. 38
( 55 .)


110, 119“143), except for LH, where death is the punishment (LH 6, 7, 8,
9, 10). LH makes death the punishment for anyone bringing a false charge
that necessitates a trial by ordeal for the accused (LU 13“14; LH 2). LE 28
mandates death for the wife caught in ¬‚agrante delicto, whereas LH 129
allows the husband to forgo the death penalty. Harboring a fugitive slave
results in a ¬ne in LL 12, whereas the same act results in execution in LH
16. The imposition of the death penalty is a recurring refrain of the Laws
of Hammurapi (1“3, 6“11, 14“16, 19, 21“22, 25“26, 33“34, bb, 108“110,
116, 129“130, 133b, 143, 153, 155, 157, 210, 229“231). Corporal and
capital punishment are found in law collections both early and late.
In sum, lex talionis is a ¬‚exible concept. In biblical law, it is used as a
principle expressing equivalence. The penalty must be equivalent to the harm
in¬‚icted. In the case of a human death, the offender must be killed, and in the
case of an animal death, the animal victim must be replaced. The penalty for
homicide in cuneiform law is death, but it is not an expression of lex talionis.
The death penalty is the penalty for serious offenses. The concern manifest in
cuneiform law is on the ¬xing of the status of the victim in certain categories
and how that status affects the punishment. Lex talionis was a principle in
cuneiform law for cases of false witness or nonfatal bodily injuries. In early
Roman law, lex talionis is not a principle of punishment but a threat to force
the offender to come to settle with the victim.
Lex talionis in biblical law restricts the punishment to the offender him-
self. Lex talonis makes rich and poor equal in biblical law.33 More than that,
status, with the exception of the slave, is simply not a factor in biblical law.
The question is, therefore, whether lex talionis is a manifestation of
Israelite culture other than the fact that it is found in ancient Israel. In order
to answer this question, we must compare this penalty to other penalties.
The principle of the penalty for intentional homicide is based on the rever-
sal of roles: The original agent of harm becomes the recipient of the same
action of the type that constituted the offense. Therefore, the appropriate
punishment is execution: The killer is subject to being killed. This concept of
equivalence appears to be at work with regard to stealing a sheep: Just as the
thief has taken a particular type of animal away from its owner, a particular
type of animal is demanded from the thief. He does not simply return the
stolen animal but suffers a loss in the same “coinage,” sheep.
What is seen as equivalent depends on the culture. A particular human
being was not seen as fungible in the way a particular animal was viewed. In
cuneifom law, human life was considered fungible in pecuniary terms. This
was not valid in Israelite culture, at least according to what is presented as
legitimate in the Hebrew Bible. However, what is striking about the law in
Num 35:31“32 is its insistence that a monetary indemnity should not be
accepted in any case, whether for intentional or accidental homicide. This

33 Paul, Studies in the Book of the Covenant, 40, 76“77.

stipulation implies that compensation was accepted in practice, albeit not
legal according to this statute.


Emile Szlechter argues that alternate penalties also exist in LE because of the
differences in the way capital punishment is formulated in LE.34 In LE 24/26,
the formula is d¯n napiˇ tim . . . imat, “it is a case of life . . . he shall die.” In
± s
LE 58, the formula is napiˇ tim simdat sarrim, “[it is a case concerning] life:
s .
decree of the king.” In LE 12, 13, and 28, the formula is imat ul iballat, .
“he shall die, he shall not live.” Szlechter interprets the ¬rst two as indi-
cating differences in the administration of the penalty, that the punishment
could be mitigated and that the punishment could be imposed by the of-
fended party immediately upon discovering the offense. He argues that d¯n ±
napiˇ tim . . . imat indicated that the death penalty was applicable only in
the absence of a settlement between the perpetrator and the victim™s fam-
ily, whereas the emphatic expression imat ul iballat indicated that the death
penalty was mandatory and that the offended party could resort to it imme-
diately in a self-help mode. Benno Landsberger and Ulrich Sick agree with
Szlechter™s ¬rst thesis but not with his claim about self-help.35 Szlechter him-
self omits the self-help thesis in his 1978 publication. Yaron argues for the
opposite conclusion “ although the emphatic nature of the phrase imat ul
iballat implies that the death penalty is mandatory, its mandatory use in these
particular cases appears out of line because LE 12, 13 and 28, where this
formula appears, share a common element in that the offender was caught
in ¬‚agrante delicto.36 This is re¬‚ected in the use of nasbutum, “to be seized,
caught,” in all three provisions. In LE 12 and 13, trespass, an offense that
generates the lowest penalty, ten shekels, the most minor amount to be paid
as a ¬ne, becomes greatly aggravated when it occurs in the nighttime. When
trespass occurs at night, the penalty is death, not a ¬ne. The owner reacts
violently to the intrusion and kills the intruder, justi¬ed in fearing for his life.
In LE 28, the husband, outraged by catching his wife in the lap of another
man, kills her. The offended party may kill in the moment of fear or fury, but
once that moment has passed, normal judicial procedures come into play.

