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Inventing God's Law$

David P. Wright

Print publication date: 2009

Print ISBN-13: 9780195304756

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780195304756.001.0001

Introduction: The Basic Thesis and Background

Chapter:
(p.3) 1 Introduction: The Basic Thesis and Background
Source:
Inventing God's Law
Author(s):

David P. Wright (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195304756.003.0001

Abstract and Keywords

This introduction provides an overview to the comparative study of the Covenant Code and Mesopotamian law, particularly the Laws of Hammurabi. It provides a summary of the argument of the book and contrasts the views of other recent academic studies, including those of Eckart Otto, Raymond Westbrook, Ludger Schwienhort-Schönberger, Ralf Rothenbusch, and Bernard Jackson. It also discusses methodological questions and problems arising in the comparative study of Near Eastern law, including similarities as proof of literary borrowing and the "hermaneutics of legal innovation" (as pioneered by Bernard Levinson) or compositional logic of the text.

Keywords:   comparative study, oral tradition, Amorites, Canaanites, redaction history, law collections, Near East, history of biblical law, methodology, compositional logic, inner-biblical exegesis

This study proposes a profoundly new understanding of the composition and nature of the Covenant Code (Exodus 20:23–23:19).1 It contends that this law collection, the pinnacle of the revelation at Mount Sinai according to the story of Exodus 19–24, is directly, primarily, and throughout dependent upon the Laws of Hammurabi. The biblical text imitated the structure of this Akkadian text and drew upon its content to create the central casuistic laws of Exodus 21:2–22:19, as well as the outer sections of apodictic law in Exodus 20:23–26 (along with the introduction of 21:1) and 22:20–23:19.2 This primary use of the Laws of Hammurabi was supplemented with the occasional use of material from other cuneiform law collections and from native Israelite-Judean sources and traditions. The time for this textual borrowing was most likely during the Neo-Assyrian period, specifically sometime between 740 and 640 bce, when Mesopotamia exerted strong and relatively continuous political control and cultural sway over the kingdoms of Israel and Judah, and a time when the Laws of Hammurabi were actively copied in Mesopotamia as a literary-canonical text. The Covenant Code also appears to be a unified composition, given the influence of Hammurabi’s laws throughout, the thematic integrity resulting from this, the unique scribal talents and interests necessary for the text’s composition, and its temporal proximity to the basic laws of Deuteronomy, which depend on the Covenant Code’s laws and date not much later, probably to the latter half of the seventh century. Moreover, because the Covenant Code is largely a creative rewriting of Mesopotamian sources, it is to be viewed as (p.4) an academic abstraction rather than a digest of laws practiced by Israelites and Judeans over the course of centuries. Its selective character and the manner in which it reshapes the political and theological landscape of the Laws of Hammurabi, in fact, make it appear to be preeminently an ideological document, a response to Assyrian political and cultural domination.

This model differs decidedly from current critical scholarly appraisals of the text.3 According to these, the Covenant Code’s similarities with ancient Near Eastern law—perceived only imperfectly until now—are due to general or specific traditions, preserved orally and reflected in inherited legal practice, that reach back into the second millennium bce. One model proposes that Mesopotamian customs became known in Syria-Canaan through the establishment of cuneiform scribal schools in this western region during the mid- to later second millennium. These were then handed on primarily in oral form into the first millennium, at which time the people of Israel took them over, practiced them, and encoded them in law. An alternate model proposes that the customs go back earlier to the beginning of the second millennium or even to the late third millennium, to a common stock of Amorite practices that eventually became independently encoded in the Mesopotamian law collections and the Covenant Code. Only a few scholars have allowed for direct or indirect literary influence from Mesopotamian law collections, and they usually limit this to a few laws, such as those about a goring ox. No one has ventured the idea that the apodictic laws have any connection to Hammurabi’s text.

The arguments for the prevailing traditions explanation, as just described, have seemed persuasive. These include a judgment that the Covenant Code’s basic casuistic laws (whatever a particular analysis may determine these to be) are old, from around 1000 bce, give or take a century. Support for this date has been sought in the sociological and cultural picture imagined to be reflected in the basic casuistic laws. For example, the Covenant Code never speaks of a king. Hence the basic laws have been assumed to be premonarchic or at least built on legal traditions from that period. An early dating of the Covenant Code is also supported by a relatively early dating of the laws of Deuteronomy. If the latter date to the eighth century, for example, then the Covenant Code may be from the ninth or even tenth century bce. In addition, several scholars believe that the Covenant Code was included as part of the Elohist—a few say the Yahwist—source of the Pentateuch. An early dating of these sources has required an early date for the Covenant Code. Furthermore, scholars have made connections between the Covenant Code and features in second-millennium cuneiform documents, such as slave customs reflected in Nuzi texts or the class of persons denoted by the term ḫab/piru in El-Amarna and other texts, to which the designation “Hebrew” in the Covenant Code has been related. The date of the Covenant Code, it is supposed, must be relatively close to the time of the second-millennium texts with these comparable elements.

This early dating of the Covenant Code precludes borrowing from contemporary Mesopotamian literature because Mesopotamian influence did not (p.5) extend to Israel and Judah until the mid-ninth-century bce and not significantly so until the mid-eighth century. Cuneiform scribal schools in Syria-Canaan that flourished in the second millennium, evidenced in Akkadian texts found from various Canaanite cities4 and the El-Amarna tablets of the fourteenth century, ceased to exist around 1200 bce with the urban collapse at the end of the Late Bronze Age.5 Hence the Covenant Code’s similarities to cuneiform law, so a traditions argument would claim, cannot be due to the maintenance of cuneiform law texts from the second millennium into the first millennium in the west. If any written sources were influential, these would have presumably been written in Aramaic or Phoenician and would have been limited in scope, perhaps small excerpts of laws or scribal exercises on particular subjects. But since there is no evidence for such texts—certainly there is none for the transmission of the whole of the Laws of Hammurabi in these Northwest Semitic languages—the content of the Covenant Code must result mainly from oral tradition. In any case, most scholarship has also assumed that the laws of the Covenant Code reflect actual legal customs in Israel or Judah. Therefore, whatever relationship there is to Mesopotamian custom, it is only through a pedigree of actual practice. This rules out dependence on a text and even oral traditions transmitted as abstract matters of academic discussion among scribes or jurists.

In addition to these chronological considerations, previous scholarship following a traditions explanation has also emphasized that, despite the observable similarities with Near Eastern law texts, the laws of the Covenant Code are significantly different from their nonbiblical counterparts. These differences have been taken as an index of the cultural, geographical, and chronological distance between the texts. Moreover, the number of exact correspondences between the Covenant Code and any given Near Eastern text is actually quite small. These few correlations can presumably be explained by a nonliterary model. Approaches employing a traditions model have also emphasized that similar laws or legal topics are found in several wide-ranging Near Eastern or Mediterranean law collections. For example, the Covenant Code, the Laws of Hammurabi, the Laws of Eshnunna, and the Roman Twelve Tables all have burglary laws that speak of killing a burglar (see chapter 9). These cannot all be related by literary influence. They are either all the result of coincidence (independent genesis) or the result of broad but indefinable oral tradition. This explanation is then brought to bear on all other points of similarity between the Covenant Code and Near Eastern legal texts.

Additional arguments have been mustered in support of a traditions model. Critical scholarship has concluded that the Covenant Code contains several redactional strata that arose over the course of several centuries, from approximately 1000 to 500 bce. That the Covenant Code has a complex literary history is supported in a general way by what scholarship has observed to be the nature of other biblical texts, by empirical evidence from variant ancient versions of other biblical texts,6 and from what we know about the composition of texts (p.6) from elsewhere in the ancient Near East.7 The problem for a theory of direct literary dependence is that several of the proposed compositional layers of the Covenant Code have correspondences with Near Eastern law. But it is unlikely that each stratum arose through dependence on Near Eastern legal texts. It is easier to believe that the various strata arose independent of foreign literature and out of a tradition that was only indirectly and loosely associated with Mesopotamian customs.

Related to this argument is the proposal in various works of scholarship, admittedly on the basis of meager data, of an evolutionary scheme for biblical law in general. For example, several scholars see a development from self-help customary law reflective of a simpler sociological situation to more elaborate regulations connected with village, town, and eventually state interests. The Covenant Code has been viewed as fitting into this developmental scheme. Its presumed early redactional layers reflect a relatively primitive stage of law, and the Covenant Code as a redacted whole reflects a more developed politico-judicial context. Therefore, the Covenant Code does not seem to be of foreign derivation but is a digest of growing local custom.

Further support for a traditions explanation for the laws of the Covenant Code is in the Bible’s use of oral tradition in other respects, such as for religious and theological conceptions, various customs, narrative motifs, and literary forms and techniques. It has been reasonable to conclude, therefore, that similarities between the Covenant Code and Mesopotamian legal texts are due to similar broad oral tradition and not literary dependence.

Methodological considerations also point to the validity of a traditions model. First, the claim of literary dependence seems too simplistic. After all, it would be an extremely grand stroke of luck that we happen to have the source document for the Covenant Code, given the vast stretches of time, divergent geographies, and chance nature of archaeological discovery involved.8 Second, the claim that the Covenant Code depends on the Laws of Hammurabi looks like a relic of the Pan-Babylonianism of the early twentieth century.9 Scholarship has taught us since then that we must deal with the individual context and expression not only of the Mesopotamian material but also of the biblical material.10

This study proffers new evidence and arguments that lead us to question and reject a traditions explanation and its supporting arguments, as just summarized. The Covenant Code has many more similarities with the Laws of Hammurabi than have previously been observed. These are not merely matters of specific content; they are also matters of general structure and the common distribution of themes. The similarities are such that they cannot be explained by oral tradition. If one simply moves the date of the presumed earliest material Covenant Code a bit later, to the Neo-Assyrian period, then a window of opportunity opens for use of the Laws of Hammurabi as a source text. Indeed, many scholars in recent years have been moving to such a date for a significant portion of the casuistic laws, as well as the apodictic laws, based on different evidence and considerations.11

(p.7) The primary historical problem before us can be boiled down to this: are we to believe that legal traditions from several centuries and maybe even a millennium or more past have happened to come together in a form and with a content that matches the Laws of Hammurabi, precisely at a time when Israel and Judah were under Assyrian control and when the Laws of Hammurabi were part of the Great Books library of Akkadian scribes, but that this text had no influence on the Covenant Code? A more parsimonious and compelling explanation of the Covenant Code’s origins recommends itself, and that is what this study presents.

The Evidence in Brief

The argument of this book requires detailed textual examination of the whole of the Covenant Code in connection with the Laws of Hammurabi and other sources. The thesis cannot be defended and the evidence cannot be understood and evaluated otherwise. To moderate this detail, I will present the essence of the evidence here so that a reader will have a framework for understanding the specifics to come. One need not worry that I am laying out my cards too early because this schematic presentation represents only the tip of the evidential iceberg. This précis will no doubt generate numerous questions. These will be answered in the body of the book.

Ever since the Laws of Hammurabi (henceforth LH) were discovered in excavations at Susa12 in 1901–1902 and quickly published by Scheil in 1902,13 scholars recognized their similarity to the laws of the Covenant Code (henceforth CC).14 The past century of scholarship, however, has generally perceived correspondences with LH atomistically and only in the casuistic portion of the text (i.e., Exodus 21:2–22:19).15 The goring ox laws are the clearest and most famous example of the observed similarities (for detail, see chapter 8).16

Exodus 21:28–32

Laws of Hammurabi 250–252

28If an ox gores a man or woman and he dies, the ox shall be stoned, its flesh shall not be eaten; the owner of the ox is not liable.

250If an ox gores a man while passing through the street and kills (him), that case has no claim.

29If an ox is a habitual gorer, from previous experience, and its owner has been warned, but he did not restrain it, and it kills a man or woman, the ox shall be stoned and its owner shall be put to death. 30If ransom is laid upon him, he shall pay the redemption price for his life, according to whatever is laid upon him.

251If a man’s ox is a habitual gorer, and his district has informed him that it is a habitual gorer, but he did not file its horns and did not control his ox, and that ox gores a man (lit. son of a man) and kills (him), he shall pay one-half mina (= thirty shekels) of silver.

