. 45
( 55 .)


that while the Laws of Hammurapi was written 500 years before these letters, it was extant in
many copies for over a millennium, and that the new version of the Hittite Laws dates from
the same period of Hittite history, the New Hittite period (the New Hittite recension dates from
ca. 1350 to ca. 1200 b.c.e.), as these letters.
38 Cf. J. G. Starke, Introduction to International Law (10th edition; London: Butterworths,

1989), 3“6, 18“20.
39 The attempts of one country to impose its law on another persist in contemporary times.

A case making headlines at the time this book was being written is that of an American con-
victed of murdering his lover in the United States who escaped from there and was captured
in France twenty years later. The French authorities insisted that French law regarding cap-
ital punishment be applied to his case in the United States in order for him to be extra-
dited from France to the United States. Cf. Steven C. Kiernan, “Extradition of a Convicted
Killer: The Ira Einhorn Case,” Suffolk Transnational Law Review 24 (2001): 353“385. A
recent case in which foreign authorities have attempted to apply elements of another system
of law in their own court as a response to the demands of another government is treated
in Renee Lettow Lerner, “The Intersection of Two Systems: An American on Trial for an
American Murder in the French Cour D™Assizes,” University of Illinois Law Review 2001:

a power that held sway over the territories involved, this power could be
called upon to adjudicate a speci¬c dispute between them, similar to forced
arbitration. In other cases, these territories followed a speci¬c set of proce-
dures agreed apon in advance by the parties involved. This set of procedures
operated like a contract between the territories for their exclusive use, rather
than commonly accepted international law the parties felt constrained to

HOMICIDE IS an occurrence that is viewed as heinous in every human soci-
ety. However, it embodies the social, religious, and intellectual characteristics
of a particular culture. In the Hebrew Bible, the adjudication of homicide
typi¬ed aspects of Israelite culture and society. The organization of society
shaped the process. The victim™s family had the right and responsibility to en-
sure that justice was done. The process, blood feud, was always rule-bound
and intrinsically part of the legal process. By contrast, in cuneiform law,
the central government exerted control over the process, and the victim™s
family could participate only in a late stage of the process. In Israel, kin-
ship ties persisted; the lineage, the association of families, was responsible
for the protection of family members in the legal arena, and in general, a
community-based system of justice prevailed, whereas in Mesopotamia, a
bureaucracy had control. This is because ancient Israel perceived itself to be
and was in fact a rural, decentralized society with only mild bureaucratic in-
terference and little in the way of specialized professions. Mesopotamia was
urban and centralized, with the disintegration of extensive family ties and
the rigid control of bureacracy. Biblical law was not lagging behind the rest
of society. Blood feud was not an archaic or outmoded institution retained
for an offense like homicide. It ¬t the contours of biblical culture.
Cultic considerations were also a signi¬cant factor. Measures had to be
taken to prevent the very real effects of spilled blood. The contamination


incurred by the shedding of blood originated in the concept of ritual pu-
rity and impurity in biblical religion: Blood was both a contaminant and
a cleanser. An unlawful death was linked to ethical impurity: Certain acts
were so heinous that they generated severe impurity that affected the na-
tion as a whole. The blood of a slain person caused de¬lement, and the
way to undo that de¬lement was through blood. Since the contamination
incurred by homicide operated as both ritual and ethical impurity, the rem-
edy did not necessitate physical application of blood to remove impurity, as
the sancti¬cation of the altar, to offer an example, did. Rather, the slaying
of the intentional killer, the death of the high priest as the representative
of the Israelite people in the case of accidental homicide, or the ceremonial
removal of the contagion of blood in the case of a victim whose killer cannot
be found was suf¬cient to defer the consequences of unlawful slaying. No
such concern with the ill effects of slain blood is found in cuneiform law.
Mesopotamian religion was not concerned with the contaminating effects
of spilled blood, nor were the actions of individuals the source of peril for a
nation as a whole.
Concomitant with the concern over the de¬ling effects of unlawful killing,
the principle of lex talionis caused the death penalty to be imposed on the
slayer in biblical law. Capital punishment for homicide in cuneiform law
is an example of the proper punishment for serious crimes and was not an
actualization of lex talionis. Lex talionis was used in cuneiform law as a
principle in determining the punishment for nonfatal bodily injuries.
The differences in the characteristics of the cities of refuge in the Priestly
traditions and in Deuteronomy re¬‚ect the ideology and theology characteris-
tic of each Pentateuchal source, rather than historical development. Histori-
cally, asylum did operate for others besides killers. Political offenders could
seek respite from their enemies at a sanctuary.
Certain phenomena, such as the cities of refuge, appear in ancient Israel
due to the con¬‚uence of factors speci¬c to ancient Israel. The cities of refuge
existed there and nowhere else in the ancient Near East. It may be speculated
that the emphasis on communal solidarity of the Israelites as a nation apart1
may have served as one impetus for the creation of refuges within Israelite
borders, so that avoiding a blood avenger would not necessitate ¬‚ight to
a foreign territory. Adding to this impetus is the concept in ancient Israel
that the danger posed by impurity affects the entire nation and that steps
need to be taken as a preventative. Therefore, even an accidental homicide

