The Ancient Near East

in the 12th–10

th Centuries BCE

Culture and History

Proceedings of the International Conference

held at the University of Haifa,

2–5 May, 2010

Edited by

Gershon Galil, Ayelet Gilboa,

Aren M. Maeir, and Dan’el Kahn

Alter Orient und Altes Testament Veröffentlichungen zur Kultur und Geschichte des Alten Orients

und des Alten Testaments

Band 392

Herausgeber

Manfried Dietrich • Oswald Loretz • Hans Neumann

Lektor

Kai A. Metzler

Beratergremium

Rainer Albertz • Joachim Bretschneider

Stefan Maul • Udo Rüterswörden • Walther Sallaberger

Gebhard Selz • Michael P. Streck • Wolfgang Zwickel

2012

Ugarit-Verlag

Münster

The Ancient Near East

in the 12th–10

th Centuries BCE

Culture and History

Proceedings of the International Conference

held at the University of Haifa,

2–5 May, 2010

Edited by

Gershon Galil, Ayelet Gilboa,

Aren M. Maeir, and Dan’el Kahn

2012

Ugarit-Verlag

Münster

The Ancient Near East in the 12th–10

th Centuries BCE: Culture and History.

Proceedings of the International Conference held at the University of Haifa,

2–5 May, 2010

Edited by Gershon Galil, Ayelet Gilboa, Aren M. Maeir, and Dan’el Kahn

Alter Orient und Altes Testament, Band 392

© 2012 Ugarit-Verlag, Münster

www.ugarit-verlag.de

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Herstellung: Hubert & Co, Göttingen

Printed in Germany

ISBN 978-3-86835-066-1

Printed on acid-free paper

CONTENTS

Preface ....................................................................................................................... ix Abbreviations ............................................................................................................ xi

Reinhard Achenbach Divine Warfare and Yhwh’s Wars: Religious Ideologies of War in the Ancient Near East and in the Old Testament ................................................... 1 Michal Artzy Continuation and Change in the 13th–10th Centuries BCE Eastern Mediterranean: Bronze-Working Koiné? .......................................................................................... 27

Michael Avioz The Davidic Covenant in 2 Samuel 7: Conditional or Unconditional? .................... 43

Yigal Bloch Assyro-Babylonian Conflicts in the Reign of Aššur-rēša-iši I: The Contribution of Administrative Documents to History-Writing ....................... 53

Walter Dietrich David and the Philistines: Literature and History .................................................... 79

Frederick Mario Fales “Ḫanigalbat” in the Early Neo-Assyrian Royal Inscriptions: A Retrospective View ............................................................................................... 99

Avraham Faust Between Israel and Philistia: Ethnic Negotiations in the South during the Iron Age I .............................................................................................. 121

Gershon Galil Solomon’s Temple: Fiction or Reality? .................................................................. 137

Yosef Garfinkel, Saar Ganor and Michael G. Hasel The Iron Age City of Khirbet Qeiyafa after Four Seasons of Excavations ............. 149

Moshe Garsiel Ideological Discordance between the Prophets Nathan and Samuel as reflecting the Divergence between the Book of Samuel’s Authors .................... 175

vi CONTENTS

Moti Haiman Geopolitical Aspects of the Negev Desert in the 11th–10th Centuries BCE ........................................................................................................ 199

Larry G. Herr Jordan in the Iron I and IIA Periods ....................................................................... 207

Richard S. Hess The Distinctive Value of Human Life in Israel’s Earliest Legal Traditions ........... 221 Victor Avigdor Hurowitz Yhwh’s Exalted House Revisited: New Comparative Light on the Biblical Image of Solomon’s Temple ..................................................................... 229 Sandra Jacobs A Life for A Life” and napšāte umalla ............................................. 241“ נפש תחת נפש

Danʼel Kahn A Geo-Political and Historical Perspective of Merneptah’s Policy in Canaan ....... 255 Aaron Koller The Kos in the Levant: Thoughts on its Distribution, Function, and Spread from the Late Bronze to the Iron Age II ................................................................. 269 André Lemaire West Semitic Epigraphy and the History of the Levant during the 12th–10th Centuries BCE ......................................................................................... 291 Yigal Levin Ideology and Reality in the Book of Judges ........................................................... 309

Mario Liverani Melid in the Early and Middle Iron Age: Archaeology and History ...................... 327 Aren M. Maeir Insights on the Philistine Culture and Related Issues: An Overview of 15 Years of Work at Tell eṣ-Ṣafi/Gath ............................................................... 345

Alan Millard Scripts and their Uses in the 12th–10th Centuries BCE ........................................... 405 John P. Nielsen Nebuchadnezzar I’s Eastern Front .......................................................................... 413

Troy Leiland Sagrillo Šîšaq’s Army: 2 Chronicles 12:2–3 from an Egyptological Perspective ................ 425

Itamar Singer The Philistines in the North and the Kingdom of Taita .......................................... 451

CONTENTS vii

Ephraim Stern Archaeological Remains of the Northern Sea Peoples along the Sharon and Carmel Coasts and the ‘Akko and Jezreel Valleys ................................................. 473 Christoffer Theis and Peter van der Veen Some ‘Provenanced’ Egyptian Inscriptions from Jerusalem: A Preliminary Study of Old and New Evidence ............................................................................ 509

Koert van Bekkum Coexistence as Guilt: Iron I Memories in Judges 1 ................................................ 525 Assaf Yasur-Landau Chariots, Spears and Wagons: Anatolian and Aegean Elements in the Medinet Habu Land Battle Relief ........................................................................... 549 Ran Zadok

The Aramean Infiltration and Diffusion in the Upper Jazira, 1150–930 BCE........ 569

Wolfgang Zwickel Cult in the Iron Age I–IIA in the Land of Israel ..................................................... 581 Wolfgang Zwickel The Change from Egyptian to Philistine Hegemony in South-Western Palestine during the Time of Ramesses III or IV ................................................... 595 Index of Authors .................................................................................................... 603 Index of Biblical Sources ....................................................................................... 619 Index of Subjects .................................................................................................... 629