31Or (if) it gores a son or daughter, it shall be done for him according to this law.

32If the ox gores a male slave or a female slave, he shall pay thirty shekels of silver to his (the slave’s) master and the ox shall be stoned.

252If it is the slave of a free person, he shall pay one-third mina (= twenty shekels) of silver.

(p.8) Though CC here exhibits some notable differences, its laws are nonetheless remarkably similar to those in LH, having the same basic content, formulation, and sequence. On the basis of the similarities in these laws alone, Meir Malul, for example, concluded that there must be a literary connection between the two texts.17

But the similarities with LH are much broader than what are observable between individual laws here or there and are found throughout its two genres of casuistic and apodictic laws. The casuistic laws, with the style “if … then …,” occupy the central portion of the text (21:2–22:19). These laws are surrounded by bookends of apodictic laws, with the style “do this/don’t do that” (20:23–26 and 22:20–23:19). CC’s central casuistic laws have close associations with the central casuistic laws of LH (LH 1–282), and CC’s outer apodictic laws have close thematic associations with the outer sections of LH, its prologue and epilogue, especially one particular section of the epilogue.

The casuistic laws of CC for their part display the same or nearly the same topical order as the laws in the last half of Hammurabi’s collection.18 They correspond in fourteen points, as I count them. These are summarized in table 1.1. (The reader should later examine the table in the appendix to chapter 13, which lays out the correlations in more detail.) In only a few laws is the order inexact. These differences are explainable by the creativity that CC used in revising LH. Homicide, mentioned only in a passing way in LH 207 in a law on striking (cf. LH 206), was moved to the beginning of CC’s assault laws. The topic of talion (i.e., “an eye for an eye … ”) was moved from earlier in the striking laws of LH (LH 196–201) to provide penalties for the injury or death of a woman in a case of aggravated miscarriage. This replaced vicarious punishment prescribed by LH 210, a penal principle that CC rejected (see Exodus 21:31 in the goring ox law, cited previously). The other variation in CC’s order, the breakup of the goring ox laws with a negligence law, is partly due to the shift in context from human victims to animals (a shift also visible in LH) and also to using a law from another cuneiform law source (similar to Eshnunna Law [= LE] 53) to supplement the basic goring ox law from LH.

As CC used the order of LH as a guide, it brought in laws from other places in LH outside the topical sequence, the chief examples of which are listed in table 1.2. CC also used a few laws based on other cuneiform collections, the main examples of which are listed in table 1.3. These were not necessarily derived from these known collections but may have come from an unknown source or sources (p.9)

Table 1.1: The similar sequence between the casuistic laws

Casuistic Laws of CC

Casuistic Laws of LH

Introduction: The Basic Thesis and Background

Table 1.2: Main nonsequential correspondences with LH

master relations and ear mutilation

Exod 21:5–6

LH 282

kidnapping

Exod 21:16

LH 14

negligence

Exod 21:33–34

LH 125

burglary

Exod 22:1–2a

LH 21

grazing

Exod 22:4

LH 57–58

deposit

Exod 22:6–7

LH 120, 124–125

animal rental

Exod 22:13–14

LH 244, 249

Table 1.3: Main correspondences with cuneiform laws other than LH

talion in miscarriage

Exod 21:23–25

MAL A 50, 52

an ox goring an ox

Exod 21:35

LE 53

burglary

Exod 22:1–2a

LE 13 (cf. LH 21)

burning a field

Exod 22:5

HtL 105–106

seducing a virgin

Exod 22:15–16

MAL A 55–56

sorcery

Exod 22:18

MAL A 47

(p.10)

Table 1.4: Parallel string structure of the final apodictic laws of CC

Topic

String I (Exod 22:20–30)

String II (Exod 23:9–19)

1.

general law about the poor

22:20–23: three classes – immigrant, widow, orphan – not to be oppressed; Egypt rationale

23:9: immigrant not to be oppressed; Egypt rationale

2.

two relatively long laws benefiting the poor

(A) 22:24: interest not to be taken from poor

(A) 23:10–11: poor eat from produce of seventh-year field

(B) 22:25–26: garment pledge not to be retained.

(B) 23:12: poor rest on seventh day

3.

two short laws about speaking about sovereigns

(A) 22:27a: God not to be cursed;

(A) 23:13bα: names of other gods not to be recalled

(B) 22:27b: “chieftain” (= king) not to be cursed

(B) 23:13bβ: name of these gods not to be heard on lips

4.

cultic laws

22:28–30: miscellaneous cultic rules: offer first produce, dedicate firstborn humans, offer firstborn animals after remaining with mother a week, carrion not to be eaten because people are holy

22:17–19: three annual festivals to be observed where people appear before/”see” the deity; miscellaneous cultic rules: leaven with sacrificial blood not to be offered, festival offering not to remain till morning, first fruits to be offered, kid not to be boiled in mother’s milk

that had similar laws. The topics in the sequential template of the last half of LH provided collection points for the insertion or use of these various other laws. This interspersing of extraneous materials was part of CC’s creative reworking of its basic LH source material, to create a comprehensive yet brief composition.

The apodictic laws of CC show an equally tight set of correspondences with LH. My initial publications on the relationship of CC to LH outlined these correspondences in only a general way.19 The study at hand gives new evidence from the apodictic laws that may well exceed in its force the already strong evidence from the casuistic laws. The key to understanding the relationship of the apodictic laws to LH is to recognize that the final apodictic laws (22:20–23:19) exhibit a structure with two parallel passages or strings, as I call them for sake of easy reference and identification in the discussion that follows. Each string has four corresponding themes or elements. These strings are set out in table 1.4 (see the full texts in chapter 3).

These strings are set around and augment a chiastic core of laws that prescribe proper judicial behavior in 23:1–8, as outlined in table 1.5 (see chapter 3 for the full text).20 The whole of the final apodictic laws is thus a carefully calculated structure.

The chief comparative point to note is that these final apodictic laws and also those at the beginning of CC replicate in exact sequence the themes of what I (p.11)

Table 1.5: Schematic outline of the chiastic core of the final apodictic laws

 (a) 23:1: not raising a false report (שמע שוא) or following the wicked (רשע) to be a violent witness (apodictic law)

  (b) 23:2–3: not perverting justice (הטה) or countenancing a poor person (דל) “in his case” (בריבו; apodictic law)

   (c) 23:4: returning the ox or ass of an enemy (איבך; 2nd-person casuistic law starting with כי and ending with an infinitive absolute construction plus preposition and pronoun)

   (c’) 23:5: returning the ass of an adversary (שנאך; 2nd-person casuistic law starting with כי and ending with an infinitive absolute construction plus preposition and pronoun)

  (b’) 23:6: not perverting (הטה) judgment of poor person (אביון) “in his case” (בריבו; apodictic law)

 (a’) 23: 7: keeping away from a false matter (דבר שקר), not slaying the innocent and guiltless (נקי וצדיק; cf. “violence” in member a) since the wicked (רשע) will not be exonerated (apodictic law)

(x) 23:8: extra tag: not taking a bribe.

call the exhortatory block of the epilogue of LH (cols. 47:58–49:44). This correspondence is summarized in table 1.6 (see the full texts at the end of chapter 3). The replication of themes from the exhortatory block occurs thrice: (1) in the initial apodictic laws (20:23–26), (2) in string I of the final apodictic laws (22:20–30) continuing on into chiastic passage on judicial propriety (23:1–8); and in string II of the final apodictic laws (23:9–19). This threefold iteration accounts for all the major themes in the apodictic laws. Nothing is thematically extraneous, except the brief exhortation in 23:13a, which nonetheless is to be explained from the influence of Hammurabi’s exhortatory block (see later).

The key to understanding many of the correspondences in the apodictic laws is to realize that CC has replaced Hammurabi and Mesopotamian gods with Yahweh. The Israelite-Judean god is now the author and revealer of law. His cult symbol, the altar, has replaced Hammurabi’s temple statue. Just as the exhortatory block has Hammurabi’s name memorialized at a cult site (“May my name [šumi] be recalled [lizzakir] in the Esagil temple favorably forever”), CC has Yahweh’s name memorialized at a cult site (“In every place where I cause my name [שמי] to be recalled [אזכיר]”) and prohibits the memorializing of other gods (“you shall not mention/recall [לא תזכירו] the name [שם] of other gods”). CC extends the theme of name memorialization to prohibit the cursing of deity and the native “chieftain” (i.e., the king). The coming of a wronged man before Hammurabi’s statue and stela at the Esagil temple (“let a wronged man who has a case come before the statue of me, king of justice” awilum ḫablum ša awatam iraššû ana maḫar ṣalmiya šar mišarim lillikma) is replaced with the thrice-yearly visit of male pilgrims for the festivals (e.g., “three times (p.12)

Table 1.6: Correlations between the apodictic laws and the exhortatory block

Exhortatory Block of the Epilogue of LH (LH cols. 47:59–49:17)

Initial Apodictic Laws (Exod 20:23–26)

String I of Final Apodictic Laws & Chiastic Core (Exod 22:20–23:8)

String II of Final Apodictic Laws (Exod 23:9–19)

Three individuals (the “weak,” orphan girl, widow) not to be oppressed, to be treated justly. (col. 47:59–73)

Three individuals (immigrant, widow, orphan) not to be oppressed. (22:20–23)

Immigrant not to be oppressed. (23:9)

(Two laws on poor follow: (A) no interest from poor (v. 24); (B) garment pledge not kept overnight (vv. 25–26).

(Two laws on poor follow: (A) poor eat from seventh-year produce (v. 10–11); (B) poor rest on seventh day (v. 12).

Hammurabi’s image set up in the Esagil temple. His law stela is set up before this image. (col. 47:75–78)

Images of (other) gods not to be made. Instead, an altar (symbol of the divine sovereign) is to be made. (20:23–24a)

Hammurabi’s name (“my name” šumī ) is to be recalled (zakārum) in the Esagil temple. No other king like Hammurabi. (col. 47:93–48:2)

Yahweh causes recall (זכר) of his name (“my name”; שמי) in cult place. (20:24bα)

God and the people’s chieftain (= king) are not to be cursed. (22:27)

Names (שם) of other gods not to be recalled. (זכר) (23:13)

Wronged man to visit the temple for judicial clarification. He appears before Hammurabi’s statue and stela. His prayer/praise of Hammurabi to Marduk and Zarpanitu. King and gods are called “lords” (bēlum/bēltum). (col. 48:3–58)

Sacrificial and cultic prescriptions (most of these have a connection with the sanctuary and altar and would be observed on festivals). (22:28–30) [Primarily a counterpart to the corresponding element in string II.]

Every male to appear before (emended: “see”) Yahweh at the sanctuary for pilgrimage festivals. Yahweh called “Lord” (אדן). Offerings to the deity. (23:14–19) [End of CC]

End of prayer of praise says Hammurabi provided well-being (= blessing; šīram ṭābam … išīm) for the people. Summary statement “may he (the wronged man) pray/ bless me” (likrubam). Gods that “enter (erēbum) the Esagil temple” (cf. 20:24b) provide good omens (lidammiqū). (col. 48:34–58).

Yahweh comes (בוא) to the cult place and blesses (ברך) the people. (20:24bβ)

Two laws on altar and its materials: (A) no hewn stone (v. 25); (B) no stairs (v. 26).

Admonition to the future king to ensure justice. Laws not to be altered. Eradicate wicked. Chiastic structure. (cols. 48:59–49:17)

Laws ensuring justice. Justice not to be perverted. The wicked and innocent. Patent chiastic structure. (23:1–8)

(p.13) (p.14) a year may every male among you appear before [emended: ‘see’] the Lord, Yahweh” שלש פעמים בשנה יֵרָאֶה [יִרְאֶה] כל זכורך אל [את] פני האדן יהוה). The deity of CC provides blessing to the people just as Hammurabi provided well-being to his people. He even comes (בוא) to the cult site like the gods who “enter” (erebum) the Esagil temple, though Yahweh appears in theophany, not by ritual procession as implied by the Akkadian verb.

