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Law

ANCIENT LAW CODES




How the Torah Compares to Other Ancient Codes

From A History of the Jews by Paul Johnson


The earliest version of the Mosaic code, which we presume to have been promulgated about 1250 BC, was...part of a tradition which was already ancient. The first code, discovered among texts in the Museum of the Ancient Orient in Istanbul, dates from about 2050 BC, the work of Ur Nammu, 'king of Sumer and Akkad', the Third Dynasty of Ur. This states, among other things, that the god Nanna chose Ur Nammu to rule, and he got rid of dishonest officials and established correct weights and measures. Abraham must have been familiar with its provisions. Another code, which Abraham may have known too, dates from about 1920 BC: two tablets now in the Iraq Museum, from the ancient kingdom of Eshnuna, written in Akkadian, list about sixty property regulations laid down by the god, Tiskpak, and transmitted through the local king. Far more comprehensive are the early nineteenth-century BC tablets, mainly in the University of Pennsylvania, which give the code of King Lipt-Ishrar of Idi, written (like Ur Nammu) in Sumerian; and, most impressive of all, the code of Hammurabi, found in 1901 at Susa, east of Babylon, written in Akkadian on a 6-foot-high diorite slab, now in the Louvre, and dated 1728-1686 BC. Other, later law-codes include a Mid-Assyrian set of clay tablets unearthed by German archaeologists in the years before the First World War at Qalat Shergat (ancient Ashur), which probably go back to the fifteenth century BC, and are perhaps the closest in date to the original Mosaic code.

In collecting and codifying Israeli law, therefore, Moses had ample precedent. He had been brought up at court; he was literate. To set down the law in writing, to have it carved in stone, was part of the liberating act of fleeing from Egypt, where there was no statutory law, to Asia, where is was by now the custom. None the less, though the Mosaic code was in this sense part of a Near Eastern tradition, its divergences from all other ancient codes are so many and so fundamental as to make it something entirely new. Firstly, the other law-codes, though said to be inspired by God, are given and worded by individual kings, such as Hammurabi or Ishtar; they are thus revocable, changeable and essentially secular. By contrast, in the Bible, God alone writes the law -- legislation throughout the Pentateuch is all his -- and no Israelite king was ever permitted, or even attempted, to formulate a law-code. Moses (and, much later, Ezekiel, transmitter of the law reforms) was a prophet, not a king, and a divine medium, not a sovereign legislator. Hence, in his code there is no distinction between the religious and the secular -- all are one -- or between civil, criminal and moral law.

This indivisibility had important practical consequences. In Mosaic legal theory, all breaches of the law offend God. All crimes are sins, just as all sins are crimes. Offences are absolute wrongs, beyond the power of man unaided to pardon or expunge. Making restitution to the offended mortal is not enough; God requires expiation too, and this may involve drastic punishment. Most law-codes of the ancient Near East are property-orientated, people themselves being forms of property whose value can be assessed. The Mosaic code is God-oriented. For instance, in other codes, a husband may pardon an adulterous wife and her lover. The Mosaic code, by contrast, insists both must be put to death. Again, whereas the other codes include the royal right to pardon even in capital cases, the Bible provides no such remedy. Indeed, in capital cases it repudiates the notion of 'rich man's law': a murderer, however rich, cannot escape execution by paying money, even if his victim is a mere servant or slave, and there are many other crimes where God's anger is so great that financial compensation is not enough to appease the divine wrath. Where, however, the intention is not to wound or kill or sin grievously, and the injury is the unintended consequence of mischievous behavior, God is less offended, and the laws of compensation apply. The offender then 'shall pay as the judges determine'. This applied, the Mosaic code laid down, in the case where a man strikes a woman and she has a miscarriage, or when death follows a culpable accident, and in all lesser cases, 'eye for eye, tooth for tooth, hand for hand, foot for foot', a much misunderstood passage, which simply means that strict compensation for the injury is due. On the other hand, where the degree of culpability for an injury, though accidental, is criminal, the capital law must take its course. Thus an ox which gores a man to death is simply forfeit, and the owner unpunished; but if he knows his beast is dangerous, and he has failed to take proper measures, and a man is killed in consequence, the owner must suffer capitally.

