<<

. 35
( 55 .)



>>

The master™s loss must be made good. This is, of course, in partial contrast
to the statute in Exod 21:20“21, which stipulates that an Israelite master
who, in the course of disciplining his slave, causes his immediate death is
subject to the same punishment as the killer of any other individual. If the
slave dies sometime later, this is not considered homicide but an unforeseen
effect of a beating, and the death of the slave is the master™s loss. If a slave is
gored, his master receives compensation. The slave in Israelite law occupies
an intermediate position, generally considered chattel, sometimes not.
Since a slave is property, compensation can be paid in two forms, a ¬xed
amount or a replacement of the slave. The ¬xed amount is the general rule,
while the replacement of the slave appears in only two statutes on unlawful
death, LE 23 and LH 231. The penalty in LE 23 is based on the issue of
wrongful appropriation rather than of unlawful killing:
LE 23
If a man had no claim against a free man yet distrained the man™s
slave woman, detained the distrainee in his house and caused [her] to
die, he shall replace 2 slave women to the owner of the slave.
The sanction here is a penalty in kind. Two slave women are to be returned
in place of the one taken wrongfully and killed. In similar logic, misappro-
priation of a slave requires the return in double of the lost property in other

12 Szlechter, Les Lois d™Eˇ nunna, 117; Yaron, The Laws of Eshnunna2 , 256“257.
s
161
LEX TALIONIS


provisions of LE. So, in LE 49, two slaves are to be returned as a penalty for
harboring one as a fugitive: “If a man should be seized with a stolen slave
or slave woman, a slave shall lead a slave, a slave woman shall lead a slave
woman.”13
The same principle also informs varied statutes in LE, such as LE 25,
where the bride-price must be returned in double: “If a man comes to claim
[his bride] at his father-in-law™s house but his father-in-law refuses [?] him
and then gives his daughter to another, the father shall return twofold the
bride-wealth he received.” However, in LE 34“35, the wrongfully taken child
of the equivalent status is to be given back alone: “If a slave woman of the
palace gives her son or her daughter to a commoner/dependent for rearing,
the palace shall remove the son or daughter whom she gave. But the one who
takes the child of the slave woman of the palace in adoption shall restore
[another slave of] equal value for the palace.” This penalty is imposed on
the commoner/dependent, not on the slave woman who gave the child to the
commoner, presumably because the slave woman did not have the means to
possess or buy a slave herself. In LE 33, “If a slave woman acted to defraud
and gives her child to a woman of the aw¯lu [free] class, when he grows
±
up, should his master locate him, he shall seize him and take him away”:
Doubling is not imposed here because the child has now grown up and is no
longer in the care of another who can be forced to pay the double penalty.
Since the adult is in fact a slave, he is taken as a slave.
By contrast, the penalty of replacing a slave in LH 231 is generated by
the logic of the remedies in the adjoining cases:
231
If [the house that collapses] causes the death of a slave of the house-
holder, he shall give to the householder a slave of similar value for
the slave.
Thus, if a slave is killed, a new slave is provided. This follows the logic of
the previous statutes, LH 229“230:
229
If a builder constructs a house for a free man but does not make his
work sound and the house that he constructs collapses and causes the
death of the householder, that builder shall be killed.

230
If it causes the death of a son of the householder, they shall kill a son
of that builder.

``
13 Although the wording of the apodosis in LE 49 is cryptic, it is probable that IR IR GEME2
GEME2 i-re-ed-de, “a slave shall lead a slave, a slave woman shall lead a slave woman,”
indicates that the original slave is to be returned along with an additional slave. See Roth, Law
Collections, 70, n. 26.
162 HOMICIDE IN THE BIBLICAL WORLD


