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for the major differences we have isolated in our study between Israelite and
cuneiform law.67 In this study, we have seen elements in the treatment of
homicide throughout the Hebrew Bible directly linked to speci¬c character-
istics of Israelite society and biblical literature “ the role of the victim™s family
in instigating the remedy of a slaying in the guise of feud; the cities of refuge
as refracted through the ideology of the legal sources of the Pentateuch; the
relationship between concepts of pollution and the treatment of the killer.
All of these represent a trajectory to achieve justice that cannot be subsumed
under a single principle.
In a similar vein to that of Greenberg, J. J. Finkelstein argues that the
conceptual universe of the Mesopotamian statutes on the goring ox is vastly
different from the biblical statutes on the same topic.68 An Israelite author
appropriated an ancient Near Eastern legal theme, but by ¬tting it into a
distinctly different framework, he in effect transformed it in the most pro-
found sense, even while retaining much of the original form and language.
The biblical thought-world was hierarchical in nature: God has complete
dominion over human beings, who in turn have complete dominion over na-
ture. Therefore, an attack by an ox on a human being is a category error, an
assault against the hierarchy. The ox, whether it had gored before or not, had
to be destroyed by stoning, a particular type of execution applied to offenses
that compromise the integrity and essence of the entire Israelite community.
(An ox that gores another ox is sold, not stoned.) In contrast, Mesopotamian
`
thought on the role of humanity vis-a-vis nature and the gods was not hi-
69
erarchical. Humanity was, in fact, of secondary importance, created after

66 These two cases, death caused by a serial goring ox and death caused to a pregnant woman,
are clearly borderline cases, hedging on the indirectness of intention, as Greenberg notes in
“More Re¬‚ections on Biblical Criminal Law,” 10.
67 Greenberg™s article “Some Postulates of Biblical Criminal Law” was clearly polemical. Indeed,

Greenberg did not mean that outside of ancient Israel, human life was considered valueless. Peo-
ple were not killed indiscriminately outside of ancient Israel. What Greenberg was advocating
in his article is attention to the content of biblical law and its relation to an Israelite worldview.
68 Finkelstein, The Ox That Gored, 5.
69 Perhaps this should be quali¬ed somewhat as being not so stringently hierarchical. One could

argue that there is a hierarchy in Mesopotamia as exempli¬ed by the position of human beings
as workers for the gods in Atrahasis and Enuma elish.
145
TYPOLOGIES OF HOMICIDE


the gods had built the great cities of Sumer and Babylon. Humanity was
not to have dominion over nature. An attack by an ox on a human being
did not pose the cosmic threat in Mesopotamia that it did in ancient Israel.
The fate of the ox is of no concern and, therefore, is not mentioned in LE
54“55 and LH 250“252.70 In my opinion, Finkelstein™s argument about the
distinct conceptual universes from which the biblical and cuneiform statutes
originate is valid because it is narrowly focused on a single case in biblical
law and its Mesopotamian antecedents and the differences between them.
Finkelstein further argues that the biblical statutes must be part of a
scribal tradition, because the actual occurrence of an ox goring is so unlikely
that it is improbable that such an incident occurred in Israelite experience
to be the source of the biblical laws. He bases this argument on the few
legal records about goring oxen that he found: This implies that actual oc-
currences were extremely rare. This rarity applies as well to the case of
a woman™s miscarriage resulting from becoming entangled in a scuf¬‚e: It
seems so improbable “ common sense dictates that pregnant women would
avoid being involved in ¬sticuffs “ that it appears to be proof of a com-
mon legal tradition between the cuneiform law collections and the Hebrew
Bible.71 In my opinion, Finkelstein™s argument is faulty. An ox goring in an
agro-pastoralist society seems probable: An ox is usually a docile animal,
but considering the number of oxen in use, the case of an ox going berserk
would occur from time to time.72 Furthermore, an argument on whether
an occurrence is probable on the basis of its presence in documents of ac-
tual cases is faulty simply because so few legal documents mention anything
other than the sale of barley, slaves, donkeys, or orchards of date palms. To
put it in statistical terms, out of the approximately twenty-¬ve hundred legal
documents I surveyed, I found four cases of theft, one case of slander, one
case of assault, and one case involving a dispute over the responsibility for
a prisoner.73
The key, in my opinion, to decoding the relationship between the biblical
and cuneiform sources is to recognize that the nature of the differences be-
tween the biblical and cuneiform sources is already familiar to us from our
analysis of the cuneiform law collections themselves. While it is true that
there are signi¬cant differences between the Mesopotamian versions and the
biblical, the same sort of divergences between the biblical material and the
Mesopotamian material on fatal assault are found in the Mesopotamian

