1wells:Layout 1 3/5/2008 8:32 PM Page 223

What Is Biblical Law?

A Look at Pentateuchal Rules
and Near Eastern Practice

BRUCE WELLS
Saint Joseph’s University
Philadelphia, PA 19131

One has to be very careful in using the Code of Hammurabi for expressing reality.
—Rivka Harris
As far as Hammurabi is concerned I think he is a very true mirror of the law.
—Raymond Westbrook1

SHOULD THE SO-CALLED LAWS of the Pentateuch be considered actual law?2

This is a difficult question to answer. Traditional thinking has typically assumed
an affirmative answer and even a direct link between the laws of the Pentateuch and
those that governed ancient Israel and Judah. Over the course of the last several
decades, however, these assumptions have been placed in serious doubt, and under-
standably so. Simple answers to the question have proved wholly inadequate.3 In

1 From the record of a discussion session in Women’s Earliest Records—From Ancient Egypt

and Western Asia: Proceedings of the Conference on Women in the Ancient Near East, Brown Uni-
versity, Providence, Rhode Island, November 5-7, 1987 (ed. Barbara S. Lesko; BJS 166; Atlanta:
Scholars Press, 1989) 164-65.
2 For the purposes of this discussion, I use the term law to refer to statements of or related to

the rules (not necessarily written rules) according to which the members of a given society are
expected to conduct themselves and that can be enforced by that society’s governmentally sanc-
tioned adjudicative system.
3 See the critique in Niels Peter Lemche, “Justice in Western Asia in Antiquity, or: Why No

Laws Were Needed!” Chicago-Kent Law Review 70 (1995) 1695-1716. Lemche’s ultimate conclu-
sions, however, are still debatable.

223
1wells:Layout 1 3/5/2008 8:32 PM Page 224

224 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

the effort to assess the nature of the pentateuchal texts in question, recent studies
on biblical law have taken a number of different tacks. Opinions range from mod-
ified versions of the traditional view to theories that seek to divorce these texts
entirely from the notion of law. No emerging consensus appears to be on the
horizon.
In this article, I reexamine the question. My primary interest here is potential
connections between sections of the Pentateuch and the practice of law in the
ancient Near East. I also touch briefly on the more specific and more difficult ques-
tion regarding any connection that biblical law might have with the legal systems
operative in ancient Israel and Judah. Given the paucity of evidence (i.e., actual
documentation from ancient Palestine) for Israelite and Judahite legal practice,
however, a direct connection is impossible to establish. I do not, therefore, attempt
to provide a decisive answer to this more specific question. Instead, I present a set
of data that may help to provide a fresh perspective and that may, in the minds of
some readers, establish an indirect connection between biblical law and Israelite/
Judahite law. The chief goal of presenting this evidence is to demonstrate the inade-
quacy of those views that reject the legal nature of most of the relevant penta-
teuchal texts. The evidence indicates that there are significant connections between
substantial portions of the pentateuchal law codes and operative ancient Near East-
ern law. This may not mean that these codes functioned as legislative statutes;
rather than declaring the law, they may only reflect some of the legal rules that
were in force. This may also not mean that the whole of pentateuchal “law” is
related to matters of actual societal law, but to dismiss all of it as such is misguided.
I begin by describing several points of view that seem to constitute the pri-
mary options in current scholarship for understanding biblical law in this regard.
Second, I consider the question from the perspective provided by legal documents
of practice from ancient Near Eastern societies other than Israel and Judah. These
documents, which consist not of law codes but mainly of contracts, treaties, and
trial records, provide important data on the law that was in effect in the ancient
Near East—data to which the pentateuchal rules can be compared. Finally, I sug-
gest which points of view this perspective seems to favor.

I. The Nature of Biblical Law

The debate about whether the ostensibly legal provisions of the Pentateuch
actually constitute law is closely tied to the debate about the nature of all the so-
called law codes from the ancient Near East.4 It was Assyriologists, during the first

4 The term “code,” of course, may be a misnomer, since these ancient writings lack many of

the features of modern codes of law; the term “collection” may be more appropriate (see Pamela
Barmash, Homicide in the Biblical World [Cambridge: Cambridge University Press, 2005] 6-7). In
any case, I use the terms “code” and “collection” interchangeably. Most of these codes or collections
1wells:Layout 1 3/5/2008 8:32 PM Page 225

WHAT IS BIBLICAL LAW? 225

half of the twentieth century, who first engaged in this debate and did so primarily
with respect to the Laws of Hammurabi (LH).5 They pointed out that in the sev-
eral hundred trial records from the Old Babylonian period, the period from which
the LH come, there is no mention of the legal provisions in the LH.6 Thus, there
is no evidence that the courts of the time were using the LH as the basis for their
verdicts. Perhaps the members of Old Babylonian society themselves did not view
the LH as law. A number of important scholars began to argue that the LH and the
other cuneiform law codes should not be conceived of as legislation.7 The debate
has moved into biblical scholarship, and many of the same issues have been raised
with respect to the pentateuchal codes. All of this has resulted in a variety of views
regarding the nature of ancient Near Eastern law codes and especially those from
the Hebrew Bible. In this section, I describe a number of the more important ideas
on this topic espoused recently by scholars and concentrate on those that are inter-
ested chiefly in the biblical material.8 Some of these views overlap at points, but
each has its own distinctive focus.
At the outset, it must be recognized that, in the final form of the biblical text,
the pentateuchal codes seem to have a religious purpose as they relate to issues of

are preserved in cuneiform script. The seven cuneiform codes, in chronological order, are the fol-
lowing: The Laws of Ur-Namma, the Laws of Lipit-Ishtar, the Laws of Eshnunna, the Laws of Ham-
murabi, the Hittite Laws, the Middle Assyrian Laws, and the Neo-Babylonian Laws. The two biblical
codes that are relevant to this discussion are the Covenant Code in Exodus 21–23 and the Deutero-
nomic Code in Deuteronomy 12–26. Most of the priestly laws are often excluded from this type of
discussion because they deal almost exclusively with cultic as opposed to civil matters (see Raymond
Westbrook, “Biblical and Cuneiform Law Codes,” RB 92 [1985] 247-64, esp. 248 n. 3).
5 See, e.g., Mariano San Nicolò, Beiträge zur Rechtsgeschichte im Bereiche der keilschrift-

lichen Rechtsquellen (Instituttet for sammenlignende Kulturforskning, Series A, 13; Oslo: Aschehoug
[W. Nygaard], 1931) 63-113. See also the discussion and the literature cited in Shalom M. Paul,
Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (VTSup 18; Lei-
den: Brill, 1970) 23-26; Bernard S. Jackson, “Reflections on Biblical Criminal Law,” in Essays in
Jewish and Comparative Legal History (SJLA 10; Leiden: Brill, 1975) 25-63, esp. 26-29; and Anne
Fitzpatrick-McKinley, The Transformation of Torah from Scribal Advice to Law (JSOTSup 287;
Sheffield: Sheffield Academic Press, 1999) 82-108.
6 See, e.g., Benno Landsberger, “Die babylonischen Termini für Gesetz und Recht,” in Sym-

bolae ad Iura Orientis Antiqui Pertinentes Paulo Koschaker Dedicatae (ed. Th. Folkers et al.; Stu-
dia et documenta ad jura Orientis antiqui pertinentia 2; Leiden: Brill, 1939) 219-34, esp. 226-27.
7 See Fritz R. Kraus, “Ein zentrales Problem des altmesopotamischen Rechtes: Was ist der

