Introduction

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I BEGAN this project interested in the question of how much of biblical

law was transplanted from the law of the rest of the ancient Near East. It

swiftly became obvious to me that I had to expand the scope of the project

to examine the broader spectrum of procedures, institutions, and literary

forms connected with the adjudication of homicide in the Hebrew Bible and

its relationship to aspects of Israelite society and religion. It is among the

laws on homicide that the closest parallels between biblical law and ancient

Near Eastern law are evident, in the statutes on the ox that gored and fatal

assault on a pregnant woman, but a different picture comes into focus in the

complete process by which homicide was adjudicated. Indeed, what is most

noticeable is how little of the adjudication of homicide in the Hebrew Bible

is similar to that of ancient Near Eastern law.

It is essential to understand that the treatment of homicide in the Bible

is dependent on the institutions and conceptual underpinnings of biblical

society. Biblical law did not come into existence in a vacuum, and law in

general is part and parcel of a cultural system. Without such a holistic point

of view, law could very easily be taken out of its context and misunderstood.1

1Shemaryahu Talmon, “The ‘Comparative Method’ in Biblical Interpretation – Principles and

Problems,” Congress Volume: Go ttingen (SVT 29; Leiden: Brill, 1978), 320–356 (reprinted in

his Literary Studies in the Hebrew Bible: Form and Content [Jerusalem: Magnes Press, 1993],

The treatment of homicide in the Bible is directly linked to aspects of biblical

culture outside the legal sphere. Indeed, the contours of Israelite society

and religion generated specific institutions and principles. This study will

highlight the relationship of biblical law to Israelite society and religion,

allowing us to see how the adjudication of homicide fit into the cultural

pattern of Israelite society.

Law in the Bible must be investigated in its own environment before

any meaningful or valid comparison can be made. Nonetheless, interpreting

biblical law in its ancient Near Eastern context is also essential. The Bible did

not come into existence in a vacuum. Biblical culture and society stemmed

from the cultures of the ancient Near East, especially that of Mesopotamia,

whose influence is felt in almost every chapter of the Hebrew Bible.

The striking convergences and divergences in form and content between

biblical law and ancient Near Eastern law with regard to homicide in particular

have profound implications. (The law from the ancient Near East appears

to be part of a common tradition, and since it is all written in cuneiform

script, whether in Sumerian, Akkadian, or Hittite, it is called “cuneiform

law.”)2 Some scholars have focused on the question of how biblical writers

knew of cuneiform law. Raymond Westbrook suggests that biblical writers

actually possessed copies of ancient Near Eastern laws: 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

period.3 Reuven Yaron thinks that there was a common law throughout

the ancient Near East, including ancient Israel, law that was sporadically

put into writing, and that the similarities between biblical and cuneiform

law reflect this common law.4 Shalom M. Paul and J. J. Finkelstein argue

that biblical law and ancient Near Eastern law had a direct connection but

that the exact method of transmission cannot be ascertained.5 Other scholars

have focused on elucidating the guidelines by which cuneiform law was

reworked. Moshe Greenberg argues that a general legal/theological principle

of biblical law that contradicted a general principle of cuneiform law

generated divergent law on the same subject despite biblical law’s basis in

11–49); David P. Wright, The Disposal of Impurity (SBLDS 101; Atlanta: Scholars Press,

1987), 5–7.

2The term “cuneiform law” was coined by Paul Koschaker, “Keilschriftrecht,” Zeitschrift der

Deutschen Morgenlandischen Gesellschaft 89 (1935), 26, and “Forschungen und Ergebnisse in

den keilschriftlichen Rechtsquellen,” ZSS 49 (1929), 188–189.

3Raymond Westbrook, Studies in Biblical and Cuneiform Law (CahRB 26; Paris: J. Gabalda,

1988), 2–3.

4Reuven Yaron, The Laws of Eshnunna (revised edition: Jerusalem: Magnes Press, 1988), 294–

295.

