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recover an ax-head that came off its handle and fell into the Jordan River). Information on the
shape and composition of axes is available (cf. J. D. Muhly, “Metals,” in OEANE 4.1“5), but
little is known of the means of their use outside of warfare (cf. Rupert Chapman, “Weapons,”
in OEANE 5.334“339).
123
TYPOLOGIES OF HOMICIDE


whoever slays his fellow without intent and was not hostile to him in the
past” “ is radically different from its use in Num 35:23 “ “though he was
not his enemy and did not seek his harm” “ for two reasons: 1) Deut 19:4,6,
by using the adverb !`l` lmtm, “previously,” focuses on the relationship be-
tween the victim and the killer prior to the murder, while Num 35:23 is
concentrating on the character of the relationship at the time of the murder;
and 2) Deut 19:4“5, 11“12 de¬nes incidences of accidental slaying by this
criterion, while Num 35:23 uses the relationship as an explanation as to why
certain fatal events are not intentional.
Although few details about the use of witnesses are provided, the ty-
pologies of homicide presume their use, and the de¬nitions shed light on the
testimony elicited from witnesses. The formal typology in Num 35:16“18
requires them to identify the instrument of murder. The typology based on
the state of mind of the murderer in Num 35:20“23 requires the witnesses
to make judgments on the murderer™s internal motivation. The typology of
homicide in Deut 19:1“13 requires, in addition to information on the actual
crime, knowledge of events prior to the murder in order to prove prior mal-
ice between victim and killer. This may require additional witnesses or lines
of inquiry.
Examination of matters extraneous to the act itself is not without parallel
in other legal systems. In modern France, for example, courts investigate
the personnalit´ of the accused: Inquiry is made into his or her personal
e
history and family life, schooling, work record, military service, ¬nancial
situation, leisure interests, and character traits without any restrictions as to
their in¬‚uence on the criminal act itself.17
There is also a formal requirement about the number of witnesses.
Num 35:30 stipulates that the number be more than one in order to condemn
the killer:

Any killer “ the murderer shall be killed on the testimony of witnesses:
a single witness shall not be suf¬cient for a sentence of death.

However, Num 35:9“34 does not indicate whether the killer is released with-
out prejudice from the city of refuge if there is only one witness. Deut 17:6
and 19:15 contain a general provision that for any transgression, two or
more witnesses are required.
Furthermore, in the adjudication of homicide, judicial action relies on the
testimony of witnesses, not on physical evidence. Witnesses may report on
the manner of killing (Exod 21:13“14; Num 35:20“23), the instrument of
killing (Num 35:16“18), or the prior relationship between the murderer and
the victim (Deut 19:4), depending on the statute. There is no indication that

17 Bron
McKillop, “Anatomy of a French Murder Case,” American Journal of Comparative
Law 45 (1997), 541“543, 551“554, 579“582.
124 HOMICIDE IN THE BIBLICAL WORLD


the body or other physical evidence must be produced in the proceedings.18
An exception proves the rule. In Deut 21:1“9, the unknown human corpse
found with indications of foul play becomes, in lieu of witnesses, the evidence
for a murder that must be dealt with.19 Rarely does physical evidence play a
signi¬cant role in biblical law. One such instance concerns shepherds, who
must produce the remains of the animal under their care that had been
taken by a predator in order to be released from compensating the owner
(Exod 22:12).
Without witnesses, the offense cannot be remedied. An admonition
against one who commits homicide in stealth appears in a list of forbid-
den acts committed in secrecy (Deut 27:24):

“Accursed is the one who strikes down another in secret,” and all the
people shall say, “Amen.”

A homicide has been committed in such a way that it is dif¬cult to prove who
did it. The culprit cannot be apprehended and punished. By anathematizing
acts committed clandestinely, their punishment becomes God™s responsibility,
thereby discouraging would-be perpetrators who might assume that they
could escape a penalty for their transgression.20
Two other cases of killing are de¬ned in the Book of the Covenant, but
are not included in the laws of homicide. In the course of treating theft,
Exod 22:1“2 stipulates that killing a thief who is tunneling in during the
night is justi¬able homicide, while killing him during the day is not and
incurs bloodguilt. The issue at hand is that at night in the dark, the thief™s
intention cannot be determined. He has illegally entered a home, and whether
he intends to steal or to kill cannot be easily determined. The presumption
is the worst-case scenario “ that he is trying to kill someone. During the day,
it can be seen that he is just a thief, not a killer.
Intention is also a factor in holding the master of a slave culpable for the
slave™s death. According to Exod 21:20“21, the deciding factor is the time in
which the slave™s death occurs. If it is immediately upon a beating, the master
is punished. If the slave lingers for a day or two before dying, the master is not
punished. What lies behind this distinction is determining the intention of the
master. If the slave dies immediately, the master appears to have intended
his death. If the slave lingers, the master™s intention becomes murky and,
therefore, the principle that takes precedence is the master™s ownership of
the slave and his right to impose discipline on that slave.