Codex Hammurabi?” Geneva 8 (1960) 283-96. See also, more recently, Martha T. Roth, “The Law
Collection of King Hammurabi: Toward an Understanding of Codification and Text,” in La Codifi-
cation des lois dans l’antiquité: Actes du Colloque de Strasbourg, 27–29 Novembre 1997 (ed.
Edmond Lévy; Travaux du Centre de Recherche sur le Proche-Orient et la Grèce antiques 16; Paris:
De Boccard, 2000) 9-31.
8 For a helpful and thorough discussion of a variety of approaches to biblical law, without the

more narrow focus of this article, see Bernard S. Jackson, Wisdom-Laws: A Study of the Mishpatim
of Exodus 21:1–22:16 (Oxford: Oxford University Press, 2006) 3-23.
1wells:Layout 1 3/5/2008 8:32 PM Page 226

226 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

covenant, community, and purity. Scholars have articulated this purpose in various
ways, but most agree that biblical law, as it is presented in the Pentateuch, func-
tions to promote a religious agenda rather than to establish a full-fledged legal sys-
tem.9 In some respects, though, it is important that a discussion of whether the
provisions in the Pentateuch constitute law precede an analysis of the religious
function of biblical law. It is possible, for instance, that the codes or parts of the
codes were self-contained entities at one time, before they were incorporated into
the larger sections in which we now find them. Ascertaining the legal capacity or
function, if any, of the provisions in the biblical codes—a capacity or function they
may have had prior to their incorporation into biblical texts—can help to establish
a more complete framework in which to analyze their religious function and how
they fit into the broader agenda of the authors who brought them into the Penta-
teuch. It is this question about legal capacity that proponents of the views below
seek to address.

A. Authoritative Law
The long-standing traditional view is that the legal material of the Pentateuch
presents the law that was authoritative and in force in ancient Israel and Judah.
This material is believed to have contained the rules by which the society and the
legal system operated. Some scholars continue to hold this view. For example,
Gregory C. Chirichigno argues that the passages on the manumission of slaves in
Exodus, Leviticus, and Deuteronomy can be “understood as a single comprehen-
sive system of social welfare legislation.”10 As “legislation,” these texts would
have contained the rules that governed this “system of social welfare” and by which
adherence to the law would have been judged. Ze’ev W. Falk, who also seems to
have accepted this view, does not claim that the whole of pentateuchal law is leg-
islation per se. He sees case law or “judicial precedents” at work. “This part
included the casuistic-styled laws, collected together without the systematic rea-
soning of the legislator.”11 Thus, these scholars believe that the stipulations found
in the Pentateuch, whether the result of precedent or legislation, formed authori-
tative law.12 This view has fallen into disfavor among many scholars, and it may

9 For example, Michael Fishbane (Biblical Interpretation in Ancient Israel [Oxford: Claren-

don, 1985] 95) states that the laws served as an important part of the “contractual basis for the
Israelite covenant.” See also Dale Patrick, Old Testament Law (Atlanta: John Knox, 1985) 198; and
James W. Watts, Reading Law: The Rhetorical Shaping of the Pentateuch (Biblical Seminar 59;
Sheffield: Sheffield Academic Press, 1999) 136-37.
10 Gregory C. Chirichigno, Debt-Slavery in Israel and the Ancient Near East (JSOTSup 141;

Sheffield: Sheffield Academic Press, 1993) 354.

11 Ze’ev W. Falk, Hebrew Law in Biblical Times: An Introduction (2nd ed.; Winona Lake, IN:

Eisenbrauns, 2001) 11.

12 Also tending to follow this view is Moshe Greenberg, “Some Postulates of Biblical Crim-

inal Law,” in Yehezkel Kaufmann Jubilee Volume: Studies in Bible and Jewish Religion (ed.
1wells:Layout 1 3/5/2008 8:32 PM Page 227

WHAT IS BIBLICAL LAW? 227

prove a difficult position to maintain given the trends of recent research outlined
in the views below.

B. Competing Sets of Authoritative Law

A number of other scholars are willing to acknowledge the generally author-
itative nature of pentateuchal legal texts for ancient Israelite and Judahite society,
but they differ from the previous view on two important points. First, they do not
see the various legal collections in the Pentateuch as forming a coherent system of
law. Rather, the codes are at times in competition with each other, and portions of
one code can even disagree with or attempt to revise other portions of the very
same code. There has been much discussion, for instance, regarding the relation-
ship between the Covenant Code and the Deuteronomic Code. Those who hold
this point of view often argue that the latter is an attempt to transform the law in
the Covenant Code, though the degree of intended transformation is disputed.
Eckart Otto claims that the Deuteronomic Code was an attempt to reform the way
in which the laws of the Covenant Code were being used.13 It did this by reinter-
preting those laws rather narrowly in light of the Deuteronomic agenda of cultic
centralization. Bernard M. Levinson, on the other hand, argues that the authors of
the Deuteronomic Code were interested in much more than simply reinterpreting
the Covenant Code. “Deuteronomy represents a radical revision of the Covenant
Code. The authors of Deuteronomy sought to implement a far-reaching transfor-
mation of religion, law, and social structure that was essentially without cultural
precedent.”14

Menahem Haran; Jerusalem: Magnes, 1960) 5-28; see also the comments of Paul on the Covenant
Code (Studies, 36-42). Others are inclined to soften this view somewhat. Timothy M. Willis (The
Elders of the City: A Study of the Elders-Laws in Deuteronomy [SBLMS 55; Atlanta: Society of
Biblical Literature, 2001] 306), for instance, takes exception to the idea that “the laws are intended
to be read as exhaustive absolutes” and argues that they were applied with a fair amount of flexi-
bility.
13 Eckart Otto, “Vom Bundesbuch zum Deuteronomium: Die deuteronomische Redaktion in

Dtn 12–26,” in Biblische Theologie und gesellschaftlicher Wandel: Für Norbert Lohfink (ed. Georg
Braulik, Walter Groß, and Sean E. McEvenue; Freiburg: Herder, 1993) 260-78; and idem, “The Pre-
exilic Deuteronomy as a Revision of the Covenant Code,” in idem, Kontinuum und Proprium: Stu-
dien zur Sozial- und Rechtsgeschichte des Alten Orients und des Alten Testaments (Orientalia Biblica
et Christiana 8; Wiesbaden: Harrassowitz, 1996) 112-22. Otto’s view must be slightly qualified. He
believes that the pentateuchal laws, like their cuneiform counterparts, had their origins in scribal
schools rather than in legislative activity per se. He goes on to argue, however, that Judahite priests
(particularly those responsible for Deuteronomic law) utilized, modified, and supplemented these
laws in order to create binding law that carried divine approval and would reform important social,
political, and legal aspects of Judahite society (“Kodifizierung und Kanonisierung von Rechtssätzen
in keilschriftlichen und biblischen Rechtssammlungen,” in La Codification des lois dans l’antiquité
[ed. Lévy], 77-124, esp. 120 and 123-24).
14 Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (Oxford:
1wells:Layout 1 3/5/2008 8:32 PM Page 228

228 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

The second point on which there is disagreement with the first view has to do
with the notion of authority. Advocates of this second view are, at times, equivo-
cal about whether the biblical codes functioned as Israel and Judah’s authoritative
law. The authors of the codes most likely intended their compilations to achieve
legal authority, but whether the Deuteronomic Code, for instance, became the law
of the land in ancient Judah is uncertain.15 In sum, although legal provisions in the
Pentateuch may be in tension with one another, the authors of these provisions
conceived of them as law and believed that they should acquire status as such.

C. Theoretical Treatises
A view that has gained some currency among Assyriologists with respect to
the cuneiform law codes is the view that the codes are the result of the work of
scribes in their attempt to construct what can be called scientific or academic trea-
tises. According to this view, the codes are just one of the many treatments of, or
treatises on, various areas of intellectual inquiry that ancient Near Eastern scribal
schools produced. These treatises typically took the form of lists, such as the
Mesopotamian astronomical, mathematical, omen, and medical lists.16 The codes
were just one more type of list—law lists. In some instances, these scribal law lists
were used for other purposes, such as political propaganda (in the case of the LH)
and religious ideology (in the case of the pentateuchal codes), but in terms of their
legal function, they remained largely theoretical enterprises.17
Biblical scholars have made use of this theory. Lisbeth S. Fried, for example,
accepts this view and applies it to biblical law, asserting that the pentateuchal codes
are not related to the laws that were operative and enforced in Israel and Judah.

