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ity to grasp a less direct connection but stems from an eminently practical
concern.5 A death can be clearly linked to a direct physical injury. The legal
process can take such evidence with certainty. Less direct causation, such
as poisoning, means greater doubt and less certainty about the identity of
the offender.
Limiting legal action to direct physical action is a principle followed in
narrative as well. In the story of Joseph, Joseph™s brothers plan to kill him
and dump the corpse in a pit:

They saw him from afar, and before he drew near them, they conspired
to kill him. They said to one another, “Here comes this dreamer.”
Now, let us kill him and throw him into one of the pits; we can say,

2 The most recent edition and translation of the Hittite Laws, used here, is that by Harry A.
Hoffner, Jr., The Laws of the Hittites: A Critical Edition (DMOA 23; Leiden: Brill, 1997). These
particular statutes are on p. 18.
3 Although the Hittite verb waˇ tai is often rendered “to sin,” it does not have the element of
moral depravity associated with the English verb. Hence, the translation adopted here is “to
be at fault.” Cf. Harry A. Hoffner, Jr., “On Homicide in Hittite Law,” in Crossing Boundaries
and Linking Horizons, 297.
4 David Daube, “Direct and Indirect Causation in Biblical Law,” VT 11 (1961), 246“247.
5 Ibid., 247.

˜a savage animal ate him™; we will see what becomes of his dreams.”
(Gen 37:18“20)
Reuben objects to their plan and suggests that Joseph be left alive in the pit
to perish without anyone dealing the fatal blow:
When Reuben heard it, he tried to save him from them; he said, “Let
us not take his life.” Reuben said to them, “Don™t shed blood. Throw
him into this pit here in the wilderness, but don™t lay your hand against
him.” (Gen 37:21“22)
Reuben makes a contrast between killing Joseph directly and indirectly.6 If
they kill him directly, the brothers would be fully culpable. If they kill him
indirectly by casting him into a pit out in the wilderness and leaving him to
die, they would be less culpable, if not immune. Joseph™s brothers readily
agree to this subterfuge.
The same principle is followed in the narrative of David and Bathsheba,
2 Samuel 11“12. David is deemed guilty for taking Uriah™s wife, not for
causing his death. For the latter offense, he is not culpable because he did
not directly shed Uriah™s blood.7 This is seen clearly in Nathan™s parable. Its
point is the theft of the poor man™s ewe by the wealthy man. The death of
the poor man is not even mentioned. The purpose of Nathan™s parable is not
to condemn David for Uriah™s death, but rather for commandeering Uriah™s
wife. David reacts to the parable by ordering the wealthy man to pay for a
stolen ewe (2 Sam 12:5“6).8 In Nathan™s explication of his parable, he holds
David responsible for Uriah™s death “ “Why did you treat the word of the
Lord with contempt, doing what is evil in his sight, by smiting Uriah the
Hittite with the sword, taking his wife as your own, and killing him with
the sword of the Ammonites?” (2 Sam 12:9) “ but Nathan bases David™s

6 Daube, “˜Lex Talionis,™” in Studies in Biblical Law, 111.
7 This strategem is used by Saul, who promises David his daughter™s hand if David would battle
the Philistines (1 Sam 18: 17“27). Saul hopes that in the process of killing the Philistines, David
would be killed but Saul himself would not be responsible “ “. . . now Saul thought: Let my
hand not be upon him but the hand of the Philistines” (1 Sam 18:17).
8 Although David™s ¬rst words are “[I swear] as the Lord lives, that man deserves to die,” David

then orders the man to pay. The ¬rst reaction, “[I swear] as the Lord lives, that man deserves to
die,” is an expression of moral approbation, not law. The judgment to pay is law. Further, the
penalty for adultery is death (Lev 20:10), and after David confesses it, the penalty is transferred
to the son who is to be born. Some have suggested that the term twm @b is not a juridical term, but
an emphatic expression, based on analogy with the term twm `ya and the use of twm in emphatic
expressions. This argument is faulty: The correct analogy is to the technical legal term twkh @b,
“one who deserves a lashing,” in Deut 25:2. The phrase twm @b is a juridical term. Cf. Anthony
Phillips, “The Interpretation of 2 Samuel xii 5“6,” VT 16 (1966), 243“245; P. Kyle McCarter,
II Samuel (AB; Garden City, New York: Doubleday, 1984), 299; H. Seabass, “Nathan und
David in II Sam 12,” ZAW 86 (1974), 203“204; D. Winton Thomas, “A Consideration of
Some Unusual Ways of Expressing the Superlative in Hebrew,” VT 3 (1953), 219“220; Svi Rin,
“The twm of Grandeur,” VT 9 (1959), 324“325.

