. 26
( 55 .)


Committing a sin did allow a human being to come under the power of a
demon and the impurity that accompanied the demon.51
48 William L. Moran, “The Creation of Man in Atrahasis I 192“248,” BASOR 200 (1970), 51.
49 A group has ¬nancial responsibility in the interterritorial law of the ancient Near East, but
in the Hebrew Bible, there is group responsibility for the ceremony only. See the analysis of
communal responsibility in Chapter Seven.
50 For example, in the Surpu rituals, tablet VII describes an attack of demons on a man

whose god has withdrawn from him and who therefore needs to be puri¬ed, and tablets
V“VI characterize a man™s plight as “an evil curse like a gallu-demon has come upon this
man” (Erica Reiner, Surpu: A Collection of Sumerian and Akkadian Incantations [AfO
Beiheft 11; Graz: n.p., 1958]). Cf. Wright, The Disposal of Impurity, 248“249; H. W. F. Saggs,
The Greatness That Was Babylon (New York: Hawthorn, 1962), 302“318; Karl Frank,
Lamashtu, Pazuzu und andere Damonen (Leipzig: Otto Harrassowitz, 1941); Oppenheim,
Ancient Mesopotamia, 180, 199“206; R. Campbell Thompson, The Demons and Evil Spirits
of Babylonia (London: Luzac and Co., 1903), 1. 48“49, 75, 79, 103; Toorn, Sin and Sanction,
117“154; Milgrom, Leviticus 1“16, 1071“1079; E. Jan Wilson, “Holiness” and “Purity” in
Mesopotamia (AOAT 237; Kevelaer: Butzon und Bercker; Neukirchen-Vluyn: Neukirchener,
1994), 45, 68“78.
51 A god did have to be pure in order to exercise his divine functions. Cf. the statement of

Ereshkigal after she has intercourse with Erra in the myth of Nergal and Ereshkigal: “I am

Second, in biblical thought, impurity had an effect on national institu-
tions and concerns because the Israelites conceived of themselves as a holy
people. The concept of ethical pollution made the de¬ling effects of spilled
blood a grave threat to that status. Therefore, the rituals meant to offset
the damage of impurity had a common goal, to remove pollution from the
Israelite body politic. This concept shaped the disposal of ritual impurity.
Mesopotamian and Hittite rituals used numerous means to dispose of impu-
rity “ burial, sealing in containers, throwing in sea or river, sending to and
depositing in foreign lands, burning “ whereas the Priestly sources used a
limited repertoire. The reason for this is clear “ the nonbiblical rites have no
common goal, whereas the Priestly rites in the Hebrew Bible have a single
common goal “ to protect the sanctuary™s holiness and the community™s pu-
rity.52 Even Deuteronomy with its secularizing tendencies mandates a rite to
safeguard the community from the deleterious effects of spilled blood. In con-
trast, the well-being of the sanctuary is protected in the Mesopotamian ak¯tu ±
festival, the well-being of society is protected in the Hittite plague rituals,
and the well-being of the suffering patient is protected in the Mesopotamian
puri¬cation rituals with no larger social goal. Impurity in P is solely imper-
sonal, with no connection to the underworld, nor does impurity have any
connection to mythology.
Third, the Mesopotamian pantheon was remote for the average wor-
shiper. An individual™s religious sentiment was focused on his personal
gods.53 In contrast, the single Israelite God claimed the exclusive adora-
tion of both individual and nation.54 Therefore, the action of a single in-
dividual could imperil all. The effect of sin was limited to an individual
in Mesopotamia, whereas sin could have an impact on an entire nation in
ancient Israel.
While the biblical concepts of pollution retained the valence of de¬lement,
the language of puri¬cation was utilized in Mesopotamia in the legal realm
without any miasma attached. The verbs zaku, “to become clean; to become
free from speci¬c claims or obligations,” and eb¯ bu, “to become puri¬ed;
D to clear a person from legal claims,” refer to freedom from legal claims.

sexually de¬led, I am not pure, I cannot execute the judgment of the great gods” (O. R. Gurney,
“The Sultantepe Tablets VII: The Myth of Nergal and Ereshkigal,” AnSt 10 [1960], 122, ll. 7
and 23 ) and the description: “The pure god who is suited for kingship” (W. G. Lambert, “The
Gula Hymn of Bullutsa-rabi,” Or 36 [1967], 127, l.157).
52 Wright, The Disposal of Impurity, 273“274.
53 Thorkild Jacobsen, The Treasures of Darkness (New Haven, Connecticut: Yale University

Press, 1976), 155“164.
54 Toorn, Sin and Sanction, 4“5, 114. Even though a personal god for a Mesopotamian could

be one of the great cosmic powers, like Shamash or Sˆn, the relationship remained on the level
of an individual and a god and was never extended to an entire nation.
55 Cf. CAD/Z, 25“28.
56 Cf. CAD/E, 4“6.