This last provision, known as 'The Law of the Goring Ox', testifies to the huge importance the Mosaic code attaches to human life. There is a paradox here, as there is in all ethical use of capital punishment. In Mosaic theology, man is made in God's image, and so his life is not just valuable, it is sacred. To kill a man is an offence against God so grievous that the ultimate punishment, the forfeiture of life, must follow; money is not enough. The horrific fact of execution thus underscores the sanctity of human life. Under Mosaic law, then, many men and women met their deaths whom the secular codes of surrounding societies would have simply permitted to compensate their victims or their victims' families.

But the converse is also true, as a result of the same axiom. Whereas other codes provided the death penalty for offences against property, such as looting during a fire, breaking into a house, serious trespass by night, or theft of a wife, in the Mosaic law no property offence is capital. Human life is too sacred where the rights of property alone are violated. It also repudiates vicarious punishment: the offences of parents must not be punished by the execution of sons or daughters, or the husband's crime by the surrender of the wife to prostitution. Moreover, not only is human life sacred, the human person (being in God's image) is precious. Whereas, for instance, the Mid-Assyrian code lists a fierce series of physical punishments, including facial mutilation, castration, impalement and flogging to death, the Mosaic code treats the body with respect. Physical cruelty is reduced to the minimum. Even flogging was limited to forty strokes, and must be carried out 'before the face' of the judge, 'lest, if he should exceed, and beat him above these with many stripes, then thy brother should seem vile unto thee'. The fact is , the Mosaic code was far more humane than any other, because, being God-centred, it was automatically man-centered also.




Excerpts from the Legal Sections of the Pentateuch

From The Living Torah by Rabbi Aryeh Kaplan

Ex. 21:12 If one person strikes another and [the victim] dies, [the murderer] must be put to death.

21:13 If he did not plan to kill [his victim], but God caused it to happen, then I will provide a place where [the killer] can find refuge.

21:14 If a person plots against his neighbor to kill him intentionally, then you must even take him from My altar to put him to death.

21:15 Whoever intentionally injures his father or mother shall be put to death.

21:17 Whoever curses his father or mother shall be put to death.

21:18 [This is the law] when two men fight, and one hits the other with a stone or with [his] fist. If [the victim] does not die, but becomes bedridden,

21:19 and then gets up and can walk under his own power, the one who struck him shall be acquitted. Still, he must pay for [the victim's] loss of work, and must provide for his complete cure.

21:20 If a man strikes his male or female slave with a rod and [the slave] dies under his hand, [the death] must be avenged.

21:21 However, if [the slave] survives for a day or two, then, since he is [his master's] property, [his death] shall not be avenged.

21:22 [This is the law] when two men fight and [accidentally] harm a pregnant woman, causing her to miscarry. If there is no fatal injury [to the woman], then [the guilty party] must pay a [monetary] penalty. The woman's husband must sue for it, and [the amount] is then determined by the courts.

21:23 However, if there is a fatal injury [to the woman], then he must pay full compensation for her life.

21:24 Full compensation must be paid for the loss of an eye, a tooth, a hand or a foot.

21:25 Full compensatio must [also] be paid for a burn, a wound, or a bruise.

21:26 If a person strikes his male or female slave in the eye and blinds it, he shall set [the slave] free in compensation for his eye.

21:27 [Similarly,] if he knocks out the tooth of his male or female slave, he must set [the slave] free in compensation for his tooth.

21:28 If an ox gores a man or woman, and [the victim] dies, the ox must be stoned to death, and its flesh may not be eaten. The owner of the ox, however, shall not be punished.

21:29 But if the ox was in the habit of goring on previous occasions, and the owner was warned but did not take precautions, then, if it kills a man or woman, the ox must be stoned, and its owner shall also [deserve to] die.

21:30 Nevertheless, an atonement fine must be imposed on him, and he must pay whatever is imposed on him as a redemption for his life.

21:31 This law also applies if [the ox] gores a minor boy or a minor girl.

21:32 If the ox gores a male or female slave, [its owner] must give thirty silver shekels to [the slave's] master, and the bull must be stoned....

21:35 If one person's ox injures the ox of another person, and it dies, they shall sell the live ox and divide the money received for it. They shall also divide the dead animal.

21:36 However, if the ox was known to be in the habit of goring on previous occasions, and its owner did not take precautions, then he must pay the full value of [the dead] ox. The dead animal remains the property of [its owner]....

22:1 If a burglar is caught in the act of breaking in, and is struck and killed, it is not considered an act of murder.