PREFACE

The history of the ancient Near East in the 12th–10th centuries BCE is still an un-solved riddle. At times the veil is lifted and tiny components of this elaborate puzzle glow in a new light. But many questions are as yet unanswered, and most details are still vague. Nevertheless, the broad outlines of this age are fairly well agreed by most scholars: the three superpowers Egypt, Hatti and Assyria gradually lost their hold and their influence in the area: first the Hittites, just after 1200 BCE, and a few dozens of years later, Egypt and Assyria. Historians generally concur that after the reign of Tukulti-Ninurta I (1243–1208 BCE), Assyria plunged into a prolonged de-cline, gradually losing its western territories to the Aramaean invaders. This process is clearly demonstrated by the ‘Chronicle of Tiglath-pileser Iʼ and by the ‘Broken Obeliskʼ (see Zadokʼs and Falesʼs articles). The rare complete silence of the Assyr-ian annals between 1055 and 934 BCE is the best indication that the Assyrians, un-der immense pressure from the Aramaeans, retreated to their homeland and fought a protracted and bitter war of survival. Concurrently, there are good indications that the Egyptians forfeited their influence in Canaan (the Wenamun report; see Kahnʼs and Sternʼs articles). Most Canaanite city states gradually disappeared, and by the end of the 10th century BCE only few survived as independent city states, mainly on the Phoenician coast. The ‘newcomersʼ (the Aramaeans, the Sea Peoples, the Israel-ites and the Transjordanian peoples) became the masters of the land from the Sinai Peninsula to the sources of the Tigris, and from the Amuq Plain to Assyria. The studies presented in this book touch on diverse aspects of human activities (political, social, economic, and cultural), and refer to different parts of the ancient Near East: from Melid and Hanigalbat in the north to Egypt and Kush in the south and from Assyria and Babylonia in the East to the Kingdom of Taita and (southern) Philistia in the west. They do though center mainly on the Bible and the history of ancient Israel and its western and eastern neighbors, as compared with other ancient Near Eastern cultures. The papers present an extensive vista of views—from biblical and archaeological perspectives and indeed most of them were written from an inter-disciplinary standpoint. The Syro-Mesopotamian and Anatolian spheres are the subjects of papers by Liv-erani (on Melid), Fales (on Ḫanigalbat), Zadok (on the Aramean diffusion into the Upper Jazira), Bloch (on the Assyrian-Babylonians conflicts during the reign of Aššur-rēša-iši I), and Nielsen (on Nebuchadnezzar Iʼs wars to the east). Outlooks on Egypt and her imperial holdings are presented by Theis and van der Veen (New Kingdom epigraphic finds in the Jerusalem area), Kahn (on the 19th and 20th Dynasties in Canaan), Zwickel (second paper on Egyptians and Philistines) and Sagrillo (Šîšaqʼs army). The history of ancient Israel and its eastern neighbors is the focus of several pa-pers. Galil and Hurowitz deal with various aspects of the Solomonic Temple. Haiman studied the phenomenon of the ‘Negev Fortressesʼ; and Jordan in Iron Age I and IIA is discussed by Herr. The papers by Dietrich, Garsiel, Avioz, Levin and van Bekkum analyze the composition, ideology and historicity of the books of

PREFACEx

Judges and Samuel, inter alia in light of historical/archaeological testimony. Gar-finkel, Ganor and Hasel summarize the excavation results of Kh. Qeiyafa, and Zwickel (first paper) offers a synthesis of early Israelite cult. The ‘Sea Peoplesʼ phenomenon is the topics of several papers. Various aspects of the Philistines are discussed by Dietrich (literary evidence for relations with David), Faust (identity vs. the Israelites), Maeir (excavations at Philistine Tell eṣ-Ṣafi/Gath), Yasur-Landau (iconographic aspects of Philistines at Medinet Habu), and the second paper by Zwickel (Philistines vs. Egyptians). Old and new evidence on this issue in the Syro-Cilician sphere is the topic of Singerʼs paper, and Stern discusses ‘Sea Peoplesʼ other than the Philistines in Canaan/Israel. Artzyʼs paper rather emphasizes elements of continuity over the Bronze/Iron Age transition both in Canaan/Israel and in Cyprus. Several ideological and legal aspects of biblical vis-à-vis ancient Near Eastern texts are the focus of papers by Achenbach (holy wars), Hess (value of human life), Koller (the term kos), and Jacobs (“a life for a life”). Scripts and literacy in this time span are overviewed by Lemaire (the west Semitic sphere) and Millard. We wish to express our deep thanks to all the scholars who have contributed to this volume, most of whom participated in the conference held at the University of Haifa. Others who were unable to attend that meeting—Reinhard Achenbach, Mario Fales, Richard Hess, Mario Liverani, John Nielsen, Itamar Singer, Christoffer Theis, Koert van Bekkum and Peter van der Veen—kindly accepted our invitation to pub-lish their important studies in this volume. We also thank Dr. Kai A. Metzler for his editorial comments. Dr. Ruth Fidler and Mr. Murray Rosovsky improved the Eng-lish style; Ms. Galit Rozov and Ms. Maya Mokady took care of the indices.

Gershon Galil, Ayelet Gilboa, Aren Maeir, and Dan’el Kahn

”A LIFE FOR A LIFE“ נפש תחת נפשAND NAPŠĀTE UMALLA

SANDRA JACOBS University of Manchester

I. Introduction In this paper, I propose that the legal formulation ,נפש תחת נפש “a life for a life”,1 in Ex 21:23, reflects the context and application of the Middle Assyrian provision: kīmū ša libbiša napšāte umalla, “for the fruit of her womb he pays a life”.2 As such, the Covenant Code expression is indicative of live, human substitution and is en-tirely distinct from the requirement of capital punishment in biblical law, if not also from vicarious punishment, prescribed in Hammurabi’s Codex for the fatal injury of a pregnant woman (LH 210). Moreover, this principle is no metaphorical abstrac-tion, devoid of concrete or practical relevance, au contraire this oft-presumed as-sertion.3 This is irrespective of whether the provisions in the Covenant Code had statutory force: a question that remains beyond the scope of this present discussion.4 The Middle Assyrian laws, preserved on the fourteen tablets excavated by the German Oriental Society at Assur in 1903, are not a formal code of law, but more like a restatement or recompilation of older materials.5 Scholars agree that the exist-ing copies of these laws from the 11th century BCE were based on 14th century originals. Fragments of the laws from Tablet A have been recovered also in Nineveh

