In the first and second lectures we have dwelt upon the external
features of the two codes of law to be compared, and pointed out some
things remarkably similar. We have now to consider the various theories
which have been propounded to account for them. The progress of the
discussion has shown that the higher critics are as eager as the
orthodox Jewish or Christian writers to repel the oft-repeated
assertions of dependence.
There are obviously many ways of treating the resemblances and
accounting for the differences, and some of them may, and probably will,
long be held which do not attempt to take account of more than a
selection of the facts. That theory will surely be finally accepted
which takes account of all the facts. Hasty dogmatism only succeeds in
imposing on the credulous public and provokes the resentment of those
whose judgement is alone worth considering. I should esteem it then a
real misfortune if anything I might say should lead any one to form a
conclusion based solely on what he considers to be my opinion. Therefore
I expressly warn you that I have not given you my opinion, nor do I
intend to do so. I desire solely to make you aware of the facts, and
invite you to form your own opinion.
Now the first thing to deal with is the general similarity of the Code
to the Book of the Covenant, considered as our best witness to the
primitive Hebrew law. It has been calculated that out of forty-five, or
possibly fifty-five judgements preserved in this old Hebrew law,
thirty-five have points of contact with the Hammurabi Code, and quite
half are parallel. Of course, there are also marked differences to be
accounted for. The Hebrew law appears to have legislated for a small
people, among whom human life was precious and property scanty. The
Babylonian law protects property with far severer penalty, and makes
little account of a criminal’s life. This is appropriate to a nation of
commercial instincts and a wealthy populous state. It recognizes grades
of wealth and position. The theft of an ox is punished by a five-fold
restoration in the Hebrew law, in the Babylonian by thirty times its
value, or in the plebeian’s case by a ten-fold penalty. We may estimate
the difference by saying that in the desert five oxen was about all a
man had, and his family would probably have to help him to pay, and so
the penalty was an effective restraint; while in Babylonia, thirty oxen
were to many men not more costly, and even the commoner was twice as
wealthy as an Israelite. It is, however, more likely that the penalties
were not calculated at all upon an estimate of what they meant to the
criminal, but on an artificial system of the value of numbers. For
example, in Israel, five may have been ideally complete. PROFESSOR D. H.
MÜLLER has most ingeniously worked out the possible significance of the
numbers.
It is not particularly profitable to insist upon the superior humanity
of either code. Impartial judges, acquainted with ancient codes, will
perceive that the balance between the rights of the individual and those
of the State is always very difficult to hold level. Severe penalties
may be due to the determination to suppress crime at any cost. The
desire to save the criminal from the results of his crime is not to be
expected of any early legislator. Only when his life was worth more to
the State than the loss he was likely to cause could the criminal hope
for pardon. As Hammurabi put it, the king might wish to save his
servant’s life.
Points of close agreement are numerous. The treatment of sorcery, the
law of deposit, the punishment of kidnapping, injury to a pregnant
woman, regulations as to shepherds, and a score more may be noted as
very similar. These are given in many books, very conveniently in
PROFESSOR S. R. DRIVER’s _Genesis_ in the _Cambridge Bible for Schools_.
Now on such a view of the general similarities many have expressed the
opinion that the Hebrew laws are a more or less revised adaptation of
the Babylonian law, perhaps as locally already modified in Canaan to
suit the prejudices of the invaders while they were changing their
habits of life and became a settled people. But this view is not vivid
enough for others. There is a certain delight which some feel in
propounding views calculated to shock some one. The cruder view that the
Hebrew lawgiver, call him Moses or some higher critical periphrasis for
the same thing, sat down with a cuneiform copy of the Code before him
and copied out the Babylonian laws with some adaptations, may have been
enunciated with some such amiable wish, but was too crude to disturb any
one. It is barely worth record. The differences between the Codes are
too important for us to adopt it. If he made a copy it was a very bad
copy. Some allowance for the difference in age must also be made. Such a
length of time as five hundred to a thousand years must have been marked
by great changes in Babylonia or in Canaan. The advent of the
Israelites must have introduced new forces into the life of Palestine.
