Biblical and Cuneiform Law Codes

BIBLICAL AND CUNEIFORM LAW CODES
Author(s): Raymond Westbrook

Source: Revue Biblique (1946-) , AVRIL 1985, Vol. 92, No. 2 (AVRIL 1985), pp. 247-264
Published by: Peeters Publishers
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RB. 1985 -T. 92-2 (pp. 247-264).
BIBLICAL AND CUNEIFORM LAW CODES
Sommaire
Get article examine la nature et le but des soi-disant « codes de lois »

du Moyen-Orient Ancien. Il conclut qu'ils s'enracinent dans la tradition
scientifique des scribes, mais cependant avec un but pratique : servir de
guide aux juges royaux dans les cas difficiles.
Summary
This article examines the nature and purpose of the so-called "low-
codes" of the Ancient Near East. It concludes that they formed part of a
common scientific tradition, which nonetheless had a practical purpose, as
a guide to royal judges in difficult cases.
1. - The Law Codes
A particular genre of Ancient Near Eastern literatu

so-called "law code", To date, nine separately identif
codes have come down to us, in whole or part. Seven of
in the form of cuneiform documents:1 Codex Ur-Nam
Codex Lipit-Ishtar ( CL ), Codex Eshnunna (CE), Codex
abi (CH), the Assyrian Laws (AL), the Hittite Laws
the neo-Babylonian Laws (NBL). The other two are to
in the Bible, Ex. xxi, 1 - xxii, 16 is part of the Coven
1 There are also various fragments too small to be of use in this discu
that the so-called "Sumerian Family Laws" in ana iltišu are not normativ
at all, but contractual formulae (ed. B. Landsberger, MSL I, Rome 193
excluded are the "Sumerian Laws" of YBC 2177. As J. J. Finkelstein
they are a scribal exercise executed by a student, which combines various
and contractual formulae with normative provisions (ANET, p. 525). T
of material are never combined elsewhere: there is a strict separation b
between the lexicographical tradition as exemplified by ana ittišu and
tradition.

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248 R. WESTBROOK
and has long been recognized as

in Deuteronomy the remains of
legal source can be discerned,
spite of being heavily re-wor
interspersed with a great deal
material. 3
All nine codes are remarkably similar both in form and content,
They are predominantly formulated in a casuistic style (albeit
in varying degrees), that is to say, a particular set of
circumstances is given, followed by the legal ruling appropriate
to that case, 4 The subject matter is problems of practical law:
in many cases the same or related problems are considered by
different codes, and in some cases whole paragraphs have been
copied by one code from another. 5
This similarity is evidence at least of a common type of intellec-
tual activity. The purpose of this study is to examine whether this
factor can help to explain the nature and purpose of these "codes".
2. - The Law Code as a Royal Apologia?
Our starting point is the classical (and most complet

of the genre, Codex Hammurabi. It has long been reco
the term "code" as applied to it by Scheil in the edi
is a misnomer; CH lacks the comprehensiveness that w
it a law code in the same sense as the Code Napoleon,
Thus, G. R. Driver and J.C. Miles wrote:
"The Laws must not be regarded as a code or dige
series of amendments to the common law of Baby
statement expanded a few pages later to: "a series of
and restatements of parts of the law in force..." 7 Th
2 See e.g. O. Eissfeldt, Einleitung in das Alle Testament (3rd ed.), Tübingen,
1964, pp. 33-37.
8 The Priestly Code in Leviticus and Numbers has for the most part a different
subject-matter from the two Biblical codes mentioned or the cuneiform codes. It is
more aptly compared with cuneiform series concerning priestly functions such as
Šurpu. See M. J. Geller, The Šurpu incantations and Lev. v. 1-5 , in JSSt , XXV,
1980, pp. 181-192.
4 The casuistic style is usually introduced by a conditional beginning "If...",
but other forms are possible. See R. Yaron, " Forms in the Laws of Eshnunna ," in
RIDA. IX, 1962, pp. 137-153.
5 E.g. GL 29 and GH 160, GE 53 and Ex. xxi, 35.
8 The Babulonian Laws. Oxford. 1952, Vol. I, p. 41.
7 Op. cit. j p. 45.

