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class, he shall weigh out 40 shekels of silver.
48
And for a case involving a ¬ne of silver ranging from 20 shekels to
60 shekels, the judges shall determine the judgment against him. A
capital case is for the king only.

56 Eichler, “Literary Structure in the Laws of Eshnunna,” 78.
139
TYPOLOGIES OF HOMICIDE


LE 47A serves as the maximal variant and, as such, requires the inclusion of
material pertinent to the extreme situation and the exclusion of extraneous
material.
LE 53 in the context of LE 54 deals with an ox whose vicious disposition
was not known before:

53
If an ox gored [another] ox and killed it, both [ox owners] shall divide
the value of the live ox and the carcass of the dead ox.

54
If an ox [was] a gorer and the ward [authorities] have had [it] made
known to its owner, but he did not guard his ox and it gored a man
and killed [him], the owner of the ox shall weigh out 40 shekels of
silver.

LE 54 presents the polar opposite of the ox in LE 53. The ox of LE 54
is an ox whose vicious disposition was so well known as to be known to
the ward authorities. They, in turn, warned the owner, who in spite of the
warning did not restrain his ox. The muddy middle is not touched, that is,
the case of a vicious ox that breaks out of his enclosure or who leaves his
enclosure after thieves have destroyed part of the fence. In these latter cases,
the responsibility of the owner is less certain because he has restrained his
ox. Unfortunately, because of circumstances beyond his control, the ox gets
free and causes damage.
Literary structuring can, thus, account for the omission of critical variants
in much of the Mesopotamian material. The scribal tradition that informs
the genre of cuneiform law collections provides the types of cases. Each code
contains improvisations on these types.
If we compare the Mesopotamian law collections to the legal records
from Mesopotamia, the contrast between them is striking: The content of
legal records is far more varied. This is so for two reasons. The legal records
are directly linked to the details of individual cases. Furthermore, they are
not part of a single literary tradition, which constrains variations to a great
degree.
Legal documents, legal records, letters, and treaties are clearly related to
actual practice, to what was in fact undertaken in the case of homicide. But
when we turn to the so-called cuneiform law collections, their relationship to
real cases is not so clear, and, in fact, is a subject of great debate. Although the
collections differ widely in date and place of composition, they constitute a
distinct class of texts in cuneiform literature. The statutes in the collections at
least did not develop out of the particular social and political circumstances
of their time. They were part of a scribal tradition independent of their
historical situation. The introductions, the epilogues, and the impetus for
140 HOMICIDE IN THE BIBLICAL WORLD


writing a code at all were probably linked to particular needs of the king to
whose name the code was linked.
A different array of elements in the treatment of homicide present them-
selves in the law collections when compared to the other material we have
analyzed. For example, in contrast to the cuneiform legal records analyzed
earlier, where the penalty is predominately pecuniary, in the law collections
the penalty seems to be equally divided between capital punishment and
monetary compensation. In the the cuneiform legal records, the manner in
which the victim was killed was omitted because these documents are only
concerned with the monetary payments involved. By contrast, the law col-
lections present a wide range of possibilities, from intentional homicide to
unlawful death resulting from negligence.
Two speci¬c cases of homicide, the case of injury to a pregnant woman
(LI d“f, SLEx 1 “2 , LH 209“214, MAL A 21, 50“52, and HL 17“18) and
the case of a goring ox in cuneiform law (LE 53“55 and LH 250“253), are
treated in cuneiform laws because they are conventional cases. Similar cases
appear in the Covenant Code. A pregnant woman has become involved in a
scuf¬‚e and has been injured with fatal results in Exod 21:22“25. An owner
is held responsible for the actions of his goring ox in Exod 21:28“32. These
cases are about negligence, a different type of homicide from the accidental
and intentional homicide of Exod 21:12“14, Num 35:9“34, and Deut 19:1“
13. In the latter, a variety of speci¬c cases are offered to illustrate principles
applied to a variety of actual situations.
The statutes on the goring ox in LE contain the closest parallel in literary
formulation and substance to any biblical law. LE 53 reads, “If an ox gores
another ox and thus causes its death, the two ox owners shall divide the
value of the living ox and the carcass of the dead ox.” Exod 21:35 reads, “If
someone™s ox gores his fellow™s ox so that it dies, they shall sell the living ox
and divide its price and the carcass of the dead ox.” How can this similarity
be explained?
Raymond Westbrook asserts that the biblical writer possessed a concrete
knowledge of cuneiform law.57 He argues that the biblical formulation was
made with the statute in LE in mind. The identity of Exod 21:35 with LE 53
would then serve as proof of the existence of LE as a school text far beyond
the borders of Eshnunna and far later than its time of promulgation. Other-
wise, there are no attestations of copies or sections of LE beyond the borders
of Eshnunna. We do know that cuneiform scribal schools were established in
Canaanite cities prior to the Israelites.58 According to Westbrook, cuneiform
law collections were literary works used as school texts in Canaanite scribal
workshops and, by implication, were used the same way during the Israelite

