The Message of the Covenant Collection: Do Not Abuse Power

Hammurabi declares in the epilogue of his law collection (18^th c. B.C.E.) that he created his laws to protect the weak and oppressed:^[1]

^{LH Epilogue ¶8} So that the mighty might not exploit the weak, and so that the orphan and the widow may be treated properly, I have written these very special words of mine on this stone…so that disputes may be settled in the land, so that decisions may be made in the land, so that the oppressed may be treated properly.

Rather than presenting enforceable law, the law collections represent the ideal of social justice and its enactment by the king. Addressing the gods, Hammurabi presents himself as a šar mīšarum, a “righteous king,” who is concerned about the welfare of his subjects. He offers direct ways to restrain the powerful parts of society who would abuse their power to oppress its weaker parts. The king’s ultimate goal is for the oppressed to bless him to the gods so that the gods will favor him.^[2]

Historian of ancient Near Eastern law Raymond Westbrook (1946–2009) observed that Hammurabi’s laws, like other ancient Near Eastern law collections, were intended as a method for preventing the abuse of power.^[3] This interest is clear for example, in the law governing exploitation of those who worked the king’s lands:

^{LH §34} If a captain or an inspector has taken the private property of a soldier, has treated a soldier unfairly, has allowed a soldier to be hired, has offered a soldier to a powerful man in a court, or has taken from a soldier a presentation given by the king, such a captain or inspector shall be killed.

The captain described here is a person appointed by the king to administer his land and its produce. The workers were defined as soldiers because their rights on the land were conditioned upon their recruitment for significant periods of time in the king’s service, whether in war or in cultivating newly acquired territories or any other activity.

Some captains used their unlimited authority over their soldiers for their own private good, for example by confiscating the soldier’s property or assigning private work to them. The death penalty is imposed not as punishment for the financial crime of deriving private benefits, but rather for the administrative crime of abuse of power.

A concern to restrain abuses of power is also present in some biblical texts.^[4] The psalmist, for example, in extolling the virtues of the king, perhaps even at his coronation,^[5] expresses expectations of royal justice similar to those of Hammurabi:

‏^{תהלים עב:יב} כִּי יַצִּיל אֶבְיוֹן מְשַׁוֵּעַ וְעָנִי וְאֵין עֹזֵר לוֹ. ^עב:יג יָחֹס עַל דַּל וְאֶבְיוֹן וְנַפְשׁוֹת אֶבְיוֹנִים יוֹשִׁיעַ. ^עב:יד מִתּוֹךְ וּמֵחָמָס יִגְאַל נַפְשָׁם וְיֵיקַר דָּמָם בְּעֵינָיו.

^{Ps 72:12} For he saves the needy who cry out (or: from the hand of a noble man), the lowly who have no helper. ^72:13 He cares about the poor and the needy; He brings the needy deliverance. ^72:14 He redeems them from fraud and lawlessness; the shedding of their blood weighs heavily upon him.^[6]

Restricting Abuses of Power in the Covenant Collection

The Covenant Collection (Exod 21–23) promotes similar ideals.^[7] For example:

‏^{שׁמות כב:כא} כָּל אַלְמָנָה וְיָתוֹם לֹא תְעַנּוּן. ^כב:כב אִם עַנֵּה תְעַנֶּה אֹתוֹ כִּי אִם צָעֹק יִצְעַק אֵלַי שָׁמֹעַ אֶשְׁמַע צַעֲקָתוֹ. ^כב:כג וְחָרָה אַפִּי וְהָרַגְתִּי אֶתְכֶם בֶּחָרֶב וְהָיוּ נְשֵׁיכֶם אַלְמָנוֹת וּבְנֵיכֶם יְתֹמִים.

^{Exod 22:21} You shall not ill-treat and widow or orphan. ^22:22 If you do mistreat them, I will heed their outcry as soon as they cry out to me, ^22:23 and My anger shall blaze forth and I will put you to the sword, and your own wives shall become widows and your children orphans.

