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because stages in legal history cannot be extrapolated by comparing the

82 Cf. ¨
Bantsch, Das Bundesbuch, 28“33, who argues that there was a distinction drawn in
Exod 24:3 between the !yfp`m drafted in casuistic form and the !yrbd put into apodictic form.
This distinction extended to their content: The !yfp`m dealt with secular social order while the
!yrbd treated ethical and cultic affairs. Anton Jirku, Das weltliche Recht im Alten Testament
¨
(Gutersloh: T. Bertelsmann, 1927), makes ¬ner distinctions within the categories of casuistic
and apodictic law.
83 Volker Wagner argues that the apodictic laws belong to a series of ten delicts (Exod 21:12,

15“17, and 22:18; Lev 20:10“14) that incur the death penalty in the intertribal court of nomadic
¨
society and were not related to Israelite religion (Rechtssatze in gebundener Sprache und Recht-
satzreihen im israelitischen Recht [BZAW 127; Berlin: Walter de Gruyter, 1972], 23“31). He
bases his argument on the view that the delicts involved were not related to the cult but pertained
to the legal arena. Gerhard Liedke argues that the apodictic laws represent the legislation of the
¨
paterfamilias in a noncultic setting (Gestalt und Bezeichnung alttestamentlicher Rechtssatze
[WMANT 39; Neukirchen-Vluyn: Neukirchener, 1971], 101“135). Hermann Schulz argues
that the apodictic laws ending in tmwy twm belonged to the sacred court of a tribe (Das Todesrecht
im Alten Testament (BZAW 114; Berlin: Walter de Gruyter, 1969], 99“113). However, the
recitation of a list in a cultic recitation in Exod 20:1“14 and Deut 27:15“26 is a much stronger
proof of the social setting of these laws than the more implicit evidence that Wagner, Liedke, and
Schulz present. Cf. the arguments for a cultic setting by John Bright, “The Apodictic Prohibition:
Some Observations,” JBL 92 (1973), 185“204.
84 Alt recognizes this feature of apodictic law but does not see its implications when he used

the cultic recitations to reconstruct the innovations of Israelite law (“The Origins of Israelite
Law,” 157).
150 HOMICIDE IN THE BIBLICAL WORLD


content of apodictic statutes and casuistic statutes. They are two distinct
styles that coexisted.
Furthermore, in light of the extensive documentation of individual re-
sponsibility in ancient Near Eastern societies of all levels of social devel-
opment, it is dif¬cult to understand why such a concept should elude the
Israelites. Indeed, all our texts assume individual responsibility for homicide
except for those which involve political killings, such as 2 Sam 21:1“14 or
2 Kgs 14:5“6. Corporate responsibility was an important issue in Israelite
society “ a contentious issue as witnessed by Ezekiel 18 and Jer 31:29“3085 “
but it was not an issue in the adjudication of homicide.


APPENDIX TWO: DIRECT CAUSATION OF HOMICIDE
IN CUNEIFORM LAW

In the Neo-Assyrian documents, the killer™s community took the initiative in
acknowledging the obligation. It would appear, then, it did so because it was
also considered liable. To what extent are those who did not in¬‚ict the fatal
blow considered responsible elsewhere in Mesopotamia? At issue in two of
the cases in other Meopotamian documents is the culpability of such a per-
son in a homicide. In CT 29 42, the person who instigated a slaying is being
sued by the victim™s sons. The content of the charges made can be extrapo-
lated from the oaths to be taken by Ashqudum and his wife Amat-Amurrim.
Although Ashqudum is accused of instigating the death of Ipqatum, the is-
sue under contention is that of the illegal possession of Ipqatum™s property.
The victim™s sons have accused Ashqudum of causing the death of their fa-
ther, albeit at the hands of another, in order to acquire Ipqatum™s fortune.
However, Ashqudum is not being prosecuted for the unlawful death itself.
Although he bears part of the responsibility, he is not culpable for it.86 Only
the actual killer, who dealt the coup de grace, is subject to legal action for
homicide. Ashqudum, however, is legally responsible if he fraudulently ac-
quired Ipqatum™s property. This case is purely a dispute over property.87 The

