CHAPTER FIVE. Typologies of Homicide

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IN THE story of Cain and Abel, an omniscient narrator explores Cain’s responsibility

for Abel’s death by constructing conversations between God and

Cain, in which God explains the capricious and potent impulse to murder and

Cain reacts to God’s reference to Abel and to the declaration of his punishment.

In contrast, three biblical legal texts, Exod 21:12–14, Num 35:9–34,

and Deut 19:1–13, analyze the responsibility of the killer by extrapolating the

intent of the killer from the manner of killing or from the prior relationship

between victim and murderer. They do not have the luxury of omniscience

as does the author of Genesis 4.

These three legal texts manifest the intent to articulate more precisely

and accurately a distinction between intentional and unintentional killing.1

They provide conflicting typologies of homicide, probably for two interrelated

reasons: 1)Without direct access to a person’s thoughts, it is fiendishly

1In modern Western society, premeditated homicide is taken as the gravest offense, much more

than intentional homicide without prior planning. Yet it is doubtful whether it is better for

society to contain members who fly into a murderous rage without premeditation than members

who, taking their time to devise a plan, might lose interest in carrying out the slaying

or who might be discovered and prevented from carrying out their plan. In any case, in contemporary

American law, premeditation, the length of time spent in prior thought, has been

eroded to include the shortest possible duration necessary to design a plan. See Joshua Dressler,

Understanding Criminal Law (2d edition; Legal Text Series; n.p.: Richard D. Irwin, 1995), 474.

difficult to know what he intended; and 2) although the positing of ground

rules is easy, the difficulty comes in applying these rules to actual persons

and events. At the same time, the legal texts share the principle that only

intentional killing by direct action is culpable, and they divide acts of homicide

into two categories, one for which the penalty is death and the other

for which it is not.

Accidental homicide is defined in Exod 21:12–14 as “if [the killer] did

not do it by design, but God caused it to meet his hand” (Exod 21:13). The

connection is made between what a person does with his hands and what

occurred. Similarly, Hittite Laws 3–42 characterizes accidental homicide as

“only his hand is at fault,”3 making a distinction between the action of the

offender with his hand and the intention of the offender in the seat of his

intellect. There is thus a qualitative difference between an act and a physical

event. Legal responsibility is attributed to the most direct cause of death,4

a physical act that causes death. Although a distinction is drawn between

a physical act intended to kill and a physical act that happens to kill, in

both cases the offender must flee (Exod 21:13–14). Ultimately, greater legal

culpability is imputed to the killer who lies in wait – “But if a man willfully

attacks a man to kill him treacherously, you shall take him from my altar to

be put to death” (Exod 21:14). Nonetheless, the direct physical act subjects

the killer to legal action. The offender can see the connection between his

hand and the corpse and knows to flee.

Limiting legal action to direct physical contact is not a sign of an inability

to grasp a less direct connection but stems from an eminently practical

concern.5 A death can be clearly linked to a direct physical injury. The legal

process can take such evidence with certainty. Less direct causation, such

as poisoning, means greater doubt and less certainty about the identity of

the offender.

Limiting legal action to direct physical action is a principle followed in

narrative as well. In the story of Joseph, Joseph’s brothers plan to kill him

and dump the corpse in a pit:

They saw him from afar, and before he drew near them, they conspired

to kill him. They said to one another, “Here comes this dreamer.”

Now, let us kill him and throw him into one of the pits; we can say,

2The most recent edition and translation of the Hittite Laws, used here, is that by Harry A.

Hoffner, Jr., The Laws of the Hittites: A Critical Edition (DMOA 23; Leiden: Brill, 1997). These

particular statutes are on p. 18.

3Although the Hittite verb waˇstai is often rendered “to sin,” it does not have the element of

moral depravity associated with the English verb. Hence, the translation adopted here is “to

be at fault.” Cf. Harry A. Hoffner, Jr., “On Homicide in Hittite Law,” in Crossing Boundaries

and Linking Horizons, 297.

4David Daube, “Direct and Indirect Causation in Biblical Law,” VT 11 (1961), 246–247.

5Ibid., 247.

 ‘a savage animal ate him’; we will see what becomes of his dreams.”

(Gen 37:18–20)

Reuben objects to their plan and suggests that Joseph be left alive in the pit

to perish without anyone dealing the fatal blow:

When Reuben heard it, he tried to save him from them; he said, “Let

us not take his life.” Reuben said to them, “Don’t shed blood. Throw

him into this pit here in the wilderness, but don’t lay your hand against

him.” (Gen 37:21–22)

Reuben makes a contrast between killing Joseph directly and indirectly.6 If

they kill him directly, the brothers would be fully culpable. If they kill him

indirectly by casting him into a pit out in the wilderness and leaving him to

die, they would be less culpable, if not immune. Joseph’s brothers readily

agree to this subterfuge.

The same principle is followed in the narrative of David and Bathsheba,

2 Samuel 11–12. David is deemed guilty for taking Uriah’s wife, not for

causing his death. For the latter offense, he is not culpable because he did

not directly shed Uriah’s blood.7 This is seen clearly in Nathan’s parable. Its

point is the theft of the poor man’s ewe by the wealthy man. The death of

the poor man is not even mentioned. The purpose of Nathan’s parable is not

to condemn David for Uriah’s death, but rather for commandeering Uriah’s

wife. David reacts to the parable by ordering the wealthy man to pay for a

stolen ewe (2 Sam 12:5–6).8 In Nathan’s explication of his parable, he holds

David responsible for Uriah’s death – “Why did you treat the word of the

Lord with contempt, doing what is evil in his sight, by smiting Uriah the

Hittite with the sword, taking his wife as your own, and killing him with

the sword of the Ammonites?” (2 Sam 12:9) – but Nathan bases David’s

6Daube, “‘Lex Talionis,’” in Studies in Biblical Law, 111.

7This strategem is used by Saul, who promises David his daughter’s hand if David would battle

the Philistines (1 Sam 18: 17–27). Saul hopes that in the process of killing the Philistines, David

would be killed but Saul himself would not be responsible – “. . . now Saul thought: Let my

hand not be upon him but the hand of the Philistines” (1 Sam 18:17).

8Although David’s first words are “[I swear] as the Lord lives, that man deserves to die,” David

then orders the man to pay. The first reaction, “[I swear] as the Lord lives, that man deserves to

die,” is an expression of moral approbation, not law. The judgment to pay is law. Further, the

penalty for adultery is death (Lev 20:10), and after David confesses it, the penalty is transferred

to the son who is to be born. Some have suggested that the term twm @b is not a juridical term, but

an emphatic expression, based on analogy with the term twm `ya and the use of twm in emphatic

expressions. This argument is faulty: The correct analogy is to the technical legal term twkh @b,

“one who deserves a lashing,” in Deut 25:2. The phrase twm @b is a juridical term. Cf. Anthony

Phillips, “The Interpretation of 2 Samuel xii 5–6,” VT 16 (1966), 243–245; P. Kyle McCarter,

II Samuel (AB; Garden City, New York: Doubleday, 1984), 299; H. Seabass, “Nathan und

David in II Sam 12,” ZAW 86 (1974), 203–204; D. Winton Thomas, “A Consideration of

Some UnusualWays of Expressing the Superlative in Hebrew,” VT 3 (1953), 219–220; Svi Rin,

“The twm of Grandeur,” VT 9 (1959), 324–325.

punishment solely on the sin of taking Uriah’s wife – “And now, the sword

shall never depart from your house because you have despised me and taken

the wife of Uriah the Hittite to be your wife” (2 Sam 12:10). Nathan does not

subject David to legal action for Uriah’s death because he did not actually

deal the fatal blow. David’s punishment reflects his transgression – “Thus

says the Lord: I am going to make trouble for you out of your own house. I

am going to take your wives before your very eyes and give them to someone

else, and he will lie with them in the light of the sun itself, because although

you acted in secret, I am going to do this in front of all Israel, in front of

the sun” (2 Sam 12:11–12). David’s punishment is a transfiguration of his

crime, the affair with Bathsheba. What he did in secret will be done to him

in public.

At the same time, a distinction is drawn in narrative texts between responsibility

and culpability. To return to the case of Joseph’s brothers, when

they descend to Egypt and are treated harshly, they link this to their harsh

treatment of Joseph. Reuben reproaches his brothers for the responsibility

they bear for Joseph’s fate (Gen 42:22), although they did not directly cause

his death: “Reuben answered them, ‘Did I not say to you, ‘Do not wrong

the boy,’ but you did not listen, and now his blood is being requited.’”

The same distinction lies behind a series of killings and counterkillings

among David’s retainers. The killing of Asahel (2 Sam 2:18–23) is depicted

as the first link in a chain of events. Abner slays Asahel in battle. Asahel’s

brother, Joab, then ambushes Abner and kills him in revenge. David, in turn,

reacts emphatically, horrified by “the blood falling on the head of Joab and

his father’s house.” He utters a curse upon Joab and his patrimonial house

to ensure that the taint would fall on the killer’s descendants, not his own

(2 Sam 3:28–29). David orders Joab and the army to display outward signs of

mourning, and David himself walks before Abner’s bier and intones a dirge.

These formal acts of grieving constitute a public declaration that David did

not intend the death of Abner. The presumption, however, is that the king

is responsible for the actions of one of his men. This same presumption lies

behind David’s deathbed scene, where he instructs Solomon to kill Joab for

the slaying of Abner and the slaying of Amasa, commander of the army

of Judah (1 Kgs 2:5). After David’s death, when he sees Solomon settling

David’s unfinished business, Joab flees to the Tent-shrine and takes hold of

the horns of the altar. Joab’s action is of no avail. Solomon instructs Benaiah

to kill Joab in order to remove bloodguilt for the deaths of Abner and Amasa

from David and his house (1 Kgs 2:31). David and his house bear moral

responsibility for their subordinate’s deed, not actionable culpability.9 The

9An analogous case is that of Rahab, who is warned by the spies that she will bear the bloodguilt

if her family ventures out of doors during the conquest of Jericho. The spies will bear it if her

family remains indoors and is not protected (Josh 2:17–20), even though neither Rahab nor the

spies deal the fatal blow.

fact that a person could be held morally responsible but legally exempt for

what he did not do is a phenomenon we would not be aware of if it were not

for narrative texts. Legal texts, by contrast, are concerned with actionable

killings, that is, with offenses for which there are legal consequences. These

are limited to certain acts of killing.

Although biblical law requires that death be the result of direct physical

assault in order for the slayer to be subject to legal action, that requirement

is not sufficient. Intent to kill is necessary as well. Exod 21:14 defines intentional

homicide as premeditated. Its cause is the direct physical act of the

killer who treacherously lies in wait. On the other hand, the cause of the

other grade of homicide signaled in Exod 21:13 is ascribed as God.10 By

attributing to God the responsibility for accidental homicide, the Covenant

Code holds the view that visible agents of the killing – implements of wood,

stone, or metal – are equally directed by the ultimate mover.11 Accidental

killing is equated with an accident without a human cause.

The emphasis in the Covenant Code is on the distinction between the

two types of homicide, one for which sanctuary is legitimate, the other

for which no place offers respite, not even an altar. The typology is based

on intentionality.

The definition of intentional and unintentional homicide is a critical issue

for the other biblical statutes on homicide in Num 35:9–34 and Deut 19:1–

13. Num 35:16–24 contains two distinct definitions of the categories of

homicide:

16 If a person strikes another with an iron tool so that [the victim]

dies, he is a murderer – the murderer shall surely be put to death. 17 If

a person strikes another with a stone tool that can kill so that the victim

dies, he is a murderer – the murderer shall surely be put to death.

18 If a person strikes another with a wooden tool that can kill so that

the victim dies, he is a murderer – the murderer shall surely be put to

death. 19 The blood avenger himself shall put the murderer to death:

whenever he meets him he shall put him to death. 20 If a person pushed

him in hatred or aimed something at him on purpose, 21 or struck

him with his hand in enmity, so the victim dies, he is a murderer –

the blood avenger shall kill him when he meets him. 22 If he pushed

10Exod 21:13 may have other parallels in ancient Near Eastern statutes. LH 266 attributes the

death of sheep to lipit ilim, “a plague (lit. a touching) of the god,” while LH 249 attributes the

death of a rented ox to a god. These phrases signify an event that has no human cause. Karel

van der Toorn notes that this phraseology emphasizes the fortuitousness of an accidental and

fatal action (Sin and Sanction, 71). Cf. Paul, Studies in the Book of the Covenant, 63–64, and

Daube, “Direct and Indirect Causation,” 255. However, the biblical usage is a radical extension

of the phrase since it refers not to an otherwise inexplicable illness but to a fatal assault directly

done by human hands. The Hittite conception, in HL 3–4, has also been radically extended in

the Bible by linking the activity of human hands to the direction of God.

