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 333
law, the king, or a wronged citizen empowered by him, possesses the
authority to fix the sanctions for sexual offenders, and to change them
or decline to apply them altogether.
4. Legal and practical consequences of differences in the source of law
a) Homicide
As noted above, homicide affects the Deity in addition to the
injured human party. A number of specific comparisons will illustrate
the consequences of this distinct credo.
i. Talion versus Composition for the Taking of Life
In the early laws of Ur-Namma, a homicide is punished by death,
and in the extant tablets there is no provision for pecuniary
composition for this crime. In the Hammurapi laws, there is no explicit
sanction for a premeditated murder, nor mention of composition for
such an act (45); there is, however, a rule that decrees capital
punishment for causing death of an awilu woman, and composition for
the same act committed against a woman of the commoner class. In
MAL A 10 and B 2, the family of a murdered person can choose
whether to kill the murderer or receive composition. The Hittite codex,
section 1, goes a step further; there is no capital punishment, but only
composition.
Biblical law, in contrast, never permits the commutation of capital
punishment for murder. The express prohibition against monetary
payment for death appears only in Num 35,31; there is nonetheless no
provision in the Book of the Covenant for allowing such commutation.
Exod 21,12 unequivocally requires a death for a death, and this
mandatory punishment is bolstered in the subsequent v. 14. There is
absolutely no relief for a murderer, and God’s sanctuary does not grant
him safe haven (46).
(45) LH 229-230 decree capital punishment for death caused by the collapse
of a house negligently built, if the deceased is the householder or his son (while a
slave is replaced with a slave of equal value); we must assume that the same
sanction would apply for an intentional murder.
(46) The decree in Exod 21,22, that a father, or the court, can establish the
amount of composition for the loss of a fetus, is not a contradiction of the
mandatory death sentence for killing a person. In biblical law, as understood by
the sages (in contrast to Qumran scholars), a fetus is not a living person and its
loss is perceived as financial damage, whose redress remains within the domain
of humans. See mHul 4,5 and mAr 1,4; and HEGER, The Pluralistic Halakhah,
381-383.