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which counterbalances whatever deficiencies it may
possess in other respects.



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.

IT is true that the two main systems of legislation
which have been discussed in the course of the pre- J
ceding chapters have many noteworthy points in ,
common, but it is impossible not to have observed j
how striking are the differences between them. At -
the head of each there towers a mighty figure toj
whom the promulgation of these laws is ascribed ; I
behind each there looms the Deity, the ultimate
source of the laws which Hammurabi in the one
case, and Moses in the other, imparted to their^
people. Criticism, however, has not left un-^
challenged the tradition of the Mosaic authorship
of the Hebrew legislation] and closer study shows,
too, that the Code of Hammurabi was no ready-
made series of novelties, the production of a single

263



264 THE LAWS OF MOSES CHAP, xi

mind and time, but the climax of centuries of cus-
tomary usage, which, in the form it has come down
to us, is the result of modification, compression, or
addition, in accordance with the conditions that
prevailed at the time of its promulgation. 1 So,
whilst written legislation in Babylonia takes its rise
in the reign of the greatest monarch of the first
Babylonian dynasty, in Israel written laws can
scarcely be carried back beyond the ninth century
at the earliest, and in their existing form represent
the latest stage of the Pentateuchal legislation in
the Old Testament, a thousand years later than
the great figure to whom tradition ascribed their
initiation.

Neither of these two systems can be called
pandects. Some important topics are either entirely
ignored or are handled with an incompleteness that
must have rendered them ineffective for everyday
purposes. In some cases we have to assume that
customary usage was too firmly established to
require the law to be mentioned in one or other of
the codes, in other cases the difference between the
state of society in Babylonia and Israel, or the change

1 Examples are to be found in the modification of the older
family laws (p. 135) and in the retention of the talio without blood-
revenge (p. 259 sq.}. Further, in the laws relating to cattle in
the care of another, it is ordered that if a lion ravages or a " stroke
of God " occurs, the man must swear his innocency, and the loss falls
upon the owner. But whereas in the case of the hired animal
these possibilities are treated separately ( 244, 249), in the laws
relating to the herdsman they have been combined, probably by an
editorial process ( 266).



CHAP, xi CONCLUSION 265

of conditions in the various periods of Israelite
history, affords an explanation. Both systems are
marked by the prominence given to the needs of
agriculture and the protection of the person, and
the Babylonian code not only deals more thoroughly
than the Book of the Covenant with topics falling
under these heads but lays itself out to advance
industrial conditions, either indirectly, by paying
every heed to prevent any breach of the peace, or
directly, by means of statutes which tended to afford
greater security to business relations of all kinds. ^
In this respect the attention which is paid to prices,
wages, and rents, and to laws for such classes as
doctors, boatmen, innkeepers, courtesans, is especially
noteworthy.

There is a certain similarity in the legal formula-
tion in both systems, but it is questionable whether
it is of a kind to which any great weight may be
attached. The Old Babylonian formula is " when
(summa) a man," etc., which in the New Babylonian
period appears in the form of a statement. 1 In
the Book of the Covenant the groups of laws are
similarly introduced by " when " (ki), but the sub-
divisions are indicated not by the repetition of the
introductory term as in CH, but by "if" (im). In
both, however, the verb is in the third person
(contrast Ex. 21 2). 2 But, generally speaking, there

1 Observe the parallel laws cited above, p. 87, n. I.

2 The following comparison of CH, 8 with Ex. 22 1-4 may serve
as an illustration : " If a man (sum-ma a-wi-lum\ either an ox or
(lu) a sheep or an ass or a pig or a ship has stolen, whether of the



266 THE LAWS OF MOSES CHAP, xi

is considerable variation in Hebrew usage. 1 The
simple statement appears notably in Ex. 21 12-17,
22 19 [18] sqq., of which the former probably, and
the latter almost certainly, did not fall within the
scope of the original Book of the Covenant. 2 The
substitution of the impersonal law by a command or
prohibition in the second person, though not un-
known (21a; in a secondary clause, 21 23), is more
frequent in the miscellaneous statutes appended to
it (22 i8-23 g), 3 and is more particularly characteristic
of the Decalogue, the Deuteronomic code, and the
Priestly legislation. The expression of the law in a
form of a statement also becomes more common in
ithe late codesjand although the introductory kl is
retained, particularly in the civil law, it is less
frequently followed by the secondary im. Fuller

temple (sum-ma sa i-lim\ whether of the palace, he shall give
(i-na-ad-di-in) thirtyfold ; if he is a poor man (sum-ma sa MA&-EN-
KAK] tenfold he shall return (t-ri-a-ab) ; if the thief has nought to give,
he shall be killed." Ex. 22 i sqq.\ "When steals a man (ki yignob is}
ox or sheep, and he kills it or sells it, five oxen shall he restore
(yesallem) for an ox, and four sheep for a sheep ; if (im) in the
breaking in the thief is found and is smitten and dies, there is no
blood-guiltiness ... if he has nought, he shall be sold for his theft ;
if there is found in the hand the stolen thing . . . twofold shall he
restore."