18 Victor H. Matthews and Don C. Benjamin, Social World of Ancient Israel, 1250“587 BCE
(Peabody, Massachusetts: Hendrickson, 1993), 129.
19 The showing of the tattered remains of Joseph™s embroidered tunic to Jacob by his sons

re¬‚ects, to a certain extent, this exception (Gen 37:32“33).
20 Tigay, Deuteronomy, 253.
125
TYPOLOGIES OF HOMICIDE


Narrative also recognizes that intention is critical. In 1 Kgs 3:16“27,
the two prostitutes appeal to King Solomon because one killed her child by
lying on him. However, there is no hint that the mother who killed her son
was considered culpable or responsible. Apparently, the killing of the child
was not actionable because there was an element of lack of human intent:
Certainly, the mother did not intend to kill her child.21 Moreover, there was
nothing inherently dangerous in her act: She did not swing an ax or other
dangerous implement that could kill if used in a hostile manner. Accidental
homicide covers acts that the actor should have known could potentially
cause harm.
The biblical legal texts clearly express an anxiety over articulating a dis-
tinction between intentional and accidental homicide. They are trying to
provide concrete illustrations of the distinction. The best proof of this is to
compare the biblical statutes to those of the rest of the ancient Near East.
The cuneiform law collections fail to provide criteria for determining
whether a slaying was intentional or accidental. In general, they lack infor-
mation on the procedures set into motion when a homicide occurred. How
was it determined that a homicide in fact occurred? How was the identity
of the killer ascertained? How was the killer apprehended? These matters
are ignored.22
Only the statutes in the Laws of Hammurapi provide some insight into
how a case might have been initiated. LH 1 is the ¬rst in an introductory
series of laws on procedure and addresses an unsubstantiated accusation of
homicide. According to LH 1, a private person can lay a charge of homi-
cide against another person.23 The relationship of this private citizen to the

21 Daube, “Direct and Indirect Causation,” 256“257.
22 Ingeneral, archaic codes, whether Eastern or Western, lack provisions on procedure. Cf. F. L.
Attenborough, The Laws of the Earliest English Kings (Cambridge: Cambridge University Press,
1922), and Wallace Johnson, The T™ang Code (Vol. 2; Princeton Library of Asian Translations;
Princeton: Princeton University Press, 1997).
23 Roth argues that the ¬rst and last statutes in LH are intended to bear a political message for

Hammurapi™s vassals, as do the prologue and epilogue (“Mesopotamian Legal Traditions and
the Laws of Hammurabi,” Chicago-Kent Law Review 71 [1995], 18“19). Both LH 1 and 282
deal with verbal utterances that are not substantiated. LH 1, punishing a false accusation of
murder, translated into the political realm is equivalent to a warning about treasonous utter-
ances, especially as it follows the glori¬cation of Hammurapi™s military power in the preamble.
LH 282, punishing a slave™s denial of his subservience to his master, would be understood as
rebellion, especially in light of the curses against anyone who would disrespect the stela in the
epilogue. Roth argues that these two statutes, in conjunction with the rest of the composition,
were intended to reinforce Hammurapi™s superior position and to remind his contemporaries
of the consequences of treasonous and rebellious behavior. It seems to me that this hypothesis
¬ts LH 1 better than it ¬ts LH 282. LH 1 and the three following provisions all mandate the
remedy for unsubstantiated charges in the legal arena. This would seem to reinforce a message
to vassals to cease political jockeying among themselves, rather than be disloyal to their over-
lord. Roth herself notes that the political message was certainly not the sole message conveyed
by the placement of these particular statutes.
126 HOMICIDE IN THE BIBLICAL WORLD


victim is unstated. There was no public of¬cial who held the responsibility
of charging a person on behalf of a private citizen, nor was the right to
make such an accusation limited to the victim™s family. What happens in the
rest of the process is omitted. For example, the critical role of the crown,
so pronounced in the other Mesopotamian documents we have analyzed in
Chapter Two, is simply not mentioned explicitly. It may be implicitly as-
sumed in the ascription of so many of the law collections “ LL, LU, LH, and
the Edict of Telepinus “ to kings.
To be sure, the adjudication of homicide was considered important else-
where in the ancient Near East. Six out of seven law collections contain
statutes on homicide. Homicide provisions were placed at the beginning of
law collections, and what is striking is that all but one of the cuneiform law
collections for which the beginning of the statute section is preserved start
with a statute on some aspect of homicide, whether a general rule, a rule
about a speci¬c type, or a matter of legal procedure.24

