These laws, as being the oldest known, have attracted considerable attention, and much has been said concerning their connection with the Mosaic Code. Whatever connection there may be between them, however, it must be kept well in mind, that they have been formulated and compiled from totally different standpoints. Notwithstanding the references in the Code of Ḫammurabi to religious things, there is no doubt that the laws given therein are purely civil, and compiled either by the king as temporal ruler of the land, or by his advisers, or by the judges who “decided the decisions of the land.” Charitable enactments were therefore as far from the intention of the compilers of the Babylonian code as such things are from the intention of the legislation of this or any other modern civilized community or nationality. The Law of Moses, on the other hand, has long been recognized as a Priestly Code, into which all kinds of provisions for the poor, the fatherless, the necessitous, were likely to enter, and have, in fact, entered. From this point of view, Moses' code is immeasurably superior to that of the Babylonian law-giver, and can hardly, on that account, be compared with it.
From existing duplicates of this inscription, we know that it bore a title which, in accordance with the usual custom in ancient times, was taken from the first few words of the [pg 520] inscription, in this case Ninu îlu ṣîrum, “When the supreme God.” In the Ninevite duplicate in the British Museum, however, a kind of title in the modern sense of the word is given, namely, Dinani Ḫammurabi, “The Laws of Ḫammurabi,” the first word being from the common Semitic root which appears, in Semitic Babylonian, under the form of dânu, “to judge.” As far as our information goes, it would seem that, whilst the Hebrew tôrah was both judicial, ceremonial, and moral, the Babylonian dînu was judicial only. Ceremonial enactments are entirely foreign to it, and morality, in the modern sense of the word, though represented, does not hold a very high place, though it must not be forgotten that five columns of the text are wanting.
That there should be, therefore, but few parallels between the Codes of Moses and of Ḫammurabi was to be expected, though naturally likenesses and parallelisms are to be found, the Hebrews being practically of the same stock as the Babylonians, and also, as has been shown, under the influence of the same civilization. It will be noticed, in reading through the code, that not only are there no laws against sorcery, worshipping other than the national god or gods, and prostitution, but there are actually enactments referring to the first and the last, showing that they were recognized. Moral, religious, ceremonial, and philanthropic enactments are, in fact, entirely absent.
3-4. With the enactments concerning false witness, cp. Ex. xx. 16; Deut. v. 20, etc. More especially, however, are the directions in Deut. xix. 16 ff. noteworthy. Here the direction is, to do to the false witness “as he had thought to do to his brother.” In this case, too, the logical penalty would be death, in a matter involving the life of a man.
7 (liability to be regarded as a thief on account of the purchase or receiving of things without witnesses or a contract) is to a certain extent paralleled by Lev. vi. 2 ff., where, however, the penalty for wrongful possession is not death, but the restoration of the object detained, with a fifth part of the value added thereto.
8 (theft of live-stock) is illustrated by Ex. xxii. 1, where it is ordered that the thief restore five oxen for a stolen ox, and four sheep for a stolen sheep. All laws dealing with theft seem to have been more severe among the Babylonians than among the Hebrews, and inability to make the object good, with the penalties attached thereto, was visited with death (6-11, 14, 15, etc.).
14. This enactment is exactly parallel with Ex. xxi. 16: “He that stealeth a man ... shall surely be put to death.”
[pg 521]21 (housebreaking). Ex. xxii. 2-4, justifies the killing of a burglar caught in the act before sunrise, but not otherwise.
57. In the case of unlawful pasturing, it is probable that Ex. xxii. 5 may furnish the key to the obscurities of this Babylonian enactment. According to the Mosaic law, the owner of the cattle had to make the damage good with the best of his field or vineyard. To ensure getting the best, and his due share, the most satisfactory way would be to reap the offender's field, if he had one.
110. The opening (seemingly in the English sense) of a wine-house by a temple-devotee, or her merely entering such a place, was in all probability equivalent to prostituting herself, and if so, this law may be compared with Lev. xxi. 9, in which the daughter of a priest, if she profaned herself (and her father) by playing the whore, was to be put to death by burning.
117. As is shown by the preceding enactments, the person of a man might be seized for debt, but this shows that he might allow his wife, his son, or his daughter to be taken to work it off, and in that case they were to be set free in the fourth year. In Hebrew law (Ex. xxi. 2) an ordinary purchased slave was free after six years' service, but if a man sold his daughter (v. 7), she did not “go out as the men-servants do.”295
125. The theft of things on deposit entailed only restitution if the person with whom they were deposited were not in fault. In Ex. xxii. 7-9 the person condemned had to pay or restore double the value of the things stolen.
