COVENANT, THE BOOK OF THE (סֵ֣פֶר הַבְּרִ֔ית, the book of the Covenant, used in Exod 24:7 and 2 Kings 23:2; this letter is a general reference to the law of Moses).
Exodus 20 to 23, commonly called the Book of the Covenant, contains in addition to the Ten Commandments a series of laws most of which begin with the word “if” in the Eng text. These laws express particular case types of domestic, economic and criminal legislation common not only to the Hebrews but to many peoples of the ancient Near Eastern world. Most of them are what jurists might call casuistic laws. The famous Leipzig scholar Albrecht Alt noted two main types of legislation in the Pentateuch. The first he called apodictic, that is, laws that are absolute and universal such as the Ten Commandments (Exod 20; Deut 5); and the second are those which arise from the necessities of a given cultural environment. There is overlapping, of course, but to a large extent Exodus 21-23 contains casuistic law. One need not follow Alt fully to see that he is essentially correct in this observation. The reader need only to study the tr. of Hammurabi’s Code (ANET, pp. 163-180) to see that both in format and in content there are striking similarities to the Book of the Covenant. The usual format runs as follows: “If a man does such and such and this or that results then such and such is the law.” For example, Exodus 21:26, “When a man strikes the eye of his slave, male or female, and destroys it, he shall let the slave go free for the eye’s sake.” A similar law in Hammurabi’s Code says, “If a man has destroyed the eye of a member of the aristocracy, they shall destroy his eye” (ANET p. 175, no. 196). The format is the same but there is a significant difference in the two laws.
Hammurabi’s Code has three classes of men: the aristocracy, the commoner, and the slave. This system was highly unjust as may be seen from law 198 where an aristocrat need only pay one mina of silver for putting out the eye of a commoner and even less for the eye of a slave. The Lex Talionis (law of the tooth) (Exod 21:24, 25) “eye for eye, tooth for tooth,” far from expressing harsh retribution, was really a setting for the lofty principle of equal justice under law, a concept not present in other early codes. Jesus in the Sermon on the Mount (Matt 5:38-42) was not contradicting this law in its original purpose, but was opposing a Pharisaical misapplication of the law. It was never intended to be used as a guide to daily interpersonal relationships, but was given to assure equal justice for all before the judges.
While there are many similarities between the Book of the Covenant and Hammurabi’s Code, there are also striking differences. The sentence for kidnapping is the same, i.e. death (cf. Exod 21:16; Deut 24:7 and Hammurabi’s Code no. 14), but the Heb. laws on theft never call for the death penalty, simply manifold restitution (Exod 22:1-4). Hammurabi’s Code shows an evolution from the death penalty to the death penalty only for theft from the church or state, and finally to sevenfold restitution or a fine (ANET p. 166, n. 45).
Both codes allow for working off debts through servitude and both provide redemption rights and various kinds of protection against permanent slavery for citizens (Exod 21:2-11; Deut 15:12-18 and Hammurabi’s Code nos. 117-119, ANET p 170). Where goods or grain have been deposited with another person and subsequently stolen, the two codes handle the cases almost identically. Both require double restitution from either the thief or storekeeper if convicted (Exod 22:7-9, Hammurabi’s Code no. 120, ANET p. 171).
Hammurabi’s Code calls for simple restitution by a careless shepherd who has allowed some ill to befall the sheep (no. 267). The Bible is more flexible allowing the shepherd or keeper to make an oath regarding his own innocency, esp. in the case of domestic animals which are torn by wild beasts (Exod 22:10-13).
Both codes deal with the case of miscarriage caused by an intended injury. Exodus 21:22-25 allows for restitution to be made according to a just settlement between the husband and defendant which seems to imply a price could be paid for a lost fetus. But if “harm follows,” that is, if the wife is also injured or killed then the Lex Talionis must be applied by the judge. Hammurabi’s Code is more specific for it sets ten shekels as the price for a lost fetus and states that, “If the woman has died then they shall kill the defendant’s daughter.” The Biblical law would call for capital punishment of the defendant himself as the murderer. Furthermore, in the Babylonian system the fetus of a plebeian was only worth five shekels of silver, and if the plebeian’s wife died a half mina was sufficient payment. A slave’s fetus and wife had still lower values.
The codified laws of the Ancient Near E were a reflection of the common laws prevalent at that time in that part of the world. The Book of the Covenant draws on this reservoir, but under divine inspiration raised the standards and included principles of justice and mercy foreign to these earlier written laws, though the crowning glory of Israelite law was that superior ethical standard called the Decalogue (Exod 20; Deut 5).
J. Bright, A History of Israel (1959), 44, 53, 130, 149, 151; ISBE 729, 730.