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well. MAL A 10 reserves the right of the claimant from the victim™s family
to choose between killing the slayer or forcing him to pay.19

MAL A 10
[If either] a man or a woman enters [another man™s] house and kills
[either a man] or a woman, [they shall hand over] the killers [to the
head of the household]. If he chooses, he shall kill them, or if he
chooses to come to an accommodation, he shall take [their property].
And if there is [nothing of value to give from the house] of the killers,
either a son [or a daughter] . . .

The family™s right is the basis of another statute, B 2:

MAL B 2
If a man who has not yet received his share of the inheritance
takes a life, they shall hand him over to the next of kin.20 Should
the next of kin so choose, he shall kill him, or if he chooses to
come to an accommodation, then he shall take his share of the
inheritance.

The role of the claimant from the victim™s family here is to decide on the
penalty. In general, it appears, families had the right to either execution or
compensation; the legal institutions of a particular society were required
to preserve the rights of the family to choose. This is to be distinguished
from the role of the avenger in a feud, where the avenger has the right and
responsibility to take the initiative and kill the slayer on sight. In MAL A
10, other individuals have arrested the slayer and have handed him over
to the victim™s family. In Mesopotamia, the victim™s family did not shoul-
der the burden of remedying the homicide but could participate in aspects
of the case. The actions of the victim™s family did not have to ensure that the
slaying was punished.21

19 If the original penalty was execution that could be mitigated to compensation, it might be
expected that the killer would lose all rights that he would normally enjoy in life at the moment
of conviction. Indeed, MAL B 2 addresses the right of an heir convicted of murder before taking
possession of the inheritance. However, his rights are not curtailed because of his conviction.
If he does remain alive because the victim™s kinsman decides not to kill him, he is entitled to
receive his share of the inheritance.
20 Literally, “the owner of life.”
21 The Edict of Telepinus 49 is a special case: Although it preserves the right of the claimant

from the victim™s family to choose between killing the slayer or forcing him to pay, it applies
only within the royal family. It is a mid-seventeenth-century text, sketching the state of affairs
of the royal household at the time of Telepinus™s accession. It emphasizes that the prosperity of
the country and royal family depends directly upon harmony within the royal family. Above
all, assassination of the royal princes by other members of the royal household must cease. (Cf.
Edgar H. Sturtevant and George Bechtel, A Hittite Chrestomathy [William Dwight Whitney
32 HOMICIDE IN THE BIBLICAL WORLD


The difference in family responsibility results in a striking contrast be-
tween the Mesopotamian and biblical materials in regard to certain technical
terms for the parties involved in remedying the homicide. The Bible™s term,
!dh lag, refers to a relative of the victim, who avenges the killing, whereas
the Mesopotamian documents refer to b¯ l damˆ , a term that can refer either
e e
to the slayer or to the claimant from the victim™s family.22 The fact that the
term b¯ l damˆ , “the owner of the blood,” is used to refer to both re¬‚ects
e e
the shared responsibility manifest in the Mesopotamian process, where both
parties had to participate, the party making the claim and the party obli-
gated to discharge the claim. The biblical process, by contrast, focused on
the claimant from the victim™s family.
As we have seen, biblical law on homicide was based on blood feud,
whereas Mesopotamian law was not. This difference between biblical law
and Mesopotamian law has direct rami¬cations for the types of institutions
involved. Because there was no blood feud and no blood avenger, cities of
refuge were unnecessary and did not exist in Mesopotamia; they were an
essential part of the process where feud was in effect, that is, in the Hebrew
Bible.
For the same reason, the role of the monarchy and central government is
different in Mesopotamian texts and the Bible. In the Hebrew Bible, their role
is limited. Exod 21:12“14, Lev 24:10“23, Num 35:9“34, and Deut 19:1“13
and 21:1“9 do not portray any involvement by a central administration or
the monarchy. The only reference to a central government is found in Deut
17:8“10, where a local court could appeal to the Levitical priests and the
judge at the central sanctuary for clari¬cation of the law in a dif¬cult case;
the facts of the case were then remanded to a lower court. As to the role
of the king himself, only the narrative of 2 Sam 14:1“17 indicates that the
king could overturn the law.23 However, the king is portrayed as hesitant

Linguistic Series; Philadelphia: Linguistic Society of America, 1935], 200; Inge Hoffmann, Der
¨
Erlass Telipinus [Heidelberg: Carl Winter/Universitatsverlag, 1984], 52“53.)
27/19 iˇ -ha-na-aˇ -ˇ a! ut-tar ki-iˇ -ˇ a-an ku-iˇ e-eˇ -har i-e-iz-zi nu ku-it e-eˇ -ha-na-aˇ -
s ss ss s s s s
˜ iˇ -ha-a-aˇ te-iz-zi tak-ku te-iz-zi a-ku-ua-ra-aˇ na-aˇ a-ku tak-ku te-iz-zi-ma
˜ ˜
´ ´ ´
pat 28/20 s s s s
˜
˜
ˇ ˇ
29/21 sar-ni-ik-du-ua nu sar-ni-ik-du LUGAL-i-ma-pa li-e ku-it-ki
˜