1 SeePeter B. Machinist, “The Question of Distinctiveness in Ancient Israel: An Essay,” in
Ah, Assyria . . . : Studies in Assyrian History and Ancient Near Historiography (ScrHier 33; ed.
Mordechai Cogan and Israel Eph al; Jerusalem: Magnes Press, 1991), 203“207, and “Outsiders
or Insiders: The Biblical View of Emergent Israel and its Contexts,” in The Other in Jewish
Thought and History: Constructions of Jewish Culture and Identity (ed. Laurence J. Silberman
and Robert L. Cohn; New York: New York University Press, 1994), 41“54.

is dangerous because although the death was accidental, the shed blood is
still polluting: A city of refuge, then, has dual aspects, both protection and
con¬nement, and the accidental slayer must wait until the death of the high
priest for the stain to be neutralized. In contrast, while cities in the Late
Assyrian and Babylonian periods had the right of kidinnutu, a privilege of
autonomy in certain matters, that theoretically prevented royal of¬cials from
executing anyone who had entered a city™s precincts, this was not limited to,
or even meant for, killers.2 In the Old Babylonian period, certain persons
and any property placed into their care or any other person enjoying their
hospitality were immune from the interference of others. This was most likely
intended to protect economic and commercial interests.3
The biblical treatment of homicide differed radically from that of
cuneiform law despite Mesopotamia™s profound political, economic, and
cultural in¬‚uence on the ancient Near East because biblical law was linked
to aspects of biblical society, religion, and ideological traditions. There are
only two speci¬c statutes of biblical homicide law, the goring ox and the
fatal assault on a pregnant woman, that appear to have been drawn from
cuneiform legal tradition. The parallels to Mesopotamian law occur in the
Covenant Code, a legal corpus that has another af¬nity to Mesopotamian
law collections: Most of the Covenant Code is written in casuistic style, the
style of most of the Mesopotamian law collections.
Certain Israelite scribes, in order to produce business or diplomatic doc-
uments that could be used further a¬eld throughout the ancient Near East,
must have learned Akkadian, the lingua franca of the ancient Near East, and
among the school texts used for training native Akkadian scribes were legal
collections and texts composed of legal formulas. It is reasonable to suppose
that such material was available in the education of Israelite scribes. Prob-
ably not all Israelite scribes had this training, but a percentage did. Some
educated individuals, not necessarily scribes by profession, may also have
been exposed to this type of training.
In this study, we have addressed the question of whether we can tell if a
phenomenon has been borrowed or independently invented. An element that
is very general, we must assume, was independently invented, but something
unusual calls attention to itself as something parallel. Here, our argument
that it is borrowed is buttressed by the parallels within cuneiform law: Just
as an unusual case was repeated in cuneiform legal collections, so too was it
repeated in another legal collection, that is, the Covenant Code.
The mode of analysis used to answer this question has been comparative,
and it is clear that the comparative method is useful if used judiciously. It

2 Am´ lie
e Kuhrt, The Ancient Near East (Routledge History of the Ancient World; London:
Routledge, 1995), 614“616.
3 J. J. Finkelstein, “On Some Recent Studies in Cuneiform Law,” JAOS 90 (1970), 253,

esp. n. 46.

