MAARAV 20.

2 (2013): 247–250

THE HOUSEBREAKING LAW OF EXODUS 21:37–

22:3: A SYNCHRONIC VIEW

Baruch halpern
UNIVERSITY OF GEORGIA

In a recent article in a Festschrift for Ray Westbrook, B. M. Levinson

has adduced Exod 21:37–22:3 as evidence for compound composition in
“biblical law.”1 Levinson’s critique of Westbrook’s understanding of the
law(s) in this passage indicates a secondary insertion, via epanalepsis of
“pay,” not the importation of third-party liability from Mesopotamian
law (e.g., CH 6) in 22:3. Levinson holds that the law as it stands is
incoherent, but that Westbrook’s suggestion that the subject switches
in v. 3 to an otherwise unmentioned receiver is not tolerable textually.
Westbrook in effect took v. 2 to state that the thief had to pay or be sold,
and v. 3 to indicate that a receiver was liable as well.
In fact, Levinson’s objections to Westbrook’s readings are fatal. But
they are not sufficient indication of composite textual complexity.
The passage runs:
‫כי יגנב איש שור או שה וטבחו או מכרו חמשה בקר ישלם‬
‫ אם במחתרת ימצא‬. ‫תחת השור וארבﬠ צאן תחת השה‬
‫ אם זרחה השמש עליו דמים לו‬. ‫הגנב והכה ומת אין לו דמים‬
‫ אם המצא תמצא‬. ‫שלם ישלם אם אין לו ונמכר בגנבתו‬
. ‫בידו הגנבה משור עד חמור עד שה חיים שנים ישלם‬

1
B. M. Levinson, “The Case for Revision and Interpolation within the Biblical Legal
Corpora,” in Law and Diplomacy in the Ancient Near East and the Mediterranean World:
The Raymond Westbrook Memorial Volume (A. C. Hagedorn, ed.), Maarav 18 (2013):
131–154.
247
248 MAARAV 20.2 (2013)

Rather than review the scholarship on the law here, I refer the reader
to Levinson’s extensive bibliography. With that as background, one pos-
sible meaning is this:
21:37 Should a man steal an ox or sheep and slaughter or sell
it, he pays five cattle in place of the ox or four sheep in place
of the sheep. (So, if he disposes of it, he replaces it multiply.)

22:1 If the thief is caught (in the act of) breaking in (lit., dig-
ging in, breaching)2 and is struck and dies, he has no (claim
for) damages.

22:2 If the sun has shone on him (in daylight, outside), he has
(a claim for) damages (if he is smitten). But he must pay (if
he’s living). If he has nothing, he may be sold for his theft.

22:3 If the stolen property is discovered in his possession, from

ox to sheep, alive, he pays double.

Taken thus, the whole sequence is about rustling, but the distinction is
between a break-in and outdoor activity, presumably in the field or in a
pen, during daylight hours. In other words, there is a difference here be-
tween sneaking off with an animal and breaching a wall to obtain it. The
other distinction arises from the difference between recovering the ani-
mal and being unable to do so. If the animal is recovered, then the thief
pays only two additional animals (total to the owner, three). If the animal
cannot be recovered, because of its arguably irreplaceable virtues, or,
more likely, because the thief has received payment for it either in kind
or in coin, the owner receives four or five replacements.
This particular law, then, cannot bear weight as evidence for the sec-
ondary editing of the Covenant Code’s content. It is embedded in a
section about damages connected with animals and agriculture (Exod
21:28–22:14), where 22:6–8 also includes inanimate goods. If Levinson
denies that the subject of ‫ שלם ישלם‬can be the “housebreaker,” as
Westbrook argued, neither can it be any other character, including the
victim. But clearly, it must be someone who is still living.
It can be argued, of course, that the Laws of Eshnunna (LE) (12–13) and
law in Table VIII-2 about theft by night, taken apparently from Solon,3
dictate the question of liability as being that of the victim householder.

2
For ḥtr, see Amos 2:9; Jer 2:34; Ezek 8:8; 12:5,7,12; Jonah 1:13; Job 24:16. The
meaning is to break through a surface.
3
John Welch and Clifford B. Parkinson, “Adding Evidence of Ancient Near Eastern
Influence on the Roman Twelve Tables,” in Law and Diplomacy in the Ancient Near
 HALPERN: THE HOUSEBREAKING LAW 249

Levinson, in particular, invokes the theft of persons in Deut 24:7. But

the idea that the householder or victim incurs damages is really peculiar
to LE 12–13.4 It involves a restoration of “[who in the nigh]t” in law 12,
and of the rest of the clause in law 13. The opportunity for an error in
interpretation is significant.
This raises the question: who is liable for damages in this passage
(Exod 22:1–2)? It is generally assumed that the householder’s right to
apply force in the apprehension of a robber is in question, and this is
Levinson’s position,5 as well as that represented in the possible under-
standing presented above. However, another possibility holds as well.
Take the text as follows:
21:37 Should a man steal an ox or sheep and slaughter or sell
it, he pays five cattle in place of the ox or four sheep in place
of the sheep.

22:1 If he is caught (in the act of) breaking in, and is struck and
dies, he (the robber) has no (liability for) damages.

22:2 If the sun shines (= rises) on him, he (the robber) has (li-
ability for) damages. He must pay. If he has not (the means to
pay), he may be sold for his theft.

22:3 If the stolen goods are discovered in his possession, from

ox to donkey to sheep, alive, he pays double.

Taken in this way, the law incentivizes the capture, rather than killing,
of the robber caught in the act. This agent has no financial liability if he
is killed. If he lives through the night, however, or lives to see the light
of day outside again, he is liable for breaking and entering and attempted
theft.
On this construction, the case of house- or pen-breaking is an inte-
gral subparagraph of the law. The clause consists of 22:1–2b, “he must
pay.” In either the case of 21:37, or that of 22:2a, the robber is liable to
be sold if he lacks the means to compose the damages. The alternative
is that enslavement is countenanced only in the case of breaking and
entering. In that case, the enslavement contemplated may be permanent,

East and the Mediterranean World. The Raymond Westbrook Memorial Volume (A. C.
Hagedorn, ed.), Maarav 18 (2013): 163–188.
4
For which, R. Yaron, The Laws of Eshnunna (2nd ed.; Jerusalem: Magnes, 1988): 50.
5
Levinson (n 1): 147.
250 MAARAV 20.2 (2013)

versus a case of debt-slavery, for which the Covenant Code, like others
(Deuteronomy, CH), provides for periodic release.
In any event, the possibility is real that the synchronic reading of this
text trumps attempts upon its literary history. While texts in HB cer-
tainly have a compositional history, they are not often truly incoherent
as revised. Certainly, in the absence of closely parallel formulations or
doublets, a precipitate recourse to diachrony before the text’s coherence
has been understood is difficult to justify.