If the Criminal Is Unknown, Should We Punish the Crime?

In 1931, my late teacher Cyrus Gordon (1908‒2001) was a young archaeologist working at an excavation in the Kurdish region of northern Iraq. The region was much safer than it is in our day; indeed, usually there were no problems with the local villagers on such scholarly expeditions. On one occasion, however, as Professor Gordon related, a minor annoyance occurred.

Each morning the archaeological team would awake to find that its jeep had been overturned. The staff would turn the jeep right side up each time, but the next day, the jeep was overturned again. After several days of such activity, the archaeologists complained to the local mukhtar (the Arabic word for “mayor” or “village head,” though in the typical village he serves as mayor, chief-of-police, and magistrate judge all rolled into one). The mukhtar replied that he would take care of the matter.

Later that day the mukhtar came to the archaeologists and said, “Your jeep will not be overturned again.” The excavators asked, “What did you do?” The mukhtar pointed to the nearest house situated atop one of the nearby hills and said, “Do you see that house up there? My men went in there and roughed up the place.” The archaeologists asked, “Are they the ones who overturned the jeep?” And the mukhtar replied, “No, but they will find out who did it, and they will take care of them.”

The archaeologists understandably were astonished by such a display of justice, but the mukhtar had a ready reply. He had been exposed to some Western ideas of jurisprudence and he explained to the visitors from America, “You see, we have a different sense of justice than in your society. In your society, you punish criminals. In our society, we punish crimes.”^[1]

The Corpse and the Town Elders

Deuteronomy 21:1‒9 describes a situation in which a slain corpse is found in the open field between two cities and the identity of the slayer is unknown (Deut 21:1).^[2] The elders are called upon to measure the distance between the scene of the crime and the cities:

^{דברים כא:ב} וְיָצְאוּ זְקֵנֶיךָ וְשֹׁפְטֶיךָ וּמָדְדוּ אֶל הֶעָרִים אֲשֶׁר סְבִיבֹת הֶחָלָל.

^{Deut 21:2} And your elders and your judges shall go-out, and they shall measure (the distances) to the towns which are around the slain-person.

The elders of the closest town must then perform an unusual ritual in which they break the neck of a heifer that has never been worked over a body of running water,^[3] at which point, the elders declare that they are not responsible for the person’s death:

^{דברים כא:ז} וְעָנוּ וְאָמְרוּ יָדֵינוּ לֹא (שפכה) [שָׁפְכוּ] אֶת הַדָּם הַזֶּה וְעֵינֵינוּ לֹא רָאוּ.

^{Deut 21:7} And they shall declare and they shall say:  “Our hands did not shed this blood, and our eyes did not see (anything).”

Why do the village elders need to deny culpability for the murder? As the Sifre Devarim, a 3^rd cent. C.E. midrash, asks:

^{ספרי דברים §ר"י} "ידינו לא שפכה"—וכי עלת על לבנו שזקני בית דין שופכי דמים הם?!

^{Sifrei Deut §210} “Our hands did not shed this blood”—Did it cross our minds that the elders of the court were shedders of blood?

The Sifre answers that the elders are declaring that they did not cause the death indirectly by ignoring a person in need:

אלא שלא בא לידינו ופטרנוהו בלא מזונות ולא ראינוהו והנחנוהו בלא לויה.

Rather [what they are saying is]: “he did not approach us, and we [did not then] send him away without food. And we didn’t see him and leave him to travel without accompaniment.”

Putting aside the Sifre’s answer, the question they ask highlights the key message: the elders are responsible for a trespass simply by virtue of their being leaders. We find a similar attitude towards the responsibility of town officials among other ancient Near Eastern cultures.^[4]

Hammurapi: Theft

For example, a law in the section of Hammurapi’s laws (c. 1750 B.C.E.) dealing with robbery declares that the heads of a city are responsible for repaying a person’s stolen property if they cannot find the thief:

^{Laws of Hammurapi §23} If the robber should not be seized, the man who has been robbed shall establish the extent of his lost property before the god; and the city and the governor in whose territory and district the robbery was committed shall replace his lost property to him.^[5]

While this Babylonian law deals with theft, not murder, the procedure for the unresolved crime is essentially the same: the local city (or its governor) bears responsibility.

Hittite Parallels: Murder

Hittite texts offer us multiple parallels. A letter found at Ḫattuša, the capital of the Hittite realm, refers to a murderer who seems to be known or at least suspected. As the responsible parties have elected not to carry out jurisprudence, “they (only) purify (the city) in which the person was killed.”^[6] The specific means of purification is not described, though once again the city bears some responsibility.