punishment solely on the sin of taking Uriah™s wife “ “And now, the sword
shall never depart from your house because you have despised me and taken
the wife of Uriah the Hittite to be your wife” (2 Sam 12:10). Nathan does not
subject David to legal action for Uriah™s death because he did not actually
deal the fatal blow. David™s punishment re¬‚ects his transgression “ “Thus
says the Lord: I am going to make trouble for you out of your own house. I
am going to take your wives before your very eyes and give them to someone
else, and he will lie with them in the light of the sun itself, because although
you acted in secret, I am going to do this in front of all Israel, in front of
the sun” (2 Sam 12:11“12). David™s punishment is a trans¬guration of his
crime, the affair with Bathsheba. What he did in secret will be done to him
in public.
At the same time, a distinction is drawn in narrative texts between re-
sponsibility and culpability. To return to the case of Joseph™s brothers, when
they descend to Egypt and are treated harshly, they link this to their harsh
treatment of Joseph. Reuben reproaches his brothers for the responsibility
they bear for Joseph™s fate (Gen 42:22), although they did not directly cause
his death: “Reuben answered them, ˜Did I not say to you, ˜Do not wrong
the boy,™ but you did not listen, and now his blood is being requited.™”
The same distinction lies behind a series of killings and counterkillings
among David™s retainers. The killing of Asahel (2 Sam 2:18“23) is depicted
as the ¬rst link in a chain of events. Abner slays Asahel in battle. Asahel™s
brother, Joab, then ambushes Abner and kills him in revenge. David, in turn,
reacts emphatically, horri¬ed by “the blood falling on the head of Joab and
his father™s house.” He utters a curse upon Joab and his patrimonial house
to ensure that the taint would fall on the killer™s descendants, not his own
(2 Sam 3:28“29). David orders Joab and the army to display outward signs of
mourning, and David himself walks before Abner™s bier and intones a dirge.
These formal acts of grieving constitute a public declaration that David did
not intend the death of Abner. The presumption, however, is that the king
is responsible for the actions of one of his men. This same presumption lies
behind David™s deathbed scene, where he instructs Solomon to kill Joab for
the slaying of Abner and the slaying of Amasa, commander of the army
of Judah (1 Kgs 2:5). After David™s death, when he sees Solomon settling
David™s un¬nished business, Joab ¬‚ees to the Tent-shrine and takes hold of
the horns of the altar. Joab™s action is of no avail. Solomon instructs Benaiah
to kill Joab in order to remove bloodguilt for the deaths of Abner and Amasa
from David and his house (1 Kgs 2:31). David and his house bear moral
responsibility for their subordinate™s deed, not actionable culpability.9 The

9 An analogous case is that of Rahab, who is warned by the spies that she will bear the bloodguilt

if her family ventures out of doors during the conquest of Jericho. The spies will bear it if her
family remains indoors and is not protected (Josh 2:17“20), even though neither Rahab nor the
spies deal the fatal blow.