Here we have to weigh carefully our evidence, which points on the whole
to the Israelite contribution being more primitive in type, and in some
degree a return to early conditions which held before the time of
Hammurabi in Babylonia. Dear as these changes were to the later Jewish
mind, they were not what we should call improvements.
But when merely considering such general resemblances, along with such
marked differences, we can readily see that a theory of common origin
will suffice to account for the likenesses; while many subordinate
theories can be put forward to account for the differences. Between the
theories of these differences it must be impossible to decide until we
know more accurately the exact circumstances of the Israelites at, or
soon after, their conquest of Canaan. We may, for example, have to
regard the conquest as extending over a long period and admitting of
many gradations of supremacy in different parts. It is not likely that a
clean sweep was made of the old inhabitants and their customs at any one
epoch or place. We may have to extend this period of conquest down to
the end of the time of the Judges. Parallels are not wanting in the
history of Babylonia. The so-called Amorites had been some centuries in
the land before Hammurabi’s supremacy, even before they appear as
founding a dynasty.
A favourite theory of the resemblances is that they are due to a common
Semitic origin. Let us examine that theory more closely. In support of
it we have to show that the common features are of a Semitic type. This
is more difficult than is generally supposed. When practically the only
pastoral nomads whose customs were at all well known to theologians were
the Arabs and, as usually assumed, the Israelites, many features were
put down as Semitic which are now recognized as rather due to the
exigencies of the nomadic life. The recognition of the Babylonians as a
type of settled Semites led by slow gradations to the admission of other
features as also Semitic, while some things hitherto only known among
Semites have been recognized as the common possession of many unrelated
folk. Gradually, and probably unconsciously, ‘common Semitic origin’ has
become a mere euphemism for ‘Babylonian’. For to what part of the
Semitic world can we look for so advanced a civilization as to be common
both to the Babylonian and Israelite law? It must be at least as
advanced as the things common to those laws and yet not presuppose a
state of society which could not be true of a Semitic people. It would
be interesting if we can find anywhere a clear sketch of what
conceivable state of society the common Semitic origin really implies.
It might then be argued that no such society ever existed. At present
all we can say is that we do not know where to find it. It is really
only a convenient term, like evolution, to conceal our ignorance of
history.
If it could be shown that just those features which are common to the
Hammurabi Code and the Israelite, and therefore presumably existed in
the common Semitic origin, are unlike anything in the Sumerian or
pre-Semitic laws of Babylonia, then the fact of a common Semitic origin
might have to be admitted without our being able to fix upon a locality
for it. In Babylonia a predominance of Semites, at least in the north,
may be dated, perhaps a thousand years before Hammurabi, under Sargon of
Akkad. But while we know of Sumerian Family Laws and have references to
legal reforms under the Sumerian Kings of Babylonia even in pre-Sargonic
times, we have not yet sufficient material from those early days to know
exactly how far Hammurabi’s Code was really an advance upon older
Sumerian law. Slowly but surely we are learning that precisely the same
legal forms were in use, long before Hammurabi, among the Sumerians of
the south. The legal documents of Hammurabi’s age are full of the old
Sumerian words and phrases, used just as dog-Latin or Norman-French was
in our deeds of early English times. We could not claim a common use of
Teutonic translations of Roman law terms in England and Germany, if such
existed, as proof of a common Teutonic origin for the laws. But the
Hammurabi Code is full of Semitic translations of Sumerian terms. This
would be quite fatal to the theory of common Semitic origin but for the
fact that the Sumerians had been conquered so long before by Sargon, and
we cannot yet clearly sift out what may have been due to his Semitic
followers from what may have been imposed on them by the subject
Sumerians. The conquest of Babylonia by Elam may have affected its laws
more than we think. The barbarous Elamite punishments survived in
Babylonia, in Mesopotamia, even in Israel, two thousand years or more.
But one can hardly argue much from that. The early history of Babylonian
law is still very obscure, and we can only state probabilities of more
or less cogency.