85 Compare as well Deut 5:9“10 and 24:16.
86 The ¬nal outcome of the case is left vague. However, since Ilu-Shamash averred in an oath that

he could identify his father™s murderer and Amat-Amurrim denied complicity in illegally appro-
priating Ipqatum™s property, it is probable that the charge that Ashqudum instigated Ipqatum™s
murder was af¬rmed. Cf. J. G. Lautner, Die richterliche Entscheidung und die Streitbeendi-
gung im altbabylonisichen Prozessrechte (Leipziger rechtswissenschaftliche Studien 3; Leipzig:
Theodor Weicher, 1922), 84.
87 Dhorme notes that the oaths taken are similar to one made by the person who has possession of

disputed property averring that property is his, according to LH 9 (“M´ langes,” 105). However,
e
there are signi¬cant differences from LH 9: 1) The person claiming the property must make a
statement declaring that the property is his, whereas in CT 29 42, the plaintiff is claiming that
Ashqudum instigated Ipqatum™s death; 2) in LH 9, the person who has possession must name
the person who sold it to him and the people who served as witnesses for the transaction. The
151
TYPOLOGIES OF HOMICIDE


issue of homicide is brought in solely as an aside, to explain how Ashqudum
allegedly acquired possession of Ipqatum™s property.
However, other pieces of evidence indicate that a person other than the
one who dealt the fatal blow can be subject to legal action. Indeed, in the
account of the Nippur Murder Trial, the issue that is debated is the culpability
of the victim™s wife:

6
u4 lu-d inanna dumu lugal-uru4 -du10 -ke4 7 ba-uˇ -a-ta 8 I nin-da-da
´ ´s
dumu-munus lu- nin-urta dam lu- inanna-ra lu-d inanna dam-a-
d 9 d 10
´ ´ ´
11 12 13 I
nin-da-da dumu-munus lu-d nin- ´
ni al-gaz-za in-na-an-ne-eˇ s
´ ´
urta ka nu-un-ba TUG ba-an-dul . . .
14 35 I
ˇ
su-qa-li-kum ERIN-GAL-
d 36 I d 37
GAL uku-uˇ nin-urta
s u-bar- en-zu nu-giri11 igi-ne-ne in-gar-
re-eˇ -ma nin-da-da dumu-munus lu-d nin-urta 39 dam-a-ni h´ -en-
38
´
s e
˜
40 41 42
gaz munus-e a-na b´-in-ag-e al-gaz-e-d` b´-in-eˇ pu-uh-ru-um
± e± s
˜
nibru -ka igi-bi bi-ib-gar-ma munus dam-a-ni nu-un-kal-la 45 lu-
ki 43 44
´
46 47
`
kur-ra-a-ni h´ -en-zu-am dam-a-ni h´ -en-gaz dam-a-ni al-gaz-za
e e
˜ KA u-gu-na li-bi-in-si 50 e-na-
48 49
` s` `
giˇ ha-ba-an-tu ku-am a-na-aˇ -am
s
˜
am dam-a-ni in-gaz nam-tag-ga-a-ni lu-in-gaz-eˇ -am 52 a-ab-diri b´-
51
` ´ s ±
in-eˇs
6“14
After Lu-Inanna, son of Lugal-uru-du, had been put to death,
they told Nin-dada, daughter of Lu-Ninurta, wife of Lu-Inanna,
that Lu-Inanna, her husband, was killed. Nin-dada, daughter
of Lu-Ninurta, did not open her mouth and covered it up. . . .
35“41
Shuqalilum, the Erin-gal-gal, sergeant of Ninurta, and Ubar-
Enzu, the orchard man, addressed [the assembly] as follows: “Nin-
dada, daughter of Lu-Ninurta, may have killed her husband, but what
can a woman do in [such a matter] that she is to be killed?” they said.
42“52
In the Assembly of Nippur, [the assembly] addressed them as
follows: “A woman who does not support her husband may give in-
formation to his enemy and thus [the enemy] may [be able to] kill her
husband. That her husband is killed, [the enemy] may let her hear “
why should he not thus make her keep silent about him? “ she [more
than anyone else] killed her husband. Her guilt is greater than [of
those] who killed a man,” they said.

Even though the victim™s wife did not take part in the assault, she is adjudi-
cated as guilty, if not more guilty, than the ones who actually struck the blow.
This is a radicalization of the concept of guilt. The accused in CT 29 42


differences may be due to the circumstances of this case in CT 29 42 in which the sons of the
deceased claim that his property appears to be in the possession of the person who instigated
his death. That is, the differences really amount to a different focus for CT 29 42, which deals
speci¬cally with the homicide, but also with the property.
152 HOMICIDE IN THE BIBLICAL WORLD