The ¬rst statute in the Laws of Ur-Nammu:
LU 1
If a man commits a homicide, they shall kill that man.
The ¬rst statute in the Hittite Laws:
HL 1
[If] anyone kills [a man] or a woman in a [quarr]el, he shall [bring him]
[for burial] and give 4 persons [lit. heads], male or female respectively,
and he shall look [to his house for it.]
The ¬rst statute in the Laws of Hammurapi:
LH 1
If a man accuses another man and charges him with homicide but
then cannot bring proof against him, his accuser shall be killed.
A homicide statute is placed at the beginning of the Laws of Ur-Nammu, the
Laws of Hammurapi, and the Hittite Laws, but not the Laws of Eshnunna.25
With regard to the Laws of Lipit-Ishtar, unfortunately, there is a sizable
gap between the preamble and statute section. Indeed, the beginning of the
statute section of LL is missing and, therefore, we cannot know whether
LL commenced with a statute on homicide.26 Homicide as the ¬rst item
24 Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (contribution by Harry
A. Hoffner, Jr.; SBL Writings from the Ancient World Series; Atlanta: Scholars Press, 1995), 72.
25 LE contains other differences from the other law codes, such as the lack of an apologetic

±ˇ
preamble, and may originate in another literary tradition, that of the m¯sarum edict, which has
been welded to that of the codes. See J. J. Finkelstein, “Ammisaduqa™s Edict and the Babylonian
.
˜Law Codes,™” JCS 15 (1961), 102.
26 No statute regarding homicide appears at the beginning of the Middle Assyrian Laws (MAL).

However, MAL do not appear to be a uni¬ed collection of statutes.
127
TYPOLOGIES OF HOMICIDE


demonstrates the importance of statutes against homicide. It also seems to
be part of the style of the law collections.
The law collections share other stylistic elements: The remedy for the
killing of free persons is equally likely to be either compensation or execution,
depending on the circumstances, but there is striking uniformity across the
law collections for particular groups of cases. Thus, a ¬ne is the remedy for
unintended death caused in the course of an assault, such as a miscarriage or
a death caused by an animal. However, this uniformity is not necessarily the
case within a single code. For example, the penalties in LH for similar cases
are not congruent. The circumstances in LH 207, the death of a member of
the free class from an assault, have an af¬nity to the circumstances in which
a pregnant woman of the free class dies from an assault (LH 210):
207
If [a free man] dies from his beating, he shall also swear [“I did not
strike him intentionally”]. If [the victim] is a member of the free class,
he shall pay 30 shekels of silver.

210
If [a free man strikes a woman of the free class and] that woman dies,
they shall kill his daughter.
The penalties in these similar cases are different: A ¬ne is mandated in the
¬rst case, while in the second case, an execution is prescribed. This is so
because death caused in the course of a brawl is punished by a ¬ne in other
law collections, while the remedy for the death of a pregnant woman is
capital punishment, as is re¬‚ected in other law collections.27
The cuneiform law collections draw a distinction between intentionality
and unintentionality on the part of the offender in a number of related cases.
LE 47A is located at the conclusion of a series of statutes on bodily injuries
and mandates a ¬ne for a death occurring during a risbatum, “a brawl.”
The term risbatum is the third of three terms mentioned in these provisions,
the other terms being suqum,28 literally “street” (LE 44), and sigiˇ tum, “a
¯ ˇs
¬ght” (LE 47). These terms specify the circumstances in which the injury

27 There may be a discernible reason for this difference: In LH 207, the accused swears that he
did not do the action intentionally. Nothing like this is noted in LH 210.
28 The reading here is dif¬cult. Rykle Borger (“Der Codex Eschnunna,” in Rechts- und

Wirtschaftsurkunden Historisch-chronologische Texte [Texte aus der Umwelt des Alten Tes-
¨ ¨
tament, Band 1/1; Gutersloh: Gutersloher Verlagshaus Gerd Mohn, 1982], 20), and CAD
¯ ¯
S, 70, s.v. sakapu, read ina suqim. In his original publication, Emile Szlechter restores it to
ina [sa-al-tim], “in the course of a ¬ght” (Les lois d™Eshnunna [Publications de l™Institut de
.
Droit Romain de l™Universit´ de Paris 12; Paris: Centre Nationale de la Recherche Scienti¬que,
e
1954], 28), but rereads it as [i]k-l[u-i-tim], “in darkness,” omitting ina, in his 1978 publi-
cation (“Les lois d™Eshnunna,” RIDA 25 [1978], 138). This reading is also held by Lands-
berger, “Jungfraulichkeit,” 101. Albrecht Goetze suggests that from the context, the missing
signs should indicate something along the lines of “altercation,” The Laws of Eshnunna (New
Haven, Connecticut: American Schools of Oriental Research, 1956), 120.
128 HOMICIDE IN THE BIBLICAL WORLD


was in¬‚icted, factors that mitigate or aggravate the culpability of the guilty
party.29 LE 44 indicates that the injuries treated in LE 44“46 occurred while
the victim was passing by innocently on the street. LE 47 indicates that an
ˇs
injury took place in a sigiˇ tum, “a ¬ght.” The injured was himself involved
in aggressive behavior, and therefore his injury merits a lesser penalty, only
ten shekels, in comparison to the ¬nes ranging from twenty to thirty shekels

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