Much of any society’s view of law and justice is strongly influenced by their mainstream religious worldview. Regardless of how secular the style of a law code is, the concepts and philosophies behind any particular law code have strong roots in a culture’s religious worldview. The religious worldview of ancient Hebrews is clearly demonstrated in the Covenant Code found in Exodus, and was a major departure from the common law codes active at the time, an influence that persists in modern day laws.
One of the most historically influential concepts found in the Hebrew Covenant Code (generally defined as Exodus 20:22-23:19) is the concept that the law applies (or should apply) equally to all regardless of social status. Despite the fact that the Code recognizes differences between slaves and free persons[1], this concept was groundbreaking at the time of Exodus, and is a fundamental part of modern day law and justice in America and other countries. Before the Covenant Code, most of the common law codes active at the time made distinctions based on the rank of the victim and/or accused. For example, in the Code of Hammurabi[2], a widely influential law code at the time, most criminal penalties were determined by the victim’s social rank.[3] In Hammurabi’s codes #211-214, causing a miscarriage required compensation of ten shekels if the pregnant woman was a seignior (high rank), five shekels for a commoner, and two shekels if the victim was a slave.[4] In the Covenant Code, as in modern-day laws, the penalty is generally the same regardless of the rank of the victim, although both provide for some discretion regarding the severity of the penalty based upon the severity of damage caused to the mother. Exodus 21:22 provides for varying penalties in causing a miscarriage based upon how much damage was done. If only a miscarriage ensues (from a fight, for example), then a fine is to be paid. Should further damage occur to the mother of the miscarried baby, the husband may exact a penalty reasonably equivalent to the damage caused, such as “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn…”[5]. In modern-day American courts, Judges can adjust the penalty based on “victim impact statements” and other factors, which is more similar to “ancient Near Eastern and Arabic laws” than to Exodus’s code[6]. The concept that the penalty should fit the crime – not the criminal – is distinctly a Covenant Code innovation, one with influence still today.
Another unique innovation of the Hebrew Covenant Code is the idea that the intent and causation behind a criminal act can strongly influence whether or not a specific act is even considered criminal. One’s thoughts – not just solely actions – now played a role in law in a way it never had before. For example, both the Code and modern day laws recognize killing a person as criminal, yet both recognize that there are differences in intent and causation of a death. “You shall not murder”[7] sounds very clear-cut, yet Exodus 21:13 recognizes the concept of negligent homicide: that sometimes the cause of a death is unintentional and accidental, and that unintentional deaths are not necessarily criminal (Berlin 153, Collins). In fact, the “Hebrew bible makes a distinction between murdering and killing” and “notes that murder is always a heinous sin, while killing is sometimes necessary” (Wikipedia). Both the Covenant Code and modern day laws provide for minimal to no penalty at all in the case of self-defense (Berlin, Lexis, Collins). Colorado Statutes[8] 18-1-704 states “a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person” (Lexis). Self-defense is a recognizable defense against criminal charges of murder, one recognized as a non-criminal act in both the Covenant Code and modern-day laws. Exodus 21:14, like modern day laws, however, consider premeditation as a far more serious criminal act (Berlin 153, Lexis). Exodus 21:14 provides that a person who premeditates and conspires to kill someone, they shall be “put to death” – and Colorado Statutes provide the death penalty for those that premeditate murder (Berlin 153, Lexis). One difference, however, is in Hammurabi’s code the victim (or victim’s family) could accept “redemption” (a payment) in lieu of the death penalty (Berlin 153). Exodus does not “permit compensation of the victim’s family for economic loss instead of capital punishment,”[9] nor does modern-day law . The concept that the intention behind a death be considered when determining whether a crime has been committed clearly originates in Hebrew law.
Not all of the Covenant Code was a departure from the then-norm; in fact, some concepts found in Hammurabi’s Code are clearly foundational to the Covenant Code, and have remained virtually intact through to modern times. Exodus 22:1 is strikingly similar to modern so-called “Make My Day” laws. It states that “if the thief is seized while tunneling (breaking into a house), and he is beaten to death, there is no bloodguilt” (on the part of the homeowner’s part for killing a person breaking into his house) (Berlin 153). Hammurabi 22 states “(I)f any one is committing a robbery and is caught, then he shall be put to death” (ANET). Colorado statutes 18-4-704 allow for the use of physical force in defending one’s home from a criminal, although they specify that “(D)eadly physical force may be used only if a person reasonably believes…(the criminal is) about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary” (Lexis). While Exodus 22:1 and Hammurabi 22 both permit the use of deadly force against any burglar, Colorado and other state statutes permit the use of deadly force only if the burglar appears to intend to use physical force. While the concept of using deadly force to protect one’s home is ancient beyond even Exodus, modern day laws allow for meeting physical force with reasonably equivalent physical force is distinctly different.[10]
Exodus 22:5 recognizes that starting a fire is legal, but failing to keep the fire under control is criminal. “When a fire is started and spreads… he who started the fire must make restitution” (Berlin). This is eerily precognitive of the Hayman fire in Colorado two years ago, when a woman started a “small” fire to burn letters, but failed to keep the fire under control resulting in millions of dollars worth of damage to homes, businesses, and the forest cover. Both Colorado and Federal laws were used to convict the perpetrator, and she not only is required to repay the victims for the damage she caused, but also must serve twelve years in prison. The concept that one’s actions or lack of action resulting in damage to another’s property or person (modern day negligence laws) can be considered criminal is clearly a result of Hebrew law influence.