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BIBLICAL AND CUNEIFORM LAW CODES 249
doubt in the learned authors' minds, however, that the

ing with a source of positive law, any more than there
the earlier commentaries of D. H. Müller 8 or P. Koschaker. 9
Doubts on this point were expressed by B. Landsberger, who
pointed out that Codex Hammurabi is never cited as authority
in judgments, nor does it state that the judges must in future
decide according to these laws. 10 Since Landsberger's article two
cases have been found which appear to refer to the text of a narum ,
but they are too obscure to resolve the question of practical
application. 11
These doubts were taken up by J. J. Finkelstein in an entirely
new approach to the problem. 12 Finkelstein pointed out, firstly,
that Codex Hammurabi could not have been compiled except in
the last years of Hammurabi's reign, after he had accomplished
all of the conquests enumerated in his prologue, and secondly,
that the Code concluded with an epilogue addressed primarily to
posterity, especially to future kings. 13 He concluded that the Code's
purpose was not legislative at all. It was representative of a
literary genre, namely the royal apologia , and its primary purpose
was to lay before the public, posterity, future kings, and, above all,
the gods, evidence of the king's execution of his divinely ordained
mandate: to have been "the Faithful Shepherd" and the sãr
mīšarim . 14
Finkelstein applied his theory to two earlier law codes, Codex
Ur-Nammu and Codex Lipit-Ishtar, both of which had prologues
and epilogues in the same spirit, and concluded that Hammurabi
was following a traditional genre of royal inscription. Our question
is whether this understanding of Codex Hammurabi can be used to
explain the general phenomenon of law codes in the Ancient Near
East: was there a literary, rather than legal, tradition shared by
the monarchs of that region?
8 Die Gesetze Hammurabis, Wien, 1903.

9 Rechisver gleichende Studien zur Gesetzgebung Hammurapis , Leipzig, 1917.
10 Die Babylonischen Termini für Gesetz und Recht , in SDIOP, II, pp. 221-222.
On the meaning of simdat šarrim, see now M. de J. Ellis, in JCS, XXIV, 1972, pp. 74-
82.
11 Cited by F. R. Kraus, Ein Zentrales Problem des Altmesopotamischen Hechtes:
Was ist der Codex Hammurabi ?, in Genavaf VIII, p. 292.
12 Ammi-Saduqa's Edict and the Babylonian " Law Codes ", in JCSf XV, 1961,
pp. 91-104.
13 Od. cit.. d. 101.
14 Op. cit., p. 103.

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250 R. WESTBROOK
The answer must be in the ne

which are vital to the purpose o
in the cuneiform codes later th
also in Codex Eshnunna (which
possess copies of these codes th
version of the text, and not an
of the Neo-Babylonian Laws), t
omitted the prologue and epi
therefore agree with S. Paul i
literary pattern was not cont
indeed it existed at all outside t
sphere represented by the thr
it. 16 Paul does claim to see in
of the Covenant the same tripar
a prologue-epilogue frame 17, b
literary context too different
counterparts to allow any mean
purpose of the framework be
Mesopotamian codes: by no st
chapters following the legal c
Exodus and Deuteronomy be de
giver; there is therefore no evi
context that the codes originat
alternative, it is suggested that
on that of the Mesopotamian
faced that there exist other models for the Biblical version to
copy, in particular Ancient Near Eastern treaties. 18
If the activity of writing law-codes could be engaged in without
the addition of a prologue and epilogue to the legal corpus, it
suggests that a royal apologia was not the primary purpose in the
composition of the latter. This is confirmed by the remarkable
dichotomy in style between the Mesopotamian codes' prologues and
epilogues and their central legal corpus. It has even been sug-
gested 19 that they were formulated by two different sets of
15 A date-formula appears to precede the laws. The end of both extant copies i
not preserved.
M Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Lawf
Leiden, 1970, p. 11 n. 5.
17 Op. cit.. pp. 27-36.
18 See M. Weinfeld, Deuteronomy and the Deuteronomic School , Oxford, 1972
pp. 146-157.
" J. Klima, Gesetze , in Reallexikon der Assyriologie} p. 244.

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authors: the legal corpus by jurists and the prologue

by Temple or Court poets. It seems to us evidence ra
legal corpus already existed as an independent unit w
pendant purpose and was sometimes inserted into a f
Codex Hammurabi, in order to be applied to a new pu
of the royal apologia. This is a recognized process in t
Biblical codes, which were inserted into a religio
framework .20
3. - The Law Codes as a Scribal Exercise?
The nature and purpose of the central legal corpus is

of the theory proposed by F. R. Kraus in respect of Codex
Hammurabi .21 Kraus begins with Hammurabi's own definition of
his laws: dīnāt mīšarim 22, which he translates " gerechte Richter-
sprüche " (just judicial decisions). 23 The legal corpus is therefore
prima facie a list of the king's decisions in his capacity as a judge. 24
Closer examination, however, reveals that by no means all the
"judgments" recorded in the Code are real. They are organized
in groups wherein a single case is expanded by logical extrapolation,
ie. various theoretical alternatives are considered and the appro-
priate solution given by a priori reasoning. 25 For example, para-
graphs 229-231 read:
229. If a mason builds a house for a man and does not reinforce his work
and the house that he built collapses and kills the owner of the house
that mason shall be killed.
230. If it kills a child of the householder, they shall kill a child of that
mason.
231. If it kills a slave of the householder, he shall give slave for slave to
the householder.
Similar gradation of penalties occurs elsewhere in the Cod

in paragraphs 209-11, for example. We are therefore in the pres
20 Op. cit., note 18 above, pp. 283-296.