22:2 However, if he robs in broad daylight, then it is an act of murder [to kill him]. [A thief] must make full restitution. If he does not have the means, he must be sold [as a slave to make restitution] for his theft....

Lev. 19:11 Do not steal. Do not deny [a rightful claim]. Do not lie to one another.

19:12 Do not swear falsely by My name; [if you do so], you will be desecrating your God's name. I am God.

19:13 Do not [unjustly] withhold that which is due your neighbor. Do not let a worker's wages remain with you overnight until morning.

19:14 Do not curse [even] the deaf. Do not place a stumbling block before the [morally] blind. You must fear your God. I am God.

19:15 Do not pervert justice. Do not give special consideration to the poor nor show respect to the great. Judge your people fairly.

19:16 Do not go around as a gossiper among your people. Do not stand still when your neighbor's life is in danger. I am God.

19:17 Do not hate your brother in your heart. You must admonish your neighbor, and not bear sin because of him.

19:18 Do not take revenge nor bear a grudge against the children of your people. You must love your neighbor as [you love] yourself. I am God





Excerpts from the Laws of Eshnunna

Translated by Albrecht Goetze
From The Ancient Near East, edited by James B. Pritchard

10: The hire for a donkey is 1 seah of barley, and the wages for its driver are 1 seah of barley. He shall drive it the whole day.

11: The wages of a hired man are 1 shekel of silver; his provender is 1 pan of barley. He shall work for one month.

12: A man who is caught in the field of a muskenum in the crop during daytime, shall pay 10 shekels of silver. He who is caught in the crop [at ni]ght, shall die, he shall not get away alive.

13: A man who is caught in the house of a muskenum, in the house, during daytime, shall pay 10 shekels of silver. He who is caught in the house at night, shall die, he shall not get away alive....

42: If a man bites the nose of a(nother) man and severs it, he shall pay 1 mina of silver. (For) an eye (he shall pay) 1 mina of silver; (for) a tooth 1/2 mina; (for) an ear 1/2 mina; (for) a slap in the face 10 shekels of silver.

43: If a man severs a(nother) man's finger, he shall pay two-thirds of a mina of silver.

44: If a man throws a(nother) man to the floor in an altercation and breaks his hand, he shall pay 1/2 mina of silver.

45: If he breaks his foot, he shall pay 1/2 mina of silver....

47: If a man hits a(nother) man accidentally, he shall pay 10 shekels of silver.

48: And in addition, (in cases involving penalties) from two-thirds of a mina to 1 mina, they shall formally try the man. A capital offence comes before the king....

53: If an ox gores an(other) ox and causes (its) death, both ox owners shall divide (among themselves) the price of the live ox and also the equivalent of the dead ox.

54: If an ox is known to gore habitually and the authorities have brought the fact to the knowledge of its owner, but he does not have his ox dehorned, it gores a man and causes (his) death, then the owner of the ox shall pay two-thirds of a mina of silver.

55: If it gores a slave and causes (his) death, he shall pay 15 shekels of silver.

56: If a dog is vicious and the authorities have brought the fact to the knowledge of its owner, (if nevertheless) he does not keep it in, it bites a man and causes (his) death, then the owner of the dog shall pay two-thirds of a mina of silver.

57: If it bites a slave and causes (its) death, he shall pay 15 shekels of silver.

58: If a wall is threatening to fall and the authorities have brought the fact to the knowledge of its owner, (if nevertheless) he does not strengthen his wall, the wall collapses and causes a free man's death, then it is a capital offence; jurisdiction of the king.





Notes

muskenum - The muskenum is a member of a social class which at Eshnunna seems to be closely connected with the palace or the temple.






Excerpts from the Code of Hammurabi

Translated by Theophile J. Meek
From The Ancient Near East, edited by James B. Pritchard

1: If a seignior accused a(nother) seignior and brought a charge of murder against him, but has not proved it, his accuser shall be put to death.

2: If a seignior brought a charge of sorcery against a(nother) seignior, but has not proved it, the one against whom the charge of sorcery was brought, upon going to the river, shall throw himself into the river, and if the river has then overpowered him, his accuser shall take over his estate; if the river has shown that seignior to be innocent and he has accordingly come forth safe, the one who brought the charge of sorcery against him shall be put to death, while the one who threw himself into the river shall take over the estate of his accuser.

