Hammurabi's Code

Parshat Mishpatim

After the high point of last week, where the Ten Commandments were given on Mt Sinai (or Mt Horeb), we seem to have a non-sequitur this week, where the entire parshah is spent recounting possibly the least exciting commandments in all the Torah.  These aren't commandments that are specific to Judaism either, not even stuff about sacrifices and rituals.  They are commandments that you might see analogues to in any society, stuff about what to do if your animal breaks free and kills someone, or if you borrow something from a friend and lose it, or if you accidentally knock out the tooth of a slave while beating him or her.

The ancient Rabbis were somewhat perplexed by this detour, and offered explanations for the strange transition from the sublime to the mundane.  However, they did not have access to information that we have today that makes this ordering somewhat more understandable.

Ancient Law Codes

In 1901 an archaeological team led my M. H. De Morgan discovered amidst the plunder of a certain Elamite king one of those artifacts that provide a tremendous window into the ancient world.  He found a law code inscribed in rock and dating to the reign of the Babylonian King Hammurabi, who reigned at approximately the 18th century BCE [1]. An even older law code, the code of Ur-Nammu was found in 1952.  That one dates to the late 3rd millennium BCE.  Yet more law codes were discovered, such as the Laws of Eshnunna dating to the late 18th century BCE.  All codes were ravaged by time, and many of the individual laws were lost.  However, a great many of the laws in Hammurabi's code survived, along with the preamble and conclusion.

These law codes govern exactly the same types of laws that appear in this week's parshah.  In a bit we'll look at some of the correspondences in detail.  Both of these law codes predate the Torah, even according to the traditional account which has Moshe writing the Torah at approximately 1400 BCE.  Before we get to some comparisons of details, let's first look at the preamble.

Divine Right of Kings

The preamble of both the code of Hammurabi and the code of Ur Nammu give divine justification for the laws.  For example from the code of Hammurabi:

...then Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash, and enlighten the land, to further the well-being of mankind.

 And from Ur Nammu:

After An and Enlil had turned over the Kingship of Ur to Nanna, at that time did Ur-Nammu, son born of Ninsun, for his beloved mother who bore him, in accordance with his principles of equity and truth...

The point I want to make here is a simple one.  These law codes are always claimed to be explicitly backed by a deity.  They are delivered by the deity's chosen messenger, in these cases, Hammurabi and Ur-Nammu.  There is a similarity to the biblical account, where Moshe, God's chosen messenger, teaches their version of the laws to Israel.  This might help explain why these laws appear here, the structure is parallel to the law codes that were popular at the time, some of which were probably known to the Israelites.

Correspondences

In this section, which will probably be a little dry, I will list the laws in both the Torah and in Hammurabi's law codes that appeared to me to be similar.

---

An owner who let's his animal's graze in another field.

Hamm. 57: If a shepherd, without the permission of the owner of the field, and without the knowledge of the owner of the sheep, lets the sheep into a field to graze, then the owner of the field shall harvest his crop, and the shepherd, who had pastured his flock there without permission of the owner of the field, shall pay to the owner twenty gur of corn for every ten gan.

Exod 22:4 If a man cause a field or vineyard to be eaten, and shall let his beast loose, and it feed in another man's field; of the best of his own field, and of the best of his own vineyard, shall he make restitution. 

---

Freeing a debtor slave after a maximal period of servitude

Hamm. 117. If any one fail to meet a claim for debt, and sell himself, his wife, his son, and daughter for money or give them away to forced labor: they shall work for three years in the house of the man who bought them, or the proprietor, and in the fourth year they shall be set free.

Exod 21:2 If thou buy a Hebrew servant, six years he shall serve; and in the seventh he shall go out free for nothing.

---

Striking a parent 

Hamm 195: If a son strike his father, his hands shall be hewn off.

Exod 21:15 And he that smiteth his father, or his mother, shall be surely put to death.

---

Lex Talionis (more on this later)

Hamm 196: If a man put out the eye of another man, his eye shall be put out. [ An eye for an eye ]

Hamm 197: If he break another man's bone, his bone shall be broken.

Hamm 200: If a man knock out the teeth of his equal, his teeth shall be knocked out. [ A tooth for a tooth ]

Exod 21:24-25 eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.

---

Injury during an altercation

Hamm 206-208. If during a quarrel one man strike another and wound him, then he shall swear, "I did not injure him wittingly," and pay the physicians. If the man die of his wound, he shall swear similarly, and if he (the deceased) was a free-born man, he shall pay half a mina in money. If he was a freed man, he shall pay one-third of a mina.

Exod 21:18-19 And if men contend, and one smite the other with a stone, or with his fist, and he die not, but keep his bed; if he rise again, and walk abroad upon his staff, then shall he that smote him be quit; only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.

---

Striking a pregnant woman

Hamm 209-210 If a man strike a free-born woman so that she lose her unborn child, he shall pay ten shekels for her loss. If the woman die, his daughter shall be put to death.