Like Hammurabi’s law against supervisors exploiting the king’s workers, this law warns the powerful against abusing their power. This time however, the sanction is not capital punishment enacted by the king but rather a more dramatic divine act. God hears the curse and rushes to help the oppressed, enacting a punishment of מידה כנגד מידה, quid pro quo.^[8]

The opening debt-slavery laws of the Covenant Collection similarly focus on protection of the poor rather than on the property rights of the slave owner.^[9] The acquisition of slaves is passed over in silence, and instead the text is largely dedicated to their release from service!^[10]

‏^{שׁמות כא:ב} כִּי תִקְנֶה עֶבֶד עִבְרִי שֵׁשׁ שָׁנִים יַעֲבֹד וּבַשְּׁבִעִת יֵצֵא לַחָפְשִׁי חִנָּם. ^כא:ג אִם בְּגַפּוֹ יָבֹא בְּגַפּוֹ יֵצֵא אִם בַּעַל אִשָּׁה הוּא וְיָצְאָה אִשְׁתּוֹ עִמּוֹ.

^{Exod 21:2} When you acquire a Hebrew slave, he shall serve six years; in the seventh year he shall go free, without payment. ^21:3 If he came single, he shall leave single; if he had a wife, his wife shall leave with him.

The choice to open the collection with this law seems to be ideological, and it should be read in its immediate literary context. The Covenant Collection stands right after the story of the exodus from Egypt, specifically following the divine statement in the Decalogue:

^{שׁמות כ:ב} אָנֹכִי יְ־הוָה אֱלֹהֶיךָ אֲשֶׁר הוֹצֵאתִיךָ מֵאֶרֶץ מִצְרַיִם מִבֵּית עֲבָדִים.

^{Exod 20:1} I am YHWH your God who brought you out of the land of Egypt, the house of bondage.^[11]

Elsewhere, the Covenant Collection includes innovative provisions to protect slaves, requiring manumission if a master disfigures his slave:

‏^{שׁמות כא:כו} וְכִי יַכֶּה אִישׁ אֶת עֵין עַבְדּוֹ אוֹ אֶת עֵין אֲמָתוֹ וְשִׁחֲתָהּ לַחָפְשִׁי יְשַׁלְּחֶנּוּ תַּחַת עֵינוֹ. ^כא:כז וְאִם שֵׁן עַבְדּוֹ אוֹ שֵׁן אֲמָתוֹ יַפִּיל לַחָפְשִׁי יְשַׁלְּחֶנּוּ תַּחַת שִׁנּוֹ.

^{Exod 21:26} When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free on account of his eye. ^21:27 If he knocks out the tooth of his slave, male or female, he shall let him go free on account of his tooth.

This kind of sanction is highly unusual in ancient Near Eastern law. The personal injury provisions in Hammurabi’s laws, for example, impose monetary fines as compensation to a slave’s owner (not the slave) if someone other than the owner seriously harms the slave:

^{LH §199} If he has blinded the eye of a man’s slave or has broken the bone of a man’s slave, he will weigh out half his value.

By contrast, the Covenant Collection asserts that the power of the master over his slave cannot be conceived as merely economic. The Covenant Collection thus conveys a message about the dignity of all human beings, including slaves.^[12]

The Covenant Collection’s concern for the welfare of the poor also appears in the law of Shemitah (release). Only in Exodus is the motivation for this law providing food for the poor:^[13]

^{שׁמות כג:יא} וְהַשְּׁבִיעִת תִּשְׁמְטֶנָּה וּנְטַשְׁתָּהּ וְאָכְלוּ אֶבְיֹנֵי עַמֶּךָ וְיִתְרָם תֹּאכַל חַיַּת הַשָּׂדֶה כֵּן תַּעֲשֶׂה לְכַרְמְךָ לְזֵיתֶךָ.

