures on theReligion of the Semites (second edition ; London,

1 8 94) = /&?/. Sent
Kinship and Marriage in Early Arabia (second edition ;

London, 1 903) = Kinship.^
Wellhausen, Die E 'he bei den Arabern (Nachrichtenv. d. kgl. Gesellsch.

d. Wissenschaft, Gottingen, 1893; No. xi.).
Reste Arabischen Heidentums (second edition ; Berlin, 1897).
Palestine Exploration Fund, Quarterly Statements (London, 1 869- )

= PEFQ.

Zeitschrift des deutschen Paldstina- Vereins (1878- ) = ZDP V.
Zeitschrift der deutschen morgenldndischen Gesellschaft (1846- )

= ZDMG.
Bruns and Sachau, Syrisch-Romisches Rechtsbuch aus dem fiinften

Jahrhundert (Leipzig, 1880).
J. Kohler, Rechtsvergleichende Studien iiber islamitisches Recht, etc.

(Berlin, 1889).
J. Estlin Carpenter and G. Harford-Battersby, The Hexateuch . . .

arranged in its constituent documents . . . with introduction,

notes, marginal references and synoptical tables. Two vols.

(Oxford, 1900).
JE. The oldest Hebrew documents ascribed to the Jahwist and

Elohist schools respectively.
P. The writings of the Priestly school.




CHAPTER I

THE CODE OF HAMMURABI

Sources of the inquiry The discovery of the monument Descrip-
tion The Prologue Synopsis of the Code The Epilogue
" Blessings and Curses " Reign of Hammurabi Associations
with Israel Preliminary questions.

* ,

ANCIENT law takes its rise in social custom based
upon precedent and practical experience. It is
closely interwoven with religion, and lawless deeds
are infractions of religious principles. The ordinary^
affairs of everyday life, however, are regulated by
traditional practice preserved without writing, and
as traditional usages frequently vary considerably,
the same topic may be variously regarded by
separate communities. Among the Semites, where
there were numerous divisions and subdivisions,
nomadic or settled, varying in organisation, culture,
and religion, engaged in pastoral, agricultural, or
mercantile pursuits, there was scope enough for the
development of tribal usage in manifold directions,
until, with the gradual unification of diverse elements,
the possibility arose of reducing the working results
of past experience to some degree of order. Among



2 THE LAWS OF MOSES CHAP, i

the three leading divisions of the Semites we find
that at some period the consuetudinary usages have
received the stamp of a divine authority, and have
henceforth been accepted as authoritative laws, the
norm and foundation of subsequent legislation.
The three promulgations are those of Hammurabi
in Babylonia, Moses in Israel, and Mohammed in
Arabia, with the first of which the present study is
primarily concerned.

The past century has revolutionised our ideas of
these lands. The keenness with which Arabic
studies have been pursued has immeasurably
increased our knowledge of the land in which Islam
took its birth, and has permitted us to gain an
insight into the conditions that prevailed before the
time of Mohammed. The discovery and decipher-
ment of ancient Arabian inscriptions reaching back
some centuries before the time of Christ have re-
vealed the presence of an old civilisation with char-
acteristic religious and mythological features, whose
influence upon the north-lying land of Canaan future
research may enable us to determine with more
certainty than is possible at present. 1 In regard to
the Hebrews, if the discoveries on Israelite soil
have not yet been of such far-reaching importance
as those in the adjacent countries, the unremitting
study of the Old Testament, and the critical investi-
gation of its literary sources and the development
of its ideas, have entirely changed the long-held
views of Israel's religion and culture, and the history

1 See below, chap. 2, pp. 30 sqq.



CHAP, i THE CODE OF HAMMURABI 3

of the Hebrews has been presented in a clearer
and more scientific aspect. Finally, in Babylonia
and Assyria, the excavation of ruined mounds and
the discovery of thousands of tablets have brought
to life not one lost nation but many, and we are
made familiar with the history of names which in
the Old Testament and in classical writers receive^
only the barest mention. A fund of information has
been placed at our disposal whereby the history of \
the Nearer East is placed in a new perspective ]
and the ancient world is made known with an /
almost inconceivable fulness. In Babylonia and
Assyria the tablets have brought us face to face



with a highly developed religion and with a perfectly
organised military state ; there was a regular postal
exchange, intercommunication was unbroken, and
mercantile and commercial enterprise was in full
swing. In particular, they have enabled scholars!
to conclude that in such a developed organisation,
the principles and administration of law and justice^
must have been firmly established. Not to speak
of the legal usages which were to be inferred from
the marriage, commercial, and other contracts, a
few old Babylonian laws have been known for some
years, and on internal grounds were ascribed by
Meissner and Delitzsch to the age of Hammurabi,
the sixth king of the first Babylonian dynasty. 1

1 Viz. K 4223 contains portions of laws, 23-25, 31 sg. t in the
Code of Hammurabi ; K 8905, 45 sg. ; K 10483, 48 sg.; K 11571,
278 sg. ; K 10485, 104 sg. ; Dt. 81, 103 sq. ; Sm. 26, 267 ;
Sm. 1642, 249 sq. ; Rm. 277, 57-59, 120 sq. See further
Meissner, Beitr. z. Assyr. 3 493-523, with the remarks by Fr. Delitzsch,



-.



4 THE LAWS OF MOSES CHAP, i

The accuracy of this opinion was triumphantly
proved a little more than a year ago by the actual
discovery of a lengthy series of enactments which
owed their promulgation to the authority of no
other than this king.

^TJiis welcome discovery was made by the French

excavation under the superintendence of M. de

Morgan at the great mound known as the Acropolis

i of Susa 1 in December iQOi-January 1902, a fitting

celebration of the centenary of that study which has

done so much for the history of ancient civilisation.

fit consisted of a stone of black diorite nearly eight

feet high, and was in three fragments, which readily

admitted of being joined together. The upper part

bore a representation of the sun-god Samas, from

whom Hammurabi received the laws with which the

I rest of the stone is covered. The sun-god is seated

upon a raised throne. He wears the well-known

swathed head-gear, and a flounced robe. Behind

This shoulders rays spring out, and in his right hand

the clasps a sceptre, 2 the symbol of authority, and a

ib. 4 80-87 ; and cp. Winckler, Orientalistische Litteratur-zeitung,
1903, col. 28 sqq.

1 Edited and translated by Father Scheil, Memoir es de la
Dtttgation en Perse, Textes fclamites-Stmitiques, vol. 4 (Paris, 1902).
Independent translations in German by Hugo Winckler in Der Alte
Orient (4th year, Heft 4), and in English by C. H. W. Johns
(Edinburgh, 1903).

2 Jeremias and Orelli rather improbably take it to be a stylus,
the symbol of wisdom. Ball (Light from the East, p. 156), in his
remarks on the representation of Mamas' on the inscription of Nabu-
apla-iddina, where the same object recurs, suggests that it indicates
the straight course of the sun across the heavens.



CHAP, i THE CODE OF HAMMURABI 5

wheel or ring. The king stands before Samas in
an attitude of reverent obedience. He is clothed
in a long tunic, which is hemmed in at the waist and
hangs down in folds, and upon his head he wears a
cap with fillet. His right hand is at his mouth, his
left hand rests against the waist, precisely as in the
familiar portrait sculpture of the king in the British
Museum. 1 Like the sun-god, he wears the familiar/
artificially plaited beard.

The appropriateness of the representation lies in
the fact that 'the sun-god Samas was the god of law, 2
whose children are called " Justice " (kettit) and
"Right" (mesaru, cp. Heb. mesanm), and Ham-
murabi elsewhere calls himself the darling (mi-gi-ir)


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