70 Although the ox may well have been dealt with in some manner.
71 Finkelstein did not ¬nd any records about an assault on a pregnant woman. I could not
¬nd any case earlier than the Hellenistic period (Corpus papyrorum Judaicarum [ed. Victor A.
Tcherikover; Cambridge, Massachusetts: Harvard University Press, 1957], 1.246“247).
72 Cf. the statute in the Chinese law code, The T™ang Code, article 207, 2.193“195.
73 This is not as odd as it seems. The vast bulk of legal documents in our contemporary society is

also devoted to recording economic transactions, such as the sale of merchandise, automobiles,
and homes.
146 HOMICIDE IN THE BIBLICAL WORLD


material itself. Thus, between the biblical and cuneiform sources, there are
four differences: 1) The biblical statutes are concerned with the fate of the
ox, while the cuneiform ones are not. 2) The biblical statutes recognize only
two social categories, free and slave, for the ox™s victim and none at all with
regard to the pregnant woman, while the cuneiform statutes vary in this re-
gard. 3) The biblical statute provides a penalty that could be changed “ it
mandates the death of the owner of a serial gorer with the quali¬cation that
his punishment could be converted to compensation “ whereas the cuneiform
statute prescribes a penalty without any mention of any alternative. 4) The
biblical statutes on the fatal assault on a pregnant woman make a distinction
between intentional and unintentional. With regard to assault on a pregnant
woman, LH recognizes three social categories (209“214), whereas LL rec-
ognizes only two (d, e, f). MAL does not mention the assault on a slave at all
but makes distinctions based on marital and maternal status (A 50“52). HL
17“18, SLEx 1 “2 , LH 209“214, and LL d, e, f mandate a single penalty for
each offense, whereas MAL A 21 requires a multiple penalty. SLEx re¬‚ects
a distinction between intentional and unintentional not found in the other
cuneiform law collections (1 “2 ).
In the context of the divergences among cuneiform law collections, the
biblical statutes in the Book of the Covenant appear to be part of a scribal
tradition represented in the cuneiform law collections. The scribal tradition
provides the types of cases, and each code contains improvisations on these
types. Their variation is one of quantity, not magnitude. The cases of the
goring ox and a miscarriage caused by a pregnant woman intruding into a
scuf¬‚e are traditional literary themes by which a scribe would show his legal
¬‚air and even test his larger assumptions about the world.74 The in¬‚uence
of this tradition appears to be limited to the Book of the Covenant and
does not extend to the other treatments of homicide in the Bible. This is
signi¬cant for identifying what has in¬‚uenced the Book of the Covenant. It
is also signi¬cant for what it has failed to in¬‚uence, the other statutes on
homicide in the Bible.
These other biblical texts, in their self-presentation, re¬‚ect an apprehen-
sion about which slayings fall under which rubric of homicide.75 They are
eager to articulate more precisely and accurately a distinction between in-
tentional and unintentional killing. It may be speculated that this speci¬city
allays a need to provide practical guidance to actual legal cases: The biblical
legal texts were intended to offer directives to an actual court. The use of