And a case of murder is as follows. Whoever commits murder, whatever the heir himself
of the murdered man says [will be done]. If he says: “Let him die,” he shall die; but if
he says: “Let him pay compensation,” he shall pay compensation. But to the king, he
shall not pay compensation.
The Edict of Telepinus assumes a court process in which the victim™s heir is called upon to decide
the penalty which others carry out.
22 Cf. the second appendix to this chapter.
23 In general in the Pentateuch, the role of the king is ignored. While this might tell us more

about the Pentateuch than legal procedures, even in Deuteronomy, the one Pentateuchal text
that acknowledges the monarchy, the king™s role in the legal process is submerged. The limited
role of the king in adjudicating cases is re¬‚ected in texts throughout the Hebrew Bible. First, 2
33
BLOOD FEUD AND STATE CONTROL


as to whether he ought to become involved. The wise woman presents her
case, King David equivocates, and the wise woman presses him to clarify his
ruling:

4
The Tekoite woman spoke to the king: she ¬‚ung her face to the
ground and prostrated herself, and she said, “Help, O king.” 5 The
king said to her, “What is the matter with you?” and she said, “Alas,
I am a widow, my husband is dead. 6 Your maidservant had two
sons. The two of them fought in the ¬eld where there was no one
to intervene, and one of them struck down the other and killed him.
7
The entire family has now come to your maidservant and said, ˜Give
up the one who killed his brother that we may put him to death for
his brother, whom he killed, even though we kill the heir.™ They will
extinguish my last ember, without leaving my husband a name or
remnant upon the earth.” 8 The king said to the woman, “Go home.
I will issue an order for you.” 9 The Tekoite woman said to the king,
“My lord king, may the sin be upon me and my father™s house: the
king and his throne are innocent.” 10 The king said, “If anyone says
anything to you, bring him to me, and he will not trouble you any
more.” 11 She said, “May the king remember the Lord your God
and restrain the blood avenger from destroying so that my son not
be killed.” The king said, “As the Lord lives, not a hair of your son
shall fall to the ground.”

The widow herself admits that the king bears no responsibility: He is inno-
cent, yqn “ the clan has the responsibility “ but the grieving mother argues
that clan retaliation would be excessive because it would destroy not only
the remaining son but also the paternal line.24


Sam 14:1“17, where, as we saw, the king does play a role, has, in fact, been identi¬ed as part of
the Succession Narrative, a product of a court historian during Solomon™s reign that was reused
by the D circle of writers. A product of the royal court would most likely exaggerate the king™s
role, not reduce it. Second, the Chronicler™s History, an alternate history to the Deuteronomistic
history, presents Jehoshaphat as reorganizing the legal system but not taking part in its day-to-
day operations (2 Chr 19:5“11).
A distinction must be drawn between the ideal of the king as the one who assures justice and
the reality of the king™s role: There is no evidence that the king acted as a court of last resort
(Keith Whitelam, The Just King: Monarchical Judicial Authority in Ancient Israel [JSOTSup 12;
Shef¬eld: JSOT Press, 1979], 29“37, 197“206, 219“220). The rise of the monarchy, according
to Whitelam, gave rise to new legal realms, such as the royal estate and crown of¬cials, which
were outside the already established judicial system of the local communities.
24 Levine, Numbers 21“36, 564“565, argues that the slaying was not premeditated and therefore

the son should not be executed. This is contradicated by the wise woman™s own argument in v.
7b: She assumes that her remaining son deserves to die because of his actions and, therefore,
argues for his life based on other factors.
34 HOMICIDE IN THE BIBLICAL WORLD


The king intervened rarely and with great reluctance into the administra-
tion of justice.25 At the same time, it is true that the reform of Jehoshaphat
in 2 Chr 19:5“11 depicts royal appointment of jurists in a judicial system
in which the heads of the ancestral houses, Levites, and priests constitute a
central court, while local court of¬cials have jurisdiction in local courts.26
Although it is unclear whether royal appointment in local courts means that
locals or outsiders acted as judges, it does mean that the local community
did not on its own establish a court. Texts from Deuteronomy, however, con-
tradict the Chronicles text.27 Deut 16:18“20 does not give the king the right
to appoint judges but stipulates that local governments appoint judges. Deut
17:8“10 stipulates that the local court may appeal to the central court for
a clari¬cation of the law, but the local court retains the authority to decide
the facts and the case.
The contradictions between Deuteronomy and Chronicles can be easily
resolved. First, it should be noted that Jehoshaphat™s reform is not found
in the books of Kings and, therefore, it originates in a source that belongs
only to the author/compiler of Chronicles. The question then becomes how
did the Chronicler obtain this information. The key is to observe that in
Chronicles, an event in a monarch™s reign is connected to the meaning of his
name. Jehoshaphat and judicial reform are linked because of Jehoshaphat™s
name, which means “the Lord judges” and contains the root f-p-`, “to
judge.” A similar link is made in Chronicles between Asa and seeking the
help of physicians because the root of Asa™s name in Aramaic, y-s-a, means “to
heal” (2 Chr 16:12). Jehoshaphat™s reform, with its greater centralization, is
in consonance with the structure of the province of Judea in the early Second
Temple period. The books of Ezra and Nehemiah purport the establishment
of indigenous Jewish law by means of an authority sitting in Jerusalem (Ezra
7:25). At the same time, Ezra and Nehemiah have a great interest in records
of ancestral lines, attesting to the continued importance of ancestral houses

