Hammurabi and ancient texts: challenge or opportunity?

By Shmuli Phillips and Simi and Rivka Lerner

This week’s parashah sees a brief interruption in the account of events at Sinai for the sake of a through account of Jewish civil law. The presentation of these laws comes over at times as somewhat strange in its details and phraseology. Around a century ago, the archaeological discovery of an ancient law code appeared to shed some light on many of these verses. But what were the implications to be for the Torah of a very similar code of law written centuries before?

Much of this is discussed in this fascinating and clearly presented podcast by my friends Simi Rivka Lerner (https://nuancedjudaism.podbean.com/ see more about the weekly podcast below).

Judaism Reclaimed tackles the subject as part of its broader analysis of the Torah’s function and agenda. While noting that its religious and moral principles represent a dramatic contrast to the norms of the ancient world, it is hard to ignore the similarities which are clearly evident between the terminology and themes of the Torah and other ancient texts. This phenomenon was recognised by Rambam (Guide 3:30) who describes how the Torah’s passages of blessings and curses deliberately mirror the promises and threats made by pagan priests. Rambam cites ancient sources to demonstrate how people were promised peace and prosperity, rainfall and crop abundance if they worshipped in the pagan temples. Therefore, explains Rambam, the Torah’s general teachings regarding reward and punishment are deliberately couched in words and phrases with which the Jewish people were familiar in order to counter the pagan propaganda – even though those words in reality represent far broader concepts.

This aspect of Rambam’s thought, which reflects his expansive understanding of the dictum “dibrah Torah belashon b’nei adam” (the Torah speaks in the language of man), also relates to another strong theme in Rambam’s writing: that a primary purpose of the Torah is to uproot pagan belief and practice from Israel. On this basis, its blessings and curses are deliberately designed and phrased in a way that will nullify and oppose the messages of idolatrous cults. It is crucial, therefore, when analysing any apparent similarities between the Torah and earlier or parallel sources, to ensure that one’s focus remains on the content and core message being imparted by the Torah, and not to be overly distracted by the terminology and phrases through which these messages are presented.

It is against this backdrop that we must consider the similarities between the Torah’s text and the Code of Hammurabi. Historians of ancient Mesopotamia are quick to recognise similarities between the Torah’s laws and the Code of Hammurabi. Using the Rambam's understanding of the Torah’s presentation of its blessing, warnings and rebukes, however, we can allow for the fact (and perhaps even expect) that the Torah’s laws are also presented in a manner which its earliest students, whose acceptance of it was a precondition for its acceptance by future generations, would find accessible. What is crucial however, is that the content of the Torah — that is, the legal and ethical principles which it conveys — is a radical departure from the values of the ancient world that are expressed in the Code of Hammurabi.

In this podcast, Simi Rivka Lerner analyse and pinpoint many of the ways in which the Torah directs its adherents to a more moral approach to law than that of the Code of Hammurabi. Judaism Reclaimed also explores how Hammurabi focuses on the protection of property whereas the Torah seeks primarily to protect and promote humanity. This is most evident in the lack of death penalty for any property crime in the Torah – in contrast to the Code of Hammurabi, which legislated a death sentence for every form of theft.

Another significant distinction between Torah law and the earlier Hammurabi regime is that of equality before the law. Under Torah law, the law of damages is engaged regardless of the social status of the perpetrator and victim – a feature which was notably absent from Hammurabi’s system. While Hammurabi required a slave’s ear to be cut off for expressing a desire for freedom, Torah law sets the slave free in the case of his master inflicting a serious injury upon him. The most significant departure from its ancient predecessors lies in the Torah’s theme of personal holiness and beneficence towards the poor, of which there is not a trace in the harsh Hammurabi laws.

