CODE OF HAMMURABI
was the Code of Hammurabi, and thus the enact- ments of the old Babylonian king, formulated about B.C. 2250, passed more than a thousand years later into the Book of the Covenant, and so became the heritage of Israel and the world’ (Professor C. Johnston, Johns Hopkins University Circular, June 1903).
_ Mr. Cook minimizes the extent to which Pales- tine was permeated by the other elements of Baby- lonian culture. The discovery of cuneiform tablets at Taanach by Professor Sellin may now be added to the evidence of the Tel el-Amarna letters. Documentary evidence may any day be found of the existence in Palestine of all sorts of Baby- lonian literature. That will not of itself prove that the Hebrew legislators read the Code in cunei- form. What is needed is proof from the Hebrew monuments of such similarities as can be explained only by a knowledge of the Code as we now know it. There is small likelihood of such a proof being found. For no one can suppose that any one of the documents into which the Hebrew law is resolved on critical grounds was put forward at any period as a complete code. We have fragments of several codes at different dates, but not one that can really be trusted for a comparison. Such fragments as are left are very valuable as showing what was at one time considered to be law in Israel, but after the composition they have under- gone it is impossible to say whether they really are ancient or not. The words ‘primitive’ and ‘ancient’ are not synonymous in the history of law. Nor is it quite clear that ‘savage’ penalties are always more primitive. The Hebrew law treats unfilial conduct more severely than Ham- murabi does. This is not a proof of age, nor of primitive ideas, for the normal Arabs show little trace of parental authority. The intrusion of
riestly power into the law courts, while definitely Rated as late, is a recrudescence under changed conditions of a state of things from which Hammu- rabi shows an emancipation nearly complete. If any signs of a Babylonian influence can be made out anywhere now, the presumption is that it was once enormously powerful. For the whole history of Israel appears to consist in reformation, a readjusting of old material in faith and practice to new conditions. The old Babylonian stuff must have taken a most powerful root to survive at all. Professor D. H. Miiller has done great service in pointing out the significance of any traces of similarity of order which can be found. Professor Kohler insists on the presence or absence of the theocratic idea as a test of primitive stages. The Indian law is purely theocratic, making no distinction between right and morality. The Israelite laws vary ; some are theocratic, and the prohibitive commands ancient in type. Hammu- rabi’s Code is very modern, almost purely legal. This puts it on a level with the Gortyn Laws and the XII Tables, while it is even more advanced than they are. In Israel the religious idea received its highest development in pre-Christian times, and that dominated law, morals, and history alike. In Babylonia law reached its highest development, and largely in independence of re- ligion. The common life was Semitic, the like- nesses are due to racial affinity. The social order was widely different. There can be no question of actual borrowing, at any rate until post-exilic times.
This view leaves out of consideration the evident fact that the Code of Hammurabi does not reflect the result of any continuous evolution of law in a homogeneous and progressive people, but an adaptation of widely distinct systems. An aristo- cracy which clung to primitive ideas, presumably a recent infusion of a wilder Semitic race, amalga-
CODE OF HAMMURABI 611
mated with a long settled, even if mixed and already partly Semitic, people. Some of its laws may be a recrudescence of primitive views alread
long modified among the Babylonians. The ad- vent of the First Dynasty of Babylon had a close parallel in the settlement of Israel in Palestine. May not the settled population there have been in much the same stage of civilization as the native Babylonians, with local variations? May not the more primitive stamp of the Israelite laws as we have them be due to the greater predomi- nance of the newcomers? Then the common features would be of two separate origins: one, the civilization that had once been common to Babylonia and Palestine, juristically the more advanced ; the other, a system common to the two Semitic peoples, who in Babylonia conquered the land, founded the First Dynasty, formed the new aristocracy, or in Palestine conquered the land and are known to usas Israel. This would furnish the politically dominant, characteristically Semitic, primitive features. Which of the two systems should impose itself on the other, depended in either land on the relative power of the invaders and the invaded. This would be largely condi- tioned by the suitability of the competing races to the conditions of the country. In Babylonia the larger settled population, the necessary conditions of life, made the invaders rather become absorbed in the people they politically ruled. In Palestine the conditions worked in the opposite direction. Whether by greater preponderance of numbers, or less modifying power in their new environment, the invaders to a greater extent imposed them- selves on the previous inhabitants. We need not speak of borrowing as an act on the part of the Israelite legislators. What they preserved of existing law was already centuries before influ- enced by Babylonia. What they imposed as their national contribution was common property with the legislators who imposed part of it on Baby- lonian law. That these did not make Babylonian law as primitive as the Book of the Covenant, was due to their more complete absorption by the settled civilization. Hammurabi’s bode crystal- lized the law at a later stage of the process than did the Book of the Covenant. The process was more rapid there. Hence also the greater stability of his work. It lasted practically unchanged some fifteen hundred years. The subsequent develop- ments in Israel show perpetual progress. The progress was on totally different lines, till Israel came once more in contact with Babylonian cul- ture. Then it had made contributions of its own, some of which it modified, some it emphasized as a result of the contrast.