The admonition to a future king to follow Hammurabi’s laws and example of justice is reformulated as an address to all the people to follow justice in 23:1–8. Hammurabi’s admonition to the future king also contains an inverted structure. While this is imperfect and may not have been intended as a pure chiastic structure, the structure is obvious even in a casual reading. This presumably served as the stimulus for the creation of the more balanced and thus intended chiastic structure in Exodus 23:1–8.

The only element of the final apodictic laws that is unaccounted for in terms of the string structure and topical correspondence with the exhortatory block is the very brief general command in 23:13a: “Be observant with regard to all that I have said to you” (ובכל אשר אמרתי אליכם תִּשָּׁמֵרוּ). Though out of order with respect to the exhortatory block, this nevertheless corresponds with a general command to the future king in that block: “let him keep the words of justice that I have written on my stela” (awât mišarim ša ina narîya ašṭuru liṣṣur; col. 48:64–67) and “let him be obedient to the words that I inscribed on my stela” (ana awâtim ša ina narîya ašṭuru liqulma; col. 48:78–79). Exodus 23:13a is placed where it is perhaps to signal the coming end of the collection and to emphasize the final topic of festivals and cult (23:14–19).

The placement of sections of apodictic law around the casuistic laws of 21:2–22:19 was done in imitation of the overall A-B-A structure of LH (prologue/casuistic laws/epilogue). The theme of cultic activity that pervades the prologue helped determine the cultic theme of the initial apodictic laws, as opposed to the final apodictic laws, which also include socioeconomic and judicial themes that are visible in the epilogue and especially the exhortatory block. An apparent desire to legislate and perhaps the composition of CC in a larger narrative that provided context allowed CC to replace praise of the king, as found in the prologue and epilogue, with law. Moreover, the primary motivation for CC’s apodictic formulation in its outer A-sections was the injunctive style of the exhortatory block.

Hammurabi’s prologue also influenced the transitional introduction to the casuistic laws in 21:1 (“These are the laws that you shall set before them” ואלה לפניהם תשים המשפטים אשר). The end of the prologue, just before the casuistic laws, reads: “I placed truth and justice in the mouth of the land” (kittam u mišaram ina pi matim aškun; col. 5:20–24). CC put its transitional introduction in the same position relative to the casuistic laws. CC’s introduction also reflects the content of the transitional introduction into the epilogue in LH: “(These are) the just laws that Hammurabi, the capable king, established” (dinat mišarim ša Ḫammurabi šarrum le’um ukinnuma; col. 47:1–5). The use (p.15) of the epilogue otherwise presumably facilitated CC’s use of the essence of this later transitional introduction in the formulation of 21:1.

In the broader context of similarities with LH, the correspondences between the CC’s final apodictic laws and Hammurabi’s exhortatory block continue the sequential correlation between the two collections. Both collections change genre at basically the same point and specifically at the end of the casuistic laws of LH. Their topical correspondences continue into the concluding sections (epilogue // final apodictic laws) to augment the fourteen correlations observed in table 1.1 with the four additional correlations in string I as outlined in table 1.6 (see also table 3.1 in chapter 3), for a total of eighteen sequential correlations.

The similarities just described are unique to CC and LH. No other known cuneiform law collection has as many and pervasive similarities with CC as does LH. And no other biblical collection has as many similarities to LH as does CC, in whatever order. CC thus bears the unique fingerprint of LH.

The beginning of this introduction noted several conclusions stemming from the observation of CC’s textual dependence on LH. These can be outlined in more detail here. One is that the date of CC’s composition is best located in the Neo-Assyrian period. This period attests the most copies of LH outside the Old Babylonian period, in which LH was first composed. The Neo-Assyrian period, specifically within the hundred-year period of 740–640 bce, was a period of intensive cultural contacts between the Assyrian imperial power and the subjugated states of Israel and Judah. While we do not find full-blown Akkadian scribal schools in Syria-Canaan, such as existed back in the Middle and Late Bronze Ages, there is every reason to believe that some Israelites or Judeans would have been schooled in the language and texts of their Assyrian overlords out of political necessity.

The correspondences with LH and considerations of dating further indicate that CC is an essential unity. Many of the features that scholars have identified as evidence of redactional supplementation must be understood as original to the basic version of CC in view of the correspondences with LH and the concomitant systematic revisions of that source. In fact, in many cases deviations in style and context actually turn into evidence of the use of LH and other sources. In most cases, these deviations can be attributed to the process of combining different sources, combining materials from different places in a source, and creative revision and expansion. Some room is possible for viewing laws and phrases with second-person plural forms, scattered throughout the apodictic laws, as secondary. But if they are, they were composed within the same generation that the basic edition of CC was created on the basis of LH, following its pattern. Nonetheless there are other explanations for the second-person plural elements that must be considered that allow them to be viewed as part of the foundational formulation of the text.

The third corollary of CC’s broad dependence on LH is that CC is largely an academic abstraction. CC’s laws do not arise from court proceedings or (p.16) otherwise from everyday Israelite or Judean legal practice. Nevertheless, native perspectives have been incorporated in some places. These are more visible in the apodictic laws, which speak about unique Israelite/Judean customs and interests such as festivals, seventh-day rest, the altar, particular types of sacrifices, the immigrant, and similar topics. As we will see, the participial laws of 21:12, 15–17; 22:17–19 also reflect the use of a brief native law source.

A fourth ramification is that the purpose of CC may be political and ideological. CC replaces the political paradigm of a royal Mesopotamian lawgiver with that of Yahweh as lawgiver. CC also identifies the immigrant (גר) as a chief object of the law-giving deity’s concern, a status that the text says the Israelites had while subject to Egyptian power. The concern about the immigrant and other impoverished statuses begins each of the two strings of the final apodictic laws. The casuistic laws begin with a similar concern, the debt-slave, specifically called a “Hebrew” slave, an adjective referring to national identity. This political reconfiguration in CC over against LH can be viewed as a way of asserting symbolic superiority in the face of actual political oppression. By replicating the essence of the chief exemplar of Mesopotamian law, but rearticulating the nature of sovereign power, CC turns LH against the foreign overlords of Israel and Judah. The ideological force of CC is underscored by its apparently having been created in connection with a larger narrative of enslavement and deliverance from Egypt (see chapter 12).

Earlier Explanations

As noted already, most scholars reject a model of literary dependence. Some even disparage this as outdated and unsophisticated.21 Hans Jochen Boecker, for example, set out methodological cautions in his introduction to biblical law. He cited Paul Koschaker’s influential caution from 1935:22

The days when opinion concluded from the substantial agreement of legal principles in two different codes to the derivation of the later from the earlier code, without further qualification … are over, or, perhaps more accurately, should be over. The use of the comparative method in the history of law has taught us that we must generally reckon on independent parallel development, that this gives the likely explanation for concurrences in different codes, and that direct influences are to be accepted only where they can be actually proved or at least made probable…. It would in any case be a rather primitive idea to believe that people import laws like foreign goods.23

Boecker added in summary: “Today no one would claim a direct dependence of the BC [= CC] on Hammurabi’s code.”24 After echoing Albrecht Alt’s observation that there are too many discrepancies between CC and LH to make a claim of dependence,25 Boecker cited W. Preiser: “A direct literary dependence (p.17) on Hammurabi’s ‘law’ or on any other of the law collections from the near east … cannot be proved; in fact, given the enormous temporal and geographical distance, it is anything but probable.”26 Boecker then went on to advocate for the view that casuistic law in CC and the Bible derives from Canaanite oral tradition.27

More recently, Ralf Rothenbusch and Eckart Otto have criticized arguments of literary dependence as simplistic and uninformed. After a review of arguments for literary dependence, Rothenbusch said:

One must understand these first attempts, against whose methodological inadequacy serious criticism has been raised, as “naive” understandings of a complex cultural transfer, which have completely disregarded the relevant socio-economic circumstances.28

In specific reaction to John Van Seters’s claim of a literary connection to LH and other cuneiform literature, though in the Neo-Babylonian period, Otto observed:29

A better knowledge of cuneiform legal material could have shown Van Seters that the hypothesis of direct reception of the Codex Hammurabi (CH) by J is a far too simple solution for the complex legal transfers between cuneiform and biblical law. The closest parallel to Exod 21:35–36 is not CH §§250–252 but §53 of Codex Eshnunna (CE) [=LE]. That an exilic J could get in contact with the CE, which was written in the first half of the second millennium b.c.e. and had no tradition-history after the fall of the kingdom of Eshnunna, is, as the reviewer … 30 and others have tried to show, rather improbable.

These admonitions unquestionably have a foundation. The points of correspondence that earlier studies identified as evidence for literary dependence were sometimes striking but relatively limited in scope, and they were not systematically examined and explained.31 These studies also did not tell us how CC came by or produced its distinctive formulations if it did use cuneiform sources. A traditions model seemed more reasonable, especially in view of the several evidential considerations and assumptions reviewed at the beginning of this chapter.

To provide relief for the conclusions of the present study, the most recent explanations by the traditions school, by Eckart Otto, Raymond Westbrook, Ludger Schwienhorst-Schönberger, Ralf Rothenbusch, and Bernard Jackson, are worthy of brief review. Other recent scholarship may be consulted for a complete review of the literature on CC.32

Otto argues that CC emerged incrementally and organically from real decisions of local courts in Israel’s rural countryside.33 The earliest laws existed as independent embryonic units that were free of influence from cuneiform tradition. For example, the original assault and deposit laws consisted respectively of 21:18–19, 22 and 22:6, 7aa [plus some now missing text in this verse], 9a, (p.18) 11, 12, 13, 14a. These and other individual units were expanded by scribes in Israelite towns. The assault laws, for example, were supplemented to include all of 21:18–32, and the deposit laws to include 22:6–13. Otto says that influence from Mesopotamian legal tradition is visible in CC at the later stage, mainly in redactional and organizational techniques, such as presenting a series of alternating cases and chiastic arrangement. But he emphasizes that the content of CC’s laws did not arise from Mesopotamian influence.34 That the content of CC laws is native is demonstrated primarily by CC’s numerous prescriptive differences with cuneiform texts.35 Otto is in agreement on this point with other studies that claim that differences indicate that CC had an independent origin.36 Traditions of Mesopotamian editorial techniques reached Israelite scribes indirectly through Canaanite tradition rooted in the second millennium.37 Otto argues further that various redacted subcollections (e.g., 21:2–11; 21:12–17; 21:18–32; 21:33–22:14; 23:1–8) were eventually brought together and joined to form two larger collections: 21:2–22:26 (augmented with 20:24–26) and 22:28–23:12. These were finally combined, with additions, to produce CC more or less as we have it.38

Westbrook does not view the similarities in content between CC and Near Eastern law collections as coincidental.39 They are due to a common law tradition that spread throughout the ancient Near East and perhaps even to some extent into the Greco-Roman world.40 However, this tradition consisted not so much of the laws themselves but of “standard problems” or “school problems” that were considered and answered independently by each society. This intellectual task and process produced similar legal formulations.41 The different societies often confronted similar problems by asking questions about variables in legal circumstances, hence leading to different solutions and differences in compared laws.42 Westbrook implies that the common law and tradition of standard problems reached Israel ultimately through the influence of second-millennium Akkadian scribal tradition in Canaanite cities43 and may have been mediated by the Phoenicians.44 Westbrook finds an analogy for the oral transmission of Near Eastern legal ideas or problems in the model of oral tradition and the creation of law in the Talmud.45 As for the development of the text of CC, Westbrook has argued that the models of textual growth suggested by scholars such as Otto or Schwienhorst-Schönberger are inconsistent with the editorial evidence of cuneiform analogues. One must assume that the text is coherent and consistent. The perception of inconsistencies is due to our ignorance.46