Oxford University Press, 1997) 3. Within the Deuteronomic Code itself, says Levinson, a later sec-
tion can revise and supersede an earlier one (ibid., 118-23).
15 See, for example, Levinson’s contention that Deuteronomy’s authors intended a “far-

reaching transformation of . . . law” (ibid., 3) vis-à-vis his reference to the codes as “theoretical
reflections” (“The Right Chorale: From the Poetics to the Hermeneutics of the Hebrew Bible,” in
“Not in Heaven”: Coherence and Complexity in Biblical Narrative [ed. Jason P. Rosenblatt and
Joseph C. Sitterson, Jr.; Indiana Studies in Biblical Literature; Bloomington: Indiana University
Press, 1991] 129-53, here 148). See also Anselm C. Hagedorn, Between Moses and Plato: Individ-
ual and Society in Deuteronomy and Ancient Greek Law (FRLANT 204; Göttingen: Vandenhoeck
& Ruprecht, 2004) 283-84, who appears to follow a version of this view in his treatment of Deutero-
nomic law as containing some rules and traditions that may well have been in effect in ancient Judah.
16 Jean Bottéro, “The ‘Code’ of H} ammurabi,” in Mesopotamia: Writing, Reasoning, and the

Gods (trans. Zainab Bahrani and Marc Van de Mieroop; Chicago: University of Chicago Press,
1992) 156-84.
17 See ibid., 166-69. Priests may also have had a hand in compiling the biblical material (see

Eckart Otto, Gottes Recht als Menschenrecht: Rechts- und literaturhistorische Studien zum Deutero-
nomium [Beihefte zur Zeitschrift für altorientalische und biblische Rechtsgeschichte 2; Wiesbaden:
Harrassowitz, 2002] 57-75).
1wells:Layout 1 3/5/2008 8:32 PM Page 229

WHAT IS BIBLICAL LAW? 229

Based on her analysis of the LH in particular, Fried concludes that, in general, “the
codes are separate from the life of the people.”18 Dale Patrick also seems to fol-
low this line of thinking. Although he believes that the authors of the codes hoped
to influence the beliefs and mores of their respective communities, he holds to the
“theoretical character of such exercises” in legal thinking.19 According to this view,
although the authors of the codes may have believed that they were engaged in
work with a quasi-legal orientation, and although the codes may have eventually
taken on the aura of law at some point in Second Temple Judaism, it is the theo-
retical nature of the codes that makes them of little value for legal historians who
wish to gain insight into the law of Israelite and Judahite society.

D. Legally Descriptive Treatises

A related point of view is that of scholars who accept the basic idea of the
codes’ origin as academic treatises produced by scribal schools. They then move
in a different direction by claiming that these treatises or law lists are fairly accu-
rate as descriptions of operative law.20 They do not claim that the law codes them-
selves functioned as authoritative law—that would give the codes a prescriptive
function. Rather, scholars who hold this view attribute to the codes a descriptive
function. That is, whatever the precise purpose of the scribal activity that produced
the codes, these collections represent repositories and descriptions of the legal
rules and customs that were traditionally practiced.21 The scribes may also have
developed hypothetical scenarios and incorporated their reasoning—even specu-
lation—about how to handle these situations into their list of legal provisions. But
their treatment of such scenarios was still in keeping with the basic approach that
would have been taken by the legal systems of their respective societies.22

18 Lisbeth S. Fried, “‘You Shall Appoint Judges’: Ezra’s Mission and the Rescript of Arta-

xerxes,” in Persia and Torah: The Theory of Imperial Authorization of the Pentateuch (ed. James
W. Watts; SBLSymS 17; Atlanta: Society of Biblical Literature, 2001) 72-84; quotation from 75.
19 Patrick, Old Testament Law, 200.
20 See, in general, Raymond Westbrook, “Cuneiform Law Codes and the Origins of Legisla-

tion,” ZA 79 (1989) 201-22.

21 As Westbrook puts it, “The least that one could expect from an academic treatise on law is

that it accurately describe the law in practice” (ibid., 204). See also the similar sentiments expressed
by Samuel Greengus, “Legal and Social Institutions of Ancient Mesopotamia,” in Civilizations of
the Ancient Near East (ed. Jack M. Sasson; 4 vols.; New York: Charles Scribner’s Sons, 1995)
1. 469-84, esp. 472; and, for a number of the priestly laws in Leviticus, Robin J. Dewitt Knauth, “The
Jubilee Transformation: From Social Welfare to Hope of Restoration to Eschatological Salvation”
(Th.D. diss., Harvard University, 2004) 28-29 and 60-61.
22 I would place the early work of Bernard S. Jackson with this view. For example, in some

studies, he favored the idea that the law collections belong to a literary (i.e., scribal) rather than a
legal stream of tradition, but he went on to state: “Nevertheless, much of the content may still have
been taken from the real legal world” (“Reflections,” 29). In his recent work, Jackson takes a slightly
1wells:Layout 1 3/5/2008 8:32 PM Page 230

230 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

Raymond Westbrook supplements this idea by theorizing that the codes, although
scribal treatises, served as a consultative aid for judges faced with difficult cases.23
They could so function not because they were seen as the law by which courts had
to abide but because they described the customs that had previously held sway and
the precedents that had been followed in the past.

E. Non-Legal Treatises
There is yet another view that starts from the premise that the codes are sci-
entific treatises produced by scribal schools. It differs from the previous two views
in that both the cuneiform codes and the biblical codes are considered to be essen-
tially nonlegal in nature. Scholars holding the theoretical-treatise view (view C)
accept the possibility that the scribes saw their work—their lists of laws—as a
legal, though purely academic, endeavor. Scholars who argue for the legally
descriptive nature of the codes (view D) connect this legal endeavor with real law;
the codes reflect the latter. The nonlegal-treatise view, however, contends that these
treatises are to be connected not with law or legal thought but with moral counsel.
The codes are sapiential rather than legal. The duties outlined in the pentateuchal
material have a religious or moral basis only; they are not law and do not reflect
the societal law of the time. Anne Fitzpatrick-McKinley provides one of the most
articulate expressions of this idea.24
In arguing for her position, Fitzpatrick-McKinley directs a number of cri-
tiques at the idea that the codes were legally descriptive treatises (view D). She
rightly points out that the way to check the validity of this view is to compare the
content of the law codes with what we know of actual legal practice.25 For exam-
ple, one could compare the provisions of the LH with Old Babylonian legal
documents of practice, such as trial records, contracts, and the like. Some Assyri-

different approach (Wisdom-Laws, 23-39 and passim). With respect to the laws or mišpātîi m of the
Covenant Code, he argues that they do not in fact come from a literary tradition. “In my view, the
Mishpatim are predominantly wisdom-laws, reflecting the practices of the earlier, oral stage: rules
designed for self-execution, even if at the cost of a modicum of arbitrariness” (ibid., 30).
23 Westbrook, “Biblical and Cuneiform Law Codes,” 254.
24 Fitzpatrick-McKinley, Transformation of Torah. Ultimately, she connects biblical law to

the Indian notion of dharma. Cheryl B. Anderson (Women, Ideology, and Violence: Critical Theory
and the Construction of Gender in the Book of the Covenant and the Deuteronomic Law [JSOTSup
394; London: Clark, 2004] 11-17) uses the work of Fitzpatrick-McKinley as part of the basis for
her own analysis of the biblical codes. A somewhat different but related view is that of Joseph
Blenkinsopp (Wisdom and Law in the Old Testament: The Ordering of Life in Israel and Early
Judaism [Oxford Bible Series; Oxford: Oxford University Press, 1983]). On the one hand, he allows
a legal function for the codes as a guide for judges (pp. 84, 87); on the other hand, he sees substan-
tial influence coming from wisdom traditions, especially in Deuteronomy, where, in his opinion,
legal thinking and wisdom are thoroughly intertwined (pp. 92-101).
25 Fitzpatrick-McKinley, Transformation of Torah, 99-100.
1wells:Layout 1 3/5/2008 8:32 PM Page 231