^{Exod 23:11} But in the seventh you shall let it [your land] rest and lie fallow. Let the needy among your people eat of it, and what they leave let the wild beasts eat. You shall do the same with your vineyards and your olive groves.

This law and others like it give rise to a fundamental insight that underlies the entire Covenant Collection: It does not provide any regulation towards the protection of private property! For example, it does not define any means for proprietors to secure the money they gave out as a loan, but rather to the contrary, it limits the power of the rich to secure it by means of a pledge:

^{שׁמות כב:כה} אִם חָבֹל תַּחְבֹּל שַׂלְמַת רֵעֶךָ עַד בֹּא הַשֶּׁמֶשׁ תְּשִׁיבֶנּוּ לוֹ. ^כב:כו כִּי הִוא כְסוּתֹה [כְסוּתוֹ] לְבַדָּהּ הִוא שִׂמְלָתוֹ לְעֹרוֹ בַּמֶּה יִשְׁכָּב וְהָיָה כִּי יִצְעַק אֵלַי וְשָׁמַעְתִּי כִּי חַנּוּן אָנִי.

^{Exod 22:25} If you take your neighbor’s garment in pledge, you must return it to him before the sun sets; ^22:26 it is his only clothing, the sole covering for his skin. In what else shall he sleep? Therefore, if he cries out to Me, I will pay heed, for I am compassionate.

There is no “repossession order.” Rather, the implicit assumption is that unlike the poor, the rich and powerful do not require the law’s protection, as they have ample means to secure their property, whether by sheer force (like Hammurabi’s captain) or by manipulating the common law as enacted by local institutions (cf. Prov. 22:22).

Abraham Ibn Ezra on the Message of the Covenant Collection

Long before the comparative evidence of the ancient Near Eastern law collections was discovered, Abraham Ibn Ezra (b. Tudela 1089/1092 – d. London 1164/1167), the Spanish polymath known for his Bible commentaries, already intuited a motivation for the Covenant Collection. Ibn Ezra follows a cue from the Karaite commentator Yefet ben ‘Eli (Jerusalem, second half of the 10^th century) to make sense of the sequence in which the law against keeping a poor person’s garment in pledge (22:25–26) is followed by the law against cursing God or a chieftain:

^{שׁמות כב:כז} אֱלֹהִים לֹא תְקַלֵּל וְנָשִׂיא בְעַמְּךָ לֹא תָאֹר.

^{Exod 22:27} You shall not revile God, nor put a curse upon a chieftain among your people.

Interpreting אֱלֹהִים here as “a powerful person” (as do some ancient Jewish commentators as well^[14]) based on the parallelism with נָשִׂיא, “chieftain,” in the second half of the verse, he explains:

^{אבן עזרא שמות [ארוך] כב:כז} אמר יפת, טעם להזכיר אלהים לא תקלל אולי העני ברוב צערו בלילה, אם יעבור המלווה ולא ישיב לו העבוט יקלל את הדיין שדן שייקח עבוטו.

^{Ibn Ezra Exod [long] 22:27} Yefet said that the meaning of “do not curse Elohim” is that the poor man, anguished during the night if the creditor does not return his pledged (garment) to him, will curse the judge who commissioned that pledge.^[15]

The law of the pledged garment builds on the poor’s unique power of direct contact with God, as God promises כִּי יִצְעַק אֵלַי וְשָׁמַעְתִּי, “if he cries out to Me, I will pay heed” (22:26). Ibn Ezra suggests that this power too should be restrained, to prevent the poor from abusing it.

The driving force behind this interpretation is Ibn Ezra’s notion that the entire Covenant Collection is in fact a treatise on the protection of the poor, a notion that may have been influenced by Ibn Ezra’s own poverty, frequently expressed in his poems.^[16] He presents this insight explicitly in the introduction to the Covenant Collection in his Exodus commentary, beginning with a (rare, for him) methodological statement on his approach to interpretation:

^{אבן עזרא שמות [קצר] כא:א} וקודם שאפרש זאת הפרשה אומר בה כלל, שכל מצוה ומשפט בפני עצמו עומד. גם יש כדמות סמך להידבק הפסוקים. והעיקר, שלא יעשה אדם חמס ויכריח מי שהוא מעט ממנו ביכולת.