11Daube, “Direct and Indirect Causation,” 255.

him suddenly without enmity or aimed an object at him unintentionally,

23 or without seeing dropped an object of stone that can kill,

so that the victim dies – though he was not his enemy and did not

seek his harm – 24 the assembly shall judge between the slayer and

the blood avenger according to these rules.

The first definition is in Num 35:16–18, which bases capital murder on

the instrument involved, an iron tool,12 a stone hand-tool of the type that

can kill, or a wooden hand-tool of the type that can kill. Against this, Num

35:20–23 introduces the idea of intent in the three examples of capital murder

it offers: shoving13 someone in enmity, hurling something on purpose, or

striking in enmity with one’s hand. Three examples of unintentional homicide

according to this typology are given in contrast.14 The killer shoved the

victim suddenly without enmity, or hurled something unintentionally, or

caused a deadly stone implement to fall upon the victim without seeing

him. Num 35:20–23 explains these examples by correlating them to the

relationship between the killer and the victim – “[the killer] was not his

enemy and did not seek his harm.” The criterion at work in verses 16–18

is fundamentally distinct from that in verses 20–23. That in verses 16–18

defines the categories of homicide formally: The extent of culpability depends

on the type of object that caused death. The criterion in verses 20–23, on

the other hand, depends on determining the state of mind of the slayer.15

12It appears that iron tools in any form are assumed to be capable of causing death. Cf. Rashi.

13The verb p-d-h signifies direct pushing in 2 Kgs 4:27 and Ezek 34:21.

14No corresponding list of unintentional homicide according to the criteria of vv. 18–20 is

offered.

15This divergence is a sign that vv. 9–34 underwent a complicated history of redaction. There

is other evidence for redactional activity. Vv. 16–18 use the term jxwr to denote someone guilty

of capital homicide, in contrast to the use of the term to denote any killer in the rest of the

chapter, vv. 11, 12, 25, 26, 27. (It is impossible to determine whether the verse in the Decalogue,

Exod 20:13, refers to any slaying or solely to intentional homicide.) In addition, the definition

of culpable homicide in vv. 20–21 is most likely interpolated material because it is encased

in aWiederaufname that may indicate interpolation and because it contradicts the definition in

vv. 16–18. Lastly, vv. 33–34 appear to be doublets: V. 33 has a parallel in the P material in Gen

9:6, while v. 34 contains H wording (cf. Knohl, The Sanctuary of Silence, 99).

I would propose the following redaction history of vv. 9–34 that takes into account the

divergent denotations of the term jxwr, the differing definitions of capital homicide, and the

doublet of vv. 33–34. First, the priority of vv. 9–14 and 24–29 seems clear. Then, a number of

additions were made. A definition of culpable homicide was added, vv. 16–19, which included

a technical term, jxwr, for capital homicide. Vv. 30–33 use jxwr to denote culpable homicide and

may belong to the same layer, but it is difficult to provide any definitive timetable for the addition

of vv. 30–33. Another definition of capital homicide was added, vv. 20–21, to the definition in

vv. 16–19. Later, a corresponding definition to vv. 20–21 of noncapital homicide and legislation

regarding the stay of the accidental homicide in the city of refuge was added, making up vv. 22–

23. Vv. 15 and 34 are additions originating from a H editor (on v. 15, cf. Knohl, The Sanctuary

of Silence, 99), but the timing of this is difficult to determine. This redaction history points to a

number of redactional layers, reflecting different historical periods and their views of evidence.

Determining intentionality lies behind both criteria. However, verses 16–18

derive it from the instrument of killing, an “objective” definition. The use

of particular instruments of deadly force presumes intent by the sheer fact

of their use. In contrast, the categories in verses 20–23 are predicated upon

a witness analyzing the occurrence.

The statute on homicide in Deut 19:1–13 utilizes a different element to

provide the understructure to a typology of unlawful deaths:

4 This is the type of slayer who may flee there and live: whoever

slays his fellow without intent and was not hostile to him in the past.

5 Whoever came with his fellow into the forest to cut wood: as his

hand swings the ax to cut down the tree, the ax-head falls off the

handle and hits the other so that he dies – that man shall flee to one

of these cities and live.

The previous relationship between the killer and the victim is now a factor.

Deuteronomy stipulates two criteria for those seeking refuge: 1) The assault

must have been done unintentionally; and 2) there must have been no malice

before the killing between the killer and his victim. Two examples, each

showing the criteria for accidental and intentional homicide, are given. In one

example, a person enters a stand of trees with another person to chop wood.

When he swings his ax to cut the wood, the ax-head flies from the handle16

and strikes his neighbor. This accidental killing incurs no culpability. The

other example given is that of the act of the culpable murderer (Deut 19:11):

11 If a person is hostile to another and lies in wait and strikes him

mortally so that he dies, and flees to one of these towns, 12 the elders

of his town shall send and take him back from there and deliver him

to the blood avenger so that he dies.

A person hates another person and prepares an ambush in order to strike

him down. These two examples show that both elements, intention and prior

malice, are necessary for capital murder according to Deuteronomic law.

The criterion of the relationship between the killer and the victim in

Deuteronomy – “this is the type of slayer who may flee there and live:

16There is confusion over the referent of $[h in the clause $[h @m lzrbh l`nw. If we connect the

word $[h in the previous clause to this one, it would appear that the text describes a case in

which the ax-head, being attached to the ax, bounced off the tree to strike the other man. In

contrast, the case where the ax-head flew off the handle should be expressed: wx[ @m lzrbh l`nw,

strictly, “the ax head flies off its wood.” However, the case of an ax-head flying off the handle

seems much more likely than the rebound from the tree. Indeed, there may be problems in

general with keeping an ax-head on its handle (cf. 2 Kgs 6:5, where one of Elisha’s miracles is to

recover an ax-head that came off its handle and fell into the Jordan River). Information on the

shape and composition of axes is available (cf. J. D. Muhly, “Metals,” in OEANE 4.1–5), but

little is known of the means of their use outside of warfare (cf. Rupert Chapman, “Weapons,”

in OEANE 5.334–339).

whoever slays his fellow without intent and was not hostile to him in the

past” – is radically different from its use in Num 35:23 – “though he was

not his enemy and did not seek his harm” – for two reasons: 1) Deut 19:4,6,

by using the adverb !`l` lmtm, “previously,” focuses on the relationship between

the victim and the killer prior to the murder, while Num 35:23 is

concentrating on the character of the relationship at the time of the murder;

and 2) Deut 19:4–5, 11–12 defines incidences of accidental slaying by this

criterion, while Num 35:23 uses the relationship as an explanation as to why

certain fatal events are not intentional.

Although few details about the use of witnesses are provided, the typologies

of homicide presume their use, and the definitions shed light on the

testimony elicited from witnesses. The formal typology in Num 35:16–18

requires them to identify the instrument of murder. The typology based on

the state of mind of the murderer in Num 35:20–23 requires the witnesses

to make judgments on the murderer’s internal motivation. The typology of

homicide in Deut 19:1–13 requires, in addition to information on the actual

crime, knowledge of events prior to the murder in order to prove prior malice

between victim and killer. This may require additional witnesses or lines

of inquiry.

Examination of matters extraneous to the act itself is not without parallel

in other legal systems. In modern France, for example, courts investigate

the personnalite of the accused: Inquiry is made into his or her personal

history and family life, schooling, work record, military service, financial

situation, leisure interests, and character traits without any restrictions as to

their influence on the criminal act itself.17

There is also a formal requirement about the number of witnesses.

Num 35:30 stipulates that the number be more than one in order to condemn

the killer:

Any killer – the murderer shall be killed on the testimony of witnesses:

a single witness shall not be sufficient for a sentence of death.

However, Num 35:9–34 does not indicate whether the killer is released without

prejudice from the city of refuge if there is only one witness. Deut 17:6

and 19:15 contain a general provision that for any transgression, two or

more witnesses are required.

Furthermore, in the adjudication of homicide, judicial action relies on the

testimony of witnesses, not on physical evidence. Witnesses may report on

the manner of killing (Exod 21:13–14; Num 35:20–23), the instrument of

killing (Num 35:16–18), or the prior relationship between the murderer and

the victim (Deut 19:4), depending on the statute. There is no indication that

17Bron McKillop, “Anatomy of a French Murder Case,” American Journal of Comparative

Law 45 (1997), 541–543, 551–554, 579–582.

the body or other physical evidence must be produced in the proceedings.18

An exception proves the rule. In Deut 21:1–9, the unknown human corpse

found with indications of foul play becomes, in lieu of witnesses, the evidence

for a murder that must be dealt with.19 Rarely does physical evidence play a

significant role in biblical law. One such instance concerns shepherds, who

must produce the remains of the animal under their care that had been

taken by a predator in order to be released from compensating the owner

(Exod 22:12).

Without witnesses, the offense cannot be remedied. An admonition

against one who commits homicide in stealth appears in a list of forbidden

acts committed in secrecy (Deut 27:24):

“Accursed is the one who strikes down another in secret,” and all the

people shall say, “Amen.”

A homicide has been committed in such a way that it is difficult to prove who

did it. The culprit cannot be apprehended and punished. By anathematizing

acts committed clandestinely, their punishment becomes God’s responsibility,

thereby discouraging would-be perpetrators who might assume that they

could escape a penalty for their transgression.20

Two other cases of killing are defined in the Book of the Covenant, but

are not included in the laws of homicide. In the course of treating theft,

Exod 22:1–2 stipulates that killing a thief who is tunneling in during the

night is justifiable homicide, while killing him during the day is not and

incurs bloodguilt. The issue at hand is that at night in the dark, the thief’s

intention cannot be determined. He has illegally entered a home, and whether

he intends to steal or to kill cannot be easily determined. The presumption

is the worst-case scenario – that he is trying to kill someone. During the day,

it can be seen that he is just a thief, not a killer.

Intention is also a factor in holding the master of a slave culpable for the

slave’s death. According to Exod 21:20–21, the deciding factor is the time in

which the slave’s death occurs. If it is immediately upon a beating, the master

is punished. If the slave lingers for a day or two before dying, the master is not

punished. What lies behind this distinction is determining the intention of the

master. If the slave dies immediately, the master appears to have intended

his death. If the slave lingers, the master’s intention becomes murky and,

therefore, the principle that takes precedence is the master’s ownership of

the slave and his right to impose discipline on that slave.

18Victor H. Matthews and Don C. Benjamin, Social World of Ancient Israel, 1250587 BCE

(Peabody, Massachusetts: Hendrickson, 1993), 129.

19The showing of the tattered remains of Joseph’s embroidered tunic to Jacob by his sons

reflects, to a certain extent, this exception (Gen 37:32–33).

20Tigay, Deuteronomy, 253.

Narrative also recognizes that intention is critical. In 1 Kgs 3:16–27,

the two prostitutes appeal to King Solomon because one killed her child by

lying on him. However, there is no hint that the mother who killed her son

was considered culpable or responsible. Apparently, the killing of the child

was not actionable because there was an element of lack of human intent:

Certainly, the mother did not intend to kill her child.21 Moreover, there was

nothing inherently dangerous in her act: She did not swing an ax or other

dangerous implement that could kill if used in a hostile manner. Accidental

homicide covers acts that the actor should have known could potentially

cause harm.

The biblical legal texts clearly express an anxiety over articulating a distinction

between intentional and accidental homicide. They are trying to

provide concrete illustrations of the distinction. The best proof of this is to

compare the biblical statutes to those of the rest of the ancient Near East.

The cuneiform law collections fail to provide criteria for determining

whether a slaying was intentional or accidental. In general, they lack information

on the procedures set into motion when a homicide occurred. How

was it determined that a homicide in fact occurred? How was the identity

of the killer ascertained? How was the killer apprehended? These matters

are ignored.22

Only the statutes in the Laws of Hammurapi provide some insight into

how a case might have been initiated. LH 1 is the first in an introductory

series of laws on procedure and addresses an unsubstantiated accusation of

homicide. According to LH 1, a private person can lay a charge of homicide

against another person.23 The relationship of this private citizen to the

21Daube, “Direct and Indirect Causation,” 256–257.