In another Hittite text known as “Instructions to Commanders of Border Garrisons” (for which we have multiple copies), we hear about how the people must bathe in response to a murder:

[The] governor, the city commander, (and) the elders must consistently judge cases properly, and carry out (their decisions), as the rule for serious crimes (has been) done from of old. … Furthermore, afterward (the people) of the city must bathe and [make a declaration].^[7]

The bathing of the people is akin to the washing of the elders’ hands in Deuteronomy (21:6), as is the requirement that they make a declaration.

The most important ancient Near Eastern text to shed light on the law in Deuteronomy appears within the Hittite law collection,^[8] which depicts almost the same case:

^{Hittite Laws} If the place where the dead person was found is not private property, but uncultivated open country, they shall measure … in all directions, and the dead person’s heir shall take those same payments from whatever village is found to lie within that radius.^[9]

Note that, as in the biblical law, a dead person is found in the countryside, measurements are taken, and the closest village bears responsibility.

Compensation Versus Atonement

As Hammurapi was dealing with a case of theft, the fact that this law focused on payment is intuitive. But in the Hittite law, the case is of a murdered person, and again, the focus is on compensation, this time to be made to the deceased’s heir.

In contrast, the biblical murder victim law says nothing about monetary compensation, in line with the value of human life in the biblical mindset: no amount of money can compensate for the loss of human life. Instead, the focus is on the expiation, for which the elders petition:

^{דברים כא:ח} כַּפֵּר לְעַמְּךָ יִשְׂרָאֵל אֲשֶׁר פָּדִיתָ יְ־הוָה וְאַל תִּתֵּן דָּם נָקִי בְּקֶרֶב עַמְּךָ יִשְׂרָאֵל וְנִכַּפֵּר לָהֶם הַדָּם.

^{Deut 21:8} “Absolve your people Israel whom you redeemed, O YHWH, and do not place innocent blood amidst your people Israel”; and they shall be absolved of the blood.

Indeed, the purpose of the ritual is to absolve the people of Israel, as a corporate entity,^[10] of any guilt for the shedding of ‎דָּם נָקִי “innocent blood”:

^{דברים כא:ט} וְאַתָּה תְּבַעֵר הַדָּם הַנָּקִי מִקִּרְבֶּךָ כִּי תַעֲשֶׂה הַיָּשָׁר בְּעֵינֵי יְ־הוָה.

^{Deut 21:9} And you shall purge the innocent blood from your midst, for you shall do what is right in the eyes of YHWH. 

Medieval Arabic Culture: The Responsibility of the Dār

The parallels are not limited to the ancient Near East. As W. Robertson Smith (1846–1894) writes about the encyclopedic collection Kitāb al-Aghānī “The Book of Songs,” compiled by Abū al-Faraj al-Iṣfahānī during the 10^th century C.E., “the responsibility for a homicide is thrown on the nearest homestead (dār).”^[11]

In all of these cases, the town, the dār, the elders, etc., are in no way guilty of the crime – at least not according to Western jurisprudential thinking. And yet it is incumbent upon them to act in some fashion, even if the actual criminal or murderer is not thereby punished.

This returns us to the story with which I opened. The mukhtar of the northern Iraqi village understood his society similarly. The identity of the individuals(s) responsible for overturning the archaeologists’ jeep was unknown, and yet some action was required – and act he did, even if members of a different society, that is, the American archaeologists, were somewhat gobsmacked by the action.

Millennia of Continuity

The comparison between something experienced within the last century and something from three thousand years ago is possible because the Near East is a region of tenaciously traditional values and lifestyles.^[12] Obviously, the Near East today is rapidly changing, so when we speak of the traditional Near East, we do not have in mind people under the influence of Western society who may speak English or French and who dress in European fashion (as one may encounter in urban settings in the modern Near East). Instead, one must seek out villagers and Bedouin in the more isolated areas of the region, where the social world has changed little since antiquity.^[13]

In all these cases, ancient, medieval, and modern, the closest people to the scene of the crime are (or were) by no means guilty of an offense. Nevertheless, a crime has been committed and thus some resolution is required.

One need only compare what would occur under similar circumstances in the U.S., Canada, European countries, etc., including the modern state of Israel. Obviously, the police would do all they could to investigate the crime. But if no murderer were found, that would be the end of the matter. True, the police file would remain open, for years in fact, but no further criminal procedure would be necessary since, in our society, we punish criminals; if no criminal is found, then the case does not proceed further.

In the Near East, however, crimes are punished. This is true not only in the story that Professor Gordon related, but in medieval Muslim culture, Hittite culture, Hammurapi’s laws, and ancient Israel.