Sunday, February 22, 2009

Eli Putterman's Shema Koleinu Essay

Eli Putterman


The legal and theological context of Mishpatim1

Consider the following excerpts from ancient legal material from the Near East:


If an ox gores another ox and thus causes its death, the two owners shall divide the value of the living ox and the value of the dead ox.


If an ox gores a man to death while it is passing through the streets, that case has no basis for a claim.


If a man’s ox is a known gorer… and that ox gores [a man] to death, he shall give 30 shekels of silver.


These laws sound like they were quoted directly from the civil law of the Torah, do they not? In fact, they are taken from two early-second-millennium BCE Mesopotamian codes: the first from the Laws of Eshunna, and the latter from the Code of Hammurabi. But one would not be so far off in assuming these laws were of Mosaic origin, as these exact laws, with only slightly different formulations, are to be found in Sedra Mishpatim (Shemot 21:35 and 21:28-30, respectively). The Torah was given in the fourteenth-century BCE, later by all accounts than the composition of either of these Ancient Near Eastern texts.

The extent of the similarities between the Biblical and Mesopotamian laws is too great to be put down to coincidence: besides for the legal content, the language and casuistic formulation of the respective laws are nearly identical. Why would the Torah phrase its laws in a manner similar to that of Ancient Near Eastern law? One might respond that since the earlier laws are just (as they must be if they are found in the Torah), and their content quite applicable to the Israelites, who had the same sort of society as that for which the Mesopotamian codes were intended, the Torah included them. But this response does not explain why the same terminology and paradigmatic cases are used. The situation is not quite the same as the Shulkhan Arukh’s frequent borrowing from the Mishneh Torah!

If one examines just the passages in the Mesopotamian and Torah legal texts, the problem indeed seems irresolvable. To understand the reason that the Torah law took its formulations from external Ancient Near Eastern sources, it is necessary to widen the scope. When the respective legal corpora are compared in full, it becomes apparent that the similarities between Torah and Mesopotamian law are deliberate, existing to highlight the significant differences between them.

First of all, while the Biblical law prescribes that the ox that gores a human to death, whether it is a first-time or habitual gorer (shor tam and shor mu‘ad in rabbinic terminology), be stoned, the Mesopotamian law does not. In addition, in the case of theshor mu‘ad, an example of what contemporary jurists would deem ‘negligent homicide,’ the Torah recognizes in principle that the owner of the ox is deserving of capital punishment, but (in a formulation unique to this case) allows him to provide monetary compensation instead. Finally, the Laws of Eshunna use the same root (ngp) to describe an ox’s goring of another ox and of a human, while the Biblical law uses different roots for these scenarios: ngp for an ox’s goring of an ox, but ngh for goring of a human.

In addition, it should be noted that the Torah states that in the case of an ox goring a human, the same law applies whether the victim is a man or a woman, an adult or a minor. To understand why this provision must be made explicit, some further background in Mesopotamian law is required. The Code of Hammurabi takes the principle of lex talionis found in the Biblical ‘eye for an eye’ and follows it to its logical extreme: if a man kills (whether murderously or due to negligence) a member of the household whose status is not coequal to that of the killer, the killer himself is not subject to capital punishment but rather the corresponding member of the killer’s household – thus, if a man builds a house that collapses upon the son of the homeowner, the builder’s son is killed. Thus, it seems clear that the Torah meant to exclude the possibility that the ox’s owner’s punishment would be different based on the status of the goring victim.

It is now clear that the differences between Biblical and Mesopotamian law invalidate any attempt to draw any sort of equivalence between the two. Also, it certainly seems plausible at this point that those formulations of Torah laws which mimic Mesopotamian formulations are in fact meant to draw attention to the essential differences between the law codes. However, the original question has not been answered, only modified: why do these differences matter enough for the Torah to call attention to them? What is the deeper message here?