WHAT IS BIBLICAL LAW? 231

ologists have already done work along this line.26 They have turned up some dis-
crepancies between practice and the codes,27 but they have also found points of
agreement.28 It is not the case, as Fitzpatrick-McKinley argues, that “if the codes
were intended to describe the law in practice, it must be concluded that they are not
very accurate descriptions.”29 The evidence is indecisive. More work remains to
be done in assessing the relationship between the codes’ content and the law that
was practiced.
This raises the question that I seek to address in the remainder of the article.
How is this to be done with the biblical codes? In other words, if an important clue
to the nature of the pentateuchal codes is their connection—or lack thereof—to
practiced law, how does one go about assessing that connection? Pursuing this
question is important not only for adjudicating between the two views of biblical
law just discussed (views D and E) but also for bringing a more informed per-
spective to all of the aforementioned views. If the codes, for instance, were indeed
the authoritative law of Israelite society, it would stand to reason that their rules
would be reflected in the legal practice of the time.
Ideally, of course, one would like to make comparisons between Israelite and
Judahite legal documents of practice and the pentateuchal laws. There are virtually
no legal documents of practice, however, from ancient Israel and Judah.30 Although
not the only other possible approach, a much more achievable task is to identify
connections, if any, between the pentateuchal codes and legal documents of prac-

26 Rivka Harris, “The nadītu Laws of the Code of Hammurapi in Praxis,” Or 30 (1961) 163-69;

Gerhard Ries, “Ein neubabylonischer Mitgiftprozess (559 v. Chr.): Gleichzeitig ein Beitrag zur
Frage der Geltung keilschriftlicher Gesetze,” in Gedächtnisschrift für Wolfgang Kunkel (ed. Dieter
Nörr and Dieter Simon; Frankfurt: Klostermann, 1984) 345-63; Herbert Petschow, “Die §§45 and
46 des Codex H}ammurapi—Ein Beitrag zum altbabylonischen Bodenpachtrecht und zum Problem:
Was ist der Codex H}ammurapi,” ZA 74 (1984) 181-212; and Sophie Lafont, “Ancient Near Eastern
Laws: Continuity and Pluralism,” in Theory and Method in Biblical and Cuneiform Law: Revision,
Interpolation and Development (ed. Bernard M. Levinson; JSOTSup 181; Sheffield: Sheffield Aca-
demic Press, 1994) 91-118.
27 See the discussions in Fitzpatrick-McKinley, Transformation of Torah, 82-95; and Fried,

“Ezra’s Mission,” 74-75. Fitzpatrick-McKinley believes that there is “an overall consensus that
these discrepancies and contradictions [between the codes and practice] do exist” (p. 100 n. 51).
Fried cites only one example but speaks of “the fact that many cases are resolved entirely differently
than the codes suggest, as if the codes did not exist” (p. 74).
28 Mariano San Nicolò, “Parerga Babylonica VII: Der §8 des Gesetzbuches H}ammurapis in

den neubabylonischen Urkunden,” ArOr 4 (1932) 327-48; Ries, “Ein neubabylonischer Mitgift-
prozess”; and Petschow, “Die §§45 and 46 des Codex H} ammurapi.”
29 Fitzpatrick-McKinley, Transformation of Torah, 108. Fitzpatrick-McKinley seems a bit

inconsistent on this point. Previously she stated that the evidence for legal practice is so scarce that
“it is impossible to ascertain whether or not the codes reflect such practice” (pp. 99-100). Then she
finds the evidence sufficient to conclude that they do not.
30 See Bruce Wells, The Law of Testimony in the Pentateuchal Codes (Beihefte zur Zeitschrift

für altorientalische und biblische Rechtsgeschichte 4; Wiesbaden: Harrassowitz, 2004) 5 n. 14.

1wells:Layout 1 3/5/2008 8:32 PM Page 232

232 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

tice from other ancient Near Eastern societies. This is a process of reasoning from
the known to the unknown. We do not know the actual legal practice of ancient
Israel and Judah. What can be known is the practice of law in other ancient Near
Eastern societies. If legal documents of practice from these societies reflect issues
and rules similar to those in the pentateuchal codes, then a connection can be estab-
lished between the codes and real-life law. This might then allow for the supposi-
tion that a connection also exists between at least some of the pentateuchal laws
and the legal systems of ancient Israel and Judah. To put it another way, the evi-
dence that the pentateuchal codes share practices, concepts, and lines of reasoning
with the legal systems of neighboring societies supports the idea that the codes
reveal more than religious ideology or moral wisdom. The biblical codes take up
matters of law and, very possibly, matters of law in the societies from which they
themselves come. To be sure, they also seem to contain some provisions composed
solely for political or ideological purposes. Yet the evidence below counters any
hasty or wholesale rejection of potential connections between biblical law and
legal practice.

II. The Evidence of Ancient Near Eastern Practice

Looking for parallels to pentateuchal laws in the vast corpus of ancient Near
Eastern legal documents of practice is not new. For example, the slave laws at the
beginning of Exodus 21 have been compared to documents from Nuzi.31 The lat-
ter describe persons entering the servitude of another, sometimes as an ordinary
slave and sometimes in a somewhat different capacity, perhaps as a pledge. The
similarities are inexact, but a number of scholars see a connection between the
legal issues addressed. Much of the evidence presented below, however, has not
been treated previously in studies of biblical law. I will consider legal texts from
both Mesopotamia and Syria that address issues also addressed by the pentateuchal
codes. Specifically, four biblical texts—two from the Covenant Code and two from
the Deuteronomic Code—will be examined and compared with these other docu-
ments. I will endeavor to show that the legal problems and even some of the actual
rules that occur in the biblical material are evident as well in the Mesopotamian and
Syrian texts. These biblical passages provide the opportunity to consider the prin-
cipal types of connections that biblical law appears to share with the ancient Near
Eastern practice of law. This list is representative rather than exhaustive, since
other such connections could be cited. Three types present themselves most clearly:
similar legal issues, similar legal reasoning, and similar legal remedies.

31 Paul, Studies, 45-61; Niels Peter Lemche, “‘The Hebrew Slave’: Comments on the Slave

Law Ex xxi 2-11,” VT 25 (1975) 129-44; and Chirichigno, Debt-Slavery, 92-100, 200-218, 244-54.
1wells:Layout 1 3/5/2008 8:32 PM Page 233

WHAT IS BIBLICAL LAW? 233

A. Similar Legal Issues

The first type of connection entails similar legal problems, concerns, or issues.
Such issues become apparent when a provision in one of the biblical codes
addresses a particular situation that is dealt with also in a legal document (but not
a law code) from another ancient Near Eastern culture. It is true that one could
identify similarities in this regard that occur at a rather general level (e.g., both
biblical law and ancient Near Eastern documents of practice treat the issue of slav-
ery), but connections of this type would fail to tie the biblical material closely
enough to the practice of law to be convincing. It is important that the similarity
be sufficiently specific for one reasonably to conclude that both sets of material
arise from what is essentially the same legal motivation. That is, both stem from a
concern about how the situation in question should be handled as a matter of law.
This does not necessarily mean that the biblical and the nonbiblical texts will arrive
at the same conclusion regarding how to solve the problem or manage the issue,
but it does mean that both are interested in answering a very similar legal question.
The beginning of the Covenant Code offers a useful example. Exodus 21:2-6
sets forth a law regarding male Hebrew slaves—specifically debt-slaves.32 The
main point of the law is that the slave should serve in his master’s household for
six years and go free in the seventh year. Part of the law goes on to consider what
should happen if the slave enters the household unmarried and is given a wife by
his master at some point during his six years of servitude. The text states: “the
woman and her children belong to his33 master; he shall leave by himself ” (v. 4).34
A contract from the Late-Bronze-Age site of Emar in Syria considers a similar sit-
uation. It treats the issue of what to do when a man, in servitude to another, receives
a wife from his master and then leaves the household of the latter.
This contract is Emar 16 and contains an antichretic pledge agreement.35

