How Exodus Revises the Laws of Hammurabi

Following the revelation of the Decalogue (20:1–14), Moses alone approaches YHWH on the mountain and receives a collection of laws (20:19–23:19),^[1] which scholars refer to as the Covenant Code or Covenant Collection (henceforth CC). Afterward, Moses presents these laws to the people in a covenant ceremony in which they agree to observe its precepts (Exod 24:3–8).

In 1901, archaeologists working in Susa^[2] uncovered a 7.5-foot basalt stone stela, upon which the sixth king of Old Babylon, Hammurabi (1792–1750 B.C.E.), had a set of laws carved. The Laws of Hammurabi (henceforth LH) were translated into French by Jean-Vincent Scheil (1858–1940) and published the following year. The similarities between many of these laws to CC in substance and style was so striking that scholars ever since have speculated about the relationship between the two.^[3]

Most contemporary scholars have concluded that LH and CC are only indirectly and distantly related. The texts either arose independently out of common parent legal traditions, or Mesopotamian legal traditions became part of scribal and legal traditions in Syria-Canaan and were eventually inherited by biblical scribes.^[4]

Nevertheless, CC’s correlations with LH are sufficiently numerous to suggest that the relationship is direct.^[5] Moreover, recent scholarship on inner-biblical exegesis and hermeneutical innovation in source-dependent texts^[6] shows that even the notable differences between CC and LH may arise out of intentional transformation.^[7] When compelling explanations can be provided that differences have come about through such a process, certain differences may actually become evidence for dependence.^[8]

The assault laws of Exodus 21:12–14, 18–32, especially the laws about miscarriage, talion (i.e., “an eye for an eye, a tooth for a tooth”) offer a strong demonstration of how intricately CC is dependent upon LH, even while adjusting its content and style.^[9]

Aggravated Miscarriage and the Problem of Vicarious Punishment

The Laws of Hammurabi present two cases in which a man strikes a pregnant woman (209–210):

²⁰⁹ If a man strikes a daughter of a man (mārat awīlim) and he causes her to miscarry her fetus, he shall weigh out ten shekels of silver for her fetus.

²¹⁰ If that woman dies, they shall kill his daughter.

According to this, if the pregnant woman survives the blow, the penalty is purely financial. If she does not, the assailant is punished vicariously, namely his daughter is killed. The CC has the same two cases, but it then moves in a different direction:

Miscarriage law 1 (fine for killing the fetus)

^{שמות כא:כב} וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים.

^{Exod 21:22} If men struggle and they knock a pregnant woman and her fetus comes out but (the woman) suffers no misfortune, he shall be fined as the husband of the woman exacts from him and he shall pay bpllm (for the fetus?).^[10]

Miscarriage law 2 (bridge to talion)

^כא:כג וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ.

^21:23 If (the woman) does suffer misfortune, you shall pay life for life.

Lex Talionis^[11]

^כא:כדעַיִן תַּחַת עַיִן
שֵׁן תַּחַת שֵׁן
יָד תַּחַת יָד
רֶגֶל תַּחַת רָגֶל.
^כא:כה כְּוִיָּה תַּחַת כְּוִיָּה
פֶּצַע תַּחַת פָּצַע
חַבּוּרָה תַּחַת חַבּוּרָה.

^21:24 Eye for eye,
tooth for tooth,
arm for arm,
leg for leg,
^21:25 burn for burn,
injury for injury,
wound for wound.

CC’s laws deal with the same topics as LH in the same order. The first laws (A) treat miscarriage alone, and the second laws (B) add the death (or injury) of the mother. The chief difference is in the second laws. LH 210 has a penalty of vicarious punishment. Because the victim of the assault was the “daughter of a man,” the daughter of the assailant is to be put to death. CC lacks this punishment and sets down instead a punishment of “life for a life,” followed by the law of talion.

Talion: A Replacement Penalty in the Covenant Code

CC’s talion law reads in this comparative context as a replacement for Hammurabi’s penalty of vicarious punishment. That it is a replacement is partly indicated by the artificial attachment of CC’s talion law. It looks as if it has been imposed in its context, abruptly shifting the topic of legal conversation. It begins with a second person verb (“you shall give”), rather than a third person verb consistent with the context otherwise. Its list of talion dyads (“X for X”) also covers two and a half verses (vv. 23a–25).^[12]

The goring ox law a few verses later provide support for this interpretation. This says that if a child is a victim of goring, the case is to be handled like the foregoing case, i.e., the case for an adult (Exod 21:31; see the appendix), explicitly rejecting vicarious punishment through the perpetrator’s child.