Just as a puri¬ed person was freed from the control of demons, a person
puri¬ed in the legal sense was freed from obligations. Obstructions, whether
demons or debts, were removed.
The divergence between biblical and Mesopotamian conceptualizations
of homicide is not surprising. Cultures living in close proximity to one
another can understand a legal issue differently. Let a New World ex-
ample suf¬ce. Although the Comanche and the Cheyenne Indians of the
North American plains were neighbors, their treatment of homicide differed
greatly.57 The Comanche strongly held to the belief that only a killing could
redress a killing. They did not distinguish between types of killing “ even
the blood avenger could be killed by the offender™s kin. At the same time,
this belief meant that only the actual killer was affected by the deed and
only he could be dispatched in revenge. Homicide was a secular affair. The
Cheyenne, in contrast to their neighbors the Comanche, did conceive of a re-
ligious effect of law, although it was limited to homicide. Homicide was a sin:
It polluted the killer, the tribal sacred objects, and the well-being of the tribe
as a whole. Disgrace befell all the Cheyenne when a murder occurred. They
would have dif¬culty ¬nding food. Game would disappear. Even war fell
under the pall. The chiefs, whose authority devolved from the sacred, had
jurisdiction over homicide, whereas the military associations, really men™s
clubs, solved other disputes.58 The rest of Cheyenne law was secular.
The Israelites may have even been aware of the difference between their
law and the law of other people. In 2 Sam 21:1“14, the Gibeonites demand
Saul™s sons as recompense for Saul™s extermination of the Gibeonites:
There was a famine in the days of David for three years, year af-
ter year. David inquired of the Lord, and the Lord said, “There is
bloodguilt on Saul and on his house because he put the Gibeonites to
death.” 2 The king summoned the Gibeonites and said to them “ now,
the Gibeonites were not Israelites but were a remnant of the Amorites,
with whom the Israelites made an oath, but Saul sought to wipe them
out on account of his zeal for the people of Israel and Judah. 3 David
said to them, “What shall I do for you? How shall I make expiation
so that you bless the Lord™s portion?” 4 The Gibeonites said to him,
“We cannot have any claim on silver or gold with Saul or his house
nor can we have any claim to put to death any person in Israel.” He
replied, “Whatever you say, I will do for you.” 5 They [then] said to
the king, “The man who consumed us and planned to destroy us so

57 Hoebel, The Law of Primitive Man, 156“169.
58 Hoebel speculates that the Cheyenne originally had a sacred conception of homicide (The Law

of Primitive Man, 263). Then, in the course of establishing sacred tribal objects, the Cheyenne
utilized the idea of pollution to stamp out feud. Hoebel singles out the Cheyenne for their
creativity in fashioning such an effective end that so many other peoples at their level of social
and economic development missed.

that we should have no place in the territory of Israel “ 6 let seven of
his sons be given to us and we will impale them before the Lord in
Gibeah of Saul, chosen of the Lord.” The king replied, “I will do so.”
The king had compassion on Mephiboshet son of Jonathan son of
Saul because of the oath of the Lord that was between them, between
David and Jonathan son of Saul. 8 The king took Armoni and Mephi-
boshet, the two sons that Rizpah daughter of Aiah bore for Saul, and
the ¬ve sons of Michal daughter of Saul whom she bore for Adriel
son of Barzillai the Meholathite. 9 He gave them to the Gibeonites;
they impaled them on the mountain before the Lord, and all seven
died together. They were put to death in the ¬rst days of the harvest,
the beginning of the barley harvest. 10 Rizpah daughter of Aiah took
sackcloth and spread it on a rock for herself from the beginning of the
harvest until rain fell upon them from the sky: she did not allow the
birds of the sky to rest upon them or the beasts of the ¬eld by night.
David was told what Rizpah daughter of Aiah, concubine of Saul,
had done. 12 David went and took the bones of Saul and the bones of
Jonathan his son from the citizens of Jabesh-Gilead, who stole them
from the square of Beth-Shean, where the Philistines had hung them
when the Philistines had struck down Saul at Gilboa. 13 He brought
up the bones of Saul and the bones of Jonathan his son from there and
gathered the bones of those who had been impaled. 14 They buried
the bones of Saul and of Jonathan his son in the territory of Benjamin
in Zela, in the tomb of Kish his father. They did everything the king
commanded. Thereafter God accepted prayers for the land.

