Paul Heger, «Source of Law in the Biblical and Mesopotamian Law Collections», Vol. 86 (2005) 324-342
This study argues that the source of the law constitutes the crucial ideological and
practical difference between man-made and God-given codices. In the
Mesopotamian codices, while the gods grant to the sovereign the authority to
govern, it is he who ultimately creates the relevant laws. He is thus the source of
the law and controls its application. God is the only source of biblical law, and is
involved in its implementation. This crucial difference has far-reaching
consequences. In particular, Mesopotamian laws focus on the redress of harm
done to humans and on disruption of human order; further, legal procedures,
sanctions and modes of compensation can be changed, forgiven or abolished.
Biblical law regards some infractions as harms against humans, but others are also
perceived as crimes against the Lord and a disruption of the divine order.
Punishments are fixed by God in both cases, and are eternal and inalterable.
Source of Law in the Biblical 329
wife, and thus save her life and that of her adulterer (24). Biblical law
provides only for death in such a case.
Since value judgments are obviously subjective, it seems to me
that this criterion cannot be used as the crucial distinguishing factor
between the biblical and other ancient Near Eastern law. The
distinction regarding the source of law between the Israelite and the
cuneiform collections does, however, have far-reaching consequences
with respect to the philosophical concepts, procedures and punish-
ments in each legal system.
3. Fundamental attributes of biblical and cuneiform law
a) Redressing of “Harmâ€
One of the philosophical foundations of the cuneiform law is the
aim of redressing the harm caused to another member of society. This
is attained by pecuniary composition of the damage, with or without
an additional fine. In occurrences that are prima facie inappropriate for
compensation, such as rape or murder, the redress is accomplished
through an equitable punishment, inflicting the same harm on the
offender (25). In some cases it is the injured party who chooses between
revenge and composition. It is thus the injured party who assesses,
according to his or her own perception, what is the greater harm — the
emotional grief, resolved by the act of revenge, or the economic loss
caused by the killing of a working member of the family, compensated
by a suitable payment (26). Both avenues have the identical philoso-
phical motive of rectifying the harm endured by the injured party.
There is no offence involved against a higher authority, the state or the
gods (27), in the harm that was done, and the episode is conclusively
settled after suitable redress. In some of the cuneiform rules there is a
(24) LH 129.
(25) For example, according to the Assyrian rule in MAL A 55, the father of
an unmarried daughter who has been raped takes the wife of the fornicator and
hands her over to be raped. If he has no wife, he must pay a “triple†indemnifi-
cation to her father and marry the daughter, if the father wishes.
(26) MAL 10 grants to the head of the household the choice to kill the
murderer of a household member, or receive pecuniary compensation.
(27) L.J. BORD, “La loi, le droit et la justice. Réflexions sur le droit cunéiforme
et biblique, à propos de deux livres récentsâ€, Bib 82 (2001) 100 states that in
contrast to Rome, the Mesopotamian civilizations have not left any doctrinal opus
of the law.