* I wish to thank A. Curtis, H. Hirschberger, B. Jackson, F. van Koppen and S. Tzoref for their insights and advice in researching this paper. The research undertaken for this paper took place during the second year of my doctoral studies, at the University of Manchester, where I examined The Body as Object: Physical Disfigurment in Biblical Law. 1 English translations of the Hebrew Bible are from the JPS Hebrew-English Tanakh: The Traditional Hebrew Text and the New JPS Translation – Second Edition (Philadelphia, 1999) unless otherwise stated. 2 As specified in MAL A50, col. vii, ll. 68–69 and 72–73, and separately as napšāte umalla in MAL A50, col. vii, ll. 81 and A52; col. vii, l. 91, where the transliteration of signs and trans-lation of the laws is provided by G. R. Driver and J. C. Miles, The Assyrian Laws (Oxford, 1935). 3 “Le terme napšate est certainment, en l’espèce, un plurale tantum désignant abstraitment la «vie» et non les ‘être vivants’ au sens concret. Il faut alors admettre, avec la majorité des commentateurs, que la phrase exprime d’une manière métaphorique l’obligation de ‘rem-placer la valeur d’une vie’”, in S. Lafont, Femmes, Droit et Justice dans l'Antiquité orientale (Fribourg – Göttingen, 1999), p. 380. 4 See further M. Malul, The Comparative Method in Ancient Near Eastern and Biblical Legal Studies (Kevelaer – Neukirchen-Vluyn, 1990), pp. 102–111. 5 S. Lafont, “Mesopotamia: Middle Assyrian Period”, in R. Westbrook (ed.), A History of Ancient Near Eastern Law (Leiden, 2003), pp. 521–522, 526–533.

242 S. JACOBS

and published by N. Postgate.6 In terms of the availability of Middle Assyrian law to the early biblical authors, it is not unreasonable to suggest that some of these provisions, or motifs from them, were preserved in Neo-Assyrian legal tradition and that, like the treaty conventions available to the Deuteronomic scribes, were known in 8th to 7th centuries BCE Israel and Judah.7 There is no suggestion that Judean or Israelite scholars had access to this collection, in the same way that Covenant Code scribes seem to have had access to Hammurabi’s laws.8

II. The Significance of the Covenant Code Formulation

The formulation נפש תחת נפש “a life for a life” in Ex 21:23 appears in the context of a broader treatment of personal injuries, where it constituted a potentially self-exe-cuting principle,9 as the text of Ex 21:22 here indicates: When men fight וכי ינצו אנשים and one of them pushes a pregnant woman ונגפו אשה הרה and a miscarriage results דיהילויצאו but no (other) damage ensues, ולא יהיה אסון the one responsible he shall be fined, יענש ענש according as the woman’s husband may exact from him, כאשר ישית עליו בעל האשה the payment to be based on reckoning. ונתן בפללים In this NJPS translation of Ex 21:22, the word ‘other’ is placed within brackets, since it is not present in the Hebrew. Thus in the case of an accidental miscarriage the penalty is financial, but is also subject to negotiation or arbitration, as the phrase the payment to be based on reckoning”,10 clarifies. It also makes“ ונתן בפלליםreasonable sense to accept the interpretation of the Mekhilta,11 on this verse, which concludes: “When the biblical text states ‘no damage ensues’, it means to the

6 J. N. Postgate, “Assyrian Texts and Fragments”, Iraq 35 (1973), pp. 19–21. 7 For a recent discussion of the rhetoric in Deut and its relationship to the language of ancient Near Eastern treaties, see C. Koch, Vertrag, Treueid und Bund: Studien zur Rezeption des altorientalischen Vertragrechts im Deuteronomium und zur Ausbildung der Bundestheologie im Alten Testament (Berlin, 2008). Furthermore, my interpretation does not presume that the compilation or redaction of Deuteronomy took place in the Neo-Assyrian, rather than the Neo-Babylonian period. 8 Nor will the question of whether the biblical scribes had an actual copy of the laws in front of them, or simply knowledge of its content and format, be addressed. 9 As suggested in B. S. Jackson, Wisdom Laws: A Study of the Mishpatim of Ex 12:1–22:16 (Oxford, 2006), pp. 71–73. 10 Since ונתן בפללים is considered to be a later insertion in text critical scholarship. 11 The Mekhilta refers to the collection of Halakhic Midrashim, which provides practical rulings on the laws sequenced in Ex, redacted during the Tanaitic period. The edition cited here is compiled by the school of Rabbi Ishmael, rather that of Rabbi Shimon bar Yochai, with the English translation from J. Z. Lauterbach, Mekilta de-Rabbi Ishmael, III (Philadel-phia, 1935). This interpretation is further supported by the discussion in C. Cohen, “The An-cient Critical Misunderstanding of Exodus 21:22–25 and Its Implications for the Current Debate on Abortion”, in N. Sacher-Fox, D. A. Gilat-Gilad and M. J. Williams (eds.), Mishneh Todah: Studies in Deuteronomy and Its Cultural Environment in Honor of Jeffrey H. Tigay (Winona Lake, 2009), pp. 437–458.

ש תחת נפשנפ “A LIFE FOR A LIFE” 243

woman; ‘the one responsible shall be fined’ is for (the loss of) the child”.12 Accord-ingly the loss of the life of the unborn child incurs payment of a negotiable fine to woman’s husband, where no mention of any non-fatal injuries to the fetus is explicit. This is distinct from the terms specified for the injury to the mother, whose fatal injury qualifies for a “life for life” penalty, as applicable in Ex 21:23, as follows: but if (other) damage ensues, ואם יהיה אסון the penalty shall be life for life ונתתה נפש תחת נפש However, in the event that the woman incurs a non-fatal injury, the use of ונתתה “the penalty is” (literally, “and you shall give”) is implied from this verse in Ex 21:23, so that equivalent retaliation as specified by the subsequent “eye for eye, tooth for tooth, hand for hand, foot for foot” formulation, is applicable in Ex 21:24: eye for eye, tooth for tooth שן תחת שןעין תחת עין hand for hand, foot for foot יד תחת יד רגל תחת רגל This contrasts with the relevant provisions in Hammurabi’s laws, where non-fatal injury of the pregnant wife is not addressed but only the loss of her life or that of the life of her child.13 In all cases monetary compensation is provided on a reducing scale, subject to the status of the injured woman, and limited only to cases where the assailant himself is an awīlu—one who may reasonably be assumed to have the funds available to pay for his crime. The exception being the use of vicarious pun-ishment in LH 210: šumma sinništum šî imtūt mārassu idukku, “if that woman should die, they shall kill his daughter”. This prescription occurs in the following sequence of laws, where the more prevalent form of compensation is financial. LH 209 If an awīlu strikes a woman of the awīlu-class and thereby causes

her to miscarry her fetus, he shall weigh and deliver 10 shekels of silver for her fetus.

LH 210 If that woman should die, they shall kill his daughter.

LH 211 If he should cause a woman of the commoner class to miscarry her fetus,14 he shall weigh and deliver 5 shekels of silver.

LH 212 If that woman should die, he shall weigh and deliver 30 shekels of silver.

LH 213 If he strikes an awīlu’s slave woman and thereby causes her to

miscarry her fetus, he shall weigh and deliver 2 shekels of silver.