21 Op. cil., n. 11 above.
22 Col. xxiv, Rev. 1-2.
23 Op. cit., p. 285. First proposed by B. Landsberger, op. cit.} note 10 above, p. 223.
24 Although they translated the phrase "just laws" (op. cit.y Vol. II, p. 95), Driver
and Miles in fact noted that these laws resembled English case-laws rather than
statute (op. cit.. Vol. I. p. 52).
" Op. cit.f p. 289. In other passages, the composition of the Code is more compl
although the same principle obtains: See R. Westbrook and C. Wilcke, AFO , XX
1974-1977, pp. 111-121.

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252 R. WESTBROOK
of a type of academic method.

a seemingly unrelated group of
example, in the omen series šum
5. If a woman gives birth, and the
small, the house of the man will be scattered.
6. If a woman gives birth, and the left ear (of the child) is (abnormally)
small, the house of the man will expand.
7. If a woman gives birth, and both ears (of the child) are (abnormally)
small, the house of the man will become poor.
The connection, according to Kraus, is that the law codes and omen
collections are both representative of a particular type of literature,
namely scientific treatises. Divination was regarded as a science by
the Mesopotamians and the compiling of omens the equivalent of
scientific research. By the same token, the casuistic style in
which both texts are couched was the "scientific" style par
exellence - transferring the concrete individual case to the sphere
of the impersonal rule. 27
This scientific activity is the work of the scribes, and takes place
in the scribal schools. Codex Hammurabi itself exists in the form
of school copies already in the Old Babylonian period. It borrows
extensively, often verbatim, from the text of the earlier codes of
Ur-Nammu and Lipit-Ishtar (as one would expect if it were a
literary genre), which in turn exist in the form of Old Babylonian
school copies. Likewise, both extant copies of Codex Eshnunna
are school texts. 28 In Kraus' view, therefore, it is Hammurabi the
scribe rather than the judge who is represented by the legal corpus
of his code. It is a work of theoretical literature designed to illustrate
his wisdom - "wise" (emqum) being a typical epithet of the
scribe) 29
The notion of the law-codes as an activity of the scribal schools
provides a ready explanation for their appearance among the
Hittites, in Assyria, and as far afield as Israel. Cuneiform scribal
schools existed throughout the Ancient Near East in the second
26 Tablet III, 5-7. E. Leichty, The Omen Series Šumma Izbu , TCS, IV, New York,
1970, p. 54.
27 Op. cit ., pp. 288-290. The same argument is made by J. Bottero, Le "Code" de
Hammurabi , in Annali della Scuola Normale Superiore di Pisa , XII, 1982, pp. 409-44
at pp. 426-435, using the example of the medical texts, another form of scientific
treatise. Bottéro points out that Babylonian science sought to achieve exhaustive
treatment of a subject by listing examples not only of the commonly observed and
the exceptional, but also of the possible.
" Op. cit., pp. 293-4.
" Op. cit., p. 290.

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millenium, including the cities of Canaan prior

conquest. 30 They were not merely places for learning
script; such schools were the universities of the An
where the cultural and literary inheritance, both B
local, was preserved and developed. Codex Hamm
continued to be copied and re-copied in scribal s
Babylonia and elsewhere for more than a milleni
promulgation. 31 It would be no surprise, therefore,
codes compiled from the local law by Canaanite or
who were inspired by contact with Hammurabi's m
Attractive as this picture is, in our view it requir
in one important respect: Kraus' basic assumption th
tual activity of collecting legal decisions, expanding
addition of logical variants and formulating the
style resulted in a work of pure science, a monu
wisdom and no more. 32 Our reasons for questionin
tion emerge from a closer examination of the p
by Kraus himself - the omen series.
4. - Law Codes and Omen Series: Practical Application
The omen series were compiled for a very practical p

be used as reference works by diviners when they soug
mine the significance of an ominous feature (as in e
event. For example, if a lamb were born with but a sin
the diviner (bāru) would consult the series dealing w
births, summa izbu , select and excerpt the pertinent omen
pare a report. Then, if necessary, an appropriate ritual
performed in order to expiate the evil effects of a b
Presumably the report would usually be presented oral
the library of Assurbanipal have been preserved a number o
reports from diviners to an Assyrian king, upon w
knowledge of this procedure is based. 33 The devine
80 See H. Tadmor, A lexicographical Text from Hazor, in IEJ , 27, 1977,

