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´ hi-il-la-lim a-bi-ˇ u 24 si-it-ti-in i-li-q´˜-ma 25 ah-hu-ˇ u se-he-
23
ˇ s .´
i-na E s ±
26˜

˜˜
ru-tum a-hu-um ki-ma i-za-az-<zu> ba-q´-ir i-ba-qa-ru-ˇ u 28 a-
27
±
sa-ak d UTU ˜d i-tur-me-er I d UTU-ˇ i-d ISKUR 29 u ia-as-ma-ah-d ISKUR
sˇ ˇ
´ ` ´
˜
i-ku-ul 30 u 3 1/3 MA.NA KUG.BABBAR di-in na-p´-iˇ -tim 31 i-na-ad-
` ±s
di-[i]n 32 IGI u-sur-a-wa-su 33 IGI d NANNA-`l 34 IGI DINGIR-ˇ u-a-
´. ´ ± s
35 36 37
´
bu-ˇ u IGI u-ma-an-ni-su-ta IGI ik-ˇ u-ud-ap-pa-ˇ u IGI i-din-`-l´
s s s ±±
38 39
ku-um-rum IGI ia-ar-i-ip-`l ku-um-rum IGI ak-ka-ba-ni ku-um-
±
rum IGI su- nu-nu DUMU I da-gan-nu-pa-ra-ia 41 IGI i-din-d nu-
40 d
ˇ
nu DUMU da-gan-ma-lik 42 IGI d da-gan-aˇ -ra-ia 43 DUMU I da-gan-
I
s
44
ˇ
ga-am-li IGI su-INANNA DUMU GISSU-l´-INANNA ku-um-rum ±
45
IGI ha-da-ta-an DUMU la-ri-im-lu-u IGI wa-ri-ki-ma 48 IGI
46 47
´
˜ s-ri 49 DUMU.MUNUS GISSU-l´-ak-ka 50 IGI sa-pur-sa-lim
f
`
an-nu-aˇ ± .
´
´
lu 51 52 53
MA.LAH4 IGI za-ki-ri-im IGI a-hi-im DUBSAR ITU hi-bi-
ir-tim UD˜28 KAM 54 li-mu as-qu-du-um ˜ ˜
` ´
1“5
Yahatti-el is the son of Hillalum and Alitum. He shall rejoice in
their joys and commiserate in their miseries. 6“11 Should Hillalum, his
father, and Alitum, his mother, say to their son Yahatti-el: “You are
not our son,” they shall forfeit house and belongings. 12“18 Should
Yahatti-el say to Hillalum, his father, and Alitum, his mother: “You
are not my father, you are not my mother,” they shall have him
shaved and shall sell him for money. 19“26 As for Hillalum and Al-
itum, regardless of how many sons they have, Yahatti-el is primary
heir, and he shall take a double share of the estate of Hillalum, his fa-
ther. His younger brothers shall divide the remainder in equal shares.
27“31
Whichever [among the brothers] shall enter a claim against him
will [be considered to] have infringed on a taboo of Shamash, Itur-
Mer, Shamshi-Adad, and Yasmah-Adad, and shall pay three and one-
third minas of silver, the penalty in a capital case. 32“52 Witnesses.
53“54
Month of Hibirtum, 28th day, eponym of Asqudum.

If the brothers contest the status of the adopted son as the eldest, espe-
cially in regard to inheritance, they will pay three and one-third minas of
silver, which is identi¬ed as d¯n napiˇ tim, the penalty in a capital case. A set
± s
172 HOMICIDE IN THE BIBLICAL WORLD


amount is recognized as the compensation in a capital case, but the partic-
ular circumstance in which it is paid is not a capital case. The penalty for
contesting a legal transaction in other tablets, taking this volume of ARM
as an example, is one mina in ARM VII 5.9 and ten minas in ARM VII 8.9,
11.28, 12.7. The expression d¯n napiˇ tim, employed mainly in LE, is taken to
± s
mean the imposition of the death penalty without any mitigation. However,
here it refers to a ¬nancial penalty, and it is in fact a moderation of the more
common amount in a penalty clause:26

