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Homicide in the Hebrew Bible: A Review Essay

Pages 362 - 374



2 Barmash uses records of actual cases, treaties and international documents which contain provisions on homicide, letters and some narratives texts. The degree of analysis and criticism directed towards these sources is somewhat less than that deployed as regards the Bible; there is, nevertheless, a rich resource here for future analysis.

3 The degree of concurrence is in fact rather slim (see further below), and Barmash has to construct it by the use of rather general language: „God's protection of a killer in Genesis 4 seems at odds with the heinous nature of the offense committed and the gravity of the punishment, yet as we shall see, it is in consonance with the treatment of the punishment of the killer elsewhere in the Bible, where protections are established for killers.“ In fact, neither the precise nature of the intention of Cain nor the nature of his exile or punishment are really addressed in later chapters, where typologies of homicide (in relation to intention) and the significance of the cities of refuge are discussed.

4 I refrain from extended comment on this chapter (whose argument is less central to the book as a whole), having recently written extensively about it elsewhere: see Studies in the Semiotics of Biblical Law (Sheffield: Sheffield Academic Press, 2000; JSOT Suppl. Ser. 314), ch.10; „Lex Talionis: Revisiting Daube's Classic“, SBL Meeting, Denver 2001, at I argue that it is important to trace separately the histories of two distinct formulae, the tahat formula as in nefesh tahat nefesh, etc., and the ka'asher formula, as in Deut. 19:19 and Lev. 24:19 (כאטר עטה כן יעטה לו). Barmash seeks at 169f. to distance the biblical conception from that in the Roman Twelve Tables, where the Lex Talionis „is meant as a threat, not as a principle of punishment. It is a way in Roman law of forcing the offender to come to terms with the victim.“ I would argue that precisely the same applies in Biblical Law; indeed, this appears to me to be quite compatible with the blood feud framework which Barmash adopts, but perhaps does not sufficiently consistently apply.

5 In particular, she observes differences between Assyrian law and the rest of Mesopotamian law, explained in terms of geographic differences which prompted it to give a role to the slayer's community and the victim's family (see 49 and the appendix at 56–70), and notes that the adjudication of homicide as reflected in legal records occasionally diverges from that found in the law collections.

6 See further my Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1–22:16 (Oxford: Oxford University Press, 2006). Ch.4 is devoted to Homicide (completed before Barmash's book became available to me), and many points touched upon in this review are discussed in greater detail there.

7 Though acknowledging the lack of certainty as the whether „the statutes in the Bible were used in a court system“ and that „a distinction needs to be drawn between the legal system as described in the Bible and the actual legal system of ancient Israel“, her working assumption appears to be that they are comparable to contemporary state legislation. There is reason to doubt this, and in particular to pose the question separately for each of the biblical legal collections.

8 In Wisdom-Laws, supra n.5, at §6.5, I argue that Exod. 21:22–23 shares the character of many Deuteronomic laws, in addressing „second-order“ legal problems. As for the goring ox, it is widely noted that Exod. 21:36 adds a provision found in neither LH nor LE, by applying the distinction between (in rabbinic terms) tam and mu'ad to the case of the bovicidal ox.

9 She rightly maintains: „Even when certain aspects of one culture's law are transplanted from another culture, they may appear differently because when a legal institution or statute takes root in alien soil, it acquires native characteristics“ (p.205).

10 At 145, she argues: „… an ox goring in an agro-pastoralist society seems probable: an ox is usually a docile animal, but considering the number of oxen in use, the case of an ox going berserk would occur from time to time“. The great majority of the extant legal documents, she observes, concern sales: „To put it in statistical terms, out of the approximately twenty-five hundred legal documents I surveyed, I found four cases of death, one case of slander, one case of assault, and one case involving a dispute over the responsibility for a prisoner.“

11 Which, she suggests, may „have served as one impetus for the creation of refuges within Israelite borders, so that a blood avenger would not necessitate flight to a foreign territory“ (p.203).

12 „In sum, the organization of society had a profound effect on the concept of justice and the process of law in the Bible … the difference originates in disparate conceptions of the organization of society“ (p.50).

13 She argues at 9 that in Mesopotamian religion, blood was considered only to be a polluting substance, not a cleansing substance, and the blood spilled in an unlawful death did not contaminate anyone besides the killer. Impurity, on the other hand, was thought to be caused by demons, from whose control the victim needed to be freed.

14 See E. Otto, „Town and Rural Countryside in Ancient Israelite Law: Reception and Redaction in Cuneiform and Israelite Law“, JSOT 57 (1993), 3–22, reprinted in The Pentateuch. A Sheffield Reader, ed. J.W. Rogerson (Sheffield: Sheffield Academic Press, 1996), 203–221. Otto's work is not considered by Barmash.

15 See my „The „Institutions“ of Marriage and Divorce in the Hebrew Bible“, in G. Brooke and C. Nihan, eds., Studies in Biblical Law and its Reception (Oxford: Oxford University Press, 2006; JSS Supplementary Series), forthcoming; „Human Law and Divine Justice in the Methodological Maze of the Mishpatim“, in The Boston 2004 Conference Volume, ed. E. Dorff (Binghamton: Global Academic Publishers, 2006; Jewish Law Association Studies, XVI), forthcoming.

