Nine Laws for Various Occasions and Temptations

All in the Sg. address (and the first two besides with the term brother usual in the Sg passages) and without the opening formula general in the preceding group and resumed in the following. It is difficult if not impossible to explain their appearance just here in the Code, or the order in which they are arranged. They have, however this in common that they modify some earlier laws or customs, and transform others or forbid others. Steuern.’s division of them between his Sg. and Pl. authors is unconvincing.

1. go astray] Heb. niddaḥim, usually rendered as a passive part., has here, probably, as in Micah 4:6, Zephaniah 3:19, Ezekiel 34:4; Ezekiel 34:16, a reflexive sense like the Scot. pass. part. wandered: LXX πλανώμενα ἐν τῇ ὁδῷ. Exodus 23:4 : if thou come upon thine enemy’s ox or his ass straying.

and hide thyself from them] Deuteronomy 22:4, Isaiah 58:7 (from thine own flesh), Psalm 55:1 (2); LXX, ὑπεριδεῖν. Cp. Luke 10:31 f., passed by on the other side.

1–3. Of Restoring Lost Property. No Israelite shall see a brother’s ox or sheep go astray without returning it, or caring for it till it is claimed, and so with an ass or garment or anything lost; D’s expansion of a law by E, Exodus 23:4 f., which is (remarkably) of an enemy’s property. As is evident from the parallel phrase, him that hateth thee, in E’s next law, this is not a foreign, but a private, enemy. Therefore D’s substitution of the term brother renders his law not narrower (so Marti and others), but wider, than E’s. P, Leviticus 6:1-7, gives details for the treatment of a man who has not restored lost property found by him.

Ḫammurabi has four laws, §§ 9–12, on cases in which the finder has sold the lost property of another. For the Arabs see Doughty Ar. Des. i. 345 and Musil, Ethn. Ber. 282 ff.: If a man find an animal, this must be confirmed by two witnesses, that the owner may not charge him with theft and exact fourfold compensation. Among the Ṣekhûr the animal remains with the finder till the owner appears, when it is returned; but after 3 years it belongs to the finder. Some forms of denouncing finders, who do not restore, are given.

2, 3. Wholly (except for his ass) D’s addition to the law.

3. thou mayest not] As in Deuteronomy 12:17, q.v., etc.

4. Of Assisting to Lift Fallen Beasts. D’s more comprehensive and more simply expressed edition of E’s law, Exodus 23:5, which enjoins the duty of helping him that hateth thee to release (an archaic word) his animals when foundered beneath their burdens. On fallen, see Deuteronomy 21:1.

An animal fallen under its load needs two persons to put it right: ‘an operation which can be performed for a loaded animal only by lifting up the burden on both sides at once, unless it be unloaded and loaded again, implying much loss of time, and even this often cannot be done without assistance. Jew and Christian, Muslim and Koord mutually assist each other, though inimical to one another’s faith’ (Van Lennep, Bible Lands, etc., 231).

5. Against Wearing the Clothes, etc., of the Other Sex. Peculiar to D. As what is forbidden is styled an abomination to Jehovah, the law probably refers to heathen rites, for the practice of which, including the interchange by the sexes of their clothes, weapons, etc., leading to gross impurities, there is much evidence in records of the Syrian and other ancient religions. Calvin quotes Juvenal Sat., vi. 252.

Quem praestare potest mulier galeata pudorem,

Quae fugit a sexu?

Lucian, Dea Syr. 15, 26, 51, Apul. Metamorph. viii. 24 ff., Pausanias iii. 197, Macrobius Sat. iii. 8, Eusebius Vit. Const. iii. 55, Jerome on Hosea 4:14, Augustine Civ. Dei, vii. 26. Cp. Movers, Phönizier, i. 678 ff., Stark, Gaza, etc. 306, W.R. Smith, OTJC2, 365.

that which pertaineth] Heb. kelî, covering weapons (Deuteronomy 1:41), utensils (Deuteronomy 23:24 [25]) and ornaments, as well as garments or ‘things’ as we call them (Leviticus 13:49, etc.).

abomination] See Deuteronomy 7:25; cp. Deuteronomy 18:12, Deuteronomy 25:16.

6, 7. Of Sparing the Mother-bird. Peculiar to D. No reason of ritual such as we found from Deuteronomy 14:21 is traceable here. The motive may be prudence; had it been kindness to animals (as in Deuteronomy 25:4, and H. Leviticus 22:27 f.) we should have expected an injunction not to take the whole brood. Either D or possibly a later editor has in Deuteronomy 22:7 added the same inducement which is attached to the Fifth Commandment, as if reverence for motherhood were the motive. Steuern.’s idea that this was suggested by Deuteronomy 24:16 is far-fetched. Cp. Luke 12:6.

