C. H. W. Johns

“ It has long been held that the laws of the Israelites, as revealed by God to Moses, by him embodied in the books of the Pentateuch and since preserved by the zealous care of the Jewish people, are incomparable. Accordingly they have been adopted professedly by most Christian nations and were early accepted by our own king Alfred1 as the basis of the law system of this our land.
We live in an age of devotion to comparative methods, when it is an article of faith to hold that the most fruitful means to attain a clear understanding of the exact nature of anything is to compare it with its like. ”

“ The slave who did acquire wealth often bought his own freedom. The master had to balance the value to him of the ransom paid against the reversion of his entire property at his death. In such a case, of course, the master fixed the price he would accept as a ransom. The slave, however, if married to a slave wife would have to buy her freedom also, and buy each of his slave children if he had any. ”

“ That the death penalty should be inflicted in the Code of Hammurabi for the brigand, for the thief who enters a temple or palace, both public treasuries, to steal, for the stealer at a neighbour’s fire, are not to be alleged as contrasts so long as we do not know what the penalties inflicted on such criminals should be. We cannot suppose such crimes unknown in Israel or so rare as not to be dealt with. All we can say is that what we have left of the Book of the Covenant does not notice them. ”

“ There were still traces of borough law, but the Code was supreme and the king’s justice ran everywhere. Temples, mansions, farms, plantations, common pasture, feudal estates, existed alongside private ownership in land.
The state of society bears surprising likenesses to that of Europe in the Middle Ages.
The law itself is no less advanced. Justice has replaced vengeance. Self-help is restrained, if not suppressed; wrong must be redressed at law. There is full protection for the weak, the widows and orphans, as the lawgiver himself points out with pride. ”

“ If her master has used her as a concubine he cannot sell her. Either he must continue to treat her as a wife or give her freedom. In the Code of Hammurabi the concubine has the same rights, whether she had been slave or free woman originally, if she has borne children. If she has not borne children to her master she may still be treated as a slave if a slave before. The contrast between the laws is only apparent. A Hebrew could not sell his slave whom he had used as concubine, although she were childless, and the Babylonian could. ”

“ The recognition of the Babylonians as a type of settled Semites led by slow gradations to the admission of other features as also Semitic, while some things hitherto only known among Semites have been recognized as the common possession of many unrelated folk. Gradually, and probably unconsciously, ‘common Semitic origin’ has become a mere euphemism for ‘Babylonian’. For to what part of the Semitic world can we look for so advanced a civilization as to be common both to the Babylonian and Israelite law? ”

“ Of course, if his master gave him a wife, the master retained power over her and the children. We cannot, however, suppose that if the enslaved Hebrew married a free woman while in servitude that the master claimed to treat her as a slave. Probably, however, the master had power to forbid such a marriage. Thus there really was no case likely to arise in Israel to compare with that legislated for in Babylonia, which law regulated all cases except this in Canaan also. The only new regulation which had come into use is the restriction on the man’s term of service. ”

“ Can any one suppose that in Israel the husband could demand and secure what compensation he chose? Surely the Hebrew law is a concise way of saying the same thing as Hammurabi’s Code does. The scale of payment could hardly be expected to be the same in both lands owing to the difference in money values. A discretionary power in the judges, or a liberty of composition between the parties, is implied in the Code which everywhere states maximum penalties. This is made clear by contemporary practice. Both legislations further take into account the possible death of the woman herself. ”

“ So if we could fasten upon just such a point in the Code of Hammurabi which appears so artificial or arbitrary, so purely local in its character that we cannot imagine it to have independently arisen elsewhere, we could use it as a test case to decide whether the great amount of common matter found in that Code and also the Laws of Moses may be set down as due to common Semitic origin, or to common human genius faced by similar needs. There is no question as to the relative age of the codes to be compared; we know definitely which is older and more original. ”

“ Let us then consider a case which, like the need for pottery, might arise anywhere when men had reached the same stage of civilization. A man has lent money to another, or its equivalent in goods. The debtor, as is commonly the case among men, finds himself unable to repay the loan, for he has consumed the goods and been unable to acquire what will replace them. His labour is probably of some value; it should be worth more than his keep; the surplus value, if he can find employment and wages, should in time enable him to repay the debt. ”

“ What proof could ever be produced that Israel did not adopt such as were convenient? In the selections and rejections which the Israelites made they showed whatever independence we may give them credit for. That they could have invented the same themselves, or obtained them elsewhere, is perfectly irrelevant. To assert that they did invent them, not adopt them, is to describe the same fact in different words. ”