throws the characteristics of each society into sharper relief. At the same time,
it highlights the links between societies, while acknowledging the differing
contours of each. It shows that even when certain aspects of one culture™s
law are transplanted from another culture, they may appear differently be-
cause when a legal institution or statute takes root in alien soil, it acquires
native characteristics. What is so striking about the biblical adjudication of
homicide is that in two cases it parallels cuneiform law and yet is otherwise
so different. Biblical law incorporated a few elements from nonbiblical law
and yet produced so much that was not dependent at all.
This study has shown that the analysis of narrative texts in the Bible
that touch on law is essential to the study of biblical law because narrative
texts manifest critical aspects of the law not incorporated in legal texts. For
example, although biblical texts agree that only killing by direct action is
subject to legal review, individuals might be held ethically responsible for
causing a death indirectly. This is re¬‚ected only in narrative texts, and we
would not be aware of it were it not for them. Literature is a lamp onto the
law. Biblical narrative illuminates what happens in the interstices of the law.
It does not portray a world in which the law is carried out as prescribed and
whose goals are accomplished perfectly, but focuses on the imperfections
and tensions. Narrative texts cannot be analyzed innocently. The genre of
narrative shapes and selects what it represents.
This is no less true for other genres. Each of the cuneiform records of
actual cases fails to contain the complete spectrum of elements that could
have been utilized in a trial. Thorkild Jacobsen argues that the absence of
a detailed establishment of the facts of the case in the Nippur Murder Trial
through the testimony of witnesses, the killer™s confession, the taking of
oaths, or the like, in contrast to the contents of a civil trial record, signi¬ed
that such an establishment did not take place.4 Simply because they are
absent from the tablet, according to Jacobsen, they did not occur. Rather,
the Nippur Murder Trial was part of a procedural tradition in which the facts
and guilt of the accused were taken for granted by the community, which
had been aroused to punish the offender in the emotionally highly charged
situation of lynch justice. In effect, the Assembly of Nippur was to render
its verdict on the basis of its members™ personal convictions, rather than on
facts proven in court. In Jacobsen™s view, the facts of the case were already
determined by the king, who in turn dispatched the case to the Assembly
so that it could act out its part in this tradition. Jacobsen reconstructs this
criminal procedural tradition by recourse to a number of Mesopotamian
myths that recount the way criminals, albeit not murderers, were convicted
and punished. To him, this use of myth is attractive because myths can
preserve remembrances of social conditions of greater antiquity than other

4 Jacobsen, “An Ancient Mesopotamian Trial for Homicide,” 204“205.

However, in my opinion, reading this tradition of lynch justice into the
record of the Nippur Murder Trial is a narrow way of reading, especially in
light of the brevity of the other homicide records. These other records also
omit elements indispensable to the adjudication of homicide. The absences
are different in different documents. For example, the Nippur Murder Trial
records the statements of the members of the Assembly of Nippur. They
formally identify the accused and propose capital punishment as the rem-
edy. A question about the culpability of the victim™s wife arises from two
members of the Assembly and is answered. There is no mention of a for-
mal accusation or the presence of witnesses: The document only records
the points of discussion of the Assembly of Nippur. However, in the ¬rst
homicide case recorded in NSG 202, the widow makes the accusation. The
accused produced witnesses to prove that he was innocent, but the details
of their testimony are not recorded. Unlike the Nippur Murder Trial, the
court™s discussion is truncated. Does this mean that the court did not ex-
plain its ruling or question witnesses simply because it is not mentioned?
The nature of these documents is such that only the contested matters are
put down in writing. In the second case in NSG 202, the fact that Kali killed
Guzani is mentioned. No indication of whether it was ascertained through
the testimony of witnesses or the killer™s confession is made. The document
contains a quotation of Kali™s protestation that he killed in self-defense and
notes that he proved that an argument had occurred. The manner in which he
offered proof is not included. An oath is considered suf¬cient to resolve the
dispute in CT 29 42. The fact that these documents are not exact transcripts
means that the reconstruction of the proceedings must be full of lacunae.
The absence of a detailed establishment of the facts of the case through the
testimony of witnesses, the killer™s confession, the taking of oaths, or the like
does not mean that they did not occur. The cuneiform law collections omit
information on procedure and on distinguishing between intentional and
unintentional homicide, as well as referring to odd cases. Genre, whether of
legal record or law collection, shapes what is depicted as the adjudication of
This study focuses on a single type of offense, but its ¬ndings have
rami¬cations for the analysis of other offenses. If biblical law on homi-
cide is so different from cuneiform law except for a few cases, it would be
worth investigating whether biblical and cuneiform law on other offenses ex-
hibit the same relationship. The international documents demonstrate that
while there is a general assumption that homicide is wrong, not much else
regarding the remedy of homicide is shared in the ancient Near East. If
there is so little shared with regard to a heinous offense like homicide, it
would be doubtful that assumptions about other offenses would be possi-
ble. The exception to this would probably be in the realm of contract and
economic law, where international trade would require a common basis to

Cuneiform Sources on Homicide

1. The Reform of UruKAgina
PUBLICATION: Ukg. 4 xii 13“22 ( = Ukg. 5 xi 20“29) = H. Steible and H.
Behrens, Die Altsumerischen Bau- und Weihinschriften (Stuttgart: Franz
Steiner, 1991).
form of UruKAgina and an Early Sumerian Term for ˜Prison,™” AuOr 9
(1991), 227“233.


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( 55 .)