22In general, archaic codes, whether Eastern orWestern, lack provisions on procedure. Cf. F. L.

Attenborough, The Laws of the Earliest English Kings (Cambridge: Cambridge University Press,

1922), and Wallace Johnson, The Tang Code (Vol. 2; Princeton Library of Asian Translations;

Princeton: Princeton University Press, 1997).

23Roth argues that the first and last statutes in LH are intended to bear a political message for

Hammurapi’s vassals, as do the prologue and epilogue (“Mesopotamian Legal Traditions and

the Laws of Hammurabi,” Chicago-Kent Law Review 71 [1995], 18–19). Both LH 1 and 282

deal with verbal utterances that are not substantiated. LH 1, punishing a false accusation of

murder, translated into the political realm is equivalent to a warning about treasonous utterances,

especially as it follows the glorification of Hammurapi’s military power in the preamble.

LH 282, punishing a slave’s denial of his subservience to his master, would be understood as

rebellion, especially in light of the curses against anyone who would disrespect the stela in the

epilogue. Roth argues that these two statutes, in conjunction with the rest of the composition,

were intended to reinforce Hammurapi’s superior position and to remind his contemporaries

of the consequences of treasonous and rebellious behavior. It seems to me that this hypothesis

fits LH 1 better than it fits LH 282. LH 1 and the three following provisions all mandate the

remedy for unsubstantiated charges in the legal arena. This would seem to reinforce a message

to vassals to cease political jockeying among themselves, rather than be disloyal to their overlord.

Roth herself notes that the political message was certainly not the sole message conveyed

by the placement of these particular statutes.

victim is unstated. There was no public official who held the responsibility

of charging a person on behalf of a private citizen, nor was the right to

make such an accusation limited to the victim’s family. What happens in the

rest of the process is omitted. For example, the critical role of the crown,

so pronounced in the other Mesopotamian documents we have analyzed in

Chapter Two, is simply not mentioned explicitly. It may be implicitly assumed

in the ascription of so many of the law collections – LL, LU, LH, and

the Edict of Telepinus – to kings.

To be sure, the adjudication of homicide was considered important elsewhere

in the ancient Near East. Six out of seven law collections contain

statutes on homicide. Homicide provisions were placed at the beginning of

law collections, and what is striking is that all but one of the cuneiform law

collections for which the beginning of the statute section is preserved start

with a statute on some aspect of homicide, whether a general rule, a rule

about a specific type, or a matter of legal procedure.24

The first statute in the Laws of Ur-Nammu:

LU 1

If a man commits a homicide, they shall kill that man.

The first statute in the Hittite Laws:

HL 1

[If] anyone kills [a man] or a woman in a [quarr]el, he shall [bring him]

[for burial] and give 4 persons [lit. heads], male or female respectively,

and he shall look [to his house for it.]

The first statute in the Laws of Hammurapi:

LH 1

If a man accuses another man and charges him with homicide but

then cannot bring proof against him, his accuser shall be killed.

A homicide statute is placed at the beginning of the Laws of Ur-Nammu, the

Laws of Hammurapi, and the Hittite Laws, but not the Laws of Eshnunna.25

With regard to the Laws of Lipit-Ishtar, unfortunately, there is a sizable

gap between the preamble and statute section. Indeed, the beginning of the

statute section of LL is missing and, therefore, we cannot know whether

LL commenced with a statute on homicide.26 Homicide as the first item

24Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (contribution by Harry

A. Hoffner, Jr.; SBLWritings from the AncientWorld Series; Atlanta: Scholars Press, 1995), 72.

25LE contains other differences from the other law codes, such as the lack of an apologetic

preamble, and may originate in another literary tradition, that of the m¯ıˇsarum edict, which has

been welded to that of the codes. See J. J. Finkelstein, “Ammis.aduqa’s Edict and the Babylonian

‘Law Codes,’” JCS 15 (1961), 102.

26No statute regarding homicide appears at the beginning of the Middle Assyrian Laws (MAL).

However, MAL do not appear to be a unified collection of statutes.

demonstrates the importance of statutes against homicide. It also seems to

be part of the style of the law collections.

The law collections share other stylistic elements: The remedy for the

killing of free persons is equally likely to be either compensation or execution,

depending on the circumstances, but there is striking uniformity across the

law collections for particular groups of cases. Thus, a fine is the remedy for

unintended death caused in the course of an assault, such as a miscarriage or

a death caused by an animal. However, this uniformity is not necessarily the

case within a single code. For example, the penalties in LH for similar cases

are not congruent. The circumstances in LH 207, the death of a member of

the free class from an assault, have an affinity to the circumstances in which

a pregnant woman of the free class dies from an assault (LH 210):

If [a free man] dies from his beating, he shall also swear [“I did not

strike him intentionally”]. If [the victim] is a member of the free class,

he shall pay 30 shekels of silver.

If [a free man strikes a woman of the free class and] that woman dies,

they shall kill his daughter.

The penalties in these similar cases are different: A fine is mandated in the

first case, while in the second case, an execution is prescribed. This is so

because death caused in the course of a brawl is punished by a fine in other

law collections, while the remedy for the death of a pregnant woman is

capital punishment, as is reflected in other law collections.27

The cuneiform law collections draw a distinction between intentionality

and unintentionality on the part of the offender in a number of related cases.

LE 47A is located at the conclusion of a series of statutes on bodily injuries

and mandates a fine for a death occurring during a risbatum, “a brawl.”

The term risbatum is the third of three terms mentioned in these provisions,

the other terms being su—qum,28 literally “street” (LE 44), and sˇigisˇtum, “a

fight” (LE 47). These terms specify the circumstances in which the injury

27There may be a discernible reason for this difference: In LH 207, the accused swears that he

did not do the action intentionally. Nothing like this is noted in LH 210.

28The reading here is difficult. Rykle Borger (“Der Codex Eschnunna,” in Rechts- und

Wirtschaftsurkunden Historisch-chronologische Texte [Texte aus der Umwelt des Alten Testament,

Band 1/1; Gu¨ tersloh: Gu¨ tersloher Verlagshaus Gerd Mohn, 1982], 20), and CAD

S, 70, s.v. saka—pu, read ina su—qim. In his original publication, Emile Szlechter restores it to

ina [s. a-al-tim], “in the course of a fight” (Les lois dEshnunna [Publications de l’Institut de

Droit Romain de l’Universit´e de Paris 12; Paris: Centre Nationale de la Recherche Scientifique,

1954], 28), but rereads it as [i]k-l[u-i-tim], “in darkness,” omitting ina, in his 1978 publication

(“Les lois d’Eshnunna,” RIDA 25 [1978], 138). This reading is also held by Landsberger,

“Jungfraulichkeit,” 101. Albrecht Goetze suggests that from the context, the missing

signs should indicate something along the lines of “altercation,” The Laws of Eshnunna (New

Haven, Connecticut: American Schools of Oriental Research, 1956), 120.

was inflicted, factors that mitigate or aggravate the culpability of the guilty

party.29 LE 44 indicates that the injuries treated in LE 44–46 occurred while

the victim was passing by innocently on the street. LE 47 indicates that an

injury took place in a ˇsigiˇstum, “a fight.” The injured was himself involved

in aggressive behavior, and therefore his injury merits a lesser penalty, only

ten shekels, in comparison to the fines ranging from twenty to thirty shekels

in LE 44–46. By contrast, LE 47A specifies that injuries resulting in death

took place in a risbatum, “a brawl:”

44

If a man knocks down another in the street and breaks his hand, he

shall weigh out 30 shekels of silver.

45

If he should break his foot, he shall weigh out 30 shekels of silver.

46

If a man strikes another man and breaks his collarbone, he shall weigh

out 20 shekels of silver.

47

If a man should injure [?] another man in the course of a fight, he

shall weigh out 10 shekels of silver.

47A

If a man in a brawl caused the death of a member of the aw¯ılu[free]-

class, he shall weigh out 40 shekels of silver.

These statutes allude to the mitigating circumstance – the injury indirectly

resulted in the victim’s death. LE 47A goes beyond the other statutes, 44–47,

on bodily injuries since it treats a category of killing. However, the lack of

intention to cause death in the case dealt with in 47A has affinities to the

cases of injuries addressed in statutes 44–47.

Other statutes use similar logic to associate accidental homicide to injuries

incurred in the course of a brawl, LH 207–208 treat death during a

brawl immediately after the statutes on bodily injuries, LH 206:

206

If a free man has struck another man in a brawl and has injured him,

that man shall swear, “I did not strike him intentionally.” He shall

satisfy [i.e., pay] the physician.

207

If [a free man] dies from his beating, he shall also swear [“I did not

strike him intentionally”]. If [the victim] is a member of the free class,

he shall pay 30 shekels of silver.

29Roth, “On LE 46–47A,” NABU 3 (1990), 70.

If [the victim] is a member of the client/common class, he shall pay

20 shekels of silver.

LH 206 provides the rule for an injury incurred without premeditation. The

offender must pay the victim’s medical expenses. LH 207–208 indicate that

if the injury resulted in death, the compensation is thirty shekels if the victim

is a free man and twenty shekels if he is a dependent/commoner.

Three types of cases involving negligence are presented in cuneiform law

collections. A mistake by a physician is found in LH 218, the fatal attack of

a goring ox is found in LH 250–253 and LE 53–55, and the miscarriage of a

pregnant woman caused by an assault is found in LH 209–214, SLEx 1_–2_,

LI d–f, MAL A 21, 50–52, and HL 17–18.

LH 218 mandates that if a patient dies at a physician’s hands, the hand

of the physician is cut off:

If a physician performs major surgery with a bronze lancet upon a

free man and causes the free man’s death or opens a free man’s temple

with a bronze lancet and blinds the free man’s eye, they shall cut off

his hand.

This type of negligence is mentioned only in the Laws of Hammurapi.

The statutes on the goring ox assume that liability for the death of a

human being30 is operative only when the ox is known to be a habitual

gorer whose behavior had already warranted a formal warning by the ward

authorities. If an ox who has never gored previously kills, no legal action, it

is implied, can be taken against the owner.

The Laws of Eshnunna:

53

If an ox gored [another] ox and killed it, both [ox owners] shall divide

the value of the live ox and the carcass of the dead ox.

54–55

If an ox [was] a gorer and the ward [authorities] have had [it] made

known to its owner, but he did not guard his ox and it gored a man

and killed [him], the owner of the ox shall weigh out 40 shekels of

silver.

If it gored a slave and killed [him], he shall weigh out 15 shekels of

silver.

30Although it may appear that LE presents ambivalent rules on the necessity of intention on

the part of the responsible party – in LE 53, the owner of the ox has absolute liability, while in

LE 54–58, the owner has been warned of the danger posed by his possession – this is not so.

LE 53 applies to the death of another ox, when one ox causes the death of another ox, not a

human being.

The Laws of Hammurapi:

250

If an ox gores a free man to death while it is passing through the

streets, that case has no basis for a claim.

251

If a free man’s ox is a known gorer and the authorities of his city

quarter notify him but he does not pad[?] its horns or control his ox

and that ox gores to death a member of the free class, he shall give

30 shekels of silver.

252

If it is a free man’s slave, he shall give 20 shekels of silver.

The statutes in LE on the goring ox are accompanied by rules on analogous

cases, death caused by an aggressive dog (LE 56–57) and a tottering

wall (LE 58). In all of these, liability is dependent on a formal warning of

the dangerous circumstances to the owner, and the statutes provide for the

remedy when the duly forewarned owner did not take precautions. The formal

warning by the ward authorities obviates any claim by the owner that

he was unaware of the danger.

The case of the aggressive dog31 occurs only in LE, but it does not appear

to be substantially different from the case of the vicious ox, and so it is placed

next to the statute on the goring ox:

56–57

If a dog [was] aggressive and the ward [authorities] have had [it] made

known to its owner, but he did not guard his dog and it bit a man and

31The rendering of kalbum sˇeguˆm has been debated. The lexica are self-contradictory: AHw/I,

424b, and CAD N/ii, 54a, render sˇeguˆm as “rasend, tollwu¨ tig,” (“rabid, mad”), while AHw/III,

1208b, translates it as “aggressiv,” (“wild, aggressive,”) and CAD K, 69a, renders it as “vicious.”

