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166 HOMICIDE IN THE BIBLICAL WORLD


statutes that base punishment on the maternal status of a woman, it might
be questioned whether an assault on a prostitute, that is, on no man™s wife,
would be subject to legal action. MAL A 52, however, makes the fatal assault
on a prostitute an offense for which compensation is required.
HL 17“18 take a different tact and base the penalty on the developmental
stage of the fetus:
HL 17
If anyone causes a free woman to miscarry, [if] it is in her tenth month,
he shall pay 10 shekels of silver; if it is her ¬fth month, he shall pay
5 shekels of silver. He shall look to his house for it.
Late version of 17
If anyone causes a free woman to miscarry, he shall pay 20 shekels of
silver.
HL 18
If anyone causes a female slave to miscarry, if it is her tenth month,
he shall pay 5 shekels of silver.
Late version of 18
If anyone causes a female slave to miscarry, he shall pay 10 shekels
of silver.
The length of pregnancy was considered to last ten months, counting the set
month of the year in which the infant was conceived as the ¬rst month. (The
nine months of pregnancy would end in the tenth calendrical month.) If the
miscarriage occurs in the tenth month, the penalty is doubled from what it
would be in the ¬fth month.
In the law collections, the status of the victim affects the penalty. The
slave™s status as property means that compensation for his death, whether
in kind or in money, is paid to his master. Other gradations in rank prompt
gradations in penalty.
The pecuniary penalties in the law collections are ¬xed amounts. No
regard is taken of the inevitable variations in an individual™s net worth “ the
size of one™s estate or the success of one™s business.19 Group characteristics,
such as whether a person is a member of the free, muˇ k¯ num, or slave class,
se
are taken into consideration, while individual variables are ignored. Every
person had a standard “worth” based on social status and gender. Factors
such as the emotional suffering and social loss encountered by the victim™s
family are disregarded. (By contrast, it would appear, at least from the Neo-
Assyrian documents, ADD 321 and 164, and from the MAL, A 10, that in
Assyria the parties negotiated the amount to be paid with the assistance of
the crown “ the amount is not ¬xed.)

19 Hoffner, “On Homicide in Hittite Law,” 295.
167
LEX TALIONIS


As we review the penalties for homicide in cuneiform law, we realize
that the execution of the killer is not based on the principle of lex talionis.20
According to lex talionis, the penalty must be similar to the offense in the
aspects in which the original offense was wrong. It is a reversal of roles:
In the case of homicide, the original agent of harm, the killer, becomes the
recipient of the same action of the type, killing, that constituted the offense.
In cuneiform law, the victim™s loss is made good, but the penalty in¬‚icted
on the transgressor is realized in many different ways, sometimes capital
punishment, sometimes monetary compensation, sometimes compensation
in kind. The offender does suffer a loss, but it is not the same as the loss
suffered by the victim. Social categories imposed their quali¬cations on the
law, and there is general inconsistency.
It is most important to recognize that although there are statutes on
unlawful death whose remedy is death, leading us to suppose that the penalty
is to be identical to the offense,21 these are purely coincidental. They are not
instances of lex talionis because they fall under the rubric of serious offenses
punished by death. Therefore, capital punishment for homicide is not an
example of lex talionis. The principle of lex talionis does not operate as
the foundational principle of the statutes on homicide in the cuneiform law
collections.
This does not mean that lex talionis, retaliation in kind, was not a prin-
ciple in cuneiform law. It was imposed on a false witness in LL 17 and LH 3:
LL 17
If a man, without grounds, accuses another man of a matter of which
he has no knowledge, and that man does not prove it, he shall bear
the penalty of the matter for which he made the accusation.
LH 3
If a man comes forward to give false testimony in a case but cannot
prove his accusation, if that case is a capital case [lit. “a case of life”],
that man shall be killed.
It was imposed on nonfatal bodily injuries when certain classes of society
were involved.
LH 196“201 can be compared to LE 42“43:
LE
42
If a man bites the nose of another man and cuts it off, he shall weigh
and deliver 60 shekels of silver; an eye, 60 shekels; a tooth, 30 shekels;