32 For the view that this passage is about debt-slaves rather than chattel-slaves, see Chirichigno,

Debt-Slavery, 182-84; and Eckart Otto, review of John Van Seters, A Law Book for the Diaspora:
Revision in the Study of the Covenant Code (Oxford: Oxford University Press, 2003), Review of
Biblical Literature, online at http://www.bookreviews.org. On debt-slaves in general, see Raymond
Westbrook, “The Development of Law in the Ancient Near East: Slave and Master in Ancient Near
Eastern Law,” Chicago-Kent Law Review 70 (1995) 1631-76, esp. 1651-53.
33 Following the LXX (presumably, ‫ )לאדניו‬as opposed to the MT, which has “her master”

(‫)לאדניה‬.
34 Unless otherwise noted, all translations of biblical and nonbiblical texts are those of the

author.
35 The tablet is published in Daniel Arnaud, Recherches au pays d’Aštata: Emar VI (4 vols.;

Synthèse 18; Paris: Éditions Recherche sur les Civilisations, 1985-87). An antichretic pledge is one
that can be used by the creditor. The benefit or income obtained by the creditor through the use of
the pledge takes the place of any interest payment that might be attached to repayment of the loan
(Carlo Zaccagnini, “Nuzi,” in A History of Ancient Near Eastern Law [ed. Raymond Westbrook;
2 vols.; HO 72; Leiden: Brill, 2003] 1. 565-617, esp. 609).
1wells:Layout 1 3/5/2008 8:32 PM Page 234

234 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

Admittedly, the status of a pledge and that of a debt-slave were somewhat differ-
ent. The primary difference was that the status of a pledge was typically governed
by contractual stipulations, which often limited the master’s degree of authority
over the pledge. With debt-slaves, in contrast, the master had more discretionary
power. The two types of status, however, still share a number of features. “Debtors
could give themselves or persons under their authority to creditors by way of
pledge. The resulting conditions were analogous to those of slavery: the pledge
lost his personal freedom and was required to serve the pledgee, who exploited
the pledge’s labor.”36 It was possible for both a pledge and a debt-slave to be
redeemed, usually with repayment of the debt. Moreover, the creditor could ordi-
narily not sell a pledge or a debt-slave to another owner.37 Thus, the fact that this
contract from Emar is about a pledge rather than a debt-slave by no means prevents
its use as an object of comparison with the Exodus text. The contract reads as fol-
lows:
Sin-abu, son of Ba’al-qarrad, said: “Bazila, son of Arad-ili, is my servant for forty-one
shekels of silver. Now I have cancelled twenty shekels of silver from that amount. In
addition, I have given him Abiqiri for his wife. During the days that Sin-abu and
Arnabu, his wife, shall live, Bazila will serve them. If he serves them, then after they
pass away, he may take the hand of his wife and his children, and he may go where
he pleases. But he will pay twenty-one shekels of silver to our sons.”
If, in the future, someone offers silver to Bazila, he will give it to Sin-abu and his
wife. And after his silver is paid, Bazila will serve them all the days that Sin-abu and
his wife shall live.
If, in the future, Sin-abu and his wife say to Bazila, ‘Return our silver and go away
from our house,’ then Sin-abu and his wife will have no claim to their silver. Bazila
may take the hand of his wife and his children and may go where he pleases.
If Bazila says to Sin-abu and his wife, ‘I will not serve you—take your silver, for I
am going away from your house,’ then Bazila will have no claim to his wife and his
children. He will pay sixty-one shekels of silver to Sin-abu and his sons, and he may
go where he pleases.
If, in the future, Bazila dies, then Abiqiri, his wife, will serve them all the days that
Sin-abu and his wife shall live. If she serves them, after they pass away in the future,
Abiqiri, as a widow, will be with the widows and, as a divorcée, will be with the divor-
cées. The sons of Sin-abu will not sue her. If they sue, this tablet will defeat them. If
Abiqiri dies, then Bazila will serve them all the days that Sin-abu and his wife shall
live. After they pass away, he may go where he pleases.
If, during all the days that Sin-abu and his wife shall live, he does not pay them
those twenty-one shekels of silver, in the future Bazila will pay twenty-one shekels of
silver to the sons of Sin-abu, and then he may go where he pleases.”

36 Westbrook, “Slave and Master,” 1636.

37 Ibid., 1636 and 1643.
1wells:Layout 1 3/5/2008 8:32 PM Page 235

WHAT IS BIBLICAL LAW? 235

The main character in the contract is Bazila, who enters the household of Sin-
abu as a pledge. The debt owed by Bazila to Sin-abu is forty-one shekels of silver,
a debt he cannot pay. When Bazila enters his household, Sin-abu cancels almost
half the debt, leaving a balance of twenty-one shekels. He also gives Bazila a wife.
The main point of the contract is to require Bazila to take care of Sin-abu and Sin-
abu’s wife for the remainder of their lifetimes. After they die, Bazila is free to take
his own wife and children and go wherever he likes, but only after he pays the out-
standing twenty-one shekels to Sin-abu’s sons.
The contract then envisions six contingencies that might affect how all of this
transpires. The first has to do with the possibility that someone else might want to
pay off Bazila’s debt. The next two consider what to do if either party—Bazila or
Sin-abu—reneges on the agreement. The fourth and fifth contingencies involve
the possible untimely death of Bazila and his wife. If one dies, the other must con-
tinue taking care of Sin-abu and his wife until they pass away. The last simply
states that if Bazila fails to pay the remainder of the debt while Sin-abu and his wife
are still alive, he must pay it to their sons. In most of these instances, Bazila has
the opportunity to fulfill his obligation to take care of Sin-abu and his wife, to pay
off the debt, and then to take his wife and children with him when he leaves. If he
is the one to renege on the agreement, however, and decides that he wants to leave
before Sin-abu and his wife have passed away, the contract states that he may do
so, if he pays off the debt plus a very high interest charge, nearly fifty percent. But
he is not allowed to take his wife and children with him in this case. They remain
in the household of Sin-abu. It is this contingency that presents a thematic con-
nection with the law of the male debt-slave in the Covenant Code.
Both the Emar contract and the law in Exodus consider how to handle situa-
tions in which a master gives a wife to one who is in his service—either a slave or
a pledge.38 Both address the question: should the slave or pledge be allowed to
take his wife and children with him when he leaves the service of his master? The
Emar contract grants the pledge this privilege in most cases, though it denies him
the opportunity when he fails to fulfill his contractual obligations. The text in Exo-
dus does not explicitly grant this privilege. It seems to imply that any wife given
by the master will always remain with the master, but it does not speak to the vari-
ety of scenarios that the Emar contract envisions. Perhaps it would allow such a
wife to go with the departing debt-slave in certain instances, such as when a con-
tract includes provisions to that effect. This is admittedly speculative, and the mat-

38 Other texts also deal with this same issue and state when a man who is in an inferior posi-

tion (e.g., slave, pledge, adoptee) can keep a wife given to him by his superior (master, creditor,
adoptive father). These include AO 5, 234 no. 14 from Emar and JEN 610 from Nuzi (on this text,
see Paul, Studies, 48-49; and Chirichigno, Debt-Slavery, 215-16). Both of these texts contain restric-
tions similar to the one in the Emar contract.
1wells:Layout 1 3/5/2008 8:32 PM Page 236