.Lauterbach, ibid., p. 65 ת"ל: לא יהיה אסון באשה ענוש יענש בוולדת 1213 As translated by M. T. Roth, Law Collections from Mesopotamia and Asia Minor (Atlanta, 1997). 14 Where mārat muškēnum is translated as “a woman of the commoner class”, by Roth, ibid., p. 122.

244 S. JACOBS

LH 214 If that slave woman should die, he shall weigh and deliver 2 shekels of silver. 15 Here, for Hammurabi the issue at stake was not the degree or nature of the inju-ries sustained but rather the calculation of appropriate compensation that is right-fully due to the victim’s owner for loss of his wife or unborn child. As such, vicari-ous capital punishment (for the accidental killing of a woman in the awīlu-class) is prescribed only when her assailant was of the same status.16 The purpose of these laws was not to protect a married woman from violent attack or compensate her for her injuries, but rather to pay the going market rate to the property-owning male, for his chattal loss.17 Aside of this requirement for vicarious punishment, these Babylo-nian values also reflects the underlying logic in the Covenant Code, where also the higher valuation of the life of a woman was based directly upon her child-bearing potential, as a non-enslaved pregnant woman, or אשה הרה. This is clarified by C. Houtman, who explains that the principle of retaliation is determined by the balance of status between the offending and injured parties, as follows:

For retaliation it is not the life, the eye etc. of the offender that is de-manded, but the life, etc. of his wife. The same idealism that governs 21:26,27—mis-treatment of a slave, male or female, is the cause for giving them their freedom—also governs 21:23–25: extreme caution is required where it concerns the life and corporal well-being of the wife of a fellow countryman. One who violates that rule is going to feel the consequences in the loss or maiming of his own wife. So the equilibrium between the parties is restored. The regulation is espe-cially in the nature of a preventative (cf. Deut 19:20), addressing the attack on a man’s most precious possession, the woman, the one who could give him offspring.18

This is not to presume that Ex 21:23–25 required vicarious punishment of the assailant’s wife, but simply that the equivalence in the socio-economic infrastructure dictated that only one wife’s life (or limb) was legitimate restitution for loss of, or injury to, another man’s wife’s life (or identical limb) and that the talionic principle qualified not only the extent of the physical injury, but also restricted its application to only the assailant’s wife. This is entirely different to the prevalent assumption that the talionic formulation indicated that physical mutilation of the assailant, corre-sponding to the injury incurred by his victim, was specified.19 That the context of

15 Roth, ibid., pp. 122–123. 16 Where punishment for an assailant from a lower status group, i.e. a muškēnu “commoner” or a slave, who had killed a woman, in these circumstances, is not specified. 17 This is identical to the rationale provided for the fatal injury of the Israelite slave in Ex 21:20–21: “When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be avenged. But if he survives a day or two, he is not to be avenged: כי כספו הוא since he is the other’s property”. 18 C. Houtman, Exodus: Volume III: Historical Commentary on the Old Testament (Leuven, 2000), p. 166. His interpretation is predicated on the economic reality that the pregnant woman victim in Ex 21:22–24 would command the additional value of her anticipated child. 19 As characterized in the Deuteronomic revision of the formulation presented in Deut 19:21, where נפש בנפש indicated the death penalty as punishment for a witness who falsely accused

ש תחת נפשנפ “A LIFE FOR A LIFE” 245

live, personal substitution was not explicit in the subsequent revision of the talionic formulation in Lev 24:17–21 and Deut 19:21 does not detract from this objective.20 As such, how is this underlying principle of human substitution evident in the broader context of biblical tradition? Firstly, there is of course the cognate use of נפש (from the Akkadian, napištu as a ‘living being’, ‘self ’, or ‘the essence of life’),21 which at the head of the talionic formula נפש תחת נפש “a life for a life” was undenia-bly prominent.22 Furthermore, its relationship to the Middle Assyrian bēl napšāte, or ‘avenger of a life’, if not also the bēl dāmē,23 corresponds closely (but not identi-cally) to the role of the אל הדםוג ‘the blood redeemer’ in biblical law. Secondly, in the appearance of the preposition תחת meaning ‘in place of’, or ‘because of’, where its function in conveying substitution as a form of compensation and is an essential characteristic of its usage. Thus D. Daube explains that the principle of נפש תחת נפש “a life for a life” originated in the context of homicide, where the killer had to replace his victim’s life with another:

The first member of the formula of retaliation is “life for life”. We know of ancient Oriental laws according to which all that a man who had killed another man had to do was supply the latter’s family with one or more persons. Under this system, in the case of homicide, one life was simply replaced by another. If there was a similar stage in Hebrew law, and if the clause “a life for a life” came into existence from that era, the wording would be easily intelligible.24

another of a capital offence: a consequence particularly exemplified in the Book of Susannah. 20 Where its use in Lev 24:18 prescribes financial compensation, qualified by use of the imperfect ישלמנה “he will pay”: ומכה נפש בהמה ישלמנה נפש תחת נפש “One who kills a beast shall make restitution, life for life”. Here even though monetary compensation is explicit, it would not obviously preclude the killer from providing a live animal to compensate the owner of the dead beast. 21 See “napšātu(m)” in J. Black, A. George and N. Postgate, A Concise Dictionary of Akka-dian: 2nd Correct Printing (Wiesbaden, 2000) p. 23. In MAL B2, Driver and Miles (op. cit. [note 2], pp. 426–427) render bēl napšāte as “representative of the life”, whereas Roth (op. cit. [note 14], p. 176), prefers “next-of-kin”. H. Seebass likewise concludes: “A bēl napišātūm is therefore a person responsible for someone’s life (e.g. granting it) or (Middle Assyrian) having the right to avenge a homicide”, in H. Seebas, “נפש nepeš”, in Theological Dictionary of the Old Testament, IX (Grand Rapids, MI 1984–1986), p. 500. See also H. Tawil, An Ak-kadian Lexical Companion for Biblical Hebrew: Etymological-Semantic and Idiomatic Equivalents with Supplement on Biblical Aramaic (New Jersey, 2009), pp. 244–246, where his discussion of מאס נפש meaning “to forfeit one’s life” and the Akkadian napišta mêšu is equally relevant. נפש תחת נפש 22 in Ex 21:23, Lev 24:18 and נפש בנפש in Deut 19:21. 23 A. Mishaly, “The Bēl Dāmē’s Role in the Neo-Assyrian Legal Process”, ZAR 6 (2000), pp. 34–54. 24 D. Daube, “Lex Talionis”, in Biblical Law and Literature: The Collected Works of David Daube (California, 2003), p. 204. This is clear not only in the legal, but also in the political sphere, as this provision from the Treaty with Kaniš from Kültepe, indicates: “If the blood of a citizen of Assur is shed in your city or your land (and) a loss will occur, you shall pay a fixed amount for the blood-money to us and we will kill him (i.e. the murderer). You shall not give another person instead of the murderer to us”. Treaty with Kaniš, ll. 39–45, from C. Günbatti, “Two Treaty Texts Found at Kültepe”, in J. G. Derckson (ed.), Assyria and Be-

