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ern law while reworking them in an Israelite idiom. I argue that the presence
of certain highly unusual and speci¬c cases of homicide in biblical law and
ancient Near Eastern law collections show that biblical law was related to
a common literary tradition of law because the differences between the two
are at times of the same magnitude as the differences between the ancient
Near Eastern law collections themselves. Other scholars have claimed that
the similarities are due to the biblical jurist actually having a copy of ancient
Near Eastern law collections in front of him or that there was a common legal
practice used extensively but rarely put into writing throughout the ancient
Near East. I attempt to demonstrate that particular statutes on homicide in
biblical law are part of the ancient Near Eastern literary tradition of writing
formal law.
The chapter concludes with two appendixes. The ¬rst examines and dis-
misses the claim that the principle that only intentional homicide merits the
death penalty is a later development in biblical law. The second analyzes
whether the biblical principle that only an individual who kills another hu-
man being by direct means is subject to legal action is applied in cunei-
form law.
Chapter Six addresses lex talionis, “an eye for an eye,” perhaps the most
controversial citation from the Bible. Capital punishment was the rule for
killers because the Bible holds that the punishment must be similar to the
11
INTRODUCTION


offense in the aspects in which the original offense was wrong. The agent of
harm becomes the recipient of the same action of the type that constituted
the offense. It was a reversal of roles: The slayer became the slain. This
concept applied to other offenses. Just as a thief, for example, has taken
a particular type of animal away from its owner, so was that particular
type of animal demanded from the thief. The offender suffers a loss in the
same coinage. This is what lex talionis, “an eye for an eye,” signi¬ed. It
was a principle of equivalence, not of harsh justice. Capital punishment as
the punishment for homicide in cuneiform law is not a consequence of lex
talionis; rather, it is an example of the harsh punishment meted out for severe
crimes. Lex talionis is utilized in cuneiform law in some cases of nonfatal
bodily injuries. The chapter ends with an excursus examining the claim that
the Laws of Eshnunna contains alternate penalties and concludes that this
claim is unfounded.
Chapter Seven addresses the question of whether there were general as-
sumptions about the treatment of homicide in the ancient Near East, in-
cluding ancient Israel. A way of answering this question is to examine the
interterritorial documents from the ancient Near East to see whether there
were basic ground rules that were followed or whether every aspect had to
be negotiated from scratch. There are a number of documents internal to
the Hittite empire as well as documents sent between states. At the basis
of all the documents is the general assumption that homicide is wrong, but
there is very little more than that. In the area under Hittite hegemony, the
Hittite viceroy could force the parties to come to terms because of his polit-
ical power, but rulers of independent states would have only the power of
rhetoric to convince another ruler to remedy the wrong.

In the interests of space, only the translations of the texts from law collections
are provided since the original Sumerian, Akkadian, and Hittite texts can
easily be found in a number of recent publications. (See the book appendix
for this information.) However, I will provide transliterated texts for the
other cuneiform documents because they are far more dif¬cult to locate and
their publications are marred by errors.
CHAPTER ONE



A First Case: The Story of Cain and Abel




ONE OF the ¬rst stories in the Bible is about a homicide:
1
Now, the man had known his wife Eve, and she conceived
and gave birth to Cain, saying, “I have acquired a male child with
[the help of ] the Lord.” 2 Once again, she gave birth, [this time]
to his brother Abel. Abel became a keeper of sheep, and Cain be-
came a tiller of the soil. 3 In time, Cain brought an offering to the
Lord from the fruit of the soil, 4 and Abel, for his part, brought
the choicest of the ¬rstlings of his ¬‚ock. The Lord looked with
favor upon Abel and his offerings 5 but did not look with favor
upon Cain and his offerings. Cain was depressed1 and saddened.
6
The Lord said to Cain, “Why are you depressed, and why are
you saddened? 7 Is it not true that whether2 you are good at being

