Home    Introduction    Talmudic Issues    Essays  

 Pamphlets    Parsha    Original Essays    Contact Us 


Parshat Yitro

CHALLENGE
-The biblical laws are based on the Babylonian laws of Hammurabi

The Laws of Hammurabi

Over the past century and a half, much has been learned about the ancient world in which the stories of the Bible took place. Through archaeology, we have discovered writings from other ancient cultures and are able to compare them with the Bible. One particular comparison that is common is that of the ancient laws with the biblical laws. We have many detailed records of ancient law systems and the similarities between them and the Bible have led to much speculation. In particular, the very extensive and detailed laws of Hammurabi, a Babylonian monarch who is probably King Amraphel mentioned in Genesis 14:1, are used as a point of comparison to the Bible. It is claimed, by emphasizing the similarities between Hammurabi's code and the Bible, that the two are almost identical. Since Hammurabi lived before Moshe, Moshe must have based his laws on Hammurabi's. We will try to show that this is an unnecessary conclusion. Only by emphasizing the similarities do the two codes look similar. By carefully analyzing the differences, however, we find that the two codes are based on strikingly different principles.

Basic Differences

Rabbi J. H. Hertz, in his commentary on the Torah (second edition, p. 405) lists some basic differences between Hammurabi's civilization and laws on the one hand and the Torah's on the other. Perhaps most important is that there are no Babylonian loan-words in the Torah. The legal section has no Babylonian terminology at all. This alone is a key indicator that it is not based on Babylonian laws because, as a general rule, a higher culture forces its language on a primitive people that adopts its culture. If the Torah's laws were based on Hammurabi's, one would expect some of is legal terminology to be adopted as well.

Also, it cannot be minimized that the Babylonian and Jewish societies were extremely different. The Babylonians were industrialized and urbanized; they lived in cities and conducted international commerce. The Jews, however, were nomadic, rural, and primitive. Were they to adopt the laws of a culture that was so different, the laws would have no relevance to their daily lives.

The other differences that Rabbi Hertz lists can be analyzed further to uncover their underlying themes. By doing this, we can understand more than just the details of the laws. We can understand the reasons for the laws. This, Professor Moshe Greenberg has shown, demonstrates the stark differences between these legal codes (Yehezkel Kaufman Jubilee Volume, pp. 5-28). The following is based on Professor Greenberg's analysis.

Source of the Laws

The main difference between the two law systems can be found in the introductions and side comments of the codes. Hammurabi repeatedly refers to his code as "my words which I have inscribed on my monument." They are his words. In the Babylonian theology, the king was appointed by the gods to establish justice. The king was the source of the law.

In the Bible, this is not the case. G-d is the source of the laws. They are referred to as "words of G-d" and never of man. Indeed, violation of the law is seen as a religious sin. "He who acts wilfully [against the law] whether he belongs to the native-born or the aliens is reviling G-d" (Numbers 15:30).

This difference between the source of the law is not merely a matter of theology. It has practical ramifications. For example, in Baylonian law, a man whose wife commits adultery retains the right to pardon the wife and the adulterer. The adultery is a wrong done to the husband and he retains the choice of whether to exercise his right or not.

In the Torah, adultery is not an affront to the husband but to G-d. "If a man commits adultery with the wife of another man, both the adulterer and the adulteress must be put to death" (Leviticus 20:1). The husband has no right to pardon the wife and adulterer because the law is G-d-given. We also see this in earlier narratives where adultery is considered a sin against G-d and not against the husband (Genesis 20:6, 39:8).

In a similar vein, Babylonian law gives the king absolute right to pardon in a capital case. He is the source of the law and can determine exceptions. The Torah allows no such exceptions. The law is given by G-d and the king therefore has no special rights to override it.

Murder

The Torah is strict that murder is punishable by death. Even an animal that kills a person is killed in return. Most importantly, a murderer cannot avoid punishment by paying a fine. "You shall not take a ransom for the life of a murderer who is guilty of death, but he shall surely be put to death" (Numbers 35:31).

Babylonian law, however, allows for the murdered's family to accept a ransom in lieu of death. They have the right to decide whether to have the murderer executed or merely fined. The affront is to them, the family of the murdered, and therefore the right to waive punishment is also theirs.

The Torah, however, is explicit why it does not allow this. "Whoever sheds the blood of man, by man shall his blood be shed; for in the image of G-d was man made" (Genesis 9:6). G-d created people in His image and anyone who murders a person is sinning to G-d. Only He can determine the punishment. The murdered's family has no right to waive punishment because the sin was to G-d and not just to them.

Value of Life

In the Torah, human life is considered invaluable because a person was created in the image of G-d. As we said above, no ransom can be made for a life. Similarly, no innocent life may be forfeited to pay the debt of another life.

Babylonian law, however, allows the murdered's family to demand a similar victim from the murderer's family. For example, the father of the victim may demand that the murderer's son be killed. This would cause the murderer to suffer the same loss as the murdered's family. This financial equivalence of human life and the ability to even the losses is in stark contrast to the Torah. The Torah views each life as being of divine origin. Babylonian law views each life as an economic asset.

Similarly, Babylonian law applies the death penalty to certain property crimes. Breaking and entering, looting at a fire, and theft are punishable by death. Evidently, this is due to the valuation of a life in economic terms. A person's life is viewed as a property value and can therefore be forfeited for property crimes. The Torah never assigns the death penalty for property offenses.

Individual Culpability

We find in Babylonian law the concept of vicarious punishment. A penalty is sometimes inflicted on someone other than the actual culprit. For example, a creditor who so mistreats the son of a debtor that the son dies, must lose his own son. A man who kills the pregnant daughter of another must lose his own daughter. If a poorly constructed house falls and kills the owner's son, the builder's son must be executed. Crime is viewed as a family matter and family members may be punished for each other's crimes.

This is not the case in the Torah. Deuteronomy 24:16 makes quite clear that courts may not punish anyone but the culprit - "Parents shall not be put to death for children, nor children for parents; each shall be put to death for his own crime". We see a similar hint to this in Exodus 21:31 regarding the goring of an ox - "Whether it gored a son or a daughter, according to this judgement it shall be done to him". The same law applies whether an ox gores an adult or a child. There is no familial culpability in the Torah.

The underlying conceptual differences between the Torah and Hammurabi's code demonstrate that there was no borrowing between the two systems. The Torah's law has fundamentally different values and cannot have been based on Babylonian law. The Torah views the law as G-d-given and human life as sacred. This is entirely different from Hammurabi's man-made law that views life as an economic asset. The two laws may look similar in some respects but their underlying postulates are so different that one cannot have been based on the other.


Back Home


Contributor(s): Gil Student
Last revised: 1/30/02
Aishdas 2002