Page:American Journal of Sociology Volume 9.djvu/777

 THE LA WS OF HAMMURABI 747

(Exod., chaps. 21-23), anc ^ the deuteronomic code (Deut., chaps. 5-26, 28), but detects more direct Babylonian influence upon the post-exilic precepts (Ezek., chaps. 40 f.) and the post- canonical, talmudic law. 1 Miiller, after tabulating scores of more or less precarious parallels between the Babylonian and Mosaic codes, postulates an ancient written code from which both are derived. The Pentateuch is declared to be nearer the original than are the laws of Hammurabi. The same author also com- pares the Babylonian code with the laws of the Twelve Tables, and tentatively suggests a direct relation between the two. 2 Johnston surmises that the code of Hammurabi, which must have been the common law of Canaan, was in many ways taken up from the social environment into the Mosaic laws. 3 Sayce explains the otherwise somewhat unintelligible conduct of the patriarchs on this same hypothesis, although, as has been said, he rejects the inference from it. 4 The more definite and conclu- sive results which are sure to emerge from a comparative study of Semitic institutions under the stimulus of the newly discov- ered code will be awaited with much interest.

The other field of parallelisms is as wide as the world itself. The scope of this article forbids more than the suggestion of a few typical illustrations. Ethnologists and folk-psychologists have accumulated a mass of materials with which many sections of the Babylonian code may be either duplicated or closely matched. This is true especially of the laws relating to the talio, slavery, and the family. In most respects the commercial and industrial sections are to be compared with English law in the time of Edward I., rather than with the legislation of a less advanced people. The decree of the Hammurabi code (7, 123) that only sales before witnesses were legal finds its counterpart in the old English law which compelled cattle- dealers especially to traffic openly and before witnesses. 5 This

1 Op. tit., pp. 42-47. a Op. tit., pp. 7, 210.

3 JOHNSTON: "The Laws of Hammurabi and the Mosaic Code," Johns Hopkins University Circulars, June, 1903, p. 60.

4 The treatment of Hagar by Sarah, while unauthorized by the Mosaic law, is strictly in harmony with Ham., 146 ; cf. SAYCE, op. cit., p. 261.

s POLLOCK AND MAITLAND, History of English Law, Vol. II, p. 184.