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 339
with an animal (22,18) but one must assume, nonetheless, that many
other kinds of sexual immorality were forbidden. The Seventh Com-
mandment against committing adultery, and the indirect prohibition of
sex with a betrothed woman that we may deduce from the text of Exod
22,15 serve as evidence for such an assumption. We have no valid
reason to presume that the sexual prohibitions in the books of
Leviticus and Deuteronomy were significantly different than in the
period of redaction of the Book of the Covenant. Sexual taboos are
usually entrenched in the deepest layers of society and are not easily
changed or removed; despite general abhorrence against them, there
are always individuals who disregard them.
In Mesopotamian society, adultery is regarded as one of the most,
if not the most, severe infringements on the husband’s rights. The
relevant laws have as their philosophical foundation the prevention of
harm to citizens and appropriate punishment for transgressors. This is
particularly emphasized in the language of LU 6: “If a man violates the
rights of another and deflowers the virgin wife of a young man, they
shall kill that maleâ€. In LU 8 the deflowering of a slave woman is also
described as a violation of the slave-holder’s rights, but in this case
only composition is decreed. As with the issue of sexual taboos,
adultery may also have been perceived as damaging the social fabric.
Just as in the matter of taking a life, there is no offence involved in
Mesopotamian law against a higher authority, and no deity is involved,
either in the promulgation of the relevant laws for sexual misde-
meanours, or in their mode of application. The lawgiver decides when
and how to apply a sanction. LH 156, for instance, decrees compo-
sition to a bride if her prospective father-in-law has sexual intercourse
with her before her marriage, but LH 155 commands capital
punishment if it took place after the marriage was consummated. In the
first instance, the woman is the injured party and is compensated for
her loss of virginity, whereas in the second case the bridegroom is the
injured party; as his harm is perceived as more severe, the death
penalty is provided. LH decrees capital punishment for a number of
incestuous relations, but LH 154 requires only banishment for incest
between father and daughter. It seems that the lawgiver assumes it is
the father’s right, potestas patris, to do what he pleases with his
daughter, and he is not liable for any compensation to her. The public
perceives such incest as harmful to society, and the father is banished
from the city so as not to serve as a corrupting model.
In a number of occurrences the lawgiver has transferred his