20 Asagainst, for example, Sick, who argues that the death penalty for the homicide provision
¨
was a result of an imposition of lex talionis (Die Totung, 306).
21 Herbert Petschow, “Neufunde zu keilschriftlichen Rechtssammlungen,” ZSS 85 (1968), 18,

n. 64.
168 HOMICIDE IN THE BIBLICAL WORLD


an ear, 30 shekels; a slap on the cheek, he shall weigh and deliver 10
shekels of silver.
43
If a man should cut off the ¬nger of another man, he shall weigh and
deliver 20 shekels of silver.
LH
196
If a free man should blind the eye of another man of the free class,
they shall blind his eye.
197
If he should break the bone of another free man, they shall break his
bone.
198
If he should blind the eye of a palace dependent/commoner, he shall
weigh and deliver 60 shekels of silver.
199
If he should blind the eye of a free man™s slave or break the bone of
a free man™s slave, he shall weigh and deliver one-half of [the slave™s]
value.
200
If a free man should knock out the tooth of another free man of his
own rank, they shall knock out his own tooth.
201
If he should knock out the tooth of a palace dependent/commoner,
he shall weigh and deliver 20 shekels of silver.

The imposition of the death penalty in particular cases of homicide is not
based on lex talionis, but as the penalty in severe cases:
LL e
If she dies, that male shall be killed.
LE 24
If he had no claim against him yet distrained the wife of a com-
moner/dependent or the son of a commoner/dependent, detained the
distrainee in his house and caused him/her to die, it is a case of life;
the distrainer who distrained shall die.
LH 14
If a free man should kidnap the young child of another man, he shall
be killed.
169
LEX TALIONIS


LH 15
If a man should enable a palace slave or slave woman, a palace de-
pendent™s slave or slave woman to leave through the main city gate,
he shall be killed.

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

LU 1
If a man commits a homicide, they shall kill that man.

LU 2
If a man acts lawlessly [?], they shall kill that man.
The death penalty was imposed when the offense was severe. Homicide was
just one of those offenses.
Although death was imposed as vicarious punishment in particularly
heinous cases, it was not a form of lex talionis. It is critical to recognize
that Mesopotamian society was organized by status, and when in a speci¬c
case the damage is to be remedied in terms of the loss, the remedy has to be
in the same quality as that which was damaged. If the free man kills a free
man™s son while detaining him for distraint, his son is to be killed (LH 116).
If he strikes and kills a woman of the free class, his daughter is to be killed
(LH 210). If he builds an unsound structure and the building™s collapse kills
the son of the owner, his son is to be killed (LH 230). Putting the builder to
death for the loss of a minor would be a gross imbalance of justice: A minor
is equal only to another minor.22 This principle is adumbrated in LE 49 in
the penalty of paying for the death of a slave by providing two slaves in
return “ the free person who killed the slave is not killed. The status of the
offender and the victim generates the penalty. Sometimes the penalty that
is imposed is death, and only sometimes is the death penalty a result of lex
talionis.
The principle of lex talionis can be used in a variety of ways. If we refer
to the law that gave the name to this principle, we see that lex talionis is
not meant as a concept of punishment but is entirely another matter. This
law is the second provision in Table VIII of the XII Tables, which reads,
Si membrum rup[s]it, ni cum eo pacit, talio esto, “If anyone has broken
another™s limb and does not come to an agreement with him, there shall
be retaliation in kind (talio).”23 Lex talionis is meant as a threat, not as a

