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Noach, The Code Of Hammurabi, And The Pre-Sinaitic Torah
We see from the section in the Torah about the flood that Noach was well aware of various aspects of Torah law. Noach was told by Hashem to save the animals and knew which animals were pure and impure—in other words, which animals were fit for kosher consumption and which were not. This was during a time when there were as yet no Jews. Sinaitic revelation occurred only later, in the year 2448 from creation (1312 BCE). How is this to be understood?
The answer is found in numerous Jewish sources. The Midrashim and the Talmud tell us about the Torah knowledge of Avraham and that of Noach and his sons, particularly that of his son Sheim, also known as Malchitzedek. We shall call this the pre-Sinaitic Torah. Indeed, the Talmud (end of Kiddushin) informs us that Avraham was fully conversant in Torah law. We also find that Rashi, one of the foremost commentators on the Jewish Bible, utilizes the notion of the pre-Sinaitic Torah throughout his commentary on Bereishis.
Historians of ancient Babylon have written that the Code of Hammurabi did not originate with Hammurabi. Charles Horn, for example, who penned the introduction to the first translation of the code, writes, “Yet even with this earliest set of laws, as with most things Babylonian, we find ourselves dealing with the end of things rather than the beginnings. Hammurabi’s code was not really the earliest. The preceding sets of laws have disappeared, but we have found several traces of them, and Hammurabi’s own code clearly implies their existence.”
Hammurabi, then, is merely reorganizing laws of legal systems that were established earlier and elsewhere. He collected and compiled these laws from other societies, places, and sources and included them in Babylon’s oeuvre of various civil laws. It is our contention that one of these sources was a derivative of the pre-Sinaitic Torah. Things get lost in transmission—or, more accurately, they get transformed. Most people are familiar with the idea of the “broken telephone game” that students often play in a classroom. The transmission of ideas from one society to another is no different. An original form of a law may be significantly different than its final form in another society. But its origin can still be readily identified.
Some cases in point:
Sh’mos 21:2: “If thou buy a Hebrew servant, six years he shall serve: and in the seventh he shall go out free for nothing.” (lehavdil) Code of Hammurabi §117: “If a man become involved in debt, and give his wife, his son, or his daughter for silver or for labor, they shall serve three years in the house of their purchaser or bondmaster: in the fourth year they shall regain their freedom.”
Sh’mos 21:15: “And he that smiteth his father, or his mother, shall be surely put to death.” Code of Hammurabi §195: “If a son strike his father, his hand shall be cut off.”
Sh’mos 21:18: “And if men contend, and one smite the other with a stone, or with his fist, and he die not, but keep his bed; if he rise again, and walk abroad upon his staff, then shall he that smote him be quit: only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.” Code of Hammurabi §206: “If a man strike another man in a noisy dispute and wound him, that man shall swear, ‘I did not strike him knowingly’; and he shall pay for the physician.”
Sh’mos 21:22: “If men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow; he shall surely be fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine.” Code of Hammurabi §209: “If a man strike a free woman and cause her fruit to depart, he shall pay ten shekels of silver for her fruit.”
Sh’mos 21:24: “Eye for eye, tooth for tooth, hand for hand, foot for foot.” Code of Hammurabi §196: “If a man destroy the eye of a free man, his eye shall be destroyed.” §197: “If he break the bone of a free man, his bone shall be broken.” §200: “If a man knock out the teeth of a man of the same rank, his teeth shall be knocked out.”
Sh’mos 21:28–32: “If an ox gores a man or a woman to death, the ox shall be surely stoned, and its flesh shall not be eaten; but the owner of the ox shall be quit. But if the ox was wont to gore in time past, and it hath been testified to its owner, and he hath not kept it in, but it hath killed a man or a woman; the ox shall be stoned, and its owner also shall be put to death… If the ox gore a man-servant or a maid-servant, there shall be given unto their master 30 shekels of silver, and the ox shall be stoned.” Code of Hammurabi §§250ff.: “If an ox, while going along the street, gore a man and cause his death, no claims of any kind can be made. If a man’s ox be addicted to goring and have manifested to him his failing, that it is addicted to goring, and, nevertheless, he have neither blunted his horns, nor fastened up his ox; then if his ox gore a free man and cause his death, he shall give 30 shekels of silver. If it be a man’s slave, he shall give 20 shekels of silver.”
Sh’mos 22:7ff. reminds one of Code of Hammurabi §§124ff.; Sh’mos 22:10ff. of Code of Hammurabi §§244ff. and 266ff. The resemblances between the other parts of Chumash and the Code are not as striking as those between the Code and the Book of the Covenant; nevertheless one may compare (lehavdil) Vayikra 19:35ff. with Code of Hammurabi §5; Vayikra 20:10 with Code of Hammurabi §129; Vayikra 24:19ff. with Code of Hammurabi §§196ff.; Vayikra 25:39ff. with Code of Hammurabi §117; Devarim 19:16ff. with Code of Hammurabi §§3ff.; Devarim 22:22 with Code of Hammurabi §129; Devarim 24:1 with Code of Hammurabi §§137ff. and §§148ff.; Devarim 24:7 with Code of Hammurabi §14; and especially Devarim 21:15–18 with Code of Hammurabi §§167–8, where, in both cases, there is a transition from regulations concerning the property left by a man, married several times, to provisions referring to the punishment of a disobedient son, certainly a remarkable agreement in sequence. (All of the comparisons above may be found in the International Standard Bible Encyclopedia where they were originally cited).