After the introduction (covered in my previous post) Russell Gmirkin divides chapter three of Plato and the Creation of the Hebrew Bible, “Biblical, Ancient Near Eastern and Greek Laws” into thematic sections:
- laws relating to homicide,
- laws relating to assault,
- to theft,
- to marriage and inheritance,
- to sexual offences,
- to slavery,
- to social legislation (concerning resident foreigners, widows, orphans, the poor, disabled persons, etc.),
- to livestock,
- to property crimes and agricultural law,
- to commerce,
- to military law,
- to treason,
- to “religious” or laws concerning the sacred,
- and finally general ethical laws.
Each section documents details the three sources of laws — biblical, ANE and Greek — and concludes with a comparative discussion.
Near Eastern law codes included Hittite laws, the law codes of Eshnunna (LE), Hammurabi (LH), Ur-Nammu, Neo-Babylonian and Middle Assyrian laws and palace decrees and the Telepinu Edict. Points of Greek law are drawn from the writings of Plato, Aristotle, Lysias, Demosthenes, Xenophon, among others including Aeschylus and Andocides.
The chapter extends to 109 pages and includes 369 endnotes and a bibliography of over 140 titles.
This post looks at one of the above sections and Russell Gmirkin’s observations on the extent of the biblical laws’ similarity or otherwise to counterparts in the Near Eastern and Greek worlds.
All three geographical regions unsurprisingly stress the importance of lex talionis, of vengeance and deterrence as intended purposes of their legislation with respect to murder or even accidental killing.
But there are a number of significant points Greek and biblical law share that are nowhere found among our surviving evidence for laws in Mesopotamian and Asia Minor civilizations. These Greek-biblical similarities include
- the recognition of different psychological states in determining appropriate punishments
- the idea of blood pollution in the land
- the responsibility of the relatives of the victim to initiate prosecution of the murderer
- the possibility of at least temporary sanctuary in a temple
- and the option of exile
- stoning by the community
- the killing of an animal responsible for killing a person
- killing a burglar entering a house at night was justifiable homicide (ANE law required the execution of such a burglar but it is not stated that a house-owner himself could justifiably kill the burglar in the act)
“State of mind”
On the first point, the recognition of “state of mind” factors in determining penalties, Gmirkin writes:
Plato’s Laws contained an innovation on the Athenian laws for intentional homicide by distinguishing premeditated and unpremeditated homicide. Plato held that those murders committed with cold premeditation received a greater punishment in the form of a longer term of exile than those commit ted on impulse with no forethought, despite an equal degree of malice (Plato, Laws 9.866d-869e; cf. Chase 1933: 168-9,171-2; Loomis 1972: 93—4; MacDowell 1978: 115; Gagarin 1981: 35).
Here is part of Plato’s explanation:
For murder is committed in passion by those who, on a sudden and without intent to kill, destroy a man by blows or some such means in an immediate attack, when the deed is at once followed by repentance; and it is also a case of murder done in passion whenever men who are insulted by shameful words or actions seek for vengeance, and end by killing a man with deliberate intent to kill, and feel no repentance for the deed. We must lay it down, as it seems, that these murders are of two kinds, both as a rule done in passion, and most properly described as lying midway between the voluntary and the involuntary. None the less, each of these kinds tends to resemble one or other of these contraries; for the man who retains his passion and takes vengeance, not suddenly on the spur of the moment, but after lapse of time, and with deliberate intent, resembles the voluntary murderer; whereas the man who does not nurse his rage, but gives way to it at once on the spur of the moment and without deliberate intent, has a likeness to the involuntary murderer; yet neither is he wholly involuntary, but bears a resemblance thereto. Thus murders done in passion are difficult to define,—whether one should treat them in law as voluntary or involuntary. The best and truest way is to class them both as resemblances, and to distinguish them by the mark of deliberate intent or lack of intent, and to impose more severe penalties on those who slay with intent and in anger, and milder penalties on those who do so without intent and on a sudden. For that which resembles a greater evil must be more heavily punished, that which resembles a lesser evil more lightly. So our laws also must do likewise. . . . .
If a man with his own hand slay a free man, and the deed be done in rage without deliberate intent, he shall suffer such other penalties as it is proper for the man to suffer who has slain without passion, and he shall be compelled to go into exile for two years, thereby chastising his own passion.
Compare Exodus 21:13
12 “He who strikes a man so that he dies shall surely be put to death. 13 However, if he did not lie in wait [i.e. there was no premeditation], but God delivered him into his hand [i.e. indicating this was an instance of intentional homicide], then I will appoint for you a place where he may flee.
The explanatory phrases I have added are from Gmirkin’s endnotes.
We also have in this example a reference to exile as a form of penalty, something unknown in our records of ANE laws.
Pollution of the land
Another striking feature in common between Greek and biblical law (and not found in Mesopotamian/Hittite laws) is the need for laws designed to cleanse the land of “blood pollution”.
So you shall not pollute the land where you are; for blood defiles the land, and no atonement can be made for the land, for the blood that is shed on it, except by the blood of him who shed it. Therefore do not defile the land which you inhabit, in the midst of which I dwell; for I the Lord dwell among the children of Israel.
