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13.
"He Should Continue to Bear the Penalty
of
that Case" 81
explanation of aran dinim ^uati ittand^i, because
4 seems to be
dealing not so much with real estate, which might require a permanent
responsibility from the seller -Ttanappal^^, but rather with a loan, or
the like, whose claim can be settled with a one-time payment and need
not require a life-long obligation. Surely, aran dinim ^udti ittana^i
does not mean that he pays the amount of his fine repeatedly, or even
more than just once. It seems, then, that standard situations do not
convincingly or completely account for the iterative jtanj form of the
verb here.
Assuming that we are not dealing with a frozen form, we must
wonder what specialized meaning or nuance of the standard sense of
iteration or continuity is conveyed here by the jtanl form of nasH in
combination with arnu. Why should someone be repeatedly or
continuously penalized?
I, too, would now translate aran dinim ^uati ittana^i as "he shall
continue to bear the penalty in that case," and would suggest that the
iterative in
4 conveys the notion that the witness always remains
liable for testimony that he gave, that having paid the amount due in
that case, he bears the guilt
-
for the duration of his life and even under
changed circumstances
-
for not having been able to prove his testimony;
the penalty will never be rescinded. Such absoluteness and
irrevocability are compatible with the penalties stipulated in the
apodoses of
3 and 5: in
3 the witness is to be killed
-
nothing is
more absolute or irrevocable than death; in
5 a guilty judge is to be
expelled from his judge's seat in the assembly and may never resume
that office. But the question remains: why should the witness of
4
remain liable, and what can that mean?
Some scholars have understood the law as being directed against a
lying witness who has come forward with false testimony. They have
based this interpretation on the translation of '^ibiit sarratim in
3 as
"false testimony"^
"^
and on the assumption that "false testimony"
^^Cf., e.g., S. D. Simmons, "Early Old Babylonian Tablets from Harmal and
Elsewhere," Journal
of
Cuneiform Studies 13 (1959) 91 f. and 14 (1960) 23, no. 46:
21-25.
^^Cf., e.g., Eilers,
p.
17: "Wenn ein Burger vor Gericht zu falschem Zeugnis
aufgetreten ist"; A. Pohl
-
R. Follett, Codex Hammurabi (Rome, 1950), p.
12: "Si
(allTquis pro tribunali ad testimonium falsitatis exierit"; Meek,
p.
166: "If a
seignior came forward with false testimony in a case"; W.
J.
Martin, "The Law
Code of Hammurabi," in D. Winton Thomas, ed.. Documents from
Old
Testament Times (Edinburgh/London, 1958), p.
29: "If a citizen in a case has
borne false witness"; Finet,
p.
45: "Si quelqu'un a paru dans un proces pour
(porter) un faux temoignage"; Borger, Rechtsbiicher, p.
45: "Wenn ein Burger
zu falschem Zeugnis auftritt." Our line is also treated this way in the
dictionaries: W. von Soden, Akkadisches Handworterbuch (Wiesbaden, 1959-
82 Ancient Israel and the Ancient Near East
characterizes the nature of the testimony in both
3 and
4.^^
I beUeve
that this translation and interpretation are incorrect. The
aforementioned translation and interpretation take for granted that
the protasis at the beginning of
3 serves as an overall introduction to
both
3 and 4, and that the second protasis and the apodosis of
3
are parallel to
4. But this construction is wrong. For neither is
3b)
^umma dinum M din napistim, "If that case is a capital case," the
counterpart of
4a) ^umma ana '^ibilt ^e'im u kaspim usiam "If he came
forward to bear witness to (a claim for) barley or silver," nor does
3a)
^umma awilum ina dinim ana ^tbilt sarratim usiamma, "If a man came
forward in a case to bear ^ihiit sarratim" provide the common
background of
3 and 4.
To understand why this translation is incorrect and to grasp more
fully the meaning of
3 and 4, we must set out the structure of this text
in a little more detail, ^umma awilum ina dinim ana ^ibilt sarratim
Usiamma
(
3a) introduces only
3.
3 contains a split protasis; ^umma
dinum ^u din napistim
(
3b) forms a second delimiting protasis and
presents the only
-
if most extreme
-
subcategory of ^ihiit sarratim given
in the text.