81 See J. Laessoe, in JCS , IV, 1950, pp. 180-182; J. Nougayrol, in CRAI , 1951,
pp. 42-47, JA, 1957, pp. 339-366, JA , 1958, pp. 143-155; J. J. Finkelstein, in JCS,
XXI, 1967, pp. 39-48, RA, LXIII, 1969, pp. 11-27.
82 To be fair, Kraus does hint at their possible use "...gibt es ein Handbuch, so greift
man zu ihm" (op. cit., p. 290), but no specific application is suggested.
88 E. Leichty, op. cit., note 26 above, pp. 7-11. For reports based on excerpts from
an astronomical omen series, see S. Parpóla, AO AT, V/I, Nos. 324-326.

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254 R. WESTBROOK
directly cite the name of th

would differentiate his source
from different tablets of the
opposite sides of the tablets. 84
of omen series as far back as
activity of compiling the lists o
was therefore not merely a scr
We suggest that the compilin
served a similar purpose. They
tion by judges when deciding
tion of most of the law codes w
that it was the king as judge, o
lists were intended to serve. T
would be called upon to decide
therefore be most in need of
There is no direct evidence from cuneiform sources for the consul-
tation of law codes as there is for the omen series. 37 This is not a
decisive consideration, nor even surprising, for three reasons.
Firstly, the selection of cuneiform sources available to us is notori-
ously arbitrary, depending on the fortunes of the archaeologist's
spade, and argument from silence is therefore inappropriate-
Secondly, the interpretation of omens played a far more important
and common role in Mesopotamia than did law-suits. The king
consulted diviners because, like the rest of his subjects and perhaps
more so, he was a potential victim of the divine judgment signified
by the omens, he needed the advice of the diviners before
undertaking any significant act, and irrespective of his own initia-
tive whenever a natural phenomenon of ominous portent occurred.
On the other hand, the king was never party to a law-suit, only
the judge in a restricted number of cases, and his need for consulta-
34 Leichty, op. cit., p. 8.

35 Leichty, op. cit., pp. 7-8 citing an Old Babylonian letter.
8* On the role of the royal courts as a final court of appeal in difficult cases, see
M. Weinfeld, Judge and Officer in Ancient Israel and in the Ancient Near East , in
Israel Oriental Studies , VII, 1977, pp. 65-76; W. F. Leemans, King Hammurapi as
Judge , in Symbolae David , Vol. II, Leiden, 1968, pp. 107-129.
97 See note 11 above. An express, if later reference to the use of a law code by royal
judges is found in a land which so far has yielded no law codes, namely Egypt. Accord-
ing to the Greek Historian Diodorus Siculus (I 75 (6)), at a trial in Egypt all the laws
lay before the judges, written down in eight books. E. Seidl claims that this account
is confirmed by a picture in the tomb of Rekhmireh, a vizier of the eighteenth dynasty,
which shows the vizier sitting in judgment with forty leather scrolls before him ( Ein-
führung in die Aegyplische Rechts geschickte, Gluckstadt, 1957, p. 19).

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tion of legal precedents, whether personnally or thr

would be much more circumscribed. Inevitably, th
recorded omens would be far greater than that of leg
and in fact in the library of Assurbanípal omen seri
far the largest category of texts. 88 This in turn wou
chances of finding material evidence of their applica
there is the question of oral and written procedure. D
for the consultation of omen series exists only for a
of time covering two neo-Assyrian kings, 39 and on
fortuitous circumstance that the diviners in question
the palace, so that consultation was by letter. 40 It w
equally unusual circumstances for consultation of leg
works during or at the conclusion of a trial to be by
orally.
The cuneiform sources do, however, provide some indirect
evidence of the use of law-codes that we have postulated. Firstly,
there is the archaeological evidence concerning the Assyrian Laws.
This vast collection, originally numbering 14 tablets, is, as we
have noted, not a royal inscription. Nor is it a school text. Most of
the tablets recovered were found in a gate-house identified as the
"Gate of Shamash", which is the normal location of the court-
house in Mesopotamia (Shamash being the god of Justice), and
already E. Weidner refered to them for this reason as a legal
library for judges. 41
Secondly, there is the nature of the Hittite Laws. These are
likewise neither a royal inscription nor a school tablet. They are
part of the royal archives, but more interesting than their location
is the historical development that they betray. The collection was
recopied over several centuries, and the later copies still retain some
archaic language. 42 On the other hand, there is evidence of an
updating not only of language 43 but also of the substantive law.
In some cases this is implied and in others in the form of an express
88 The omen series šumma izbu alone, as preserved in the library of Assurbanípal
contains more than two thousand omens, arranged in a series of twenty-four tablets
Leichty, op. cit., p. 2.
39 S. Parpóla, Letters from Assyrian Scholars to the Kings hsarhaddon ana Assur-
banípal. AO A T. V/2, 1983, p. xvii.
40 Leichty, op. cit.f pp. 9-10.
41 Das Alter der mittelassyrischen Gesetztexte , in AFO , XII, 1937, pp. 46-54.
48 A. Goetze, Kleinasien (2nd ed.), München, 1957, pp. 110-111.
48 See H. Hoffner, The Old Hittite Version of Laws 164-66 in JCS , XXXIII,
pp. 206-209.