CAD /II 260b refers to two meanings, listing “to rage, be rabid” under the G-stem

and “to become rabid” as the ingressive to the G-stem. G. R. Driver argues for the rendering

of kalbum ˇsegum as “rabid dog” because the statute specifies that the victim dies: While a

person bitten by a vicious dog might on occasion die from his wounds, the victim of a rabid

dog would certainly die (“Review of R. Yaron, The Laws of Eshnunna,” Journal of the Royal

Asiatic Society [1972], 57). However, Yaron argues that a rabid dog would be immediately

destroyed and not be kept for any reason (The Laws of Eshnunna2, 300). If, in fact, LE 56–57

were treating the situation of a rabid dog, they would represent a radically different situation

from that of LE 54–55, which, as noted, would fail to explain the same penalties in LE 54–55

and in 56–57. An aggressive ox in the habit of goring, if kept under control, is still of use, but a

rabid dog would serve no useful purpose. Furthermore, while there are numerous incantations

against dog bites in which the dog is described as having spittle dripping from its mouth, which

is a sign of rabies, the only one that instructs the dog to be taken into confinement does not

describe it as rabid (this incantation is found in M. Sigrist, “On the Bite of a Dog,” in Love and

Death in the Ancient Near East: Essays in Honor of Marvin H. Pope [ed. John H. Marks and

Robert M. Good; Guilford, Connecticut: Four Quarters Press, 1987], 85). It is clear, then, that

the adjective sˇeguˆm means “wild, aggressive.”

caused [him] to die, the owner of the dog shall weigh out 40 shekels

of silver.

If it gored a slave and caused him to die, he shall weigh out 15 shekels

of silver.

This is not a series of situations of increasing gravity.32 The case of the

aggressive dog is not more dangerous than that of the goring ox, and the

penalties are of the same gravity.33

LE 58 addresses another case that is not mentioned in the other collections,

death caused by the collapse of a tottering wall:

If a wall was about to fall and the ward authorities have made it

known to the owner of the wall but he did not reinforce his wall and

the wall collapsed and killed a member of the aw¯ılu [free] class, it is

a case concerning life – it is a decree of the king.

Comparing this statute to ones in LH (such as 229–233) that deal with

collapsed structures is instructive. The statutes in LH ascribe the death to

shoddy workmanship and the responsibility to the builder. By contrast, LE

58 addresses the responsibility of the owner for the upkeep of his property,

an issue in consonance with LE’s laws on the goring ox and aggressive dog.

In contrast to the other provisions on negligence next to which it is placed,

LE 58 treats an offense that is specifically and explicitly denoted as a capital

case. What differentiates this case from the others? It has been suggested

that a legal principle is at work. For Albrecht Goetze, this principle is that

of predictability.34 The common element in the cases of a vicious animal is

that its behavior, whether an ox or dog, is unpredictable, whereas the danger

incurred by a sagging wall is always predictable – a sagging wall will collapse.

The owner should have known to repair the wall and, therefore, the more

severe punishment is warranted. Goetze’s principle, however, does not fit the

situation envisioned: The statutes on the ox and dog refer to an animal whose

owner has already received a warning about its previously demonstrated bad

temper because the dangerous behavior exhibited by the animal is likely to

recur.35 Richard Haase attempts to salvage Goetze’s theory by focusing on

the responsibility the victim holds for his own injury: He argues that a person

32Finkelstein, The Ox That Gored, 22.

33Yaron, The Laws of Eshnunna2, 302.

34Goetze, The Laws of Eshnunna, 140.

35Dieter No¨ rr followed a similar line of reasoning to that of Goetze and argued that there is

a difference in the level of the owner’s responsibility between LE 54–57 and LE 58, which can

account for the difference in penalties (“Zum Schuldgedanken im altbabylonischen Strassrecht,”

ZSS 75 [1958], 11–13). An animal has a will of its own, which an owner can curb but not

excise. An animal to an extent is independent of its owner. The owner’s responsibility for the

consequences of the animal’s action is, therefore, lessened. However, the situation articulated

in the statute emphasizes that the owner has been reminded of his responsibility.

would know to avoid animals owned by others.36 According to Haase, then,

the victim in the situations treated in LE 54–57 would have contributed to

his own demise by his lack of care. In contrast, a sagging wall might be a less

obvious danger. A serious objection can be raised against Haase’s viewpoint.

An aggressive animal may come upon a person suddenly: No precautions

he could have undertaken would have prevented the tragedy.37 In contrast,

the location of a dangerous wall is stationary. If such a wall comes to the

knowledge of the local authorities, it is probably well known in the area. It is

probable that it even looks unstable. The person who still passes underneath

it has contributed through lack of care to his own death. A sagging wall is a

predictable danger.

Yaron adds another explanation for the difference in sanction in LE 58.

He contends that the difference is due to the origin of LE 58. LE 58 refers to

s.

imdat ˇsarrim, “a decree of the king.” Yaron argues that this phrase indicates

that the source of this particular ruling is a decree of the king in a specific

case.38 This concurs with the use of the phrase in other Akkadian texts: It

refers to specific decrees already issued.39 By the use of this phrase, this statute

shows that it incorporates an actual ruling, perhaps handed down after a

particularly egregious case. The fact that the penalty, capital punishment, is

out of proportion to its neighboring cases, LE 54–57, is due to the prerogative

of the monarch.

The laws on another variety of negligence, striking a pregnant woman,

are found in LL d–f, SLEx 1_–2_, LH 209–214, and HL 17–18:

LL d–f

If [a . . . ] strikes the daughter of a man and causes her to lose her fetus,

he shall weigh and deliver 30 shekels of silver. If she dies, that male

shall be killed.

If a . . . strikes the slave woman of a man and causes her to lose her

fetus, he shall weigh and deliver 5 shekels of silver.

SLEx 1_–2_

If he jostles the daughter of a man and causes her to miscarry her

fetus, he shall weigh and deliver 10 shekels of silver.

If he strikes the daughter of a man and causes her to miscarry her

fetus, he shall weigh and deliver 20 shekels of silver.

36Haase, “Die Behandlungen von Tiersch ¨aden in den Keilschriftrechten,” RIDA 14 (1967), 51.

37ARM III 18:15f reads: k¯ıma kalbim ˇsegˆem aˇsar inaˇsˇsaku ul idi, “like an aggressive dog, where

he will bite I do not know.” It is in the nature of an aggressive dog that it bites unexpectedly.

38Yaron, The Laws of Eshnunna2, 302–303.

39Cf. Maria deJ. Ellis, “Taxation in Ancient Mesopotamia: The History of the Term miksu,” JCS

26 (1974), 215. This phrase does not refer to the transfer of a case to the king’s court, as some

would render it. Cf. CAD S.

, 194–196, and G. R. Driver and John C. Miles, The Babylonian

Laws (Ancient Codes and Laws of the Near East; Oxford: Clarendon, 1952), 1.17–20.

LH 209–214

209

If a free man strikes a woman of the free class and causes her to

miscarry her fetus, he shall pay 10 shekels of silver for her fetus.

210

If that woman dies, they shall kill his daughter.

211

If he causes a woman of the client/common class to miscarry her fetus

by the beating, he shall pay 5 shekels of silver.

212

If that woman dies, he shall pay 30 shekels of silver.

213

If he strikes a free man’s slave woman and causes her to miscarry her

fetus, he shall pay 2 shekels of silver.

214

If that slave woman dies, he shall pay 20 shekels of silver.

HL 17–18

17

If anyone causes a free woman to miscarry, [if] it is in her tenth

month,40 he shall pay 10 shekels of silver; if it is her fifth month, he

shall pay 5 shekels of silver. He shall look to his house for it.

Late version of 17

If anyone causes a free woman to miscarry, he shall pay 20 shekels of

silver.

18

If anyone causes a female slave to miscarry, if it is her tenth month,

he shall pay 5 shekels of silver.

Late version of 18

If anyone causes a female slave to miscarry, he shall pay 10 shekels

of silver.

SLEx 1_–2_ make a distinction between involuntarily jostling a pregnant

woman and striking her intentionally. BothLH209–214 and LL d–f mandate

different remedies based on the consequence to the person injured, whether

she suffers miscarriage or death, as well as on social status. The consequences

are independent of the intention of the offending party. A particular woman

may survive a miscarriage, while another woman, having less robust health

40The nine months of pregnancy would be counted in ten calendrical months.

or just bad luck, may not. The offender is at fault, even though his action is

just one of a number of factors leading to the bad outcome. There is a distinction

between fault and cause, but this is of little import to the accidental

killer, who must pay in all events.

In general, the presentation of the process by which homicide is adjudicated

in the cuneiform law collections is sketchy.41 If we compare the

elements that can be adduced from legal records analyzed in Chapter Two,

such as the role of the crown, the activities of the involved parties, and the

possibility of negotiation in a settlement, elements necessary in the remedy

of actual cases, the law collections contain serious omissions. Only certain

situations, such as negligence or death of a slave in contrast to a free person,

are addressed. Other situations are not treated at all. Moreover, important

variants to cases are omitted. Why is this so? Two theories, both involving

literary considerations, can account for these characteristics of cuneiform

law collections. The first is based on the development of a scribal tradition:

Certain cases and punishments are standardized. The second explanation

stems from the principles of composition of the cuneiform laws. The paucity

of detail is due to the manner in which the statutes are used within the

structure of the texts as a whole. These two postulates operate together.

Any theory must explain the striking fact that cuneiform law collections

share a great deal of material. A number of cases occur again and again.

Thus, the cases of the goring ox, the pregnant woman being injured, and

assault unintentionally leading to death all appear in a number of texts.

Other cases dealing with other matters also appear again and again. Five

characteristics of these shared cases must be taken into account:

1. There are statutes whose wording is exactly or nearly exactly the same

in a number of law collections.42

41Cf. Barry Eichler, “Murder” [Hebrew], Encyclopaedia Miqrait, 7.420–429. The exception

to this is HL 1–6, which devotes attention to the social status, gender, and age of both the victim

and the perpetrator and to the conditions under which the homicide occurred. These provisions

systematically treat intentional and accidental homicide of and by free men and women and

male and female slaves, in Hatti, nearby lands with ties to Hatti, and remote lands without

diplomatic connections to Hatti, both when the slayer has been identified and when he has not.

However, the acts that constitute intentional and accidental homicide are not defined in these

statutes. Other statutes in HL provide examples of intentional homicide, whose penalties are

drastically different from the ones provided in HL 1–6. Thus, HL 43 mandates that if a man,

while crossing a river holding his ox’s tail, is pushed off the tail by another and drowns, the

deceased man’s heirs claim the other person as a slave. HL 44a provides that if a man pushes

another person into a fire so that the other person dies, he must give up his son as punishment.

These penalties in which the perpetrator or his son is enslaved differ from the penalties in HL

1–4. Although HL 1–4 mandate payment in persons, it is not required that the perpetrator or

his son themselves be enslaved. Cf. Hoffner, “On Homicide in Hittite Law,” 294, 306–312.

42Provisions on unlawful death: LL d, e, f // (are parallel to) LH 209, 210, 213. Provisions on

other issues: LL 9 // LE 12; LE 13 // LH 21 // HL 93; LL 10 // LH 59. The examples of parallels

for other topics are far from exhaustive.

2. There are statutes whose content is nearly the same but whose wording

is substantially different in a number of law collections.43

3. There are statutes addressing the same topic but whose content is substantially

different.44

4. The order of the parallel statutes is the same in a number of law collections.

45

5. The order of the parallel statutes is the same in two law collections but

is different in a number of law collections.46

These characteristics are not limited to the statutes on unlawful death but

apply across the board to statutes treating a variety of cases.

What can account for these phenomena? The issue of the goring ox is

instructive. Each code contains one case about this issue not treated in the

other. LE 53 deals with the case of an ox goring another ox, a case not addressed

in LH. LH 250 deals with an ox not known as a gorer that does

in fact gore a human being, a case not dealt with in LE. Both LE 54–55

and LH 251–252 treat the ox that is a serial gorer; the ward authorities

notified the owner, but the owner has failed to take the necessary precautions.

Although the circumstances are the same, the wording of the statutes

is not the same. The penalties are different: sixty shekels for the free person

in LE and thirty shekels in LH, fifteen shekels for a slave in LE and

twenty shekels in LH. The relationship between the statutes cannot, therefore,

be an act of simple word-for-word copying. Rather, in my opinion, it

appears to be generated from a scribal tradition in which certain types of

cases make up the repertoire, but the author composes his own variations on

the theme.

