OUTLINE OF THE BOOK

К оглавлению
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 
17 18 

The first chapter focuses on the story of Cain and Abel. This tale adumbrates

many of the critical issues involved in the treatment of homicide in the Bible.

It is the most famous case of homicide in the Bible, and as a tale intentionally

set in hoary antiquity, it both concurs with and diverges from the treatment

of homicide as described in the rest of the Bible. It sets the stage for the

analysis that follows.

The second chapter, “Blood Feud and State Control,” deals with social

history and comparative law. I analyze the institution that ensured that a

homicide would be punished in biblical law. In biblical Israel, the victim’s

family assumed the primary responsibility for ensuring that the slayer was

punished: One member of the victim’s family, “the blood avenger,” possessed

the right to kill the slayer on sight with impunity. I argue that this process

should be understood as blood feud, a legal institution with particular characteristics,

basing my interpretation on an anthropological model. Blood

feud was a legal mechanism, not an aberration outside of the law, and was

directly linked to the role of the clan or lineage, the association of extended

families, in other legal matters. The identification of the process as blood

20Cf. Finkelstein, The Ox That Gored, 15–16; Jean Bottero, Mesopotamia:Writing, Reasoning,

and the Gods (trans. Zainab Bahrani and Marc van de Mieroop; Chicago: University of Chicago

Press, 1992), 156–184; F. R. Kraus, “Ein zentrales Problem des altmesopotamischen Rechts:

Was ist der Codex Hammurabi?” Genava n.s. 8 (1960), 292. What is ironic about this stricture

is that it appears that whatever law is studied is compared unfavorably to any other law, which

appears to be binding and comprehensive in comparison. Cf. the lament about the Icelandic

laws Grag as by Andrew Dennis, Peter Foote, and Richard Perkins, Laws of Early Iceland:

Grag as (University of Manitoba Icelandic Studies III; Winnipeg: University of Manitoba Press,

1980), 9.

21James Lindgren, “Measuring the Value of Slaves and Free Persons in Ancient Law,” Chicago-

Kent Law Review 71/1 (1995), 150–151, n. 3.

feud is critical because it allows us to understand it as an intrinsic element

of the legal process and how blood feud is by its nature rule-bound. The

potential for violence actually limits violence and promotes the acquiescence

of the killer to a trial. In a society without specialized judicial personnel, such

as police or prosecutors, a lineage acting as a mutual aid society ensures that

the crime would be punished. This understanding of the process is in direct

contrast with the prevailing idea that the actions of the family are outside the

law and that the excesses of the family’s activities must be curbed by the law.

At the institutional level, therefore, biblical Israel differed radically from

its neighbors. Blood feud did not operate elsewhere in cuneiform law, where

a central government exerted control over the legal process. The difference

is due to disparate conceptions of society. I argue that a social system based

on kinship ties persisted in ancient Israel. This is contrary to the dominant

models of the social development of ancient Israel, which claim that kinship

ties broke down during the monarchy. My argument is based on both textual

evidence and archaeological data. The organization of society based on

kinship ties in ancient Israel is in sharp contrast to the pervasive urbanism

of Mesopotamian society, in which kinship ties dissipated. This chapter concludes

with three excurses on matters essential to my analysis. In the first, I

evaluate and reject the argument that the blood avenger was not a member

of the victim’s family. In the second, I present the evidence that the Akkadian

term b¯el damˆe, “owner of the blood,” refers both to the slayer and to the

claimant from the victim’s family. This terminology reflects the difference

between biblical and Mesopotamian law. Biblical law is focused on the representative

of the victim’s family, whereas the participation of both parties

is the assumption of Mesopotamian law. In the third excursus, I reconstruct

the Neo-Assyrian process of the adjudication of homicide from a series of

documents. This set of texts is the only one available that allows us to reconstruct

a Mesopotamian example of the adjudication of homicide from start

to finish.

The third chapter, “The Development of Places of Refuge in the Bible,”

sketches the history of the development of asylum and analyzes the cities of

refuge as described in the Pentateuchal sources. I argue as faulty the claim that

altar asylum for killers developed into the cities of refuge as a result of the

consolidation of control by the early monarchy or for the monarchy by

the Deuteronomic reform. The narrative evidence depicting asylum during

the period of the early monarchy actually shows political offenders, not

killers, seeking asylum from their political opponents, and the texts from

Deuteronomy do not present the cities of refuge as an innovation, contrary to

how other Deuteronomic reforms are depicted. The statute in the Covenant

Code, Exod 21:12–14, is ambiguous: It is equally plausible that it refers to

asylum at an altar or to a city of refuge. The second part of the chapter

shows that the differences between the Pentateuchal sources designated P/H

and D on a number of the basic features of these sanctuaries is as a direct

result of their ideological and theological programs and is not based on a

historical development from altar asylum to cities of refuge. The number of

refuges in the Priestly tradition is linked to its program of schematicizing

Israelite history, and its linkage of Levitic cities to the cities of refuge reflects

its evaluation of the Levites. The Priestly law is concerned with the purity

of space, whereas the Deuteronomic law is focused on the Israelite people.

The Deuteronomic crystallization of the cities of refuge is informed by a

Deuteronomic interest in social aspects of the law. Finally, I demonstrate how

the different traditions of P/H and D are brought together in the description

of the cities of refuge in the book of Joshua.

The relationship of the treatment of homicide to Israelite religion is the

subject of the next chapter, “Pollution and Homicide.” Homicide had a cultic

valence. I demonstrate that blood was considered to be both a polluting and

cleansing substance. The spilling of blood was a serious offense not only

because a person was slain but because the spilled blood itself was a polluting

substance. A slaying not only contaminated the slayer but affected the purity

of the nation as a whole because biblical religion extended the concept of

impurity to include certain nonritual offenses, such as homicide. The only

viable remedy was to remove the contamination by spilling the blood of the

killer, a cleansing act because of the decontaminating power of blood. This

concept is reflected in the title given to the avenger from the victim’s family,

!dh lag, “the redeemer of the blood.”

