Law in the Hebrew Bible

We sometimes hear religious conservatives proclaiming that the “Ten Commandments are the basis of our law.” This assertion is factually incorrect. The basis for law in the United States is the English Common Law as modified by the Constitution and the legal enactments of our Congress. Many other countries observe Civil Law traditions, deriving ultimately from the Roman codification of law. Neither of these stems from the Ten Commandments (otherwise known as the Decalogue), or indeed from any of the collections of laws found in various books of the Hebrew Bible.

What is the nature of the laws that appear in that Bible? Before proceeding further, one must set aside the common extension of the term “law” to cover the entire Pentateuch, or Torah in the strict sense. This umbrella approach is frequent among Jewish scholars, who write grandly of the “Laws of Moses” (a person who almost certainly did not exist). To be sure, laws are prominent in the Pentateuch, but so is much other matter--including myth, legend, folk tales, poetry, and pseudo-science.

Many believers, Jewish and Christian alike, regard the law passages of the Hebrew Bible as sui generis. They are, after all, the word of God, are they not? If so, God was rather busy in this sphere in ancient times, for modern scholarship has shown that the Israelite laws are embedded in the vast cultural and legal landscape that characterizes the ancient Near East.

This broader contextual approach, which is essential, depends on the decipherment of the cuneiform script. Here the decisive step was taken by Sir Henry Rawlinson, a British army officer, who published his interpretation of the Behistun inscription in 1851. Not unlike the Rosetta Stone, this monument was trilingual: Old Persian, Elamite, and Akkadian. Gradually, other languages, including Sumerian, Urartian, Hittite, and Ugaritic.

Sometimes the term Cuneiform Law is used to refer to any of the legal compilations (commonly, but inaccurately known as “codes”) written in cuneiform script,that were developed and used throughout the ancient Middle East among the Sumerians, Babylonians, Assyrians, Elamites, Hurrians, Kassites, and Hittites. Why are these documents not codes in the true sense of the word? The answer is that they lack the comprehensive scope and systematic arrangement that characterize such later achievements as the Justinian Code and the Napoleonic Code. Instead, these Near Eastern legal corpora are florilegia, that is, compilations that probably grew gradually by accretion, but never extended to embrace the full range of prevailing law, much of which remained oral. As such, this type of law was transitional between the law systems of tribal peoples, of necessity oral in character because of lack of literacy, and our own comprehensive systems of written law.

That being said, the so-called Code of Hammurabi is the best known of the cuneiform laws. Discovered in December 1901, it contains over 282 paragraphs of text, not including the prologue and epilogue. As with the Flood story, and other Near Eastern motifs, striking similarities were discerned with similar material embedded in the Pentateuch. However, these one-to-one similarities must not be exaggerated, for it is important to situate Israelite law (as we know it) in the broader context of Near Eastern law and jurisprudence.

In 1934 the German Old Testament scholar Albrecht Alt took a decisive step forward. In a paper published in that year he distinguished between two types of laws found in the Pentateuch. The first, or Casuistic type, is characterized by the formulas “If such, then ...”, “When such, then .. , or “Supposing, then. ...” These laws are of frequent occurrence in the so-called Book of the Covenant (Exodus 20:22 - 23:33), situated immediately following one of the redactions of the Ten Commandments. Here are two examples pertaining to livestock. “If someone’s ox hurts the ox of another, so that it dies, then they shall sell the live ox and divide the price of it; and the dead animal they shall also divide.” “When someone steals an ox or a sheep, and slaughters or sells it, the thief shall pay five oxen for an ox, and four sheep for a sheep.” (Both NRSV).

Formulated in this way, such laws are well suited to the actual operations of a court, because the fulfillment of the opening condition triggers the application of the law. Absent the condition, there is no cause of action.

The second type of law, in Alt’s classification, consists of Apodictic laws. These dispense with the opening clause, flatly forbidding or commanding a certain sort of behavior. We are familiar with one category of these in utterances of the “Thou shalt” and “Thou shalt not” type. An example, which has crept into the Book of Covenant noted above, is the notorious “Thou shalt not suffer a witch to live." (KJV; Exodus 22:18).

Alt held that only the second type was distinctly Israelite, while the legal precepts of the first type were borrowed from the Semitic environment, specifically (he conjectured) from Canaanite law. Later scholars have offered some refinements, noting that the formal distinction of the two types is less clear cut than the German scholar had assumed.

There are also difficulties--and this is a key point--in localizing the sources of the two laws. Although major discoveries of Canaanite texts (the Ras Shamra finds) were being made at the very time that Alt was writing, no actual body of Canaanite law has been found. In all likelihood, the Casuistic laws were derived from several Near Eastern sources. (Albrecht Alt’s paper, “Die Ursprünge des israelitischen Rechts,” appears in English translation in his “Essays on Old Testament History and Religion,” New York: Doubleday, 1968, pp. 101-71.)

There remains the problem of the origin of the Apodictic laws. It is tempting to regard these as a distinctive hallmark of early Israelite culture, items that were hammered out in the harsh school of the desert. Yet since the whole exodus story is nowadays generally discounted, these laws were most likely created in the territory of ancient Israelite itself, as those who became Israelites gradually enucleated themselves from the Canaanite environment in which they had been originally embedded. It may be observed that one can easily obtain an Apodictic law by lopping off the opening conditional clause of a Casuistic law. Apodictic laws are then simply condensed, or (if you will) mutilated forms of Casuistic originals. I confess that I do not know how Biblical scholars would respond to this hypothesis.

At all events, a further question intrudes. Are the Apodictic pronouncements (including the Ten Commandments) actually laws? In fact they are better regarded as simply formulations of taboo, intended more for the observant than for the courts. As such, they are precursors of the vast compilation of 613 obligatory precepts developed by the rabbis. A harsh judgment would be that taken as a whole, such adjurations are a manifestation of a collective and transhistorical case of the Obsessive-Compulsive Syndrome.

At all events, the idea that is currently fashionable among Christian evangelicals and other conservatives--namely, that the Ten Commandments are the foundation of our secular law--is untenable. It does not correspond to what we know of the history of the common law and statute law in this country. Moreover, the Ten Commandments could not be a source of law, because they are not laws at all, but a list of demands and prohibitions.


Postscript. Here are some examples of law collections from the ancient Near East:

* ca. 2350 BCE - Reforms of Urukagina of Lagash - not extant, but known through other sources
* ca. 2060 BCE - Code of Ur-Nammu (or Shulgi?) of Ur - Neo-Sumerian (Ur-III). Earliest legal florilegium of which fragments have been discovered
* ca. 1934-1924 BCE - Code of Lipit-Ishtar of Isin - With a typical epilogue and prologue, the law deals with penalties, the rights of man, right of kings, marriages, and more.
* ca. 1800 BCE - Laws of the city of Eshnunna (sometimes ascribed to king Bilalama)
* ca. 1758 BCE - Code of Hammurabi
* ca. 1500-1300 BCE - Assyrian law