The existence of a scribal tradition was made possible by the fact that law

collections were known to later generations. The tablets that make up the

LU do not date from the Third Dynasty of Ur; they are from a later period.

One tablet is from Nippur and was inscribed in the time of Hammurapi.47

LH became a didactic composition copied in schools and scribal centers

for over a thousand years. Copies of LH have been excavated in Ur, Larsa,

43Provisions on unlawful death: LL 24 // LH 167. Statutes on other issues: LL 28 // LH 148;

LL 29 // LH 160 // LE 25 // LU 15; LE 26 // LH 130 // MAL A 12; LE 28 // LH 129 // MAL A

15 // HL 197–198.

44Statutes on homicide: LU 1 // LH 1 // HL 2; LU 3 // LE 22–24 // LH 114–116; LI d, e, f //

SLEx 1_–2_. Statutes on other issues: LL 25 // LH 170–171; LL 31 // LH 105; LU 18–22 // LE

42–46 // LH 196–201 // HL 7, 11–16.

45Statutes on unlawful death: LL d, e, f // LH 209, 210, 213; LE 53–55 // LH 250–252. Statutes

on other issues: LL 24–25 // LH 167, 170–171; LL 31–32 // 165–166.

46LU 19, 20, 22 // LE 36, 42 // HL 12, 13, 7 // LH 197, 201; LU 18–22 // LE 42–46 // LH

196–201 // HL 7, 11–16; LL 24–27 // LOx 3, 1, 2, 4 // LH 247–248; LE 26–30 // LH 130, 128,

129, 135, 136.

47S. N. Kramer, “Ur-Nammu Law Code,” Or 23 (1954), 40.

Nippur, Sippar, Babylon, Borsippa, Assur, Nineveh, and Susa. Texts of the

complete LH as well as epitomes of LH, commentaries on LH, and even

a bilingual Sumerian-Akkadian extract have been found. Some were made

contemporary to Hammurapi. Others were drafted a millennium later. MAL

are found in a group of tablets most of which are eleventh-century b.c.e.

copies of fourteenth-century originals.48 These tablets were excavated at the

Assyrian capital Assur. Only one tablet, MAL A, contains an exact date: It

contains a date formula referring to the eponymy of Sagiu, an official during

the reign of Tiglath-Pileser I, who ruled from 1114 to 1076.49 It is debated

whether these tablets were intended for Tiglath-Pileser’s royal library50 or for

the personal library of later scribes.51 It is striking to consider what remained

the same in these law collections despite the variety of social, linguistic,

ethnic, economic, and political changes during the span of two millennia.

Certain topics were to be treated, others omitted. Each law code contained

some but not a great deal of variation. (MAL is the exception, and it appears

not to be part of this scribal tradition.)52

The second reason for the sketchiness in the treatment of homicide is due

to the principles of literary composition used.Within the law collections as a

whole, there appear to be topical groupings. Certain legal cases appear to be

bridges between these groupings. Within a single grouping, two principles

48Roth, Law Collections, 154.

49H. Freydank dates this official to the reign of Ninurta-apil-ekur, who ruled from 1191 to

1179 (“Fernhandel und Warenpreise nach einer mittelassyrische Urkunde des 12 Jahrhunderts

v.u.Z,” in Societies and Languages of the Ancient Near East: Studies in Honor of I. M. Diakonoff

[Warminster, U.K.: Aris & Phillips, 1982], 66).

50Ernst F. Weidner, “Die Bibliothek Tiglatpilesers I,” AfO 16 (1952), 197–215.

51W. G. Lambert, “Tukulti-Ninurta I and the Assyrian King List,” Iraq 38 (1976), 85–86 n. 2.

52It must be noted that the Middle Assyrian Laws look different from the others in that the

twenty-odd tablets that contain them do not constitute a single document. Furthermore, the

unusual composition of a tablet, such as Tablet A, which deals with various offenses committed

by or against women, militates against the fact that a tablet could be a section of a larger corpus,

since these offenses would have to be treated again with respect to other persons. Because of

these characteristics, Paul Koschaker argues that Tablet A of the Middle Assyrian Laws, at least,

is in fact the product of a jurist who has supplemented an earlier text with additional laws on a

particular subject and explanations for his private use, and is not the product of a legislator who

has amended and redrafted earlier laws for practical use as enactments (Quellenkritische Untersuchungen

zu den altassyrischen Gesetzen [Mitteilungen der Vorderasiatisch-aegyptischen

Gesellschaft 26; Leipzig: J. C. Hinrichs, 1921], 79–84). Koschaker calls the Middle Assyrian

Laws a Rechtsbuch, comparing it to the Digest of Justinian. Additional evidence for Koschaker’s

position is found in the repetition in MAL O of some but not all of the provisions in MAL B.

Furthermore, although he restricts his remarks to Tablet A, it does apply to the other tablets,

which consist of statutes treating a particular subject, as if the intent of the scribe was to collect

various rulings on that subject. For example, just as MAL A deals with women as perpetrators

or victims in a wide variety of situations – ranging from theft, blasphemy, bailment, assault and

battery, sexual assault and sexual offenses, homicide, false accusations, inheritance, and marriage

and marital property to veiling, witchcraft, pledges and debts, and abortion – MAL B

deals with land issues involving inheritance as well as agriculture and irrigation.

of arrangement appear to be operative.53 One is the placement side by side

of a group of cases in which the variants are maximal.54 These polar cases

provide a clear statement of the just laws in extreme cases but leave a gray

area in the middle where some but not all the criteria are fulfilled.55 The

other principle of arrangement in cuneiform law collections is the creation

of a legal statement by the juxtaposition of one legal case with another. The

relationship between one case and its neighbor creates the context in which

the cases ought to be understood.

LE can illustrate the use of these principles vis- ` a-vis the statutes on unlawful

death (LE 23–24, 47A, 54–58). LE 22–24 discuss the laws of distraint,

a case in which a loan has fallen due and the creditor has distrained a person

from the debtor’s household:

If a man had no claim against a free man yet distrained the man’s

slave woman, the owner of the slave woman will swear by a god,

“You have no claim upon me,” and he shall weigh out as much silver

as the value[?] of the slave woman

If a man had no claim against a free man yet distrained the man’s

slave woman, detained the distrainee in his house, and caused [her]

to die, he shall replace 2 slave women to the owner of the slave.

24

If he had no claim against him yet distrained the wife of a commoner/

dependent or the son of a commoner/dependent, detained the

distrainee in his house, and caused him/her to die, it is a case of life;

the distrainer who distrained shall die.

The first case, LE 22, deals with illegal distraint in which the distrainee is

not harmed. The second and third cases, LE 23–24, treat illegal distraint in

which the creditor has caused the death of the distrainee. LE 23 discusses the

detention of a slave belonging to a member of the aw¯ılu (free) class, whereas

LE 24 treats the detention of a member of the muˇsk—enu class. If the deceased

distrainee is a slave, the statute prescribes compensation; if the deceased

distrainee is a member of the debtor’s family, the distrainor suffers capital

punishment. The cases in the middle, such as illegal distraint in which the

53Barry L. Eichler, “Literary Structure in the Laws of Eshnunna,” in Language, Literature, and

History, 71–72.

54Besides Eichler in his article, this is also discussed by J. J. Finkelstein, “Sex Offenses in Sumerian

Law,” JAOS 86 (1966), 368, and Kraus, “Ein zentrales Problem des altmesopotamischen

Rechtes,” 286.

55This principle of arrangement is significantly different from that of other legal texts. For

example, a chapter of Mishnah appears to be intentionally arranged in such a way as to explore

the gray areas in the middle, where the variations between cases are minimal.

creditor has injured but not killed the distrainee or illegal distraint in which

the creditor has detained a person of the aw¯ılu class, are neglected.

LE 22–24 act as a bridge combining elements of the previous series of

laws with elements of the next series of laws, linking the laws of contract

with the laws of marriage.56 LE 22–24 focus on the unlawful deprivation of

one’s rights over another because of a claim of an unpaid loan. LE 22–24 are

located at the conclusion of a grouping of legal cases: LE 14–21 deal with

financial obligations, such as contracts, loans, and interest payments, while

the laws that follow, LE 25–30, deal with a person’s legal rights over another

person through the relationships of betrothal and marriage. Because LE 22–

24 act as a bridge, they include elements that serve as linkages: financial

obligations and one person’s legal rights over another. Other information

is superfluous. In contrast, the parallel laws in LH, 115–116, treat lawful

detention because they are embedded in a series dealing with financial obligations

and repayments, 112–119.

LE 47A acts as an extreme case indicating how far bodily injury can

be taken before it becomes a capital offense. It appears at the penultimate

position in the series of laws on bodily injuries incurring fines, LE 42–47.

The following statute, LE 48, acts as a summary statement making explicit a

distinction between cases that incur a fine, which are adjudicated by judges,

and capital cases, which are decided by the king:

44

If a man knocks down another in the street and breaks his hand, he

shall weigh out 30 shekels of silver.

45

If he should break his foot, he shall weigh out 30 shekels of silver.

46

If a man strikes another man and breaks his collarbone, he shall weigh

out 20 shekels of silver.

47

If a man should injure [?] another man in the course of a fight, he

shall weigh out 10 shekels of silver.

47A

If a man in a brawl caused the death of a member of the aw¯ılu [free]

class, he shall weigh out 40 shekels of silver.

48

And for a case involving a fine of silver ranging from 20 shekels to

60 shekels, the judges shall determine the judgment against him. A

capital case is for the king only.

56Eichler, “Literary Structure in the Laws of Eshnunna,” 78.

LE 47A serves as the maximal variant and, as such, requires the inclusion of

material pertinent to the extreme situation and the exclusion of extraneous

material.

LE 53 in the context of LE 54 deals with an ox whose vicious disposition

was not known before:

53

If an ox gored [another] ox and killed it, both [ox owners] shall divide

the value of the live ox and the carcass of the dead ox.

54

If an ox [was] a gorer and the ward [authorities] have had [it] made

known to its owner, but he did not guard his ox and it gored a man

and killed [him], the owner of the ox shall weigh out 40 shekels of

silver.

LE 54 presents the polar opposite of the ox in LE 53. The ox of LE 54

is an ox whose vicious disposition was so well known as to be known to

the ward authorities. They, in turn, warned the owner, who in spite of the

warning did not restrain his ox. The muddy middle is not touched, that is,

the case of a vicious ox that breaks out of his enclosure or who leaves his

enclosure after thieves have destroyed part of the fence. In these latter cases,

the responsibility of the owner is less certain because he has restrained his

ox. Unfortunately, because of circumstances beyond his control, the ox gets

free and causes damage.

Literary structuring can, thus, account for the omission of critical variants

in much of the Mesopotamian material. The scribal tradition that informs

the genre of cuneiform law collections provides the types of cases. Each code

contains improvisations on these types.

If we compare the Mesopotamian law collections to the legal records

from Mesopotamia, the contrast between them is striking: The content of

legal records is far more varied. This is so for two reasons. The legal records

are directly linked to the details of individual cases. Furthermore, they are

not part of a single literary tradition, which constrains variations to a great

degree.

Legal documents, legal records, letters, and treaties are clearly related to

actual practice, to what was in fact undertaken in the case of homicide. But

when we turn to the so-called cuneiform law collections, their relationship to

real cases is not so clear, and, in fact, is a subject of great debate. Although the

collections differ widely in date and place of composition, they constitute a

distinct class of texts in cuneiform literature. The statutes in the collections at

least did not develop out of the particular social and political circumstances

of their time. They were part of a scribal tradition independent of their

historical situation. The introductions, the epilogues, and the impetus for

writing a code at all were probably linked to particular needs of the king to

whose name the code was linked.

A different array of elements in the treatment of homicide present themselves

in the law collections when compared to the other material we have

analyzed. For example, in contrast to the cuneiform legal records analyzed

earlier, where the penalty is predominately pecuniary, in the law collections

the penalty seems to be equally divided between capital punishment and

monetary compensation. In the the cuneiform legal records, the manner in

which the victim was killed was omitted because these documents are only

concerned with the monetary payments involved. By contrast, the law collections

present a wide range of possibilities, from intentional homicide to

unlawful death resulting from negligence.