Schwienhorst-Schönberger’s study, like Otto’s, is concerned with charting CC’s redactional history. The similarity of CC’s content to Near Eastern law is due to tradition preserved in scribal schools originating in the west in the second millennium, when Mesopotamian legal texts and cuneiform legal traditions would have been known there.47 This school tradition continued in some form into the second millennium and was taken up by the Israelites.48 Rather than consisting of Westbrook’s common problems or questions, this tradition (p.19) may have been rather specific and may have, in addition to its largely oral content, included some unknown mediating texts that influenced CC to some degree. Textual influence is most likely in the law about an ox goring an ox in Exod 21:35, which is very close to LE 53.49 The laws about an ox goring a human may also be dependent on a text.50 It should not be assumed, however, that CC is dependent on LE or LH directly in these cases. Schwienhorst-Schönberger contends that from this partly oral, partly written scholastic tradition, the basic casuistic law book of CC was first constructed,51 with some expansions.52 At its earliest stage, the text of CC was rather secular. A theological orientation was imposed on the text by a later “divine law redaction” (gottesrechtliche Redaktion),53 characterized by the first-person voice of deity. Most of the second half of CC (22:17–23:9*) comes from the divine law redaction, as well as the frame of 20:24–21:11* and 23:10–19*. A number of additions were made, mainly to the apodictic sections of the text, when CC was incorporated by Deuteronomistic editors into the Sinai narrative.54

Rothenbusch’s monograph is the most thoroughgoing attempt to date to describe and explain the similarities between CC and Near Eastern law.55 For him, the correspondences are due to Mesopotamian influences on the west in the Middle Bronze and Late Bronze Ages. This tradition was maintained orally in the Phoenician sphere and transferred to Israel-Judah in the monarchic period, when CC was finally composed. He says that this did not involve written sources, even though there are remarkable similarities with LH and other cuneiform sources.56 For example, with regard to Exodus 21:18–32, he says:

… in addition to the striking parallels in content, the overall complex correspondences of Exod 21:18–27 and LH 196–214 [the assault laws] make a tradition-historical [but not textual] connection between the two traditions very likely in my view. That is further verified in what follows, particularly in Exod 21:28–32 [the ox laws].57

He also doubts that Exodus 21:35 relied on a source with a law similar to LE 53.58 As for the history of the text, the original basic casuistic laws included 21:2–11, 18–22:16. These were created as an essential unity from the oral tradition just described.59 Only a few passages are secondary.60 Rothenbusch thinks the casuistic collection was written in a rather short period and that many of the stylistic or contextual tensions and evidences of development may actually be due to the redaction of older materials. The apodictic laws are additions,61 but the elements often identified as Deuteronomistic within these are actually proto-Deuteronomistic. So are elements of the associated narrative that have been considered Deuteronomistic.62 The final redaction of CC is similarly pre-Deuteronomistic.63

Jackson has proposed a five-stage model of development for CC, similar in several respects to Otto’s model.64 Basic laws originated first in oral form. These basic laws were like the short rules or principles found in biblical stories.65 These early laws were mainly prosecuted by the wronged party himself (p.20) or herself without the need of judicial review. Hence they operated at a level of popular wisdom.66 Next, small groups of casuistic laws on specific topics were created. A third stage brought together these small groups of laws into intermediate collections, and these were later brought together into the first and basic edition of CC, consisting of casuistic laws. Finally, the collection was expanded with the apodictic laws and incorporated into the narrative. According to Jackson’s model, the laws grew up organically within an Israelite-Judean context. Nevertheless, he allows for some influence from Near Eastern law in the conversion from the oral to the written stage:

The paragraph of casuistic laws … represents an important step in the movement of the law from orality to literacy. Its form may well have been influenced by ancient Near Eastern exemplars, particularly the Laws of Hammurabi. It does not follow, however, that the content was equally influenced; moreover, the literary form of both the “intermediate collections” and the Covenant Code may, on this account, have been generated by internal considerations.67

His judgment about the indigenous nature of the content agrees with Otto. But despite this, Jackson allows for some influence on content at certain places. With regard to the ox law in 21:35 (similar to LE 53), he says:

What may well have originated as a common customary practice was followed in both cultures by reduction to writing, and, whatever the source of the common custom, the biblical reduction to writing appears to have been influenced by its literary antecedent. True, this particular law has no parallel in Hammurabi, even though the latter collection does deal with the homicidal ox, and there appears to be no possibility that the Laws of Eshnunna were actually known to the authors of the Mishpatim, even though the Laws of Hammurabi might have been. However, the parallel is so close, in terms of both content and language, that the hypothesis of a literary intermediary, no longer available to us, appears inevitable.68

In addition to the preceding recent main studies, a number of scholars have suggested an “Amorite hypothesis,” though they have not developed this in detail.69 This thesis views CC and second-millennium Mesopotamian collections as developing from a common tradition, perhaps Amorite, which fed into LH and CC. The reason for adopting this conclusion is that some of CC’s laws are thought to be evolutionarily anterior to the corresponding laws in LH, hence CC’s laws cannot come from LH.70 It is also argued that the Middle and Late Bronze Ages were unlikely times for Mesopotamian legal traditions to become entrenched in the west.71 A few scholars adopt this thesis by crediting the patriarchal stories in Genesis with some basic historical value. Israel’s legal heritage goes back to ancestors who early on had some sort of association with Mesopotamia culture.

(p.21) Even though most scholarship follows a traditions explanation for the similarities that it has identified between CC and Near Eastern law, a few recent works have nonetheless have kept the question of literary dependence alive, even though they have not necessarily advanced significantly new evidence for this conclusion.72 Finkelstein’s monograph on the goring ox surmised that there might be a more substantial connection between CC and Near Eastern law. For him, “the appearance in the Covenant Code of much of the subject matter found in the Mesopotamian law corpora cannot plausibly be explained as coincidental” and “the specific wording of the biblical rules of the goring ox is so close to that of the cuneiform antecedents that any explanation of the resemblances other than one based on some kind of organic linkage is precluded.”73 He explicitly rejected oral tradition as an explanation for the goring ox laws:

It does not help to fall back upon the assumption of an oral tradition, for we would still have to account for a gap of hundreds of years. Moreover, the form which the goring-ox laws take in the Covenant Code is so close to its cuneiform analogues that it bespeaks the presence in Palestine of an almost canonical knowledge of the precise phraseology of the earlier Akkadian formulations. There is, in short, no certain way at present of explaining the verbal identity between sources that are perhaps as much as five hundred years and as many miles apart. But the fact of this identity is incontrovertible and compels us to postulate an organic linkage between them even if this linkage cannot be reconstructed.74

In a discussion noting that the goring ox laws appear to be an academic formulation rather than a reflection of legal reality, Finkelstein said:

It is … the very unlikelihood of such an accidental occurrence [of similar goring ox laws in both LH and CC] that makes us concede that the biblical goring-ox laws must have been dependent upon their literary Mesopotamian prototypes; it would be too unreasonable to posit that such an unusual incident occurred also in early Israelite experience, and then became quite independently the source of the goring-ox laws of the Book of Exodus.75

He left the exact source undefined: “the biblical rules derive their inspiration from these earlier [Mesopotamian] prototypes or from as yet undiscovered sources that, in turn, derived from Mesopotamian prototypes.”76

Meir Malul examined the issue of comparative methodology and its probative value for making conclusions for genetic connections between CC and LH by using the goring ox laws as a test case in a monograph that, interestingly, was published a year before and in the same series as Otto’s study that emphasized the lack of connection between CC and cuneiform law.77 Malul concluded:

By applying the clear and objective criteria discussed above, this study arrives at the unmistakable conclusion that the biblical laws of the goring (p.22) ox, contrary to the views held by some scholars, are closely dependent upon their Mesopotamian counterparts. Furthermore, it suggests that the biblical author or editor knew first-hand the Mesopotamian law and that he may have even had a copy (or copies?) of them in front of him when he composed or edited his biblical version.78

For him, the source for CC’s laws went back to Late Bronze cuneiform sources in Syria-Canaan. He was not any more precise than this. He faced the same problem as Finkelstein: explaining the similarities in view of the disappearance of cuneiform scribal schools in Syria-Canaan at the end of the Late Bronze Age, before the birth of Israel, and well before the drafting of CC.

Cornelis Houtman, assessing the approaches by Malul and Otto, judged Malul to be closer to the truth. He said of Otto’s conclusions that

the Israelite stipulations originated independently of extra-biblical laws, and that Mesopotamian influence cannot be shown until the redaction of the bodies of law, are not convincing. The similarities are so specific that familiarity on the part of the writers of the covenant book with the legal traditions of the ancient Near East is virtually certain. The question whether the Israelite writers “possessed” the legal texts from the “Umwelt” in the form we know them, or whether they knew the legal traditions from “a common Near Eastern legal tradition and practice” … assuming that these ever existed … is here of lesser importance.79

Houtman’s analysis of CC, however, for the most part treats the laws as reflections of actual practice. He notes that “knowledge of the legal texts from Israel’s ‘Umwelt’ can aid in understanding the laws of the covenant book. However, one has to keep in mind that the covenant book appears to bear the stamp of the local and societal situation of the writers/compilers.”80 This theoretical tension exists implicitly in several other studies that try to make sense of the laws as real practice yet influenced by Near Eastern tradition. The more beholden the laws are to academic tradition and sources, the less they would seem to reflect actual native Israelite or Judean law.

John Van Seters has attempted to solve the problem of CC’s sources by situating the composition of CC in the Babylonian exile.81 Here, CC’s author became acquainted with LH. Van Seters even went as far as to say that the author of CC may have been familiar with the stela text of the laws, an interesting though unverifiable proposition.82 But he did not significantly develop the evidence for CC’s dependence and never explained in detail how the text in the Neo-Babylonian period was influential. This omission was partly because of his interest in proving another textual thesis, that CC was produced by the Yahwist in the exile and that CC also grew out of the laws of Deuteronomy and the Holiness Code. Van Seters’s relative dating of CC to the other biblical law corpora, and hence his textual history, cannot be accepted. Evidence clearly shows that CC is earlier than Deuteronomy and the Holiness Code. These (p.23) other collections, in fact, depend on and develop CC.83 If Deuteronomy’s basic laws date to no later than the end of the seventh century, then CC must be preexilic.84

Reaction has been split to my first published paper that laid out the basic thesis that this book expands. In his lengthy review of Van Seters’s thesis, which included reference to my study, Bernard Levinson agreed that at least the casuistic laws of CC depend on LH in the Neo-Assyrian period.85 He used this evidence against Van Seters to demonstrate that CC was, in fact, not exilic. Levinson bolstered the evidence that my earlier work presented for CC’s use of LH in the Neo-Assyrian period. This is included at the appropriate points in the present book. Levinson, however, did not agree with my arguments about the dependence of the apodictic laws on LH. But then, when he wrote, I had not yet discovered the more persuasive evidence for the dependence of the apodictic laws, presented in depth in this study.