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256 R. WESTBROOK
reference to an amendment. 4
version (KBo VI 4) substitut
principal text. Regular chang
in the law would not have bee
academic, 45 as a comparison
Hammurabi shows.
As we have seen, Codex Hammurabi continued to be copied for
more than a millenium after its promulgation, both within and
outside of Babylonia. The copies are remarkably faithful to the
orignal; certainly no changes whatsoever were made to the
substantive law. The reason is that it became a piece of canonical
literature, a part of the scribal school curriculum that was copied
for its own sake.
This illustrates the difference between school texts and scientific
texts. The local scribes saw no reason to alter Codex Hammurabi
because for them it was only a scribal excercise and not part of
their positive law. Their own law codes, however, had a practical
purpose and therefore had to reflect the local law, which meant
also regular amendment to take account of changes in the law.
This is not to say that "foreign" codes copied in the scribal schools
were not without influence. The codes under discussion contain
many similar provisions, because the societies themselves and
therefore their substantive law were so similar. An earlier law code
therefore provides an obvious model when drafting one's own,
particularly in terms of the legal problems to be addressed, but its
provisions are not binding. It has rather what modern lawyers
from independent systems with a common tradition call "persuasive
authority", as, for example, with United States precedents cited
in English courts. 46 The process of adoption is selective. Thus the
Sumerian codes of Ur-Nammu and Lipit-Ishtar exist in school
copies in the Old Babylonian period and some of their provisions
re-appear in Codex Hammurabi in almost verbatim translation. 47
44 E.g. Paragraph 94: "If a free man steals in a house, he shall give (back) the
respective goods; they would formerly give for the theft 1 mina of silver, now he shall
give 12 shekels of silver". (Translation: A. Goetze, in ANET , p. 193). See also V.
Korošec, La codification dans le domaine du droit Hittite , in RIDA, IV, 1957, pp. 99-100.
48 « KBO VI 4 schleppt die veralteten Bestimmungen nicht mehr mit; der Text
gibt nur das geltende Recht ». A. Goetze, op. cit., note 42 above, p. 111.
4# Compare G. Cardascia's theory of the "reception" of Codex Hammurabi, drawing
on the analogy of the Continental law experience: La transmission des sources juridiques
cunéiformes , in RIDA, VII, 1960, pp. 47-48.
47 See note 5 above.

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Other paragraphs of Codex Hammurabi, however

mentally from their parallels in the earlier Code
where physical injury is punished by talio instea
compensation.
Again, the later codes did not reproduce the provis
Hammurabi verbatim, but a curious use of termino
how they took note of it as a source. The dowry
brings from her parent's house is consistently calle
Codex Hammurabi, and the gifts that she receives from her
husband, nudunnum (paragraph 172). This terminology does not
reflect the documents of practice, where šeriktum does not appear
at all, gifts from the husband have no special appellation and the
nuddunnûm in all periods refers to the dowry. All the evidence
points to an innovation which was not taken up in practice. 48
Nonetheless, the Assyrian Laws in their discussion of questions of
marital property use the same scheme - sirku for dowry (A 27)
and nudunnû for gift from the husband (A 29, 32) - suggesting
a conscious imitation of Codex Hammurabi, although the laws in
which these terms appear are not directly parallel to the provisions
of the earlier code. The same tradition even makes its way into
the Neo-Babylonian Laws (8-13), with this difference, that the
author of the later code found the traditional scheme too illogical
and simply reversed it - nudunnû for dowry, as in practice,
šeriktu for gift from husband, the latter use being a complete
innovation. Again, the content of the laws in which these terms
appear are not the same as in the earlier codes.
Finally, the practice of selective adoption can be seen in the
relationship between the cuneiform and the Biblical codes. Codex
Eshunna exists as a school text and in some form must have
reached the Israelite cultural sphere, since Ex. xxi, 35, concer
the ox that gores another ox, is virtually a translation of CE
However, whereas CE 54 imposes a monetary penalty on t
previously warned owner of a goring ox that kills a man, Ex ,
29 in the same circunstances requires the death penalty.
To summarize: in our view the Ancient Near Eastern law codes
derive from a tradition of compiling series of legal precedent
the same manner as omens, medical prognoses and other scien
48 See the discussion by the author in Old Babylonian Marriage Law (Diss, unpu
University Microfilms, Ann Arbor, 1982, Vol. II, pp. 257-268.