Two specific cases of homicide, the case of injury to a pregnant woman

(LI d–f, SLEx 1_–2_, LH 209–214, MAL A 21, 50–52, and HL 17–18) and

the case of a goring ox in cuneiform law (LE 53–55 and LH 250–253), are

treated in cuneiform laws because they are conventional cases. Similar cases

appear in the Covenant Code. A pregnant woman has become involved in a

scuffle and has been injured with fatal results in Exod 21:22–25. An owner

is held responsible for the actions of his goring ox in Exod 21:28–32. These

cases are about negligence, a different type of homicide from the accidental

and intentional homicide of Exod 21:12–14, Num 35:9–34, and Deut 19:1–

13. In the latter, a variety of specific cases are offered to illustrate principles

applied to a variety of actual situations.

The statutes on the goring ox in LE contain the closest parallel in literary

formulation and substance to any biblical law. LE 53 reads, “If an ox gores

another ox and thus causes its death, the two ox owners shall divide the

value of the living ox and the carcass of the dead ox.” Exod 21:35 reads, “If

someone’s ox gores his fellow’s ox so that it dies, they shall sell the living ox

and divide its price and the carcass of the dead ox.” How can this similarity

be explained?

RaymondWestbrook asserts that the biblical writer possessed a concrete

knowledge of cuneiform law.57 He argues that the biblical formulation was

made with the statute in LE in mind. The identity of Exod 21:35 with LE 53

would then serve as proof of the existence of LE as a school text far beyond

the borders of Eshnunna and far later than its time of promulgation. Otherwise,

there are no attestations of copies or sections of LE beyond the borders

of Eshnunna.We do know that cuneiform scribal schools were established in

Canaanite cities prior to the Israelites.58 According toWestbrook, cuneiform

law collections were literary works used as school texts in Canaanite scribal

workshops and, by implication, were used the same way during the Israelite

57RaymondWestbrook, “Biblical and Cuneiform Law Codes,” RB 92 (1985), 257, and Studies

in Biblical and Cuneiform Law, 2–3. Also, Paul, Studies in the Book of the Covenant, 104.

58Westbrook, Studies in Biblical and Cuneiform Law, 3.

period. However, to my mind, if there were actual dependence, would it not

be visible in the same striking type of correlation in more than one statute?

Reuven Yaron argues that the biblical provisions regarding the goring

ox may have been derived from a common Near Eastern legal tradition

and practice, rules that were widely used but only sporadically put into

writing.59 He compares the solution of LE and Exod 21:35 to Greek and

Roman legislation. First, the Laws of Gortyn, the earliest Greek code, do

not contain any law comparable to LE 53 and Exod 21:35. Second, Roman

law, which does address the case of the goring ox, holds the owner of the

ox that gored responsible. If the surviving ox was the one that gored, its

owner is liable to make good the damage. If the surviving ox was the one

that was gored, the owner of the goring ox need not make good the damage.

In contrast, LE and Exodus divide the loss, regardless of which ox survives.

In the latter situation, the owner of the aggressive ox and the owner of the

victimized ox are equally likely to lose or gain, depending on the respective

values of their oxen. If the two animals are of roughly the same value, both

owners have neither lost nor gained by the incident. However, if the animals

are of differing value, one owner will be more greatly compensated than the

other. The owner of the aggressive ox may come out ahead or behind. The

owner of the victimized ox may come out ahead or behind. In a sense, this is

grossly unfair to the owner of the ox that was gored, who may suffer a loss,

even though he and his ox were not responsible. This no-fault principle60

differs sharply from the at-fault ruling of Roman law. It was the rule for

goring oxen used in the ancient Near East that by chance was recorded

in LE and Exod 21:35. It was not an innovation of either text. There is a

commonality in a single legal principle between LE and the Hebrew Bible.

Unfortunately for Yaron’s view, the rest of the statutes on the goring ox

differ greatly. The topic may be the same, but the details are not. According to

Exod 21:28–29, if an ox kills a human being, whether it has gored (animals)

before or not, the ox must be killed and its flesh may not be eaten. This is

not a concern of LE or of any other cuneiform law collections, which are

not interested in the fate of the goring ox; for these nonbiblical collections,

if an ox known to gore animals kills a human being, the owner must pay

according to what is determined at the time. Even the biblical law that has

such a striking parallel in LE, Exod 21:35, is followed by a statute addressing

the case of a known gorer killing another animal, a case not mentioned

in cuneiform law collections. Furthermore, the statutes on the goring ox

59Reuven Yaron, The Laws of Eshnunna2, 294–295.

60This no-fault principle assumes that the two animals were roughly the same value, and it

does not take into account where the encounter occurred. Yaron infers that the ruling might be

different if they were not approximately equal in value or if the circumstances of the assault

were considered. For example, the penalty might be different if the goring took place in the

public domain, the field of the aggressor ox, or the field of the victimized ox. However, the

ruling here might be aimed at the lowest common denominator of all such cases.

in Exodus are in association with statutes about an animal falling into an

uncovered pit (Exod 21:33–34), cases not found in cuneiform law. The fact

that Exodus prescribes the stoning of an ox that gores a human being and

the death penalty for the owner of the ox requires explanation.61

The same phenomenon occurs with the other shared topic between biblical

law and cuneiform law, the statutes on injury to a pregnant woman,

Exod 21:22–25. The biblical statutes demand the death penalty for the unintentional

death of the woman. They do not mandate a fixed sum of compensation

for the death of the fetus. They do not mention a distinction between

the death of a free woman and a slave woman in this situation.62 These differences

have inspired scholars to focus on the divergences between biblical

law and cuneiform law.

Moshe Greenberg argues that law was “an expression of the underlying

postulates or values of culture,” and distinguishes between the characteristic

principles of the Hebrew Bible and those of Mesopotamia, especially

with regard to the laws of homicide.63 He argues that the concept

61Paul, Studies in the Book of the Covenant, 81.

62However, the biblical statutes do distinguish, it appears, the treatment of nonfatal injuries to

a slave from those to a free person.

63Greenberg, “Some Postulates of Biblical Criminal Law,” 18–37, and “More Reflections on

Biblical Criminal Law,” 1–18. Others deny that the concepts informing law can be isolated

so easily, indeed, that this type of analysis is valid altogether. Bernard S. Jackson rejects the

broad use of abstraction from biblical and cuneiform law codes by arguing that it is misguided

both theoretically and methodologically. First of all, he argues that the law in ancient Israel

and the rest of the ancient Near East was conceived in terms of cases rather than principles

(Essays in Jewish and Comparative Legal History, 29, 32ff). If the ancients did not make

these principles explicit, then they probably were not felt by the ancients to exist. At the same

time, Jackson argues that generalizing from a small number of written laws and assuming that

they reflect implicit principles is misguided because individual scholars may select for emphasis

different aspects of the text and thereby (re)construct different principles. Jackson also warns

that there is grave danger in importing modern abstract and sophisticated concepts to ancient

documents. Israelite and related societies did have principles of law, but that methodologically,

for us as modern interpreters, we are unable to gain access to them if they are not explicitly

articulated. Jackson acknowledges that principles may lie under the surface, being expressed

only in concrete situations, but that we can be confident of their existence only when they are

explicitly articulated, are presented as valuable, and are defined as operating within specific

parameters.

Against Jackson, however, simply because a society was not capable of or did not articulate

such a principle or abstract method does not mean that such a principle or method did not exist

(Richard A. Posner, The Economics of Justice [Cambridge, Massachusetts: Harvard University

Press, 1981], 17). Jean Bott´ero compares the Laws of Hammurapi to Mesopotamian scientific

treatises, in which principles are expressed through examples: Nonetheless, we can articulate

the principle behind the example even if the ancient authors did not choose to articulate it

(Mesopotamia: Writing, Reasoning, and the Gods, 169–184). In extrapolating from individual

laws to principles, we must keep two mutually contradictory generalizations in mind: 1) Like

cases were judged alike, and 2) individual laws, while seemingly similar to other regulations,

may resist analogical comparisons. This may be compared to rabbinic legal reasoning that

often makes analogies from one situation to another yet warns that with regard to certain

that human life is the ultimate value was the principle by which the legislators

of ancient Israel reworked Mesopotamian law.64 The necessary implication

of this principle, according to Greenberg, is that the punishment

of homicide must be the execution of the offender. The leniency of biblical

law in dealing with property offenses comcomitant with its severity in

the case of homicide is in stark contrast with nonbiblical law. Greenberg

finds the catalyst for the transformation in an ideal that the value of human

life reigns supreme over any other value, whether money or other type

of property.

On purely logical grounds, the implications of the concept that human

life is the ultimate value are not so clear. While Greenberg concludes that the

necessary implication of this concept is that the only appropriate penalty for

taking human life is capital punishment, others would hold that the necessary

implication is that no human life should be taken under any circumstances.65

In truth, the necessary consequence of the concept that human life reigns

absolute over any other value is a matter of instinct on the part of the person

making the connection, rather than strict logic. Affirming that it means that

the killer must be executed is, in fact, based on an assertion that human life

is not fungible and cannot be translated into pecuniary terms. So, too, is the

opposite conclusion. The concept that human life is the ultimate value can

also lead to the conclusion that no human life should be taken under any

circumstances. This, too, is a matter of personal belief rather than of necessity

in inductive or deductive logic.

Furthermore, even in the Hebrew Bible, human life can be, in certain

cases, fungible. Certain statutes in the Hebrew Bible itself do hold that human

life can be redeemed in monetary terms. The statute addressing the death

of a human being caused by a serial goring ox prescribes the death penalty

for the owner of the ox, which can be commuted to a mulct apparently by

rules, “the laws are without roots and are not to be learned from one another” (b. Moed

Katan 12a). All synthetic methodologies, including the extrapolation from individual laws to

underlying concepts, have been questioned; it seems to me that so long as the inherent problems

are articulated and the conclusions recognized as tentative pending new evidence, they are

legitimate. This same reasoning applies to the recognition of concepts that inform other genres

of biblical literature. In the end, Jackson’s strictures are important: He is not, in fact, being

self-contradictory in what he wants to assert, but rather he is being cautionary, arguing for

greater circumspection in the conclusions drawn from case law.

64Greenberg, in “Some Postulates of Biblical Criminal Law” and in “More Reflections on

Biblical Criminal Law,” implies that the lawmakers of ancient Israel were reformulating earlier

laws. He states this more clearly in “Crimes and Punishments,” Interpreters Dictionary of the

Bible, 1.737.

65This has been one of the arguments made in the debate over the abolition of capital punishment

in the United States. Cf. Thomas Upham, 51, John O’Sullivan, 52–53, and Gerald Gottlieb,

123, in Capital Punishment in the United States: A Documentary History (ed. Bryan Vila and

Cynthia Morris; Primary Documents in American History and Contemporary Issues;Westport,

Connecticut: Greenwood Press, 1997).

the victim’s family (Exod 21: 29–30).66 In this case, the owner of the ox is

permitted to extract himself from the death penalty – it is the owner’s life

that is evaluated in financial terms, not the victim’s. Most importantly, what

is considered the appropriate penalty for any crime is culturally determined.

For example, imprisonment for theft, which is the norm in our contemporary

American culture, would be incomprehensible to an ancient Israelite,

who would expect his stolen sheep to be repaid fourfold and his stolen cow

fivefold.

It is unclear how the single postulate isolated by Greenberg can account

for the major differences we have isolated in our study between Israelite and

cuneiform law.67 In this study, we have seen elements in the treatment of

homicide throughout the Hebrew Bible directly linked to specific characteristics

of Israelite society and biblical literature – the role of the victim’s family

in instigating the remedy of a slaying in the guise of feud; the cities of refuge

as refracted through the ideology of the legal sources of the Pentateuch; the

relationship between concepts of pollution and the treatment of the killer.

All of these represent a trajectory to achieve justice that cannot be subsumed

under a single principle.

In a similar vein to that of Greenberg, J. J. Finkelstein argues that the

conceptual universe of the Mesopotamian statutes on the goring ox is vastly

different from the biblical statutes on the same topic.68 An Israelite author

appropriated an ancient Near Eastern legal theme, but by fitting it into a

distinctly different framework, he in effect transformed it in the most profound

sense, even while retaining much of the original form and language.

The biblical thought-world was hierarchical in nature: God has complete

dominion over human beings, who in turn have complete dominion over nature.

Therefore, an attack by an ox on a human being is a category error, an

assault against the hierarchy. The ox, whether it had gored before or not, had

to be destroyed by stoning, a particular type of execution applied to offenses

that compromise the integrity and essence of the entire Israelite community.