The Semitic origin seems afflicted by lack of cogency. One must respect
it for the attachment which certain estimable divines show to it. One
rather wonders whether Noah was a Semite as well as his eldest son, and
whether these laws really go back as early as Shem. Elam had claims to
be a Semite, and an early Semitic kingdom in Elam seems to have been
long predominant there. Was Elam the real common Semitic home both of
Amorites and Israelites? There was a district not far from the border of
Elam over which Kudur-Mabuk, the father of Rîm-Sin, once ruled, and
which was known as the land of the Amorites. Thence the First Dynasty of
Babylon may have come. Whether the ancestors of Abraham in Ur of the
Chaldees were once Amorites or earlier Elamites we cannot yet decide.
But with all these speculations scientific folk show small patience: for
they have another way of solving the problem.
It is most probable that some of the features which Hammurabi’s Code has
in common with the early Hebrew legislation are only slightly modified
from the still earlier codes which date from the time of earlier
Sumerian supremacy in Babylonia. Hence we should remember that a common
Semitic origin may really be only a step towards a reference of both to
an early Babylonian origin. At present we are not likely to find
evidences of early Semitic custom anywhere so early by some thousand
years as in Babylonia; and though we are quite justified in supposing
that Arab customs may be older still, as they certainly are more
primitive, we can never date them with certainty except when we can show
them to arise purely and simply out of local circumstances. Then we may
perhaps affirm that they must always have been the custom in Arabia and
treat them as a witness to early Semitic law. On this side of the
question Mr. S. A. COOK’s work is invaluable.
But the evolutionist or scientific man has a much easier solution. He
has made a comparison of laws among such foreign folk as are wholly
unconnected with Semites or Sumerians. It is found that all men
everywhere do hit upon much the same solution of the same social
problem. We may say that the likenesses we perceive between the Code of
Hammurabi and the Hebrew laws are due to the natural dictates of human
experience. If we take up the laws, one by one, which are common to the
two systems, we can account for almost all the likenesses in this way.
Some very remarkable similarities have been shown by PROFESSOR D. H.
MÜLLER to exist between the Code of Hammurabi and the Twelve Tables of
the Roman Law. PROFESSOR COHN, of Zürich, has pointed out strong
likenesses to the laws of the West Goths. On the other hand, DR. H.
GRIMME has pointed out some very close agreements between the Mosaic
Laws and an ancient Semitic Law of Bogos, which goes back before the
coming of the Amhara into Abyssinia. There are some likenesses even with
the old Indian laws of Manu, and even the laws of the Aztecs have been
compared. We could not expect much assent if we argued for a common
parentage of these widely scattered laws and their descent from the Code
of Hammurabi.
The scientific view is that the common laws are due to common human
experience, which is much the same everywhere. It is closely allied with
the doctrine of evolution as applied to human institutions. If we could
only assume that the nations developed each separately and
independently, without mutual intercourse, it might suffice. But for
ages before the institutions we are considering, both Babylonia and
Palestine had been the meeting-place of many peoples. We cannot tell by
any _a priori_ method which race introduced which custom. All we know is
that an improvement is often readily adopted by people from those with
whom they come in contact, even when not forced upon them by conquest.
But we also know that even superior usefulness or comfort is not always
sufficient to keep a custom alive. We now know that without much
apparent reason even an essential craft may die out. In fact, this
common humanity origin of common customs is very useful, like the theory
of evolution, to account for observed results when we have no knowledge
of what preceded them and can only guess at the previous history. One
can then, without fear of contradiction, assert what we consider most
likely to have led up to them as their antecedents. But these easy
explanations do not absolve us from careful research where history can
be produced to work upon. The evolution of human institutions, if such
be a legitimate expression to use, has many a set-back or reaction, and
we may very well at any time be comparing progress in one history with
reaction in another.