129. In this law the conditional clause at the end is incomplete, but it may be supposed that liberty was accorded therein to the king and to the injured husband to exercise mercy, and commute the death-penalty in any way they thought fit, attaching thereto any other penalty which might seem good to them. According to Lev. xx. 10, the adulterer and the adulteress were to be put to death, but in what manner is not stated. To all appearance no mercy was given.
130. As this is a case of a married woman living in her father's house, Ex. xxii. 16 is not an exact parallel. The woman being unbetrothed, the man who had violated her had to endow and marry her.
155. Incest of the nature referred to here is practically a complete parallel with Lev. xx. 12, where, however, the nature of the death-penalty is not stated. If the correction of the code of Ḫammurabi suggested in the footnote (“they shall bind that man, and cast him into the water”) be the true one, the man [pg 522] would seem to have been regarded as the chief sinner, and the woman was probably left to be dealt with by the son's family. The mere binding of the man, as in the text, would be no adequate punishment, and the correction: “They shall bind them, and cast them into the water,” pre-supposes a very serious mistake on the part of the scribe.
157. This is a parallel with Lev. xviii. 8, and xx. 11, and the penalty is death in both codes. The word “mother” in the Babylonian Code probably includes “step-mother” as well.
195. This is parallel with Ex. xxi. 15, where, however, the smiting of the mother is included, and the more severe penalty of death is prescribed, instead of merely cutting off the offending members as a punishment.
196, 197, 200, 210. These illustrate the dictum: “An eye for an eye, and a tooth for tooth” (Ex. xxi. 24, 25; Lev. xxiv. 20; Deut. xix. 21; Matt. v. 38). They were naturally the common punishments of the period when the penalty of imprisonment could not be imposed.
199. The destruction of the eye of a man's slave, or the fracture of his limb, was apparently held to entail the diminution of his value by one-half, which the person who inflicted the injury had to pay. Nothing is said, however, concerning injury to a slave by his master, and this law, therefore, has no parallel in the Mosaic ordinance given in Ex. xxi. 26, 27, where the master is spoken of as the possible aggressor, and had to set his slave free on account of the injury he had received.296
206. The law regarding injuries inflicted upon a man in a quarrel is parallel with Ex. xxi. 18, 19, except that the latter decrees that the person inflicting the injury, in addition to causing the injured man to be completely healed, has also to pay for his loss of time. On the other hand, it is noteworthy that, in the Code of Ḫammurabi, he who committed the injury had to swear that he did not do it knowingly—that is, with the intention of injuring the man, otherwise he probably came under the law of retaliation, Nos. 196, 197, and 200.
209. This is parallel with Ex. xxi. 22, but whereas the penalty for the injury to the woman was fixed at ten shekels of silver, the law of Moses allowed the husband to estimate the compensation, which was certified and probably revised by the judges.
210. It was not only “an eye for an eye, and a tooth for a tooth,” but also “a daughter for a daughter,” even when a mortal injury may not have been intended. This is practically [pg 523] the same as Ex. xxi. 23: “And if any mischief follow, then thou shalt give life for life.”
241. As this law stands, it refers to the unlawful working of another man's ox, and not to an ox taken in pledge, for the working of which there could be no remedy, any more than there was for taking a man's wife, child, or slave, in pledge to work out a debt.
244 (loss of an animal through attack by a wild beast). Compare Ex. xxii. 13: “If it (an animal delivered into the care of another) be torn in pieces, then let him bring it for witness, and he shall not make good that which was torn.” Apparently there was no obligation to place the animal in a safe place. Cf. Gen. xxxi. 39 (Jacob's reproof to Laban): “That which was torn of beasts I brought not unto thee; I bare the loss of it.”
245 ff. These are to a certain extent illustrated by Ex. xxii. 14, 15, in which passage, if the owner of the injured animal was not present, the borrower had to make good any loss. If, however, the owner was there to protect it, there was no penalty, as he could in all probability have prevented the injury from being inflicted, and in any case might be supposed to have control over the animal.
250. The owner of a furious bull was protected from loss, even though the result was fatal, if he did not know that the animal was vicious. In Ex. xxi. 28, though the owner of the offending ox was to go free, the animal itself was to be stoned to death, and its flesh not eaten. There is no doubt that this was hard on the owner, but it must have had an excellent effect, and ensured the proper enclosing of all doubtful animals.
251. Even when the master knew that his ox was vicious, the Babylonians were more lenient than the Hebrews, who, in such a case, besides the destruction of the ox, decreed the death of the owner as a punishment for his negligence (Ex. xxi. 29). As will be seen from verse 30, however, he might be spared by paying such ransom as might be imposed upon him.
252. One-third of a mana of silver is equivalent to 20 shekels, so that the sum here indicated as compensation for the death of a slave who has been gored by a bull differs from that awarded in Ex. xxi. 32, by ten shekels—one-sixth of a mana more.
