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 335
apply to a Hebrew slave, because Scripture explicitly adds the
justification: awh wpsk yk “since he is his propertyâ€. This rationalization
stresses the fact that the slave is his master’s property, justifying the
exception to the general rule. This justification cannot apply to a
Hebrew slave. His body and life are not his master’s property; he has
only sold his services for a limited period of a maximum of six years
(Exod 21,2). In the rules of Lev 25,40, his particular status as
bçwtk rykçk is explicitly stated, and this is again emphasized in the
calculation of his redemption in Exod 25,53. Exod 21,20-21 thus
unequivocally refers only to an alien slave.
In fact, the difference in status between the gentile and Israelite
slave is founded on a theological basis, justified by the divine
declaration: “For the Israelites belong to me as servants†(Exod 25,55).
Furthermore, the release from capital punishment is not a disregard of
the value of human life, since it does not apply in the event the slave
dies on the spot from the owner’s actions. If he dies later, his death is
not perceived as an unequivocal killing. I speculate that the alien slave
had a hybrid status between a full-fledged human, who enjoys all the
rights and obligations of a member of society, and a slave, who is
already born with drastically restricted human rights, as we read in Lev
25,46. For a society that accepts or perhaps even creates such a hybrid
and lower status the divine order is therefore disrupted differently, in
minor measure, by the loss of the life of a slave. Alternatively, the
slave’s death cannot be traced directly to his master’s blows, since he
has a right to beat him (53).
ii. Punishing the Perpetrator versus Compensating the Victim
Another significant philosophical difference between the
cuneiform and the Israelite laws regards the taking of life. In
cuneiform laws, the primary intent is to redress the damage done to the
wronged party. In Israelite law, God is the affected party, and the
restoration of the divine order takes priority over the interests of the
wronged human party. This reversal triggers another consequence: the
emphasis on redressing the damage done, the objective of the
cuneiform law, is shifted in biblical law to the obliteration of the
perpetrator ’s sin. This is attained by his death for premeditated murder.
The stoning of an ox that killed a person and the prohibition against
eating its flesh constitute a unique rule in Israelite legislation. I follow
(53) As suggested by D. DAUBE, “Direct and Indirect Causation in Biblical
Lawâ€, VT 11 (1961) 246-269.