Bruce Wells, on the other hand, has demurred at the whole of my genetic argument. In a response to my initial publication, he sought to demonstrate that CC is too dissimilar to LH to be dependent upon it.86 He proposed and employed a method for quantitatively evaluating the degree of similarity between laws to show that CC has fewer correspondences with LH than my study claims. He also argued that because CC could not have been dependent on other nonbiblical legal texts (apart from LH) to which it has similarities, because of the unavailability of those texts, one should not make the conclusion that CC was dependent on LH. Wells also critiqued the common sequence of laws that I identified between CC and LH (as outlined in table 1.1). He argued that the remaining smaller number of similarities that might be observed between CC and Near Eastern law texts, whether in content or order, are to be explained by “meta-traditions,” that is, the general diffusion of common legal ideas across the ancient Near East.87 I have already responded to Wells’s arguments in a separate publication. Some of the methodological issues that he raises, however, I briefly address later in this chapter.88

In a recent article reviewing the state of the study of biblical law, Westbrook has similarly critiqued my argument that CC’s casuistic laws were dependent on LH.89 He finds the conclusion simplistic, saying, “like all simple solutions it only works well if reality were as simple.”90 His primary specific objection is that many of the identified similarities are, in fact, not really similar and that CC has similarities to other law collections besides LH:

[Wright] can only achieve [his conclusions] by special pleading, forcing the laws into categories that make them a match, or seizing upon the most tangential resemblances as evidence of influence. Even then, there remain a hard core of laws that resist “Hammurabification” [i.e., attribution to LH], such as the case of the ox goring an ox (Exod 21:35), which is only found in CE [LE] (53), or the burning of a neighbor’s field (Exod 22:5), which is found only in HL [HtL] (106).91

(p.24) This observation seeks to shift the focus of evidential attention by downplaying CC’s pervasive similarities to LH and emphasizing CC’s more incidental (but significant) similarities to a variety of other cuneiform texts. This frees Westbrook to argue for the view, described previously, that similarities are due to common responses to legal problems that circulated through the ancient Near East.92

A primary reason that recent scholarship has not been more willing to entertain the possibility of literary dependence of CC on LH has been its recognition of only part of the evidence of similarity between the texts. Only a few works have identified sequential similarities between the texts. The work that has seen the greatest number previously is Gregory Chirichigno’s relatively recent study of debt-slavery.93 He extended the observations made by Volker Wagner about the logic and organization of CC and how the collection reflects to some degree the order of LH.94 Of my list in table 1.1, Chirichigno observed correspondences 1, 3, 4,95 5, 7, 8, and 9. He also noted that Exodus 21:2–11 contains laws related to marriage and family, the concern of LH 127–194.96 He further compared the deposit and hire laws in Exodus 22:5–15, though as a block, with LH 228–277 (and with LH 120–126). This block covers correspondences 12–14 of my list. I made my observations about the sequential correlations between CC and LH prior to reading his work.97 Thus his observations provide independent confirmation of many of my judgments. This counters Westbrook’s assertion that special pleading is involved in the evidence that I perceive. But Chirichigno did not endeavor to give a thorough explanation for the similarities he observed. He only says, following Wagner, that a Schultradition98 was probably responsible for maintaining these similar blocks and ordering of laws, perhaps from a common Amorite source.99

Second to Chirichigno in the number of observed sequential similarities is Van Seters’s recent study, noted previously. He identifies correspondences 4 (though just striking a parent), 5, 7, 8, and 10 listed in table 1.1.100 He also recognizes that the second half of CC’s casuistic laws (21:37–22:14) has a thematic connection to the first half of LH, which correlates in part with the conclusions of this study (see part II). In contrast to Chirichigno, he claims that sequential similarities are evidence of literary dependence on LH. But Van Seters presents the data very schematically, without detailed commentary. He also denies the patent correlation in the debt-slavery laws of 21:2–11 and LH 117.101 Thus Van Seters’s analysis is of limited use and evidential force.

Neither Van Seters, Chirichigno, nor any other scholar has observed correlations with LH in CC’s apodictic laws.102

Similarities, Proof, and Compositional Logic

Part I of this study surveys the new primary evidence regarding sequential and topical correlations with LH that run through the entirety of CC. Chapter 2 is (p.25) devoted specifically to the casuistic laws, and chapter 3 to the apodictic laws. This presentation allows a reader to comprehend the basic evidence as a whole without the distraction of detailed commentary on issues peripheral to the primary textual correlations. Part II provides this commentary and in doing so augments the evidence for the dependence of CC on LH and other cuneiform sources.

The question may be raised whether the observed similarities in part I and later in part II indeed prove that CC is dependent on LH. Is not this an instance of the “similar-hence-dependent-fallacy” that has been criticized in earlier considerations of the comparative method?103 Undeniably, similarity by itself does not definitively demonstrate the dependence of one text on another. As earlier studies have noted, similarities can be considered signs of genetic relationship only when evidence for an opportunity of cultural exchange exists.104 To this end, chapter 4 in part I outlines the evidence for cultural influence in the Neo-Assyrian period. Unfortunately, we do not have a smoking gun—a copy or even a fragment of LH from Israel or Judah dating to the first millennium. Nor do we have during this period a scribe using Akkadian who can specifically be identified as an Israelite or Judean. But there is considerable circumstantial evidence indicating that some Israelite and Judean scribes would have received basic Akkadian scribal education in the Neo-Assyrian period on account of the necessities of international relations. Because LH was also actively copied as a scribal text during this time, it is a reasonable assumption that one or more Israelite or Judean scribes would have been familiar with the text in some detail.

Although similarity does not prove dependence from a purely theoretical point of view, similarity can be so overpowering that, from a practical point of view and within the context of cultural contact just characterized, it begins to function as evidence of dependence. As M. L. West remarked in conclusion to his study of western Asian influences on Greece, even though a route of transmission in the diffusion of common ideas may be hard to define, nonetheless “a corpse suffices to prove a death, even if the inquest is inconclusive.”105 If this can be said about Hellenic and Near Eastern points of comparison, it all the more applies to CC and LH. For this reason, most scholars who work according to the traditions model postulate some sort of cultural or indirect genetic link between CC and Mesopotamian law. Few claim that correlations in content are purely coincidental. The argument of this study is that the similarities now identifiable are so extensive that a mere traditions theory is no longer viable. The mode of explanation must be advanced to the next level to explain the greater force of evidence: CC must have used literary sources. Two models are theoretically possible: CC either used a mediating text or texts, perhaps in a Northwest Semitic language (Aramaic or Phoenician), transmitted from the second millennium, which contained all the similarities found between CC and LH and other Near Eastern law collections, or CC used LH directly, along with a few miscellaneous and perhaps minor Akkadian legal texts, in the (p.26) Neo-Assyrian period. Chapter 4 argues that the most reasonable textual theory is the latter.

A difficulty in describing the opportunity for textual dependence is that CC contains substantial similarities to a few laws in cuneiform collections other than LH, including the Middle Assyrian Laws, the Laws of Eshnunna, and the Hittite Laws. Table 1.3 listed the primary examples. Correspondences with the Middle Assyrian Laws are less of a problem because this collection is attested, though marginally, in the Neo-Assyrian period. The Laws of Eshnunna and the Hittite Laws, however, are attested only in the second millennium. Otto and Wells use this fact to argue against a theory of textual dependence. The present study contends that the similarities between CC and LH are of such a nature that they allow for hypothesizing the existence, and CC’s use, of minor or miscellaneous law collections in the Neo-Assyrian period that contained laws similar to those in these other collections with which CC has similarities. This speculation is thriftier than to suppose the existence and transmission of all of the laws that CC has in common with Near Eastern law collections in the west over several centuries.

Another objection will be that several of the similarities identified by this study are not as strong as other similarities.106 This is true. Some of the individual points of comparison, in both the casuistic laws and in the apodictic laws, are less striking than others.107 Moreover, some smaller points of comparison that can be made in consequence of a conclusion of literary dependence that is based on more substantial correlations may, in fact, be coincidental. If textual dependence were to be judged on the basis of any single point of similarity, especially a weak point of correlation, a literary connection to LH or Near Eastern law would have to be viewed with extreme skepticism. But the force of the comparative evidence lies not in any particular instance of comparison but in its collectivity. It is not that we have a number of individual points of similarity, but that the whole content and arrangement of CC largely correspond with LH.

An attempt to discount the evidence of this study might be made by arguing that there are too many differences in the individually compared laws and in the text as a whole to posit literary dependence.108 But difference does not undermine essential similarity. Moreover, it is not necessarily a sign of chronological distance between two texts. Differences may arise through the intentional alteration of the source material, as Malul observed:

It should be emphasized that all scholars fully agree with Van Selms and others that these differences do indeed reflect different basic world views of the two laws systems. But if one assumes that these differences in particular, and biblical law in general, reflect the unique ideas and world views expressed in the Old Testament as a whole, then we thereby supply the underlying rationale for the existence of these differences; if such a rationale does exist, then the conclusion must be that we have here a later (p.27) adaptation of borrowed materials according to some ideological scheme of receiving sources. And this is what Yaron has said: different ideological views do not exclude the possibility that biblical law is indebted to its Mesopotamian counterpart.109

A text that is quite different from a hypothetical source may actually be intimately familiar with it and dependent on it.

The ideological transformations of a received source of which Malul speaks are similar to the “hermeneutics of legal innovation” that Levinson has described as operative in Deuteronomy’s reformulation of laws from the Covenant Code.110 Few scholars would deny that the laws of CC and Deuteronomy are genetically related.111 Levinson’s work, which builds on Michael Fishbane’s study and method of inner biblical exegesis,112 shows that a dependent legal text or any text, for that matter, can and in fact should be expected to reconfigure its source as a function of ideological revision. In this way, differences may actually arise from an intimate familiarity with, and consequent reaction to, the source text.

Part II of this study accounts for the differences between the texts by studying the hermeneutics of innovation, what I call the compositional logic,113 involved in CC’s transformation of its sources. It shows that what Levinson sees going on between Deuteronomy and CC is already going on between CC and LH and other sources. It is a process that continues later in biblical literary history in the Holiness Legislation’s use of CC and Deuteronomy, and even beyond into post-Hebrew biblical texts such as the Temple Scroll. As in the case of Deuteronomy and the Holiness Legislation, one of the ideological considerations that lies at the heart of the transformations in CC is the desire to create law that solves problems in the source and thus to provide, relatively speaking and within the vision of the new text, a more coherent body of legislation. This way, CC attempts to assert cultural supremacy in the face of the reality of political oppression. Common to both Levinson’s approach and mine is a concern about how a text responds to and revises a prestige text.114 In both cases, the dependent law source builds on a text with cultural authority. It thereby gains an aura of authority from its source, even though it may hope to supplant or marginalize its source.

Describing the logic used in the composition of the laws of CC is obviously a matter of interpretation that involves some speculation. It takes as its start the two compared texts and supplies the conceptual and textual operations necessary to get from text A to text B. The reasonability of this endeavor’s getting near the textual-historical truth is seen in the overall plausibility of the reconstructions; the sense they make of particular terms, concepts, and structures of CC that otherwise have been points of dispute or ambiguity; the identification of similar compositional techniques (inversions in meaning and order, cross-referencing, systematization, generalization of specific content, or polemical response) in different laws; and the general consistency of the reconstructions (p.28) and compositional techniques with those operative in other biblical law texts (Deuteronomy and the Holiness Legislation).

Given the likelihood that dependent texts revise their sources, there is no way to calculate similarity and difference in a mathematical or statistical way to provide an empirical measure of dependence or lack thereof. Various methods that have been proposed for identifying and judging similarity and difference are helpful but, in the end, not definitive.115 Each instance of comparison has its own nuances and context to consider. Moreover, a determination of textual dependence, as noted already, grows out of an assessment of the totality of the evidence, the context in which it appears, and in view of what can be determined about the ideological transformation of the text.116 Ultimately, each reader has to work through the evidence and make a judgment based on her or his experience in adjudicating other cases of comparison between texts within the Bible, between the Bible and other Near Eastern texts, and even between texts from places and times other than the ancient Near East.117

Notes:

(1.) I retain the commonly used term “Covenant Code,” which is based on the term ספר הברית “document of the covenant” in Exodus 24:7, even though the work is not a law code, especially in the interpretation that this study advances. Verse numbers in this study follow the BHS for chapters 20 and 22. In some versions, 20:23–26 = 20:20–23 (e.g., NJPS) and 21:37–22:30 = 22:1–31 (e.g., RSV).

(2.) The terms casuistic (“if … then … “ law) and apodictic (“do this/don’t do that” law) are used to refer to the legal forms that prevail in these respective sections.

(3.) See later in this chapter and throughout this study for various views.

(4.) See primarily Horowitz, Oshima, and Sanders, Cuneiform; Horowitz, Oshima, and Sanders, “Bibliographical List.” Previous discussions include Carr, Tablet, 47–61; Finkelstein, Ox, 19; Otto, Körperverletzungen, 175–179; Rothenbusch, Rechtssammlung, 481–486; Wright, “Laws of Hammurabi as a Source,” 50–51.

(5.) See chapter 4.

(6.) See Tov, Textual Criticism, 313–349.

(7.) See, for example, Tigay, Empirical Models and Evolution of the Gilgamesh Epic.

(8.) Lieberman (“Are Biblical Parallels Euclidean?” 91) warns against naiveté in thinking that “the written sources at our disposal represent the only version available at the time, or – more relevant – that they precisely reflect the version to which the Biblical writer was responding.”