Whatever is lost from the point of view of the head of the household must
be replaced. In LH 229, thus, if a builder fails to construct a sound building
and the head of the household dies in its collapse, the builder is executed. In
LH 230, if a son is killed, the builder™s son is executed.
The slave™s inferior status has another effect. Since the remedy for the
unlawful death of a person other than a slave may be either pecuniary or
capital, the relationship between the sanction for the death of a nonslave and
a slave operates in two modes. In some statutes, when a slave is killed, the
penalty to be paid by the offender follows along the same lines as the penalty
for killing a free person in that the penalty for killing a slave is simply some
amount less than that for killing a free person. This occurs when the penalty
is purely pecuniary. The penalty in LL d for causing a woman of free status
to abort her fetus is thirty shekels; in LL e, it is reduced to ¬ve shekels for
a female slave. LE 54“57 mandates lower penalties for the death of slave
caused by a goring ox or vicious dog, ¬fteen shekels as opposed to forty
shekels for a free person. However, in other statutes, when a slave is killed,
the penalty is of a different species from the penalty for killing a human
being. The killer is executed for the death of a nonslave but is forced to pay
compensation for the death of a slave. In LE 23“24, the illegal distrainer, a
creditor who makes an illegal seizure as payment for a debt, compensates
the owner for the death of his female slave by replacing her with two new
slaves, but if he seizes the wife or son of a commoner/dependent and they
die in his custody, he is executed. In LE, the penalty for the illegal distrainer
of a slave is equivalent to the penalty for stealing a slave (LE 49) “ the owner
obtains two slaves in place of one.
Slaves are property, and this status shapes how their slaying is punished.
The second characteristic of cuneiform law is to recognize gradations among
those who are not slaves. LH makes a distinction between two ranks in the
nonslave class, the aw¯lum, the free person, and the muˇ k¯ num, the com-
± se
14
moner/dependent. In LH 207“208, if a free person is killed unintentionally,
the penalty is thirty shekels. It is reduced to twenty shekels in the death of a
commoner/dependent:
207
If [a free man] dies from his beating, he shall swear [“I did not strike
him intentionally”]. If [the victim] is a member of the free class, he
shall pay 30 shekels of silver.

208
If [the victim] is a member of the client/common class, he shall pay
20 shekels of silver.

14 The debate over the nature of the status of the muˇ k¯ num has been heated. See M. Stol,
se
“Muˇ k¯ nu,” RLA 8.492“493. For the sake of this study, the sole critical point is the recognition
se
that the muˇ k¯ num is of lower rank.
se
163
LEX TALIONIS


In the case where a miscarriage occurs, a compensatory death is mandated
in the death of a free woman, but the statute assesses a monetary penalty in
the death of a woman in the commoner/dependent class (LH 209“212):

209
If a free man strikes a woman of the free class and causes her to
miscarry her fetus, he shall pay 10 shekels of silver for her fetus.

210
If that woman dies, they shall kill his daughter.

211
If he causes a woman of the client/common class to miscarry her fetus
by the beating, he shall pay 5 shekels of silver.

212
If that woman dies, he shall pay 30 shekels of silver.

Monetary penalties are also assessed for nonlethal injuries to a com-
moner/dependent, but physical punishment is mandated when the victim
is of the free class (LH 196“201). Even within the same rank, notice is
taken of whether the offender and victim are of differing or equal status (LH
202“203).15 It is clear, then, that social categories inform the assessment of
penalties.
Despite the strict recognition of social gradations, it is possible to specu-
late that the categorization allowed for leniency in LH.16 According to LH
210 and 212, the vicarious death penalty is imposed if the victim is a woman
of the free class, but the death penalty for the killing of a woman of the
client/common class is excluded. The penalty imposed is thirty shekels of
silver, identical to the penalty imposed in LH 251 in which class gradations
are not recognized. In LH 208, the penalty for the death of a member of
the client/common class is equal to that imposed in the death of a slave in
LH 252.
In contrast to LH, the statutes in LE are far less consistent in distinguish-
ing between the free person and the commoner/dependent. LE 47A speci¬es
the penalty for killing a member of the free class in a brawl but does not
indicate the penalty for a commoner dependent:

47A
If a man in a brawl caused the death of a member of the aw¯lu [free]
±
class, he shall weigh out 40 shekels of silver.