246 S. JACOBS

It is also clear that this principle of live, human substitution was understood even by the Priestly, Deuteronomic and prophetic scribes, as these examples indicate. This is evident, even though the use of the preposition תחת (taḥat) did not represent live, human substitution in every single biblical case but only in a significant majority, as 2 Sam 19:1 indicates, where David cries: מי יתן מותי תחתיךבני אבשלום “My son Absalom if only I had died instead of you”.25

THE USE OF תחת (taḥat) AS INDICATIVE OF PERSONAL SUBSTITUTION:

Gen 4:25 “another offspring in place of Abel” זרע אחר תחת הבל

Gen 36:33 “(he) succeeded him as king” 26וימלך תחתיו יובב בן זרח

Ex 21:23 “the penalty shall be life for life” ונתתה נפש תחת נפש

Lev 16:32 “to serve as Priest in place of his father” 27ימלא את ידו לכהן תחת אביו

Num 8:18 “the Levites instead of every first born” הלוים תחת כל בכור

Num 32:14 “(sinful men) have replaced your fathers” כםיקמתם תחת אבת

Deut 2:12 “and settling in their place” 28וישבו תחתם

Josh 2:14 “our persons are pledged to for yours, even to death!”

נפשנו תחתיכם למות

Josh 5:7 “but he raised their sons in his stead” ואת בניהם הקים תחתם

1 Kgs 20:39 “your life for his” נפשך תחת נפשו

Isa 43:4c “I give men in exchange for you” ואתן אדם תחתך29

Isa 43:4d “and peoples in your stead” ולאומים תחת נפשך30

yond: Studies Presented to Mogens Trolle Larsen (Leiden, 2004), pp. 252–253. 25 Also in Gen 22:13: ויעלהו לעלה תחת בנו “a burnt offering in place of his son”, where the dead animal replaces Isaac on the altar. Ambiguity is occasionally also evident, as in 2 Kgs 10:24, where נפשו תחת נפשו “he shall forfeit his life”, occurs. Here Joash states: “Whoever permits the escape of a single one of the men I commit to your charge, shall forfeit life for life”, where it is not immediately apparent if the negligent soldier was to be imprisoned, or killed. 26 In Gen 36:33 “Jobab, son of Zerah from Bozrah, succeeded him as king”, where וימלך תחתיו recurs in 36:34, 35, 36, 37, 38 and 39. As Solomon’s declaration in 1 Kgs 8:20 ואקום תחת אבי “I have succeeded my father David” and equally that of Rehoboam in 1 Kgs 11:43 and of Jeroboam in 1 Kgs 14:20, Ps 45:17: “your sons shall succeed your ancestors” and Isa 37:37: .where Esarhaddon succeeded Sennacherib וימלך אסרחדון תחתיו27 Compare also 1 Kgs 2:35: “In his place the king appointed Benaiah, son of Jehoiada over the army, and in place of Abiathar, the king appointed the priest, Zadok”. 28 Where וישבו תחתם similarly recurs in Deut 2:21, 22 and 23. 29 Where אדם in the singular (as indicative of humanity) is translated by the NJPS as the plural ‘men’ in Isa 43:4c. 30 This is echoed by the parallelism in the previous verse (Isa 43:3 c–d):

I give Egypt as ransom for you פרך מצריםנתתי כ

Ethiopia and Saba in exchange for you כוש וסבא תחתיך

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Job 6:14 “if you were in my place” לו יש נפשכם תחת נפשי

Esth 2:17 “and made her queen instead of Vashti” וימליכה תחת ושתי

III. The Near Eastern Legal Context of Personal Substitution

These examples support B. Jackson’s view, that the expression נפש תחת נפש “a life for a life” in Ex 21:23 indicates that “the sanction provided in the apodosis is not death, but rather substitution of persons—quite literally ‘a soul for a soul’ (but a live soul, not a dead one)”.31 Jackson suggests that this principle of personal substitution is further supported by ancient Near Eastern parallels, “particularly MAL A50, which uses an almost identical expression napšate (cf. nefesh) umalla”,32 as was first suggested by Driver and Miles,33 in their discussion of MAL A50 (vii, ll. 63–71):

If a man has struck a married woman and caused her to lose the fruit of her womb, the wife of the man who caused the (other) married woman to lose the fruit of her womb shall be treated as he has treated her. For the fruit of her womb he pays (on the principle of) a life (for a life), but if that woman dies, the man shall be put to death for the fruit of her womb.34

As in the Covenant Code, the separation of injuries to the victim and her unborn child is evident, but more to the point: the talionic principle here indicates that the attacker’s wife is to receive a corresponding assault, as Houtman had previously argued was the case with reference to the requirement for retaliation in Ex 21:22–25: aššata ša a’īle ša aššat a’īle ša libbiša ušaṣliūni ki ša eppušūšini eppušūši “The wife of the man who caused the (other) married woman to lose the fruit of her womb shall be treated as he has he treated her”.35 As R. Yaron points out: “The desire for exactness in retribution is here carried to its crowning absurdity”.36 In addition, for the loss of the life of the unborn child, a separate penalty is then specified: kīmā ša libbiša napšāte umalla “he pays on the principle of a life”.37 Although M. Roth translates kīmā ša libbiša napšāte umalla as “he shall make full

31 Jackson, op. cit. (note 9), p. 211. 32 Idem, ibid., p. 211. 33 Driver and Miles, op. cit. (note 2), pp. 112–114. See also R. Haase’s classification of this law, as an example of “Gleiches mit Gleichem”, in R. Hasse, “Talion und spiegelnde Strafe in den keilschriftlichen Rechtscorpora”, ZAR 3 (1995), pp. 195, 198. 34 Driver and Miles, op. cit. (note 2), pp. 418–419. Although the Assyrian text uses active forms of each verb, so (for example) in MAL A50, line 71: LÚ i-du-uk-ku, transcribed as a’īle iddukū literally means “that man they will kill”, where the passive form (“the man shall be put to death”) is better suited to English. 35 MAL A50 (vii, ll. 65–67), Driver and Miles, op. cit. (note 2), pp. 418–419. 36 R. Yaron, “The Middle Assyrian Laws and the Bible”, Biblica 51 (1980), p. 555. The obvi-ous practical difficulties in implementing this prescription are discussed further in G. Car-dascia, Les lois assyriennes (Paris, 1969), p. 241. F. van Koppen (in personal correspondence) suggests that this could alternatively imply some form of public dishonour, if not physical abuse. 37 MAL A50 (vii, l. 68), Driver and Miles, op. cit. (note 2), pp. 418–419.

