Parshas Misphatim and The Code of Hammurabi: Problem or Solution?
Crossposted to Dovbear here: Adventures in the Code of Hammurabi
As a general rule, orthodox Jewish rabbis and teachers pretend that Bible Criticism does not exist. This is not necessarily a conscious choice, rather it was a choice made on their behalf over a century ago. The ugly result of this decision is that when the orthodox Jew encounters BibCrit he is left without any tools or foreknowledge to handle the issues and in a sense one can be blindsided by basic observations made in BibCrit. This, in turn, can take a disastrous toll on one’s beliefs in Torah and God.
One of the few exceptions to this rule in Rabbi J.H. Hertz. In his Chumash, R’ Hertz has several essays that, at least on a basic level, deal with some of the challenges raised by BibCrit. Some of the BibCrit he cites is outdated and some of his approach is also outdated. But it is still worth understanding and appreciating his efforts.
One major BibCrit challenge surrounds this week’s parsha, Mishpatim. In the Parsha, the Jewish people are taught the basic outline of their Civil Code. The parsha discusses property, chattel, damages, loans, and other seemingly non-religious laws. The issue is that there is an earlier code that precedes this Mosaic code of Parshas Mishpatim, The Code of Hammurabi.
The Code of Hammurabi was written in the days of Abraham by King Hammurabi. Some scholars identify him as King Amraphel from the Bible. Hammurabi’s code is preserved by a stele and tablet in its complete and original form. There are 282 laws that govern civil law for followers of Hammurabi. Many of these laws are either the same or very similar to the Mosaic laws, many others are significantly different. The challengers hold that the reason these two codes are similar is because Moses (or some other later figure), when “writing” his code simply borrowed from The Code of Hammurabi and adjusted a few items before pasting it into the Torah. Clearly, this does away with the Divine Author of the Torah.
R’ Hertz, as he is wont to do, flips the script. He shows that the more we know about The Code of Hammurabi, the more we can appreciate the Torah’s laws in Mishpatim. The areas that our codes differ shed light on the beauty and majesty of Torah. For example, biggest difference between the two codes is the use of the death penalty. In The Code of Hammurabi the death penalty is administered for a multitude of offenses including property offenses. The Torah uses it much more sparingly and never for property crimes. Another example is with regard to class. The Code of Hammurabi differentiates between theft from a king, noble, commoner and slave. The Torah does not create such classes. One general area of law that is ignored by Hammurabi and is a focal point of the Torah is how to treat the poor and needy with consideration and assistance. These examples show that the Torah is spiritually elevated above The Code of Hammurabi and this speaks to a Divine Author.
One of the more perplexing verses in Mishpatim is Exodus 21:31. The Torah tells us that a “goring ox” kills someone, the owner is put to death. “Whether it have gored a son, or have gored a daughter, according to this judgment shall it be done unto him.” Why would it concern us whether or not the ox gored a son or a daughter? If the ox killed, the owner is killed! R’ Hertz quotes Prof. David Mueller who explains that in The Code of Hammurabi it states (#229 – #230):
“If a builder has built a house for a man, and has not made his work sound, and the house he built has fallen, and caused the death of its owner, that builder shall be put to death.
If it is the owner’s son that is killed, the builder’s son shall be put to death.”
The Torah abhors this kind of law. Instead of killing the son or daughter of the owner of the ox, the owner of ox, the man responsible for the death is killed. R’ Hertz adds that this theme is repeated in Deutoronomy 24:16:
“The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers; every man shall be put to death for his own sin.”
In R’ Hertz’s view, showing the humanity added to the law by the Torah when compared to The Code of Hammurabi, we can better appreciate the morality of our law.
Most significantly, The Code of Hammurabi actually punctures a hole in a common theory of BibCrit. That is, the Torah was written by Ezra or some contemporary of Ezra before the Second Temple period. It is highly unlikely that a human author would use such an old code if he were writing for his Second Temple period audience. Rather, it suggests that the Torah is indeed of an older vintage and closer in time to Abraham and Hammurabi. This fits in well with the Revelation at Sinai and the idea proposed by some Rishonim that the Torah, by word of God, included old scrolls of law that went back to the time of our forefathers.
Further, and R’ Hertz does not say this, if the Jewish people present at the revelation were familiar with The Code of Hammurabi it would make sense to use language and structure with which they were familiar.
One final point. The Code of Hammurabi is perhaps most useful for understanding many passages in the Torah, specifically in Genesis. R’ Hertz mentions Abraham taking Hagar as a concubine as one example. I think he is referring to The Code of Hammurabi #140:
“If a man has married a votary, and she has not granted him children, and he is determined to marry a concubine, that man shall marry the concubine, and bring her into his house, but the concubine shall not place herself on an equality with the votary.”
Thus, Abraham was justified in taking Hagar as a wife, but once she thought she was an equal he was justified in sending her out.
(Another example cited by R’ Hertz is the dispute between Yaakov and Laban. In The Code of Hammurabi #261-267 the code states the rules for paying a herdsman. I am not certain what R’ Hertz is using this reference for.)
Our friend Josh Waxman on his Parshablog has several other examples sprinkled throughout his blog. One is the explanation of why Reuben lost his birthright simply because he ascended to his father’s bed. The code says in #158: “If any one be surprised after his father with his chief wife, who has borne children, he shall be driven out of his father’s house.” So when Jacob discovered Reuben on his bed, ie surprised, he was driven out of the house, ie the inheritance.
There are more examples. but the point is clear. The Code of Hammurabi can be a useful tool for teaching Chumash and appreciating the Torah. We don’t need to be afraid of it.