15 See
Roth, “Mesopotamian Legal Traditions and the Laws of Hammurabi,” 13“37.
16 Reuven Yaron, “Enquire Now About Hammurabi, Ruler of Babylon,” Tijdschrift voor
Rechtsgeschiednis 59 (1991), 235“236.
164 HOMICIDE IN THE BIBLICAL WORLD


LE 54, 56, and 58 provide the remedy for the death of a free person but not
for the commoner/dependent:
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.
56
If a dog [was] vicious and the ward [authorities] have had [it] made
known to its owner, but he did not guard his dog and it bit a man and
caused [him] to die, the owner of the dog shall weigh out 40 shekels
of silver
58
If a wall was about to fall and the ward authorities have made it
known to the owner of the wall but he did not reinforce his wall and
the wall collapsed and killed a member of the aw¯lu [free] class, it is
±
a case concerning life “ it is a decree of the king.
Similar omissions occur in other statutes in LE that address other offenses.
LE 12“13 address the compensation to be paid if a person trespasses on a ¬eld
of a commoner/dependent but do not mention trespass on a ¬eld belonging
to a member of the free class. Similar lacunae appear in two statutes treating
the case of a slave woman giving away her child. That child, if given to a
free person, is always subject to seizure, even when the child becomes an
adult, according to LE 33. LE 34 mandates that if a slave woman belonging
to the palace gives her child to a muˇ k¯ num for rearing, that child must be
se
returned. The variables in these cases are too incongruous for an accurate
comparison to be made between LE 33 and 34. The parallel case to LE 33,
the case of a slave woman™s child having been given to a free person and now
grown up, would be a child given to a person not belonging to the free class
and now grown up, that is, either a muˇ k¯ num or another slave, but those
se
situations are ignored. The parallel case to LE 34, the case of a child of a
palace slave woman being given to a muˇ k¯ num, would be the case of a slave
se
woman of a palace giving her child to either a free person17 or another slave
for rearing, but that is not mentioned.18 Furthermore, it is unclear whether
the possibility of seizure in LE 33 correlates to forced return in LE 34.

17 The difference between this case and LE 33 is that in LE 33, the child has become an adult.
18 Since the parallel cases are not included, it must be asked whether omissions signify that the
offense in question would not be punished if done to a member of the omitted class. Yaron
argued that in LE, the free classes were not differentiated, except in those cases where they were
directly contrasted (The Laws of Eshnunna2 , 138“139). Omissions in LE constitute a special
situation in which the logic of the entire composition is based on the presentation of maximal
variants. This issue was discussed in greater detail in the previous chapter.
165
LEX TALIONIS


In contrast to LH and LE, MAL is less consistent on the importance
of rank. MAL A 10 does not base the remedy for homicide in general on
gradations of social status.
A 10
[If either] a man or a woman enters [another man™s] house and kills
[either a man] or a woman, [they shall hand over] the killers [to the
head of the household]. If he chooses, he shall kill them, or if he
chooses to come to an accommodation, he shall take [their property].
And if there is [nothing of value to give from the house] of the killers,
either a son [or a daughter] . . .
However, in the case of a fatal assault on a pregnant woman, two statutes
provide contradictory distinctions. MAL A 21 mandates the remedy on the
basis of a woman™s status in the free class, while the penalties in MAL A
50“52 are based on the maternal status of the woman:
A 21
If a man strikes a woman of the a™¯ilu class causing her to abort her
±
fetus and they prove the charges against him and ¬nd him guilty, he
shall pay 9,000 shekels of lead; they shall strike him 50 blows with
rods; he shall perform the king™s service for one month.
A 50
[If a man] strikes [another man™s wife causing her to abort her
fetus, . . . ] a man™s wife [ . . . ] and they shall treat him as he treated
her. He shall make full payment of a life for her fetus. And if that
woman dies, they shall kill that man; he shall make full payment of a
life for her fetus. And if there is no son of that woman™s husband and
his wife whom he struck aborted her fetus, they shall kill the assailant
for her fetus. If her fetus was a female, he shall make full payment of
a life only.
A 51
If a man strikes another man™s wife who does not raise a child causing
her to abort her fetus, it is a punishable offense. He shall give 7,200
shekels of lead.
A 52
If a man strikes a prostitute causing her to abort her fetus, they shall
assess him blow for blow. He shall make full payment of a life.
According to MAL A 50, if the pregnant woman has no son from a prior
pregnancy, the assailant is executed, except if the fetus was female. In that
case, the offender pays the appropriate compensation for a life. According
to MAL A 51, if the assailant causes a woman who has not adopted a child
to miscarry, a penalty of 7,200 shekels of lead is assessed. In the context of

<<

. 35
( 55 .)



>>