A further powerful demonstration of the contrasting moral values which underpin these two compendiums of law can be found in their treatment of murder, to which the earlier Code of Hammurabi, like the Torah, assigns a death penalty. Crucially however the Hammurabi penalty can be waived if the family of the victim agrees to pardon the offender. The Torah, by contrast, indicates that the seriousness of murder represents an absolute and unpardonable offence against God, as is implied by the verse:

“Do not accept a compensatory payment for the soul of a murderer…rather he shall surely die…”.

This framework is also used by Judaism Reclaimed to discuss how the Torah relates to phenomena which were once widespread but now considered distasteful or fundamentally immoral such as polygamy and slavery, as well as Torah narratives – such as the Flood – which bear a striking resemblance to earlier mythical accounts.

Nuanced Judaism is a new podcast by Rivka and Rabbi Simi Lerner. It features a dynamic discussion on philosophical, esoteric as well as relevant questions pertaining to the weekly parashah. A husband and wife with different perspectives but equal enthusiasm to seek out meaning and depth (approx. 15 mins).

First posted on Facebook 26 January 2022, here.

Slavery and the Civil Law

Parashat Mishpatim introduces the Torah’s civil law with an initial focus on laws of slavery, a subject which represents a source of great discomfort for many modern readers. Judaism Reclaimed discusses the Torah’s view of slavery as part of its analysis of Rambam’s axiom that the Torah presented its teachings in a manner which even its earliest students could relate to, while at the same time guiding them gently towards the ideal path.

It can be claimed, in accordance with Rambam’s approach, that slavery – like animal sacrifice - was so deeply ingrained within the popular Jewish psyche that it could not have been prohibited outright. A comparison between the Torah’s laws on slavery and those which existed in the surrounding Ancient Near Eastern societies, however, can provide a strong indication of the Torah’s overall view of the institution of slavery.

The Code of Hammurabi, for example, provided slaves with absolutely no rights, regarding them essentially as property. Viewed in this context, the Torah introduces severe limitations: it sets slaves free if they are abused by their masters, legislates a death penalty for their murder, and requires their inclusion in the Shabbat day of rest “so that your slave and maidservant shall rest just like you”. Blinding of slaves, a frequently performed means of controlling or punishing slaves in ancient times, results in a slave going free under Torah law. Rambam explains that the prohibition against returning a fleeing slave to his master displays empathy with the oppressed slave and sends out a powerful message to his master that his power over a slave should not be cruelly abused. This conforms with Rambam’s emphatic statement at the end of Hilchot Avadim that, while the letter of the law allows for slaves to be worked in difficult conditions, this is neither the way of the Sages, nor does it reflect the character traits that the Torah demands of the nation of Avraham, a nation that is exhorted to exhibit “Godly” kindness and compassion.

In his discussion of slavery in the Torah, Rabbi S. R. Hirsch writes that Jewish law does not allow a person to be transformed into a slave against his or her will. The only way individuals could become Jewish slaves was by willingly selling themselves unless, under the generally accepted rules of international law, they already had the status of slaves. Citing the “saddening experiences of our own times” in America and Jamaica, R’ Hirsch adds that transferal into the property of a Jew was the only form of salvation for a person previously stamped as a slave: “A Jewish home was a haven to a slave. There, he was protected by law against mishandling… He became a member of the household, like his master’s children, and like them he participated in the Pesach offering, on which God’s people was founded.”

Staying with R’ Hirsch, his commentary at the start of this parashah takes note of how the Torah’s civil law code commences with a detailed recitation of specific laws governing slaves. This beginning, he argues, would be inconceivable if the Written Torah was the primary source of Jewish law. It follows that a mass of laws and legal principles must have already been established and clarified before these exceptional cases could even have been considered. It is presumably upon the basis of the mass of laws and principles that Moshe had already received and transmitted orally that he had previously been “judging the people…from morning until evening…making known to them the decrees of God and His teachings,” (see Rashbam to Shemot 18). This forms the basis of R' Hirsch's analysis of the relationship between the Written Torah and the Oral Tradition (see chapter 11 of Judaism Reclaimed, summarised below in the Chaye Sarah post).

First posted to Facebook 15 February 2020, here.