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records of actual cases re¬‚ect how the legal process was carried out and
what was deemed essential to a transcript of a case. The treaties and other
international documents encapsulate the shared features of the legal proce-
dure and principles between countries and may shed light on the common
denominator of the treatment of homicide in the ancient Near East, if one
should exist. With few exceptions, scholars have concentrated on the formal
legal collections.15 Thorkild Jacobsen™s 1959 article on a Sumerian homicide
trial16 and Martha T. Roth™s reconstruction of Neo-Assyrian homicide pro-
cedure17 represent rare examples of analysis of legal records. Horst Klengel
identi¬es common legal practices of West Semites in the Late Bronze Age
by studying the treaties and other interterritorial documents of the period.18
The cuneiform texts treated here appear in a variety of forms, such as le-
gal records of a wide variety, letters referring to actual cases of homicide,
and treaties and formal collections of law containing provisions on unlawful
death, but there are lacunae that call for comment. Cuneiform narrative texts
deal with killing during war or with generations of younger gods superseding
the previous generation by killing the older gods, not with the type of slaying
treated in this study. Oddly enough, although the Neo-Babylonian period is
the second-best documented period in Mesopotamian history, there are no
Neo-Babylonian texts treating homicide (except for an attempted homicide,
TCL 12 117). This may not be as surprising as it seems initially, since the Neo-
Babylonian texts originate almost exclusively from the archives of temples,
religious institutions that did not have jurisdiction over cases of homicide.

15 Even ¨
a study as recent as Ulrich Sick™s Die Totung eines Menschen und ihre Ahndung in
den keilschriftlichen Rechtssammlungen unter Berucksichtigung rechtsvergleichender Aspekte
(Ph.D. diss., Eberhard-Karls-Universitat, 1984), did not make reference to any legal records,
though the records were available in edited form by then, some in a number of editions.
16 Thorkild Jacobsen, “An Ancient Mesopotamian Trial for Homicide,” Studia Biblica et Ori-

entalia (Analecta Biblica et Orientalia 12; Rome: Istituto Biblica Ponti¬cio, 1959), 3.130“
150, reprinted in Thorkild Jacobsen, Toward the Image of Tammuz and Other Essays on
Mesopotamian History and Culture (ed. William L. Moran; HSS 21; Cambridge, Massachusetts:
Harvard University Press, 1970), 193“214.
17 Martha T. Roth, “Homicide in the Neo-Assyrian Period,” in Language, Literature, and

History: Philological and Historical Studies Presented to Erica Reiner (ed. Francesca Rochberg-
Halton; AOS 67; New Haven, Connecticut: American Oriental Society, 1987), 351“365.
18 Horst Klengel, “Mord und Bussleistung in spatbronzezeitlichen Syrien,” in Death in
Mesopotamia (ed. Bendt Alster; Copenhagen Studies in Assyriology 8; Copenhagen: Akademisk
Verlag, 1980), 189“197.

Undoubtedly, homicides occurred during the Neo-Babylonian period. Un-
fortunately, we have no records of them.
We must be aware of our limited access to sources. It must be acknowl-
edged that there is no way of determining the extent to which the Hebrew
Bible re¬‚ects a representative cross section of ancient Israelite culture. The
Bible may incorporate only selected aspects of Israelite society, offering us
a skewed picture of ancient Israel. Nor is there any certainty whether the
statutes in the Bible were used in a court system. There is only one inscrip-
tion from ancient Israel that deals with a legal matter, the Mesad Hashavyahu
. .
or Yavneh-Yam letter, in which a complaint is lodged with an of¬cial regard-
ing an object left in pledge that was not returned.19 We must ask, therefore,
whether the differences that are found between the Hebrew Bible and the
documents from the rest of the ancient Near East are real differences, or
whether they simply re¬‚ect a limited, and therefore distorted, database, due
to the accidental nature of tradition, for the Hebrew Bible, and of archae-
ological discovery, for inscriptions from the ancient Near East as a whole.
A critical distinction needs to be drawn between the Hebrew Bible and an-
cient Israel. The Hebrew Bible is not a representative cross section of ancient
Israel. It comprises products of particular individuals and ideological cir-
cles. The idiosyncracies of these writers and theological factions may distort
the law.
These strictures, however, could be applied to any collection of texts:
Could any ¬nite collection of works, like the Hebrew Bible or even the ¬fty-
odd documents amassed from cuneiform cultures, ever suf¬ce? How many
documents from a particular era in a particular territory would ever be a
suf¬cient number? We can only base a historical reconstruction on what
we have, keeping in mind how our sources skew our perception. We are
always at the mercy of the next archaeological discovery. In the absence of
court records or other documents shedding light on actual legal procedures
in ancient Israel, a reconstruction of the law based on the material in the
Bible must be quali¬ed by the acknowledgment that a distinction needs to
be drawn between the legal system as described in the Bible and the actual
legal system of ancient Israel.
A hotly debated issue in the study of cuneiform law is whether the statutes
in formal collections of law were precedent setting and comprehensive. In
other words, were the formal collections of law ever used in court? This issue
has been subsumed in scholarship under the question of whether the Laws
of Ur-Nammu, the Laws of Lipit-Ishtar, the Laws of Eshnunna, the Laws of
Hammurapi, and the Middle Assyrian Laws should be called “law codes.”
Objections have been made to calling the Mesopotamian laws and the Hittite
Laws law codes because they were neither binding nor comprehensive nor