22 Finkelstein, The Ox That Gored, 34.
23 The Latin text of the XII Tables is to be found in S. Riccobono, Fontes iuris romani ante-
iustiniani (2d edition; vol. 1; Florence: Barbera, 1941). A translation and commentary on the
XII Tables is found in Allan Chester Johnson, Paul Robinson Coleman-Norton, and Frank Card
Bourne, Ancient Roman Statutes (The Corpus of Roman Law II; Austin: University of Texas
Press, 1961), 9“18.
170 HOMICIDE IN THE BIBLICAL WORLD


principle of punishment.24 It is a way in Roman law of forcing the offender
to come to terms with the victim. For more minor injuries, a series of ¬xed
monetary penalties is prescribed in the XII Tables.
An intriguing term appears in a number of cuneiform texts. The term d¯n ±
napiˇ tim, literally “the punishment in a capital case,” appears in the Laws of
s
Eshnunna and in the Laws of Hammurapi and in some letters.25 Does this
term shed light on cases of homicide?
LE 24
If he had no claim against him yet distrained the wife of a com-
moner/dependent or the son of a commoner/dependent, detained the
distrainee in his house and caused [him/her] to die, it is a capital case
[lit. a case of life]; the distrainer who distrained shall die.
LH 3
If a man comes forward to give false testimony in a case but cannot
prove his accusation, if that case is a capital case (lit. “a case of life”),
that man shall be killed.
A variation on the term appears in other statutes of LE:
LE 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.
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 caused a member of the aw¯lu [free] class to
±
die, it is a case concerning life “ it is a decree of the king.
In the law collections, the term signi¬es a capital case for which the
penalty, it appears, is death, but it is understood differently in the letters.

24 Alan Watson, Rome of the XII Tables: Persons and Property (Princeton: Princeton University
Press, 1975), 123. There are statutes in cuneiform law that appear to be applications of lex
talionis because they entail meticulous attention to the exactness of retribution, leading to
statutes resulting in punishments that may appear grotesque; see LH 209/210, MAL A 55.
However, the remedy in these provisions is not based on talio but on the status of the son or
daughter of a free person.
25 The phrase appears in some other texts. ARM V 12:4 is too broken for analysis. (Georges

Dossin, Lettres [TCL 26; ARM V; Paris: Paul Geuthner, 1951], no. 12; Correspondance de
Iasmah-Addu [ARMT V; Paris: Imprimerie Nationale, 1952], no. 12). The phrase appears
˜
in an incantation describing how the supplicant has infuriated his goddess, and among the
ˇ
misdeeds he has committed, he has taken an oath in a capital case. (Cf. Reiner, Surpu, 2.86,
15.) It is unclear, though, whether this particular transgression is more serious than the other
sins listed.
171
LEX TALIONIS


ARM VIII 1
1
ia-ha-at-ti-`l 2 DUMU hi-il-la-lim 3 u DUMU f a-li-tum 4 da-ma-q´-
`
± ±
˜ i-da-mi-iq 5 li-mi-ni-ˇ u-nu i-li-mi-in 6 sum-ma hi-il-la-lum a-
˜s
ˇ ˇ
su-nu
˜
bu-ˇ u u a-li-tum um-ma-ˇ u a-na ma-r[i-ˇ u-nu] ia-ha-at-ti-`l 9 u-ul
7f 8
` ±´
s s s
˜ u 12 sum-ma
´`
10 11
ma-ri-ni at-ta i-qa-bu-ma i-na E u e-nu-tim i-ta-al-lu- ´ ˇ
ia-ha-at-ti-`l 13 a-na hi-il-la-lim a-bi-ˇ u 14 u f a-li-tum um-mi-ˇ u 15 u-ul
` ´
± s s
˜ at-ta 16 u u-ul um-mi at-ti i-qa-bi-ma 17 u-ga-la-bu-ˇ u-ma 18 a-na
˜
`´ ´
a-bi s
19 I 20 f
`
KUG.BABBAR i-na-ad-di-nu-ˇ u s hi-il-la-lum u a-li-tum
˜
rev.
21
ma-ri ma-du-tim ma-li ir-[ˇ u]-u!-ma 22 I ia-ha-at-ti-il-ma ap-lu-um

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