57 Raymond Westbrook, “Biblical and Cuneiform Law Codes,” RB 92 (1985), 257, and Studies
in Biblical and Cuneiform Law, 2“3. Also, Paul, Studies in the Book of the Covenant, 104.
58 Westbrook, Studies in Biblical and Cuneiform Law, 3.
141
TYPOLOGIES OF HOMICIDE


period. However, to my mind, if there were actual dependence, would it not
be visible in the same striking type of correlation in more than one statute?
Reuven Yaron argues that the biblical provisions regarding the goring
ox may have been derived from a common Near Eastern legal tradition
and practice, rules that were widely used but only sporadically put into
writing.59 He compares the solution of LE and Exod 21:35 to Greek and
Roman legislation. First, the Laws of Gortyn, the earliest Greek code, do
not contain any law comparable to LE 53 and Exod 21:35. Second, Roman
law, which does address the case of the goring ox, holds the owner of the
ox that gored responsible. If the surviving ox was the one that gored, its
owner is liable to make good the damage. If the surviving ox was the one
that was gored, the owner of the goring ox need not make good the damage.
In contrast, LE and Exodus divide the loss, regardless of which ox survives.
In the latter situation, the owner of the aggressive ox and the owner of the
victimized ox are equally likely to lose or gain, depending on the respective
values of their oxen. If the two animals are of roughly the same value, both
owners have neither lost nor gained by the incident. However, if the animals
are of differing value, one owner will be more greatly compensated than the
other. The owner of the aggressive ox may come out ahead or behind. The
owner of the victimized ox may come out ahead or behind. In a sense, this is
grossly unfair to the owner of the ox that was gored, who may suffer a loss,
even though he and his ox were not responsible. This no-fault principle60
differs sharply from the at-fault ruling of Roman law. It was the rule for
goring oxen used in the ancient Near East that by chance was recorded
in LE and Exod 21:35. It was not an innovation of either text. There is a
commonality in a single legal principle between LE and the Hebrew Bible.
Unfortunately for Yaron™s view, the rest of the statutes on the goring ox
differ greatly. The topic may be the same, but the details are not. According to
Exod 21:28“29, if an ox kills a human being, whether it has gored (animals)
before or not, the ox must be killed and its ¬‚esh may not be eaten. This is
not a concern of LE or of any other cuneiform law collections, which are
not interested in the fate of the goring ox; for these nonbiblical collections,
if an ox known to gore animals kills a human being, the owner must pay
according to what is determined at the time. Even the biblical law that has
such a striking parallel in LE, Exod 21:35, is followed by a statute addressing
the case of a known gorer killing another animal, a case not mentioned
in cuneiform law collections. Furthermore, the statutes on the goring ox

59 Reuven Yaron, The Laws of Eshnunna2 , 294“295.
60 This no-fault principle assumes that the two animals were roughly the same value, and it
does not take into account where the encounter occurred. Yaron infers that the ruling might be
different if they were not approximately equal in value or if the circumstances of the assault
were considered. For example, the penalty might be different if the goring took place in the
public domain, the ¬eld of the aggressor ox, or the ¬eld of the victimized ox. However, the
ruling here might be aimed at the lowest common denominator of all such cases.
142 HOMICIDE IN THE BIBLICAL WORLD


in Exodus are in association with statutes about an animal falling into an
uncovered pit (Exod 21:33“34), cases not found in cuneiform law. The fact
that Exodus prescribes the stoning of an ox that gores a human being and
the death penalty for the owner of the ox requires explanation.61
The same phenomenon occurs with the other shared topic between bib-
lical law and cuneiform law, the statutes on injury to a pregnant woman,
Exod 21:22“25. The biblical statutes demand the death penalty for the unin-
tentional death of the woman. They do not mandate a ¬xed sum of compen-
sation for the death of the fetus. They do not mention a distinction between
the death of a free woman and a slave woman in this situation.62 These dif-
ferences have inspired scholars to focus on the divergences between biblical
law and cuneiform law.
Moshe Greenberg argues that law was “an expression of the underly-
ing postulates or values of culture,” and distinguishes between the char-
acteristic principles of the Hebrew Bible and those of Mesopotamia, espe-
cially with regard to the laws of homicide.63 He argues that the concept

61 Paul, Studies in the Book of the Covenant, 81.
62 However, the biblical statutes do distinguish, it appears, the treatment of nonfatal injuries to
a slave from those to a free person.
63 Greenberg, “Some Postulates of Biblical Criminal Law,” 18“37, and “More Re¬‚ections on