19 J.
Naveh, “A Hebrew Letter from the Seventh Century b.c.,” IEJ 10 (1960), 129“139;
KAI 200.

apparently ever cited; rather, they should be called “law collections.”20 How-
ever, James Lindgren argues that the word “code” is rarely used to refer to a
country™s comprehensive body of law and that restatements of laws already
in force are generally considered to be codi¬cations of law even if the restate-
ments themselves have no binding force.21 In this study, I shall call them law
collections for convenience.
Lastly, I must emphasize that the comparative method is not a method of
evaluating the superiority or inferiority of any culture in contrast to another.
Especially in regard to a topic such as homicide that is the subject of such
heated debate in contemporary society, we must be aware of the ways we
belong to biblical tradition, as well as the distance we are from it in light of
modern legal and political ideals.


The ¬rst chapter focuses on the story of Cain and Abel. This tale adumbrates
many of the critical issues involved in the treatment of homicide in the Bible.
It is the most famous case of homicide in the Bible, and as a tale intentionally
set in hoary antiquity, it both concurs with and diverges from the treatment
of homicide as described in the rest of the Bible. It sets the stage for the
analysis that follows.
The second chapter, “Blood Feud and State Control,” deals with social
history and comparative law. I analyze the institution that ensured that a
homicide would be punished in biblical law. In biblical Israel, the victim™s
family assumed the primary responsibility for ensuring that the slayer was
punished: One member of the victim™s family, “the blood avenger,” possessed
the right to kill the slayer on sight with impunity. I argue that this process
should be understood as blood feud, a legal institution with particular char-
acteristics, basing my interpretation on an anthropological model. Blood
feud was a legal mechanism, not an aberration outside of the law, and was
directly linked to the role of the clan or lineage, the association of extended
families, in other legal matters. The identi¬cation of the process as blood

20 Cf. Finkelstein, The Ox That Gored, 15“16; Jean Bottero, Mesopotamia: Writing, Reasoning,

and the Gods (trans. Zainab Bahrani and Marc van de Mieroop; Chicago: University of Chicago
Press, 1992), 156“184; F. R. Kraus, “Ein zentrales Problem des altmesopotamischen Rechts:
Was ist der Codex Hammurabi?” Genava n.s. 8 (1960), 292. What is ironic about this stricture
is that it appears that whatever law is studied is compared unfavorably to any other law, which
appears to be binding and comprehensive in comparison. Cf. the lament about the Icelandic
laws Gragas by Andrew Dennis, Peter Foote, and Richard Perkins, Laws of Early Iceland:
Gragas (University of Manitoba Icelandic Studies III; Winnipeg: University of Manitoba Press,
1980), 9.
21 James Lindgren, “Measuring the Value of Slaves and Free Persons in Ancient Law,” Chicago-

Kent Law Review 71/1 (1995), 150“151, n. 3.

feud is critical because it allows us to understand it as an intrinsic element
of the legal process and how blood feud is by its nature rule-bound. The
potential for violence actually limits violence and promotes the acquiescence
of the killer to a trial. In a society without specialized judicial personnel, such
as police or prosecutors, a lineage acting as a mutual aid society ensures that
the crime would be punished. This understanding of the process is in direct
contrast with the prevailing idea that the actions of the family are outside the
law and that the excesses of the family™s activities must be curbed by the law.
At the institutional level, therefore, biblical Israel differed radically from
its neighbors. Blood feud did not operate elsewhere in cuneiform law, where
a central government exerted control over the legal process. The difference
is due to disparate conceptions of society. I argue that a social system based
on kinship ties persisted in ancient Israel. This is contrary to the dominant
models of the social development of ancient Israel, which claim that kinship
ties broke down during the monarchy. My argument is based on both tex-
tual evidence and archaeological data. The organization of society based on
kinship ties in ancient Israel is in sharp contrast to the pervasive urbanism
of Mesopotamian society, in which kinship ties dissipated. This chapter con-
cludes with three excurses on matters essential to my analysis. In the ¬rst, I
evaluate and reject the argument that the blood avenger was not a member
of the victim™s family. In the second, I present the evidence that the Akkadian
term b¯ l damˆ , “owner of the blood,” refers both to the slayer and to the
e e
claimant from the victim™s family. This terminology re¬‚ects the difference
between biblical and Mesopotamian law. Biblical law is focused on the rep-
resentative of the victim™s family, whereas the participation of both parties
is the assumption of Mesopotamian law. In the third excursus, I reconstruct
the Neo-Assyrian process of the adjudication of homicide from a series of
documents. This set of texts is the only one available that allows us to recon-
struct a Mesopotamian example of the adjudication of homicide from start
to ¬nish.
The third chapter, “The Development of Places of Refuge in the Bible,”
sketches the history of the development of asylum and analyzes the cities of
refuge as described in the Pentateuchal sources. I argue as faulty the claim that
altar asylum for killers developed into the cities of refuge as a result of the
consolidation of control by the early monarchy or for the monarchy by
the Deuteronomic reform. The narrative evidence depicting asylum during
the period of the early monarchy actually shows political offenders, not
killers, seeking asylum from their political opponents, and the texts from
Deuteronomy do not present the cities of refuge as an innovation, contrary to
how other Deuteronomic reforms are depicted. The statute in the Covenant
Code, Exod 21:12“14, is ambiguous: It is equally plausible that it refers to
asylum at an altar or to a city of refuge. The second part of the chapter
shows that the differences between the Pentateuchal sources designated P/H
and D on a number of the basic features of these sanctuaries is as a direct