8. Of Protecting Roofs. Only in D. E, Exodus 21:33 f., exacts from him who leaves a pit open the price of a beast fallen into it, but says nothing as to houses. D’s frequent reference to building is another sign of its later date. Neglect of this law would be punished under the laws on manslaughter and maiming. Battlement, Heb. ma‘aḳeh, only here (cp. Ar. ‘akâ, ‘to hinder). Roof, Heb. gag, deriv. doubtful. Cf. Syr. geg, ‘plaster’ (M’Lean Dict. of Vernac. Syriac). Blood, LXX φόνος.

Ḫammurabi fixes penalties for unsound building involving death or damage, § 229–233. In W. Asia roofs are flat, or where they are domed because timber is scarce, as in Jerusalem, flat terraces are left round the domes, so that they can be used for taking the air, private conversation, worship, etc., as in Joshua 2:6, 1 Samuel 9:26, 2 Samuel 11:2; 2 Samuel 16:22, Isaiah 22:1, Jeremiah 19:13, Zephaniah 1:5, Matthew 24:17, Acts 10:9. In towns there is generally a stone-wall on the outside and a paling on the inside above the court. But Baldensperger says (PEFQ, 1904, 261), ‘the roof is designated ḥaiṭ which means “protected,” although, as a matter of fact, it is not protected at all on the most dangerous side.’

9. thy vineyard] which in Palestine is frequently so planted that there is room for the growth of vegetables, etc., between the vines. Leviticus 19:19, thy field. Why D mentions only vineyard is not explicable. The inference that his law is later than that in Lev. (Dillm.) is unjustified. More probably the wider term is the later correcting the narrower.

two kinds] Only here and Leviticus 19:19. The Heb. implies mutually exclusive kinds.

whole fruit] Right; for the Heb., the fulness, means not the overflow (so Ges. as in Exodus 22:29 (28)) but the whole ultimate contents of the vineyard, as the rest of the v. explains.

be forfeited] Lit. as R.V. margin, consecrated, separated unto Jehovah and His sanctuary like things under the ban (Joshua 6:19); proof that the prohibited mixture was regarded as a religious, i.e. a ritual, offence.

9–11. Three Laws against Mixing (1) seeds, (2) animals in ploughing, (3) cloths in a garment. The first and third also in H, Leviticus 19:19 (cp. P, Leviticus 11:37, against defiling seed), along with one against cross-breeding; the second peculiar to D. The religious reason given for the first is to be inferred for the other two. To appreciate it we must keep in mind not only the attention of the mind of that time to the distinctness of species as created by God, Genesis 1:11 f., Genesis 1:21, Genesis 1:24 f. (Driver), but the principle stated by Isaiah (Deuteronomy 28:24 f.) that all the husbandman’s customs and methods including his discrimination and separation of different kinds of seed were taught him by divine revelation (cp. Leviticus 19:19 : ye shall keep my statutes); and the possibility that in a more primitive society different seeds, animals and the stuffs produced from them were regarded as animated by different spirits whom it was unlucky to offend by confusing them (see on Deuteronomy 22:11). But it is remarkable that Ḫammurabi’s Code shows no trace of this. For the later more detailed Jewish law see the Mishnah, ‘Kil’aim.’

10. an ox and an ass together] This is frequently seen in Palestine, as also a camel with one or other of these two. Note that the ox was ‘clean,’ the ass ‘unclean.’ D does not, like H, prohibit cross-breeding. Mules were common in Israel from David’s time, see Jerus. i. 326 f. On cross-breeding at the present day in Palestine see Musil, Ethn. Ber. 291.

11. a mingled stuff] Heb. sha‘aṭnez, a foreign word, and perhaps Egyptian (doubtfully derived from the Coptic saht, ‘woven,’ and nudj, ‘false’), LXX κίβδηλος. Also in Leviticus 19:19, which has a garment of two kinds for the wool and linen together of D. According to Hosea 2:5; Hosea 2:9, Israel attributed her wool and flax (and other products) to the Baalîm, and if as is probable different products were attributed to different Baals we have a confirmation of the theory stated above in the introd. note. Josephus, IV. Antt. Deuteronomy 8:11, gives another reason.