To answer this question, it must be understood that law does not exist in isolation: codified law, to a large extent, reflects the moral principles and values of the society to which it is applied. Hence, the Torah’s highlighting of the differences between its own legal code and those that preceded it in Mesopotamia is intended to illustrate the differences between the values of the surrounding Ancient Near Eastern societies and those that the Israelites were meant to assimilate, ‘Torah values’ in an appropriate if often misapplied idiom.

The major difference on the moral plane between Torah and Mesopotamian law was in their divergent conception of man. Mesopotamian law saw man as homo economicus, a unit of wealth not in essence distinct from other forms of property. As such, when a human resource was destroyed in Mesopotamian society, an equivalent asset would be taken in retaliation, whether that asset coincided with the perpetrator or with one of his family members. In the case of an ox goring a human, the owner of the ox simply had to make good on the financial loss sustained by the household of the victim, without the suggestion of any moral wrong being righted.

In contrast, the Torah views the worth of human life as incommensurable with that of property, and the loss of it as necessitating a fundamentally different response than that occasioned by damage to property. As such, in any case of an ox goring a human to death, the ox was to be stoned, for the taking of a human life required a response: the ox could not escape punishment, even though it was not guilty in the moral sense. Furthermore, the Biblical law entertained the possibility that one culpable of negligent homicide forfeit his own life – however, since the crime could not be classified as murder, the judgment was ransom, a commutation allowed in no case where the homicide was intentional. Finally, the use of different roots to connote goring of an ox and of a human points clearly to the fact that these were considered radically different actions with different legal consequences.

The conflict between legal and moral conceptions of man in Mesopotamian and Torah law ultimately owed its root to the discontinuity between Ancient Near Eastern and Biblical theology. In the mythic tradition of Mesopotamia, as exemplified by the Enûma Eliš and Atra-Hasis epics, man was created to serve the gods, who had real needs that had to be fulfilled by human labor. Law was then seen as an institution meant to preserve societal order, for in a state of anarchy man could not attend to the gods’ wishes, but human life had no sacred, transcendent value distinct from that of property – the humans were slaves of the gods just as animals were the slaves of the humans.

In contrast, the Biblical account of creation betrays a view of the nature of man standing in stark contrast to that of Mesopotamian culture. Man is first and foremost a being in the divine image, which endows his existence with a value which cannot be assessed on the slave market. (Nowhere does the Torah state a reason for the creation of man; rather, both the creation narratives see man as the purpose of the creation of the world.) Man’s life being of intrinsic rather than instrumental worth, the taking of it cannot be atoned for by means of a financial transaction, as expressed in God’s speech to Noah after the Flood. As such, the law of Mishpatim is not utilitarian in its end, but rather a manifestation of a morality that draws a clear distinction between human life and property.

In conclusion, to ignore or explain away the literary, legal, and theological interaction between the Torah and other texts of the Ancient Near East is not merely intellectually dishonest. Such willful blindness misses the opportunity for the richer understanding of eternal moral message of the Torah that can only be arrived at through comparative study. It is the obligation of true students of God’s word to use the new exegetical tools developed in every generation to make the Torah as relevant as at its revelation.

1 Adapted from B. Eichler, “Study of the Bible in Light of Our Knowledge of the Ancient Near East,” in: S. Carmy ed., Modern Scholarship in the Study of Torah: Contributions and Limitations (Northvale, NJ: Jason Aronson Press, 1996), 81-100. Translations of Mesopotamian legal material are taken from W. W. Hallo ed., The Context of Scripture: Monumental Inscriptions from the Biblical World, vol. ii (Leiden: Brill, 2000).

1 comment:

  1. In the book "Universal Jewish History Volume 1" (available at for free), the author goes into even more detail about the code of hammarabi as well as the hitite laws.

    His conclusion there is that both the Torah's law and the other law codes are all derived from a pre-existing "benei noach" law book handed down from tradition from Noach's time.

    He claims that the Torah preserves the laws in thier original form, while the other code books altered them to suit thier pagen/different ideals (or even mistakingly).

    Thus, Hashem basically told Moshe to write the pre-existing code into the Torah in the most prestine form (or perhaps with alterations especially for the Jews).