result of their ideological and theological programs and is not based on a
historical development from altar asylum to cities of refuge. The number of
refuges in the Priestly tradition is linked to its program of schematicizing
Israelite history, and its linkage of Levitic cities to the cities of refuge re¬‚ects
its evaluation of the Levites. The Priestly law is concerned with the purity
of space, whereas the Deuteronomic law is focused on the Israelite people.
The Deuteronomic crystallization of the cities of refuge is informed by a
Deuteronomic interest in social aspects of the law. Finally, I demonstrate how
the different traditions of P/H and D are brought together in the description
of the cities of refuge in the book of Joshua.
The relationship of the treatment of homicide to Israelite religion is the
subject of the next chapter, “Pollution and Homicide.” Homicide had a cultic
valence. I demonstrate that blood was considered to be both a polluting and
cleansing substance. The spilling of blood was a serious offense not only
because a person was slain but because the spilled blood itself was a polluting
substance. A slaying not only contaminated the slayer but affected the purity
of the nation as a whole because biblical religion extended the concept of
impurity to include certain nonritual offenses, such as homicide. The only
viable remedy was to remove the contamination by spilling the blood of the
killer, a cleansing act because of the decontaminating power of blood. This
concept is re¬‚ected in the title given to the avenger from the victim™s family,
!dh lag, “the redeemer of the blood.”
Even an accidental killing polluted. According to the Priestly traditions,
this meant that the accidental killer was forced to remain in a city of refuge
until the death of the high priest: His death acted as expiation for the contam-
ination incurred by the accidental death. A city of refuge was therefore both
a sanctuary and a prison. In Deuteronomy, the concept that any unlawful
killing pollutes was manifested in the concern that an accidental slayer might
be killed by the avenger before reaching the city of refuge and in mandating
a public ceremony removing the ill effects of spilled blood when a corpse
whose killer cannot be identi¬ed is discovered.
By contrast, the pollution caused by homicide is generally ignored in
sources from the rest of the ancient Near East. In the event of a corpse being
found in an open ¬eld, the concern is with determining who is responsible
for compensating the victim™s family, not with any possible contamination.
I argue that, at least in the case of Mesopotamia, this difference is due to
fundamental differences between Israelite religion and Mesopotamian reli-
gion. In the latter, blood was considered only to be a polluting substance,
not a cleansing substance, and the blood spilled in an unlawful death did not
contaminate anyone besides the killer. Impurity was thought to be caused
by demons, and committing a sin subjugated a person under the control
of demons. The solution then was to send the demons back to their home.
Biblical religion manifests the anxiety that pollution had an effect on na-
tional institutions and concerns and that the misdeeds of a single individual

could pose a danger to the larger group “ these are concepts not extant in
Mesopotamian religion.
In Chapter Five, “Typologies of Homicide,” I deal with the typologies
of homicide re¬‚ected in the biblical laws and narratives and compare them
to the typologies found in ancient Near Eastern law. I argue that both bib-
lical law and narrative share a common denominator in that only homicide
caused by direct physical assault is subject to legal action. Biblical narratives
show characters utilizing this loophole in the law to evade punishment and
differentiating between legal culpability and ethical responsibility, phenom-
ena we would not be aware of except for narrative texts. The laws manifest
a struggle to distinguish between intentional and accidental homicide.
The biblical texts lay out different criteria for determining responsibil-
ity, a presentation that appears to re¬‚ect the dilemmas of an actual court,
whereas the ancient Near Eastern texts re¬‚ect scribal conventions divorced
from court procedure. For the Bible, justice is grounded in actual cases, in
the gray areas that make the determination of justice dif¬cult. For cuneiform
law, justice is abstract: It is articulated in conventional cases that shy away
from complexity. The ancient Near Eastern law collections share more than
this: I demonstrate that they are part of a common literary tradition in which
a certain number of conventional cases make up the repertoire from which
an author then composes his own variations. What is striking about the
difference between biblical and ancient Near Eastern law is that the ancient
Israelites actually used the conventional cases common to ancient Near East-


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