Conclusion

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HOMICIDE IS an occurrence that is viewed as heinous in every human society.

However, it embodies the social, religious, and intellectual characteristics

of a particular culture. In the Hebrew Bible, the adjudication of homicide

typified aspects of Israelite culture and society. The organization of society

shaped the process. The victim’s family had the right and responsibility to ensure

that justice was done. The process, blood feud, was always rule-bound

and intrinsically part of the legal process. By contrast, in cuneiform law,

the central government exerted control over the process, and the victim’s

family could participate only in a late stage of the process. In Israel, kinship

ties persisted; the lineage, the association of families, was responsible

for the protection of family members in the legal arena, and in general, a

community-based system of justice prevailed, whereas in Mesopotamia, a

bureaucracy had control. This is because ancient Israel perceived itself to be

and was in fact a rural, decentralized society with only mild bureaucratic interference

and little in the way of specialized professions. Mesopotamia was

urban and centralized, with the disintegration of extensive family ties and

the rigid control of bureacracy. Biblical law was not lagging behind the rest

of society. Blood feud was not an archaic or outmoded institution retained

for an offense like homicide. It fit the contours of biblical culture.

Cultic considerations were also a significant factor. Measures had to be

taken to prevent the very real effects of spilled blood. The contamination

incurred by the shedding of blood originated in the concept of ritual purity

and impurity in biblical religion: Blood was both a contaminant and

a cleanser. An unlawful death was linked to ethical impurity: Certain acts

were so heinous that they generated severe impurity that affected the nation

as a whole. The blood of a slain person caused defilement, and the

way to undo that defilement was through blood. Since the contamination

incurred by homicide operated as both ritual and ethical impurity, the remedy

did not necessitate physical application of blood to remove impurity, as

the sanctification of the altar, to offer an example, did. Rather, the slaying

of the intentional killer, the death of the high priest as the representative

of the Israelite people in the case of accidental homicide, or the ceremonial

removal of the contagion of blood in the case of a victim whose killer cannot

be found was sufficient to defer the consequences of unlawful slaying. No

such concern with the ill effects of slain blood is found in cuneiform law.

Mesopotamian religion was not concerned with the contaminating effects

of spilled blood, nor were the actions of individuals the source of peril for a

nation as a whole.

Concomitant with the concern over the defiling effects of unlawful killing,

the principle of lex talionis caused the death penalty to be imposed on the

slayer in biblical law. Capital punishment for homicide in cuneiform law

is an example of the proper punishment for serious crimes and was not an

actualization of lex talionis. Lex talionis was used in cuneiform law as a

principle in determining the punishment for nonfatal bodily injuries.

The differences in the characteristics of the cities of refuge in the Priestly

traditions and in Deuteronomy reflect the ideology and theology characteristic

of each Pentateuchal source, rather than historical development. Historically,

asylum did operate for others besides killers. Political offenders could

seek respite from their enemies at a sanctuary.

Certain phenomena, such as the cities of refuge, appear in ancient Israel

due to the confluence of factors specific to ancient Israel. The cities of refuge

existed there and nowhere else in the ancient Near East. It may be speculated

that the emphasis on communal solidarity of the Israelites as a nation apart1

may have served as one impetus for the creation of refuges within Israelite

borders, so that avoiding a blood avenger would not necessitate flight to

a foreign territory. Adding to this impetus is the concept in ancient Israel

that the danger posed by impurity affects the entire nation and that steps

need to be taken as a preventative. Therefore, even an accidental homicide

1See Peter B. Machinist, “The Question of Distinctiveness in Ancient Israel: An Essay,” in

Ah, Assyria . . . : Studies in Assyrian History and Ancient Near Historiography (ScrHier 33; ed.

Mordechai Cogan and Israel Eph_al; Jerusalem: Magnes Press, 1991), 203–207, and “Outsiders

or Insiders: The Biblical View of Emergent Israel and its Contexts,” in The Other in Jewish

Thought and History: Constructions of Jewish Culture and Identity (ed. Laurence J. Silberman

and Robert L. Cohn; New York: New York University Press, 1994), 41–54.

is dangerous because although the death was accidental, the shed blood is

still polluting: A city of refuge, then, has dual aspects, both protection and

confinement, and the accidental slayer must wait until the death of the high

priest for the stain to be neutralized. In contrast, while cities in the Late

Assyrian and Babylonian periods had the right of kidinnu¯ tu, a privilege of

autonomy in certain matters, that theoretically prevented royal officials from

executing anyone who had entered a city’s precincts, this was not limited to,

or even meant for, killers.2 In the Old Babylonian period, certain persons

and any property placed into their care or any other person enjoying their

hospitality were immune from the interference of others. This was most likely

intended to protect economic and commercial interests.3

The biblical treatment of homicide differed radically from that of

cuneiform law despite Mesopotamia’s profound political, economic, and

cultural influence on the ancient Near East because biblical law was linked

to aspects of biblical society, religion, and ideological traditions. There are

only two specific statutes of biblical homicide law, the goring ox and the

fatal assault on a pregnant woman, that appear to have been drawn from

cuneiform legal tradition. The parallels to Mesopotamian law occur in the

Covenant Code, a legal corpus that has another affinity to Mesopotamian

law collections: Most of the Covenant Code is written in casuistic style, the

style of most of the Mesopotamian law collections.

Certain Israelite scribes, in order to produce business or diplomatic documents

that could be used further afield throughout the ancient Near East,

must have learned Akkadian, the lingua franca of the ancient Near East, and

among the school texts used for training native Akkadian scribes were legal

collections and texts composed of legal formulas. It is reasonable to suppose

that such material was available in the education of Israelite scribes. Probably

not all Israelite scribes had this training, but a percentage did. Some

educated individuals, not necessarily scribes by profession, may also have

been exposed to this type of training.