25 The king had limited control over his own administration. David executes the men who killed

Ish-boshet, Saul™s heir and David™s rival (2 Sam 4:5“12), but his own military chief, Joab, is too
powerful for him to do more than admonish him (2 Sam 3:39). Joab™s punishment must wait
until Solomon™s reign (1 Kgs 2:5, 28“34).
26 Robert R. Wilson, “Enforcing the Covenant: The Mechanisms of Judicial Authority in Early

Israel,” in The Quest for the Kingdom of God: Studies in Honor of George E. Mendenhall (ed.
H. B. Huffmon, F. A. Spina, and A. R. W. Green; Winona Lake, Indiana: Eisenbrauns, 1983),
61.
27 W. F. Albright argues that the Chronicles account is historically accurate in depicting the

judicial system in the late monarchy and that the differences between the Deuteronomy texts on
the judicial system and the Chronicles account of Jehoshaphat are negligible, that all these texts
are describing what is essentially the same system (“The Judicial Reform of Jehoshaphat,” in
Alexander Marx Jubilee Volume [New York: The Jewish Theological Seminary, 1950], 61“82).
Recent scholarship has reevaluated Albright™s position. Cf. Whitelam, The Just King, 185“206;
Wilson, “Israel™s Judicial System in the Preexilic Period,” 243“245, and Sara Japhet, I & II
Chronicles: A Commentary (OTL; Louisville, Kentucky: Westminster/John Knox Press, 1993),
770“779.
35
BLOOD FEUD AND STATE CONTROL


(Ezra 8; Neh 7). This, too, is part of Jehoshaphat™s reform, with the heads of
the ancestral houses serving as part of the central court. It appears, then, that
Jehoshaphat™s reform re¬‚ects an early Second Temple setting. Deuteronomy
represents a First Temple situation, one of less centralization and greater
local control.
It seems clear, therefore, that a great deal of legal authority remained
in the local community throughout the First Temple period. Justice was
administered generally at the local level. Justice, however, could be sought
directly from the monarchy both in the southern kingdom (2 Sam 15:2“
5; 1 Kings 3) and in the northern kingdom (2 Kgs 8:3, 5). The king did
possess a jurisdiction that coincided with that of the local community. The
monarchy did not replace a system of local justice but actually helped in
keeping the system alive, as we have seen in the case of the wise woman from
Tekoa, by remedying abuses, albeit inconsistently.28 There were reservations
about appealing to a nonlocal authority. In the Elisha cycle, for example, the
Shunammite woman is asked by Elisha whether he should approach the king
or army commander to intervene on her behalf. The woman refuses, stating
that she lives among her own people, implying that her kinsmen would take
care of her (2 Kgs 4:13).29 Furthermore, it should be noted as well that the
role of the king in the system of justice is something that would not have
been known except for the evidence of literary texts: Legal texts do not posit
any role for the monarch. Literary texts re¬‚ect the ¬‚aws in the system that
the monarch must correct.
The persistence of a local or community-based system of justice can be
seen in the role of elders as administrators of justice, as well as in the threat of
the blood avenger on the killer™s life. The elders judge whether the accused is
guilty of intentional or accidental homicide. Furthermore, the statute in Deut
19:1“13 is framed in terms of towns, not tribes, not larger administrative
units, even though Deuteronomy dates from a time of urbanization.30 At
the same time, Deuteronomic statutes also recognize a court of judges in
place of elders, as well as a judicial role for priests.31 Deuteronomy appears,
thus, to recognize three systems of rendering judgments, those of the elders,
judges, and priests, operating simultaneously.32 The precise jurisdiction of
each is dif¬cult to de¬ne. It is clear, though, that in cases where the law was


28 Cf. McKeating, “The Development of the Law on Homicide,” 52.
29 Ze™ev Weisman, “The Place of the People in the Making of Law and Judgment,” in
Pomegranates and Golden Bells: Studies in Biblical, Jewish, and Near Eastern Ritual, Law,
and Literature in Honor of Jacob Milgrom (ed. David P. Wright, David Noel Freedman, and
Avi Hurvitz; Winona Lake, Indiana: Eisenbrauns, 1995), 420.
30 On the urbanization of this period, see Gabriel Barkay, “The Iron Age II“III,” in The Archae-

ology of Ancient Israel (ed. Amnon Ben-Tor; trans. R. Greenberg; New Haven, Connecticut:
Yale University Press, 1992), 329.
31 See Deut 19:17“18.
32 Roland de Vaux, Ancient Israel (New York: McGraw-Hill, 1961), 1.153.
36 HOMICIDE IN THE BIBLICAL WORLD


in need of clari¬cation, the elders or local judges could ask a central court
in Jerusalem for aid (Deut 17:8“13).33

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