Further evidence that CC’s talion law is a replacement is the fact that LH itself has a set of talion laws just a few paragraphs before its miscarriage laws. CC’s talion law has substantial correspondences with these and looks as if it drew from them to craft its replacement penalty.

Hammurabi’s Talion Laws

LH’s talion laws deal with three cases, blinding an eye, breaking a bone, and knocking out a tooth (196–201). These cases are then subdivided depending on the social class of the victim:

¹⁹⁶If an awīlum (a free man), blinds the eye of a member of the awīlum class, they shall blind his eye. ¹⁹⁷If he breaks the bone of an awīlum, they shall break his bone.

¹⁹⁸If he blinds the eye of a muškēnum (one economically obligated to the palace)^[13]or breaks the bone of a muškēnum, he shall weigh out one mina (sixty shekels) of silver.

¹⁹⁹If he blinds the eye of an awīlum’s slave (wardum; a slave held as property) or breaks the bone of an awīlum’s slave, he shall weigh out half of his value.

²⁰⁰If an awīlum knocks out the tooth of an awīlum of the same rank, they shall knock out his tooth.

²⁰¹If he knocks out the tooth of a muškēnum, he shall weigh out one third mina (twenty shekels) of silver.

LH’s talion laws differ in several ways from those of CC.

• Long-form/short-form—LH’s laws are fully formulated, with clauses setting up the cases followed by clauses prescribing the penalties, whereas CC’s are merely schematic dyads “eye for eye, tooth for tooth, etc.”

• Social classes—LH has three social categories: awīlum, muškēnum, and wardum, a free person, a person economically obligated to the palace (later a poor person), and a chattel slave. By contrast, CC has two classes in the larger context: free persons in the main law of Exod 21:22–25 and slaves in the following verses dealing with talion as related to slaves (vv. 26–27).

• Number of cases—LH deals with only three bodily parts or injuries (eye, bone tooth), whereas CC has eight (life, eye, tooth, arm, leg, burn, injury, wound).

Nevertheless, the similarities are striking and the differences do not necessarily mean that CC was composed independently of LH. First, some of these differences can be explained exegetically. For instance, while CC’s eye and tooth in verse 24 reflect the same body parts in LH 196 and 200, CC’s arm and leg are interpretations of LH, bifurcating and disambiguating the “bone” in LH 197.^[14] (For the burn, injury, wound in CC, see below.) The lack of a three-tiered social class division can be explained by adaptation to the simpler sociological situation conceived of for the earliest history of Israel. Finally, the change from long form to dyad form stems from adapting the talion concept to work syntactically as the new penalty in the second miscarriage law.

Intentional versus Unintentional Assault

Hammurabi’s and CC’s miscarriage and talion laws differ in another way that offers us a further clue as to how the authors of CC worked. The LH miscarriage and talion laws all assume that the assault was intentional. The assaults are direct, without mitigating circumstances, and the penalties are severe. In CC’s law, in contrast, men fight each other and happen to strike the pregnant woman, and this leads to the talion. This characterizes the assault as unintentional.

Here too CC has been influenced by LH, specifically by the LH laws that deal with inadvertent injury and homicide (LH 206–208), which appear between the talion (LH 196–201) and the miscarriage laws (LH 209–210):

²⁰⁶If a man strikes another man in a fight and injures him (lit., puts a wound, simmum, on him), that man shall swear (saying), “I did not strike him with intent,” and he shall pay the physician.

²⁰⁷If he dies from his being struck, he shall also swear. If (the victim) is an awīlum, he shall weigh out one-half mina (= thirty shekels) of silver.

²⁰⁸If a muškēnum, he (the assailant who is an awīlum) shall weigh out one-third mina (= twenty shekels) of silver.

CC has a version of these laws. It appears separately but immediately preceding its miscarriage laws:

^{שמות כא:יח} וְכִי יְרִיבֻן אֲנָשִׁים וְהִכָּה אִישׁ אֶת רֵעֵהוּ בְּאֶבֶן אוֹ בְאֶגְרֹף וְלֹא יָמוּת וְנָפַל לְמִשְׁכָּב. ^כא:יט אִם יָקוּם וְהִתְהַלֵּךְ בַּחוּץ עַל מִשְׁעַנְתּוֹ וְנִקָּה הַמַּכֶּה רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא.