“ We must then admit that if Babylonian law had sway in Canaan at all, it must have been that of the Code to all intents and purposes. We thus have a linked chain of hypotheses. If Canaanite civilization was once an offshoot of Babylonian, and gradually asserted its influence over Hebrew legislation, then we ought to find more and more likeness to the Code of Hammurabi in Israelite law as time goes on. For that purpose we may concede as much as the critics wish to claim for their arrangement of successive codes in the Books of Moses before the Code was discovered. ”

“ The value of a slave was often very little in excess of the cost of keeping him, feeding, clothing, and housing him. Indeed, he was even an anxiety after he became adult. The owner usually did wisely in providing him with a slave-girl for wife and so breeding a family of slaves, who after they had been kept to adult age might be sold profitably. But even this was a speculation, and at the best not a very profitable business. The creditor who accepted the debtors slave as a hostage for debt usually took the opportunity of a sale to pass him on. ”

“ The distinctive character of the slave is that he is fatherless by status. It is usual in legal documents to name the father and often the grandfather of the free contracting parties, the witnesses, judges, scribes, &c. No slave, unless we reckon as such a freeman temporarily reduced to slavery, is ever given as son of So-and-so. In fact, ‘the sons of fathers’, mâr banûtu, such as were the amêlu and mushkênu, are very clearly men of birth. ”

“ There is a certain delight which some feel in propounding views calculated to shock some one. The cruder view that the Hebrew lawgiver, call him Moses or some higher critical periphrasis for the same thing, sat down with a cuneiform copy of the Code before him and copied out the Babylonian laws with some adaptations, may have been enunciated with some such amiable wish, but was too crude to disturb any one. ”

“ It is really only a convenient term, like evolution, to conceal our ignorance of history.
If it could be shown that just those features which are common to the Hammurabi Code and the Israelite, and therefore presumably existed in the common Semitic origin, are unlike anything in the Sumerian or pre-Semitic laws of Babylonia, then the fact of a common Semitic origin might have to be admitted without our being able to fix upon a locality for it. In Babylonia a predominance of Semites, at least in the north, may be dated, perhaps a thousand years before Hammurabi, under Sargon of Akkad. ”

“ In Babylonia there was what we have not yet attained nor can do until the State bears all law expenses and gives a poor man justice free of cost. There was one and the same law for both rich and poor. But the aristocrat was treated differently from the commoner. In the eyes of some this is a far worse crime than favouring the rich against the poor, which is the vice of all democracy. ”

“ It is contrary to all analogy and to the Israelite tradition itself to suppose that they were all exterminated. They were obviously possessed of a higher civilization than their invaders, already, what the Israelites in time became, a settled people. Can it be thought that they exerted no influence on their conquerors? We cannot but expect that as the Israelites became settled they would adopt the customs of the settled population. ”

“ On the other hand, slave girls and women were kept in the master’s house. A master often made a slave girl mother of his children. But if so, these children were not born to slavery, but if acknowledged became legitimate heirs to the master’s estate, and if not, were at least free, and the slave mother was freed when the master died. There is no suggestion that a Babylonian master claimed any rights over the slave wife of his slave, beyond some share in such work as weaving and perhaps a few household duties. ”

“ For here tradition itself imports many difficulties. If we set Moses the lawgiver at his old place in history, just before the entrance of the Israelites into Canaan, and accept the traditional synchronism of Abraham and Amraphel, then if we accept the modern identification of Amraphel with Hammurabi we are landed in this difficulty: the Hammurabi Code is thus as much older than the Mosaic law as Abraham is before Moses. ”

“ The mere fact that a given, late, non-primitive law in Israel is not found in the Code of Hammurabi proves nothing as to the origin of any unconnected law. We have to do with a long chain, of which we can only compare the two ends. What happened between we do not know.
We may do well to clear out of the way some obstacles that might at least distract attention. An apparently strong point has been made against any connexion between the legislations on the score of philology. ”

“ Here, if anywhere, we can find a clear idea of common Semitic custom, so often appealed to to account for the similarities between Jewish law and the Hammurabi Code. But other scholars look on these narratives of the patriarchal life with deep suspicion as being a late attempt to sketch, in the light of a writer’s knowledge of what the nomads of his day were like, an instructive and edifying ancestral background for a set of very dissimilar tribes or clans, whom some political necessity led to amalgamate into the Hebrew people. ”

“ All the great law systems of the world have been classified and compared, and comparative lawyers felt qualified to assign to any new-found fragment of ancient law its true position in their schemes. The results had rather confirmed than traversed ancient claims for the supremacy of Mosaic Laws. Men had settled down to the belief that we might compare, and that to its great advantage, the Legislation of Moses with the Roman Laws of the XII Tables, with the Indian Laws of Manu or the Greek Code of Gortyna. ”