A CASE FOR CALVIN’S SECOND USE OF THE LAW:

THE SIMILARITIES AND DIFFERENCES BETWEEN

THE LAW OF MOSES IN THE TORAH AND THE CODE OF HAMMURABI

The second function of the law is this: at least by fear of punishment to restrain certain men who are untouched by any care for what is just and right unless compelled by hearing the dire threats in the law. … [T]his constrained and forced righteousness is necessary for the public community of men, for whose tranquility the Lord herein provided when he took care that everything be not tumultuously confounded.[1]

Given Calvin’s explanation of the moral law’s second use, we would expect nearly every major culture and ancient civilization to function in some system akin to the moral law.[2] This is the role of the law’s general equity and natural law pervading creation. If cultures, societies, and nations want to thrive, there will be a rule of law the punishes evildoers. Thus the apostle Paul told Timothy (1 Tim 1:8–10, ESV),

Now we know that the law is good, if one uses it lawfully, understanding this, that the law is not laid down for the just but for the lawless and disobedient, for the ungodly and sinners, for the unholy and profane, for those who strike their fathers and mothers, for murderers,  the sexually immoral, men who practice homosexuality, enslavers, liars, perjurers, and whatever else is contrary to sound doctrine.

This list of Paul’s comports especially closely with the 2nd table of the 10 commandments. We should not be surprised at all when we see ancient and modern cultures resembling them as well.

Comparative religions studies thrive off observing similarities between ancient faiths and practices, proposing the root cause of one to the other.[3] Many scholars have touted the ancient Code of Hammurabi (CH) and the Akkadian laws and religion as the basis for Moses’ Law Code in the Pentateuch.[4] And while there is a great deal of commonalities between the two law codes, the differences far outweigh their similarities. It is the distinctions that make one code and religion far superior and, in this case, divinely sourced. This short article will set out to compare and contrast the CH with Moses’ Law in the Pentateuch so as to demonstrate the superiority of the moral and civil codes in the Biblical Torah,[5] while at the same time confirming the second use of the moral law according to Calvin’s three-fold use.[6]

Perhaps the best place to begin is the well-known laws of retaliation or lex talionis in the CH and the Torah (and Jesus himself!). This affords the opportunity to highlight some obvious similarities while at the same time note glaring differences. First appearing in the Covenant Code in Exo 21:23–25, the “X for X” formula is also found in Lev 24:18–22 and Deut 19:21.

Table 1: The X for X Formula in the Torah

Of those in common in all three passages are life, eye, and tooth.[7] Though CH does not contain the Biblical “X for X” formula, the essential elements are present in §196–§201 along with many more of the same surrounding issues as found in the three Torah texts listed above.[8] CH consists of various scenarios of the lex talionis ordered as follows: eye, fracture, eye and fracture, and tooth.[9] Not only is the general principle of retribution the same, but even the same emphasis on the “eye” and “tooth” is present in both CH and Torah.[10]

While the similarities are remarkable, and scholars love to point them out,[11] the differences set the biblical Torah apart as a higher moral standard. The key “X for X” formula found in the lex talionis of Lev 24:20 is crested at the apex of a chiasmus in 24:17–21 (ESV):

A) Whoever takes a human life shall surely be put to death.

   B) Whoever takes an animal’s life shall make it good, life for life.

      C) If anyone injures his neighbor, as he has done it shall be done to him,

         X) fracture for fracture, eye for eye, tooth for tooth;

      C’) whatever injury he has given a person shall be given to him.

   B’) Whoever kills an animal shall make it good,

A’) and whoever kills a person shall be put to death.

Setting the stage of equality through this literary device of bookending, Moses went on to make explicit in 24:22, “You shall have the same rule for the sojourner and for the native, for I am the Lord your God.”

Such equality is completely absent in the lex talionis passages of the CH. The “eye for an eye” scenario is viable only if the offense is between two awilu (noble class; §196). The same is true of a bone fracture or a tooth knocked out between two awilu (§197, §200). However, the rule does not apply to a “commoner” but instead only money is to be paid to the blinded “commoner” (§198). Less silver is required if it happens to a slave (§199). On the other hand, Exodus recounts the same scenario wherein the slave who is blinded is set free (Exo 21:26). The disparity between the awilu class, commoners, and slaves of the CH is in direct contradistinction to the Torah.