¹⁸When men fight and one strikes his fellow with a stone or with a fist (?), and he (the latter) does not die but takes to his bed—¹⁹if he gets up and walks about outside on his staff, then the striker is absolved, but he must recompense him for his period of inactivity and provide for his cure.^[15]

Unlike LH, CC does not discuss in these verses what happens if the man dies as a result of the assault. This is due to CC’s larger systematic formulating of laws on homicide that appears a few verses earlier than this assault law, to which we now turn.

Laws of Homicide

CC’s main homicide legislation appears at the very beginning of CC’s assault laws:

^{שמות כא:יב} מַכֵּה אִישׁ וָמֵת מוֹת יוּמָת. ^כא:יג וַאֲשֶׁר לֹא צָדָה וְהָאֱלֹהִים אִנָּה לְיָדוֹ וְשַׂמְתִּי לְךָ מָקוֹם אֲשֶׁר יָנוּס שָׁמָּה. ^כא:יד וְכִי יָזִד אִישׁ עַל רֵעֵהוּ לְהָרְגוֹ בְעָרְמָה מֵעִם מִזְבְּחִי תִּקָּחֶנּוּ לָמוּת.

^{Exod 21:12} He who strikes a man so that he dies shall be put to death, ^21:13 and he who did not plan it, but God directed (the victim) to his hand, I will appoint a place for you to which he may flee. ^21:14 But if a person plots against his fellow to kill him by deceit, you shall take him from my altar to be put to death.

This corresponds with LH 207, cited above, and shares its concern about unintentional homicide. The topic was removed from the context of Exod 21:18–19 and placed at the beginning of CC’s assault laws because of its seriousness.^[16] Oddly, while CC’s homicide law prescribes a penalty for intentional homicide, no liability for inadvertent homicide is stated. It looks like the killer in the latter case is totally exonerated in contrast to the indemnification required by LH 206–208.

But CC’s talion law, beginning with the case of inadvertently killing the pregnant woman, actually fills this gap and sets out liability for inadvertent homicide and injury. As noted already it deals with unintentional assault whose results include homicide, incorportated in the “life for life,” which mirrors the measure-for-measure capital liability in Hammurabi’s miscarriage law (LH 210). It also is a general law that prescribes payment, i.e., compensation, according to the degree of injury suffered by the victim.

“וְנָתַתָּה”: What Does the Inadvertent Killer/Damager “Give”?

That the talion law requires payment, not literal infliction of death or injury, is indicated in part by the indirect and hence unintentional nature of the assault. Capital punishment or corporal punishment does not fit with the system of CC (e.g., 21:12–14, 18–21, 28–32).

More importantly, the verb נָתַן “give” which heads the talion list (“you shall give life for life…” v. 23b), is found in other contexts of CC to refer to payment (Exod 21:19, 30, 32) and even in the first miscarriage law (v. 22). Thus CC’s law prescribes payment for inadvertent homicide and injury like LH 206–208. The difference is that that CC’s talion allows for variable rather than fixed rates as in LH.^[17]

The formulation of this verb and the length and scope of the talion list also indicate that CC’s talion law is a general law covering all cases of inadvertent homicide and injury. In standard case law formulation, verbs describing acts committed and resulting obligations are generally in the third person (“if he/they does/do X, he/they must do Y”). For example, CC’s first miscarriage law has such a style: “If men struggle and they knock a pregnant woman …, he shall be fined as the husband of the woman exacts from him” (Exod 21:22).

The penalty in the second miscarriage law uses, in contrast, an unusual second person verb: “you shall pay (וְנָתַתָּה,) life for life, eye for eye….”). This shift in style seems to point to a legal horizon beyond the immediate context of miscarriage by broadening the audience beyond the specific case of assault. In addition, the length of the talion list with its eight dyads, and the range of injuries listed, also point to application beyond the context of miscarriage.^[18]

As such, CC’s talion law fills the gap left in its homicide law and prescribes compensation for inadvertent homicide. It thus follows the basic requirement of LH 206–208. Another smaller but significant point where these laws influence CC was in the mention of inflicting a wound (LH 206). Just as CC bifurcated Hammurabi’s bone in the talion laws of LH 198–199 into an “arm” and “leg” in v. 24, so it seems to have trifurcated Hammurabi’s “wound” in LH 206 into its “burn,” “injury,” and “wound” in verse 25.

The payment of compensation also explains the implicit mechanism for how an inadvertent killer leaves the altar. When this is paid or agreed to, the anger of the victim’s family is assuaged and the killer may return safely home. This negotiation with the family would be similar to the negotiations in the first miscarriage law (v. 22) or the goring ox (v. 30).