(9.) Goetze (“Mesopotamian Laws and the Historian,” 116) observed: “Nothing was therefore more natural than to raise the question as to the relationship between Hammurapi’s law and the Jewish laws.… Pan-Babylonianism was then en vogue and (p.366) therefore it is hardly surprising to find the opinion dominant that just as, e.g., the story of creation and that of the deluge had come to the Jews from Babylon, so also Babylonian laws were the source from which the Israelites drew inspiration. Although there is little merit in this all too simple and naive solution of the problem, there was nevertheless considerable merit in posing it. It has remained alive ever since.”

(10.) See Wright, Disposal, 5–9.

(11.) See chapter 4.

(12.) The Elamite king Shutruk-nahhunte took the stela to Susa from the Ebabbara temple in the Mesopotamian city Sippar as a war trophy (cf. Hurowitz, Inu Anum ṣīrum, 1, 10; Kuhrt, Ancient Near East 1:372; for the custom in Assyria, see Kravitz, Divine Trophies). The primary monumental copy of Hammurabi’s text was erected in the Esagil temple of Babylon, as indicated by the epilogue of the text.

(13.) Scheil, Textes élamites-sémitiques.

(14.) The comparison in this study will proceed on the basis of the form of LH as found in the Louvre stela from Susa, since it turns out that variants in other texts (stone fragments and clay tablets) are relatively minor. See chapter 4, nn. 133, 135.

(15.) The reasons for including 22:17–19 with the casuistic part of the collection will become clear in the study of the participial and apodictic laws in chapters 3, 6, 7, and 11. These verses are a supplement to the main casuistic laws. The final apodictic laws as a topical unit, determined by source correlations, start in 22:20.

(16.) Translations of Near Eastern texts throughout are mine, except where noted. For recent English translations of LH, see Roth, Collections, 71–142; Roth, COS, 2: 335–353 (text 2.131); Richardson, Hammurabi’s Laws.

(17.) Malul, Comparative Method, 159 (cited later in this chapter).

(18.) This study did not originate from a concern about the order of CC’s or Hammurabi’s laws. CC could still be dependent on LH but not have used it in a sequential fashion, much as Deuteronomy used the laws of CC (see chapter 13, n. 19). In such a case, one would have to raise questions about the organizational principles of CC apart from the question of dependence on LH. It turns out, however, that CC used LH as a topical guide. This means that other explanations of CC’s order have not satisfactorily explained the text’s organization, whether on the basis of common Near Eastern legal logic, imitation of other collections such as the Decalogue, or as a grand chiastic structure or collection of lesser chiastic structures. For works concerned with the ordering of laws, see Braulik, “Sequence,” 318 (and passim); Chirichigno, Debt-Slavery, 186–187 n. 2; Jackson, Wisdom-Laws, 445–453; Kaufman, “Structure of Deuteronomic Law”; “Second Table of the Decalogue”; Levinson, “First Constitution,” 1873 n. 82; “Hermeneutics of Innovation,” 2–77; Mendenhall, “Ancient Oriental and Biblical Law,” 38–39; Otto, Rechtsgeschichte; “Gesetzesfortschreibung,” 378–380; Wandel, 66–67; Körperverletzungen, 169 n. 2; Petschow, “Systematik”; Sauren, “Aufbau”; Schwienhorst-Schönberger, Bundesbuch, 44–51. For critique of analyses of chiastic patterns in CC, see Wright, “Fallacies.”

(19.) Wright, “Laws of Hammurabi as a Source,” 35–37; “Compositional Logic,” 94–95 n. 3.

(20.) The x-member in table 1.5 may be considered secondary or may be original, augmenting the structure to mark its closure.

(21.) This attitude is summarized by Jackson (“Evolution and Foreign Influence,” 373–74): “ ’Influence’ has become almost a dirty word in legal history. In no small measure this appears to be the result of a concrete situation. In 1902 the publication of (p.367) the Code of Hammurabi led to a plethora of writing in many cases designed to prove Babylonian influence upon the law codes of the Old Testament, and in particular upon the so-called ‘Covenant Code.’ … Many of the alleged examples of influence were, to say the least, dubious. In some the comparisons were entirely facile and superficial. In others there was a possibility of influence, but such influence could not be proved conclusively. In turn a reaction against the extremes proposed by some of these scholars developed. It was noted that many of the parallels could be explained upon the basis of independent parallel development, the underlying assumption being that legal systems faced with similar problems will tend to produce solutions which are similar.… “ Jackson adds, “However, this reaction has probably gone too far. Scholars rightly demand the very best evidence to prove influence. From the very nature of the existing data such evidence is not always forthcoming. Yet there is more evidence than is generally supposed, and, although it is in a relatively small number of cases only that one can prove influence conclusively, there are enough cases in which one is able to assert more than a mere possibility.”

(22.) Boecker, Law, 154 (Recht, 133–134).

(23.) Koschaker, “Keilschriftrecht,” 31–32 (translation from Boecker, Law, 154): “Die Zeiten, da man aus inhaltlicher Übereinstimmung von Rechtssätzen in zwei verschiedenen Rechten ohne weiteres auf Entlehnung aus dem älteren Rechte schloß … sind vorüber, oder besser gesagt, sollten vorüber sein. Die Anwendung der komparativen Methode in der Rechtsgeschichte hat uns gelehrt, daß wir in weitem Umgange mit unabhängiger Parallelentwicklung rechnen müssen, ja daß diese sogar die zunächstliegende Erklärung für Übereinstimmungen in verschiedenen Rechten gibt und Rezeptionen und sonstige Beeinflussungen nur angenommen werden dürfen, wenn sie bewiesen oder wegnigstens wahrscheinlich gemacht werden können.… Jedenfalls wäre es eine primitive Vorstellung, zu glauben, daß man Rechtssätze importiert wie eine ausländische Ware.” Cited also by Schwienhorst-Schönberger, Bundesbuch, 243–244. In apparent contradiction to Koschaker, Fitzpatrick-McKinley (Transformation of Torah, 64, based on Watson, Legal Transplants, 22–24, which refers to the goring ox laws of LE, LH, and CC, though see his pp. 19–30 for broader context) says that “legal philosophers generally accept that in the main, at most periods of history and in most places, law develops through a process of borrowing.” She observes (p. 69) that Watson (Legal Transplants, 57, 88–90, 95–101; Evolution of Law, 115–119) notes three determinants for borrowing: (1) “that the donor system be held in some esteem by the legal specialists responsible for borrowing”; (2) “that the legal materials of the donor system are accessible”; (3) the “absence of plausible rivals to the chosen donor system.” A consonance between the actual existing legal practices of the borrower and the customs in the borrowed materials is not necessary. She makes three conclusions (p. 70): (1) “Legal rules of any society are likely to have been greatly influenced by rules borrowed from another system. Thus, they most likely do not reflect in any definitive way the underlying ethos of a people”; (2) “since legal rules do not arise out of common or established social practice, nor out of the experiences of the codifying society, they are not particularly related to that society’s social practices or norms”; and (3) “the relationship between legal development and social development is not one of correlativity. It is more accurately described as one of relative independence.”

(24.) Compare similarly Johns (Relations, 50): “Now on such a view of the general similarities many have expressed the opinion that the Hebrew laws are a more or less revised adaptation of the Babylonian law, perhaps as locally already modified in (p.368) Canaan to suit the prejudices of the invaders while they were changing their habits of life and became a settled people. But this view is not vivid enough for others. 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 [LH] 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 barely worth record. The differences between the Codes are too important for us to adopt it. If he made a copy it was a very bad copy.” See also Meek (Hebrew Origins, 69): “All these similarities … can scarcely be regarded as wholly accidental. There must be some connection between the two codes, but the connection is not such as to indicate direct borrowing. No one today argues that. Whatever borrowing there was came indirectly, either through common inheritance or through Canaanite influence, or much more likely through both ways”; Fensham (“Extra-biblical Material,” 54): “It is explicable that certain [past] scholars took the view that e.g. parts of the Covenant Code of the Old Testament are either directly borrowed from the Code of Hammurapi or are taken over and expanded to meet the needs of the Hebrew community. Not a single scholar will agree with this view today.” Morgenstern (“Book of the Covenant, Part II,” 243) calls a genetic theory “almost naive in its simplicity.” He then goes on (pp. 241–256) to argue that CC’s laws reflect a stage of legislation earlier than LH and cuneiform law and is closer to Bedouin custom. See also Blenkinsopp, Wisdom and Law, 96.

(25.) Alt, “Origins,” 97–98.

(26.) Preiser, “Vergeltung,” 243–244 (“Eine unmittelbare literarische Abhängigkeit von dem ‘Gesetz’ des Hammurabi oder einer anderen der uns inzwischen bekanntgewordenen vorderasiatischen Rechtssammlungen … ist nicht zu erweisen; sei ist, bei dem außerordentlichen zeitlichen und örtlichen Abstand … auch alles andere als wahrscheinlich”; translation from Boecker, Law, 155; cf. Recht, 134).

(27.) Boecker, Law, 155 (Recht, 134).

(28.) Rothenbusch, Rechtssammlung, 25 (my translation): “Man wird diese ersten Versuche, an deren methodischer Unzulänglichkeit sich heftige Kritik entzündete, als ‘naive’ Vorstellungen über einen komplizierten kulturellen Transfer verstehen dürfen, die insbesondere dessen sozio-ökonomische Bedingungen noch ganz vernachlässigten.”

(29.) Otto, “Review of Van Seters,” 6 (German version, 276–277).

(30.) Otto here refers to his Körperverletzungen, 147–164.

(31.) For early arguments about a direct or indirect literary connections, see Müller, Gesetze Hammurabis (1902–3), 210–221 (CC and LH have a common parent text; cf. Johns, “Three New Books [1904],” 398); Jeremias, Moses und Hammurabi (1903), 33–63 (with a detailed side-by-side listing of similar laws on pp. 36–44; similarities are due to a common Arabian matrix, pp. 62–63); Kent, “Recently Discovered Civil Code of Hammurabi (1903)” (similarities reflect a common heritage, with the biblical code being more primitive; in his Israel’s Laws [1907] 6–7, 11, he speaks of inheritance from Semitic tradition); Duncan, “The Code of Moses and the Code of Hammurabi” (1904) (Israelites took up laws from the culture of Palestine, which knew the Babylonian laws); Edwards, Hammurabi Code (1904), 132 (“the Hammurabi Code must have been the immediate or remote progenitor of the Hebrew legal system”); Prince, “Code of Hammurabi (1904),” 609 (“the first Abrahamic horde left the East … carrying with them those Babylonian traditions which resulted … in the Mosaic legal system”); Johns, Relations (1914), 51 (“a theory of common [perhaps Semitic] (p.369) origin will suffice to account for the likenesses”); Gressmann, Geschichtsschreibung (2nd ed., 1921), 221 (the actual text of LH or a later Babylonian law book was known in Canaan); Jirku, Kommentar (1923), 91 (the form and content are so similar that CC must come from direct or indirect contact; see his table, p. 93); Jepsen, Bundesbuch (1927), 80 and see 55–81 generally (the casuistic laws of CC drew from a work available in Asia Minor, Palestine, and Assyria that also served as a basis for LH, the Hittite laws, and the Middle Assyrian Laws); Bonkamp, Die Bibel (1939), 221–224 (Amraphel in Genesis 14 is Hammurabi and his laws were known in Palestine at the time of Abraham); Cazelles, Études (1946), 147–168, esp. 155–156 (CC may have known LH and used it in very free manner; in his “L’auteur du code de l’alliance (1945),” he ascribes authorship to Moses); Bright, History (3rd ed., 1981), 89–90 (legal traditions of CC were “brought to Palestine by groups who had migrated in the course of the second millennium from lands where the Mesopotamian traditions of jurisprudence was known”). For summaries of the various views, see Otto, Körperverletzungen, 11–24; Schwienhorst-Schönberger, Bundesbuch, 240–243; Van Seters, Law Book, 8–46; for an early summary of early views, see Vincent, “Laws of Hammurabi,” 746–747.