But while the evolutionary theory of human institutions may be appealed
to for satisfying our curiosity when no possible answer can be given by
history, there are things often to be observed which it does not well
account for, and then recourse to it is the reverse of scientific. An
illustration taken from the arts may help to clear our minds on this
point. It may be assumed that all men everywhere may be expected to hit
upon the device of burning clay vessels until they obtain some rude form
of pottery and then develop the potter’s art to some extent. We may call
this evolution. Not only can the making of pots and pans be adduced from
all parts of the globe, but truly astonishing resemblances can be
discovered between pottery from districts so remote that we cannot
believe there can ever have been communication between them. Here an
independent evolution has produced the same results in unconnected
areas. If that were all, the modern science of pottery evidence would be
impossible. We cannot afford time or space even to sketch here the
chief results of the intensive comparative study of pottery, which has
become so powerful a weapon in the hands of the modern archaeologist.
Not only the age of the stratum on which it was found, but even the
nationality of the maker, can frequently be asserted beyond reasonable
question. Every one must be familiar with such statements as that
Mycenaean pottery has been found on some site or other recently examined
in Greece, Asia Minor, or Palestine. We are led to suppose that there is
something distinctive about it which fixes its origin and age quite
unmistakably. Now this is not its special fitness for meeting a want
which could be met no other way, so that every people everywhere must
have produced Mycenaean pottery once they reached the compelling stage
of civilization which demanded it. It is some non-essential feature
which marks its distinction from all other than deliberate imitations of
it. It must be something that appeals to a taste which could only arise
after the thing itself had arisen. The admiration felt for Mycenaean
pottery would lead to a demand for it, and that might lead to imitation
of it, but no conceivable set of circumstances could have led men to
achieve it independently. If this could be conceded, the whole science
built on modern study of pottery comes to an end. The presence of such
pottery in Palestine does not indeed prove that any Mycenaean potter
ever visited the country, but that his wares were brought there, were
valued and in request. Further, the pottery came within fairly definite
limits of time.
Now it is this sort of non-essential, for the most part useless but
approved, characteristic which shows conscious imitation, adoption, or
adaptation, that proves influence, indebtedness, or copying. In this
case instanced, in the absence of all documentary evidence, by its
frequency of occurrence, by its adaptation to local circumstance or
other local appropriateness, we also fix the locality of its origin.
Conclusions of this kind are accepted as legitimate in most modern
researches into prehistoric times.
So if we could fasten upon just such a point in the Code of Hammurabi
which appears so artificial or arbitrary, so purely local in its
character that we cannot imagine it to have independently arisen
elsewhere, we could use it as a test case to decide whether the great
amount of common matter found in that Code and also the Laws of Moses
may be set down as due to common Semitic origin, or to common human
genius faced by similar needs. There is no question as to the relative
age of the codes to be compared; we know definitely which is older and
more original.
Let us then consider a case which, like the need for pottery, might
arise anywhere when men had reached the same stage of civilization. A
man has lent money to another, or its equivalent in goods. The debtor,
as is commonly the case among men, finds himself unable to repay the
loan, for he has consumed the goods and been unable to acquire what will
replace them. His labour is probably of some value; it should be worth
more than his keep; the surplus value, if he can find employment and
wages, should in time enable him to repay the debt. Now in his area
employment may be scarce, wages low; but at any rate he may offer to
work for his creditor. The custom of making such an offer, which differs
little from taking service for wages, except that the wage has already
been prepaid, may arise almost anywhere. It is probably universal
amongst civilized peoples. The creditor soon can count on it as his
right to demand his debtor’s labour to repay the loan. He probably
calculates upon it as his security when he lends, and, if prudent, lends
no more than he can reasonably expect to be repaid in this fashion.
Thus far common human experience and its dictates. As a responsible man
and the head of his family, the debtor, at least among the Semites, had
power over the labour of the other members of his family. There may be
peoples where this power does not exist, if so, the power may be called
a Semitic trait. But in both the Code of Hammurabi and the Book of the
Covenant we have some reason to suppose the debtor would have power to
offer not only his own labour but that of his wife, often the better
worker of the two, or that of a son or daughter, or of a slave, as well
as or instead of his own. Exactly how far his power over the members of
his own household extended may be set down, if we chose, as depending
upon Semitic custom, if we can show that this extent of power is common
to all Semites, at any rate in early times, and is not shared with
non-Semitic folk. The parallels in Roman law do show that it did not
remain exclusively Semitic, unless it be held that the Twelve Tables
were so influenced by Eastern civilization as to have derived this
feature ultimately from a Semitic source. It was probably Sumerian also,
but there we may perhaps derive it from an early Semitic source. At any
rate we do find it common to both Babylonia and Israel, whether they
derived it from a common source or obtained it independently.