(An ox that gores another ox is sold, not stoned.) In contrast, Mesopotamian

thought on the role of humanity vis- ` a-vis nature and the gods was not hierarchical.

69 Humanity was, in fact, of secondary importance, created after

66These two cases, death caused by a serial goring ox and death caused to a pregnant woman,

are clearly borderline cases, hedging on the indirectness of intention, as Greenberg notes in

“More Reflections on Biblical Criminal Law,” 10.

67Greenberg’s article “Some Postulates of Biblical Criminal Law” was clearly polemical. Indeed,

Greenberg did not mean that outside of ancient Israel, human life was considered valueless. People

were not killed indiscriminately outside of ancient Israel. What Greenberg was advocating

in his article is attention to the content of biblical law and its relation to an Israelite worldview.

68Finkelstein, The Ox That Gored, 5.

69Perhaps this should be qualified somewhat as being not so stringently hierarchical. One could

argue that there is a hierarchy in Mesopotamia as exemplified by the position of human beings

as workers for the gods in Atrahasis and Enuma elish.

the gods had built the great cities of Sumer and Babylon. Humanity was

not to have dominion over nature. An attack by an ox on a human being

did not pose the cosmic threat in Mesopotamia that it did in ancient Israel.

The fate of the ox is of no concern and, therefore, is not mentioned in LE

54–55 and LH 250–252.70 In my opinion, Finkelstein’s argument about the

distinct conceptual universes from which the biblical and cuneiform statutes

originate is valid because it is narrowly focused on a single case in biblical

law and its Mesopotamian antecedents and the differences between them.

Finkelstein further argues that the biblical statutes must be part of a

scribal tradition, because the actual occurrence of an ox goring is so unlikely

that it is improbable that such an incident occurred in Israelite experience

to be the source of the biblical laws. He bases this argument on the few

legal records about goring oxen that he found: This implies that actual occurrences

were extremely rare. This rarity applies as well to the case of

a woman’s miscarriage resulting from becoming entangled in a scuffle: It

seems so improbable – common sense dictates that pregnant women would

avoid being involved in fisticuffs – that it appears to be proof of a common

legal tradition between the cuneiform law collections and the Hebrew

Bible.71 In my opinion, Finkelstein’s argument is faulty. An ox goring in an

agro-pastoralist society seems probable: An ox is usually a docile animal,

but considering the number of oxen in use, the case of an ox going berserk

would occur from time to time.72 Furthermore, an argument on whether

an occurrence is probable on the basis of its presence in documents of actual

cases is faulty simply because so few legal documents mention anything

other than the sale of barley, slaves, donkeys, or orchards of date palms. To

put it in statistical terms, out of the approximately twenty-five hundred legal

documents I surveyed, I found four cases of theft, one case of slander, one

case of assault, and one case involving a dispute over the responsibility for

a prisoner.73

The key, in my opinion, to decoding the relationship between the biblical

and cuneiform sources is to recognize that the nature of the differences between

the biblical and cuneiform sources is already familiar to us from our

analysis of the cuneiform law collections themselves. While it is true that

there are significant differences between the Mesopotamian versions and the

biblical, the same sort of divergences between the biblical material and the

Mesopotamian material on fatal assault are found in the Mesopotamian

70Although the ox may well have been dealt with in some manner.

71Finkelstein did not find any records about an assault on a pregnant woman. I could not

find any case earlier than the Hellenistic period (Corpus papyrorum Judaicarum [ed. Victor A.

Tcherikover; Cambridge, Massachusetts: Harvard University Press, 1957], 1.246–247).

72Cf. the statute in the Chinese law code, The Tang Code, article 207, 2.193–195.

73This is not as odd as it seems. The vast bulk of legal documents in our contemporary society is

also devoted to recording economic transactions, such as the sale of merchandise, automobiles,

and homes.

material itself. Thus, between the biblical and cuneiform sources, there are

four differences: 1) The biblical statutes are concerned with the fate of the

ox, while the cuneiform ones are not. 2) The biblical statutes recognize only

two social categories, free and slave, for the ox’s victim and none at all with

regard to the pregnant woman, while the cuneiform statutes vary in this regard.

3) The biblical statute provides a penalty that could be changed – it

mandates the death of the owner of a serial gorer with the qualification that

his punishment could be converted to compensation – whereas the cuneiform

statute prescribes a penalty without any mention of any alternative. 4) The

biblical statutes on the fatal assault on a pregnant woman make a distinction

between intentional and unintentional.With regard to assault on a pregnant

woman, LH recognizes three social categories (209–214), whereas LL recognizes

only two (d, e, f). MAL does not mention the assault on a slave at all

but makes distinctions based on marital and maternal status (A 50–52). HL

17–18, SLEx 1_–2_, LH 209–214, and LL d, e, f mandate a single penalty for

each offense, whereas MAL A 21 requires a multiple penalty. SLEx reflects

a distinction between intentional and unintentional not found in the other

cuneiform law collections (1_–2_).

In the context of the divergences among cuneiform law collections, the

biblical statutes in the Book of the Covenant appear to be part of a scribal

tradition represented in the cuneiform law collections. The scribal tradition

provides the types of cases, and each code contains improvisations on these

types. Their variation is one of quantity, not magnitude. The cases of the

goring ox and a miscarriage caused by a pregnant woman intruding into a

scuffle are traditional literary themes by which a scribe would show his legal

flair and even test his larger assumptions about the world.74 The influence

of this tradition appears to be limited to the Book of the Covenant and

does not extend to the other treatments of homicide in the Bible. This is

significant for identifying what has influenced the Book of the Covenant. It

is also significant for what it has failed to influence, the other statutes on

homicide in the Bible.

These other biblical texts, in their self-presentation, reflect an apprehension

about which slayings fall under which rubric of homicide.75 They are

eager to articulate more precisely and accurately a distinction between intentional

and unintentional killing. It may be speculated that this specificity

allays a need to provide practical guidance to actual legal cases: The biblical

legal texts were intended to offer directives to an actual court. The use of

74Although in regard to the scribe’s worldview, one need not generalize as far as Greenberg

does.

75This trend is carried to the nth degree in the Mishnah, which draws finer and finer distinctions

between instances of homicide (Makkot 2:1–2). For example, a distinction is drawn between a

death caused by a jar, being let down from a roof, falling on someone, and killing him; and a

death caused by a jar, being drawn up to a roof by a rope that breaks, falling on someone and

killing him.

cases like the goring ox and a pregnant woman involved in a scuffle in the

Covenant Code originates in a scribal tradition, not in what is necessary to

the process of remedying a homicide.

In sum, certain features of the adjudication of homicide in the Bible

are characteristic of traditional cultures similar in economic and social development

to ancient Israel and are therefore reinvented independently by

disparate societies. Indeed, there are features of homicide in ancient Israel

that are present virtually everywhere, such as the basic division of homicidal

acts into intentional and accidental or the death penalty as the appropriate

punishment for murder. This holds true for many legal institutions: Human

beings can and do have the same basic response to a situation.76 However, in

the context of the similarities on the specific cases of a goring ox and a miscarriage

caused by assault, the statutes in the Book of the Covenant and the

statutes from the rest of the ancient Near East have a genetic relationship.

APPENDIX ONE: THE PUTATIVE HISTORICAL DEVELOPMENT

OF INTENTIONALITY IN HOMICIDE IN BIBLICAL LAW

Albrecht Alt argues that the fact that two apodictic statutes, Exod 20:13

and 21:12, do not make a distinction between intentional and unintentional

homicide signified that Israelite law originally did not make such a

distinction.77 At some point later in Israelite history the distinction was reintroduced,

as reflected in the poorly drafted casuistic formulation in Exod

21:13–14.

Alt bases his argument on the striking differences in the literary style of

biblical statutes.78 Some of them exhibit the distinctive formal characteristic

of casuistic law by being drafted in conditional sentences. They preserve the

invariable use of an ordered series of specific particles in the protasis of a

conditional sentence. Initial conditions are introduced with yk or ykw, “(and)

when.” Additional conditions are introduced with !a or !aw, “(and) if.” In

sharp contrast, other statutes lack these particular markers and are far more

76Alan Watson, Legal Transplants: An Approach to Comparative Law (Charlottesville: University

of Virginia Press, 1974), 12–13.

77Alt connects these laws to the absolute prohibition of killing in Gen 4:10 and 9:6, where

the demand of a stern Deity for strict retribution is reflected (“The Origins of Israelite Law,”

141–142).

78Much work has been done in recent years on the compositional integrity of the Book of

the Covenant as reflected in its literary structure. Despite the expected disagreements among

scholars, there is large agreement as to the basic structure. Cf. Jo¨ rn Halbe, Das Privilegrecht

Jahwes (Go¨ ttingen: Vanderhoeck & Ruprecht, 1975), 413–421; Yuichi Osumi, Das Kompositionsgeschichte

des Bundesbuches Exodus 20,22b23,33 (Orbis Biblicus et Orientalis 105;

Freiburg, Switzerland; Gottingen: Universit ¨ atsverlag Freiburg Vanderhoeck&Ruprecht, 1991),

155; Ludger Schwienhorst-Scho¨nberger,Das Bundesbuch, 23. A detailed discussion of the structure

of the Book of the Covenant is beyond the scope of this study.

varied in form. These laws exhibit an apodictic style alien to the conditional

sentences of the casuistic laws.79 For example, Exod 21:12 contains a circumstantial

participle in place of the protasis and an infinitive absolute in

the apodosis – “Whoever fatally strikes a man shall surely be put to death.”

Statutes with parallel linguistic structure can also be found elsewhere in the

Covenant Code (Exod 21:15–17; 22:17–19). This group of statutes (Exod

21:12, 15–17; 22:17–19) has a similar form to the list of offenses put under

a curse in Deut 27:15–26. Each sentence in the Deuteronomic list contains

the same predicate and a subject in the form of a participle. This suggests

that Exod 21:15–17 + 22:17–19 also form a series, one in which casuistic

statutes (Exod 21:13–14) have been inserted. The Decalogue appears to be

another list of statutes, albeit exhibiting another noncasuistic style. These

noncasuistic formulas are denoted as apodictic.

Alt argues that the varying syntactic formulations are indications of disparate

sources stemming from different origins.80 He notes that the casuistic

statutes in the Covenant Code exhibited a grammatical form strikingly similar

to the literary form of other ancient Near Eastern statutes. This is apparent

even though only a few of the statutes exhibit a pure casuistic form. Exod

21:2–11 contain the use of the second person in place of the third person

commonly used in the casuistic statutes found elsewhere in the Bible and

ancient Near Eastern literature. Alt surmises that the casuistic statutes of the

Book of the Covenant stemmed from Canaanite law, the local embodiment

of ancient Near Eastern law, the pre-Israelite legal source that the Israelites

adopted. He argues that apodictic law, in contrast, originated in the Israelite

circles. Indeed, the apodictic statutes were distinctively and uniquely Israelite

in origin and essence. The apodictic laws were part of a list of behavioral

norms recited in the cult. The use of these lists are clear from their context,

a cultic ceremony in which behavioral norms are recited.81 In short, there is

an equivalence between the different styles of the statutes and the different

settings from which they originated.

Alt maintains that these different settings represented different temporal

stages, not only different social origins. Casuistic law stemmed from a

pre-Israelite stage, while the apodictic came from an Israelite period. Isolating

apodictic from casuistic law allowed him to reconstruct Israelite law

in opposition to the common legal tradition of the ancient Near East. The

79However, many of these statutes bear an uncanny resemblance to casuistic form. Exod 21:12,

for example, contains a circumstantial participle in place of a finite verb in the protasis. Its

apodosis contains an infinitive absolute complementing a finite verb, the same form found in

the casuistic statutes of Exod 21:36 and 22:5, 13. Both this form and the pure casuistic form

are in the third person.

80Alt, “The Origins of Israelite Law,” 103–171.

81This is not to say that this list necessarily originated in the cult. The present form of the

Decalogue is a result of a complex history of development, whose individual steps cannot be

reconstructed with precision. See Raymond F. Collins, “Ten Commandments,” ABD 6.383–387.

apodictic statutes reflect the changes Israelites had made to Canaanite practice.

Scholars before Alt had produced a catalog of legal forms but had not

gone beyond the literary realm to posit a connection between literary form

and the life of a community.82

Alt argues that the presence of an apodictic statute regarding homicide,

an excerpt from a cultic list, indicated what was specifically Israelite. The

apodictic statute was later transformed by a statute phrased in an acquired

literary form, the casuistic form.

