C. H. W. (Claude Hermann Walter) Johns - The Relations Between the Laws of Babylonia and the Laws of the Hebrew Peoples: The Schweich Lectures, 1912

THE BRITISH ACADEMY

By
The Rev. C. H. W. Johns, M.A., Litt.D.
Master of St. Catharines College, Cambridge
The Schweich Lectures
1912
London
Published for the British Academy
By Humphrey Milford, Oxford University Press
Amen Corner, E.C.
1914

OXFORD: HORACE HART
PRINTER TO THE UNIVERSITY

It has long been held that the laws of the Israelites, as revealed by God to Moses, by him embodied in the books of the Pentateuch and since preserved by the zealous care of the Jewish people, are incomparable. Accordingly they have been adopted professedly by most Christian nations and were early accepted by our own king Alfred as the basis of the law system of this our land.

We live in an age of devotion to comparative methods, when it is an article of faith to hold that the most fruitful means to attain a clear understanding of the exact nature of anything is to compare it with its like. This comparative method forms a large part of modern scientific research and, with proper safeguards and reserves, has become a favourite weapon of literary research into the history of human institutions.

Long ago, as it seems to us, Sir Henry Maine used it when he wrote his History of Early Law. As a consequence of his investigations and those of many who have followed in his footsteps, the Science of Comparative Law has grown up. All the great law systems of the world have been classified and compared, and comparative lawyers felt qualified to assign to any new-found fragment of ancient law its true position in their schemes. The results had rather confirmed than traversed ancient claims for the supremacy of Mosaic Laws. Men had settled down to the belief that we might compare, and that to its great advantage, the Legislation of Moses with the Roman Laws of the XII Tables, with the Indian Laws of Manu or the Greek Code of Gortyna. We had recognized the broad outlines of a process of evolution and begun to understand the way in which, as a people advanced along the path of progress in the elements of civilization, similar human needs called forth similar solutions of the questions of right and wrong.

Nevertheless much remained obscure in many ancient legislations. It was the opinion of Jhering , the great authority on Roman Law, that for the ultimate solution of the puzzles of Roman Law we should have to go back to Babylon. In his days comparatively little was known about the laws of Babylonia, and that little was badly attested. Men were still of opinion that the Mosaic Law was the oldest of which we had any trustworthy account and that Babylonian laws, if there ever were any worthy of the name, must have been more barbarous and unformed.

Then there came, in the early days of this century, a great surprise, calling at once for much revision of our neatly arranged systems of knowledge. A Code of Laws was discovered, certainly the oldest known, by far the most complete and best attested, and at the same time the most advanced of all but the most modern.

Fragments of it were already known from late copies, had been recognized as probably parts of a Babylonian Code of Law, were even conjecturally styled the Code of Hammurabi by Professor Friedrich Delitzsch , but very little could be concluded from them. Then suddenly at Susa in Elam was discovered practically the whole text of it. Ever since it has been the subject of profound study from all points of view.

The comparison of this Code of Hammurabi with the Laws of Moses was bound to be made. Many reasons would suggest the likelihood that much similarity would be observed between two early legislations both Semitic in complexion. Comparisons with other ancient codes were equally sure to be made and the differences naturally to be expected would be carefully weighed and considered. But while most surprising results came out of these comparisons, especially in the realm of Roman Law, a much keener interest has attached to the comparison with Hebrew Law, not only because of the sacred nature of the Old Testament, but even more because this had been the special study of the Higher Critics. These scholars had almost decided what their view of the composition of the Pentateuch should be, what were the ultimate sources implied, what dates should be assigned to the constituent documents, and the arguments to be considered valid in such discussions. Those who rejected the Higher Critical conclusions flew at once to the new-found Code for arguments to refute Higher Criticism; while Higher Critics found confirmations in many directions.

It may be hoped that this side issue has lost its interest, and that a hearing may now be obtained for a simple attempt to use the two legislations for mutual understanding. When on the appearance of the Code in its first edition I lectured upon it at Queens College, Cambridge, it was solely as a new document of human history. When a month or two later I was privileged to point out its significance for comparison with the Hebrew legislation in a paper read before the Cambridge Theological Society, of which an abstract appeared in the Journal of Theological Studies (Jan. 1903), it is probable enough that the contrasts to the Mosaic Law were more apparent than the likenesses. In the next few months there was ready for press an extensive work on the Code, illustrating its meaning from the innumerable legal documents, most of them contemporary, which had been my study for years. As bearing on this comparison I soon found that a baldly literal translation of the Code gave a most Biblical turn to its phraseology which the easy, lucid, but peraphrastic renderings given by others perpetually disguised. The general likenesses, Semitic characteristics, and apparent cases of adaptation were separately classed and those most suggestive of dependence insisted upon. The index of subjects compiled from the Code and contemporary legal documents appeared to constitute a substantial advance in the knowledge of ancient law.

Of all this work, prepared in 1904, it was not possible to publish more than the translation, under the title The Oldest Code of Laws in the World (T. & T. Clark, Edinburgh), with a selection from the index. The other results were freely communicated to various scholars, but it was not without some pangs that I saw most of them attained in time independently. Later an article on the Code of Hammurabi in the Supplementary Volume of Hastingss Bible Dictionary and one on Babylonian Law in the Encyclopaedia Britannica afforded me the chance of setting out some results of my research upon the Code in its relation to the ancient civilization of Babylonia, with a rapid glance at its relations to Israelite Law. When writing a work for the American public on Assyrian and Babylonian Laws, Contracts, and Letters, I expanded some parts of this treatment.

I trust that I may be pardoned for thus simply stating why, when the British Academy conferred upon me the great honour of inviting me to deliver the Schweich Lectures for 1912, I selected the subject of Babylonian Law in its relation to the Laws of Moses. It was a subject in which I had taken an interest for some years, and I was anxious to seize an opportunity of making public the work done in 1903-4.

A very large amount of work has been done by others on various aspects of the Code of Hammurabi, especially on the Continent, where the facilities for publication appear to be greatly superior to those in England. What is done here is, however, of excellent quality; and Mr. S. A. Cook undertook a detailed comparison with the laws of Hammurabi and other codes which leaves very little to be desired. Mr. St. Chad Boscawen in his