YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #8b: TORAH AND ANCIENT NEAR-EASTERN LAW
Part 2

III. SLAVES

We find an interesting law in the Torah: When a slave refuses to be liberated by his master, his ear is pierced.

And if the servant shall plainly say, I love my master, my wife, and my children; I will not go out free: then his master shall bring him to the judges; he shall also bring him to the door, or to the door post; and his master shall pierce his ear through with an awl; and he shall serve him forever. (Shemot 21:5-6)

In contrast, the Code of Hammurabi states the exact opposite:

If a slave says to his master: "You are not my master," if they convict him, his master shall cut off his ear. (Code of Hammurabi, 282)

As in the Torah, so in the Code of Hammurabi, a pierced ear symbolizes slavery. In the Torah, however, the piercing is done at the request of the slave, a request which the Torah frowns upon. In the Code of Hammurabi, on the other hand, it is the master who demands that his slave's ear be pierced in order to crush him and ensure his eternal enslavement.

Furthermore, the Torah states:

"You shall not deliver to his master the servant who is escaped from his master to you" (Devarim 23:16)

Chazal circumscribed this law, but its fundamental conceptual significance remains in place. Compare this with what is stated in the Code of Hammurabi:

If any one receives into his house a runaway male or female slave of the court, or of a freedman, and does not bring it out at the public proclamation of the major domus, the master of the house shall be put to death. (Code of Hammurabi, 16)

IV. AN OX THAT KILLED A MAN

There is a remarkable similarity between Torah law and the ancient Near Eastern codes with respect to the laws governing an ox that caused injury. Compare, for example, the Torah's laws and the Ashnuna Laws regarding an ox that gored another ox: 

And if one man's ox hurts another's, that he die; then they shall sell the live ox, and divide the money of it; and the dead ox also they shall divide. (Shemot 21:35)

If an ox gores another man's ox, and it dies, the two owners of the oxen shall divide the money of the live ox, and they shall also divide the money of the dead ox. (Ashnuna Laws, 53)

The linguistic similarity results from the stylistic decisions of the translator. Clearly, however, we are dealing here with a substantive similarity as well. In light of the amazing parallelism with respect to the law of an ox that gored another ox, the difference between the Torah and the Ashuna laws with respect to an ox that killed a man is all the more striking: 

If an ox gores a man or a woman, that they die; then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be acquitted. But if the ox was wont to gore with his horn in time past, and his owner had been warned, yet he had not kept him in, but it killed a man or a woman, the ox shall be stoned, and its owner also shall be put to death. (Shemot 21:28-29)

If the ox was known to be wont to gore, and the authorities brought the matter to the attention of the owner, and they did not cut off its horns, and it gored a man and he died, the owner of the ox shall pay two thirds of a mina. (Ashnuna Laws, 54)

The Ashnuna Laws recognize the distinction between an ox that was not known to be a gorer and an ox that was known to be a gorer. These laws, however, are lenient with regard to an ox that killed a man, even when that ox was known to be a gorer.  Similarly, we find in the Code of Hammurabi:

If an ox, while passing on the street, gored a man and killed him, the case is not a matter fit for a legal claim. If an ox be a goring ox, and it was shown that he is a gorer, and he did not cut his horns, or fasten the ox up, and the ox gore a free-born man and killed him, the owner shall pay one-half a mina in money. (Code of Hammurabi, 250-251)

According to the Code of Hammurabi, if an ox that was not known to be a gorer killed a man, its owner is totally exempt from liability, and if the ox was known to be a gorer, its owner is only liable for monetary payment. According to the Torah, however, the ox is stoned in both cases, and if it was a known gorer, "its owner also shall be put to death." While it is true that, according to Halakha, paying a ransom substitutes for the death penalty, the Torah clearly comes to emphasize the value of human life, for which there is no compensation or substitution.

V. HURTING A PREGNANT WOMAN

If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no further harm ensue: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. But if any harm ensue, then you shall give life for life. (Shemot 21:22-23)

The Code of Hammurabi, on the other hand, states:

If a man strikes the daughter of a man,[2] so that her fruit depart from her, he shall pay ten silver shekels for her fruit. And if the woman dies, the assailant's daughter shall surely die. (Code of Hammurabi, 209-210)

According to the Code of Hammurabi, a daughter can be put to death for her father's offense. Children are viewed as their fathers' property, and not as independent human beings of unlimited value. This idea repeats itself in various places:

If a builder built a house for another person, but the construction was not sound, so that as a result the house that he had built collapsed, causing the death of the owner of the house, the builder shall surely die. And if he caused the death of the son of the owner of the house, they shall put the son of the builder to death. (Code of Hammurabi, 229-230)

All this stands in sharp contrast to the Torah, according to which children are not put to death for their fathers' transgressions. "Fathers shall not be put to death for children, neither shall children be put to death for fathers; every man shall be put to death for his own sin" (Devarim 24:16).