Reworking Hammurabi

Thus, CC’s miscarriage and talion list reworks three main sections from LH:

1. Two basic miscarriage laws, in vv. 22 and 23–25 from LH 209–210
2. Talion as a replacement penalty in the second law in vv. 23b–25 from LH 196–201
3. The context of a fight to characterize inadvertence from LH 206–208

The talion list in verses 23b–25 itself draws on these sections of LH:

4. Life in v. 23b from LH 210;
5. The eye, tooth, arm, leg in v. 24 from LH 196–201;
6. Burn, injury, and wound in v. 25 from LH 206.

These all derive from a rather delimited area of Hammurabi’s text—laws 196-210. The movement from miscarriage law to talion is an artificial yet highly creative construction that, as noted above, was primarily motivated by eliminating vicarious punishment from LH 210^[19] and secondarily motivated by a desire to complement the homicide law of verses 12–14.

CC’s connections to LH are thus very intricate. They do not seem to result from common broad legal traditions or sources that are reflected independently in LH. Rather, the correlations between the laws of CC and LH and the hermeneutic process proposed in their creation indicate that CC’s homicide and assault laws derive quite directly from a knowledge of LH.

This provides a basis for arguing that other casuistic laws in CC (those formulated as “if such is the case, then such is to be done”; Exod 21:2–22:19) that have correspondences with LH also are reworking similar laws in LH.^[20]

These, with their parallels in LH, include the laws on:

• Debt-slavery (Exod 21:2–11; LH 117, 148–149, 154–156, 282),
• Capital crimes (Exod 21:12–17; LH 14, 192–195, 207),
• Animal theft (Exod 21:35–22:3; LH 253–266),
• Animal grazing (Exod 22:4; LH 57–58),
• Stolen deposits (Exod 22:6–8; LH 122–126),
• Animal lost by a borrower (Exod 22:9–12; LH 266–267),
• Animal rental (Exod 22:13–14; LH 244–249, 268–271).^[21]

Dating the CC

CC’s use of LH as a source fits best in the chronological window of 740–640 B.C.E., during the height of Neo-Assyrian political and cultural domination. Even though LH was promulgated much earlier, many copies of LH, which was used as part of the training of scribes, are attested in this period.^[22] Moreover, we know that the CC must have been composed before the Deuteronomic law collection, generally dated to the second half of the seventh century B.C.E., which builds on it and responds to it.^[23] This period corresponds to the final years of the northern kingdom of Israel (destroyed by Assyrian in 722 B.C.E.) and Assyria’s conquest of Judah (701 B.C.E.) and its incorporation into the empire as a vassal state.

Grappling with LH and Assyrian Ideology

This dating provides an indication of CC’s ideological goal. It appears to operate as a response to the politically dominant Assyrian power by adapting Mesopotamian cultural motifs as part of Israelite/Judean heritage. The degree that this response sought to acquiesce to imperial power by emulation or to subvert it is open to debate. But a strong hint that this is an expression of resistance is found in CC’s replacing the royal human lawgiver (Hammurabi) with the national deity (YHWH) and setting this revelation of law at the nation’s birth.^[24]

Appendix

Rejection of Vicarious Punishment in Ox Goring Laws

That CC’s penalty in the second miscarriage law (vv. 23–25) is a rejection of the penalty in LH 210, discussed above, is supported by its goring ox laws, which also have close correlations with Hammurabi’s legislation, including covering the same topics in the same order:

CC’s laws display some notable differences, whose rationale cannot be explored here, such as the requirement to stone the goring ox.^[25] Here I will only explore how the two collections differ concerning vicarious punishment.

Child Victims as People

CC includes a verse on children as victims in verse 31, not found in LH. But there is still a subtle correlation. The victim of Hammurabi’s first goring ox law is an awīlum, “a (free) man” (LH 250), while the victim in its second is called a mār awīlim, “son of a (free) man.”

This term can have two meanings in Akkadian, literally, “a son of a (free) man” or broadly “one of the awīlum class,” i.e., “a (free) man” (LH 251). CC’s inclusion of children in verse 31 as part of its second law looks like a response to the ambiguity of Hammurabi’s terminology in its second law, especially against LH 250 where the victim is clearly an adult.

CC’s prescribes in its second law that even if the victim is a child (a literal mār awīlim), the case is to be prosecuted as if the victim were an adult. That is, in this case, the owner would be liable to the penalties of vv. 29–30, not his child. This rather explicit rejection of vicarious punishment supports the interpretation that the alternative penalty in vv. 23–25 in the miscarriage law is an calculated revision.^[26]