266. This is in part covered by 244 (destruction of cattle by a lion), and is parallel with Ex. xxii. 10, 11, where, also, an oath had to be sworn between the parties, and the herdsman in whose care the cattle were, went free of all obligation. The accident causing the loss, however, is not there described as “an act of God.”
[pg 524]267. The wording of this law clearly indicates that it would apply if the herdsman were in fault, and suggests that the same condition must be read into Ex. xxii. 12, where, if the cattle were stolen from him, he had to make the loss good.
Besides the enactments in the Code of Moses, however, we find, in the interesting and important monument translated above, and in the legal documents of the period to which it belongs, noteworthy parallels to other parts of the Old Testament. Reference has already been made (pp. 174, 175, and 185, 186) to the contracts of the period of Ḫammurabi's dynasty which illustrate the matter of Sarah giving Hagar to Abraham because she herself was childless (Gen. xvi. 1, 2). That this was the custom in Babylonia is now confirmed by law 144, which also furnishes the reason why it was the wife who chose her partner in the husband's affections. It was because the first wife preferred to choose herself the woman who was to replace her, and in doing this, she chose one who would be her subordinate, not one who might become a really serious rival. A parallel case is that of Bilhah (Gen. xxx. 4). Hagar's despising her mistress (Gen. xvi. 4) is illustrated by law No. 146, which allows the mistress to reduce her to the position of a slave again, which was agreed to by the patriarch, the result being that Hagar fled (v. 6).
The determination to have the possession of the cave of Machpelah placed upon a thoroughly legal footing (Gen. xxiii. 14-20) may, perhaps, be illustrated by law No. 7, though there is not much parallelism between the two instances, a field with a cave and trees being a difficult thing to steal. There is hardly any doubt, however, that the patriarch desired that no accusation should be brought against him or his descendants for unlawfully using it, as is suggested by the fact that when Ephron offered to give it, he said that he did so “in the presence of the sons of my people” only, but when the transaction was completed as Abraham wished, it was done not only in the presence of the children of Heth, but before all who went in at the gate of his city (Gen. xxiii. 18), and naturally included strangers as well.
Abraham's seeking a wife for his son (Gen. xxiv. 4) is in conformity with laws 155, 156, and 166; gifts are given (Gen. xxiv. 53 and laws No. 159, 160, etc.); seemingly the father-in-law retained the presents given by his son-in-law, if he could get possession of them (Gen. xxxi. 15 and laws 159-161), and these belonged to the wife (wives) and the children (xxxi. 16 and laws 162, 167, 171, ff.).
Whether the theft of her father's teraphim by Rachel (Gen. xxxi. 19) could be construed as sacrilege or not is doubtful, but this may well have been the penalty thought of by Jacob when Laban accused some of his household of theft (Gen. xxxi. [pg 525] 32 and law No. 6), though theft, if there were no restitution, was in Babylonian law always punishable with death.
The punishment of death by burning, which Judah decreed for his daughter-in-law Tamar (Gen. xxxviii. 24), is parallel with that meted out to a devotee opening or entering a wine-house (probably a place of ill-repute), but the parallel ends there—there is no law in the code of Ḫammurabi, as at present preserved, decreeing death by burning for a widow who became a harlot.
Theft from a palace (law No. 6) is parallel with Gen. xliv. 9, where the sons of Jacob admit the justice of a death-penalty if Joseph's cup were found in the possession of any of them. Whether the purchase of the Egyptians and their land for bread by Joseph had any analogy in Western Asia or not, is uncertain, though law No. 115, as well as those which precede it, refer to something similar, but in these cases the servitude was terminable, which does not appear from Gen. xlvii. 19 ff. Thereafter the Egyptian ruler took from these farmer-thralls a fifth part of the produce, which compares well with the half or third exacted by the owner of a field in Babylonia from the hirer (law 46). Finally, the clauses of the laws of Ḫammurabi referring to adoption (No. 185) might be quoted in illustration of the adoption of Ephraim and Manasseh by their grandfather Jacob (Gen. xlviii. 5), especially when read in connection with the inscriptions translated on pp. 176 and 177, where the sharing of the adopted son “like a son” is expressly referred to.
In the New Testament, Gal. iv. 30: “Cast out the bondwoman and her son, for the son of the bondwoman shall not be heir with the son of the freewoman,” finds illustration in law 171 of Ḫammurabi's code, and the parable of the talents (Matt. xxv. 14 ff.) reminds one of the agent sending forth commissioners to get gain for him by trafficking, as in laws 100-102. 103-107 do not bear directly upon this parallel, but are worth noting in connection with it.
It will be long ere all that can be said about this noteworthy inscription finds expression. There is much needing comment, and much to study therein, and the precise rendering of many a word has still to be found out.