had knowledge of the crime before it happened and assuredly could have
acted to prevent the tragedy; indeed, he was the one who instigated the
homicide. In contrast, the victim™s wife in the Nippur Murder Trial partic-
ipated in the cover-up after the crime. A possible role for her before the
killing is imputed to her solely because she is the victim™s wife and could
have betrayed him.88 Although there is no evidence for her participation
in the homicide, her position as the victim™s wife, possessing thereby spe-
cial access to him, is suf¬cient. What is at work here is the application of
a different and harsher standard to the woman because of the assumption
that a woman is inherently dangerous.89 Her most minor infraction will
lead to an escalating series of offenses: If she does not support her hus-
band, she will betray his right to exclusive sexual access90 and commit adul-
tery, leading her to ask for her husband™s death. Her lover will then kill
her husband and tell her, in a relationship of trust that she did not have
with her husband. In the trajectory posed by this scenario, it does not matter
whether she actually dealt the coup de grace: Because she could have violated
her husband™s trust, her guilt exceeds that of those who actually killed her
husband.
The concept that a person is liable for punishment even though he did not
deliver the fatal blow is also re¬‚ected in NSG 41. The wife and daughter of
the killer are enslaved because their husband and father was a killer. Indeed,
he was executed for his crime,91 but that penalty was not suf¬cient. However,
it must be noted that self-defense is recognized as justi¬able in the second
case recounted in NSG 202. The linking of the fatal blow with culpability is
not absolute.

88 LH 153 addresses the case of a woman who has had her husband killed and mandates the
penalty of impalement. In the Nippur Murder Trial, the wife is brought under the jurisdic-
tion of the law in a consideration of her role as accessory, whereas in LH 153, the wife™s
role is de¬ned as a discrete crime, associated with other family offenses, for which a dis-
tinctive penalty is effected. These differences indicate that there is no direct connection be-
tween the Nippur Murder Trial and LH. Cf. Jacobsen, “An Ancient Mesopotamian Trial for
Homicide,” 213.
89 Martha T. Roth, “Gender and Law: A Case Study from Ancient Mesopotamia,” in Gender

and Law in the Hebrew Bible and the Ancient Near East (ed. Victor H. Matthews, Bernard M.
Levinson, and Tikva Frymer-Kensky; JSOTSup 262; Shef¬eld: Shef¬eld Academic Press, 1998),
175“181.
90 Note that in the original presentation of the case, the verb used to express that the killers

told Nin-Dada in l.12 is e, “to say” in an informational sense; in contrast, when the Assembly
of Nippur describes her act in l.45, the verb used is zu, “to know; to learn,” which can have a
sexual connotation.
91 Adam Falkenstein believes that the death of Kuli had nothing to do with the murder he

committed, and he argues that it cannot be extrapolated from the language used to describe the
death of Kuli that he was killed as part of a vendetta (Die neusumerischen Gerichtsurkunden
[Munich: Bayerische Akademie der Wissenschaften, 1956], 1.133). However, the form of the
verb ku-li ba-gaza (line 5) is passive and should be rendered “Kuli was executed,” not as
Falkenstein translates, “Kuli died.”
153
TYPOLOGIES OF HOMICIDE


A master is not liable for the acts of his slave, but he is paid compen-
sation if his slave is killed. In the Nippur Murder Trial, two of the accused
are free men, but the third is a slave. No special consequences of his status
as slave are noted in the account. He was tried in exactly the same man-
ner as the free men were. His owner did not participate in the trial nor
is any legal responsibility imputed to the owner because of the actions of
his slave.
CHAPTER SIX



Lex Talionis




IN THE Hebrew Bible, an individual found guilty of intentional killing was
subject to the most severe penalty, execution.1 In our analysis of the pollut-
ing effects of homicide, we observed that the only means of removing the
de¬lement caused by a homicide was the execution of the intentional killer
or the death of the high priest in the case of an accidental killer. The execu-
tion of the intentional killer is warranted for another reason, and in order to
illuminate this aspect of the punishment, we must turn to another legal text.

1 Although the remedy for premeditated murder is execution (Exod 21:12, 14), Martin J. Buss
holds the view that the same texts that have been read as proof of capital punishment for
homicide need to be understood differently. He argues that the phrase tmwy twm, generally rendered
as “[the murderer] shall be killed,” should be understood as “he may be killed” or “he is liable
to be killed” in light of the permissive sense of the imperfect (“The Distinction between Civil
and Criminal Law in Ancient Israel,” Proceedings of the Sixth World Congress of Jewish Studies
1973 [Jerusalem: World Congress of Jewish Studies, 1973], 1.55“56). Buss would have, in fact,
sharpened his argument if he had relied upon the nuance of potentiality inherent in Hophal
verbs because the imperfect can also express the sense of obligation as well as that of permission.
(Cf. the discussion on the modal nuances of Hophal in Waltke and O™Connor, An Introduction
to Biblical Hebrew Syntax, 445, 452.) Whether this clause expresses permissivity or obligation
depends on its context. In this case, the legal context would militate against the permissive
sense because of the point of a statute “ it directs a particular course of behavior. Otherwise,
the sense of permissibility would be found in many legal apodoses, rendering them contentless.
Therefore, it is clear that the penalty for premeditated homicide is death.


154
155
LEX TALIONIS


The sole focus of Lev 24:17“21 is to highlight the punishment for assault
and for killing, whether the victim is a human being or an animal:

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