YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #8a: TORAH AND ANCIENT NEAR-EASTERN LAW
Part 1

I. MeANING OF THE SIMILARITY, SIGNIFICANCE OF THE DIFFERENCE

Many nineteenth century scholars began to take note of the similarity between the laws of the Torah and the various legal codes that governed the ancient Near East. The similarity was considered so striking that many adduced it as proof that the Torah is but the work of human hands, written against the backdrop of contemporary compilations of laws. The initial reaction of traditional believing Jews was, therefore, vigorous rejection of this entire avenue of scholarship. But the arguments of these scholars remain in force, and we must confront them.

In the twentieth century, traditional Judaism developed an approach that was willing to accept the proposed similarity. How is this possible? How can we possibly find a resemblance between the eternal laws of God and the transient laws of man? [1]

Let us examine what Rav Kook had to say on this subject:

And, similarly, when Assyriology entered the world, it raised doubts in people's hearts through the similarities that it found, according to its baseless conjectures, between our holy Torah and what is found in the cuneiform inscriptions, with respect to doctrines, morals, and practices. Do these doubts have even the slightest rational basis? Is it not well known that among the ancients there were those who recognized God, prophets and spiritual giants, such as Metushelach, Chanokh, Shem and Ever, and the like? Is it possible that they had no effect on the members of their generations? Even though their achievements do not compare with those of Avraham Avinu, how could their influence have left no impression whatsoever upon their generations? Surely [their teachings] must have resembled those that are found in the Torah!
As for the similarity regarding practices, surely already in the days of Rambam, and before him in the words of Chazal, it was well-known that prophesy operates upon man's nature. For man's natural inclinations must be raised through Divine guidance, for the mitzvot were only given for the purpose of refining men through them. Therefore, anything that through the training that preceded the giving of the Torah found a place in the nation and the world, as long as it had a moral foundation, and it was possible to elevate it to an eternal moral height, was retained in God's Torah.
And in the clearest outlook it is the foundation for the good cultural consciousness that is found in the depths of human nature, such that "This is the book of the generations of man" embraces the entire Torah. It is a principle even greater than the principle of "And you shall love your neighbor as yourself," as stated by Rabbi Akiva. 
It is fitting that these and similar ideas should enter the hearts of all those who immediately understand things.  Then there would be no room whatsoever for fraudulent heresy to spread in the world and grow strong through such events. (Rabbi Avraham Yitzchak Kook, Eder ha-Yakar, p. 42)

Rav Kook argues that our religious beliefs have not been undermined by the discoveries of Assyriology. It is possible to reconcile the similarity between the Torah and ancient Near Eastern law with our belief in a divinely revealed Torah. He proposes two explanations for this similarity.

A. Firmly believing in the natural goodness of man's heart, Rav Kook concludes that it is certainly possible that the ancient codes embrace righteousness and justice. If we believe in the "good cultural consciousness that is found in the depths of human nature," there is reason to assume that human laws, even those that are not based on the Torah, will contain elements of truth, justice, and righteousness. Moreover, various spiritual giants lived among those ancient nations, and it is reasonable to think that they left their mark on their respective generations.

B. As for the practical details – that is, particular laws – it is reasonable to assume that the Torah wished to retain the laws of the ancient nations, as long as they did not involve injustice or heresy. When those laws had a moral foundation, the Torah did not want to deviate from them in any significant manner, in order that the Jewish people more readily accept them. Rav Kook bases his position on that of Rambam. We shall cite here two famous passages from Rambam, which were written in this vein:

It is well known that Avraham Avinu, peace be on him, was brought up in the religious community of the Sabians … The meaning of many of the laws became clear to me and their causes became known to me through my study of the doctrines, opinions, practices, and cult of the Sabians, as you will hear when I explain the reasons for the commandments that are considered to be without cause. (Guide, III, 29)

Rambam applies this approach most strikingly in his explanation of the reasons for the sacrifices. According to Rambam, in order to ensure that the Jewish people would accept the Torah and act in accordance with its laws, God refrained from dramatically deviating from the accepted customs of the period. He, therefore, commanded the people of Israel to worship Him through sacrifices: 

For a sudden transition from one opposite to another is impossible. And therefore man, according to his nature, is not capable of abandoning suddenly all to which he was accustomed. … And as at that time the way of life generally accepted and customary in the whole world and the universal service upon which we were brought up consisted in offering various species of living beings in the temples in which images were set up, in worshipping the latter, and in burning incense before them … His wisdom, may He be exalted, and His gracious ruse, which is manifest in regard to all His creatures, did not require that He give us a Law prescribing the rejection, abandonment, and abolition of all these kinds of worship. For one could not then conceive the acceptance of [such a Law], considering the nature of man, which always likes that to which it is accustomed. (Moreh Nevukhim, III, 32)

Rav Kook accounts for the similarity between the laws of the Torah and those found in the ancient Near Eastern codes, by pointing to the truth and justice embodied in those codes, as well as to the social-educational factor that would not allow for any significant deviation from them.