1 It may be observed that the fact that 22 6 [5] begins with kl and
not im tells somewhat against the view that the verse deals with
another case of the law of arson which ex hyp. commences in v. 5 [4]
(p. 202 above).

2 Cp. Carpenter and Harford - Battersby, The Hexateuch, 1
256 n.

3 Also in other Elohistic codes, e.g. Ex. 20 23-26, 23 10-19, but
more commonly in the singular.



CHAP, xi CONCLUSION 267

treatment of the subject is scarcely necessary here. 1
The Syro - Roman law - book is marked by the
frequent use of the hypothetical en (if), 2 but the
ordinary statement and the expression of the law as
the answer to a question are common. 3

More remarkable is the agreement in phraseology
between CH, 117 and Ex. 21 2, to which attention
has already been directed (p. 164). It is interesting
to find the same formula in use in Egypt, and the
question may be left open whether both Egypt and
Israel borrowed it from Babylonia! or whether it
is mere coincidence that the oracle from Buto as
quoted by Herodotus (2 133) should have expressed
itself in these familiar words "six years only shalt
thou live upon the earth and in the seventh thou
shalt end thy days." 4 The phraseological evidence
would have considerable weight if it could be proved
that Babylonian legal terms, also, had been taken
over into Hebrew. This, however, is not the case,
and, as we shall presently see, it is not until the
exilic age and later that the traces of this description

1 The synopsis in The Hexateuch, I 256-269, will be of most value
to the ordinary reader.

J The same form occurs also in the laws of the Twelve Tables
and in the Gortynian code from Crete.

3 E.g. "men who make breaches are liable to the death
penalty " ; " the law is asked, how long must a woman remain a
widow ? " or " the law does not allow a woman to enter a process,"
etc.

4 It is to be regretted that our information regarding Egyptian
law is too scanty to admit of our determining whether it was
influenced in other respects by the Babylonian code.



268 THE LAWS OF MOSES CHAP, xi

are unambiguous. 1 Leaving the phraseological and
philological evidence, we may now consider briefly
the extent of the resemblances between the Code of
Hammurabi and the oldest Hebrew collection of
laws.

The Book of the Covenant contains a number of
groups of laws relating to slaves (male and female),
injuries (personal and to slaves), cattle (damage by
and to), theft, damaged crops, etc., and in several
instances each group is easily divisible into a
series of five ordinances. Viewing the Book of the
Covenant (BC) along with the Code of Hammurabi
(CH), we observe that whereas in CH ( 117) the
enslaved wife and children are free in the fourth
year, in BC (Ex. 212) it is not until the seventh
year that the male Hebrew slave regains his freedom ;
but, on the other hand, in CH ( 118) the ordinary
slave cannot be reclaimed. The owner has no
claim upon the slave's free wife and children in CH
( 176) and BC (21 3), but the latter applies only to
the man who had been married before he became a
slave. In BC (21 7-11) no slave concubine could be
sold to strangers, but in CH ( 119, 147), provided
she has borne children, she could not be sold as a
punishment, and if sold for a debt she must be
redeemed. To smite one's parents was punished
in CH ( 195) by mutilation, in BC (21 15) by death.

1 The Hebrew terms for legal procedure may be gathered from a
variety of passages (Ex. 24 14, 2 Sam. 152, Is. 508, etc.), notably
from the Book of Job (9 19, 23 4, 31 n, 28, 33 10, 34 5), and need not
be discussed here.



CHAP, xi CONCLUSION 269

To kidnap the son of a freeman brought death in
CH ( 14), but BC (21 16) exacts death for the
man-stealer whether the victim be recovered or not.
In CH ( 206), for injury in a quarrel the culprit
must swear it was done unintentionally, and pay the
doctor; in BC (21 18 sq.), payment for loss of time
and healing is ordained. But if the man dies, CH
( 207) requires the oath of purgation and a fixed
compensation, whereas BC presumably exercises
the right of asylum (21 12-14). Where the injury is
specified, both CH and BC use the talio, but the
former allows a compensation if the victim is of
humble origin, and in the case of a slave BC
(21 26 sq.) gives him his freedom as compensation,
whereas CH requires an indemnity for the owner
( 199). Again, if the victim is a woman, and mis-
carriage ensues, in BC (21 22) the husband fixes
the fine, whereas CH has a tariff and takes into
account the possible death of the woman herself
(CH, 209-214).