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258 R. WESTBROOK
treatises. The purpose of these se

for the royal judges in deciding
as an oral tradition and only
written corpus. 49 The cleares
Assyrian Laws and the Hittite
evidence that such series coul
Three types of secondary purpos
royal inscriptions designed to p
( CU , CL. CH) which were ch
prologue and epilogue, (2) scho
which would take on indépendan
curriculum, and (3) part of a re
and Deuteronomic Codes) wher
the source of the law.
The final piece of evidence for this thesis comes from an unexpect-
ed source, but in order to evaluate it we must first analyse the
process by which the law codes were created.
5. - Law Codes 'and Omen Series: The Cycle of Creation
The example given earlier in which the diviner, when called upon
to interpret the ominous significance of an unusual birth, would
select the pertinent omens from the series summa izbu , is but one
step in the cycle of creating precedents and applying them.
The first step theoretically will be the case where a birth occurs
for which there is no precedent - a mare gives birth to a hare.
If the diviner interprets this, whether by analogy with known
omens or some other process of logic, as meaning that the king
will flee from the battlefield, and in the event the king in question
does flee, the diviner's decision will then become a precedent for
future omens of the same kind.
The second step is for the omen to pass through what we may
call the "first stage of generalization". This stage is evidenced in
the cuneiform sources by the "tamītu" texts. 50 These are answers
put to a god, e.g. lamīl alāk harrāni , "a tamītu concerning going on
a campaign". In most cases the name of the person for whom the
question was being put is replaced by "so-and-so, son of so-and-so"
" On the analogy of the omen literature: see Leichty. nn. cit.. not a 9.fi ah nvn n 93
#0 W. G. Lambert, The " Tamītu " Texts, in La Divination en Mésopotamie Ancienne
( XIVth Rencontre Assyriologique), Paris, 1966, pp. 119-123.

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(annanna apll annanna). W. Lambert explains: ... "th

of the names suggests the reason for the handing do
documents which at first glance would seem to have
use after they were originally employed by the àppro
Just as in law a case once decided can become a p
that future parties having the same problem can fin
without recourse to the expensive and time-consumi
of the law, so the tanūtus, once answered, were pres
any one should wish to find the gods' answer to t
question again". 81
The third step represents the second stage of ge
whereby the anonymous precedent is put into casuis
the fourth step is the compilation of lists of these c
with the addition of their logical variations by an
form a series. This "scientific" treatment is necessar
Mesopotamian eyes it makes the series universally
exhausting all possible alternatives) and therefore au
The fifth step is then the one already familiar t
consultation of the series by the diviner who excerpt
omens. If the occurrence contains some new element
covered by the existing omens, then the new ome
become a precedent, undergo the two stages of gene
be taken up into an omen series, thus repeating the
The above cycle will have a familiar ring to law
accurately reflects the development of general leg
individual cases in legal systems where judge-made la
nates. The only difference is that in the modern syste
of generalization consists in creating abstract pri
rather than variants of the precedent. It is reasonab
therefore, that the same process took place in moving
dual judgment to law code and back again. A decision
(or royal judge) in a difficult case would be turned i
rule of general application and, expanded with th
variants by extrapolation would eventually becom
canon of such rules, which in turn were consulted in
cases, and where a new decision was made it eventual
« Op. cit., p. 121.

u See Bottero, op. cit., note 27 above, pp. 431-433. In the alternati
might be compiled first and then turned into casuistic form - there
of large tablets containing a number of collected tamîtu's , Lambert, o

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260 R. WESTBROOK
added to the canon, and so fort