16 See my „Literal Meaning: Semantics and Narrative in Biblical Law and Modern Jurisprudence“, International Journal for the Semiotics of Law/Revue Internationale de Sémiotique Juridique 13/4 (2000), 433–457; Wisdom-Laws, supra n.5, at §1.4.1.

17 At 80, 83, arguing for a lack of parallels in language and content between Exodus 21:14 (which „defines an intentional killer as one who willfully attacks another in treachery“), and Deuteronomy 19:11, which „distinguishes one who hates another and lies in wait for him as an intentional killer“. But the concept of lying in wait as exemplifying premeditation is found in Exodus 21:13 (לא צדה), even though the verb used in Deuteronomy 19:11 (צ-ר-ה) is different. Barmash argues at 23 n.6: „The root צ-ר-ה [sic] is a synonym for the more common root א-ר-ב. However, it stresses the aspect of planning and watching for an opportunity to entrap, rather than the aspect of hiding.“

18 Thus, for example, she rightly stresses at 103 the expiatory role of the death of the high priest according to Numbers 35.

19 The case of the flying axe-head, Deut. 19:5. Barmash suggests at 122 n.16 that while grammatically it appears to mean that the axe-head rebounds from a tree, it would be better to understand it as the axe-head coming off its own handle (cf. 2 Kgs 6:5). But the text certainly contemplates the accident occurring in the course of cutting a branch from a tree (the referent of the first עץ in the verse). This may not exclude the axe-head coming off its own handle, though it is difficult to give the second עץ a different referent.

20 As in the priestly reworking of the „talionic“ provisions of the Mishpatim in Lev. 24: see my Studies, supra n.3, at 291–93.

21 See further my Wisdom-Laws, supra n.5, at §4.2.

22 They receive analytic endorsement in Roman law: „Crimes may be committed from forethought, on impulse or by accident (aut proposito aut impetu aut casu)“ (Justinian's Digest,, Marcian). See further my Essays in Jewish and Comparative Legal History, Leiden, E.J. Brill, 1975), 91f. n.4.

23 We might take a different view on the issue of negligence in such a case today. But negligence standards are clearly culturally contingent.

24 See my Wisdom-Laws, supra n.5, §4.3.3.

25 See my Wisdom-Laws, supra n.5, §10.1 at n.17 (in the context of Exod. 21:33–34). In discussing egum, G.R. Driver and J.C. Miles, The Babylonian Laws (Oxford: Clarendon Press, 1952–55), I.461-66, conclude (at 465) that „there is no case in the Laws in which liability is indubitably based on negligence“.

26 Even early rabbinic law still manifests the struggle between (the earlier) use of a „strict liability“ standard and its developing concept of negligence. See D. Daube, „Negligence in the Early Talmudic Law of Contract (Peshi'ah)“, Festschrift Fritz Schulz, ed. H. Niedermeyer and W. Flume (Weimar: H. Bohlaus Nachfolger), I.124-47, repr. in Collected Works of David Daube, Vol. 1, Talmudic Law, ed. C.M. Carmichael (Berkeley, CA: University of California, Robbins Collection, 1992), 305–32.

27 In addition to the comparative evidence for this provided in my original treatment of the case („The Problem of Exod. xxi.22-25 (Ius Talionis)“, VT 23 (1973), 293–95; Essays, supra n.21, at 96–98), Barmash notes at 196 two texts from Ras Shamra (RS 17.251 and 337), which record substitution of servants in the case of kidnapping. She does not, however, consider this alternative interpretation of Exod. 21:22–23.

28 See F.C. Fensham, „Widow, Orphan and the Poor in Ancient Near Eastern Legal and Wisdom Literature“, JNES 21 (1962), 129–39. The case does not, in my view, support Barmash's claim (at 35) that „the king did possess a jurisdiction that coincided with that of the local community. The monarchy did not replace a system of local justice but actually helped in keeping the system alive, as we have seen in the case of the wise woman from Tekoa, by remedying abuses, albeit inconsistently.“ She also notes that the legal texts do not attribute any role to the king; the literary texts, on the other hand, reflect „the flaws in the system that the monarch must correct“. At 36 she contrasts the role of the crown and central authority in the ancient Near East, despite a somewhat different picture drawn from the neo-Assyrian sources at 41f. and 49f.; she concedes at 42 that it is difficult to determine royal jurisdiction in homicide despite the Nippur homicide trial.

29 See further L.L. Lyke, King David with the Wise Woman of Tekoa (Sheffield: Sheffield Academic Press, 1997), 71–79.

30 „The narrator's framing of Joab's offence as the shedding of the blood of war in peacetime makes Joab's actions appear illegal. However, taking vengeance on others for what they did in war is considered acceptable“ (73 n. 8). But this is not an external war (like Gideon against the Midianite kings, Judg 8:18–21, cited by Barmash), but rather an internal conflict, a dynastic dispute, where the vanquished may be regarded as traitors. Moreover, what surely counts for present purposes is indeed the viewpoint of the narrator: we hardly have direct access to the actual original social or legal norms.