236 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

ter must remain uncertain for the time being. Nevertheless, the same essential legal
problem turns up in both cases. Thus, the Emar contract provides evidence that
the passage in Exodus deals with an issue that was of genuine concern in the legal
system of an ancient Near Eastern society.39

B. Similar Legal Reasoning

One could say that it is somewhat unremarkable that laws in the Pentateuch
address topics or concerns that also arise in ancient Near Eastern legal documents
of practice; in some respects, this type of link is to be expected. The connections
between biblical law and ancient Near Eastern practice, however, run to a deeper
level. There are rules in the biblical codes that reflect ways of thinking—particu-
lar lines of legal reasoning—that are present in a number of ancient Near Eastern
texts as well. This type of similarity tightens the connection between biblical law
and the world of legal practice.
One of the best illustrations comes from the law in Deut 21:1-9. Others have
observed this particular connection, but it warrants repeating here.40 The law pre-
scribes what should happen when an apparent murder has taken place in a rural
area. There are no witnesses, and no one has any idea as to the perpetrator. The law
requires the city closest to where the slain body was found to take responsibility
for dealing with the crime. The elders of that city must perform a ritual that
absolves them and their city from the guilt of murder. As part of the ritual, they
must declare that they, representing the inhabitants of their city, have not commit-
ted the murder, nor do they know who did (“our hands did not shed this blood, and
our eyes did not see it” [v. 7]).41

39 Other examples could be cited as well. For instance, the law of deposit in Exod 22:6-8 dis-
cusses what to do when a dispute arises between the depositor and the receiver over goods that have
allegedly gone missing. The law considers several scenarios, including deceit on the part of either
the depositor or the receiver of the goods. This very issue is at the heart of a trial from Nuzi recorded
in HSS 9, 108 (Excavations at Nuzi Conducted by the Semitic Museum and the Fogg Art Museum
of Harvard University, with the Cooperation of the American School of Oriental Research in Bagh-
dad [Harvard Semitic Series 5, 9, 10, 15; Cambridge, MA: Harvard University Press, 1929–]).
There, the depositor accuses the receiver of misappropriating his goods, but the former is ultimately
the one found guilty of fraud. There are also the documents of practice that relate to the law of
redemption in Lev 25:47-55, as cited in Reuven Yaron, “Redemption of Persons in the Ancient Near
East,” RIDA 6 (1959) 155-76.
40 See, e.g., Anton Jirku, “Drei Fälle von Haftpflicht im altorientalischen Palästina-Syrien und

Deuteronomium cap. 21,” ZAW 79 (1967) 359-60; Paul-Eugène Dion, “Deutéronome 21,1-9: Miroir
du développement légal et religieux d’Israël,” SR 11 (1982) 13-22, esp. 16-19; Raymond Westbrook,
“Lex Talionis and Exodus 21,22-25,” RB 93 (1986) 52-69, esp. 62-65; and Willis, Elders of the City,
147-49.
41 One of the purposes of the ritual may be to remove from the community the pollution and

defilement that have come upon it as a result of the taking of innocent life (Barmash, Homicide, 104-
1wells:Layout 1 3/5/2008 8:32 PM Page 237

WHAT IS BIBLICAL LAW? 237

There are five Akkadian texts from Late-Bronze-Age Ugarit that assign cul-
pability for unsolved murder cases in a fashion similar to that of the Deuteronomic
law. These include three treaties between the cities of Carchemish and Ugarit (Ras
Shamra [RS] 17.146; 17.230; and 18.115), one letter from the king of Carchemish
to the king of Ugarit (Ugaritica V no. 27), and one trial record that appears to deal
with a case of this nature (RS 20.22).42 The text of one of the treaties states the fol-
lowing:43
If merchants serving the king of Ugarit are killed within the land of Carchemish, and
their murderers are apprehended, the citizens of Carchemish shall make full reim-
bursement for their [the victims’] goods and their possessions, according to what [i.e.,
the amount] their [the victims’] colleagues state. The citizens of Carchemish shall also
pay three minas of silver as compensation for each person (killed). The citizens of
Ugarit shall swear regarding (the amount of) their [the victims’] goods and their pos-
sessions. The citizens of Carchemish shall make reimbursement accordingly for their
goods and their possessions. If someone’s body is discovered, but their murderers are
not apprehended, the citizens of Carchemish shall go to the land of Ugarit and shall
take the following oath: “We do not know their murderers,44 and the goods and pos-
sessions of these merchants have been lost.” Then the citizens of Carchemish shall
pay three minas of silver as compensation for each person (killed). (RS 17.146, lines
6-27)

In this document, as in the others, the issue of murder by an unknown assailant

arises. Moreover, in all five the issue is resolved by having the leaders of the city
where the body was found be responsible for absolving themselves and their com-
munity of the crime, just as Deut 21:1-9 states that the elders of the closest city
must do.45 The city leaders achieve this by making a sworn statement, similar to

13); see also David P. Wright, “Deuteronomy 21:1-9 as a Rite of Elimination,” CBQ 49 (1987) 387-
403.
42 For editions and discussions of the treaties, see Barmash, Homicide, 184-90; for the trial

record, see ibid., 194-95. Barmash does not discuss the letter from the king of Carchemish (see
Ugaritica, vol. 5 [Mission de Ras Shamra 3; Bibliothèque archéologique et historique 31; Paris:
Imprimerie nationale, 1939–]). Four other Akkadian texts from Ugarit may relate to this issue
(RS 17.42; 17.145; 17.158; and 17.229). Each refers to a dispute over the murder of a merchant of
one city in the land controlled by another (see Barmash, 192-94 and 197-98). A final text that may
relate to this issue is the Neo-Assyrian document ADD (Assyrian Deeds and Documents) 618 (see
Barmash, 29-30).
43 Published in Jean Nougayrol, Le Palais royal d’Ugarit, IV: Textes accadiens des Archives

Sud (Archives Internationales) (Mission de Ras Shamra 9; Paris: Imprimerie nationale, 1956).
44 This part of the statement is framed as a classic assertory oath: šum-ma LU .MEŠ da-i-ku-ti-
2
šu-nu ni-di-mì. This is, literally, “if we know the men (who are) their murderers.” In such instances,
the unstated apodosis was typically assumed to be something on the order of “may the gods punish
us.” See Sophie Lafont, “La procédure par serment au Proche-Orient ancien,” in Jurer et maudire:
Pratiques politiques et usages juridiques du serment dans le Proche-Orient ancien (ed. Sophie
Lafont; Paris: L’Harmattan, 1997) 185-98.
45 Granted, the texts refer to the “citizens” of a particular city (e.g., DUMU.MEŠ ša KUR uruu-ga-
1wells:Layout 1 3/5/2008 8:32 PM Page 238

238 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

the one in Deuteronomy. They specifically state that they do not know who com-
mitted the murder, and, in so doing, they imply that they themselves are not guilty.
These documents present a method of reasoning about a legal issue that parallels
the one found in Deuteronomy. In the event that the identity of a murderer remains
unknown, it is the city or town in the vicinity of which the murder took place that
must deal with the matter. In the biblical text, the elders of the town are responsi-
ble to Yhwh for absolving themselves of this guilt and, presumably, sparing their
community from punishment. In the documents from Ugarit, the leadership of one
city bears this responsibility with respect to that of another. The basic line of rea-
soning in both instances, though, remains quite similar.46