However, Alt’s contention is flawed because it does not take into account

the disparate institutional settings of apodictic and casuistic statutes. Drafting

legislation or recording legal decisions requires the specification of details

and, therefore, casuistic statutes contain a magnitude of detail not found in

liturgical recitations. For example, in the case of theft, the penalty may vary

on the basis of the kind of item stolen, whether the thief had sold the item

or was caught with it, or whether the thief was caught in the process of

stealing. In contrast, expressing behavioral norms in cultic recitations does

not require such detail.83 The cultic lists from which the apodictic laws originated

use a more absolute and unqualified form of expression in refraining

from naming individual cases.84 They lay down principles. This mode of expression

is made more emphatic in the Decalogue, which omits the penalty

for the offense. Cultic recitations are not concerned with the circumstances of

mitigating and aggravating factors. Therefore, Alt’s reasoning here is faulty

because stages in legal history cannot be extrapolated by comparing the

82Cf. B¨ antsch, Das Bundesbuch, 28–33, who argues that there was a distinction drawn in

Exod 24:3 between the !yfp`m drafted in casuistic form and the !yrbd put into apodictic form.

This distinction extended to their content: The !yfp`m dealt with secular social order while the

!yrbd treated ethical and cultic affairs. Anton Jirku, Das weltliche Recht im Alten Testament

(Gu¨ tersloh: T. Bertelsmann, 1927), makes finer distinctions within the categories of casuistic

and apodictic law.

83Volker Wagner argues that the apodictic laws belong to a series of ten delicts (Exod 21:12,

15–17, and 22:18; Lev 20:10–14) that incur the death penalty in the intertribal court of nomadic

society and were not related to Israelite religion (Rechtss atze in gebundener Sprache und Rechtsatzreihen

im israelitischen Recht [BZAW 127; Berlin: Walter de Gruyter, 1972], 23–31). He

bases his argument on the view that the delicts involved were not related to the cult but pertained

to the legal arena. Gerhard Liedke argues that the apodictic laws represent the legislation of the

paterfamilias in a noncultic setting (Gestalt und Bezeichnung alttestamentlicher Rechtss atze

[WMANT 39; Neukirchen-Vluyn: Neukirchener, 1971], 101–135). Hermann Schulz argues

that the apodictic laws ending in tmwy twm belonged to the sacred court of a tribe (Das Todesrecht

im Alten Testament (BZAW 114; Berlin: Walter de Gruyter, 1969], 99–113). However, the

recitation of a list in a cultic recitation in Exod 20:1–14 and Deut 27:15–26 is a much stronger

proof of the social setting of these laws than the more implicit evidence thatWagner, Liedke, and

Schulz present. Cf. the arguments for a cultic setting by John Bright, “The Apodictic Prohibition:

Some Observations,” JBL 92 (1973), 185–204.

84Alt recognizes this feature of apodictic law but does not see its implications when he used

the cultic recitations to reconstruct the innovations of Israelite law (“The Origins of Israelite

Law,” 157).

content of apodictic statutes and casuistic statutes. They are two distinct

styles that coexisted.

Furthermore, in light of the extensive documentation of individual responsibility

in ancient Near Eastern societies of all levels of social development,

it is difficult to understand why such a concept should elude the

Israelites. Indeed, all our texts assume individual responsibility for homicide

except for those which involve political killings, such as 2 Sam 21:1–14 or

2 Kgs 14:5–6. Corporate responsibility was an important issue in Israelite

society – a contentious issue as witnessed by Ezekiel 18 and Jer 31:29–3085 –

but it was not an issue in the adjudication of homicide.

APPENDIX TWO: DIRECT CAUSATION OF HOMICIDE

IN CUNEIFORM LAW

In the Neo-Assyrian documents, the killer’s community took the initiative in

acknowledging the obligation. It would appear, then, it did so because it was

also considered liable. To what extent are those who did not inflict the fatal

blow considered responsible elsewhere in Mesopotamia? At issue in two of

the cases in other Meopotamian documents is the culpability of such a person

in a homicide. In CT 29 42, the person who instigated a slaying is being

sued by the victim’s sons. The content of the charges made can be extrapolated

from the oaths to be taken by Ashqudum and his wife Amat-Amurrim.

Although Ashqudum is accused of instigating the death of Ipqatum, the issue

under contention is that of the illegal possession of Ipqatum’s property.

The victim’s sons have accused Ashqudum of causing the death of their father,

albeit at the hands of another, in order to acquire Ipqatum’s fortune.

However, Ashqudum is not being prosecuted for the unlawful death itself.

Although he bears part of the responsibility, he is not culpable for it.86 Only

the actual killer, who dealt the coup de grace, is subject to legal action for

homicide. Ashqudum, however, is legally responsible if he fraudulently acquired

Ipqatum’s property. This case is purely a dispute over property.87 The

85Compare as well Deut 5:9–10 and 24:16.

86The final outcome of the case is left vague. However, since Ilu-Shamash averred in an oath that

he could identify his father’s murderer and Amat-Amurrim denied complicity in illegally appropriating

Ipqatum’s property, it is probable that the charge that Ashqudum instigated Ipqatum’s

murder was affirmed. Cf. J. G. Lautner, Die richterliche Entscheidung und die Streitbeendigung

im altbabylonisichen Prozessrechte (Leipziger rechtswissenschaftliche Studien 3; Leipzig:

Theodor Weicher, 1922), 84.

87Dhorme notes that the oaths taken are similar to one made by the person who has possession of

disputed property averring that property is his, according to LH 9 (“M´elanges,” 105). However,

there are significant differences from LH 9: 1) The person claiming the property must make a

statement declaring that the property is his, whereas in CT 29 42, the plaintiff is claiming that

Ashqudum instigated Ipqatum’s death; 2) in LH 9, the person who has possession must name

the person who sold it to him and the people who served as witnesses for the transaction. The

issue of homicide is brought in solely as an aside, to explain how Ashqudum

allegedly acquired possession of Ipqatum’s property.

However, other pieces of evidence indicate that a person other than the

one who dealt the fatal blow can be subject to legal action. Indeed, in the

account of the Nippur Murder Trial, the issue that is debated is the culpability

of the victim’s wife:

6 u4 lu´ -dinanna dumu lugal-uru4-du10-ke4

7 ba-u´ sˇ-a-ta 8 Inin-da-da

dumu-munus lu´ -dnin-urta 9 dam lu´ -dinanna-ra 10 lu´ -dinanna dam-ani

11 al-gaz-za 12 in-na-an-ne-esˇ 13 Inin-da-da dumu-munus lu´ -dninurta

14 ka nu-un-ba TU´ G ba-an-dul . . . 35 Isˇu-qa-li-kum ERI´N-GALGAL

uku-uˇs dnin-urta 36 Iu-bar-den-zu nu-giri11

37 igi-ne-ne in-garre-

esˇ-ma 38 nin-da-da dumu-munus lu´ -dnin-urta 39 dam-a-ni

˘ h

´e-engaz

40 munus-e a-na b´ı-in-ag-e 41 al-gaz-e-d`e b´ı-in-eˇs 42 pu-u

˘

h-ru-um

nibruki-ka 43 igi-bi bi-ib-gar-ma 44munus dam-a-ni nu-un-kal-la 45 lu´ -

kur-ra-a-ni h´e-en-zu- `am 46 dam-a-ni

˘ h

´e-en-gaz 47 dam-a-ni al-gaz-za

48 giˇs

˘

ha-ba-an-tu ku-a`m 49 a-na-asˇ-a`m KA u-gu` -na li-bi-in-si 50 e-na-

a`mdam-a-ni in-gaz 51 nam-tag-ga-a-ni lu´ -in-gaz-esˇ-am 52 a-ab-diri b´ıin-

eˇs

6–14 After Lu-Inanna, son of Lugal-uru-du, had been put to death,

they told Nin-dada, daughter of Lu-Ninurta, wife of Lu-Inanna,

that Lu-Inanna, her husband, was killed. Nin-dada, daughter

of Lu-Ninurta, did not open her mouth and covered it up. . . .

35–41 Shuqalilum, the Erin-gal-gal, sergeant of Ninurta, and Ubar-

Enzu, the orchard man, addressed [the assembly] as follows: “Nindada,

daughter of Lu-Ninurta, may have killed her husband, but what

can a woman do in [such a matter] that she is to be killed?” they said.

42–52 In the Assembly of Nippur, [the assembly] addressed them as

follows: “A woman who does not support her husband may give information

to his enemy and thus [the enemy] may [be able to] kill her

husband. That her husband is killed, [the enemy] may let her hear –

why should he not thus make her keep silent about him? – she [more

than anyone else] killed her husband. Her guilt is greater than [of

those] who killed a man,” they said.

Even though the victim’s wife did not take part in the assault, she is adjudicated

as guilty, if not more guilty, than the ones who actually struck the blow.

This is a radicalization of the concept of guilt. The accused in CT 29 42

differences may be due to the circumstances of this case in CT 29 42 in which the sons of the

deceased claim that his property appears to be in the possession of the person who instigated

his death. That is, the differences really amount to a different focus for CT 29 42, which deals

specifically with the homicide, but also with the property.

had knowledge of the crime before it happened and assuredly could have

acted to prevent the tragedy; indeed, he was the one who instigated the

homicide. In contrast, the victim’s wife in the Nippur Murder Trial participated

in the cover-up after the crime. A possible role for her before the

killing is imputed to her solely because she is the victim’s wife and could

have betrayed him.88 Although there is no evidence for her participation

in the homicide, her position as the victim’s wife, possessing thereby special

access to him, is sufficient. What is at work here is the application of

a different and harsher standard to the woman because of the assumption

that a woman is inherently dangerous.89 Her most minor infraction will

lead to an escalating series of offenses: If she does not support her husband,

she will betray his right to exclusive sexual access90 and commit adultery,

leading her to ask for her husband’s death. Her lover will then kill

her husband and tell her, in a relationship of trust that she did not have

with her husband. In the trajectory posed by this scenario, it does not matter

whether she actually dealt the coup de grace: Because she could have violated

her husband’s trust, her guilt exceeds that of those who actually killed her

husband.

The concept that a person is liable for punishment even though he did not

deliver the fatal blow is also reflected in NSG 41. The wife and daughter of

the killer are enslaved because their husband and father was a killer. Indeed,

he was executed for his crime,91 but that penalty was not sufficient. However,

it must be noted that self-defense is recognized as justifiable in the second

case recounted in NSG 202. The linking of the fatal blow with culpability is

not absolute.

88LH 153 addresses the case of a woman who has had her husband killed and mandates the

penalty of impalement. In the Nippur Murder Trial, the wife is brought under the jurisdiction

of the law in a consideration of her role as accessory, whereas in LH 153, the wife’s

role is defined as a discrete crime, associated with other family offenses, for which a distinctive

penalty is effected. These differences indicate that there is no direct connection between

the Nippur Murder Trial and LH. Cf. Jacobsen, “An Ancient Mesopotamian Trial for

Homicide,” 213.

89Martha T. Roth, “Gender and Law: A Case Study from Ancient Mesopotamia,” in Gender

and Law in the Hebrew Bible and the Ancient Near East (ed. Victor H. Matthews, Bernard M.

Levinson, and Tikva Frymer-Kensky; JSOTSup 262; Sheffield: Sheffield Academic Press, 1998),

175–181.

90Note that in the original presentation of the case, the verb used to express that the killers

told Nin-Dada in l.12 is e, “to say” in an informational sense; in contrast, when the Assembly

of Nippur describes her act in l.45, the verb used is zu, “to know; to learn,” which can have a

sexual connotation.

91Adam Falkenstein believes that the death of Kuli had nothing to do with the murder he

committed, and he argues that it cannot be extrapolated from the language used to describe the

death of Kuli that he was killed as part of a vendetta (Die neusumerischen Gerichtsurkunden

[Munich: Bayerische Akademie der Wissenschaften, 1956], 1.133). However, the form of the

verb ku-li ba-gaza (line 5) is passive and should be rendered “Kuli was executed,” not as

Falkenstein translates, “Kuli died.”

A master is not liable for the acts of his slave, but he is paid compensation

if his slave is killed. In the Nippur Murder Trial, two of the accused

are free men, but the third is a slave. No special consequences of his status

as slave are noted in the account. He was tried in exactly the same manner

as the free men were. His owner did not participate in the trial nor

is any legal responsibility imputed to the owner because of the actions of

his slave.