As regards damage by or to animals, neither CH
nor BC provides a remedy for the vicious ox ; but
if its owner had been warned, CH inflicts fines
( 250 sqq., 30 shekels for a freeman, 20 shekels
for a slave), whilst BC orders death-penalty, or a
ransom, the amount of which is only specified in the
case of a slave (30 shekels ; vv. 28-32).

In both codes, the night-thief may be killed on
the spot, but the death-penalty in CH is inflicted
further for the brigand, for theft from temple or
palace, or at a fire, and the district is responsible



270 THE LAWS OF MOSES CHAP, xi

\ for the depredations caused by highwaymen (CH,
23 sq.). The extent of the restitution in CH
ranges from thirty fold to twofold, in BC five for an
ox, four for a sheep, and double if the stolen thing
is found in his possession (22 1-4). In CH, 8 the
sacrilegious thief who could not make restitution is
put to death; the cattle-lifter in Ex. 22s is sold. 1
CH, 57 sq. distinguishes two cases of damage to
crops by animals, but whether the topic is handled
in BC (Ex. 22 5) is uncertain ; one (or perhaps two)
cases of damage by fire are given in BC (22 5, [?]6),
but nothing is mentioned respecting damages to
crops by flood (CH, 53-56). General cases of
lost or stolen property are treated at length in CH
( 9~ I 3)> but with extreme brevity in the corre-
sponding law in BC (22 9). If a thief steals a
deposit, in CH the depositee must make restitution
and recover from the thief ( 125), in BC he clears
himself by an oath (22 7 sq.). If property in charge
of another is destroyed by a lion, there is no re-
sponsibility, if by " stroke of God," oath of innocence
(CH, 244, 249; cp. 267); but in BC, if torn by
lion, evidence must be brought (22 13), and if a case
of vis major, the man swears an oath (22 10 sq.). If
lost through negligence ( 267) or theft (Ex. 22 12),
restitution is required in both CH and BC.

The differences between the two systems as
illustrated by this brief recapitulation are equally
striking when the later Hebrew legislation is con-
sidered. For example, CH, in dealing with seduc-

1 Cp. CH, 54, the negligent irrigator, above, p. 198.



CHAP, xi CONCLUSION 271

tion, does not handle the case of the unbetrothed
virgin, whilst its treatment of the one who is be-
trothed (CH, 130) differs notably from the Hebrew
laws (cp. above, pp. 100 sqq.\ For adultery and
incest CH inflicts a great variety of penalties, viz.
burning (mother, 157), drowning (neighbour's wife,
129, daughter-in-law, 155), expulsion (daughter,
154), and disinheritance (son with step- or foster-
mother, 158). In the Old Testament, the punish-
ments are death (step -mother, daughter-in-law,
Lev. 20 ii sqq.\ burning (bigamy, marriage of woman
and her mother, Lev. 20 14), " cutting off" (sister,
Lev. 20 17), and even childlessness (wife of uncle or
brother, Lev. 202o^.). 1

The Old Testament laws of slander relate to the
case of the newly married husband and wife, which
is not specifically treated in CH, and is silent on
the subject of slander of a wife by a third party
(CH, 127). Provision is made, as in CH, 23 sq. t
for the murdered man whose assailant is undiscovered,
but the procedure is different. The Old Testament

1 As regards the penalties in general, stoning, the old customary
mode of execution, seems to have disappeared from Babylonia, whilst
drowning, which comes up in 108, 129, 133, 143, 155, came into
vogue in later Judaism. Burning appears thrice in the Code ( 25,
no, 157), but it was very rare in Israel (p. 106 sq.~). On impalement
(CH, 153) and hanging, see EBi. "Hanging" and for the intro-
duction of scourging into Israelite and Mohammedan procedure, see
pp. 45, 251 above. Mutilation apart from the talio (Ex. 21 24, CH,
196, etc.) is found only once as a legal penalty (Deut. 25 n sq.\
but was common in both Babylonia (CH, 192, 195, 205, 218,
226, 253, 282) and Egypt (Spiegelberg, Studien u. Materialien zum
Rechtswesen d. Pharaonenreiches^ pp. 66 sq. nose or ears).