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payment of a life for her fetus”,38 there is no reason to assume that the penalty is primarily monetary, as is demonstrated by its use specifying capital punishment, in the event that the mother was killed: u šumma sinniltu šīt mītat napšāte umalla “but if that woman dies, the man shall be put to death, he pays (on the principle of) a life (for a life)”.39 Here the assailant pays for his victim’s death with his own life,40 where there is no suggestion of any financial payment whatsoever. As Driver and Miles confirm: “It will at once have been noticed that, in all cases where the clause napšāte umalla occurs, the punishment is a form of talion. In—51, on the contrary, where it does not occur the penalty is mere monetary compensation in which talion does not enter”.41 In this context, H. Seebas clarifies this use of the Assyrian expression as follows:

Interesting on account of the legal notions embodied are the texts dealing with the principle of ‘a life for a life’, e.g., ‘If they do not discover the one who murdered him, they will deliver 3 persons as a fine (umallu ‘make full’); in the case of an unborn child: ‘He gives restitution as for a person (napšāte umalla); a pretrial settlement: ‘Do not go to court against me. I will replace your slave with a person (napšāti ša qallika ūšallamka).42

That this Assyrian law also required equivalent restitution by means of human substitution, was actualized in a significant number of cases. This is not to assume that this penalty could not be commuted to a monetary fine, but only that the law intended personal, human substitution in the first instance, where the expression napšāte umalla occurred. The formulation of this legal principle and its particular meaning is apparent, even if subsequent negotiations ensued to compensate the in-jured woman’s husband financially for his loss. This clarified, an additional differentiation in the Assyrian penalty next appears in relation the loss of the unborn child: and one which is specifically dependant on its gender: In a case where the pregnant wife survived,43 the law then states: “Or if that woman’s husband has no son (and) his wife has been struck and has cast the fruit of her womb [for the fruit] of her womb the striker shall be put to death”.44 However, “if the fruit of her womb was a girl he nonetheless pays (on the principle of) a life

38 Roth, op. cit. (note 13), p. 173. This is not to say that restitution for such injuries was never commuted to a financial penalty. Rather that the formal requirement was, in the first instance, for a personal substitute, but that monetary compensation would also have been negotiable, as shall shortly be explained. 39 MAL A50 (vii, ll. 70–71), Driver and Miles, op. cit. (note 2), pp. 418–419. 40 Unlike the Babylonian tradition in LH 210, where the assailant’s wife was intended to be killed vicariously. 41 Driver and Miles, op. cit. (note 2), p. 114, where MAL A51 states: “If a man has struck a married woman, who does not rear her children and has caused her to cast the fruit of her womb this punishment (shall be inflicted) he shall pay 2 talents of lead”, in Driver and Miles, op. cit. (note 2), p. 421. 42 Seebass, op. cit. (note 21), p. 501. 43 And where her assailant thus did already not incur capital punishment for his assault. 44 ša libbiša māḫiṣāna idduku in MAL A50, ll. 74–70, Driver and Miles op. cit. (note 2), pp. 418–419, where Roth, op. cit. (note 13), p. 174 provides: “they shall kill her assailant for her foetus”.

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(for a life).45 This differential presumably reflects the assumption that the loss of a son and heir was of greater financial value and social prestige in Assyrian culture. What is particularly notable is that according to this interpretation of Ex 21:22–25, capital punishment for the assailant was never required, even if both the woman and her child had been fatally injured in the Covenant Code. In the worst case scenario, the attacker would have to pay money (or its equivalent in grain or cattle) for the loss of life of the child and replace the life of the wife with a substitute.46 In the event that he did not have either a daughter or even slave to substitute, he may then have provided financial compensation as an alternative form of restitution.47

If such substitutions were relevant to the conception of talion in the Covenant Code, in what other circumstances were they known elsewhere? A comparison with the personal tidennūtu contracts from Nuzi suggests a different context in which the full contractual payment was equated with the substitution of a living child, or other legal dependant.48 In the tidennūtu contracts, two contracting parties exchange property, usually moveables such as metals, grain, domestic animals or cloth, for a child or slave. Once the debtor returns the borrowed goods, he reclaims his pledged person.49 Here the contract operated as an ‘antichretic pledge transaction’,50 where the individual pledged represented the capital borrowed, whilst their labour func-tioned as interest on the loan. In this context B. Eichler explains that the loss or flight of the contracted person was always considered a permanent absence:

If correctly restored, text 16 stipulates that, upon the death of the person, (a son), Party D is to provide Party C with another son.51 Ac-cording to this contract then, Party C will accept monetary compen-sation for the temporary absence of the person,52 but in the event of permanent absence, he demands to be furnished with another.53

More relevant to this discussion is the legal expression used to describe how exactly one son could be “furnished with another”, where Eicher clarifies: “in case

45 šumma ša libbiša ṣuḫartu napšāte umalla, in MAL A50, ll. 80–81, Driver and Miles, op. cit. (note 2), pp. 418–419. 46 It cannot be claimed that monetary compensation was intended for the loss of life of the mother, in the first instance, because financial penalties are expressed otherwise in Covenant Code. For example, שלם ישלם “he shall surely pay” occurs in Ex 21:22, שנים ישלם “he shall pay double” in Ex 21:23, עליוישלם לב “he shall make restitution to its owner” in Ex 22:10 and .he must weigh out silver” in Ex 22:16“ כסף ישקל47 As inferred by the use of ונתן בפללים “the payment to be based on reckoning” in Ex 21:22. 48 B. L. Eichler, Indenture at Nuzi: The Personal Tidennūtu Contract and Its Mesopotamian Analogues (New Haven – London, 1987). See also F. van Koppen “The Geography of the Slave Trade and Northern Mesopotamia in the Late Old Babylonian Period”, in H. Hungar and R. Pruzsinszky (eds.), The Mesopotamian Dark Age Revisited: Proceedings of An Inter-national Conference of SCIEM 2000 – Held in Vienna 8th–9th November 2002 (Wien, 2004), pp. 9–33. 49 Eichler, ibid., p. 12. 50 Idem, ibid., p. 105. 51 “If Ar-tidi dies, then [he shall take] another son of Ḫalu-[šenni]”, JEN 3, 293, ll. 13–15 in Eichler, ibid., p. 116. 52 “If he [Ar-tidi] departs from the work of Teḫib-tilla for a single day, [he shall pay] one mina of copper per day”, JEN 3, 293, ll. 11–12, in Eichler, ibid., p. 116. 53 Eichler, ibid., p. 26.