12. Of Knots or Tassels. Gedilîm, lit. twisted threads, are to be put on the four borders of the quadrangular covering or outer garment (Deuteronomy 24:13, Exodus 22:27). P (or H), Numbers 15:37-41, calls them Ṣîṣîth, and explains them as reminders of the commandments of their God, and their obligations, as holy to him, not to go a whoring. It is singular that D does not explain them as, with this meaning, they are analogous to the directions given in Deuteronomy 6:8, Deuteronomy 11:18. Among all peoples knots have been used as symbols of contracts, etc., and memorials (see also on Deuteronomy 18:11). These enjoined by the Law may be the successors of the armlets worn in a more primitive state of society. LXX, στρεπτά, and for ṣiṣith, κράσπεδα. Vesture, Heb. kesûth, lit. covering.

13. If any man, etc.] For this opening cp. Deuteronomy 21:15; Deuteronomy 21:18; Deuteronomy 21:22. Take a wife, Deuteronomy 21:11, etc.

and hate her] Note this feature in the case; the man had entered on marriage merely for the satisfaction of his passions, and when this was achieved turned against his wife by a revulsion of feeling known in such characters.

13–21. Charges against a Bride. He who, from a base motive, falsely accuses his wife of unchastity before marriage shall after solemn rebuke from the elders be fined 100 silver-pieces and have his right of divorce withdrawn (Deuteronomy 22:13-19); but if such a charge be true she shall be stoned to death (Deuteronomy 22:20 f.).—No direct address to Israel except in the closing formula which is Sg.

The physical evidence, on which the woman is acquitted, was regarded as essential by many ancient races and is still called for and displayed (not only in judicial cases but after all marriages) by certain tribes in Syria, Egypt and Morocco (see further Driver’s note; Westermarck, Hist. of Human Marriage, 123 f.); but its absence is by no means conclusive proof of a woman’s previous unchastity, nor is it certain that the original form of this law so regarded it (see on Deuteronomy 22:20). Musil (Ethn. Ber. 208 ff.) gives differing instances of the treatment of this case among the fellahin and Arabs. With the former the man at once puts his bride away; if her relatives repay him the bride-price he must be silent; if he speaks and the bride has really been guilty, they kill her; if she is innocent he is killed. A jury of matrons decides but the production required above Deuteronomy 22:17 is not demanded. With the Sharari the man returns the bride to her family. With the Terâbîn, if the man accuses his bride he has to flee before her relatives, and put himself under the protection of a strong man, who opens up communication with them. The bride’s representative applies for a ‘Minshâd’ decision ‘that thereby he may make white my honour which he has blackened,’ which is given only by the representatives of certain clans, to whom each party pays 1000 piasters. If the judge finds the charge false the man pays the father of the bride 100 lira, but if he accepts not the decision he is dishonoured and no one may protect him. If the bride is guilty, her punishment depends on her relatives, and compensation is made to the man, who can however still keep her. The innocent party receive back their 1000 piasters.

13–30. Six Laws on Cases of Unchastity

Of these the first five prescribe the procedure in criminal cases:—1st. Of a Husband’s Charges against His Bride (Deuteronomy 22:13-21); 2nd. Of Adultery (Deuteronomy 22:22); 3rd. Of Dishonouring a Betrothed Virgin with her consent (Deuteronomy 22:23 f.); 4th. Of the Same without her consent (Deuteronomy 22:25-27); 5th. Of Dishonouring an Unbetrothed Virgin (Deuteronomy 22:28 f.); while the 6th forbids Marriage with a Father’s Wife (30 [Deuteronomy 23:1]). Of the first five each opens similarly to each of the group Deuteronomy 21:15-23, i.e. with an if, and differently from those of the group Deuteronomy 22:1-12, and they share with the former group and with Deuteronomy 19:1-13, and other laws, these marks:—the elders are the public authority, Deuteronomy 22:15 ff., cp. Deuteronomy 19:12, Deuteronomy 21:3; Deuteronomy 21:19 f.; neighbour (not brother, characteristic of the Sg. passages) is used, Deuteronomy 22:24; Deuteronomy 22:26, cp. Deuteronomy 19:4 f., Deuteronomy 19:11; Deu 19:14; field (sadeh) in its wider sense, Deuteronomy 22:25; Deuteronomy 22:27, cp. Deuteronomy 21:1; and sin worthy of death (ḥeṭ’-maweth), Deuteronomy 22:26, cp. Deuteronomy 19:6, Deuteronomy 21:22. The direct address to Israel is seldom used, and the form varies. In the closing formulas, Deuteronomy 22:21-22; Deuteronomy 22:24, it is Sg. and Sg. also in the body of the 4th law, Deuteronomy 22:24 (unless this be editorial), but Sam. LXX have Pl. In the body of the 3rd law, Deuteronomy 22:24, it is Pl.