Even an accidental killing polluted. According to the Priestly traditions,

this meant that the accidental killer was forced to remain in a city of refuge

until the death of the high priest: His death acted as expiation for the contamination

incurred by the accidental death. A city of refuge was therefore both

a sanctuary and a prison. In Deuteronomy, the concept that any unlawful

killing pollutes was manifested in the concern that an accidental slayer might

be killed by the avenger before reaching the city of refuge and in mandating

a public ceremony removing the ill effects of spilled blood when a corpse

whose killer cannot be identified is discovered.

By contrast, the pollution caused by homicide is generally ignored in

sources from the rest of the ancient Near East. In the event of a corpse being

found in an open field, the concern is with determining who is responsible

for compensating the victim’s family, not with any possible contamination.

I argue that, at least in the case of Mesopotamia, this difference is due to

fundamental differences between Israelite religion and Mesopotamian religion.

In the latter, blood was considered only to be a polluting substance,

not a cleansing substance, and the blood spilled in an unlawful death did not

contaminate anyone besides the killer. Impurity was thought to be caused

by demons, and committing a sin subjugated a person under the control

of demons. The solution then was to send the demons back to their home.

Biblical religion manifests the anxiety that pollution had an effect on national

institutions and concerns and that the misdeeds of a single individual

could pose a danger to the larger group – these are concepts not extant in

Mesopotamian religion.

In Chapter Five, “Typologies of Homicide,” I deal with the typologies

of homicide reflected in the biblical laws and narratives and compare them

to the typologies found in ancient Near Eastern law. I argue that both biblical

law and narrative share a common denominator in that only homicide

caused by direct physical assault is subject to legal action. Biblical narratives

show characters utilizing this loophole in the law to evade punishment and

differentiating between legal culpability and ethical responsibility, phenomena

we would not be aware of except for narrative texts. The laws manifest

a struggle to distinguish between intentional and accidental homicide.

The biblical texts lay out different criteria for determining responsibility,

a presentation that appears to reflect the dilemmas of an actual court,

whereas the ancient Near Eastern texts reflect scribal conventions divorced

from court procedure. For the Bible, justice is grounded in actual cases, in

the gray areas that make the determination of justice difficult. For cuneiform

law, justice is abstract: It is articulated in conventional cases that shy away

from complexity. The ancient Near Eastern law collections share more than

this: I demonstrate that they are part of a common literary tradition in which

a certain number of conventional cases make up the repertoire from which

an author then composes his own variations. What is striking about the

difference between biblical and ancient Near Eastern law is that the ancient

Israelites actually used the conventional cases common to ancient Near Eastern

law while reworking them in an Israelite idiom. I argue that the presence

of certain highly unusual and specific cases of homicide in biblical law and

ancient Near Eastern law collections show that biblical law was related to

a common literary tradition of law because the differences between the two

are at times of the same magnitude as the differences between the ancient

Near Eastern law collections themselves. Other scholars have claimed that

the similarities are due to the biblical jurist actually having a copy of ancient

Near Eastern law collections in front of him or that there was a common legal

practice used extensively but rarely put into writing throughout the ancient

Near East. I attempt to demonstrate that particular statutes on homicide in

biblical law are part of the ancient Near Eastern literary tradition of writing

formal law.

The chapter concludes with two appendixes. The first examines and dismisses

the claim that the principle that only intentional homicide merits the

death penalty is a later development in biblical law. The second analyzes

whether the biblical principle that only an individual who kills another human

being by direct means is subject to legal action is applied in cuneiform

law.

Chapter Six addresses lex talionis, “an eye for an eye,” perhaps the most

controversial citation from the Bible. Capital punishment was the rule for

killers because the Bible holds that the punishment must be similar to the

offense in the aspects in which the original offense was wrong. The agent of

harm becomes the recipient of the same action of the type that constituted

the offense. It was a reversal of roles: The slayer became the slain. This

concept applied to other offenses. Just as a thief, for example, has taken

a particular type of animal away from its owner, so was that particular

type of animal demanded from the thief. The offender suffers a loss in the

same coinage. This is what lex talionis, “an eye for an eye,” signified. It

was a principle of equivalence, not of harsh justice. Capital punishment as

the punishment for homicide in cuneiform law is not a consequence of lex

talionis; rather, it is an example of the harsh punishment meted out for severe

crimes. Lex talionis is utilized in cuneiform law in some cases of nonfatal

bodily injuries. The chapter ends with an excursus examining the claim that

the Laws of Eshnunna contains alternate penalties and concludes that this

claim is unfounded.

Chapter Seven addresses the question of whether there were general assumptions

about the treatment of homicide in the ancient Near East, including

ancient Israel. A way of answering this question is to examine the

interterritorial documents from the ancient Near East to see whether there

were basic ground rules that were followed or whether every aspect had to

be negotiated from scratch. There are a number of documents internal to

the Hittite empire as well as documents sent between states. At the basis

of all the documents is the general assumption that homicide is wrong, but

there is very little more than that. In the area under Hittite hegemony, the

Hittite viceroy could force the parties to come to terms because of his political

power, but rulers of independent states would have only the power of

rhetoric to convince another ruler to remedy the wrong.

In the interests of space, only the translations of the texts from law collections

are provided since the original Sumerian, Akkadian, and Hittite texts can

easily be found in a number of recent publications. (See the book appendix

for this information.) However, I will provide transliterated texts for the

other cuneiform documents because they are far more difficult to locate and

their publications are marred by errors.