* The vine was rare, if not quite unknown, in Babylonia. EXTRA VOL.—39
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8. In Exodus the transition to damage by fire is natural. In Babylonia, damage by careless management of water was more characteristic. It might have come next, only the order of ideas led to its being put first, as §56. Here the differ- ences of legislation are quite such as any legislator might introduce if he were using a foreign code asa source. The votary was forbidden to open a wine-shop (§ 110). At first sight there is nothing at all like this in the Hebrew legislation. But Ly 21° forbids the daughter of a priest to commit folly in Israel, on pain of being burnt. Josephus understands that to mean ‘open a wine-shop.’ The penalty is the same in both codes. It may well have been that one law was adapted from the other. So while a hostage for debt was freed after six years’ service in Israel, but after only three in Babylonia, it has to be excused on the ground that such had already served a double term (Dt 15'*). The custom was clearly to release at the end of three orn custom which seemed hard to the recently settled Israelite; and so concession was made to his prejudices, fixing it at six years instead. Thus we may account for the absence of other humane laws in Hebrew codes. They were too advanced to adopt, unmodified. The fact, then, that more of the Babylonian Code does not find parallels in the Hebrew, even when its regula- tions would be quite acceptable, may be due to the fact that custom had already adopted them. Law is needed, not to enact custom, but to modify it. It may legalize it, but usually seeks either to unify varieties or to sanction growing changes, and so to decide between competing views of right. Hammurabi saw no cause to pro- mulgate any law about murder; the Hebrew codes leave some other things unsettled. Some of these may have been settled by Hammurabi or his fore- runners, and already been in force in Canaan. In many other cases we may plausibly argue that the legislations show a common source, treated differ- ently in adoption.
9. The absence of law courts, the persistent blood-revenge, —though subjected to a series of regulations, the severer treatment of some offences, the milder treatment of others, are held to be strong proofs of a more primitive state of civilization in Israel. The differences from the Code of Hammurabi are therefore important to notice. The treatment of theft is less severe in Hebrew than in Babylonian law, except perhaps in the case of the nocturnal burglar (§ 21 ; Ex 227). The severer penalty against a son who struck his father (§ 195 ; Ex 21), which Hebrew law also enacted for cursing parents (Ex 21” etc.), the treatment of the rebellious son (Dt 21'*?'), are traces of a more primitive state. The rights of the firstborn, so marked in Hebrew, show no trace in the Code. They were earlier in Babylonia. The Code was much more favourable to widows ~ than early Israelite custom ; but the later law (in Israel) is more considerate. In Babylonia daughters had rights of inheritance, which appear only late in Israel. The position of the slave is quite dis- tinct. The laws as to hired animals show no re- semblance. The penalty for allowing a vicious ox to gore a man was death in the Hebrew Code, but a fine in Babylonia (§§ 251, 252 ; Ex 2178-),
10. Of course, whole groups of laws in the Code concern matters which were purely Babylonian. The position of the feudal tenants, levy-masters, ete., and the regulations relating to shipping, caravans, the laws for the builders, doctors, sur- geons, branders, artisans, etc., cannot be expected to reappear even in a copied legislation. .
The names of the articles in use are often alike in Hebrew and Babylonian, but the technical terms differ. ‘This would be very important, as
610 CODE OF HAMMURABI
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showing an independent growth of similar institu- tions, but for one consideration. There is no ground to suppose that on either side the terms compared were the only terms in use. Thus, while the Babylonian verb ‘to marry’ is ahdzu, and the Hebrew lakah, the Assyrian is likd. The Hebrew *éras, ‘to betroth,’ has a parallel in Babylonian érvsu, ‘bridegroom.’ The itinerant trader, samallu, was explained by Sa nds masak Sa abni, ‘he who carries the bag (kisw) of weights’; compare the Hebrew kis and ’dbanim. In the directions as to the inquiry into the conduct of the alleged idola- ters (Dt 134and 174) the same verb is used, kin, as in the Code, for establishing an accusation, wktin ; the kussi daianuti of § 5 is the kissé din of Pr 208; the phrase ‘to cause the finger to be pointed at’ as a technical term for ‘slander’ is paralleled by Is 58° ‘the putting forth of the finger.’ The list of linguistic parallels could, doubtless, be much ex- tended. There was, however, no reason why a Hebrew legislator, even if a copy of the Code lay before him in cuneiform, should transliterate its words. He might equally well translate them into his own language.
11. Of much more importance, as a proof of dependence, would be the preservation of the order of ideas, especially where this is not due merely to their logical sequence. Of such a transfer of arrangement we can hardly expect to find much trace. Whatever trace can be found is therefore all the more significant. A comparison of the order of the Book of the Covenant (vol. iii. p. 67) shows as much difference as likeness in the order. Yet who can say that the present order does not exhibit rearrangement and interpolation? For example, in ii. (/.c. p. 67°), why are § 7 and § 9 separated by § 8?