We observe the 6th commandment at work in both civil codes. Matters of striking others, such as pregnant women or parents, are quite dissimilar as well. If an awilu strikes a female of the awilu-class and causes miscarriage, he must pay a fine; less so for killing the fetus of a commoner (§211) and even lesser for a slave (§213). In Exod. 21:22–23, a similar scenario is offered where if the woman is struck in a brawl and the fetus is unharmed, there is still a fine to be set by a judge. However, if the incident leads to a miscarriage, death is the penalty for the assailant. Another alarming difference is the case of a child striking his parent. In the CH, such an act is punishable by cutting the hand off (§195), whereas in Exo 21:15 the child is to be put to death.

These same similarities and disparities between the Torah and CH are also observed in the very next passage after the lex talionis in the Covenant Code concerning ox goring. Exodus 21:28–32 makes it clear that any occasion an ox gores another human being, the ox is to be stoned to death. However, there are varying degrees of punishment for the owner of the ox. If it seems to be a freak occurrence completely unexpected, the owner is not liable (but the ox is stoned). However, if the owner was warned of the goring tendencies of the ox, then the owner is liable to the punishment of death. CH §250, on the other hand, leaves no one or nothing culpable for a freak accident. For instance, if an awilu is gored by a known gorer and the owner had been notified, then the ox’s owner only owes money (§251). The payment is less if it is a slave (§252). Nothing is said of the ox in either case. The Torah similarly treats the goring of slaves, except it requires a higher price for the life of the slave; however, the ox is stoned to death (Exo 21:32).

Sexual ethics rooted in the 7th commandment is also a good standard for comparison. Both the Torah and CH seem to uphold the wickedness of conjugal relations with one’s father’s wife (e.g. mother) for which the penalty is death for both parties (Lev 20:11 and §157). However, the CH leniently only banishes a man for relations with his own daughter (§154). Though this scenario is not listed in either Lev 18 or 20, it was perhaps assumed that death was the penalty since other more distant relationships were punishable by death, such as carnally knowing one’s daughter-in-law (Lev 20:12). How much more, then, for knowing one’s own daughter!

Calvin is famous for many things in theology and biblical studies, one of them being the development of the three-fold use of the moral law. The second use is of great value as it concerns the CH and its civil purpose and social setting in Akkad:

The second function of the law is this: at least by fear of punishment to restrain certain men who are untouched by any care for what is just and right unless compelled by hearing the dire threats in the law. But they are restrained, not because their inner mind is stirred or affected, but because, being bridled, so to speak, they keep their hands from outward activity, and hold inside the depravity that otherwise they would wantonly have indulged.[12]

While in comparison with the law handed down to Moses at Sinai, the CH is lacking the equity in many circumstances. Despite that, the similarities and treatment of many of the same ethical matters display the moral law written on their hearts (Rom 2:14–15). And as Calvin noted, such a law as found in the CH was a deterrent to keep evil at bay and allow its civilization to flourish.

As such, it seems all the clearer that the law as given by YHWH to Israel is morally, ethically, and civilly superior for all parties and classes of people.[13] The famed OT theologian Gerhard von Rad said, “Compared with the penalties given in the Codex Hammruabi, which are variously graded according to the social standing of the guilty party, it is remarkable to how very much greater a degree the Book of the Covenant presupposed equal rights of all before the law, and the idea of common solidarity.”[14] This is in large part (if not the whole) due to the fact that each human, no matter his or her social status, is consider to bear the imago dei. While some might contend that the opinion of a superior law is jaded by the enculturation of Western, Christian values as represented in the Torah, it is nevertheless confirmed by the law written on every human heart concerning the dignity and equity among all persons. The disparity of inherent human worth in the CH only confirms Calvin’s thought of “the depravity that otherwise they would wantonly have indulged.”

[1] John Calvin, Institutes of the Christian Religion, II.7.10.