Now how long shall the debtor or his hostage serve the creditor to pay
off the debt? The creditor might well say in the case of a slave, who in
practice was often taken as an antichretic pledge for a loan, his labour
being supposed to pay the interest on the loan without affecting the
capital, that he had a right to keep him always. Theoretically this was
true if the loan was about the value of the slave. It would practically
be accepting the slave as a payment of the loan. The value of a slave
was often very little in excess of the cost of keeping him, feeding,
clothing, and housing him. Indeed, he was even an anxiety after he
became adult. The owner usually did wisely in providing him with a
slave-girl for wife and so breeding a family of slaves, who after they
had been kept to adult age might be sold profitably. But even this was a
speculation, and at the best not a very profitable business. The
creditor who accepted the debtors slave as a hostage for debt usually
took the opportunity of a sale to pass him on. A slave-girl had other
uses than her work and was usually more saleable. Hence she was more
likely to be accepted and offered as a hostage.
The Code of Hammurabi here steps in with a remarkable set of
restrictions upon the freedom of action of the debtor and creditor. The
debtor cannot complain if the creditor sells the slave given him as
hostage. But if it is a slave-girl who has borne children to the debtor,
she cannot be sold. She may be pledged or given to work off a debt, but
not alienated by the creditor (§ 118).
If the debtor has handed over wife, son, or daughter as hostage, they
have to be treated as freemen still. They are not to forfeit freedom for
ever. The Code orders their release at the end of three years’ service.
It is a noteworthy interference with the above power of a man over his
family (§ 116), Semitic or not. In such cases as these there is no
account whatever taken of the amount of debt. It is an arbitrary
interference on the part of a lawgiver with commercial principles, or
selfish instinct, in favour of the weak against the strong. It seems
clearly to be an innovation, for though earlier kings had declared
amnesty from debt on special occasions, that was a more primitive
measure of pity and a generous use of other men’s money peculiarly
unfair to the soft-hearted lender. This was a bold, calculated move in
the direction of humane regulation. It had its risks of abuse, and if
Hammurabi had stopped there, he might have done more harm than good. For
he would have left it open to the hard-hearted creditor to try and exact
more work, the utmost farthing in fact, out of his temporary slave.
Accordingly he declared that if the hostage for debt died of blows or
want in the creditor’s house, the creditor should suffer the same family
bereavement as he had brought on the debtor by his cruelty, a regulation
which might lead the creditor’s family to moderate his exactions, or
forfeit the average price of the slave he killed by ill use, and, what
the creditor would feel most keenly of all, lose all further claim on
the debtor.
Now by such regulations Hammurabi set a very effective limit on two
markedly Oriental vices. Men love to gamble by borrowing for present
enjoyment on security of some contingent future wealth. They pledge
crops, land, houses, family with gleeful irresponsibility. But others
are avaricious and only too willing to lend on decent security or even
most speculative future profit. Hammurabi’s Amorites and Babylonians
were by no means above these abuses. He forbade speculation in crops,
&c., and by his regulations on these points put a very stringent
restraint on debt. The debtor’s powers of borrowing were greatly
narrowed. A prudent lender found himself checked by the consideration
that if the debtor did not pay he would never be able to reclaim more
than three years’ average work out of the debtor, his wife, son, or
daughter. He would have a shrewd guess at what these assets were worth.
So the lawgiver cut at the root of much of the misery which his
predecessors tried to redress by their slap-dash amnesty.
We do well to remember that a respectable, pious, poor man in Babylonia
could usually borrow from his local temple without interest, and that by
the Code agricultural loans could not be pressed if the crop failed.