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of the flight or disappearance of the person, Party D must make full payment (umalla)”.54 This relationship between the antichretic pledge and the self-enslave-ment of the Israelite has been assessed also by E. Speiser in relation to Middle Babylonian tradition from Nuzi,55 where the parallels are clearly more pertinent to the situation in Lev 25:35–54, which prescribe conditions for selling and redeeming an Israelite. The conditions in Hammurabi’s laws (LH 229–231) equally inform the substitution of slaves, particularly LH 231: LH 229 If a builder constructs a house for a man but does not make his

work sound,56 and the house that he constructs collapses and causes the death of the householder, that builder shall be killed.

LH 230 If it should cause the death of the son of the householder,57 they shall kill a son of that builder.

LH 231 If it should cause the death of a slave of the householder,58 he shall give to the householder a slave of comparable value for the slave”.59

As was the case in LH 210, here too LH 229 and 230 specify vicarious punishment,60 but where the singular resonance of wardam kīma wardim “a slave of comparable value for the slave”, with נפש תחת נפש “a life for a life” is immediately apparent.61 Furthermore, the provision “he shall give to the house-holder” (ana bēl bītim inaddin) indicates that the verb inaddin, from nadanu(m) “to give” is the etymological equivalent of נתן in Ex 21:23,62 where “the penalty shall be life for life” (i.e. ונתתה נפש תחת נפש) was witnessed. Likewise, this principle of personal

54 Eichler, ibid., p. 26. 55 E. A. Speiser, “Lev and the Critics”, in M. Haran (ed.), ספר היובל ליחזקאל קויפמן (Jerusalem, 1960), pp. 29–45, esp. 36–41. 56 Where the “man”, or client is an awīlum. 57 Where “he son of the householder” is mār bēl bītim. 58 Where “a slave of the householder” is warad bēl bītim. 59 šumma warad bēl bītim uštamī wardam kīma wardim ana bēl bītim inaddin. “If it should cause the death of a slave of the householder, a slave of comparable value for the slave”, in Roth, op. cit. (note 13), pp. 125. 60 I am reluctant to include MAL A55 as an example of vicarious talion, although this is suggested by R, Yaron, op. cit. (note 36), p. 555. Here, in the specification of punishment for a rapist, MAL A55, col. viii, ll. 23–29 states: “The father of the virgin shall take the wife of the ravisher of the virgin (and) give her to be dishonoured; he shall not give her (back) to her husband (but) shall take her. The father shall give his daughter who has been ravished as a spouse to her ravisher”, in Driver and Miles, op. cit. (note 2), p. 423. The Middle Assyrian provision continues to explain that in event that the assailant (or “ravisher”) has no wife, he was required to pay the virgin’s father one third in silver of the price of a virgin and then had to marry her, (subject to the further discretion of the girl’s father, who could still “give his daughter to whom he pleases”). 61 This is explicit also in LH 219: (LH 218): If a physician performs major surgery with a bronze lancet upon an awīlu and thus causes the awīlu’s death, or opens the awīlu’s temple with a bronze lancet and thus blinds the awīlu’s eye, they shall cut off his hand; (LH 219): If a physician performs major surgery with a bronze lancet upon a slave of a commoner and thus causes the slave’s death, he shall replace the slave with a slave of comparable value. 62 See Tawil, op. cit. (note 21), pp. 252–253.

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substitution is explicit also in the code of Lipit-Ishtar, where no knowledge of this collection (or any other Sumerian compilation) was known by, or available to, the biblical scribes: LI 12 If a man’s female slave or male slave flees within the city and it is confirmed that the slave dwelt in a man’s house for one month, he (who harboured the slave) shall give slave for slave. LI 13 If he has no slave, he shall weigh and deliver 15 shekels of silver.63 This ‘slave for slave’ substitution principle bears further witness in Neo-Assyrian case law, where a verdict recorded confirms that “Šulmu-na’id will give a slave girl for a slave girl”,64 and is reiterated: “[he will] give slave-girl for a slave girl”.65 Thus the talionic principle of live, human substitution was evident in a practical, documented case during the Neo-Assyrian period, when at least the Deuteronomic (if not the Covenant Code) scribes were certainly known to have been active. Such substitutions were fully understood also in the patriarchal narratives, where “the talion principle is presupposed in certain narratives and that it is encoded as a strategy in the sequence of actions and thereby lends significance to the plot”.66 Further corroboration that the principle pre-supposes also live, human substitution is presented clearly also in the patriarchal narratives. The process is particularly “en-coded” in the context of the pledge, and in the related conditions of surety, evident in the account of Joseph’s meeting with his brothers in Gen 42:19–20:

If you are honest men, let one of your brothers be held in your place of detention, while the rest of you go and take home rations for your starving households; but you must bring me your youngest brother, that your words may be verified and that you may not die.

The brother’s response and its relationship to the talionic formulation is obvious: “Alas, we are being punished on account of our brother, נפש בהתחננו (literally ‘his soul instead of us’) because we looked on at his anguish, yet paid no heed as he pleaded with us. That is why this distress has come upon us”.67 Likewise, on their return to Canaan, Judah persuades his father to allow Benjamin to accompany them back to Egypt, saying:

63 Roth, op. cit. (note 13), pp. 29. 64 GÉME ina ku-um GÉME Šul-mu-I ta-dan, in K345 (ADD 166), ll. 7–8, published by R. Jas, Neo-Assyrian Judicial Proceedures (Helsinki, 1996), p. 15. 65 i-din GÉME ina ku-um GÉME, in K345 (ADD 166) ll. 11–12, published by Jas, ibid, p. 16. 66 As P. Nel suggests in relation to the accounts of Judah and Tamar in Gen 38, Ruth and Deut 25:5–6 and in the Samson narratives from Judges 13–16, in P. J. Nel, “The Talion Principle in Old Testament Narratives”, JNSL 20 (1994), pp. 21–29. Likewise B. Jackson explains: “If we ask, then, why Abraham was tested, the answer would appear to reside in the talionic princi-ple, found elsewhere in the patriarchal narratives (Jacob, the deceiver, deceived): here: Abra-ham, the tester of God (Gen 15) is in turn tested by God”, in B. S. Jackson, Studies in The Semiotics of Biblical Law (Sheffield, 2000), p. 241. 67 Gen 42:21–22, where Reuben’s subsequent response is equally telling: “Did I not tell you, ‘Do no wrong to the boy’? But you paid no heed. Now comes the reckoning for his blood”.