^{Ibn Ezra Exod [short] 21:1} Before I begin to explain this section, let me give you a general rule. Each ordinance or commandment [recorded in the Covenant Collection] is an independent unit, but there is also a reason for the proximity of sequential verses. The main message [of the Covenant Collection] is that a person should not practice abuse and use force over someone who is weaker than him.^[17]

For Ibn Ezra, if the Covenant Collection’s central message revolves around curbing the abuse of power (the same theme found in the Mesopotamian law collections), then each and every verse should be interpreted in that light. These interpretations are fairly straightforward for laws that deal with the poor and weak, but may seem forced for other types of laws.

For example, his interpretation of the law against murder—מַכֵּה אִישׁ וָמֵת מוֹת יוּמָת, “he who fatally strikes a man shall be put to death” (21:12)—in the context of the preceding slavery laws (vv. 2–11) radically shifts the murder law from its presumed original intention:

^{אבן עזרא שמות [קצר] כא:א} והזכיר מכה איש (שמות כא:יב), בעבור שהוא צריך: וכי יכה איש את עבדו (שמות כא:כ).

^{Ibn Ezra Exod [short] 21:1} He mentioned the law of murder (21:12) in order to prepare the way for the law on the killing of a slave (21:20).

For Ibn Ezra, the murder law serves only to underscore the punishment for a person who kills his slave:

^{שׁמות כא:כ} וְכִי יַכֶּה אִישׁ אֶת עַבְדּוֹ אוֹ אֶת אֲמָתוֹ בַּשֵּׁבֶט וּמֵת תַּחַת יָדוֹ נָקֹם יִנָּקֵם.

^{Exod 21:20} When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be avenged.

Ibn Ezra applies the same logic to the laws of the goring ox (21:28–36), which is stoned to death:

^{אבן עזרא שמות [קצר] כא:א} והזכיר נגיחת השור להזכיר משפט העבד שימית השור.

^{Ibn Ezra Exod [short] 21:1} He mentioned the goring ox so that he could state the punishment for an ox who kills a slave (v. 32).

Ibn Ezra intuited a point later made by Moshe Greenberg (1928–2010): that the laws protecting the lives and bodies of slaves are unusual exceptions in their ancient legal environment.^[18] For Ibn Ezra, these laws and their unusual message are the cause for the entire Covenant Collection.

Even laws that seem to address routine issues of finance or torts (22:4–14)—material that every previous interpretation, including the standard Midrash Halakhah, views as regulating normal civil activity—are, according to Ibn Ezra, part of the main message about preventing the abuse of power:

^{אבן עזרא שמות [קצר] כא:א} ואחר כן הזכיר החמס בממון. והחל בשדה ובכרם, שהם עיקר, ואחר כן שהוציאה הארץ כגדיש וקמה, ושומר חנם ושומר שכר והנשאל.

^{Ibn Ezra Exod [short] 21:1} He then mentioned the abuse of power in financial matters, beginning with substantial properties like fields and vineyards, then the produce of the land…then the laws of the various deposits, rentals and loans.

For example, the first of the civil laws deals with damage to another person’s land or crops:

^{שׁמות כב:ד} כִּי יַבְעֶר אִישׁ שָׂדֶה אוֹ כֶרֶם וְשִׁלַּח אֶת בְּעִירֹה [בְּעִירוֹ] וּבִעֵר בִּשְׂדֵה אַחֵר מֵיטַב שָׂדֵהוּ וּמֵיטַב כַּרְמוֹ יְשַׁלֵּם.

^{Exod 22:4} When a man lets his livestock loose to graze in another’s land, and so allows a field or a vineyard to be grazed bare, he must make restitution for the impairment of that field or vineyard.