In considering these plain-spoken laws it is just to remember that with all their imperfections they represent an advance in social ethics; an upward stage in the struggle against debasing practices and the animal passions of men. That we do not need some of them to-day is due to the fact that their enforcement under religious sanction was needed at the time of their origin. It is only ignorance or ingratitude which can cavil at their spirit or their form.

14. and lay shameful things to her charge] So some versions, and so still Marti. But others following Dillm. trans. frame wanton charges against her (Heb. ‘ȧlilôth debarîm, cp. the cognate ta‘alulîm, caprice or wantonness, Isaiah 3:4; Isaiah 66:4, and Psalm 141:4). So Dri. Berth., and the Oxford Heb. Lex. Aq. has ἐναλλακτικὰ ῥήματα, but LXX προφασιστικοὺς λόγους. Steuern., ‘evil deeds that are only words.’

bring up] Heb. bring out, techn. term.

tokens of virginity] See introd. note, and cp. Deuteronomy 22:17.

15. father of the damsel, and her mother] Together as in Deuteronomy 21:18 ff. Damsel, Heb. na‘ar, the masc. form used in the Pent, for the fem. 21 times, 13 of which are here (but fem. form in Deuteronomy 22:19) and the rest in Genesis 24, 34; cp. Ruth 2:6; Ruth 4:12.

elders of the city in the gate] Deuteronomy 21:19.

17. to her charge] So Sam. LXX; omitted by Heb.

18. chastise him] According to Josephus, IV. Antt. viii. 23, he received 39 stripes; see on Deuteronomy 25:3. But the vb probably means merely to rebuke, cp. Deuteronomy 21:18.

19. amerce] Or fine, also in E, Exodus 21:22. On the estimate of the silver shekel as = 2sh. 9d., this came to £13. 15sh. It is paid to the father who had been responsible for his daughter’s integrity (cp. Deuteronomy 22:16, I gave my daughter to this man) and whose family name had been damaged by the slanderer; but also the national name, cp. a virgin of Israel. By § 127 of Ḫammurabi the false accuser of another man’s wife was branded.

and she shall be his wife] Heb. emphatic; and to him shall she (continue to) be to wife. It is just that he should not be free of his obligations to her, for the motive of his slander had been to get rid of her. But for her it is rough justice. A woman could not divorce a man. By § 142 of Ḫammurabi, if a woman repudiated her husband her past was investigated, and if she had no vice but the husband had belittled her she took her marriage portion and went back to her father’s house.

20. But if this charge be true, etc.] If the physical signs were alone relied on a miscarriage of justice was possible. Other evidence, however, may have been forthcoming. Indeed it is possible that the clause, the tokens, etc., is not original.

21. the door of her father’s house] Not at the town’s gate (as in other cases, Deuteronomy 22:24, Deuteronomy 17:5), because it was her father’s house which she had dishonoured. Therefore instead of to play the harlot, etc., read with Sam. LXX. turning her father’s house into a harlot’s.

folly] Rather, senselessness.

Heb. nebalah from nabal; ‘very difficult to render in English. “Fool” and “folly” are inadequate … The fault of the nabal is not weakness of reason, but moral and religious insensibility, a rooted incapacity to discern moral and religious relations, leading to an intolerant repudiation in practice of the claims which they impose … The cognate nabluth occurs Hosea 2:10 (12) in the sense of immodesty. Senseless and senselessness may be suggested as fair English equivalents …’ (Driver).

folly in Israel] this phrase, implying the sense of a national ideal and standard, a national conscience, which is found in J, Genesis 34:7, Joshua 7:15, and in Jdg 20:6; Jdg 20:10, does not elsewhere occur in D, and is evidence (so far) that we have here an earlier law interpreted by D.

so shalt thou put away] See on Deuteronomy 13:6 (5); and introd. note to this law.

22. Of Adultery. Both guilty parties shall die; so H, Leviticus 20:10. By inference from Deuteronomy 22:21; Deuteronomy 22:24 the death was by stoning; so Ezekiel 16:38-40, John 8:5.

So in Arabia to this day; Burton, Pilgr. to Mecca, ii. 19, Musil, Ethn. Ber. 210; among the Arabs of Sinai the man alone is killed, the woman may be divorced and pays the bride-price. (Jennings-Bramley, PEFQ, 1905, 214, 216). By § 129 of Ḫammurabi both parties were strangled and cast into the water, but the wife’s husband might save her and the king his servant (?); by § 131 a wife accused by her husband but not caught in a guilty act might swear her innocence and return to her house; but by § 132 if suspicion was raised against her, though not caught in the act, she should plunge into the sacred river (ordeal by water). Other cases deal with the wife’s resorting to another husband in consequence of her husband’s captivity, §§ 133–135. In Israel, as at the present day in Syria, cases of adultery were often due to the absence of husbands on a journey, Proverbs 7:19. The whole subject is discussed in several artt. in Hastings’ Dictionary of Religion and Philosophy, Vol. 1.

married to an husband] Heb. be‘ulath-ba‘al, only here, Deuteronomy 21:13, and Genesis 20:3. But cp. Hosea 2:16.