272 THE LAWS OF MOSES CHAP, ki

forbids the judge to receive a bribe, whereas CH,
5 has gone further and inflicted a penalty. It
required the house-owner to protect his roof or the
farmer his pit, but it has no laws upon the responsi-
bilities of the builder. That laws relating to trade
and commerce should fail to find a place in the
Hebrew legislation is not surprising when it is
considered how widely conditions in Israel differed
from those in Babylonia ; but it is when the same
topics are handled by both systems that a careful
comparison can be made, and how frequently the
treatment in the Old Testament diverges from that
in the Babylonian code must now be thoroughly
apparent.

The prohibition to shun the doings of Canaan and
Egypt (Lev. 18 3) we miss a reference to Babylonia
implies that the Israelities must have been brought
into contact with something more than the religions
of the surrounding nations, and it would be reason-
able to suggest that some of the Israelite laws,
if not borrowed, at least owed their initiation to
outside influence. Unfortunately, it is not easy to
lay one's finger upon certain examples. 1 The as-

yumption that the parallels which have been in-
iicated above are directly due to the fact that at

1 It can scarcely be maintained that the law forbidding marriage
with a sister is aimed against Egyptian custom (Sayce, Early History
oj the Hebrew s, p. 209 sq.\ since such unions were common in
Israel and did not receive condemnation before the Deuteronomic
age. See above, p. 97, and note that Noldeke, too, suggests that
the use of "sister" in the Song of Songs to mean "wife" is a
survival of this marriage (ZDMG, 40 150).



CHAP, xi CONCLUSION 273

> ^^*^
the time when the Book of the Covenant or the

Deuteronomic \code was drawn up, Hammurabi's
Code was well-known in Israel, would require an
explanation of the comparatively small use which <-
has been made of it. Naturally, laws relating to
trade and commerce, to gangers and constables
and others, would not be applicable to Israelite
conditions, but it is difficult to understand why
the lot of the enslaved debtor was made harder,
why the rights of the concubine's children were
not established, 1 and why the law required the
shepherd to produce the mangled remains of his
cattle whilst in Babylonia the loss fell upon the
owner ( 266).

In the law of the vicious ox it will be remembered
that if its owner had been warned and the animal
had not been kept under restraint but had broken
out and gored a man, the penalty is death or blood-
money, and it proceeds to state most explicitly, that
"whether it be a son or a daughter, according to
this judgment shall it be done unto him " (Ex.
21 si). 2 The distinction which is here made between
the members of the family and the slaves (v. 32)
may be later than the general law, and this finds
some support in the peculiar phraseology. 3 When
it is remembered that in certain cases in the Code

1 The more humane treatment of the maidservant in E, con-
trasted with J, is scarcely due to CH. Cp. above, p. 117 sq., 166 sq.

2 With the last few words may be contrasted the Babylonian
method of stating a similar case (CH, 176 a and b}.

3 The Hexateuch, vol. 2, ad loc.

18



274 THE LAWS OF MOSES CHAP, xi

of Hammurabi the son or daughter suffer death for
their father's negligence ( 116, 210, 230), it might
appear plausible at first sight to suppose that the
insertion in the Hebrew law is deliberately aimed
against Babylonian custom. Further consideration,
however, will show that this is impossible. That
particular phase of the law of retaliation, whereby
son for son or daughter for daughter was required,
was as familiar in Israel as it had once been in
Babylonia. In the latter country, as we have
already found, this talio was not always strictly
enforced, whilst in Israel the repeated protests
and denunciations of the prophets, as late as the
time of Ezekiel, are evidence of the tenacity with
i which this primitive Semitic usage clung to popular
custom. It is certainly a matter of great interest
that both legislations should have handled the same
topic, and the addition to the Hebrew law must
be regarded as a sign of the growing develop-
ment of humanity in Israel, but that the Israelite law
is under no obligation to the Code of Hammurabi is
undeniable, since the latter only takes into account
the death of the freeman or slave, and merely inflicts
a fine (CH, 250-252). The Book of the Cove-
nant, here, at all events, is far behind the stage
reached by the Babylonian code.