The king asks the Gibeonites how the de¬lement could be expiated, as-
suming that the killings incurred pollution. The Gibeonites™ diplomatic sug-
gestion that they could not demand compensation from any Israelite or the
death of any Israelite indicates that they would accept either as the just pun-
ishment for the deaths of their fellow countrymen. Understanding the hint,
the Israelite king indicates to the Gibeonites that he will agree to whichever
penalty they prefer. The writer of the story, in formulating the negotiating
positions, assumes that the Israelites conceived of homicide as de¬ling while
the non-Israelites (in this case, the Gibeonites) do not and would accept ei-
ther monetary payment or execution (albeit in the end, they prefer the death
of those associated with the culprit).59 Although we do not know what the

59 McKeating argues that the Israelites put curbs on blood feud under the in¬‚uence of a
Canaanite sacral conception of homicide (“The Development of the Law on Homicide in
Ancient Israel,” 46“68). According to McKeating, the Gibeonites as well as the rest of the
Canaanites already had a sacral conception of homicide, regarding it as a pollution of the land,
a de¬lement to be expiated. Therefore, the Gibeonites rejected monetary payment, even though
they were aware that this was the Israelite way. The Canaanite conception inspired the Israelites
to assume a sacral conception of homicide. In order for the de¬lement to be expiated their way,

neighbors of the Israelites actually thought, in the mind of the writer of this
biblical story the Israelites conceived of homicide differently. This is even the
case here, which re¬‚ects a characteristic of political killings, in which those
who have not killed but who are associated with the killer are liable to be
Both in Mesopotamian texts and in the Bible, the spilled blood itself
was perceived to have a real existence that was dangerous and needed to be
remedied. However, only in the Bible was it conceived to affect more than the
killer himself. The nation as a whole or the land of Israel would be contami-
nated. In contrast, in Mesopotamia, there was no indication that the larger
community need be concerned about possible contamination from the spilled
blood. The references to the victim™s blood in Mesopotamian texts indicate
that the spilled blood is conceived to have a concrete existence of its own
that requires the attention of the parties involved, but no one else.

the Gibeonites in fact asked for a sacri¬ce (2 Sam 21:4“6) but worded it in such a way as to
allow their demand to be interpreted as a killing for a killing. However, this seems to be what
David is doing. McKeating™s explanation would work if the Gibeonites had used David™s words
and David had used their words. The Israelites assumed a sacral conception of homicide, not
the Canaanites. McKeating has the polarities reversed: It is David who represents the “older”
sacral conception of homicide, and the Gibeonites the monetary.

Typologies of Homicide

IN THE story of Cain and Abel, an omniscient narrator explores Cain™s re-
sponsibility for Abel™s death by constructing conversations between God and
Cain, in which God explains the capricious and potent impulse to murder and
Cain reacts to God™s reference to Abel and to the declaration of his punish-
ment. In contrast, three biblical legal texts, Exod 21:12“14, Num 35:9“34,
and Deut 19:1“13, analyze the responsibility of the killer by extrapolating the
intent of the killer from the manner of killing or from the prior relationship
between victim and murderer. They do not have the luxury of omniscience
as does the author of Genesis 4.
These three legal texts manifest the intent to articulate more precisely
and accurately a distinction between intentional and unintentional killing.1
They provide con¬‚icting typologies of homicide, probably for two interre-
lated reasons: 1) Without direct access to a person™s thoughts, it is ¬endishly

1 Inmodern Western society, premeditated homicide is taken as the gravest offense, much more
than intentional homicide without prior planning. Yet it is doubtful whether it is better for
society to contain members who ¬‚y into a murderous rage without premeditation than mem-
bers who, taking their time to devise a plan, might lose interest in carrying out the slaying
or who might be discovered and prevented from carrying out their plan. In any case, in con-
temporary American law, premeditation, the length of time spent in prior thought, has been
eroded to include the shortest possible duration necessary to design a plan. See Joshua Dressler,
Understanding Criminal Law (2d edition; Legal Text Series; n.p.: Richard D. Irwin, 1995), 474.


dif¬cult to know what he intended; and 2) although the positing of ground
rules is easy, the dif¬culty comes in applying these rules to actual persons
and events. At the same time, the legal texts share the principle that only
intentional killing by direct action is culpable, and they divide acts of homi-
cide into two categories, one for which the penalty is death and the other
for which it is not.
Accidental homicide is de¬ned in Exod 21:12“14 as “if [the killer] did
not do it by design, but God caused it to meet his hand” (Exod 21:13). The
connection is made between what a person does with his hands and what
occurred. Similarly, Hittite Laws 3“42 characterizes accidental homicide as
“only his hand is at fault,”3 making a distinction between the action of the
offender with his hand and the intention of the offender in the seat of his
intellect. There is thus a qualitative difference between an act and a physical
event. Legal responsibility is attributed to the most direct cause of death,4
a physical act that causes death. Although a distinction is drawn between
a physical act intended to kill and a physical act that happens to kill, in
both cases the offender must ¬‚ee (Exod 21:13“14). Ultimately, greater legal
culpability is imputed to the killer who lies in wait “ “But if a man willfully
attacks a man to kill him treacherously, you shall take him from my altar to
be put to death” (Exod 21:14). Nonetheless, the direct physical act subjects
the killer to legal action. The offender can see the connection between his
hand and the corpse and knows to ¬‚ee.
Limiting legal action to direct physical contact is not a sign of an inabil-


. 26
( 55 .)