34 Szlechter, Les lois d™Eˇ nunna (Publications de l™Institut de Droit Romain de l™Universit´ de
s e
Paris 12; Paris: Centre National de la recherche scienti¬que, 1954), 110“11, and “Les lois
d™Eˇ nunna,” RIDA 25 (1978), 197“198.
35 Landsberger, “Jungfraulichkeit,” in Symbolae Iuridicae et Historicae Martino David Dedi-

catae II, 72; Ulrich Sick, Die Totung eines Menschen und ihren Ahndung in den keilschriftlichen
Rechtssammlungen unter Berucksichtigung rechtsverglechender Aspekte (Ph.D. diss., Eberhard-
Karls-Universitat, 1984), 150.
36 Yaron, The Laws of Eshnunna2 , 260.

The statutes provide a license for immediate punishment, but the remedy
effected when matters calm down is different.
In my opinion, it is questionable whether intrusion during the night is
so heinous as to exclude a lesser penalty. If adultery is pardonable in other
ancient Near Eastern law collections, LH 129, MAL A 15, HL 197“198,
there is no reason to assume that it was otherwise in LE. However, it is critical
to note that the phrase imat ul iballat is not extant elsewhere in Akkadian
legal formulations. The phrase ¬ts the style of the other formulations of the
death penalty in LE, each of which contains two clauses. The formulation
d¯n napiˇ tim . . . imat contains clause 1) d¯n napiˇ tim, and clause 2) imat. The
ˆ ˆ
± s ± s
formulation napiˇ tim simdat sarrim contains clause 1) napiˇ tim, and clause
s s
ˇ ˆ
2) simdat sarrim. The formulation imat ul iballat also contains two clauses,
. .
imat and ul iballat. The emphatic nature of this formula is more apparent
than real. Yaron himself suggests that the purpose of the double clauses was
to present a smooth literary style in place of a curt and abrupt one-word
decree of the death penalty.

Interterritorial Law: The Homicide
of a Foreign Citizen

WE HAVE seen that at the same time certain statutes in biblical law were part
of the tradition of cuneiform legal traditions, many other aspects of biblical
law differed radically from cuneiform law. There is little in the way of shared
assumptions between biblical law and cuneiform law. We have determined
that cuneiform law collections share a common tradition and that the legal
records from Mesopotamia diverge and converge with other legal records
and with the law collections. Another way of testing the commonality of the
legal traditions of the ancient Near East is to ask whether there were basic
ground rules about the treatment of homicide beyond a general assumption
that the unlawful killing of a human being is wrong.
One method of answering this question is to analyze the case of a citizen
of one territory slain in another. There are a number of ancient Near Eastern
documents that address this case. This group of texts allows us to examine
the question of whether there was generally accepted international law that
governed such occurrences or whether one country attempted to impose its
law upon another. Serendipitously, these texts all come from about the same
time period, from the mid“fourteenth century b.c.e. to the mid“thirteenth
century b.c.e., granting us the opportunity to observe legal procedures that
might have operated concurrently.1

1 There is an earlier text from Mari, ARM II 123, in which the death of caravaneers is reported,
but the remedy is not mentioned.