ARM XIII 145
`
1
[a-n]a be-[l´-ia] 2 q´-bi-ma 3 um-ma ia-wi-[AN] 4 IR-ka-a-ma
± ±
ˇˇ ` ´ˇ ˇ
5
DUMU.MES si-ip-ri-im u lu SU.GI 6 sa ia-ar-ki-ba-d ISKUR a-na- se-
ˇ .
r[i-ia] 7 il-li-ku-nim-ma ki-a-am iq-bu-nim [um-ma-mi] 8 it-ti-ka u-ul ´
ˇ
na-ak-ra-ku 9 u a-na a-wa-at bu-nu-ma-d ISKUR u-ul [a-qu-ul] 10 u a-
` ´ ´ `
11
`
na-ku ki-a-am a-pu-ul-ˇ u-nu-[t]i um-ma a-na-ku-ma na-ak-ra-at u
s
12 13
sa-al-ma-at ma-an-nu-um i-di-ka la wa-ta-ar na-ka-ar-ka uˇ -te- s
14 15
ed-di [at-t]u-nu-[m]a na-ka-ar be-l´-ia zi-im-ri-li-im [it-ti-ia-m]a
±
` be-l´-i[a zi-im-ri-li-im] 17 [x x ad-b]u-
16
`
na-ak-[ra-a]t [u a-na-k]u IR ±
18
´
bu-ˇ u-nu-t[i-ma] [ar-hi-i]ˇ a-wa-su-nu ki-a-a[m iˇ -ku-nu]
s s s
˜
rev.
ˇ
19
[um]-ma-a-mi sum-ma bu-nu-ma-[d ISKUR] 20 di-in na-p´-iˇ -tam id-
ˇ ±s
21 22
`
di-[in] u na-p´-iˇ -tam um-ta-al-[la] ta-s[a-l]i-[im-ma an]-ni-tam
±s
iq-[bu-nim] u ki-a-am [a-pu-ul-ˇ u]-nu-ti 24 um-ma a-na-[ku-ma zi-
23
` s
im]-ri-li-im be-l´ i-na a-lim t[a-al-h]i-yi-im wa-ˇ i-ib 26 ba-lum be-
25
± s
˜
l´-ia mi-im-ma e-p´ -ˇ a-am u-ul <e>-li-im i-na-an-na be-l´ a-wa-
27
´
± es ±
28 29
tam li-na-t`-la-am-ma sa [qa-b´ -e] be-l´-ia lu-p[u-uˇ aˇ -ˇ um x x
ˇ ´s s s
.± e ±
30 31
´
x x] an-ni-im ba-[lum be-l´-ia mi-im-ma] e-p´ -ˇ a-[am u-ul e-li-
± es
i] . . . [ma]-a-tum su-tam-ma-at
32 33 34
ˇ `
[u] wa-ar-ki be-l´-ia
± i-la-k[u]
35
xx
1“4
To my lord, read: Thus says Iawi-ila your servant. 5“9 The mes-
sengers and elders of Iarkiba-Addu have come to me and have said:
“We are not hostile to you. Do not pay attention to the matter of
Bunuma-addu.” 10“16 I responded to them thus: “You are (both) hos-
tile and conciliatory. Who knows you? It is too much. You have made
known your hostility. You are an enemy of my lord Zimri-Lim, and
with me you are hostile, and I am a servant of Zimri-Lim.” 17“22 Thus
I said to them. Quickly they decided thus: “If Bunuma-Adda has been
accused in a capital case and has paid [the value of] a life, then he
will be reconciled.” 22“27 They said thus to me, and I responded to
them: “Zimri-Lim is my lord, who resides in Talhiyum. Without the

26 GeorgesBoyer, Textes juridiques et administratifs (TCL 29; ARM VIII; Paris: Paul Geuthner,
1957), 168.
173
LEX TALIONIS


authorization of my lord, I cannot do anything.” 27“31 Now, may my
lord look favorably upon the matter which I have done according
to my lord™s order. . . . Without my lord™s authorization, I cannot do
anything. 32 “34 . . .

Here again, d¯n napiˇ tim signi¬es a pecuniary penalty. It is not only these
± s
letters from Mari that assume that the penalty is a ¬ne. In the legal records
from Mesopotamia as well, the penalty for a homicide is ¬nancial.27
We have come across many different penalties for homicide. Recourse
to compensation in place of capital punishment has inspired theories on the
historical development of the treatment of homicide in the ancient Near East.
G. R. Driver and John C. Miles suggest a historical process in which a blood
feud ensued when a member of one family injured another: The community,
which could be affected by the loss of ¬ghting men, limited the vendetta
by ending it when the killer himself was killed or by providing an alternate
remedy in compensation.28 This principle was then extended to limit liability
to the actual injury incurred. Eventually, compensation became the preferred
penalty.29
Driver and Miles base their explanation upon one of the most in¬‚uential
theories of legal evolution, the self-help model developed in the late eigh-
teenth and the nineteenth centuries.30 This theory attempted to answer the
question of whether there were evolutionary patterns in law, by which soci-
eties move from one de¬nable stage with particular institutions to another
de¬nable stage with particular institutions. The self-help model presumed
that in the earliest period of human existence, violence was prevalent but
not chaotic. Violence was organized by a rule-bound system of vengeance.
The earliest states were established in an effort not to eliminate this violence
but to supervise and institutionalize it. There were four stages postulated in