1A distinction is to be drawn between - l hrj, “to be depressed, be despondent,” and #a hrj,
“to be angry.” Cf. Mayer Gruber, “The Tragedy of Cain and Abel: A Case of Depression,” in
The Motherhood of God and Other Studies (South Florida Studies in the History of Judaism
57; Atlanta: Scholars Press, 1992), 121“131.
2 In this clause, !a functions as a coordinating conjunction introducing two alternatives in

a protasis, byfyt al !aw ta` byfyt !a awlh, contra the translations and commentaries. Another
example of this may be found in Ezek 2:5 (“And they “ whether they listen or not, for they are
a house of rebellion “ they will know that there was a prophet among them”). The word byfyt


12
13
A FIRST CASE: THE STORY OF CAIN AND ABEL


patient3 or not, sin is a demon at the door; toward you is its de-
sire, but you control it.” 8 Cain said to his brother Abel, and when
they were in the ¬eld, Cain arose against his brother and killed him.
9
The Lord said to Cain, “Where is your brother Abel?” He said, “I
do not know. Am I my brother™s keeper?” 10 The Lord said, “What
have you done? Listen, your brother™s blood is crying out to me from
the soil. 11 Now, you are cursed from the soil, which has opened its
mouth to take your brother™s blood from your hands. 12 When you
till the soil, it will no longer yield its strength to you. You will be
a fugitive and a wanderer on the earth.” 13 Cain said to the Lord,
“My punishment is greater than I can bear. 14 Today you have driven
me from the soil, and I shall be hidden from your face. I will be a
fugitive and wanderer on the earth, and anyone who meets me may
kill me.” 15 The Lord said to him, “Therefore, whoever kills Cain
will suffer sevenfold vengeance.” The Lord put a mark on Cain so
that no one who came upon him would kill him. 16 Cain went away
from the presence of the Lord and settled in the land of Nod, east of
Eden. (Gen 4:1“16)

The forcefulness of this narrative is that it is about social relations and
violence; it is not just an internal linguistic affair of signs and signi¬ers.4
Cain is portrayed not simply as a cold mechanical killer, but as one drawn
in subtle emotional nuances. The story of Cain and Abel is fraught with
dramatic, psychological, and social possibility, and each turn of the story
escalates the tension and complexity. God confronts Cain with a warning
about the unpredictability and tenacity of the impulse to sin and then returns
to confront him about his role in his brother™s slaying. God does not mention
Abel™s death explicitly at ¬rst but asks Cain about his brother™s whereabouts.
Cain evades the question, knowing exactly what befell his brother, but un-
willing to admit his part in it. When God rebukes Cain and announces his
punishment, Cain is ¬lled with feelings of shame and acute despair, and his

acts adverbially in describing ta`. The adverbial usage of the root bfy in Hiphil is discussed in
Bruce K. Waltke and Michael O™Connor, An Introduction to Biblical Hebrew Syntax (Winona
Lake, Indiana: Eisenbrauns, 1990), 592.
3 The verb a`n rarely appears intransitively in Qal, and since it is used so infrequently, translators

have failed to understand it. NJV translates, “If you do well, there is uplift . . .” re¬‚ecting the pun
on “Why is your face fallen?” from the previous verse, but it is unclear what “uplift” signi¬es.
E. A. Speiser, Genesis (AB; Garden City, New York: Doubleday, 1962), 33, suggests, “If you
do well, there is exaltation . . . ,” but the root in Niphal, not Qal, means “exaltation.” RSV™s
translation, “If you do well, will you not be accepted?” also transforms the root into its Niphal
meaning. However, in our passage, Gen 4:7, the root appears in Qal. The meaning of a`n in
Qal depends on whether it has an object. When this root is used intransitively in Qal, it means
“patient,” as can be extrapolated from Ps 99:8.
4 Cf. William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland

(Chicago: University of Chicago Press, 1990), 3.
14 HOMICIDE IN THE BIBLICAL WORLD


pleading inspires God to mitigate the punishment. In addition to the dra-
matic and psychological, the story re¬‚ects or raises questions about typical
social and legal matters. What motives serve as causes for murder? Can a
killer ever justify his actions? Who remedies the crime? What is the appro-
priate sanction for a slaying? What rules, customs, and norms govern the
prosecution and punishment of a killer? And if a killer is not punished by
execution, what kind of life can he be expected to lead?
Genesis 4 is a good entryway into many of the issues of central con-
cern in the adjudication of homicide in the Hebrew Bible. It adumbrates the
considerations that inform the treatment of homicide in other biblical texts.
The focus on Cain™s psychology and the impulse to sin re¬‚ects a desire to
determine the killer™s responsibility, an essential element in the biblical adju-
dication of homicide. The selection of a slaying as the ¬rst offense committed
by one human being upon another indicates the seriousness with which slay-
ing is taken. The killing is set in the ¬eld, a place often the site of crime
where the infrequency of bystanders complicates the determination of guilt
(cf. Deut 22:25; 2 Sam 14:6). Divine protection of Cain re¬‚ects the anxiety
over the appropriate form of punishment for a killer. And the !ymd,“blood,”
of Abel is not simply a powerful image invented by a creative author for the
tale of Cain and Abel. It is something real that has an existence of its own,
and when blood is spilled, serious consequences result. The story of Cain
and Abel thus opens up some of the critical issues in homicide for the Bible.
There is a preoccupation, even a morbid fascination, with the inner life
of the killer in Genesis 4. The narrative is concerned with the circumstances
leading up to the killing, the motive and mens rea, the state of mind, of the
slayer.5 Cain™s enmity and jealousy toward his brother are aroused by the

5 The other main line of interpretation of the story of Cain and Abel shifts the focus from murder.

Rather, this episode illustrates the inevitable con¬‚ict between nomads and farmers, between the
desert and the sown. The murder arose naturally and invariably out of this inevitable con¬‚ict
and, therefore, the implication is that the killer himself does not really bear responsibility. (Cf.
D. Bernhard Stade, who worked out the interpretation in detail, “Das Kainszeichen,” in Ausge-
wahlte Akademische Reden und Abhandlungen [Giessen: J. Ricker™sche Verlagsbuchhandlung,
1899], 229“273; G. S. Kirk, Myth: Its Meaning and Functions in Ancient and Other Cultures
[Cambridge: Cambridge University Press, 1970], 146; Speiser, Genesis, 31.) According to this
interpretation, Cain is a symbol for the nomadic tribe of the Kenites, who live in the desert
south of Judah and who are at odds with those who live settled lives. However, there is a basic
incoherence at the heart of this analysis. (Cf. Umberto M. D. Cassuto, The Book of Genesis:
Part I: From Adam to Noah; Part II: From Noah to Abraham [Hebrew] [Jerusalem: Magnes
Press, 1986 (1944)], 120“122; Claus Westermann, Genesis 1“11 [trans. John J. Scullion; CC;
Minneapolis: Augsburg, 1985], 282“284.) Which ¬gure represents the pastoral and which the
agricultural? At the start, Cain is the farmer, that is, the one leading a settled existence, and
Abel the pastoralist. Then Cain is condemned to wander but settles in the land east of Eden.
Furthermore, there is no indication that Cain™s progeny wanders like Cain. His eldest son founds
a city. (Cain himself may be the founder of this city if the name Enoch is a misreading for Irad.)
Cain™s condition is con¬ned to him alone. He is not emblematic of any nomadic or agricultural
group.
15
A FIRST CASE: THE STORY OF CAIN AND ABEL