fact that a person could be held morally responsible but legally exempt for
what he did not do is a phenomenon we would not be aware of if it were not
for narrative texts. Legal texts, by contrast, are concerned with actionable
killings, that is, with offenses for which there are legal consequences. These
are limited to certain acts of killing.
Although biblical law requires that death be the result of direct physical
assault in order for the slayer to be subject to legal action, that requirement
is not suf¬cient. Intent to kill is necessary as well. Exod 21:14 de¬nes inten-
tional homicide as premeditated. Its cause is the direct physical act of the
killer who treacherously lies in wait. On the other hand, the cause of the
other grade of homicide signaled in Exod 21:13 is ascribed as God.10 By
attributing to God the responsibility for accidental homicide, the Covenant
Code holds the view that visible agents of the killing “ implements of wood,
stone, or metal “ are equally directed by the ultimate mover.11 Accidental
killing is equated with an accident without a human cause.
The emphasis in the Covenant Code is on the distinction between the
two types of homicide, one for which sanctuary is legitimate, the other
for which no place offers respite, not even an altar. The typology is based
on intentionality.
The de¬nition of intentional and unintentional homicide is a critical issue
for the other biblical statutes on homicide in Num 35:9“34 and Deut 19:1“
13. Num 35:16“24 contains two distinct de¬nitions of the categories of
If a person strikes another with an iron tool so that [the victim]
dies, he is a murderer “ the murderer shall surely be put to death. 17 If
a person strikes another with a stone tool that can kill so that the vic-
tim dies, he is a murderer “ the murderer shall surely be put to death.
If a person strikes another with a wooden tool that can kill so that
the victim dies, he is a murderer “ the murderer shall surely be put to
death. 19 The blood avenger himself shall put the murderer to death:
whenever he meets him he shall put him to death. 20 If a person pushed
him in hatred or aimed something at him on purpose, 21 or struck
him with his hand in enmity, so the victim dies, he is a murderer “
the blood avenger shall kill him when he meets him. 22 If he pushed

10 Exod 21:13 may have other parallels in ancient Near Eastern statutes. LH 266 attributes the
death of sheep to lipit ilim, “a plague (lit. a touching) of the god,” while LH 249 attributes the
death of a rented ox to a god. These phrases signify an event that has no human cause. Karel
van der Toorn notes that this phraseology emphasizes the fortuitousness of an accidental and
fatal action (Sin and Sanction, 71). Cf. Paul, Studies in the Book of the Covenant, 63“64, and
Daube, “Direct and Indirect Causation,” 255. However, the biblical usage is a radical extension
of the phrase since it refers not to an otherwise inexplicable illness but to a fatal assault directly
done by human hands. The Hittite conception, in HL 3“4, has also been radically extended in
the Bible by linking the activity of human hands to the direction of God.
11 Daube, “Direct and Indirect Causation,” 255.

him suddenly without enmity or aimed an object at him unintention-
ally, 23 or without seeing dropped an object of stone that can kill,
so that the victim dies “ though he was not his enemy and did not
seek his harm “ 24 the assembly shall judge between the slayer and
the blood avenger according to these rules.

The ¬rst de¬nition is in Num 35:16“18, which bases capital murder on
the instrument involved, an iron tool,12 a stone hand-tool of the type that
can kill, or a wooden hand-tool of the type that can kill. Against this, Num
35:20“23 introduces the idea of intent in the three examples of capital murder
it offers: shoving13 someone in enmity, hurling something on purpose, or
striking in enmity with one™s hand. Three examples of unintentional homicide
according to this typology are given in contrast.14 The killer shoved the
victim suddenly without enmity, or hurled something unintentionally, or
caused a deadly stone implement to fall upon the victim without seeing
him. Num 35:20“23 explains these examples by correlating them to the
relationship between the killer and the victim “ “[the killer] was not his
enemy and did not seek his harm.” The criterion at work in verses 16“18
is fundamentally distinct from that in verses 20“23. That in verses 16“18
de¬nes the categories of homicide formally: The extent of culpability depends
on the type of object that caused death. The criterion in verses 20“23, on
the other hand, depends on determining the state of mind of the slayer.15

12 Itappears that iron tools in any form are assumed to be capable of causing death. Cf. Rashi.
13 The verb p-d-h signi¬es direct pushing in 2 Kgs 4:27 and Ezek 34:21.
14 No corresponding list of unintentional homicide according to the criteria of vv. 18“20 is