The texts fall into two sets. The ¬rst consists of two letters, an Amarna
letter from the king of Babylonia to the Egyptian king (EA 8) and a letter
from the Hittite emperor to the Babylonian king mentioning the death of
merchants while abroad (CTH 172). EA 8 is a letter in Akkadian from
Burnaburiyash II of Babylonia to Amenophis IV/Akhenaten of Egypt. It
dates from circa 1349“1334 b.c.e. (the overlap between the reigns of the
two kings). CTH 172 is a letter in Akkadian from Hattusili III, the Hittite
emperor, to Kadashman-Enlil II of Babylonia. It dates from approximately
1260 b.c.e. The second set consists of a dozen texts on this topic that have
been excavated at Ugarit, including treaties stipulating the responsibilities
and obligations of the countries in an occurrence in the future in which a
foreign merchant will have been killed (RS 17.146, 17.230, 18.115), and ac-
tual cases in the form of records of settlements (RS 17.234, 17.251, 20.22)
and records of trials (RS 17.299, 17.229, 17.158, 17.42, 17.145, 17.337).
RS 17.369B + RS 17.69 is too fragmentary to classify. The treaties outline
the procedure to be followed in cases of slaying in the future, while the legal
records re¬‚ect how homicides that have already occurred were remedied.
In a letter unearthed in the El-Amarna archive (EA 8), Burnaburiyash II,
the king of Babylonia (Karaduniyash), demands action from Naphu™rureya
(Amenophis IV/Akhenaten), the king of Egypt, on behalf of certain Babylo-
nian merchants who have been slain.
[a]-na na-ap-hu-™u-ru-ri-[ia . . . ] 2 LUGAL kur mi-is-ri-i SES-ia
˜ bur-ra-bu-ri-ia-aˇ LUGAL kur ka-ra-[du-ni-ia-aˇ ]
q[i-bi-ma] um-ma s s
4ˇ ˇ ´

SES-ka-ma a-na ia-a-ˇ i su-ul-mu a-na ka-ˇ a KUR-ka E-ka
ˇ ˇ ˇ ˇ
6 lu
ka giˇ MAR.MES-ka 7 da-an-ni-iˇ lu su-ul-mu

a-na-ku u SES-ia it-ti-a-ha-mi-iˇ 9 ta-bu-ta ni-id-da-bu-ub 10 u `
an-ni-ta ni-iq-ta-bi um-ma-a ki-i ab-bu-ni it-ti a-ha-mi-iˇ ta-
` ˇ´
2 12 13
a-bu ni-i-nu lu ta-ba-nu i-na-an-na DAM.GAR.MES-u-a
sa it-ti SES ta-a-bu te-bu-u 15 i-na kur ki-na-ah- hi a-na si-
ˇ ´ ˇ
ˇ S-ta-a-bu a-na mu-uh-hi SES-
ˇ. ˇˇ
ma-a-ti it-ta-ak-lu-u ul-tu SE
17 uru
hi-in-na-tu-ni sa kur ki-na-ah-hi 18 I su-um-ad-
ia i-ti-qu i-na
da DUMU I ba!-lum-me-e 19 I su-ta-at-na DUMU ˜I sa-ra-tu-um sa
˜ ˜ˇ
ˇ ˇ
20 ´ ˇ su-nu ki iˇ -pu-ru lu DAM.GAR-ia 21 id-du-
ak-ka LU.MES-ˇ s
ku u KUG.BABBAR-ˇ u-nu it-tab-lu 22 [I az-z]u a-na pa-[ni-k]a ki-
` s
3 23
al-ta-ap-ra-a[k-k]u si-ta-[al-ˇ u-nu] 24 li-iq-ba-ak-
i [ka-al-li-e] s
s` ˇ
[ku] [ ki-]na-ah-hi KUR-ka u LUGAL!-[ˇ a IR.MES-ka] 26 i-na
25 kur


. 38
( 55 .)