3: If a seignior came forward with false testimony in a case, and has not proved the word which he spoke, if that case was a case involving life, that seignior shall be put to death.

4: If he came forward with (false) testimony concerning grain or money, he shall bear the penalty of that case.

5: If a judge gave a judgment, rendered a decision, deposited a sealed document, but later has altered his judgment, they shall prove that that judge altered the judgment which he gave and he shall pay twelvefold the claim which holds in that case; furthermore, they shall expel him in the assembly from his seat of judgment and he shall never again sit with the judges in a case.

6: If a seignior stole the property of church or state, that seignior shall be put to death; also the one who received the stolen goods from his hand shall be put to death.

7: If a seignior has purchased or he received for safekeeping either silver or gold or a male slave or a female slave or an ox or a sheep or an ass or any sort of thing from the hand of a seignior's son or a seignior's slave without witnesses and contracts, since that seignior is a thief, he shall be put to death....

15: If a seignior has helped either a male slave of the state or a female slave of a private citizen to escape through the city-gate, he shall be put to death.

16: If a seignior has harbored in his house either a fugitive male or female slave belonging to the state or to a private citizen and has not brought him forth at the summons of the police, that householder shall be put to death....


21: If a seignior made a breach in a house, they shall put him to death in front of that breach and wall him in.

22: If a seignior committed robbery and has been caught, that seignior shall be put to death....

25: If fire broke out in a seignior's house and a seignior, who went to extinguish (it), cast his eye on the goods of the owner of the house and has appropriated the goods of the owner of the house, that seignior shall be thrown into that fire....

195: If a son has struck his father, they shall cut off his hand.

196: If a seignior has destroyed the eye of a member of the aristocracy, they shall destroy his eye.

197: If he has broken a(nother) seignior's bone, they shall break his bone.

198: If he has destroyed the eye of a commoner or broken the bone of a commoner, he shall pay one mina of silver.

199: If he has destroyed the eye of a seignior's slave or broken the bone of a seignior's slave, he shall pay one-half his value.

200: If a seignior has knocked out a tooth of a seignior of his own rank, they shall knock out his tooth.

201: If he has knocked out a commoner's tooth, he shall pay one-third mina of silver.

202: If a seignior has struck the cheek of a seignior who is superior to him, he shall be beaten sixty (times) with an oxtail whip in the assembly.

203: If a member of the aristocracy has struck the cheek of a(nother) member of the aristocracy who is of the same rank as himself, he shall pay one mina of silver.

204: If a commoner has struck the cheek of a(nother) commoner, he shall pay ten shekels of silver.

205: If a seignior's slave has struck the cheek of a member of the aristocracy, they shall cut off his ear....

209: If a seignior struck a(nother) seignior's daughter and has caused her to have a miscarriage, he shall pay ten shekels of silver for her fetus.

210: If that woman has died, they shall put his daughter to death.

211: If by a blow he has caused a commoner's daughter to have a miscarriage, he shall pay five shekels of silver.

212: If that woman has died, he shall pay one-half mina of silver.

213: If he struck a seignior's female slave and has caused her to have a miscarriage, he shall pay two shekels of silver.

214: If that female slave has died, he shall pay one-third mina of silver....

250: If an ox, when it was walking along the street, gore a seignior to death, that case is not subject to claim.

251: If a seignior's ox was a gorer and his city council made it known to him that it was a gorer, but he did not pad its horns (or) tie up his ox, and that ox gored to death a member of the aristocracy, he shall give one-half mina of silver.

252: If it was a seignior's slave, he shall give one-third mina of silver.





Notes

aristocracy - Lit. "the son of a man," with "son" used in the technical sense already explained above ["belonging to the class of, species of," so common in the Semitic languages] and "man" clearly in the sense of "noble, aristocrat"; or it is possible that "son" here is to be taken in its regular sense to indicate a person younger than the assailant.

miscarriage - Lit. "caused her to drop that of her womb (her fetus."

river - The river (the Euphrates) as judge in the case was regarded as god.

seignior - awelum seems to be used in at least three senses: (1)sometimes to indicate a man of the higher class, a noble; (2)sometimes a free man of any class, high or low; and (3)occasionally a man of any class, from king to slave. I follow the ambiguity of the original and use the rather general term "seignior," as employed in Italian and Spanish, to indicate any free man of standing.




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