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.
336 Paul Heger
here scholars who argue that this is the outcome of a completely
different Weltanschauung†(54), and disagree with those scholars who
maintain that it is the outcome of logical considerations (55). The goring
ox rules in Exodus are very similar in many aspects to the
Mesopotamian parallels, and their connection is “virtually certain†(56).
It would thus be extremely difficult to assume that the exceptional
insertion of the manner of the ox’s disposal should have been added to
the Israelite law without any specific motive and intention; its unique
elements were added to adapt the law to Israelite theology.
The ox has “has objectively committed a de facto insurrection
against the hierarchic order established by the Creation†(57), and must
be eliminated from the world. The negligent owner of the goring ox
pays an indemnity to the family of the person killed, to expiate his
failure; but the next-of-kin of the person killed by the ordinary ox are
left without any composition for their loss, since the owner has not
performed any sin against God. Payment to the next-of-kin might have
been perceived, in the case of the goring ox, as compensation for the
loss of life, and that had to be avoided. Similarly, the family of the
unintentionally killed person could not receive compensation.
Israelite law, at least with respect to loss of human life, is
primarily concerned with the action of the perpetrator, not the loss of
the affected party. In the Mesopotamian rules, in contrast, not only is
composition the primary focus, it may also vary according to the status
of the injured party. This is the case for both death and injury, as well
as affecting remuneration for services performed. The penalty for
negligent construction causing death, for instance, varied in LH 229-
231 according to whether the deceased was the property owner (the
builder is killed), the owner’s son (the builder’s son is killed), or the
owner ’s slave (the builder must provide a slave of equal value). As to
injury, if a man hit a pregnant awilu woman and caused a miscarriage,
he paid ten shekels (LH 209); but if she were a commoner, the amount
was five shekels (LH 211), and for the fetus of a slave woman he paid
two shekels (LH 213). As a final example, the physician’s remuner-
(54) See, e.g. M. MALUL, The Comparative Method in Ancient Near East and
Biblical Legal Studies (Neukirchen 1990) 132-135; and J.J. FINKELSTEIN, “The Ox
that Goredâ€, TAPhS 71 (1981) 28.
(55) HOUTMAN, Exodus, 174-176 records their different conjectures. See also
JACKSON, Essays, 108-152 for a lengthy discussion of this peculiar rule.
(56) R. YARON, The Laws of Eshnunna, (Jerusalem – Leiden 21988) 293.
(57) J.J. FINKELSTEIN, “Oxâ€, 28.