The following strange and inexplicable verse is found in the Torah in the context of the laws pertaining to an ox that killed a man:

Whether he has gored a son, or gored a daughter, according to this judgment shall it be done to him. (Shemot 21:31)

What might I have thought? Why should the law be different in a case where the ox killed a son or a daughter? We might perhaps have thought that children's lives are worth less than those of adults, and so the punishment for killing children should be less severe. Cassuto suggests just the opposite: the verse comes to exclude what was accepted law in the ancient Near East, that if a person is found liable for the death of another man's child, his own child is put to death.

VI. THEFT

The Torah does not impose the death penalty for stealing. The only mention of death in the context of stealing is in the case of a break-in, and even in that situation killing the thief is only allowed in self-defense, that is, in the course of the robbery itself.
 
If a thief be found breaking in, and be smitten that he die, no blood shall be shed on his account. If the sun be risen upon him, blood shall be shed on his account. He should make full restitution; if he have nothing, then he shall be sold for his theft. (Shemot 22:1-2)

The law pertaining to a break-in is also mentioned in the Code of Hammurabi:

If any one breaks a hole into a house, and is caught, he shall be put to death before that hole and be buried. (Code of Hammurabi, 21)

There the rule is that anyone caught breaking into another person's house is punished with the death penalty. While the Torah limits the allowance to kill the thief to self-defense during the course of the burglary, the Code of Hammurabi sanctions the death penalty in other cases of theft besides a break-in. Among other cases, the Code of Hammurabi assigns the death penalty in cases where the thief has no money to pay.

If any one steals cattle or sheep, or an ass, or a pig or a goat, if it belongs to a temple or to the royal court, the thief shall pay thirtyfold; if they belonged to a free man of the king he shall pay tenfold; if the thief has nothing with which to pay he shall be put to death. (Code of Hammurabi, 8)

The Torah rules explicitly against this, as we have seen: "If he has nothing, then he shall be sold for his theft" (Shemot 22:2).[3]

VII. SEIZING A PAWN

The Torah strictly limits the creditor's right to seize a pawn:

No man shall take the nether or the upper millstone for a pledge; for he takes a man's life for a pledge (Devarim 24:6)

If you at all take your neighbor's garment for a pledge, you shall deliver it to him by sundown. For that is his only covering, it is his garment for his skin; in what shall he sleep? And it shall come to pass, when he cries to Me, that I will hear; for I am gracious (Shemot 22:25-26)

The Torah forbids a person to take the nether or the upper millstone as a pledge, for the reason that he would "be taking a man's life for a pledge." In contrast, according to the Code of Hammurabi, the creditor may take the debtor himself as a pledge:

If any one has a claim for corn or money upon another and imprisons him; if the prisoner dies in prison a natural death, the case shall go no further. If the prisoner dies in prison from blows or maltreatment, the master of the prisoner shall convict the merchant before the judge. If he was a free-born man, the son of the merchant shall be put to death; if it was a slave, he shall pay one-third of a mina of gold, and all that the master of the prisoner gave he shall forfeit. (Code of Hammurabi, 115-116)

How different is the spirit of the Torah from that of the Code of Hammurabi here as well!

It is precisely the comparisons that we have drawn between the Torah and the various legal codes of the ancient Near East that strengthen our recognition of the moral intensity and uniqueness of the Torah.

And what nation is there so great, that has statutes and judgments so righteous as all this Torah, which I set before you this day? (Devarim 4:8) 

(Translated by Rav David Strauss)

FOOTNOTES:

[2] I.e., the daughter of another man from the upper class.  The term, "daughter of a man," and the law itself imply that we are dealing here with a young woman, who presumably never had a child.

[3] It should be noted that, according to the Code of Hammurabi, the punishment for theft varies according to the identity of the person from whom the property was stolen: one who steals from the king is liable for a greater penalty than one who steals from a free man.