Ibn Ezra compares this verse to Isaiah’s condemnation of the rich who were exploiting the poor—the two verses share common language:

^{אבן עזרא שמות [ארוך] כב:ד} וכמוהו: ואתם בערתם הכרם (ישעיהו ג:יד).

^{Ibn Ezra Exod [long] 22:4} It is similar to: “It is you who have ravaged the vineyard” (Isa 3:14).

He thus draws a different scenario: the Covenant Collection addresses a powerful proprietor who sends his flock to graze in the field of his powerless neighbor, with the penalty protecting the owner of the field against his superiors.

In the subsequent laws regarding moral and ethical concerns (Exod 22:15–18), Ibn Ezra departs quite far from what seems like the laws’ original intention, again following his main interpretative line.

Seduced Minor – The person who seduces the minor virgin (22:15) is guilty not only of the sex crime but also of abuse of power, since the girl does not have the means to resist his temptation.

^{אבן עזרא שמות [קצר] כא:א} ואחר כן הבתולה שיכריחנה, כי היא קטנה, על כן אמר וכי יפתה (שמות כב:טו).

^{Ibn Ezra Exod [short] 21:1} He (continued to the case of the) forced virgin, because she is a minor [and thus does not have the power to resist]; this is the reason for the term יפתה “seduced” (Exod 22:15).

Sorcery – He interprets the prohibition מְכַשֵּׁפָה לֹא תְחַיֶּה, “you shall not let live a sorceress” (22:17), as a reference to the practice of love charms, which ibn Ezra conceives as a violent act against the charmed woman:^[19]

^{אבן עזרא שמות [קצר] כא:א} והזכיר מכשפה אחריה בעבור שיבקש האוהב נערה דברי כשפים למלאות תאותו.

^{Ibn Ezra Exod [short] 21:1} He then mentioned the (case of) the witch, because lovers often seek witchcraft means in order to achieve their lust.

Bestiality – In the prohibition against sexual relations with an animal—כָּל שֹׁכֵב עִם בְּהֵמָה מוֹת יוּמָת, “whoever lies with a beast shall be put to death” (22:18)—he highlights that the animal is unable to resist:

^{אבן עזרא שמות [קצר] כא:א} והזכיר הבהמה כי אין לה פה שתצעק ויושיעוה השומעים מיד השוכב.

^{Ibn Ezra Exod [short] 21:1} He mentioned (the prohibition on having sex with) an animal, because it (the animal) does not have the ability to cry out and ask for people to save her from the rapist.^[20]

Moreover, he describes the animal’s situation in terms similar to the situation of the engaged girl in Deuteronomy’s rape law:

^{דברים כב:כז} כִּי בַשָּׂדֶה מְצָאָהּ צָעֲקָה הַנַּעַר [הַנַּעֲרָה] הַמְאֹרָשָׂה וְאֵין מוֹשִׁיעַ לָהּ.

^{Deut 22:27} He came upon her in the open; though the engaged girl cried for help, there was no one to save her.

Many Laws, One Message?

Without any knowledge of Hammurabi’s laws or other ancient Near Eastern literature, Ibn Ezra detected a moral principle about preventing the abuse of power that underlies the civil laws in the Covenant Collection. He then applied that principle to the entire collection.

In effect, Ibn Ezra’s interpretation enacts a quasi-Marxist reading of the text, reading every verse as a reflection of power relations between superiors and subjects. He even prefigures attitudes such as those of the French postmodernist thinker Michel Foucault, who sought to find power relations in various institutions through society and history.^[21] He thus exposes hidden layers of meaning in the text, whether intended by the biblical author or not.

Though Ibn Ezra overstates his case, applying his principle even in cases where it is not convincing, his analysis nonetheless challenges modern readers to continue asking whether indeed the laws in the Covenant Collection—and in other ancient Near Eastern law collections—should be read as promoting a single, consistent message.