In this study, we have addressed the question of whether we can tell if a

phenomenon has been borrowed or independently invented. An element that

is very general, we must assume, was independently invented, but something

unusual calls attention to itself as something parallel. Here, our argument

that it is borrowed is buttressed by the parallels within cuneiform law: Just

as an unusual case was repeated in cuneiform legal collections, so too was it

repeated in another legal collection, that is, the Covenant Code.

The mode of analysis used to answer this question has been comparative,

and it is clear that the comparative method is useful if used judiciously. It

2Am´elie Kuhrt, The Ancient Near East (Routledge History of the Ancient World; London:

Routledge, 1995), 614–616.

3J. J. Finkelstein, “On Some Recent Studies in Cuneiform Law,” JAOS 90 (1970), 253,

esp. n. 46.

throws the characteristics of each society into sharper relief. At the same time,

it highlights the links between societies, while acknowledging the differing

contours of each. It shows that even when certain aspects of one culture’s

law are transplanted from another culture, they may appear differently because

when a legal institution or statute takes root in alien soil, it acquires

native characteristics. What is so striking about the biblical adjudication of

homicide is that in two cases it parallels cuneiform law and yet is otherwise

so different. Biblical law incorporated a few elements from nonbiblical law

and yet produced so much that was not dependent at all.

This study has shown that the analysis of narrative texts in the Bible

that touch on law is essential to the study of biblical law because narrative

texts manifest critical aspects of the law not incorporated in legal texts. For

example, although biblical texts agree that only killing by direct action is

subject to legal review, individuals might be held ethically responsible for

causing a death indirectly. This is reflected only in narrative texts, and we

would not be aware of it were it not for them. Literature is a lamp onto the

law. Biblical narrative illuminates what happens in the interstices of the law.

It does not portray a world in which the law is carried out as prescribed and

whose goals are accomplished perfectly, but focuses on the imperfections

and tensions. Narrative texts cannot be analyzed innocently. The genre of

narrative shapes and selects what it represents.

This is no less true for other genres. Each of the cuneiform records of

actual cases fails to contain the complete spectrum of elements that could

have been utilized in a trial. Thorkild Jacobsen argues that the absence of

a detailed establishment of the facts of the case in the Nippur Murder Trial

through the testimony of witnesses, the killer’s confession, the taking of

oaths, or the like, in contrast to the contents of a civil trial record, signified

that such an establishment did not take place.4 Simply because they are

absent from the tablet, according to Jacobsen, they did not occur. Rather,

the Nippur Murder Trial was part of a procedural tradition in which the facts

and guilt of the accused were taken for granted by the community, which

had been aroused to punish the offender in the emotionally highly charged

situation of lynch justice. In effect, the Assembly of Nippur was to render

its verdict on the basis of its members’ personal convictions, rather than on

facts proven in court. In Jacobsen’s view, the facts of the case were already

determined by the king, who in turn dispatched the case to the Assembly

so that it could act out its part in this tradition. Jacobsen reconstructs this

criminal procedural tradition by recourse to a number of Mesopotamian

myths that recount the way criminals, albeit not murderers, were convicted

and punished. To him, this use of myth is attractive because myths can

preserve remembrances of social conditions of greater antiquity than other

sources.

4Jacobsen, “An Ancient Mesopotamian Trial for Homicide,” 204–205.

However, in my opinion, reading this tradition of lynch justice into the

record of the Nippur Murder Trial is a narrow way of reading, especially in

light of the brevity of the other homicide records. These other records also

omit elements indispensable to the adjudication of homicide. The absences

are different in different documents. For example, the Nippur Murder Trial

records the statements of the members of the Assembly of Nippur. They

formally identify the accused and propose capital punishment as the remedy.

A question about the culpability of the victim’s wife arises from two

members of the Assembly and is answered. There is no mention of a formal

accusation or the presence of witnesses: The document only records

the points of discussion of the Assembly of Nippur. However, in the first

homicide case recorded in NSG 202, the widow makes the accusation. The

accused produced witnesses to prove that he was innocent, but the details

of their testimony are not recorded. Unlike the Nippur Murder Trial, the

court’s discussion is truncated. Does this mean that the court did not explain

its ruling or question witnesses simply because it is not mentioned?

The nature of these documents is such that only the contested matters are

put down in writing. In the second case in NSG 202, the fact that Kali killed

Guzani is mentioned. No indication of whether it was ascertained through

the testimony of witnesses or the killer’s confession is made. The document

contains a quotation of Kali’s protestation that he killed in self-defense and

notes that he proved that an argument had occurred. The manner in which he

offered proof is not included. An oath is considered sufficient to resolve the

dispute in CT 29 42. The fact that these documents are not exact transcripts

means that the reconstruction of the proceedings must be full of lacunae.

The absence of a detailed establishment of the facts of the case through the

testimony of witnesses, the killer’s confession, the taking of oaths, or the like

does not mean that they did not occur. The cuneiform law collections omit

information on procedure and on distinguishing between intentional and

unintentional homicide, as well as referring to odd cases. Genre, whether of

legal record or law collection, shapes what is depicted as the adjudication of

homicide.

This study focuses on a single type of offense, but its findings have

ramifications for the analysis of other offenses. If biblical law on homicide

is so different from cuneiform law except for a few cases, it would be

worth investigating whether biblical and cuneiform law on other offenses exhibit

the same relationship. The international documents demonstrate that

while there is a general assumption that homicide is wrong, not much else

regarding the remedy of homicide is shared in the ancient Near East. If

there is so little shared with regard to a heinous offense like homicide, it

would be doubtful that assumptions about other offenses would be possible.

The exception to this would probably be in the realm of contract and

economic law, where international trade would require a common basis to

operate.