15 This divergence is a sign that vv. 9“34 underwent a complicated history of redaction. There

is other evidence for redactional activity. Vv. 16“18 use the term jxwr to denote someone guilty
of capital homicide, in contrast to the use of the term to denote any killer in the rest of the
chapter, vv. 11, 12, 25, 26, 27. (It is impossible to determine whether the verse in the Decalogue,
Exod 20:13, refers to any slaying or solely to intentional homicide.) In addition, the de¬nition
of culpable homicide in vv. 20“21 is most likely interpolated material because it is encased
in a Wiederaufname that may indicate interpolation and because it contradicts the de¬nition in
vv. 16“18. Lastly, vv. 33“34 appear to be doublets: V. 33 has a parallel in the P material in Gen
9:6, while v. 34 contains H wording (cf. Knohl, The Sanctuary of Silence, 99).
I would propose the following redaction history of vv. 9“34 that takes into account the
divergent denotations of the term jxwr, the differing de¬nitions of capital homicide, and the
doublet of vv. 33“34. First, the priority of vv. 9“14 and 24“29 seems clear. Then, a number of
additions were made. A de¬nition of culpable homicide was added, vv. 16“19, which included
a technical term, jxwr, for capital homicide. Vv. 30“33 use jxwr to denote culpable homicide and
may belong to the same layer, but it is dif¬cult to provide any de¬nitive timetable for the addition
of vv. 30“33. Another de¬nition of capital homicide was added, vv. 20“21, to the de¬nition in
vv. 16“19. Later, a corresponding de¬nition to vv. 20“21 of noncapital homicide and legislation
regarding the stay of the accidental homicide in the city of refuge was added, making up vv. 22“
23. Vv. 15 and 34 are additions originating from a H editor (on v. 15, cf. Knohl, The Sanctuary
of Silence, 99), but the timing of this is dif¬cult to determine. This redaction history points to a
number of redactional layers, re¬‚ecting different historical periods and their views of evidence.

Determining intentionality lies behind both criteria. However, verses 16“18
derive it from the instrument of killing, an “objective” de¬nition. The use
of particular instruments of deadly force presumes intent by the sheer fact
of their use. In contrast, the categories in verses 20“23 are predicated upon
a witness analyzing the occurrence.
The statute on homicide in Deut 19:1“13 utilizes a different element to
provide the understructure to a typology of unlawful deaths:
This is the type of slayer who may ¬‚ee there and live: whoever
slays his fellow without intent and was not hostile to him in the past.
Whoever came with his fellow into the forest to cut wood: as his
hand swings the ax to cut down the tree, the ax-head falls off the
handle and hits the other so that he dies “ that man shall ¬‚ee to one
of these cities and live.
The previous relationship between the killer and the victim is now a factor.
Deuteronomy stipulates two criteria for those seeking refuge: 1) The assault
must have been done unintentionally; and 2) there must have been no malice
before the killing between the killer and his victim. Two examples, each
showing the criteria for accidental and intentional homicide, are given. In one
example, a person enters a stand of trees with another person to chop wood.
When he swings his ax to cut the wood, the ax-head ¬‚ies from the handle16
and strikes his neighbor. This accidental killing incurs no culpability. The
other example given is that of the act of the culpable murderer (Deut 19:11):
If a person is hostile to another and lies in wait and strikes him
mortally so that he dies, and ¬‚ees to one of these towns, 12 the elders
of his town shall send and take him back from there and deliver him
to the blood avenger so that he dies.
A person hates another person and prepares an ambush in order to strike
him down. These two examples show that both elements, intention and prior
malice, are necessary for capital murder according to Deuteronomic law.
The criterion of the relationship between the killer and the victim in
Deuteronomy “ “this is the type of slayer who may ¬‚ee there and live:

16 There is confusion over the referent of $[h in the clause $[h @m lzrbh l`nw. If we connect the
word $[h in the previous clause to this one, it would appear that the text describes a case in
which the ax-head, being attached to the ax, bounced off the tree to strike the other man. In
contrast, the case where the ax-head ¬‚ew off the handle should be expressed: wx[ @m lzrbh l`nw,
strictly, “the ax head ¬‚ies off its wood.” However, the case of an ax-head ¬‚ying off the handle
seems much more likely than the rebound from the tree. Indeed, there may be problems in
general with keeping an ax-head on its handle (cf. 2 Kgs 6:5, where one of Elisha™s miracles is to


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