Biblical Criminal Law,” 1“18. Others deny that the concepts informing law can be isolated
so easily, indeed, that this type of analysis is valid altogether. Bernard S. Jackson rejects the
broad use of abstraction from biblical and cuneiform law codes by arguing that it is misguided
both theoretically and methodologically. First of all, he argues that the law in ancient Israel
and the rest of the ancient Near East was conceived in terms of cases rather than principles
(Essays in Jewish and Comparative Legal History, 29, 32ff). If the ancients did not make
these principles explicit, then they probably were not felt by the ancients to exist. At the same
time, Jackson argues that generalizing from a small number of written laws and assuming that
they re¬‚ect implicit principles is misguided because individual scholars may select for emphasis
different aspects of the text and thereby (re)construct different principles. Jackson also warns
that there is grave danger in importing modern abstract and sophisticated concepts to ancient
documents. Israelite and related societies did have principles of law, but that methodologically,
for us as modern interpreters, we are unable to gain access to them if they are not explicitly
articulated. Jackson acknowledges that principles may lie under the surface, being expressed
only in concrete situations, but that we can be con¬dent of their existence only when they are
explicitly articulated, are presented as valuable, and are de¬ned as operating within speci¬c
parameters.
Against Jackson, however, simply because a society was not capable of or did not articulate
such a principle or abstract method does not mean that such a principle or method did not exist
(Richard A. Posner, The Economics of Justice [Cambridge, Massachusetts: Harvard University
Press, 1981], 17). Jean Bott´ ro compares the Laws of Hammurapi to Mesopotamian scienti¬c
e
treatises, in which principles are expressed through examples: Nonetheless, we can articulate
the principle behind the example even if the ancient authors did not choose to articulate it
(Mesopotamia: Writing, Reasoning, and the Gods, 169“184). In extrapolating from individual
laws to principles, we must keep two mutually contradictory generalizations in mind: 1) Like
cases were judged alike, and 2) individual laws, while seemingly similar to other regulations,
may resist analogical comparisons. This may be compared to rabbinic legal reasoning that
often makes analogies from one situation to another yet warns that with regard to certain
143
TYPOLOGIES OF HOMICIDE


that human life is the ultimate value was the principle by which the legis-
lators of ancient Israel reworked Mesopotamian law.64 The necessary im-
plication of this principle, according to Greenberg, is that the punishment
of homicide must be the execution of the offender. The leniency of bibli-
cal law in dealing with property offenses comcomitant with its severity in
the case of homicide is in stark contrast with nonbiblical law. Greenberg
¬nds the catalyst for the transformation in an ideal that the value of hu-
man life reigns supreme over any other value, whether money or other type
of property.
On purely logical grounds, the implications of the concept that human
life is the ultimate value are not so clear. While Greenberg concludes that the
necessary implication of this concept is that the only appropriate penalty for
taking human life is capital punishment, others would hold that the necessary
implication is that no human life should be taken under any circumstances.65
In truth, the necessary consequence of the concept that human life reigns
absolute over any other value is a matter of instinct on the part of the person
making the connection, rather than strict logic. Af¬rming that it means that
the killer must be executed is, in fact, based on an assertion that human life
is not fungible and cannot be translated into pecuniary terms. So, too, is the
opposite conclusion. The concept that human life is the ultimate value can
also lead to the conclusion that no human life should be taken under any
circumstances. This, too, is a matter of personal belief rather than of necessity
in inductive or deductive logic.
Furthermore, even in the Hebrew Bible, human life can be, in certain
cases, fungible. Certain statutes in the Hebrew Bible itself do hold that hu-
man life can be redeemed in monetary terms. The statute addressing the death
of a human being caused by a serial goring ox prescribes the death penalty
for the owner of the ox, which can be commuted to a mulct apparently by


rules, “the laws are without roots and are not to be learned from one another” (b. Moed
Katan 12a). All synthetic methodologies, including the extrapolation from individual laws to
underlying concepts, have been questioned; it seems to me that so long as the inherent problems
are articulated and the conclusions recognized as tentative pending new evidence, they are
legitimate. This same reasoning applies to the recognition of concepts that inform other genres
of biblical literature. In the end, Jackson™s strictures are important: He is not, in fact, being
self-contradictory in what he wants to assert, but rather he is being cautionary, arguing for
greater circumspection in the conclusions drawn from case law.
64 Greenberg, in “Some Postulates of Biblical Criminal Law” and in “More Re¬‚ections on

Biblical Criminal Law,” implies that the lawmakers of ancient Israel were reformulating earlier
laws. He states this more clearly in “Crimes and Punishments,” Interpreter™s Dictionary of the
Bible, 1.737.
65 This has been one of the arguments made in the debate over the abolition of capital punishment

in the United States. Cf. Thomas Upham, 51, John O™Sullivan, 52“53, and Gerald Gottlieb,
123, in Capital Punishment in the United States: A Documentary History (ed. Bryan Vila and
Cynthia Morris; Primary Documents in American History and Contemporary Issues; Westport,
Connecticut: Greenwood Press, 1997).
144 HOMICIDE IN THE BIBLICAL WORLD


the victim™s family (Exod 21: 29“30).66 In this case, the owner of the ox is
permitted to extract himself from the death penalty “ it is the owner™s life
that is evaluated in ¬nancial terms, not the victim™s. Most importantly, what
is considered the appropriate penalty for any crime is culturally determined.
For example, imprisonment for theft, which is the norm in our contempo-
rary American culture, would be incomprehensible to an ancient Israelite,
who would expect his stolen sheep to be repaid fourfold and his stolen cow
¬vefold.
It is unclear how the single postulate isolated by Greenberg can account

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