31 That jurisdiction begins with interest, not disinterest, is shown also by the one piece of legislation attributed to David: a law concerning the distribution of booty: 1 Sam. 30:21–25; Jackson, Studies, supra n.3, at 155–58.

32 Her emphasis is more on limiting the force of the traditional developmental argument, descended from Wellhausen, than in positively asserting an alternative reconstruction of the history: „The ambiguity of Exod 21:13 cannot be resolved completely. It refers to the refuge for an accidental homicide as מקום, a word that can have, as we have seen, the technical meaning of „sacred place“ or „town“ … The background of the statutes in Exod 21:13–14 can either be that of a sanctuary used as a refuge or that of a city of refuge … The evidence for radical historical change is weak“ (80f.).

33 On adjudication here and in the other legal sources, see further my Wisdom-Laws, supra n.5, at §4.4. The account there of adjudication in Deut. 19 is further developed here, prompted by Barmash's analysis.

34 At 89, she takes the עדה in Numbers 35:24–25 as a small local court (outside of the city of refuge because of the stipulation that the עדה will return the slayer to the city of refuge on deciding that the death was inadvertent), rather than a central assembly, arguing that Numbers 35 is the only reference to the judicial function of the עדה and it would seem very unwieldy to convene all the Israelites in a case of homicide.

35 I am not clear on what basis she claims, at 89, that „the text describes the action of the elders as the implementation of a judgment already made“.

36 „The History of the Cities of Refuge in Biblical Law“, in Studies in Bible, ed. S. Japhet (Jerusalem, Magnes Press, 1986; Scripta Hierosolymitana, XXXI), 205–39, at 229.

37 Cf. Jackson, Wisdom-Laws, supra n.5, at §4.4.

38 At 154 n.1, Barmash, despite providing further linguistic support, rejects the applicability here of the important argument of Martin Buss, „The Distinction between Civil and Criminal Law in Ancient Israel“, Proceedings of the 6th World Congress of Jewish Studies (Jerusalem: World Union of Jewish Studies, 1977), I.51-62, that phrases like mot yumat may be permissive rather than mandatory. She argues that the legal context here militates against the permissive sense because the point of statutes is to direct a particular course of behaviour. I would disagree, both on analytical and historical grounds: analytically, because it is just as important for legal authority to define what is permitted and not permitted as to prescribe or proscribe particular behaviour (as is well recognised in modern legal philosophy); historically, because the death penalty in the case of the blood feud is subject (before Num. 35:31–32) to the availability of kofer.

39 Though v.13 (directed to the community rather than the go'el: compare the ובערת language with the formula ובערת הרע מקרבך in Deut. 19:19 and elsewhere) may well imply disapproval.

40 At 103, taking this to imply that the accidental killer may leave when the anger of the blood avenger is appeased. She notes that Rofé suggests that the city elders will arrange a monetary settlement (kofer, comparing Exodus 21:29 and 21:22), but objects that a person redeeming himself by means of this payment in the Exodus sources is under the sentence of death, unlike here. But I would reject the view that a death sentence has been pronounced in the Exodus cases. See Wisdom-Laws, supra n.5, at §§6.3-4, 8.3.

41 Cf. their function in Ruth 4:2, 9.

42 See D. Daube, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947), 121–124, where he is even more specific: „The murderer gets hold of the murdered man's strength. But by taking vengeance and killing the murderer, the victim's family in turn seizes the strength of the offender“ (123); „… as ‘taker back of the blood’, the ‘redeemer’, I submit, wins back the blood of his murdered kinsman from the murderer“ (124). The notion, it seems, was not restricted to the Bible (cf. Daube, at 121). At 180, Barmash quotes an El-Amarna letter, in which the king of Babylon writes to the king of Egypt: „Execute the men who put my servants to death, and so return their blood“ (EA 8:28–29).

43 Barmash refers at 9 to Deuteronomy's mandating a public ceremony removing the ill effects of spilled blood when a corpse whose killer cannot be identified is discovered (Deut. 21:1–9). But there is no such evidentiary difficulty in the present context.

44 Cf. B.S. Jackson, Theft in Early Jewish Law (Oxford: Clarendon Press, 1972), 204.

45 Another possibility is divine punishment. Barmash would seek to avoid this solution, too, given her view (at 86f.) that this passage is „informed by the Deuteronomic trend toward secularization“. This formulation perhaps goes too far. As compared to Num. 35, the treatment may be characterised as „non-cultic“ or „non-ritual“, but we should take seriously Deuteronomy's claim (1:17) כי המשפט לאלהים הוא. I have argued, in the light of this, that we should view the relationship between human law and divine justice in monistic rather than dualistic terms. See B.S. Jackson, „The Practice of Justice in Jewish Law“, Daimon 4 (2004), 31–48.


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