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A lot of comparisons have been drawn between Hammurabi's Code and that of the Torah reading of Mishpatim - immediately following the Ten Commandments. For many years, people thought Hammurabi's Code was the source of the laws we read here. Now, the academics believe they simply shared a cultural milieu. However, even a quick review of these two sets of laws will show there are some fundamental differences between them.
The first and most striking is the violence of Hammurabi's code. Yes, the Torah prescribes death for murder, sorcery and kidnapping - but Hammurabi has it for sheltering a slave, buying stolen goods and being the daughter of a man who kills a woman. Hammurabi demands 10X repayment for stolen animals, vs. three in the Torah. And the punishment for being unable to pay a 10X fine? Death. The Torah's penalty for non-payment is temporary slavery. My favorite is a law that looks like it was written by commentators on Twitter, during the conflagration in LA:
"If fire break out in a house, and someone who comes to put it out cast his eye upon the property of the owner of the house, and take the property of the master of the house, he shall be thrown into that self-same fire."
No trial, no explanations – after all, you need to act before the fire goes out.
Hammurabi's code was brutal.
There is a second striking difference: Hammurabi's Code was sophisticated. His law deals with sharecropping, rentals of land, land reclamation, irrigation, shipbuilding, surgery, conscription and even trade and investment. In comparison, ours seems downright simple. I know, we didn't have ships or much in the way of irrigation - but surely, we could have made room for investment, trade, and surgery.
Were we really that basic? This law is meant to be relevant forever (although I don't have much to do with sheep nowadays). Is G-d really that basic?
It is only when you dig a little further, then you see a third difference – the most important difference of all. For me, it first came out in the laws of safekeeping. Hammurabi's code refers to something you might entrust to someone else. The reference is to silver, gold and precious stones. The Torah also has laws of safekeeping. They refer to כסף או כלים - that is, money or tools/vessels. When the laws continue, the word shifts to מְלֶאכֶת רֵעֵהוּ. That is, it refers to the handiwork of your neighbor. The Torah is not concerned with protecting wealth per se, it is concerned with whether your neighbor actually had a hand in creating.
This small shift in language reveals a pattern throughout the two sets of laws. The Torah is not concerned with property per se. If it were, we wouldn't have a Yovel – where land is returned to its ancestral families. No, the Torah is concerned with protecting the things people have had a hand in making. G-d is the Creator and we are meant to be creators in the image of G-d.
The Torah is focused on enabling us to live G-dly lives.
As we broaden our lens, we can see that even more clearly. The Torah has sexual crimes and religious crimes and protections for slaves. And the latter half of the laws of the Torah reading of Mishpatim have no punishments at all, they are simply a path for us to draw close to G-d. We have a great deal that Hammurabi misses.
Hammurabi, in his treatment of slavery and investment and property (and so much more) is concerned with protecting property and preserving order. But the Torah is concerned with protecting people and enabling them to live G-dly lives.
Our Code lifts us up. Hammurabi’s would lock us down.
Last week, a member of my community asked whether we, as a nation, would be willing to adopt the mores of our neighbors. He suggested that it would be necessary for us to become like those around us – in order to be able to survive in this place.
In response, I can only point to these laws.
The same question must have existed thousands of years ago. G-d's response was laws like these. It was laws that seemed, on the surface, to fit the greater cultural reality. These were laws that seemed almost indistinct from those of our neighbors.
But, when you dig just a little, you can see that their purpose was and is fundamentally different.
Today the world looks at the way we fight - at the leveled buildings and the casualties. They look at the number of children we have killed and they condemn us for complaining about the deaths of only two Bibas babies.
The world thinks like those who see Hammurabi and the Laws of Mishpatim as interchangeable.
But they are not interchangeable, and we must never let them be interchangeable.
The goals that underpin our laws and our actions must be fundamentally divorced from the goals of our neighbors. The Arab world removed 99.5% of Jews from the countries they controlled. It was the greatest geographic ethnic cleansing in human history. Now, they want to complete the job. Their violence is the violence of annihilation and erasure and religious domination. Once upon a time, this was not their legacy - but it is today. Islamists see Judaism as a perversion of Islam, and they want even our history - as the mother religion of all of monotheism - erased.
On the surface our actions may seem similar to theirs. Our actions may even seem far more destructive than those of our enemies. But if you dig a little, just a little, you will see that our goals are fundamentally different. Ours is not a society of Jews alone - two million Muslims live within our borders. Our society, as imperfect as it is, is fundamentally one that enables people to be lifted up rather than being held down. You can see this in our art, our technology and yes, even in the insane price we are willing to pay for the return of our people – Muslim or Jewish, Ashkenazi or Ethiopian.