speak truthfully in his Code of
for the central part of that C
received canon of legal rules
in his own court, supplemented
the logical variants thereof).
The cuneiform sources are not
evidence of the legal steps des
omen literature. The only step
or his judges giving judgment
indication of the decision's value
full trial reports that exist, t
Bottéro refers to one decision
based on the same principle as a
to CH 32: "If a merchant ransom
on a royal campaign and brings
the means for redemption in h
If there are not the means in hi
shall be redeemed from (the res
are not the means in his city tem
The following order is given b
to Luštamar-Zamama and Belanum: Thus says Hammurabi.
(As to) Sin-ana-Damru-lippalis, the son of Maninum, whom the
enemy took: give his merchant ten shekels of silver from the
temple of Sin and redeem him".
From the name of the prisoner it could be assumed that the
temple of Sin was his city temple. What then is the connection
between the king's order and CH 32? Was it the precedent from
which at least part of the legal rule was constructed? Or was it
** See Leem ans. op. cit.. note 36 above, and the examples given therein.
u A possible exception is the trial report edited by T. Jacobsen, An Ancient
Mesopotamian Trial for Homicide in Toward the Image 01 Tammuz, Cambridge, Mass.,
1970, pp. 193-214. The legal issue appears to be whether a wife who is informed by her
husband's assassins of his murder but keeps silent is herself guilty of murder* The
case was remitted by the king to the Assembly of Nippur, and the report contains a
debate before the Assembly, followed by the Assembly's reasoned decision as to her
guilt. The report exists in duplicates from the reign of king Rim-Sin of Larsa and in
later copies (unpublished) from the time of Samsu-iluna (Jacobsen, op. cit., p. 196).
This suggests that it had value as a precedent, although of course it may merely have
been a cause célèbre. The same legal issue does not occur in any of the extant law
codes. It is interesting to note that according to Jacobsen, the later copies of the report
also contain reports of a number of other trials before the Assembly of Nippur floe,
cit.).
•• Op. cit. t note 27 above, p. 421.

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given in application of the rule? Indeed, were the co

redemption laid down in the rule, namely the lack of
soldier's household, fulfilled in this case? No answer c
from the laconic terms of order. To find evidence of the
legal steps we must turn to our one non-cuneiform sou
The process in question is illustrated not by the Bibl
themselves but by the reports made of five difficult
which were decided by recourse to a special procedur
and one by the special order of a military leader.
The first case that we wish to consider is report
xv, 32-37. A man was found gathering wood on the S
case must have been without precedent, for he wa
Moses consulted God. The decision was that the man was to be
executed by stoning. As it stands the report is no more informa
than Hammurabi's order. The grounds for the decision and
fact that it is intended as a precedent are indeed implicit,
neither received express mention.
The second case is reported in two places. In Num. xxxi, af
a war against the Midianites, Moses is ordered by God to di
the spoils of war between those who went out to battle and
the "congregation" Çedah , vv. 25-28), As in the previous ca
there is no specific indication that this decision is to serve
precedent for future battles. However, the same principle at l
(of division between combatants and non-combatants) 56 is
ratio of the decision attributed to David in I Sam . xxx. The
background here is a victory over the Amalekites. The victory
achieved with only part of his forces, the rest being left behin
Nahal Besor (vv. 9-10), but David decides nonetheless that t
spoil is to be divided equally between those who actually took
in the engagement and those who remained behind. The decis
in this report is formulated in terms of an anonymous rule:
"... For as his share is who goes down into the battle, so s
his share be who stays by the baggage; they shall share ali
(v. 24). Furthermore, we are expressly informed that this rul
had the force of precedent: "And from that day forward he m
a statute (hoq) and an ordinance ( mišpat ) for Israel to this da
*• The two rulings differ as to the details of the division: David's decision giv
equal share to each, whether warrior or not, the order in Numbers is to divide the
equally between two groups of presumably unequal size.

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262 R. WESTBROOK
(v. 25). The terms hoq and mišp

Biblical law-codes.
The third case is even more explicit. In Num. xxvii, 1-11, the
daughters of Zelophehad, who died without sons, approach Moses
and claim a share of their father's estate. Following the same
procedure as in the case of the man who gathered wood on the
Sabbath, Moses consults God and the specific decision is given
to share Zelophehad's estate among his daughters (v. 7). There
then follows a re-formulation of that same decision as a casuistic
rule, with the addition of possible alternatives: "... If a man dies,
and has no son, then you shall cause his inheritance to pass to his
daughter. And if he has no daughter, then you shall give his
inheritance to his brothers. And if he has no brothers, then you
shall give his inheritance to his fathers' brothers. And if his father
has no brothers, then you shall give his inheritance to his kinsman
that is next to him of his family, and he shall possess it. And it
shall be to the people of Israel a statute and ordinance (huqat
mišpaļ).." There thus begin to emerge some of the steps in the
creation of a code that we have already seen in the case of the
Mesopotamian omen series and postulated for the cuneiform law
codes.
The problem of inheritance when a man dies leaving daughters
but no sons could not have been a rare one, and in fact we find
exactly the same solution in a Sumerian fragment probably
belonging to Codex Lipit-Ishtar: 57
"If a man died and he had no son, (his) unmarried daughter
[shall become] his heir..." The extra condition of being unmarried
fits the case of Zelophehad's daughters perfectly, since in a post-
script to the story (Num. xxxvi) we discover that they were
unmarried and had to marry within the clan in order to preserve
the family estate. Without wishing to enter into the intricacies of
Biblical compositional history, it seems to us that if this rule had
already entered the law-codes as early as the reign of Lipit-Ishtar,
then it must have been in a canon of legal rules in Israel as well. If,
therefore, as is claimed, the story is the projection back to the time
of Moses of an incident designed to explain a later political pheno-
menon 68 the technique must have been to take the well-known
w Edited by M. Civil, New Sumerian Law Fragments , in Studies in Honour of