Compare Plato, Laws 9.873e
it has been clearly stated, as derived from ancient priests, to the effect that Justice, the avenger of kindred blood, acting as overseer, . . . has ordained that the doer of such a deed must of necessity suffer the same as he has done . . . for of the pollution of common blood there is no other purification, nor does the stain of pollution admit of being washed off.
If the murderer was unknown the land still needed to be purified from the pollution of slain blood. In Deuteronomy 21:1-9 we read that the city nearest the victim was to take responsibility for removing the stain of innocent blood. Plato wrote of the same necessity for the nearest village to take responsibility.
Duty of relatives
The near relatives of the victim were expected to prosecute the case against the murderer, and to execute the murderer — usually through a hired “avenger of blood”, Gmirkin notes. For example, Numbers 35:19, 21
The avenger of blood himself shall put the murderer to death; when he meets him, he shall put him to death. . . . . The avenger of blood shall put the murderer to death when he meets him.
We meet the same permission in the Greek literature, including (again) Plato’s Laws, but there is no parallel in ANE laws.
In both biblical and Greek laws one who had killed another could seek sanctuary in a temple or at a sacred altar pending a hearing by judges to determine the extent of his responsibility and whether he should go into exile or be executed by the relatives of the victim. Despite the many Temple cities throughout the Near East we have no record that they ever served a similar protective function.
We know the Bible enjoins stoning for certain crimes. This stoning was carried out by the community.
Ex. 21.28-29, 32 (the goring ox and almost certainly its owner); Lev. 20.2, 27 (idolaters and wizards); 24.14, 16, 23 (blasphemers); Num. 15.35-36 (sabbath violator); Deut. 13.9-10 (apostates); 17.5-7 (apostates); 21.21 (rebellious son); 22.21, 24 (non virgin daughters, adulterers and adulteresses); Josh. 7.25 (Achan). Gen. 38.24 exceptionally contemplated the execution of Tamar as an adulteress by burning; at Josh. 7.25, Achan and his family were first stoned and then burned. (p. 150)
Mob anger likewise typically involved stoning: Ex. 8.26; 17.4; Num. 14.10; Deut. 13.9-10; 17.5; 21.21; 22.21, 24; Josh. 7.25. Compare our evidence for Greece:
Stoning typically took place when a crowd became outraged at an act of treason, sacrilege or extreme immorality. The most historically secure incident of stoning was the famous execution of the traitor Lycides and his family in 479 BCE as described at Herodotus, Histories 9.5; Lycurgus, Against Leokrates 1.122; Demosthenes, On the Crown 104. (p. 151)
Plato in Laws 873.b proposes:
. . . and if any man be convicted of such a murder, and of having slain any of the persons named, the officers of the judges and magistrates shall kill him and cast him out naked at an appointed cross-roads outside the city; and all the magistrates, acting on behalf of the whole State, shall take each a stone and cast it on the head of the corpse, and thus make atonement for the whole State . . .
The goring ox
On Ancient Near Eastern law concerning death by a domestic animal, Gmirkin observes:
Deaths that resulted from a dangerous animal that was not properly controlled, such as a goring ox (LH 250-1; LE 54-5) or a vicious dog (LE 56-7), were treated as instances of negligent homicide. Penalties could include either death (LH 229-30), the payment of a slave (LH 219, 231) or of silver (LE 54-7). The animals were not punished (Katz 1993: 163-9). A common element of the crime necessary for prosecution was that the culpable party had received warnings from neighbors or the authorities about the dangerous structure or animal (LH 228-30; LE 54-8; cf. Barmash 2005: 139-40). . . . (p. 80, my bolding)
We know Exodus 21:28-32.
If an ox gores a man or a woman to death, then the ox shall surely be stoned, and its flesh shall not be eaten; but the owner of the ox shall be acquitted. But if the ox tended to thrust with its horn in times past, and it has been made known to his owner, and he has not kept it confined, so that it has killed a man or a woman, the ox shall be stoned and its owner also shall be put to death. If there is imposed on him a sum of money, then he shall pay to redeem his life, whatever is imposed on him. Whether it has gored a son or gored a daughter, according to this judgment it shall be done to him. If the ox gores a male or female servant, he shall give to their master thirty shekels of silver, and the ox shall be stoned.
Like the laws of Hammurabi and Eshnunna the Pentateuch required a compensatory penalty on the owner of the animal when that owner had been given warning about the danger his animal posed. The similarity is uncontroversial, Gmirkin comments.
But unlike those laws Exodus did penalize the ox. Compare Plato’s Laws 9.873d-e
If a mule or any other animal murder anyone, — except when they do it when taking part in a public competition, — the relatives shall prosecute the slayer for murder, and so many of the land-stewards as are appointed by the relatives shall decide the case, and the convicted beast they shall kill and cast out beyond the borders of the country.
Such are some of the more prominent contacts between biblical and Greek laws that are absent from Mesopotamian law.
For the series archive go to: Gmirkin: Plato and Creation of Hebrew Bible
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