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Send the boy in my care, and let us be on our way, that we may live and not die—you and we and our children. I myself will be surety for him;68 you may hold me responsible:69 if I do not bring him back to you and set him before you, I shall stand guilty before you forever”.70

This evokes particularly also to the context depicted in the tidennūtu contracts from Nuzi. Moreover, Judah’s subsequent offer—to be held captive in place of Benjamin—supports this conception of the נפש תחת נפש “a life for a life” principle, as indicative of a live, personal substitution:

Now your servant has pledged himself for the boy to my father, saying, ‘If I do not bring him back to you, I shall stand guilty before my father forever. Therefore, please let your servant remain as a slave to my lord, instead of the boy,71 and let the boy go back with his brothers. For how can I go back to my father unless the boy is with me’?72

The exception that would prove this rule is Reuben’s earlier offer to his father Jacob concerning the proposed absence of Benjamin: “You may kill my two sons if I do not bring him back to you”,73 which is explicit as vicarious killing, rather than live substitution, where R. Yaron observes: “A strange proposal indeed, inviting Jacob, or at least empowering him, to exact vengeance on his own grand-sons; one need not be surprised that it was rejected. Yet, the very bizarreness of the suggestion lends credibility to the assumption that the legal background against which it was formulated was a concrete one”.74

-I myself will be surety for him” where Ephraim Speiser explains that the tech“ אנכי אערבנו 68nical sense of the verb ‘rb, particularly common in Akkadian legal usage; cf. the cognate noun ‘ērābon, ‘pledge’ in xxxviii:18”, in E. A. Speiser, The Anchor Bible: Gen: A New Translation with Introduction and Commentary (New York, 1964), pp. 327–328. N. Sarna adds that “the Hebrew stem ‘-r-v is most frequently used in reference to acceptance of legal responsibility for a debt contracted by another. The guarantor may undertake to insure that the borrower will not disappear, or he undertakes to repay the loan, should the borrower default”. This meaning is apparent also in Prov 6:1, Job 18:3 and Neh 5:3. See N. M. Sarna, בראשית Genesis: The Traditional Hebrew Text with the New JPS Translation and Commentary (Phil-adelphia, 1989), p. 298. 69 Sarna further clarifies that מידי תבקשנו, where “le-vakkesh mi-yad means to hold responsible, to require an accounting for and is particularly used with respect to bloodshed”, as occurs in Gen 31:39; 1 Sam 20:6; 2 Sam 4:11; Ez 3:18, 20 and 33:8. Sarna, ibid., p. 298. 70 Gen 43:8–9. 71 Specifically: תחת הנער עבד לאדני “as a slave to my Lord, instead of the boy”, where the preposition תחת (taḥat) from the talionic formulation is explicit. 72 Gen 44:32–34b. Here the commentators are unanimous: “the one who had become responsible for the sale of Joseph into slavery (37:26 ff) now unwittingly offers to become the slave of his own victim”, Sarna, op. cit. (note 68), p. 307, see also pp. 33–44. Cf. also C. M. Carmichael, “Biblical Laws of Talion”, Hebrew Annual Review 9 (1985), p. 118. 73 Gen 42:37: את שני בני תמית אם לא אביאנו אליך 74 R. Yaron, “Biblical Law: Prolegomena”, in B. S. Jackson (ed.), Jewish Law Annual: Supplement Two: Jewish Law in Legal History and the Modern World (Leiden, 1980), p. 35, where likewise, Rashi (recalling the view of R. Yehuda haNasi in בראשית רבה Gen Rabbah 85a) comments that naturally Jacob did not accept Reuven’s offer, but responded: בכור שוטה

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IV. Conclusion In light of this discussion, I suggest that נפש תחת נפש “life for a life” in the Covenant Code conveyed, firstly, that human substitution was indicated and secondly, that the replacement was intended alive, rather than being vicariously killed.75 Furthermore, that this principle is recognized throughout the biblical and prophetic corpus, where it is characterized by the use of the preposition תחת (taḥat) and is highlighted additionally in the patriarchal narratives.76 That this application is not relevant to the revision of the talionic formulation in Priestly or Deuteronomic law does not negate this meaning in the context of the Covenant Code. It is paralleled by the use of napšāte umalla in MAL A50 and A52, in Babylonian law, where wardam kīma wardim “a slave of comparable value for the slave”, is specified in LH 219 and LH 231, in Neo-Assyrian judicial procedures and is additionally known from context of the tiddenūtu contracts from Nuzi. Given that the principle of personal substitution is distinct from the award of financial penalties in this corpus, it is therefore inappropriate to retroject the subsequent rabbinic ruling (restricting the principle to monetary compensation) onto the interpretation of this principle in the Covenant Code.77 Not least importantly, this evaluation provides a concrete basis for understanding of the principle of talion,78 where נפש תחת נפש “a life for a life” in Ex 21:23, indicating live, human substitution, was clearly no metaphorical abstraction, devoid all practical function and legal significance. This distinction is also relevant to D. Wright’s recent asser-tion that: “the Covenant Code drew primarily and directly upon the Laws of Ham-murabi for its entire composition”,79 since נפש תחת נפש “a life for a life” in Ex 21:23 bears the unmistakable impression of Middle Assyrian law, in its particular re-lationship to the provision napšāte umalla: an impression confirmed in the broader context of biblical traditions, where examples of live, personal substitution, flagged by the preposition תחת (taḥat), abound.

This firstborn son is a fool: He offers to kill his“ הוא זה: הוא אומר להמית בניו, וכי בניו הם ולא בני sons, (but) are they (only) his sons and not mine (also)? ”. 75 As was observed in LH 210, LH 230 and Gen 42:37. 76 E.g. Gen 42:19–20 and 43:8–9. 77 Nor is the discussion in BT Bava Qama 83b–84a relevant: “What then would be the case if a blind man put out the eye of another man, or where a cripple cut the hand of another, or where a lame person broke the leg of another” because this understanding of talion is based more obviously upon the Deuteronomic usage, where the assailant himself incurred corporal punishment, and not on the principle of live, human substitution, where the assailant replaced the fatal loss of the wife with another life. 78 As explained by Driver and Miles, op. cit. (note 2), pp. 112–114, Daube, op.cit. (note 24), pp. 203–240; Houtman, op. cit. (note 18), pp. 166–168, and Jackson, op. cit. (note 9), p. 211. 79 D. P. Wright, Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi (Oxford, 2009), p. 346.