74 Although in regard to the scribe™s worldview, one need not generalize as far as Greenberg
does.
75 This trend is carried to the nth degree in the Mishnah, which draws ¬ner and ¬ner distinctions

between instances of homicide (Makkot 2:1“2). For example, a distinction is drawn between a
death caused by a jar, being let down from a roof, falling on someone, and killing him; and a
death caused by a jar, being drawn up to a roof by a rope that breaks, falling on someone and
killing him.
147
TYPOLOGIES OF HOMICIDE


cases like the goring ox and a pregnant woman involved in a scuf¬‚e in the
Covenant Code originates in a scribal tradition, not in what is necessary to
the process of remedying a homicide.
In sum, certain features of the adjudication of homicide in the Bible
are characteristic of traditional cultures similar in economic and social de-
velopment to ancient Israel and are therefore reinvented independently by
disparate societies. Indeed, there are features of homicide in ancient Israel
that are present virtually everywhere, such as the basic division of homicidal
acts into intentional and accidental or the death penalty as the appropriate
punishment for murder. This holds true for many legal institutions: Human
beings can and do have the same basic response to a situation.76 However, in
the context of the similarities on the speci¬c cases of a goring ox and a mis-
carriage caused by assault, the statutes in the Book of the Covenant and the
statutes from the rest of the ancient Near East have a genetic relationship.


APPENDIX ONE: THE PUTATIVE HISTORICAL DEVELOPMENT
OF INTENTIONALITY IN HOMICIDE IN BIBLICAL LAW

Albrecht Alt argues that the fact that two apodictic statutes, Exod 20:13
and 21:12, do not make a distinction between intentional and uninten-
tional homicide signi¬ed that Israelite law originally did not make such a
distinction.77 At some point later in Israelite history the distinction was rein-
troduced, as re¬‚ected in the poorly drafted casuistic formulation in Exod
21:13“14.
Alt bases his argument on the striking differences in the literary style of
biblical statutes.78 Some of them exhibit the distinctive formal characteristic
of casuistic law by being drafted in conditional sentences. They preserve the
invariable use of an ordered series of speci¬c particles in the protasis of a
conditional sentence. Initial conditions are introduced with yk or ykw, “(and)
when.” Additional conditions are introduced with !a or !aw, “(and) if.” In
sharp contrast, other statutes lack these particular markers and are far more

76 Alan Watson, Legal Transplants: An Approach to Comparative Law (Charlottesville: Uni-
versity of Virginia Press, 1974), 12“13.
77 Alt connects these laws to the absolute prohibition of killing in Gen 4:10 and 9:6, where

the demand of a stern Deity for strict retribution is re¬‚ected (“The Origins of Israelite Law,”
141“142).
78 Much work has been done in recent years on the compositional integrity of the Book of

the Covenant as re¬‚ected in its literary structure. Despite the expected disagreements among
¨
scholars, there is large agreement as to the basic structure. Cf. Jorn Halbe, Das Privilegrecht
¨
Jahwes (Gottingen: Vanderhoeck & Ruprecht, 1975), 413“421; Yuichi Osumi, Das Kompo-
sitionsgeschichte des Bundesbuches Exodus 20,22b“23,33 (Orbis Biblicus et Orientalis 105;
¨
Freiburg, Switzerland; Gottingen: Universitatsverlag Freiburg Vanderhoeck & Ruprecht, 1991),
¨
155; Ludger Schwienhorst-Schonberger, Das Bundesbuch, 23. A detailed discussion of the struc-
ture of the Book of the Covenant is beyond the scope of this study.
148 HOMICIDE IN THE BIBLICAL WORLD