27 E.g., NSG 41, Wiseman Alalakh 17, BBSt 9, ADD 618, ADD 321, ADD 164, ADD 806,
PPA 95.
28 Driver and Miles, The Babylonian Laws, 1.501“502.
29 Marian San Nicolo, “Rechtsgeschichtliches zum Gesetze des Bilalama von Eˇ nunna,” Or 18
` s
(1949), 261; Goetze, The Laws of Eshnunna, 261.
30 J. D. Michaelis, one of the most prominent proponents of biblical criticism in the eighteenth

century, was among the ¬rst to argue against the prevailing theory, the social contract model,
and for a rule-bound system of vengeance. The self-help model received new impetus in the
nineteenth century when it was championed by G. W. F. Hegel in Philosophy of Right (trans.
T. M. Knox; Oxford: Oxford University Press, 1952 [1821]), and by the preeminent legal
¨
historian Rudolf von Jhering in Geist des romischen Rechts auf den verschiedenen Stufen seiner
Entwicklung (Aalen: Scientia Verlag, 1968 [1898]). The most widely read proponent of this
model today is Max Weber, Economy and Society: An Outline of Interpretive Sociology, ed.
Guenther Roth and Claus Wittich, trans. Ephraim Fischoff (Berkeley: University of California
Press, 1978 [1922]). A recent analysis of the self-help model from the viewpoint of Law and
Economics was written by James Q. Whitman, “At the Origins of Law and the State: Supervision
of Violence, Mutilation of Bodies, or Setting of Prices,” Chicago-Kent Law Review 71 (1995),
41“84.
174 HOMICIDE IN THE BIBLICAL WORLD


this process. In the ¬rst stage, the “state of nature,” kin groups or individuals
exacted vengeance when injured by other kin groups or individuals in the
form of talionic reparations, “an eye for an eye, a tooth for a tooth.” In the
second stage, the early state supervised the existing system of vendetta by
forcing the parties to have recourse to the state for a formal hearing in order
to exact talionic vengeance. In the third stage, the early state assumed the
role of enforcement and took the responsibility from the injured party to
exact vengeance. Only the state could legitimately have recourse to violence.
Finally, the state eliminated violence by substituting monetary damages for
talionic reparations.
However, the discovery of early law collections that prescribe pecuniary
penalties for injury and homicide has inspired scholars to reverse the histori-
cal process: They argue that the law developed from compensation to talionic
punishment. According to A. S. Diamond, this development was a sociologi-
cal advance as certain wrongs were no longer considered private: They were
no longer civil wrongs covered by civil law but public wrongs covered by
criminal law, because the state had advanced to a level of complexity that
could police these occurrences.31 The dif¬culty with this proposal is that pe-
cuniary punishment is found in later law collections as well as in earlier ones:
The explanation that the law collections preserving monetary compensation
originated in less advanced societies is strained.
J. J. Finkelstein attempts to salvage this theory by proposing that corporal
punishment in terms of lex talionis in the Laws of Hammurapi re¬‚ected an
innovation in jurisprudence, not social development.32 What was formerly
covered by civil law, a legal realm in which the penalties are purely pecu-
niary, was subsequently covered for the injury of a member of the upper class
by criminal law, in which corporal sanctions can be imposed. According to
Finkelstein, this was clearly an innovation, when protection was granted
to the upper class. Others, of inferior status, had to be content with com-
pensation. However, it appears to me that it is dif¬cult to understand why
this innovation was not sociologically determined. More importantly, there
may not have been a sharp distinction between civil and criminal law, and
if corporal punishment is the characteristic of criminal law “ Finkelstein™s
de¬nition of criminal law “ then it was already introduced in the Laws of
Ur-Nammu (LU 1, 2, 6, 7). LE makes attempted theft part of criminal law:
In LL 9 the penalty is a ¬ne; in LE 12“13 the penalty is a ¬ne if attempted
during the day and death if attempted during the night; in LH 21 the penalty
is death. In general, in cuneiform law a ¬nancial penalty is the remedy for
theft (LL 9, 10; SLHF iii 13“15; MAL A 5, C 5, 8; HL 63“70, 93“97, 108,

31 A. S. Diamond, “An Eye for an Eye,” Iraq 19 (1957), 51“55; Diamond, Primitive Law Past
and Present (London: Methuen & Co., 1971).
32 Finkelstein, “Ammisaduqa™s Edict and the Babylonian ˜Law Codes,™” 96“99, and The Ox
.
That Gored, 59, n. 13.
175
LEX TALIONIS

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