5Shalom M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical

Law (SVT 18; Leiden: E. J. Brill, 1970), 104–105; J. J. Finkelstein, TheOxThat Gored (prepared

for publication by Maria deJ. Ellis; Transactions of the American Philosophical Society 71/2;

Philadelphia: The American Philosophical Society, 1981), 20.

cuneiform law.6 Finkelstein contends that theological differences account

for the disparate laws in the Bible regarding a case that was borrowed from

cuneiform law.7 A few have dissented from seeing a connection between

biblical law and cuneiform law: A. Van Selms claims that the differences

were too great, even in a case like the goring ox, and that the dependency of

biblical law on cuneiform law seems unlikely.8 Albrecht Alt holds that the

geographic distance between ancient Israel and Mesopotamia was simply too

great and that biblical law was based on Canaanite law, which is no longer

extant.9

This study therefore operates on two levels: analyzing biblical law in

its own context and comparing biblical law to cuneiform law. This twofront

approach prevents the distortion of cultures, when the features and

significance of a parallel phenomenon are transferred from one to the other,

and allows for a more accurate assessment of cultural phenomena.10

A few words on the comparative method are in order. The comparative

method in general has benefits and perils. It always walks the fine line between

a comparison of contrasts and a comparison of similarities. Indeed,

the pendulum of biblical studies has swung regularly from emphasizing the

continuity of the Hebrew Bible with the rest of the ancient Near East to

emphasizing the discontinuity of the Hebrew Bible with the rest of the ancient

Near East and back again.11 This is partially because the comparative

method suffers from the danger of generalization in which uniqueness is lost.

First, arranging one set of data against another set may organize the comparison

so that there is a matching of components in a Procrustean bed, whether

or not there is a correspondence. A culture in its complete phenomenology

can easily be obscured. Second, combining what is in each set makes that set

appear monolithic. The comparative method, as it is used in biblical studies,

locates the Hebrew Bible on one side and everything from the rest of the

6Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” in JubileeVolume for Yehezkel

Kaufman (ed. Menahem Haran; Jerusalem: Magnes Press, 1960), 20, 14–15 (reprinted in The

Jewish Expression [ed. Judah Goldin; New York: Bantam, 1968], 18–37). Bernard S. Jackson attacks

Greenberg’s views in Essays in Jewish and Comparative Legal History (Studies in Judaism

in Late Antiquity 10; Leiden: Brill, 1975), 25–63. Greenberg replies to Jackson’s attack in “More

Reflections on Biblical Criminal Law,” Studies in Bible (ed. Sara Japhet; ScrHier 31; Jerusalem:

Magnes Press, 1986), 1–18.

7Finkelstein, The Ox That Gored, 5.

8A. Van Selms, “The Goring Ox in Babylonian and Biblical Law,” ArOr 18 (1950), 321–330.

9Albrecht Alt, “The Origins of Israelite Law,” in Essays on Old Testament History and Religion

(trans. R. A. Wilson; Garden City, New York: Anchor Books, 1968 [1966]), 124–126.

10Richard G. Fox, Urban Anthropology: Cities in Their Cultural Settings (Englewood Cliffs,

New Jersey: Prentice-Hall, 1977), 4; William W. Hallo, “Biblical History in Its Near Eastern

Setting: The Contextual Approach,” in Scripture in Context: Essays on the Comparative Method

(Pittsburgh: The Pickwick Press, 1980), 1–26.

11Cf. Meir Malul, The Comparative Method in Ancient Near Eastern and Biblical Legal Studies

(AOAT 227; Neukirchen-Vluyn: Neukirchener Verlag, 1990), 13–78.

ancient Near East on the other. The Hebrew Bible becomes uniform, as does

all the rest of the ancient Near East. One might well imagine a different

focus: The Neo-Assyrian or Hittite texts could occupy center stage, with every

other source from the rest of the ancient Near East (including the Hebrew

Bible) assembled in comparison and analyzed in a comparative light.