Hence we see that most of the debts which Hammurabi made so difficult
must have been due to improvidence, laziness, or a weak use of the
facility to borrow offered by wealthy, lazy, and avaricious
money-lenders.
The Hebrew legislation on the subject is precisely similar save that the
term is six years. Whether three or six, the term is so absolutely
arbitrary that no possible explanation can be given to account for it.
It equally ignores the amount of debt, the value of the debtor’s work,
and the sacredness of contract. Had both legislations hit upon a three
years’ term, we might have racked our brains to find a reason why in the
world three years should have commended itself to both lawgivers. We
should have been tempted to think that these Semites had some sanctity
about the term which made it appropriate to select. At any rate we
should have wondered what a money-lender in Israel had done to deserve
to get twice as much work for his money as the Babylonian. Some might
even have been tempted to see early evidence of Jewish aptitude for
business. Others would doubtless begin to play with the importance of
the value seven to the Jewish mind. Then one would begin to see the
influence of P. as in the first chapter of Genesis. Unfortunately the
Babylonians of the Hammurabi period had about as much reverence for
seven as for three, and perhaps as much for both as the Israelite in the
Book of the Covenant.
But it is a poor compliment to a lawgiver of any age to suppose that
sacred numbers influenced the nature of his laws. Doubtless the Jubilee
release was economically an advance on sporadic amnesty, but to make a
debtor’s lot twice as hard and a money-lender’s security double,
especially as there is no reason to suppose that in Israel the temple
was the poor man’s bank, all for sake of seven is not a fair charge
against Moses or any lawgiver unless it is absolutely certain. The
change from three to six is not easy to account for on scientific
sociological grounds.
But one of the Hebrew Scriptures does attempt to account for the change,
and evidently regards it as a change to be accounted for. The
Deuteronomic writer argues that the creditor ought not to deem it hard
that he should release his debtor at the end of six years because he had
so served a double term. We may note that as it now stands the text says
‘double the hire of a hireling’. That is purely irrelevant. A slave’s
value was surely less to the holder, not more than that of a hireling,
for his keep had to be subtracted, and his work was hardly likely to be
so valuable as that of a freeman. The profit of a hireling is the excess
of the value of his work above what is paid for it. The hire of a
hireling was surely not just half the value of his own work or of a
slave’s work. Indeed, it is not easy to see what the double of a
hireling’s hire has to do with the question. The writer was right in
saying the term of six years was double something, and there can be no
question that it was double three years, and therefore double the term
fixed by Hammurabi five hundred or more years before. The creditor seems
to have resented letting the debtor go at all, at any rate till he had
worked off all his debt. The writer clearly knew that the creditor had
already obtained twice what he had to expect under other circumstances,
and believed he would admit the fact. It was double the Babylonian
allowance.
Can this undesigned coincidence be accidental? Is either Semitic custom
or human experience competent to explain the significance of the
doubleness being pointed out in this way?
If Canaanite custom before the Exodus had a term of three years’ service
in such cases, the same as the Hammurabi Code, surely that was due to
Babylonian law, unless, as some would maintain, the Amorite dynasty to
which Hammurabi belonged really came from Canaan, in which case
Hammurabi imposed Canaanite law on Babylonia. It was a non-essential,
anyway; it could nowhere have been the outcome of special circumstances
likely to occur again. It was not a creditor’s law, for he obviously
wanted liberty to keep the debtor’s hostage till he had satisfied his
own desires; it was not a debtor’s law, for he would have surely
preferred the three years’ limit. It was a concession to the creditor to
meet that hard-hearted person’s wishes.
It is not the large stock of common matter in the two legislations about
a hostage for debt but the disguised yet undeniable adaptation which
seems so significant.
Let us now consider another somewhat different case. Death by burning is
a horrible punishment, and was so recognized by the later Jewish
lawyers, who contrived a legal fiction to do away with its literal
infliction even on the scandalous criminals for whom it was intended.
Hammurabi orders it twice. It would be very difficult to account by
common Semitic custom or evolutionary methods for its being inflicted,
if at all, only twice. Yet the laws of Moses inflict it twice also. If
these arose independently, what is there from any intelligible point of
view to demand its infliction at all—but, if at all, why twice and only
twice? And that too in laws so similar?