C. Similar Legal Remedies

A third type of connection is at the level of similar legal remedies. One of the
Covenant Code’s principal laws on theft is found in Exod 21:37 and 22:2b-3. The
intervening statements in 22:1-2a are related to the topic but interrupt the flow of
thought that carries over from the end of 21:37 to the beginning of 22:2b.47 Thus,
the combination of 21:37 and 22:2b-3 forms its own coherent law. This law states
that someone who steals a herd animal (‫ )שׁור‬or a flock animal (‫ )שׂה‬will have to
pay back a multiple of what was stolen. If the animal is slaughtered or sold, the
payment is fivefold for herd animals and fourfold for flock animals. If the stolen
animal is discovered alive in the possession of the thief, the payment is twofold,
irrespective of the herd/flock distinction.
Middle Babylonian documents of practice from the late Kassite period (the
late second millennium B.C.E.) offer a significant parallel. A number of them are
records of trials from the city of Ur, and several of these deal with the theft of cat-
tle.48 The punishment for such theft is not clear in all cases, owing to damage to

ri-it; literally, “the sons of the land of Ugarit”). One can hardly imagine, though, all the citizens of
the city becoming involved in each matter. There was undoubtedly a representative group of lead-
ers who acted on behalf of the city and its inhabitants.
46 A parallel in legal reasoning also occurs between Neo-Babylonian trial records and the

Deuteronomic requirement that at least two witnesses support the position taken by the plaintiff or
prosecution in a given case before a guilty verdict is issued (Deut 17:6; 19:15). In a number of cases,
Neo-Babylonian courts call for an additional witness to corroborate the charges of the initial accuser
before they will render a guilty verdict. By so doing, these courts demonstrate the same reluctance
as the texts in Deuteronomy to rely on a sole accuser. Approximately forty documents fall into this
category. For a full discussion of these texts, see Wells, Law of Testimony, 108-26.
47 Brevard S. Childs, The Book of Exodus: A Critical, Theological Commentary (OTL;

Philadelphia: Westminster, 1974) 474.

48 See O. R. Gurney, The Middle Babylonian Legal and Economic Texts from Ur (London:

British School of Archaeology in Iraq, 1983) 8-10.

1wells:Layout 1 3/5/2008 8:32 PM Page 239

WHAT IS BIBLICAL LAW? 239

the tablets, but it is clear in some. The following is a portion of one of these doc-
uments, UET 7, 43, beginning with line 15 on the obverse side.49
i Zēru-
One ox belonging to Shagarea, son of Sîn-kūtu(?), was stolen by Abu-tābu,
kīnu, and Sîn-pūtu; replacements(?) were seized and Shagarea received three cows
from Abu-tābu.i Six aripû garments from Abu-tābu i Sîn-mutīr-gimilli, the mayor,
received.
i
All this is what Shagarea received from Abu-tābu.
One cow belonging to Dan-Nergal was stolen by Abu-tābu, i Zēru-kīnu, and Sîn-
i
pūtu; replacements(?) were seized and Dan-Nergal received two cows from Abu-tābu.
One shekel of red gold Sîn-mutīr-gimilli, the mayor, received.
i 50
All this is what Dan-Nergal received from Abu-tābu.

The punishment for the first theft appears to be a threefold payment, while the
punishment for the second is a twofold payment. The reason that the first payment
seems higher may be that the stolen item was a bull or an ox, which may have
been deemed more valuable than a cow. The fine is paid in cows, as opposed to
oxen; perhaps, therefore, a payment of three cows was considered roughly equiv-
alent to a payment of two oxen.51 The payments going to the mayor are the latter’s
compensation for adjudicating the case.
With respect to their handling of the crime of animal theft, these Middle Baby-
lonian trial records manifest an approach that is similar to that of the Covenant
Code. The punishment is set at a multiple of the number of animals stolen. More-
over, the same multiple—the twofold penalty—turns up in both the biblical text
and the Mesopotamian documents. Unfortunately, the latter do not provide enough
information to ascertain whether the Mesopotamian courts made the same dis-
tinctions as those found in Exodus: herd animals versus flock animals and sold or
slaughtered animals versus live animals in the possession of the thief. Neverthe-
less, they do provide evidence that an ancient Near Eastern legal system imposed
punishments quite similar to those called for in the pentateuchal passage.
Another similar legal remedy occurs with the law in Deut 19:16-21 that gov-
erns false accusation. It states: “if the witness is a false witness and has accused the
other falsely, then you shall do to the witness just as the witness intended to do to
the other person” (vv. 18-19). There are Mesopotamian documents from earlier
periods, such as the Old Babylonian period, according to which witnesses who

49 Published in O. R. Gurney, Middle Babylonian Legal Documents and Other Texts (Ur Exca-

vations Texts 7; London: British Museum Publications, 1974).

50 Gurney, Middle Babylonian Legal and Economic Texts, 122-23.
51 UET 7, 15 also reflects a twofold penalty for theft of a cow (see Gurney, Middle Babylo-

nian Legal and Economic Texts, 60-62). For the theft of four cows, UET 7, 10 records a penalty of
twelve cows along with the transfer of a young girl to the victim (see ibid., 49-52). This would
amount to a fine in excess of three times what was stolen.
1wells:Layout 1 3/5/2008 8:32 PM Page 240

240 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

give false testimony are punished.52 But often these witnesses are not parties to the
trial. The law in Deuteronomy 19 is not about false testimony in general; it is
specifically about false statements by an accuser, the one who brings the case to
court.53 Moreover, the punishment it outlines is a particular type of punishment—
talionic retribution. The question, then, is whether there is evidence for talionic
punishment of false accusers in ancient Near Eastern legal practice. Some of the
best evidence for this comes from Neo-Babylonian trial records. In several of these,
the court imposes this very punishment.54 One such record, Nbn 13, comes from
the reign of Nabonidus.55
Belilitu, daughter of Bel-ušezib . . . spoke to the judges of Nabonidus, king of Baby-
lon, saying: “In month 5 of year 1 of Nergal-šar-usur,i king of Babylon, I sold my slave
Bazuzu for thirty-five shekels of silver to Nabu-ah~h~e-iddin, son of Šula. He made out
a promissory note, but did not pay the silver.” The royal judges heard (her statement)
and brought Nabu-ah~h~e-iddin to stand before them. Nabu-ah~h~e-iddin carried in the
written agreement that he had made together with Belilitu (as proof that) he paid her
the silver, the purchase price of Bazuzu, and he showed (it to) the judges. Then Zeriya,
Nabu-šum-lišir, and Etellu testified before the judges that the silver of Belilitu, their
mother, had been paid. The judges deliberated, and they ruled against Belilitu for
thirty-five shekels of silver, as much as her claim was, and awarded it to Nabu-ah~h~e-
iddin.56

This document records the details of a suit in which a woman, Belilitu, lodges
an accusation against a man, Nabu-ah~h~e-iddin. She had sold a slave to this man
three years prior to bringing the suit. Belilitu accuses Nabu-ah~he~ -iddin of not hav-
ing paid the thirty-five shekels of silver, the purchase price of the slave. In his
defense, Nabu-ah~he~ -iddin provides to the judges the tablet showing that he paid the
full price to Belilitu. As if that were not enough, the three sons of Belilitu then tes-
tify against their mother. They assert that their mother did indeed receive all of the
money to which she was entitled. Then, the judges “ruled against Belilitu for thirty-
five shekels of silver, as much as her claim was, and awarded it to Nabu-ah~h~e-

52 See Herbert Petschow, “Altorientalische Parallelen zur spätrömischen Calumnia,” Zeitschrift

der Savigny-Stiftung für Rechtsgeschichte 90 (1973) 14-35; Martha T. Roth, “A Reassessment of RA

71 (1977) 125ff.,” AfO 31 (1984) 9-14; and Marten Stol, “Eine Prozeßurkunde über ‘falsches Zeug-
nis,’” in Marchands, diplomates et empereurs: Etudes sur la civilisation mésopotamienne offertes
à Paul Garelli (ed. Dominique Charpin and Francis Joannès; Paris: Éditions Recherche sur les Civil-
isations, 1991) 333-39.
53 Isac L. Seeligmann, “Zur Terminologie für das Gerichtsverfahren im Wortschatz des bib-

lischen Hebräisch,” in Hebräische Wortforschung: Festschrift zum 80. Geburtstag von Walter Baum-
gartner (ed. Benedikt Hartmann et al.; VTSup 16; Leiden: Brill, 1967) 251-78, here 262-63.
54 For more on the Neo-Babylonian evidence, see Wells, Law of Testimony, 149-55.
55 Published in Johann N. Strassmaier, Inschriften von Nabonidus, König von Babylon (555–

538 v. Chr.) (Babylonische Texte 1-4; Leipzig: Eduard Pfeiffer, 1889).

