LAW, HEBREW, CIVIL AND CRIMINAL.
I. Origins and Development. Development from Lex
Semitic Background (§ 1). Talionis (§ 1).
Effects of Settlement in Capital Offenses (§ 2).
Canaan (§ 2). IV. Rights of Persons.
The Hebrew Codes (§ 3). V. Rights of Property.
II. Administration of the Real Estate (§ 1).
Law. Debt (§ 2).
The Judges (§ 1). Injury to Property
The Procedure (§ 2). (§ 3).
III. Criminal Law. VI. Inheritance.
I. Origins and Development: According to the ancients, law and justice came from God. The Babylonian King Hammurabi received his mandates from the hand of the sun-god Shamash, while Yahweh gave the tables of the law to Moses on Sinai. Throughout their history Yahweh was the source of law for the Israelites, his precepts (toroth) being communicated to them by his
1. Sem- servants, the priests. Matters of little itic Back- importance were not referred to him,
ground, but where the wisdom of man was insufficient, or where no fixed law had yet been established, the decision of the divinity was sought through the priests. This ruling was then regarded as a norm in similar cases' and thus became law, deriving its authority from the fact that it was the will of God. This sanction gained additional force in Israel, since there Yahweh was
Law, Hebrew
THE NEW SCHAFF-HERZOG
regarded as a God who watched over righteousness and justice and hated iniquity. When the Israelites first emerged into the light of history, they possessed neither a firm political organization nor law. Instead of written law tribal custom prevailed, and in place of an executive magistracy stood the tribal deity, whose will was represented by the customs of the tribe. It might, then, be supposed that each tribe would create its own custom, without regard to its neighbors, but it must not be forgotten that since the dawn of history Arabia and the Syro-Arabian desert had been under the influence of Babylonian civilization, and that in Babylonia as early as 2200 B.C. law had reached a height in the Code of Hammurabi (q.v.) which was not equaled even in the Hebrew Book of the Covenant in the late regal period. Contact with ancient Arabian culture, which attained a noteworthy eminence among the Minaeans in the second half of the second millennium B.C., is confirmed by the Israelitic narrative itself when it states that Moses modeled his code according to the counsel of the Midianite Jethro.
The settlement in the West Jordan country was a momentous epoch in the development of law. In its content law must have been widely extended, since new conditions brought new legal problems; but the independent development of Israelitic law had not yet begun. Since the discovery of the Code of Hammurabi, it may be regarded as certain that the Canaanites among whom the 2. Effects Hebrews had come and whose culture of Settle- they adopted had a highly systemment in atized code. This Canaanite system Canaan, was deeply influenced by Babylonia, and this explains why Israelitic law, even after being taken from the Canaanites and worked over in the Book of the Covenant, shows so close an affinity with the Code of Hammurabi. This agreement is seldom verbal, but the spirit and the basal concepts, except in religion, are essentially the same, although the Babylonian code deals with a far more highly developed and more coherent political organization. The entire system of legal procedure was transformed by the new home of the Israelites. Nomadic Bedouins have no judges clothed with executive authority, but fixed abodes change clans and families to local communities and territorial unions. The heads of the communities, or elders, become the magistracy, and behind their enactment stands the power of the community. Thus a form of public law was evolved, and the community assumed control of the protection of individual rights.
The rise of the Israelitic kingdom resulted in a definite system of law and in legal uniformity, in so far as this had not already been achieved. The date of the codification of the unwritten law is unknown. It may have taken place at an early date at the sanctuaries, but the most prim- 3. The itive document known is the so-called Hebrew Book of the Covenant (Ex. xx. 24- Codes. xxiii. 19). The Book of the Covenant does not pronounce great principles of law or abstract legal doctrines to be applied in individual cases at the discretion of the judge, but it is
a collection of special instances and is restricted to the problems of daily life. It deals with the status of slaves, with injuries to life or limb, and with injuries to property, whether daughter or slave cattle or fruit. There is as yet no commercial lawwhile the Code of Hammurabi is highly developed in this respect. The Book of the Covenant was evidently a compilation of existing customary law and it is nowhere stated that it ever received sanction as official, nor is it known who compiled the collection or who caused it to be made. It wa.= possibly not official, but may have been drawn up by private persons, or, in other words, by the priests. Far different is Deuteronomy, which was officially proclaimed as the law of the State in the eighteenth year of Josiah (621 B.C.). Though similar to the Book of the Covenant in form and content, it marks an important step in advance in that it seeks to bring all civil and religious law within the scope of the point of view of the theocracy. The characteristic of this code is its humanitarianism in providing for the poor, for servants, for widows, and for orphans. The Priestly Code was introduced as the law of the State after the exile (Neh. viii.-x.). Taken as a whole, it contains only religious law, although it also considers individual questions of civil life in so far as they concern the hierocracy of the priestly code. In it is incorporated the independent " Law of Holiness " (Lev. xvii.-xxvi.), which proceeds from the point of view of the sanctity of the people. The written law, as extant, concerns only a small portion of civil life; unfortunately no other codification of customary law has been preserved. The Torah became the infallible basis for all further development of the law, its deficiencies being supplied by casuistic interpretation or by a codification of the law of custom. The law thus deduced was termed Halakhah, and with its recognition the scholars of the law became the actual legislators. The results of their activity are summed up in the Mishnah (see Talmud), which is based on an earlier work dating from the time of Rabbi Akiba ben Joseph, who flourished between 110 and 135 a. d., under whose direction the Halakhah, which had been transmitted orally, seems to have been codified.
II. Administration of the Law: Legal jurisdiction was originally lodged in the family (Gen. xxviii. 24; Deut. xii. 18 sqq.), or in the " elders," or heads of the clans and tribes (Ex. xviii. 13 sqq.;
Num. xi. 16 sqq.; Deut. i. 13 sqq.). Par- 1. The allel with this was the decision of the Judges, priest as the servant of God, whilf
Moses, according to the narrative, laid the most difficult problems before God (Ex. xviii. 1.3, 19) . The judicial power of the elders was only moral; they possessed no executive authority and with the settlement in Palestine were superseded by the heads of the local communities, who acquired executive power, since a permanent community naturally had an interest in the maintenance of the law. This court of elders retained its judicial authority in the regal period (II Sam. xiv. 4 sqq.; I Kings xxi. 8 sqq.), while Deuteronomy recognizes them as an organized body with full judicial powers (Deut. xix. 12, xxi. 2 sqq., xxii. 15, etc.), and as