23. betrothed] see on Deuteronomy 20:7.

in the city] Cp. Deuteronomy 22:24. In the city she would have been heard had she cried, but as she did not she must have been a consenting party.

23–27. Of Intercourse with a Betrothed Virgin: (1) Deuteronomy 22:23 f., with her consent, in which case both she and the man are stoned, as in the case of Adultery (Deuteronomy 22:22), for the bride-price having been paid at betrothal the woman is as good as married (Genesis 29:21, Joel 1:8); (2) Deuteronomy 22:25-27, without her consent, in which case the man alone dies and nothing is done to the woman. These two laws are peculiar to D. Note in Deuteronomy 22:24 the Pl. address, and also in Deuteronomy 22:26 according to Sam. LXX, but Heb. has here the Sg.

For such cases Ḫammurabi has but one law, § 130: If a man has ravished another’s betrothed, who is virgin, while still in her father’s house, and has been caught in the act, that man shall die, but the woman go free. Among the Arabs if the woman is unmarried her relatives are not obliged to kill her, but no one may marry her (Musil, Ethn. Ber. 210).

24. bring them both out unto the gate of that city, etc.] see on Deuteronomy 13:10 (11), Deuteronomy 17:5.

because, etc.] This construction is found in D only here and Deuteronomy 23:5. Humbled, Deuteronomy 22:29 and Deuteronomy 21:14.

25. But if in the field the man find, etc.] So the emphatic Heb. order. Field here in its wider and probably earlier sense, of the uncultivated, therefore uninhabited, land. So Deuteronomy 22:27, Deuteronomy 21:1.

force] Rather, seize, lay hold of, as in Deuteronomy 25:11.

26. thou shalt do nothing] Sam. LXX, ye shall, Pl. as in Deuteronomy 22:24.

no sin worthy of death] See introd. to Deuteronomy 22:13-30.

riseth against … and slayeth him] Deuteronomy 19:11, but here Heb., using a stronger vb, unnecessarily adds life from Deuteronomy 19:6; Deuteronomy 19:11.

27. cried] Here at least the woman has the advantage of the doubt.

28, 29. Of Intercourse with a Virgin not Betrothed. The man shall pay a bride-price (see on Deuteronomy 22:22) and marry her without power of divorce. For seduction E, Exodus 22:16 f., exacts the bride-price but the father may refuse his daughter to the man. Among the Tiyâha Arabs the seducer of a woman pays the blood-price of two men; if he will marry her he must furnish the full bride-price (Musil, Ethn. Ber. 210).

lay hold on her] Not the same vb as in Deuteronomy 22:25, usually explained as rape, but this is not certain.

and he be found] So LXX. Heb. they is due to dittography.

29. humbled] See Deuteronomy 22:24. He may not, etc., as in Deuteronomy 22:19.

30. (Heb. ch. Deuteronomy 23:1.) Against Intercourse with a Father’s Wife, cp. Deuteronomy 27:20, and H, Leviticus 18:8; Leviticus 20:11, where the prohibition is extended to other female relatives. Either D’s law is earlier than H’s or D did not know of H’s. Its limitation to this special case is explained by the fact that such intercourse had been regarded as proof of succession to the father’s property (2 Samuel 3:7; 2 Samuel 16:22, 1 Kings 2:22) and was become frequent (Ezekiel 22:10); probably the survival of a practice general in early times (but condemned by J, Genesis 35:22; Genesis 49:4).

Thus among the ancient Arabs a man succeeded to his father’s wives along with other heritable property, but this was forbidden by the Korân, iv. 26. For instances in Syria see W. R. Smith, Kinship, etc., 86–90, OTJC2, 369 f. By § 158 of Ḫammurabi a man caught after his father’s death with a step-mother who has borne children, is cut off from his father’s house; by § 157 incest is punished by burning. Cp. H, Leviticus 18:7.

uncover, etc.] Deuteronomy 27:20, for the sense see Ruth 3:9, Ezekiel 16:8, and cp. the Ar. parallel quoted through W. R. Smith in Driver’s Deut. 259, n. 1.