3a) ^umma (...) ana ^ibilt sarratim usiamma and
4a)
^umma ana ^ibilt ^e'im u kaspim usiam are on the same syntactic and
logical level, and each may serve as a replacement for the other, ana
^ibilt sarratim and ana ^ibut^e'im u kaspim are parallel to each other.
Thus,
4a is functionally equivalent or parallel to
3a. Thus, while
3 and 4 are surely related, they are not a single integrated legal unit
that opens with an introduction
(
3a) laying out a common background,
followed by two parallel sets
(
3b-c,
4) of subsidiary protases
(
3b,
9b: 18-47
// (2)
10: 48-61
// (3)
11: 62-(VIII) 3. Less complicated
and therefore perhaps more clear are
229-231 and
17-20.
229:
64-70 describes a situation in which a house that a builder has built
collapsed (imqutma). This situation is then followed by three instances
of different people being killed by the collapsing house. Each of the
three alternative delimiting protases simply repeats the verb u^tamit,
"has killed," in the perfect
-
not the preterite
-
form and is then
followed by an apodosis. Thus,
229a: 64-70
-
(1)
229b: 71-72
// (2)
230: 73-76
// (3)
231: 77-81.
17-20 treat situations that arise from
the capture of a runaway slave.
17: 49-53 provides this background.
This common protasis is followed by four separate protases presenting
different situations that may then arise, each with its own apodosis:
17a: 49-53
-
(1)
17b: 54-58
// (2)
18: 59-67
// (3)
19: 68-4
// (4)
20: 5-13. In contrast to the preterite verb form of the common protasis
{isbatma, "seized"), the verbs in each of the four delimiting protases
are in the perfect form.
Different are adjoining legal cases that repeat from the initially
stipulated legal situation all or most of the details that apply to the
following cases and make whatever necessary change and insert
whatever additional information is required (e.g.,
162-163). Each
individual case contains a primary protasis and, on the whole, each
case can stand on its own.
3 and 4 are an example of this latter type
of formulation. Actually,
3-4 are part of a group comprising
1-4,
which group presents cases of unproved (Id uktin) accusations
(
1-2)
and testimony
(
3-4).
Having observed, moreover, that a subsidiary protasis, whether
parallel to other subsidiary protases (as in the examples noted above)
or as part of a single split protasis (e.g.,
136), would usually begin not
with a preterite, but with a perfect form of the verb or its equivalent,
we find therein additional support for our conclusion that
4a C^umma
ana ^fbut ^e'im u kaspim usiam) is not a subsection of
3 that stands in
parallelism with
3b (summa dinum M din napistim) but rather is
itself a primary protasis that stands in parallelism to the previously
occurring primary protasis
3a (^umnta awilum ina dinim ana ^ibilt
sarrdtim usiamma). For if
4 were parallel to
3b, it should have
read ^umma ana ^fbut^e'im u kaspim *ittasi (cf., e.g.
136: 64 ff) rather
84
Ancient Israel and the Ancient Near East
than the attested usiam. Hence,
4
// 3, and '^ibilt sarratim and ^ibut
^e'im u kaspim are parallel to each other.
And the relationship which obtains between
4 and 3 is similar
to that between
2 and 1
(
4 :
3 ::
2 :
13 and
4 and may even increase the usefulness of
13 for an
understanding of aran dinim ^uati ittana^i. Students of the Code have
puzzled over which of the parties to the suit is referred to by awilum
su and have come to different conclusions. For example, Driver-Miles
"He Should Continue to Bear the Penalty
of
that Case" 93
think that a w ilum ^u designates the original owner, seller, and
purchaser of the lost property contested in
9 ff.-^^; P. Koschaker^^
and A. Finet-^^ think it the owner and purchaser; E. Szlechter^^ and R.
Westbrook-C. Wilcke-^^ think it the purchaser.
The very real confusion over the identity of awTlum ^w of
13 is due
to the redactional history of
9-13. Thus, we should be able to
determine his identity by taking into account the history of the text.
There can be no doubt that
13 is some form of addition to this section.
Koschaker suggested that
12 is an early interpolation and that
13
was a later accretion or addition to
12.-^^
But the subject of
11 is the
owner while the subject of
12 is the buyer.
13, on the other hand,
seems to be a direct continuation of
11 (cf., e.g., the use of sar [11: 1;