Furthermore, the time span from which the cuneiform texts originate is

broad, from the Neo-Sumerian period (twenty-first century b.c.e.) to the end

of the Neo-Assyrian period (seventh century b.c.e). They stem from a wide

geographical sphere encompassing the entire ancient Near East, including

Egypt, Ugarit, the Hittite empire, Assyria, Babylonia, and Sumer.12 They are

written in Sumerian, Akkadian, and Hittite. Despite this diversity, there is

much uniformity across these cultures in the realm of law, but any analysis of

such greatly diverse material must avoid blurring differences and be sensitive

to the variations between cultures. It is also essential to be wary of importing

alien categories on ancient Near Eastern cultures, a warning to be heeded

ever since Benno Landsberger defended the “conceptual autonomy of the

Babylonian world.”13

This study has attempted to bypass these pitfalls in two ways: 1) by

utilizing all the textual sources that these cultures offer in order to present the

treatment of homicide in each culture in its fullness; and 2) by being conscious

of the variety within each set of data as a corrective to the polarization

inherent in the comparative method. This study will treat the cuneiform

material as a whole only when it is warranted and will emphasize where the

cuneiform material does not cohere. As we will see, Assyrian law differs at

times from the rest of Mesopotamian law, and the adjudication of homicide

as reflected in legal records occasionally diverges from law collections.

Generally, studies of biblical law and cuneiform law have been confined

to formal collections of statutes, but in this study, I will make use of a broader

repertoire. First, in addition to the formal collections of law in the Bible, I will

treat narrative texts touching on homicide because these texts can shed light

on legal matters by providing evidence for elements essential to legal practice

omitted in legal texts.14 They can provide insight into the social setting in

which law was used. Narratives can be used as a means of accessing key

aspects in law not necessarily included in legal texts. They can identify what

are felt to be the inadequacies of a legal system. They can provide insight

into how the law appears to operate in actuality, whether well or poorly, and

how law relates to general concepts of law and government. They can reveal

12There is only a single document from Egypt on homicide, and it is in fact Babylonian in origin.

This text, EA 8, addresses the murder of the Babylonian king’s merchants by Egyptian vassals

and does not treat homicide internal to Egyptian society.

13Benno Landsberger, The Conceptual Autonomy of the Babylonian World (1924; reprint,

MANE 1/4; Malibu: Undena, 1976).

14For a fuller discussion of this methodology, see my article “The Narrative Quandary: Cases

of Law in Literature,” VT 54 (2004), 1–16.

the inherent flaws of a legal system, unanticipated in statutes. Narrative texts

are, therefore, critical to the study of biblical law, and their absence from

previous studies is a lacuna this study hopes to remedy.

Second, in contrast to many other studies, attention will also be paid to

the legal records from the ancient Near East as well as to the formal legal

collections. The former include records in a variety of forms from actual

legal cases and treaties covering cases that might arise in the future. The

records of actual cases reflect how the legal process was carried out and

what was deemed essential to a transcript of a case. The treaties and other

international documents encapsulate the shared features of the legal procedure

and principles between countries and may shed light on the common

denominator of the treatment of homicide in the ancient Near East, if one

should exist.With few exceptions, scholars have concentrated on the formal

legal collections.15 Thorkild Jacobsen’s 1959 article on a Sumerian homicide

trial16 and Martha T. Roth’s reconstruction of Neo-Assyrian homicide procedure17

represent rare examples of analysis of legal records. Horst Klengel

identifies common legal practices of West Semites in the Late Bronze Age

by studying the treaties and other interterritorial documents of the period.18

The cuneiform texts treated here appear in a variety of forms, such as legal

records of a wide variety, letters referring to actual cases of homicide,

and treaties and formal collections of law containing provisions on unlawful

death, but there are lacunae that call for comment. Cuneiform narrative texts

deal with killing during war or with generations of younger gods superseding

the previous generation by killing the older gods, not with the type of slaying

treated in this study. Oddly enough, although the Neo-Babylonian period is

the second-best documented period in Mesopotamian history, there are no

Neo-Babylonian texts treating homicide (except for an attempted homicide,

TCL 12 117). This may not be as surprising as it seems initially, since the Neo-

Babylonian texts originate almost exclusively from the archives of temples,

religious institutions that did not have jurisdiction over cases of homicide.

15Even a study as recent as Ulrich Sick’s Die To tung eines Menschen und ihre Ahndung in

den keilschriftlichen Rechtssammlungen unter Beru cksichtigung rechtsvergleichender Aspekte

(Ph.D. diss., Eberhard-Karls-Universit¨ at, 1984), did not make reference to any legal records,

though the records were available in edited form by then, some in a number of editions.