varied in form. These laws exhibit an apodictic style alien to the conditional
sentences of the casuistic laws.79 For example, Exod 21:12 contains a cir-
cumstantial participle in place of the protasis and an in¬nitive absolute in
the apodosis “ “Whoever fatally strikes a man shall surely be put to death.”
Statutes with parallel linguistic structure can also be found elsewhere in the
Covenant Code (Exod 21:15“17; 22:17“19). This group of statutes (Exod
21:12, 15“17; 22:17“19) has a similar form to the list of offenses put under
a curse in Deut 27:15“26. Each sentence in the Deuteronomic list contains
the same predicate and a subject in the form of a participle. This suggests
that Exod 21:15“17 + 22:17“19 also form a series, one in which casuistic
statutes (Exod 21:13“14) have been inserted. The Decalogue appears to be
another list of statutes, albeit exhibiting another noncasuistic style. These
noncasuistic formulas are denoted as apodictic.
Alt argues that the varying syntactic formulations are indications of dis-
parate sources stemming from different origins.80 He notes that the casuistic
statutes in the Covenant Code exhibited a grammatical form strikingly simi-
lar to the literary form of other ancient Near Eastern statutes. This is apparent
even though only a few of the statutes exhibit a pure casuistic form. Exod
21:2“11 contain the use of the second person in place of the third person
commonly used in the casuistic statutes found elsewhere in the Bible and
ancient Near Eastern literature. Alt surmises that the casuistic statutes of the
Book of the Covenant stemmed from Canaanite law, the local embodiment
of ancient Near Eastern law, the pre-Israelite legal source that the Israelites
adopted. He argues that apodictic law, in contrast, originated in the Israelite
circles. Indeed, the apodictic statutes were distinctively and uniquely Israelite
in origin and essence. The apodictic laws were part of a list of behavioral
norms recited in the cult. The use of these lists are clear from their context,
a cultic ceremony in which behavioral norms are recited.81 In short, there is
an equivalence between the different styles of the statutes and the different
settings from which they originated.
Alt maintains that these different settings represented different tempo-
ral stages, not only different social origins. Casuistic law stemmed from a
pre-Israelite stage, while the apodictic came from an Israelite period. Iso-
lating apodictic from casuistic law allowed him to reconstruct Israelite law
in opposition to the common legal tradition of the ancient Near East. The

79 However, many of these statutes bear an uncanny resemblance to casuistic form. Exod 21:12,
for example, contains a circumstantial participle in place of a ¬nite verb in the protasis. Its
apodosis contains an in¬nitive absolute complementing a ¬nite verb, the same form found in
the casuistic statutes of Exod 21:36 and 22:5, 13. Both this form and the pure casuistic form
are in the third person.
80 Alt, “The Origins of Israelite Law,” 103“171.
81 This is not to say that this list necessarily originated in the cult. The present form of the

Decalogue is a result of a complex history of development, whose individual steps cannot be
reconstructed with precision. See Raymond F. Collins, “Ten Commandments,” ABD 6.383“387.
149
TYPOLOGIES OF HOMICIDE


apodictic statutes re¬‚ect the changes Israelites had made to Canaanite prac-
tice. Scholars before Alt had produced a catalog of legal forms but had not
gone beyond the literary realm to posit a connection between literary form
and the life of a community.82
Alt argues that the presence of an apodictic statute regarding homicide,
an excerpt from a cultic list, indicated what was speci¬cally Israelite. The
apodictic statute was later transformed by a statute phrased in an acquired
literary form, the casuistic form.
However, Alt™s contention is ¬‚awed because it does not take into account
the disparate institutional settings of apodictic and casuistic statutes. Draft-
ing legislation or recording legal decisions requires the speci¬cation of details
and, therefore, casuistic statutes contain a magnitude of detail not found in
liturgical recitations. For example, in the case of theft, the penalty may vary
on the basis of the kind of item stolen, whether the thief had sold the item
or was caught with it, or whether the thief was caught in the process of
stealing. In contrast, expressing behavioral norms in cultic recitations does
not require such detail.83 The cultic lists from which the apodictic laws orig-
inated use a more absolute and unquali¬ed form of expression in refraining
from naming individual cases.84 They lay down principles. This mode of ex-
pression is made more emphatic in the Decalogue, which omits the penalty
for the offense. Cultic recitations are not concerned with the circumstances of
mitigating and aggravating factors. Therefore, Alt™s reasoning here is faulty

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