“In the Beginning…”

Have you ever wondered

  • why we have the laws we have?
  • where we came up with the idea of “Common Law”?

Believe it or not, it began before the time of the Mosaic Law!

According to Peak’s Commentary, the pentateuch case law was based on Canaanite legal forms, from which they in turn received their common law from the previously ruling power of the Babylonians: the bulk of Sumerian city territory was possessed by the temple. Although there were temporal rulers as governors, the kings were seen to operate as the city-god’s agent. Hammurabi not only checked for administrative abuses (administrative law), he had written laws set up in the markets and temples to be consulted by traders and by those suffering wrongs.

Although Hammurabi was the official representative of the local god and temple interests, he, like Queen Elizabeth as head of the Church of England, concerned himself with secular affairs of state. He detailed information concerning social structure with its three classes, gentry, commons and slaves. Although slaves were bought and sold (employees today are enslaved to the paycheck and to the one who authorizes it), each had protection under the law with a right to a spouse, property and the benefit from the liberality of masters (bonuses and incentives by our standards). An eye for an eye was deemed a humane ruling which limited the punishment to justice and not give reign to vengeance.

Check out a sample of the case law of the Code of Hammurabi presented by Arnold and Beyer:

When a free man married a priestess and that priestess gave a female slave to her husband and she has then produced children, if that free man has made up his mind to marry a lay priestess, they may not marry the lay priestess.

When a free man married a priestess and she gave a female slave to her husband and she has then born children, if later that female slave has claimed equality with her mistress because she bore children, her mistress may not sell her; she may mark her with the slave-mark and count her among the slaves.

This precursor common law before the Mosaic Law reveals the society of the age and exposes the cruelty and the context of Sarah and Abraham casting out Ishmael and his mother into the desert (the hand-maid of Sarah whom Sarah sent to sleep with her husband Abraham for the express purpose of bearing a son). Common law of the era and region dictated  a kinder gentler approach of putting the woman in her place by branding her body to delineate her slave status lest she forget her place in society and others allow her to do so. There is a deviation in this analogy due to a different cultural grouping (earlier Babylonian versus Israelite) and the fact that Sarah is not a “priestess”. We see that the Biblical text is intended to shock, even in the contemporary context.

code of hammerabi

These case law/common law compilations were set on an approximately eight foot high black diorite stele of 282 sections for all to study and consider their own behaviour by order of Hammurabi, the sixth king of the first dynasty of Babylon. He likely ruled from 1792 to 1750 or 1749 B.C. according to The Westminster Dictionary of the Bible. It was the most influential legal code of the near east.

Compared to Exodus 20:23; 23:33; 24:7; Deuteronomy 19:21, we see some instances where both the Babylonian and Israelite bodies of legislation treat the same injury to person and property. They both regarded the vulnerable of society as possessing:

  • rights that could be recognized
  • liabilities for breaking the law varied according to their social standing

The Babylonian law code continued to influence the Fertile Crescent after their decline. With the Code of Hammurabi, the punishment for false charges was given to the one who made the charge.  As Interpreter’s indicates, the Hammurabi Code predominates under the principle of poetic justice wherein a perjurer receives the punishment which this accuser tried to bring on his victim.

This case law is demonstrated in the Biblical book of Esther, when Haman was caught in a deceit to hang Esther’s uncle Mordichi, Haman received the punishment of hanging and the praise he sought went to the uncle. The follow-through on Hammurabi’s case law is far reaching. The righteousness and justice of God is in the forefront. Mercy is expressed in justice being served for the victim and punishment does not exceed the actions or imaginations of the accused.

How did Hammurabi and the first Babylonian dynasty get so clever? They had other case law to draw on. Reform and codification of law existed among Sumerian kings as Westminster records:

  1. Urukagina of Lagash (c. 2450 B.C.)
  2. 2040-2027, Ur-Nammu Code (Ur-Engur) and Shulgi (Dungi) of Dynasty III of Ur (where Abraham came from). It contains a prologue and 22 laws.
  3. 1930, Bilalama Code from Akkadian Eshnunna: a preamble identifying the law-giver, city, date and 59 laws
  4. 1864-1854, Lipit-Ishtar Code from Sumerian Isin containing a prologue with the lawgiver’s credentials, approximately 38 laws partially preserved. They had erected a diorite stele.
  5. Amorite Babylon had an adulatory prologue and 282 laws governing a wide range of economic and social relationships and transactions, concluding with an admonitory epilogue. It apparently had been built upon the Lipit-Ishtar Code while making it more inclusive and more complex.

Works Cited

Arnold, Bill T., Beyer, Bryan E.; Encountering the Old Testament, Baker Books, Grand Rapids, MI, 1999, p. 95; Laws #144 and 146, ANET (adapted), 172.

 http://en.wikipedia.org/wiki/Image:Milkau_Oberer_Teil_der_Stele_mit_dem_Text_von_Hammurapis_Gesetzescode_369-2.jpg#file

Black, Matthew and Rowley, H. H., Peake’s Commentary on the Bible,  Thomas Nelson Ltd., London, England, 1962, 68f, 79b, 394e.

Layman, Charles M., Interpreter’s One-Volume Commentary, Abingdon Press, NY, New York, 1971, 263b, 1090a, 1081b. See also Exodus 21:1-22:17; Psalm 7: 12-16. The Westminster Dictionary of the Bible, The Westminster Press, Philadelphia, 1944, p. 224.

Multiple Choice Questions

1.

Case law started to become a guiding principle when:

  1. Queen Elizabeth II took over the governance of both religious and secular governance of the United Kingdom.
  2. Mordichi escaped hanging.
  3. when the eye for an eye law was first recorded.
  4. when Urukagina of Lagash (c. 2450 B.C.) got his administration organized and precidents set down for posterity and reference.

2.

The Code of Hammurabi was set to:

  1. ensure equal justice and welfare of his subjects
  2. enable Hammurabi to superintend the administration of justice
  3. codify the laws of the land
  4. All of the above.

3.

The Code of Hammurabi was

  1. brutal and revengeful
  2. only for the rich
  3. both righteous and just with mercy towards the victim in metting out punishment to fit the crime, and not exceeding the actions and intent of the perpetrator.
  4. 1 & 2.
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