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The Goring Ox in Near Eastern Laws*

Published online by Cambridge University Press:  12 February 2016

Reuven Yaron
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Extract

I have chosen this particular topic for discussion not so much because of its intrinsic interest, but rather because of the opportunity it gives us to see ancient Near Eastern sources in their interrelationship. Let me commence with some words of introduction concerning the sources which will be considered. These are altogether four: the Laws of Eshnunna (LE), the Code of Hammurabi (CH), the biblical Book of the Covenant, and finally the Talmud. Between them they extend over some 2,000 years or more; nevertheless, it is my submission that not only may they be compared with profit, but even that there are some actual links which connect them.

The city of Eshnunna is situated to the East of the Tigris, on the bank of its tributary, the Diyala. The kingdom occupied an important strategic position between Assyria (in the North), Babylon (in the West), Isin and Larsa (in the South), and Elam (in the East). Much of its history is as yet uncertain, and it is not my intention, nor am I competent, to trace the fluctuating fortunes of the kingdom, the victories and defeats of its rulers. Eshnunna finally fell victim to the expansionist policies pursued with success by Hammurabi of Babylon, during the fourth decade of his reign.

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Articles
Information
Israel Law Review , Volume 1 , Issue 3 , July 1966 , pp. 396 - 406
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1966

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Footnotes

**

M. Jur. (Jerusalem), D. Phil. (Oxon), Associate Professor, Hebrew University of Jerusalem; Visiting Professor, University of Aberdeen.

*

This paper was read to the society “Forum Romanum”, of the University of Amsterdam. Some footnotes have been added, but there are no significant changes in either substance or form.

References

1 Szlechter, E., “Les lois d'Ešnunna” 1954 (Publications de l'Institut de droit romain de l'Université de Paris, no. XII)Google Scholar; Goetze, A., “The Laws of Eshnunna” 1956 (The Annual of the American School of Oriental Research, vol. XXXI).Google Scholar

2 While disagreeing in many instances with the division into sections fixed for CH and LE by their respective editors, we have not found it practicable to disregard that division altogether. By writing, e.g., LE 54/55, we indicate that this is, in our view, one section only.

3 The translation “carcass of the dead ox” follows the corrected reading of the original, given in The Chicago Assyrian Dictionary, vol. Z, 1961, p. 79a. The earlier rendering was “the value of the dead ox”.

4 Babylonian Talmud, Baba Qamma 35b, Baba Metsia 2b.

5 (1950) 7 Oudtestamentische Studien 149–78.

6 (1950) 18/4 Archiv Orientalní 321–30.

7 The following Latin paraphrase is given by Guarducci, Margherita, Insricptiones Creticae IV, 1950, p. 93 Google Scholar: Quadrupedis dominus, gui iniuriam passus sit, quadrupedem integrum habeat a quo damnum illatum sit; si tamen noluerit quadrupedem accipere ab altero domino, iste simplum ei pendeat…. Si quis bestiam vulneratam non egerit vel mortuam non attulerit (scilicet ut domino alterius bestiae damnum demonstret), vel (ipsi domino) non ostenderit, cum scilicet neque agere neque afferre potuerit, ex lege neutiquam agendum esse praecipitur.

8 Th. Mommsen, in the standard edition of Justinian's Digesta, emends and completes the text: for eum sibi he reads cuius esset is qui adgressus erat tum tibi.…

9 “Where two rams or two bulls fight and one kills the other, Quintus Mucius draws a distinction: if, he says, the animal killed is the one who first attacked, there will be no action, but if it is the one who gave no challenge, there is a good right of action, and consequently the party [who owns the other] must either make amends for the mischief or surrender the animal for noxa.” (Translation by Monro, Ch. H., The Digest of Justinian, vol. II, 1909, p. 115.Google Scholar)

10 Under this principle the owner discharges his duty by surrendering the animal (or slave) causing the harm. See Buckland, W. W., A Text-book of Roman Law 1932 (1963), pp. 599 ff.Google Scholar

11 Goetze, op. cit., 138.

12 Een nieuw-ontdekte babylonische wet uit de tijd vóór Hammurabi 1949, 24, note 63 (followed by van Selms, op. cit., 329).

13 ⅔ of a mina equals 40 shekels.

14 By mistake of the scribe the text has “gored”.

15 The verb used in sec. 54/ to describe the owner's failure to act is uncertain. However, while there may remain some doubt concerning the linguistic aspect, the actual meaning is hardly in question. It is sufficiently determined, on the one hand, within the LE, by the related provisions concerning dog and wall, and on the other hand by the parallel statements in the corresponding sections of CH and Exodus, respectively “he did not screen its horns, (or) did not tie up his ox”, and “did not keep him in”.

16 See further the Septuagint, Exodus 21.36; Philo, , De legibus specialibus 3.145 Google Scholar; Josephus, , Antiquities 4.8.36.Google Scholar

17 Op. cit., 140.

18 “Nobody should have wished to have a dog … where people commonly pass, in such a manner that it might hurt anyone or bring harm (upon him). If (anything) has been done contrary to this, and a free person has perished thereby, let him be sentenced (to the payment) of 200 solidi; if a free person be said to have been hurt, (let him be sentenced to the payment) of whatever will appear to the judge good (and) equitable. For other things, (payment) of double the harm brought or done.”

19 Korošec, V., in the French Summary of his Zakonik mesta Eshnunne in Lipit-Ishtarjev zakonik 1953, p. 96.Google Scholar

20 Op. cit., 140.

21 (1961) 12 Iura 224.

22 The animal is “wont to move and cause damage”—Mishnah Baba Qamma 1.1.

23 (1958) 75 Zeitschrift der Savigny-Stiftung für Rechtgeschichte, Romanistische Abteilung 13.

24 Op. cit., (n. 12, above), 27.

25 The admissibility of compensation in this case is sufficiently accounted for by the absence of premeditation.

26 Compare, in biblical law, Leviticus 24.10–23, Numbers 15.32–36. Both passages concern offences proclaimed or defined for the purpose of punishing acts which had already been committed.