Exod 21:22-23And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman's husband shall lay upon him; and he shall pay as the judges determine. But if any harm follow, then thou shalt give life for life

---

Damage to a borrowed animal

Hamm. 261, 263 If any one hire a herdsman for cattle or sheep, he shall pay him eight gur of corn per annum. If he kill the cattle or sheep that were given to him, he shall compensate the owner with cattle for cattle and sheep for sheep.

Exod 22:13 And if a man borrow aught of his neighbour, and it be hurt, or die, the owner thereof not being with it, he shall surely make restitution.

---

Oxen that gore other people

Hamm. 251-252 If an ox be a goring ox, and it shown that he is a gorer, and he do not bind his horns, or fasten the ox up, and the ox gore a free-born man and kill him, the owner shall pay one-half a mina in money. If he kill a man's slave, he shall pay one-third of a mina.

Exod 21:28-32 And if an ox gore a man or a woman, that they die, the ox shall be surely stoned, and its flesh shall not be eaten; but the owner of the ox shall be quit. But if the ox was wont to gore in time past, and warning hath been given to its owner, and he hath not kept it in, but it hath killed a man or a woman; the ox shall be stoned, and its owner also shall be put to death. If there be laid on him a ransom, then he shall give for the redemption of his life whatsoever is laid upon him. Whether it have gored a son, or have gored a daughter, according to this judgment shall it be done unto him. If the ox gore a bondman or a bondwoman, he shall give unto their master thirty shekels of silver, and the ox shall be stoned.

---

Ear mutilation as a sign of servitude

Hamm. 282 If a slave say to his master: "You are not my master," if they convict him his master shall cut off his ear.

 Exod 21:5-6 But if the servant shall plainly say: I love my master, my wife, and my children; I will not go out free; then his master shall bring him unto God, and shall bring him to the door, or unto the door-post; and his master shall bore his ear through with an awl; and he shall serve him for ever.

---

The similarities mentioned above cannot be incidental.  The laws presented here in the Torah must have developed in the same manner as the other law codes in the region, probably borrowing from other cultures where appropriate.  The language is similar, the layout of the laws is similar, and some appear to be directly derived from others.  If you are of the opinion that these laws are divine, you must wonder why God produced laws that were so similar to those of the surrounding nations.  Especially laws that today seem barbaric, like laws regarding knocking out teeth of slaves.

An Eye for an Eye

It's worth spending a couple of lines to focus on the lex talionis, which is a fancy way of saying "an eye for an eye" that I often use to impress no-one at parties.  The traditional Jewish interpretation is that this cannot be meant literally.  From the Talmud, Bava Kamma 83b:

It was taught: R. Dosthai b. Judah says: Eye for eye means pecuniary compensation. You say pecuniary compensation, but perhaps it is not so, but actual retaliation [by putting out an eye] is meant? What then will you say where the eye of one was big and the eye of the other little, for how can I in this case apply the principle of eye for eye?

The literal interpretation is cast aside and replaced with a more humane monetary compensation.  The Gemara argues that the literal retaliation is impossible since one person's eye is not equivalent to another person's eye.  Yet we see the same phrase applied in Hammurabi's law.  If Hammurabi's lex talionis was literal, and it certainly seems it was, then doesn't it seem reasonable that the Ancient Israelites, who were clearly familiar with these law codes, would also interpret it literally?  Or, are we to interpret Hammurabi's law codes in a figurative manner as well?

It is also worth noting the poorness of the Gemara's logical reasoning.  The entire law is thrown out because of possible special cases.  Note that the same type of argument could be made for any specified punishment.  Thirty lashes?  It obviously can't be literal, because some people bleed more easily than others.   Prison?  Some people are claustrophobic, and would be unfairly punished in a small cell.  It's a fun game you can play to invalidate any potential penal prescription.  The more reasonable way to do it is to handle special cases differently.  The truth behind the motivation of the Rabbis wasn't due to logical reasoning, rather it was due to the fact that they (and the prevailing society they were in) felt these laws were barbaric.  So they invented ways to argue them away.

We see in this small section of Gemara, some shortcomings of the Rabbis who are quoted within.  They had no knowledge of these other ancient law codes, and thus often made statements that are highly unlikely in light of these other codes.  Furthermore, they had the task of taking an archaic law and modernizing it, which they did through clever interpretation.  In this case, the interpretation was enough to completely eliminate the plain meaning of the text.  Conservative and Reform Rabbis continue to do this today, interpreting ancient laws in new ways so that the old archaic meanings are considered obsolete or incorrect.  Orthodox Jews are quick to heap scorn on the movements to the left of the spectrum, while at the same time, they accept completely the Talmudic Rabbis who were doing the exact same thing.   

---

1. Kugel, "How to Read the Bible" p. 120.^