In recent generations, rabbinic authorities as well as academicians have argued that along with the recognition of the similarity between the Torah and ancient Near Eastern law, note should be taken of the differences between them. It is precisely the similarity between the two that often highlights the points at which the Torah deviates from its ancient parallels. Reflecting upon these points can be highly instructive regarding the values underlying the laws of the Torah. This shall be the subject of the present lecture: We shall examine the similarity as well as the differences between the laws of the Torah and the codes of the ancient Near East, focusing on the values which underlie the two.

II. BETWEEN MAN AND GOD, BETWEEN MAN AND HIS FELLOW

First of all, what stands out in Parashat Mishpatim is the intermingling of the commandments pertaining to the relationship between man and God and the commandments pertaining to the relationship between man and his fellow. No similar phenomenon exists in the ancient Near Eastern codes: they all view the laws of God and the laws of man as two entirely separate spheres. This approach has significant implications regarding the content of these laws as well.

The Torah sets a fixed punishment for adultery, both for the man and for the woman:

If a girl that is a virgin be betrothed to a husband, and a man finds her in the city, and lies with her; then you shall bring them both out to the gate of that city, and you shall stone them with stones that they die; the girl, because she cried not being in the city; and the man, because he has humbled his neighbor's wife: so you shall put away evil from among you. But if a man finds a betrothed girl in the field, and the man forces her, and lies with her: then only the man that lay with her shall die: but to the girl you shall do nothing. (Devarim 22:23-26)

Compare this with what is stated in the ancient Near Eastern codes:

If a man seizes a woman in the mountain, it is the man's offense; he shall die. But if he seizes her in the house, it is the woman's offence; the woman shall die. If the man finds them and then slays them, there shall be no punishment for him. (Hittite Laws, 197)

The similarity is striking: just as the Torah contrasts the law applying in the "city" with that applying in the "field," so the Hittite laws distinguish between the law in the "house" and the law in the "mountain." The difference, however, is equally remarkable: According to the Hittite laws, the husband may pardon his wife and her lover. The same is true of the Middle Assyrian laws and the laws of Hammurabi:

If a man lies with a married woman, in the temple chamber or on the street, knowing that she is a married woman, they shall do to the adulterer as the husband commands be done to his wife. (Middle Assyrian Laws, 14)

If a man's wife be caught lying with another man, both shall be tied and thrown into the water, but the husband may pardon his wife and the king his slaves. (Code of Hammurabi, 129)

According to these ancient codes, the husband may pardon his adulterous wife. We find another difference between the laws of the Torah and those of the ancient Near Eastern peoples with respect to the death penalty. In the Torah it is explicitly stated:

You shall take no ransom for the life of a murderer, who is guilty of death; but he shall surely be put to death. (Bamidbar 35:31)

In contrast, according to the Assyrian laws, the blood avenger may choose to receive monetary compensation in place of the murderer's execution:

If a man or a woman breaks into another man's house and strike a man or a woman, the murderer shall be turned over to the closest relative, and the blood avenger may decide whether the murderer should be put to death, or whether he should be allowed to live, and his property confiscated. (Middle Assyrian Laws, 10)

In light of what is found in the Assyrian code, we better understand why the Torah saw a need to emphasize that a ransom may not be taken for the life of a murderer. These differences between the laws of the Torah and the Assyrian codes stem from the fact that the ancient Near Eastern codes assume that the adulterer and the murderer sin against the husband or the murder victim and his family, respectively. Thus, the injured party can pardon the criminal or convert his punishment into a monetary ransom. According to the Torah's outlook, on the other hand, not only does the criminal cause injury to another man, but he also violates the laws of God. It is, therefore, not in man's power to pardon him. It is also for this reason that when Yosef speaks to Potifar's wife, he argues that if he lies with her, he will have sinned against God (Bereishit 39:9), and not only against her husband. Similarly, God says to Avimelekh: "For I also withheld you from sinning against me: therefore I did not permit you to touch her" (Bereishit 20:6). Moreover, the rationale for executing a murderer is formulated as follows: "Whoever sheds man's blood by man shall his blood be shed, for in the image of God made He man" (Bereishit 9:6). Even the laws pertaining to the relationship between man and his fellow are laws pertaining to God.

(Translated by Rav David Strauss)

FOOTNOTES:

[1] This article draws from M. Sabato, "Yesodot Hagutiyim be-Farashat Mishpatim," Alon Shevut Bogrim, XI (1998); M. Zer-Kavod, "Ma Bein ha-Torah le-Vein Hukkei Hammurabi?" Sefer Zeidel – Kiryat Sefer, 1922; M. Korngreen, "Hashva'at Hukkei ha-Avdut she-be-Torat Moshe im Hukkei ha-Bavlim, ha-Ashurim, ve-ha-Chittim," Sefer Karl – Kiryat Sefer, 1990.