There are significant other similarities between the Covenant Code and modern-day laws, all of which show drastic conceptual departure from the common laws of the ancient Near East.. Exodus 21:28, which deals with an ox goring a person and causing damage, is very similar to modern-day dangerous animal laws (Berlin 154-155). If an owner knows their animal is dangerous and/or vicious by the animal’s prior actions, he is liable and can be charged with a crime, but if he didn’t know the animal is vicious, it is not a criminal act (although may be required to pay for damages) (Lexis). This is similar to the “one free bite” dog laws common throughout the United States – the idea that an owner’s liability is minimal the first time a dog bites a person, but significantly higher should the dog bite again (Lexis).
Modern day negligence laws providing for the failure to take reasonable actions to create a safe environment, especially in construction areas, are remarkably similar to Exodus 21:33, when one “opens a pit, or digs a pit and does not cover it…the one responsible for the pit must make restitution” (Lexis, Berlin 155), which is remarkably similar to Hammurabi 229’s “ If a builder build a house for some one, and does not construct it properly, and the house which he built fall in and kill its owner, then that builder shall be put to death. What differs between the three is that Hammurabi provided the death penalty for simply not constructing a home properly (apparently even if it did not cause physical damage to the occupants), while Exodus simply provides for restitution in the case of construction negligence. This is a fairer and more balanced approach to negligence, one that takes into consideration the idea that despite the (possible) outcome of death of the victim, the idea behind the crime may or may not have been death: it may have simply been ignorance, mistake, or accident, so therefore it is not murder. The fact that the intent and thoughts behind the crime are considered was a major departure from the then-norm, again, a concept that is still in place today.
Modern day perjury laws have obvious roots in Exodus 23:1-3 “…you shall not join hands with the guilty to act as a malicious witness” and 23:7 “(K)eep far from a false charge; do not bring death on those who are innocent” (Berlin 158). Clearly, many of today’s laws have their roots in Hebrew law as presented in Exodus’s Covenant Code.
Law defines a society. When a group of people develop and agree to a set of rules/laws to live by, they are also defining themselves as a society separate from other societies. This is not just a political or geographical declaration; it is also a cultural declaration strongly influence by the society’s religious worldview. When Moses brought to his people the laws received from Yahweh, he also brought them a formal declaration and definition of who they are (Collins). In 1787, when the Philadelphia Convention finished drafting the U.S. Constitution, they presented the rest of the United States with a formal declaration and definition of who we, as a country, are to be (Wikipedia). While we may believe that much of our legal code has a Christian heritage, clearly, our legal heritage has distinctly strong roots in Hebrew laws, a heritage far more influenced by our religious worldview than the secular-style wording of our laws indicates.
Works Cited
Berlin, Adele and Marc Zvi Brettler, eds. The Jewish Study Bible. New York: Oxford University Press, 2004. pp 152-158.
Collins, John J. Introduction to the Hebrew Bible. Minnesota: Fortress Press, 2004. pp. 126-134.
Lexis-Nexis.com. Colorado State Statutes. 19 November 2005. http://198.187.128.12/colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0
Fretheim, Terence E. Exodus: Interpretation A Bible Commentary for Teaching and Preaching. Louisville: John Knox Press, 1991. pp.239-254.
Isser, Stanley. “Two Traditions: The Law of Exodus 21:22-23 Revisted.” Catholic Biblical Quarterly: Jan 1990, Vol. 52, Issue 1. EbscoHost Research Database. http://search.epnet.com/login.aspx?direct=true&db=aph&an=9604083677
Wikipedia.org. United States Constitution. 23 November 2005. http://en.wikipedia.org/wiki/Us_constitution
Written for Professor Clark's Philosophical Approaches to the Hebrew Bible at the University of Colorado, Colorado Spring, 30th November 2005, adapted from a previously written paper (see Hebrew Influence on Modern Laws 28th November paper).
[1] While recognizing the difference between free persons and slaves, a crime was a crime regardless of free or slave status. The difference in Exodus was who was considered the victim. Murdering a slave was considered murder just as murdering a free person, however, the victim was the owner of the slave, not necessarily the slave, and the penalty for such murder was the same (death), while in Hammurabi the penalty was determined by the status of the victim (slave, free, commoner, high-class).
[2] While I did research and consider using other law codes of the time, for the sake of brevity and consistency I am using only Hammurabi’s Code for examples of ancient laws, as it was so strongly influential on many other law codes of the time.
[3] Isser, Stanley. “Two Traditions: The Law of Exodus 21:22-23 Revisted.” Catholic Biblical Quarterly: Jan 1990, Vol. 52, Issue 1. EbscoHost Research Database. http://search.epnet.com/login.aspx?direct=true&db=aph&an=9604083677
[4] Isser
[5] Exodus 21:23-25. Berlin 154.
[6] Berlin, Adele and Marc Zvi Brettler, eds. The Jewish Study Bible. New York: Oxford University Press, 2004. pp 152-158.
[7] Ex 20:13, Berlin 150
[8] Examples of modern-day criminal acts are generally universally accepted as criminal throughout the United States, however, I will be quoting exclusively from Colorado State Statutes for expediency’s sake.
[9] Berlin 153 (side notes).
[10] You can’t respond to a slap across the face with a gunshot to the face.
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