Going forward, this must remain true. Even though violence will be necessary - even though Hamas must be erased - the purpose of our violence must always be the lifting up of humankind and the creation of a better reality.
Even in the face of Hamas’s horror, our laws must never be theirs.
--
After the human-enforced laws of this reading, there is a small set of laws enforced by G-d.
One of them says:
וְגֵר לֹא-תוֹנֶה, וְלֹא תִלְחָצֶנּוּ אִם-עַנֵּה תְעַנֶּה, אֹתוֹ--כִּי אִם-צָעֹק יִצְעַק אֵלַי, שָׁמֹעַ אֶשְׁמַע צַעֲקָתוֹ. וְחָרָה אַפִּי, וְהָרַגְתִּי אֶתְכֶם בֶּחָרֶב; וְהָיוּ נְשֵׁיכֶם אַלְמָנוֹת, וּבְנֵיכֶם יְתֹמִים.
Translated to English, this reads:
And a stranger shalt thou not wrong, neither shalt thou oppress him... If thou afflict them in any wise--for if they cry at all unto Me, I will surely hear their cry-- My wrath shall wax hot, and I will kill you with the sword; and your wives shall be widows, and your children fatherless.
I want to focus on just one word: גר
The ger is the stranger.
In Bereshit, Sarah has a handmaiden she gives to Avraham - in order to bear children. The handmaiden is difficult and Sarah oppresses her. The handmaiden flees into the desert. There G-d tells her to name her son Yishmael.
כִּי-שָׁמַע יְקוָק אֶל-עָנְיֵךְ Because G-d heard your oppression.
In this story, Sarah mistreated not just any woman, but HaGar. Literally, "the Ger".
Just as promised in this reading, G-d heard Hagar’s cry and her descendants have - until this very day - made the wives of Sarah's children widows and the children of her children orphans.
For me, the message is clear: If we oppress the stranger, then we face terrible – divine – consequences.
So, even as we must fight the children of HaGar, we must never seek to oppress them. We must struggle, although it is not simple, to maintain this distinction.
After all, we are meant to be a blessing to the families of the world.
Our Code is not Hammurabi's Code.
Shabbat Shalom
Discussion (9)
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Thank you.
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Well done.
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This post has answered a question I’ve been pondering ever since the invasion. Because of the untrustworthiness of the media I haven’t been able to figure out whether the response has been appropriately proportional.
What I do know is that every parent will find that harsh discipline is counterproductive and there’s a price to pay to address the harms done to the parent/child relationship.
However far worse than that, because the harm is passed on to all of society, is the spoiling of the child, because it creates in the child an insatiable sense of entitlement which the rest of society is forced to struggle with also.
The spoiled child becomes an expert in tugging at the heartstrings through manipulation and, maybe through self delusion, outright falsehoods. The sensible see right through the performance but the intellectually lazy or incurious throw not only their own resources at the problem child but expect everyone else to do the same. Those who do not wish to join in the spoiling are seen as evil, hard hearted scrooges. Epithets abound as the enablers join with the chorus of tantrums coming from those suddenly denied their spoils. The fact of the matter is that the tap must be turned off for the child’s own good.
As you beautifully explained G=d has shared with us the truth that there is a balance to be found…….but it sure isn’t easy or popular.
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I seem to recall around Hurricane Katrina seeing "Looters will be shot" signs. Insisting on the same fire probably isn't healthy, but I don't find the death penalty for looting to be uncalled for.
Consider the alternative situation. A man's house is burning down. He knows he has in that house certain articles of gold which, if they're damaged by the fire the gold at least won't burn and hence will retain most of their value regardless. Now suppose that the value of that gold is more than the house, and all his other possessions thrown in. For fear of looters that man might be willing to let his entire house burn down rather than allow strangers near his stuff so that they can put out the fire. His next-door neighbor might be less sanguine about that plan.
In that sense it helps to provide legal protection for the man's stuff, so that your entire city doesn't burn down. (My impression of ancient Babylon involves a lot of mud brick buildings, so I'm not sure how far fire would spread, but I suppose they needed to make roofs out of something.) Of course, if you need to keep the fire going long enough to dispose of any looters that kind of runs against the goal of saving the city. I think that's a concession to poetic justice, which seems to be the form of justice most people are willing to accept. You see it all the time in movies with ironic villain deaths.
To bring it back to the Torah, the last time I read the rules on manslaughter given in Deuteronomy I was amazed at how well-crafted they are, providing for both justice and mercy in the absence of any police power.
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While it is well known that Mesopotamia had enough water (Euphrates & Tigris) to have a food surplus, I recently learned the importance of their extensive irrigation system.
Herodotus:
Irrigation (likely) turns out to be so important that imagery of the chief god Marduk included a spade.
This image shows Marduk in the middle, and a spade, shown vertically with a large triangular blade, on the right.
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