56 This translation is adapted from that in Wells, Law of Testimony, 181.
1wells:Layout 1 3/5/2008 8:32 PM Page 241

WHAT IS BIBLICAL LAW? 241

iddin.” Thus, the amount of the fine equals the amount that Nabu-ah~he~ -iddin would
have had to pay, if the judges had found in favor of Belilitu. As the law in Deuter-
onomy would have required, the court in this case imposes talionic punishment
on the plaintiff for false accusation.
The law in Deut 19:16-21 appears to have much in common with provisions
in other law collections.57 It has been argued that Deuteronomy is relying on the
stream of tradition represented by these provisions in the cuneiform codes for its
own law that stipulates talionic punishment for false accusers.58 This may be cor-
rect. It does not necessarily follow, however, that this law in Deuteronomy and the
stream of tradition from which it appears to derive fail to reflect what went on in
actual practice. Thus, the question is not whether the authors of Deuteronomy drew
from scribal academic or literary tradition, on the one hand, or from legal practice
with which they were familiar, on the other. Regardless of the source the authors
of Deuteronomy may have used, the question at issue here is whether the rule rep-
resented by this law was applied in ancient Near Eastern legal practice. The Neo-
Babylonian evidence cited above demonstrates that, to some extent, it was.59

III. Conclusions
The evidence from ancient Near Eastern legal documents of practice points
to a number of conclusions that can be drawn regarding the legal material in the
Pentateuch. First, there are pentateuchal texts and ancient Near Eastern documents
of practice that appear to address similar legal issues. The connection between the
law in Exodus on male debt-slaves and Emar 16 illustrates this point. Both face the
question of whether a wife given to a male slave or pledge by his master can be
allowed to accompany her husband when he is released from servitude. That their
respective answers to the question differ does not necessarily preclude the answer
in Exodus from reflecting actual legal practice. Second, there are pentateuchal
texts and ancient Near Eastern documents of practice that appear to share similar
legal reasoning. The law in Deut 21:1-9 and the documents from Ugarit are a case
in point. When faced with an unsolved—and apparently unsolvable—homicide,
both reach the conclusion that it is the local municipality where or closest to which
the murder took place that should bear responsibility for the matter. Third, certain

57 For example, Laws of Lipit-Ishtar §17 and Laws of Hammurabi §§1-4.

58 See, e.g., Eckart Otto, “Recht im antiken Israel,” in Die Rechtskulturen der Antike: Vom
alten Orient bis zum Römischen Reich (ed. Ulrich Manthe; Munich: Beck, 2003) 151-90, here 172.
59 Other examples of similar legal remedies could be cited. Eckart Otto (“Neue Aspekte zum

keilschriftlichen Prozessrecht in Babylonien und Assyrien,” Zeitschrift für altorientalische und bib-
lische Rechtsgeschichte 4 [1998] 263-83, here 279), for example, refers to a Neo-Assyrian trial
record (SAAS V No. 14) that contains a sentence corresponding to the stipulation in Exod 22:2bβ:
a thief who cannot make restitution will be sold for his theft.
1wells:Layout 1 3/5/2008 8:32 PM Page 242

242 THE CATHOLIC BIBLICAL QUARTERLY | 70, 2008

pentateuchal laws and ancient Near Eastern documents of practice reveal similar
legal remedies. Middle Babylonian trial records from Ur contain penalties for cat-
tle theft that largely correspond to the approach outlined in the Covenant Code for
the same crime. In addition, Neo-Babylonian trial records show Mesopotamian
courts implementing a rule nearly identical to the one in Deuteronomy 19 when
they punish those who are guilty of false accusation.60
It must be admitted, though, that not every law in the Pentateuch possesses
strong similarities to documents of practice from ancient Near Eastern societies.
For some pentateuchal laws, there are virtually no documents that provide the kind
of evidence for legal practice that I have been describing here. The laws on the
goring ox in the Covenant Code (Exod 21:28-32, 35-36) are an example of this. To
be sure, these laws are most likely related to a set of long-standing traditions about
the problem of a goring ox—a set of traditions reflected in the Laws of Eshnunna
(LE §§53-55) and the Laws of Hammurabi (LH §§250-52). It is not at all clear,
however, whether these laws are related to how the legal systems of the ancient
Near East would have actually handled such matters. What does all this mean for
how we are to understand the nature of biblical law?
The evidence provided by legal documents of practice from ancient Near
Eastern societies other than Israel and Judah would seem to warrant the following
conclusion: some pentateuchal laws reflect ancient Near Eastern legal practice,
and some may or may not. That some pentateuchal laws share similar legal issues,
reasoning, and remedies with ancient Near Eastern documents of practice strength-
ens the likelihood that others, though not all, do as well. Thus, this evidence
appears to favor only some of the points of view described in the first section of
the article. Although it does not provide decisive proof, the evidence tends to favor
those views that allow for some level of connection between the provisions in the
codes and real-life law: views A (authoritative law), B (competing sets of author-
itative law), and D (legally descriptive treatises). It tends to disfavor those views
that sever the connection between the codes and legal practice: views C (theoret-
ical treatises) and E (nonlegal treatises).
Ultimately, though, it seems that a single view is insufficient to explain all the
material in the pentateuchal laws. I prefer view D (legally descriptive treatises) as

60 Most of the ancient Near Eastern documents of practice that provide parallels to the penta-

teuchal rules discussed above come from the latter half of the second millennium B.C.E. This does
not, of course, require the biblical codes or any portion of them to be dated to that time period. It is
clear, though, that several pentateuchal laws show similarities to what would appear to be older
legal practices: those specifically cited from Emar, Ugarit, and Ur, along with other parallels from
Nuzi (see nn. 38-39 above). Moreover, much of the evidence for these older practices comes from
outside the Mesopotamian heartland and from outside Babylonia in particular. Thus, if rules like a
number of those in the Pentateuch were in use at such an early date and well to the west of
Mesopotamia, it may be reasonable to assume that similar laws could have been practiced in Israel
and Judah as well.
1wells:Layout 1 3/5/2008 8:32 PM Page 243

WHAT IS BIBLICAL LAW? 243

an explanation for much of the material in the codes. This is due to the connections
with ancient Near Eastern practice described above and because there is no clear
evidence that any of the biblical or cuneiform codes were used by trial courts as
the basis for verdicts. Still, this explanation does not seem to work in every case.
It is likely that at least some of the laws in the biblical codes reflect the idiosyn-
cratic ideals of a particular code’s authors. The most obvious examples might be
the Deuteronomic provisions that promote the centralization of worship and those
that regulate the power of the king. What other laws, then, are also innovative in
nature? Would these laws have ever been put into actual practice? It may well be
that some sort of combination of viewpoints is required. Questions could also be
raised regarding the relationship between many of the Pentateuch’s legal provi-
sions and the religious, political, and social goals of their respective authors.
Nonetheless, the demonstrable connections between pentateuchal rules and ancient
Near Eastern legal practice—and what would thus appear to be the genuinely legal
nature of much of the pentateuchal codes—warrant important consideration in fur-
ther analysis into the nature of what we call biblical law.