Well now, in both laws the incest of mother and son is one case. The
heinousness of that crime may suffice to justify the hideous penalty.
Hammurabi (§§ 157-8) clearly distinguishes incest with a man’s own
mother and with a step-mother. Leviticus (xx. 14; xxi. 9) makes a
curious specification of the case; whether to include other cases or not
is not very clear. But evidently this great crime met the same unique
punishment.
Hammurabi’s second case is that of a votary, or vestal virgin, who left
her cloister to open a wine shop or frequent it for strong drink. At
first sight we might regard this as a protest against a vestal’s
intemperance solely. But women did keep wine shops, and their conduct of
them is regulated by the Code. We may recall the case of Rahab in Joshua
ii. 1. The second case in Hebrew law is Lev. xxi. 9: the priest’s
daughter who is unchaste is to be burned with fire. Now why are other
women of the priest’s family not included? Is priest’s daughter to be
taken, like the _mârat amêlim_ in the Code, to mean a woman of the
priestly family? Or is it simply a priestess? Surely it is just a
periphrasis, perhaps once a gloss on a word become obsolete, for a vowed
woman like Jephthah’s daughter. There is at first sight not much
likeness between the two second cases. But this one evidently puzzled
the Jewish commentators, who probably had a traditional knowledge of
the real meaning. First Josephus explains the crime not as mere
unchastity but as ‘opening a tavern’. Was he thinking of Rahab the
tavern-keeper who was also a harlot? Or had he an inkling that the crime
was the same as Hammurabi had in view? The association of the tavern
with immorality was close in Old Testament ideas. Perhaps Hammurabi also
had it in mind, for unchastity would be specially revolting in a vestal
virgin. Surely the priest’s daughter also was a votary. The Rabbis of
the Talmud evidently suspected something disguised in the text, for they
make a comment upon it which is truly surprising if the text be taken
literally. They ask, Shall not a priestess or priest’s daughter be
treated better than a tavern-keeper? They too knew that in some cases a
tavern-keeper had to be burned. We ask, Why and where, if she were not
also a vowed woman and in the Hammurabi Code? We need not assume that
either Josephus or they had read or heard of Hammurabi’s Code, or would
have regarded it with anything but detestation if they had. All the more
suggestive is it that these learned men should regard the verse as
meaning just what that Code did mean.
These points are like the meaningless but obviously Egyptian symbols,
often used for decorative purposes on seals, found in Syrian or Hittite
seals, which show the influence of the Nile and are never disputed as
due to copying, though no longer understood and used for decorative
purposes solely.
Some scholars are inclined to attach even more importance to the
singular likenesses in literary form, and above all to the disposition
of both the Code and the Book of the Covenant in groups of five or ten.
It may be remembered in this connexion that according to the author of
the Acts of the Apostles Moses was traditionally learned in all the
learning of the Egyptians. Taking that statement as literally true, we
now know from the Tell-el-Amarna tablets that that learning included the
knowledge of cuneiform at least on the part of some Egyptian scribes
before the Exodus. Philo tells us that Moses was also learned in the
learning of the Assyrians who were correspondents of Egypt in the same
period, of the Babylonians who wrote to the same kings at the same time,
and the Chaldeans, who were then known as an independent kingdom in the
Southern Sea lands of Babylonia. These and similar traditions are
usually dismissed by critics as mere senseless attempts to enhance the
reputation of Moses for wisdom and knowledge, which included that of the
wisest nations of antiquity. But in view of what we have seen already
may there not have been a different reason for these claims? Did not
these learned men, who themselves knew much of that knowledge, recognize
in the Books of Moses many startling parallels to the wisdom of
Babylonia? Was it not the only acceptable way to account for such
parallels to assert boldly that Moses did know these things, but in such
a way that, guided by God, he used them so far as they were in
accordance with Divine revelation; independently indeed as exercising
his own discretion in selecting from them, but dependently in so far as
they had found out already by man’s wisdom or the light of nature that
which was good and of good report?