seemingly arbitrary evaluation of their offerings. There is only the barest of
implications that Cain™s offering was incorrect in the comparison of Cain™s
offering, “the fruit of the soil,” to Abel™s “choicest of the ¬rstlings of his
¬‚ock.”6 The seemingly mercurial judgment of God and the innocence of
Cain in this regard are ampli¬ed by the disjunction between the events of
the narrative in vv. 1“6 and God™s words. We would expect God to offer
criticism of Cain™s offering. Rather, God mentions controlling the impulse to
sin.7 After the deed is done, the narrative then explores the inner life of the
killer. When God asks obliquely about Abel™s whereabouts, Cain avoids the
questions and disavows knowledge, so typical of an offender who knows very
well what he has done and is attempting to evade punishment. Cain™s plea
for mitigation of punishment borders on poignancy. This narrative shaping
explores the psychology of the killer before and after the killing as an avenue
for determining the responsibility of the killer for his actions.
Cain™s impulse to kill is depicted as capricious and powerful, illuminating
a theory of sin and personal responsibility. God cautions Cain: “Is it not
true that whether you are good at being patient or not, sin is a demon
at the door; toward you is its desire, but you control it” (Gen 4:7). Sin
is personi¬ed as a demon, Akkadian rabisu.8 The Akkadian word rabisu
¯. ¯.
originally referred to a high of¬cial who held judicial responsibility as an
examining magistrate in preliminary court investigations. Later on, it was
applied to deities, re¬‚ecting their judicial role in bringing the guilty party
to judgment.9 This term was then demonized: The fearsome nature and


Cassuto, The Book of Genesis . . . [Hebrew], 138.
6 Cf.
7 Cf. N. H. Tur-Sinai, “At the Door Sin Couches” [Hebrew], Tarbiz 16 (1944), 8.
8 Hans Duhm identi¬es the demonological aspect in Die bosen Geisten im Alten Testament
¨
¨
(Tubingen/Leipzig: J. C. B. Mohr, 1904), 8“10. Claus Westermann objects that the word $=ó
could not refer to a demon because such a personi¬cation of sin was unlikely in so early a text
and was simply unparalleled elsewhere in the Hebrew Bible (Genesis 1“11, 300). In defense of
the demonological interpretation, it is in all events dif¬cult to date this text. Although opinion
on the direct dependence of Genesis 1“11 on Mesopotamian texts has waxed and waned in the
last century of scholarship, even those advocating a minimalist connection recognize elements
developing from a shared common tradition/culture. (Cf. Richard S. Hess, “One Hundred
Fifty Years of Comparative Studies on Genesis 1“11,” in “I Studied Inscriptions from Before
the Flood”: Ancient Near Eastern, Literary, and Linguistic Approaches to Genesis 1“11 [ed.
Richard S. Hess and David Toshio Tsumura; Sources for Biblical and Theological Study 4;
Winona Lake, Indiana: Eisenbrauns, 1994], 3“26, and David Toshio Tsumura, “Genesis and
Ancient Near Eastern Creation Stories,” in “I Studied Inscriptions from Before the Flood,”
27“57, esp. 55“56.) In light of the Mesopotamian background of Genesis 1“11, a reference to
a Mesopotamian concept seems a strong possibility. Gerhard von Rad™s suggestion to transfer
the t from the end of tafj to the beginning of $br to yield $brt eliminates the problem in the
gender agreement between subject and verb but would necessitate the emendation of the third-
person masculine suf¬xes in the following clauses (Genesis [revised edition; OTL; Philadelphia:
Westminster, 1972], 105) and so in solving one problem creates an equally dif¬cult problem.
9 AHw, s.v. rabisu, 2.935; A. Leo Oppenheim, “˜The Eyes of the Lord,™” JAOS 88 (1968), 173“
¯.
180; Dietz Otto Edzard and F. A. M. Wiggermann, “Maˇ kim, Kommissar, Anwalt, Sachwalter,”
s
16 HOMICIDE IN THE BIBLICAL WORLD


power of the of¬cial were analogized to the character of lesser divine beings,
demons. These demons were not to be treated lightly, just as the of¬cials
should not be treated lightly. Like the of¬cials, the demons possessed a dual
nature, both negative and positive: They could be benevolent or malevolent.
Their presence is ambivalent because of this contrast. They are found at
entrances of palaces and temples in order to protect and to attack.10
¯.
The analogy of sin to rabisu re¬‚ects a conception of wrongdoing as a
powerful impulse that can either control Cain or be controlled by him, just
¯.
as the rabisu can be bene¬cial as well as detrimental. Its dual nature is also

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