(32.) For recent detailed reviews of the scholarship on CC, see Fitzpatrick-McKinley, Transformation of Torah, 11–53; Jackson, Wisdom-Laws, 3–39, 406–411; Otto, Körperverletzungen, 11–24; “Bedeutung,” 139–141; Rothenbusch, Rechtssammlung, 17–19, 23–91; Schwienhorst-Schönberger, Bundesbuch, 8–22, 238–254; Van Seters, Law Book, 8–46. For less extensive reviews, see Houtman, Exodus, 3:78–98; Levinson, Deuteronomy, 11–13; Marshall, Israel, 5–26; Propp, Exodus 19–40, 306.

(33.) Otto says that the recognized starting point of study is “that sentences of Israelite casuistic law had their traditional historical roots in Israelite trial records” (“Town,” 4, 18; he bases this on the work of Liedke, Gestalt, 39–42, and Locher, Ehre, 83–110). One of his reasons for supposing independent genesis is the difficulty of explaining how Mesopotamian law influenced Israelite law (see his “Town,” 6, cf. p. 18; similarly Körperverletzungen, 171–173).

(34.) Otto, Körperverletzungen, 169–170, 173, 179–187. He says (pp. 169–170): “Während die israelitischen Einzelrechtssätze von Keilschriftrechten überlieferungsgeschichtlich unabhängig enstanden sind, haben die Redaktionen der Rechtssatzsammlungen Anteil an der Rechtskultur der Keilschriftrechte” (“While the individual Israelite laws developed independently of cuneiform laws from a tradition-historical point of view, the redactions of the law collections have a connection to the legal culture of cuneiform laws”; my translation; cf. his conclusion in “Town,” 20). Otto goes on to say (Körperverletzungen, 171, 172–173): “In dem bäuerlichen Milieu der Ortsgerichtsbarkeit als traditionshistorischem Wurzelgrund der kasuistischen Rechtssätze [of CC] ist die Kenntnis internationaler Rechtsgelehrsamkeit eher unwahrscheinlich. Dies gilt auch dann, wenn man mit ‘kanaanäischen’ Ursprüngen des Volkes Israel im Kulturland rechnen will, läßt sich doch eine Herkunft aus urbanem Kontext der Spätbronzezeit nicht wahrscheinlich machen.… Eine Rezeption keilschriftlicher Rechtsüberlieferungen ist in diesem Hirtenmilieu [the socioeconomic context out of which Otto supposes that Israel arose] wie auch in dem dörflichen Milieus des eisenzeitlichen Israel eher unwahrscheinlich” (“The knowledge of international legal scholarship in the rural context of the local courts as the tradition-historical matrix of the casuistic laws [of CC] is rather unlikely. Likewise, when one considers the ‘Canaanite’ origins of the people of Israel in the agricultural land, an origin from the urban context of the Late Bronze Age does not seem probable.… A reception of the cuneiform legal (p.370) tradition in this pastoral context as well as in the village context of Iron Age Israel is unlikely”). He also notes in his discussion that his reconstructed original individual laws in some respects appear to be more archaic than those of LH (or LE). This precludes a literary connection. See further Otto, “Bedeutung,” 142–143; “Town,” 7, 16–20.

(35.) Otto, Körperverletzungen, 11–24, 123–134, 147–148, 158–165, esp. 133–134, 160–162, 165.

(36.) See David, “Codex Hammurabi”; Grimme, Das Gesetz Chammurabis und Moses, 36–43; Hertz, “Ancient Semitic Codes,” 214–221; and Van Selms, “Goring Ox.” David (p. 178) concluded: “To my mind there is even no indication whatsoever that the Biblical legislator has known the C.H. [= LH] and has been influenced by it in any way” and (p. 153) “such parallels cannot possibly upset the thesis that the Old-Israelitic law contained in Exodus xxi sqq. on the one hand and the law of the C.H. on the other are independent of each other after all. It is neither possible to derive one law from the other nor can it be proved in any way whatsoever that both institutions of law are founded on a common original law.” Van Selms (p. 325) observed: “When one studies [the] differences between C. H. and the Book of the Covenant, it becomes quite clear that the Hebrew law cannot be a derivation from the Babylonian code.… [Some differences] show that the Israelite conception is more ‘primitive’ than the Babylonian.… if we did not know anything about the date of [the two collections] we would certainly put Ex. 21:28–32 a few centuries before C. H. § 250–252.” Van Selms’s study was a primary object of Malul’s critique (see Malul, Comparative Method, 84–85, 116–152). Wells (“Covenant Code”) and Westbrook (“Laws of Biblical Israel”) have most recently made an argument for independence because of differences. See also Fensham, “The Mišpātîm,” 47–71, 114. For the argument that differences indicate independence between biblical law collections more generally, see Kaufmann, Religion of Israel, 166–172 (see the contextualization and critique of Levinson, “Manumission of Hermeneutics,” 284; Stackert, Rewriting, 7).

(37.) Otto, “Town,” 5–7, 20–21; “Bedeutung,” 164–165.

(38.) Otto, Wandel, 9–56 and passim, esp. 40, 56, 71–72; “Aspects,” 182–189. In contrast, 22:15–26 was not composed of individual collections (Wandel, 40). Otto sees two different theologies of redaction in 21:2–22:26 and 22:28–23:12 and notes that the addition of 20:24–26 to 21:2–22:26 changed the function of that group of laws (Wandel, 50–51). Otto gives a comprehensive history of CC’s laws in his “Bedeutung,” 159–168. For a review and critique of Otto’s schema, see Chirichigno, Debt-Slavery, 189–190, n. 4; Crüsemann, Torah, 150–151; Osumi, Kompositionsgeschichte, 84–85, 91–93.

(39.) Westbrook, Studies, 1, 4, 40, 41.

(40.) Westbrook, “Nature and Origin”; Studies, 1–2. In his latest study, “Laws of Biblical Israel,” he downplays a transfer of legal content to the Roman world.

(41.) Westbrook, Studies, 4, 40; “Nature and Origin,” 92–93; “Laws of Biblical Israel,” 117.

(42.) Westbrook, “Laws of Biblical Israel,” 112–117.

(43.) Westbrook, Studies, 3.

(44.) Westbrook, “Nature and Origins,” 97–101. Cf. Otto, Körperverletzgungen, 17 n. 3.

(45.) Westbrook, “Laws of Biblical Israel,” 111. On oral tradition in the formation of the Talmud, see Jaffee’s work, summarized in chapter 4, n. 16.

(46.) Westbrook, “What Is the Covenant Code,” 15–36.

(47.) Schwienhorst-Schönberger, Bundesbuch, 240–268, 415, see especially 255, 268.

(48.) Schwienhorst-Schönberger, Bundesbuch, 262–266.

(49.) Schwienhorst-Schönberger, Bundesbuch, 145, 156–161, 239, 252, 255, 267. For others who see textual influence in Exod 21:35, see chapter 8, n. 12.

(50.) Schwienhorst-Schönberger, Bundesbuch, 135–136, 161–162, 252, 255.

(51.) Exod 21:12, 18–19, 22aαbα, 28–29, 32, 33aβ*b, 34aβ, 37; 22:3, 9–10*, 13abβ; Schwienhorst-Schönberger, Bundesbuch, 234 and 236.

(52.) Exod 21:31, 33aαβ*γ, 34aβb–36, 22:4–5, 6–8, 11–12, 13bα, 14.

(53.) Exod 21:13–17, 20–21, 22aβbβ, 23–24, 26–27, 30; 22:1–2, 9–10* (especially the Yahweh oath), 15–16.

(54.) Schwienhorst-Schönberger (Bundesbuch, 237) finds little Deuteronomistic influence in the casuistic laws (only 21:25).

(55.) Rothenbusch, Rechtssammlung, 394–398, 481–513, 599–600.

(56.) Rothenbusch, Rechtssammlung, 398: “Eine unmittelbare literarische Vorlage aus dem alten Orient, etwa der KH [= LH], kommt dafür nicht in Frage” (“A direct literary source from the ancient Near East, such as LH, is not a consideration”).

(57.) Rothenbusch, Rechtssammlung, 317: “Neben den auffälligen inhaltlichen Parallelen machen die skizzierten komplexen Übereinstimmungen von Ex 21,18–27 und KH § 196–214 einen überlieferungsgeschichtlichen Zusammenhang beider Traditionen m.E. jedenfalls in hohem Maß wahrscheinlich. Das wird sich im folgenden, insbesondere an Ex 21,28–32, weiter bestätigen.”

(58.) Rothenbusch, Rechtssammlung, 329.

(59.) Rothenbusch, Rechtssammlung, 266, 394, 397, 600. On p. 406, he sees the slave laws as part of the basic text of CC.

(60.) Rothenbusch, Rechtssammlung, 394; secondary passages include, for example, 21:26–27, 31, 36; 22:1–2a, 3, 10, plus the participially formulated laws in 21:12–17.

(61.) Rothenbusch, Rechtssammlung, 459.

(62.) Rothenbusch, Rechtssammlung, 453–456, 471–473, 561.

(63.) Rothenbusch, Rechtssammlung, 592–593. For a critique of Rothenbusch, see Levinson, “Is the Covenant Code an Exilic Composition?” 290–291.

(64.) Jackson, Wisdom-Laws, 432–433; “Modelling,” 1771–1788.

(65.) Jackson, Wisdom-Laws, 333–334. He argues that the direct speeches of characters in the narratives represent “credible speech patterns to the audience of the narrator” (p. 433) and are reflections of oral legal traditions. These prove the orality of law (pp. 435–436). He follows Otto about rural content versus urban imposition of Canaanite scribal traditions and forms (p. 436). The reflection of custom for Jackson is not of “trial transcripts” but of individual laws that people would call upon from oral tradition to solve their disputes outside a court situation. He thinks (pp. 436–437) that some of the legal ideas may have been maintained or announced in royal proclamations. He buttresses his argument about royal proclamations with reference to 1 Sam 30:22–25 and Jer 34:8 (see p. 442 n. 69).

(66.) Jackson, Wisdom-Laws, 29–30; cf. pp. 389–395; “Modelling,” 1760–1771. For a wisdom matrix, see also Blenkinsopp, Wisdom and Law; Gerstenberger, “Covenant and Commandment,” 49–50; cf. Richter, Recht und Ethos.

(67.) Jackson, Wisdom-Laws, 10; see also pp. 23, 46–47, 439, 455. He says (pp. 31–32): “What, then, was the form in which wisdom-laws circulated before they were written down? I doubt that it was in the casuistic form in which we now find them, even if (p.372) individual casuistic sentences are detached from the paragraphs in which they presently appear.”

(68.) Jackson, Wisdom-Laws, 281. He allows for influence from Mesopotamian models at various stages (p. 439).

(69.) Lambert (“Interchange of Ideas,” 312–313) notes: “the lex talionis is an innovation with [Hammurabi].… There is no extant corpus of Amorite law … but outside Mesopotamia only Israelite law offers ‘life for life … ‘ (Exod 21:23–24 etc.). The occurrence of the pair eye and tooth … suggests an oral dictum of great antiquity.… There is of course no reason to suppose that the Hebrew lawgivers were influenced by Hammurabi’s laws, since these laws were not observed in their own time, and survived in Mesopotamia only as a library text, of which no fragments have yet been found in the West. The most reasonable hypothesis is that both Mesopotamian and Palestinian sources drew on Amorite legal traditions.… “ Frymer-Kensky (“Tit for Tat,” 233) notes that “a growing body of evidence indicates that many of the ideas previously considered Babylonian may have had their origins not in Sumer or Akkad but in the traditions of the West Semites who began to migrate into Mesopotamian en masse around 2000 B.C.E. Although we have no direct evidence concerning the culture of these West Semites, their influence perhaps may be inferred whenever a given cultural phenomenon appears as an innovation in Mesopotamia during the Old Babylonian period (after the migration of the West Semites), whenever this innovation has no clear Sumerian antecedents, and whenever it has clear analogies in biblical thought and institutions.” She suggests that the battle of Marduk with Tiamat, the creation of humans from the blood of a slain god, and the notion of talion are West Semitic ideas. Goetze (“Mesopotamian Laws and the Historian,” 119–120) notes the problems of influence of Mesopotamian law on the west even in the fourteenth century (the Amarna Age) and points to an Amorite-type hypothesis to explain the similarities in CC and LH. For the Amorite hypothesis, see also Chirichigno, Debt-Slavery, 192–195; Greengus, “Biblical and Mesopotamian Law,” 66; Mendenhall, “Ancient Oriental and Biblical Law,” 31–32, 36–37; “Amorites,” 202.