It is extremely interesting, again, to observe
that the Deuteronomic law in favour of the fugitive
slave (Deut. 23 15 sq.) is in marked contrast with
the severe enactments in CH, 15-20. But it can
scarcely be maintained that it is aimed against the



CHAP, xi CONCLUSION 275

Code. Had the lawgiver been acquainted with the
Code he might have been expected to betray some
knowledge of other statutes which, marked as they
are by their fairness and justness, would surely
have commended themselves. The statutes for the
protection of the unfortunate debtor ( 48, 114,
116 sq., 119, 241) remind us of Israelite injunctions
and prohibitions, but whilst the latter appeal to the
debtor's generosity and are not always practicable,
the humane laws in CH receive the stamp of
authority and are intended to be carried out by the
courts. Injustice towards the widow and fatherless
was forbidden and cursed (Deut. 2417, 2719), but
one may search in vain for specific laws analogous
to CH, 172, 177. On the other hand, laws re-
lating to the protection of slaves and animals from
cruelty or injury (CH, 245-248, etc.) are more
probably framed with the intent to ensure their
protection as property, whereas in the Hebrew
legislation the analogous injunctions spring rather
from feelings of pure kindness. The furtherance
of trade and commerce together with the protec-
tion of property and the maintenance of peace
have tempered the Babylonian laws with justice,
although the penalties for their infraction are fre-
quently severe and brutal.

Not the least important feature of the Code
of Hammurabi is its retention of legal principles
which are quite in accordance with primitive
Semitic thought. 1 The Semitic stamp is plainly

1 Similarly in his edition of the Letters of Hammurabi, King






276 THE LAWS OF MOSES CHAP, xi

visible, although the difference between conditions
of life in Babylonia and in Israel is clearly re-
flected in their respective legislations. Equally
characteristic is the different setting of the Code
(the Prologue and Epilogue) compared with the
framework of the Book of the Covenant or of
the Deuteronomic law - book. The pri-

mitive tribal organisation, which has quite dis-
appeared in Babylonia, had already commenced
[^to decay in Israel. The home - born Israelite
and the sojourner (ger) under the protection of
the tribe enjoyed equal rights, and the emphasis
which is laid upon their equality betrays a decline
of old nomad customs in the primitive tribal
society this would be too well assumed to require
any special mention.LjThe care taken by Israelite
law to protect strangers finds no parallel in Baby-
lonia. Here, there was not one law for the home-
born and one for the stranger not because the
Code omitted to safeguard their interests, but because
society had reached that stage where all classes
come under the law and enjoy its protection. 2
Class - distinctions, however, have arisen, and in
addition to the free and unfree, a special class
the "poor man"- has come into existence, and for

(p. xlix.) had observed that the Babylonians of the first dynasty
"still retained usages and customs which had come down to them
from a time when they were essentially a pastoral and nomadic
people and had no settled habitation."

1 Cp. W. M. Patton, Amer. Journ. of Theol 1901, p. 726.

2 For the evidence that foreigners enjoyed equal rights with
native Babylonians, see Sayce, op. tit. pp. 191 sqq.







CHAP, xi CONCLUSION

him the penalties are lighter and the compensations
less.

In comparing the Babylonian code with the
Pentateuchal legislation the observation is some-
times made that the former, by reason of the
absence of religion and religious motives, stands
upon a lower level than the latter. It is true
that the magical practices handled in i sq., and
the laws relating to votaries and the like, only touch
the externals of Babylonian religion, and/the omission
of l^ws of cult_and ritual is noticeable 5 when we
consider the amount of space devoted to them in
the legal literature of the Old Testament] strictly
speaking, however, (the comparison is not a fair one,
and the relation between them is analogous to
that between the Syro-Roman law-book and the
Koran. The Code of Hammurabi deals entirely"
with civil law, and in this respect is to be compared
most fitly with the original Book of the Covenant,
which is purely secular and does not_contemplate
subjects relating to religion. Besides,! Hammurabi
himself, as his Letters prove, paid trie greatest
heed to the due observance of religious rites and I
the proper maintenance of the worship of his gods, 1 \
and the omission of religion in his Code must be I
regarded as intentional. "*! i

Babylonia had its ceremonial laws and ethical
codes, and the Assyrian seventh-century tablet, to
which reference has already been made, affords an
idea of the conceptions of sin prevailing at that

1 King, Letter S) no. in., and pp. xxxi-xxxiv.



278 THE LAWS OF MOSES CHAP, xi

age, if not earlier. Here we find, enumerated with
ceremonial faults, such offences as causing bad blood
between parents and children, relatives and friends,
refusing to loosen captives, sinning against gods
and goddesses, violence towards elders, hatred of
elder brother, contempt towards parents or sister,
unfair dealing in business, lying, use of false weights
and scales, injustice in inheritance, removal or un-


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