Benno Landsberger , AS, XVI, 1965, pp. 4-5.
N. H. Snaith, The Daughters of Zelophehad , in VT, XVI, 1966, pp. 125-127.
The character of the precedent as a source of law was recognized by J. Weingreen,
The Case of the Daughters of Zelophehad , in VT, XVI, 1966, pp. 518-522.

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rule from a code and present it as an early precedent,

being obvious to the contemporary reader familiar w
that law codes developed from precedents.
The fourth example adds another element. In Nu
the oracle is consulted by Moses in the case of person
unable to keep the passover on the appointed day
decision is that they are given a second date, but far
specific to the persons concerned, it is formulated
general casuistic rule: "If any man of you or of your
is unclean through touching a dead body, or is afar off
he shall still keep the passover... In the second mo
fourteenth day in the evening they shall keep it..." (
intermediate steps between case and Code are obvi
reader and can therefore be omitted. The actual w
casuistic introit ' iyš yiyš kî... is in fact already kno
Eshnunna 59 and employed throughout the Neo-Baby
(awîlum ša...) But there is, as we mentioned, an addit
Verse 13 goes on to consider the opposite case: "But t
is clean and is not on a journey, yet refrains from
passover, that person shall be cut off from his peop
the technique familiar from all the law-codes and
Kraus as the universal thought-process of Mesopotam
It is not at all necessary to the decision in this partic
has been added as the drafters of the codes added theoretical
examples. And v. 14 adds a further variant, concerning the ap
cability of the passover law to the gēr. We have thus seen in
four examples: (1) the initial decision, (2) the first stage of gen
zation (anonymity), (3) the second stage of generalization (cas
form), (4) the creation of a code (academic variations). The pic
is completed by our final example: the case of the man wh
the course of a fight cursed in God's name (Leu. xxiv, 10-2
The case begins with the now familiar pattern of oracu
consultation, specific decision (vv. 10-13) and execution in
particular case: "Bring out of the camp him who cursed; an
all who heard him lay their hands upon his head, and let al
congregation stone him" (v. 14). There then follows the repet
of the same decision in the general casuistic form (vv. 15
" CE 12, 13, and 19. It is also found in the Edict of Ammi-saduqa and in the
Assyrian Laws, paragraphs A 40 and B 6. See R. Yaron, The Laws of Eshnunna ,
Jerusalem, 1969, p. 65.

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264 R. WESTBROOK
"...Whoever curses his God sha

the name of the Lord shall be
as the native, when he blasp
death". Thus far the pattern is
The ruling continues, however
who kills a man shall be put
make it good, life for life, W
his neighbour, as he has done
fracture, eye for eye, tooth for
shall be disfigured. He who ki
who kills a man shall be put t
these variants is not all appar
ideas would link them to the actual decision in the case which
concerned the using of God's name in a curse. On the other ha
if we consider all the circumstances of the case, namely that th
was a fight between two men, then the reference to rules
unlawful death or wounding is understandable. In a modern cont
a lawyer giving an opinion on the case - prior to the decisio
would naturally wish to cover those aspects as well. In the Ancie
Near Eastern context, the method involved becomes clear if we
refer once again to our Mesopotamian parallel, the practice of the
diviner (bärü ) when consulted on an ominous event. It will be
recalled that the diviner's report consisted of omens excerpted from
the omen-series. But, as Leichty points out: 60 "It is interesting to
note that the barů- priest never filed just one omen as a report,
but rather attempted to include all omens which might in some
way pertain to the case". The very same technique has been used
in our passage in Leviticus, and just as the bāru- priest would
excerpt quotations from šumma izbu or some other omen-series,
so excerpts from a law-code have been quoted here - to all appear-
ances from that same collection upon which the present Covenant
Code is based. In the light of the cuneiform material then, the
Biblical source can be seen to provide the missing piece of evidence
that the law codes were applied in practice. And thus the cycle is
completed.
The Hebrew University of Jerusalem . Raymond Westbrook.
60 Op. cit. j note 26 above, p. 8.

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Biblical and Cuneiform Law Codes

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Biblical and Cuneiform Law Codes

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BIBLICAL AND CUNEIFORM LAW CODES

Author(s): Raymond Westbrook

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