(70.) For this view, see nn. 24, 36, 69.

(71.) Greengus (“Selling of Slaves,” 10–11) says that the Middle Bronze Age was a more likely candidate than the Late Bronze for the imparting of Mesopotamian legal tradition into the west because of a decline of cuneiform scribal abilities in the Late Bronze.

(72.) Recent miscellaneous observations allowing for some literary influence include Barmash, Homicide, 146, 147, 204; Greengus, “Selling of Slaves,” 10–11; Fitzpatrick-McKinley, Transformation of Torah, 54–80.

(73.) Finkelstein, Ox, 19.

(74.) Finkelstein, Ox, 20.

(75.) Finkelstein, Ox, 21.

(76.) Finkelstein, Ox, 5. He speaks of the mediation of the ox laws through a source that is presently unknown on p. 34.

(77.) See Otto, Körperverletzungen.

(78.) Malul, Comparative Method, 159.

(79.) Houtman, Exodus, 3:91.

(80.) Houtman, Exodus, 3:93.

(81.) Van Seters, Law Book; “Cultic Laws”; “Law of the Hebrew Slave”; “Law of the Hebrew Slave: A Continuing Debate”; “Some Observations on the Lex Talionis.” Levinson (“Is the Covenant Code an Exilic Composition?”; “The Manumission of (p.373) Hermeneutics”) provides the most detailed critiques of Van Seters’s conclusions (see also Otto, “Review of Van Seters”; Wright, “Review of Van Seters”; Ska, Introduction, 187–188 n. 6). Levinson nevertheless recognizes some solid contributions from Van Seters’s study, including the argument that cuneiform legal traditions could not have survived orally from the second millennium. To clarify matters for the history of scholarship, my conclusions were drawn independently of Van Seters’s book or his articles leading up to his book.

(82.) Van Seters, Law Book, 57. See Fadhil, “Prolog,” for a possible stela in Sippar in the Neo-Babylonian period (see also chapter 4, appendix).

(83.) See Levinson, Deuteronomy, 6–10, for the date of the basic laws of Deuteronomy and their relationship to CC (and see his book throughout for specific textual arguments). See also Lohfink, “Fortschreibung”; Otto, “Das Deuteronomium als archimedischer Punkt”; Das Deuteronomium; “Von Bundesbuch zum Deuteronomium”; Rothenbusch, Rechtssammlung, 239–241; Schwienhorst-Schönberger, Bundesbuch, 284, 307, 310, 312–313, 320, 330, 415–417. For Deuteronomy’s dependence on CC, see also chapter 13, n. 19.

(84.) Sparks (“Comparative Study of the Biblical נבלה Laws”) shares Van Seters’s relative dating of CC and D. Sparks (Ancient Texts, 423) has also recently observed that “the best explanation for this similarity [between CC and LH] is that the biblical author knew the Code of Hammurabi and intentionally shaped his work so as to mimic the older, more venerated text.”

(85.) Levinson, “Is the Covenant Code an Exilic Composition?” 288–297. Levinson (“First Constitution,” 1863) also notes that “Israelite authors were well tutored in the topical and formal conventions of cuneiform law. They drew upon the Mesopotamian concept of a royal propounder of law but also radically transformed it in light of their own cultural and religious priorities.… So close is the connection between the two systems of law that even techniques of legal ordering seem to have been carried over, although implemented in different ways to reflect different cultural values.” He adds (p. 1864): “This doubly-shared interest of ancient Israel’s scribes in origin myths and in the prestigious genre of law almost certainly reflects the curriculum of the Mesopotamian scribal school, or e.dub.ba. The detailed points of contact suggest that Israelite scribes had direct or indirect access to certain key components of the cuneiform curriculum.” See also Levinson, “Human Voice,” 29. Morrow (“Is There a Redactor in the House,” 118–19), based on Van Seters’s study and with reference to my first paper, admits that LH may have influenced CC, but following Van Seters he says this probably occurred in the exile (see later chapter 4 and n. 125 there).

(86.) Wells, “Covenant Code.”

(87.) Wells (“Sex, Lies,” 46 n. 13) carefully draws a line between a theory of “a shared set of legal traditions across the ancient Near East” and “direct dependence of one system or body of law on another.”

(88.) Wright, “The Laws of Hammurabi and the Covenant Code.” The more detailed charting of correlations in the casuistic laws in the appendix to chapter 13 largely results from Wells’s questions.

(89.) Westbrook, “Laws of Biblical Israel.”

(90.) Westbrook, “Laws of Biblical Israel,” 107.

(91.) Westbrook, “Laws of Biblical Israel,” 107.

(92.) Jackson (Wisdom-Laws, 16–23) critiques models of literary dependence, with major attention devoted to Van Seters, though he includes a brief treatment of my work (p.374) (see pp. 22–23), which was published too late for him to incorporate fully. Jackson engages with my critique of chiastic structures in a number of places (pp. 202, 446–447, 462). Cf. the brief mention in Propp, Exodus 19–40, 306, who leaves the nature of influence open. Van Seters, “Revision,” also provides some critique.

(93.) Chirichigno, Debt-Slavery, 190–195.

(94.) Wagner, “Zur Systematik,” 176–182.

(95.) Though here he does not note 21:17 and LH 192–193.

(96.) Chirichigno, Debt-Slavery, 193 (and p. 192).

(97.) I brought Chirichigno’s observations into Wright, “Compositional Logic,” 93 n. 2.

(98.) Wagner, “Zur Systematik,” 178, 182.

(99.) Chirichigno, Debt-Slavery, 192, 194 and n. 4, 195 and n. 5.

(100.) Van Seters, Law Book, 96–99, 173.

(101.) Van Seters, Law Book, 87, 99; see chapter 5, n. 14.

(102.) Other scholars who have noted some sequential correlations in the casuistic laws include Waterman, “Pre-Israelite Laws” (1922), 51 and see pp. 44–52 (his untenable “decalogue” theory obscured a more accurate perception of sequential commonalities); Jepsen, Untersuchungen (1927), 58 (he recognized about six of the sequential similarities and attempted to see ordered commonalities in several law collections); Bonkamp, Die Bibel (1939), 221–222 (he saw a number of structural parallels between CC and LH, such as the miscarriage law following a general law about assault and the specific ordered correlation of the goring ox laws); Paul, Studies (1970), 107 n. 1 (he noted that “there is an interesting correlation between the order of the laws here [Exod 21:12–17] and that of LH which should be studied further”; see also pp. 73–74 n. 5, 102); Schwienhorst-Schönberger, Bundesbuch (1990), 62–63, 69 and n. 41 (he saw a few scattered commonalities: 21:12, 18–19 are the inverse order of LH 206–207; 21:20–21 are the inverse of LH 115–116; 21:18–19 followed by v. 22 correlates with LH 206–214); Rothenbusch, Rechtssammlung (2000), 249–250, 302, 312, 316, 317, 394–396 (he noted similarity in the overall complex of laws in Exod 21:18–27 and LH 196–214 and that LH and the HtL have laws on blinding and knocking out a tooth in relatively close association). For the untenable observation that CC and Deuteronomy reflect the reverse order of LH, see Pfeiffer, Introduction, 212–215.

(103.) Discussed by Otto, Körperverletzungen, 15 n. 3. On issues of method, see broadly, Malul, Comparative Method.

(104.) Morrow, “Cuneiform Literacy,” 206; Tigay, “On Evaluation Claims of Literary Borrowing.”

(105.) West, East Face, 630.

(106.) This is a major criticism made by Wells, “Covenant Code.”

(107.) For example, of the fourteen correspondences listed in table 1.1, ten of the topics of comparison (i.e., 1, 2, 4, 5, 7, 8, 9, 11, 13, 14) have substantial verbal, conceptual, and/or inner-structural similarity between laws in CC and LH to associate them topically, as many scholars have recognized hitherto (this will become clear in the body of this study). The four other topics (3, 6, 12, and especially 10) have less similarity than the other cases, but there is still sufficient verbal or conceptual similarity to justify comparison. As for the apodictic laws, their genre is different from that of the prologue and epilogue, and the exhortatory block contains admonition rather than law per se. Moreover, the connections with the apodictic laws are thematic and in general structure. Nevertheless, there are significant points of precise correspondence, and the (p.375) thematic correspondences occur in multiple series, a feature that strengthens the perceived correlations.

(108.) See n. 36.

(109.) Malul, Comparative Method, 149–151. In comparing versions of Gilgamesh, Tigay (“On Evaluating Claims of Literary Borrowing,” 254–255) noted that “peripheral versions of Mesopotamian literary texts … may abbreviate [Mesopotamian versions] or even modify them in accordance with their own ideology and local interests.… it means that an alleged relationship between a Biblical text or motif and some ancient Near Eastern counterpart cannot be refuted simply by pointing to differences between the two, even if they are numerous.”

(110.) Levinson, Deuteronomy, passim. Lohfink (“Fortschreibung,” 153–154, 159, 162) makes the key observation that from Deut 15:12–18 itself we could not reconstruct the Vorlage of Exod 21:2–11. Deuteronomy has significantly changed the order of elements in its source text, has omitted significant parts thereof, and has otherwise altered significantly what it has taken up.

(111.) Morrow (Scribing the Center, 116) is an example of such skepticism. He says that “in view of the fact that many of the clauses in Exod 21:2–6 have no parallel in Deut 15:12–18, it probably cannot be proven that 15:12–18 is dependent precisely on the law in Exod 21:2–6.” On this issue, see Levinson, “Manumission of Hermeneutics,” 283–284 and n. 6 there.

(112.) Fishbane, Biblical Interpretation. For inner biblical exegesis, see Levinson “You Must Not Add,” 10–11 nn. 20, 21; Stackert, Rewriting, 18–19, 27–29, and see the annotated bibliographies in Levinson, Legal Revision, 95–181; L’Herméneutique, 67–94.

(113.) Levinson in passing refers to the operations of redactors as “redactional logic” (“Is the Covenant Code an Exilic Composition,” 287, n. 26).

(114.) For the issue of prestige text, see Levinson, Deuteronomy, 13–17; Stackert, Rewriting, 209–225, esp. 214–216.

(115.) For the study of textual dependence and use of sources in general, in addition to Malul and Wells, see Carr, “Method in Determination of Direction of Dependence”; Edenburg, “How (Not) to Murder a King”; Hays, Echoes of Scripture, 29–32; Leonard, “Identifying Inner-Biblical Allusions”; MacDonald, The Homeric Epics, 8–9; McIver and Carroll, “Experiments to Develop Criteria”; Poirier, “Memory, Written Sources, and the Synoptic Problem”; Sparks, “Enūma Elish,” 627–629; Stackert, Rewriting, 18–19 and throughout; Tigay, “On Evaluating Claims of Literary Borrowing”; E. West, “Transformation of Ṛśyaśṛnga.”

(116.) See Stackert, Rewriting, 25–26, for the need to employ an eclectic method in the analysis of hermeneutical innovation.

(117.) In previous works, I have urged caution in drawing conclusions about literary and phenomenological dependence. I still affirm these statements: “By drawing a comparison between the Hittite and biblical [hand-placement] gestures I do not intend to imply that there is some sort of genetic or historical relationship between the two. It is possible this is so. But such a connection could only be established by a broader study of Hittite and biblical ritual forms which shows the similarity to be more than coincidental and by substantial evidence indicating how ritual forms were mediated from one culture to the next” (“Gesture,” 446; also 433–446); “While similarities [between biblical and Hittite analogical ritual] cannot be quickly dismissed, it seems that those we have seen so far are fortuitous, especially now after looking at the psychological and (p.376) rhetorical rationale of analogical ritual” (Wright, “Analogy,” 504, also 473–506). See also Wright, Disposal, 5–9, and note the caution on p. 8.