[2] See Rom 2:14–15 ESV, “For when Gentiles, who do not have the law, by nature do what the law requires, they are a law to themselves, even though they do not have the law. 15 They show that the work of the law is written on their hearts, while their conscience also bears witness, and their conflicting thoughts accuse or even excuse them.”

[3] A pertinent example relating to the Code of Hammurabi as restated from various other ancient Mesopotamian law codes is Barry L. Eichler, “Examples of Restatement in the Laws of Hammurabi,” in Mishneh Todah: Studies in Deuteronomy and Its Cultural Environment in Honor of Jeffrey H. Tigay, ed. Nili Sacher Fox, David A. Glatt-Gilad, and Michael J. Williams (Winona Lake: Eisenbrauns, 2009), 365–400.

[4] Since the stele containing the CH was discovered in 1902, it was the subject of much inquiry early on. The most recent example of dependency is David Wright’s recent book where he stated at the very outset, “[T]his law collection, the pinnacle of revelation at Mount Sinai according to the story of Exodus 19–24, is directly, primarily, and throughout dependent upon the Laws of Hammurabi.” David P. Wright, Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi (New York: Oxford University Press, 2009), 3. A good overview of the various theories and views as well as the history of archeology related to the CH, see J McKee Adams, “Archaeology and the Laws of Moses,” RevExp 42.2 (1945): 165–82.

[5] Such was the conclusion of Mordecai Zer-Kavod, “The Code of Hammurabi and the Laws of the Torah,” JBQ 26.2 (1998): 107–10.

[6] John Calvin, Institutes of the Christian Religion, ed. John T. McNeill, trans. Ford Lewis Battles (Louisville, KY: Westminster John Knox Press, 2006), 358–60.

[7] However, “life for life” in Lev. 24:18 is set off and interrupted from the rest of the list. See Bernon Lee, “Unity in Diversity: The Literary Function of the Formula of Retaliation in Leviticus 24.14–22,” JSOT 38.3 (2014): 298.

[8] See William W. Hallo, ed., Context of Scripture, 3 vols. (Leiden: Brill, 2003), II:348, for example:
§196 If an awilu should blind the eye of another awilu, they shall blind his eye.
§197 If he should break the bone of another awilu, they shall break his bone.

[9] Cutting off the hand is mentioned just previously in §195 of a child striking his father.

[10] Perhaps this ancient history plays into the worldview and verbiage of eye and tooth expressed by Jesus in Matt 5:38 (ESV), “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’” Jesus went on to mention the famous “turn the other cheek” saying perhaps patterned after CH §202–§205. Also, of significance is that in the same discourse of the Sermon on the Mount, Jesus mentions just previously plucking out one’s eye and cutting off one’s hand (Matt 5:29–30).

[11] Early in the 20^th century, even scholars just learning about the Code of Hammurabi were struggling to reckon with which influenced which: Moses or Hammurabi? Cook dedicated an entire chapter to the problem in his early work: Stanley A. Cook, The Laws of Moses and the Code of Ḫammurabi (London: Adam and Charles Black, 1903), 20–47.

[12] Calvin, Calvin, 358.

[13] This was certainly the conclusion reached by William Wallace Everts, “The Laws of Moses and of Hammurabi,” RevExp 17.1 (1920): 37–50.

[14] Gerhard von Rad, Old Testament Theology, 2 vols. (Peabody, MA: Prince Press, 2005), I:32.

Timothy Decker

Dr. Timothy Decker is one of the pastors of Trinity Reformed Baptist Church of Roanoke, VA, having joined them in 2018. He holds a B.A. and M.A. biblical studies from Carolina University (formerly Piedmont International University), a Th.M. in New Testament from Southeastern Baptist Theological Seminary, and a Ph.D. in biblical studies from Capital Seminary and Graduate School. In his dissertation research, he examined the style of biblical Hebrew poetry in the New Testament. He has presented various papers at academic society meetings and authored numerous articles in several different scholarly journals. He is a member of ETS and IBR. When he is not reading or researching, he enjoys spending time with his wife and four children.

 

Courses taught at CBTSeminary: Elementary Greek I, Elementary Greek II