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 341
it is punished with a fine, beating, and service to the king. If the
slanderer insinuates that one’s wife is philandering, he is additionally
dishonored by cutting off his hair (MAL A 18).
In light of the above theory concerning the Israelite concept of
offences against the Deity, we must note a problem that seems to
contradict this theory. Theft, for instance, is not dealt with as a “crimeâ€
in biblical law, as it often is in modern law. The transgression of the
biblical command “You shall not steal†(Exod 20,13; Deut 5,17) is
obviously a sin, a religious concept, an idea that is absent in the
cuneiform laws. One would therefore expect some penal sanction and
method of atonement for theft (62), as are established for a number of
other misdemeanours and involuntary transgressions in Lev 5; 6,
excluding direct theft (63). Yet there are no sanctions or punishments for
theft other than payment of a prescribed fine according to the type of
property stolen (64), which represents simply a compensation for the
inconvenience of the injured party (65).
There is a similar anomaly with respect to physical injury.
Although there is no specific biblical prohibition against striking
someone, one could assume such a prohibition from the general
biblical emphasis on social welfare. However, Scripture seems to
exonerate the aggressor — hkmh hqnw — once he has paid for the
injured person’s healing and loss of income (Exod 21,18-19). I
suspect, however, that these particular differences between crimes and
non-crimes are simply of a pragmatic nature and are not the result of a
distinct theology.
*
**
It has been demonstrated that the perceived divine source of the
Israelite law and the divine involvement in its application are the
(62) ROTHENBUSCH, Die kasuistische Rechtssammlung, 406 states that the
private payment of a fine for intended mischief, such as theft, makes it difficult to
discern between penal and civil law. He approaches the same issue as I do, but
uses modern terminology, in contrast to my emphasis on the religious foundation.
(63) The biblical text in its introductory section is clumsy and confusing;
nonetheless, it is clear that atonement is stipulated for a number of transgressions,
but excludes theft.
(64) The thief must pay a double fine if the stolen animal is recovered alive
(Exod 22,3; v. 4 in KJV), a fourfold fine for a sheep, and fivefold fine for an ox
if he sold the animals or slaughtered them (Exod 21,37; 22,1 in KJV).
(65) B.S. JACKSON, “Ideasâ€, 197 states, in another connection: “subjective guilt
was hardly beyond the cognitive competence of the ancient Hebrews.â€