Barmash P. - Homicide in the Biblical World (2005)(en)

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 Miqra’it, 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:

22

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

23

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 awılu¯ (free) class, whereas LE 24 treats the detention of a member of the muskˇe¯ nu 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.

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?

Raymond Westbrook 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 to Westbrook, 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

57Raymond Westbrook, “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 Bottero´ 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