16Thorkild Jacobsen, “An Ancient Mesopotamian Trial for Homicide,” Studia Biblica et Orientalia

(Analecta Biblica et Orientalia 12; Rome: Istituto Biblica Pontificio, 1959), 3.130–

150, reprinted in Thorkild Jacobsen, Toward the Image of Tammuz and Other Essays on

Mesopotamian History and Culture (ed.William L. Moran; HSS 21; Cambridge, Massachusetts:

Harvard University Press, 1970), 193–214.

17Martha T. Roth, “Homicide in the Neo-Assyrian Period,” in Language, Literature, and

History: Philological and Historical Studies Presented to Erica Reiner (ed. Francesca Rochberg-

Halton; AOS 67; New Haven, Connecticut: American Oriental Society, 1987), 351–365.

18Horst Klengel, “Mord und Bussleistung in sp¨ atbronzezeitlichen Syrien,” in Death in

Mesopotamia (ed. Bendt Alster; Copenhagen Studies in Assyriology 8; Copenhagen: Akademisk

Verlag, 1980), 189–197.

Undoubtedly, homicides occurred during the Neo-Babylonian period. Unfortunately,

we have no records of them.

We must be aware of our limited access to sources. It must be acknowledged

that there is no way of determining the extent to which the Hebrew

Bible reflects a representative cross section of ancient Israelite culture. The

Bible may incorporate only selected aspects of Israelite society, offering us

a skewed picture of ancient Israel. Nor is there any certainty whether the

statutes in the Bible were used in a court system. There is only one inscription

from ancient Israel that deals with a legal matter, the Mes.adH.

ashavyahu

or Yavneh-Yam letter, in which a complaint is lodged with an official regarding

an object left in pledge that was not returned.19 We must ask, therefore,

whether the differences that are found between the Hebrew Bible and the

documents from the rest of the ancient Near East are real differences, or

whether they simply reflect a limited, and therefore distorted, database, due

to the accidental nature of tradition, for the Hebrew Bible, and of archaeological

discovery, for inscriptions from the ancient Near East as a whole.

A critical distinction needs to be drawn between the Hebrew Bible and ancient

Israel. The Hebrew Bible is not a representative cross section of ancient

Israel. It comprises products of particular individuals and ideological circles.

The idiosyncracies of these writers and theological factions may distort

the law.

These strictures, however, could be applied to any collection of texts:

Could any finite collection of works, like the Hebrew Bible or even the fiftyodd

documents amassed from cuneiform cultures, ever suffice? How many

documents from a particular era in a particular territory would ever be a

sufficient number? We can only base a historical reconstruction on what

we have, keeping in mind how our sources skew our perception. We are

always at the mercy of the next archaeological discovery. In the absence of

court records or other documents shedding light on actual legal procedures

in ancient Israel, a reconstruction of the law based on the material in the

Bible must be qualified by the acknowledgment that a distinction needs to

be drawn between the legal system as described in the Bible and the actual

legal system of ancient Israel.

A hotly debated issue in the study of cuneiform law is whether the statutes

in formal collections of law were precedent setting and comprehensive. In

other words, were the formal collections of law ever used in court? This issue

has been subsumed in scholarship under the question of whether the Laws

of Ur-Nammu, the Laws of Lipit-Ishtar, the Laws of Eshnunna, the Laws of

Hammurapi, and the Middle Assyrian Laws should be called “law codes.”

Objections have been made to calling the Mesopotamian laws and the Hittite

Laws law codes because they were neither binding nor comprehensive nor

19J. Naveh, “A Hebrew Letter from the Seventh Century b.c.,” IEJ 10 (1960), 129–139;

KAI 200.

apparently ever cited; rather, they should be called “law collections.”20 However,

James Lindgren argues that the word “code” is rarely used to refer to a

country’s comprehensive body of law and that restatements of laws already

in force are generally considered to be codifications of law even if the restatements

themselves have no binding force.21 In this study, I shall call them law

collections for convenience.

Lastly, I must emphasize that the comparative method is not a method of

evaluating the superiority or inferiority of any culture in contrast to another.

Especially in regard to a topic such as homicide that is the subject of such

heated debate in contemporary society, we must be aware of the ways we

belong to biblical tradition, as well as the distance we are from it in light of

modern legal and political ideals.