156 HAROLD M. WIENER, LL.B., ON THE 



system could far better stand a comparison with the law-books 

 of India, the law of Imperial Eome or the law of England in, 

 say, the eighteenth century, than with the work of him whose 

 labours were directed to teaching that " man doth not live by 

 bread only, but by all that cometh out of the mouth of the 

 Lord doth man live."* 



In dealing with the second division of my subject, it is not 

 my intention to answer those who maintain that Hebrew law 

 was borrowed from or greatly influenced by the Babylonian 

 system. Such a theory is so absolutely preposterous on the 

 face of the legislations, that no comparative jurist could be 

 found to defend it, and I should not be justified in wasting the 

 time of this Society in discussions of this nature. A word may, 

 however, be given to the patriarchal customs evidenced by the 

 book of Genesis. It is sometimes said that the patriarchs 

 lived under the code of Hammurabi. This result is attained 

 by the familiar method of emphasising such portions of the 

 evidence as appear to support the theory, while leaving out of 

 account all the other relevant facts. For example, the Hebrew 

 patriarch, like the Eoman 'pater familias, exercised absolute 

 powers of life and death over the members of his household^ 

 including his children and daughters-in-law. The code of 

 Hammurabi, on the other hand, shows us a society in which 

 the paternal power had long since been reduced to more 

 moderate dimensions. There can, therefore, be no question of 

 the code's being the law of the patriarchs. On the other hand,, 

 there are resemblances between the early Hebrew customs and 

 the Babylonian law ; and it is not impossible that these are due 

 either to community of origin or to direct influence. 



The comparisons I have to suggest will, I trust, be more 

 fruitful of historical profit than any speculations of influence 

 which are fore-doomed to sterility. I purpose to take up the 

 factors and influences in the formation of the legislation that 

 we have seen at work in Babylonia, and show how they operated 

 in ancient Israel. But this process can only be repeated with 

 a necessary difference. While in the older system we had 

 only to note the uncontrolled operation of such ideas as the 

 conception of talion, in the younger we should continually have 

 to stop to examine the checks and restraints that were imposed 

 on them by the theory of legislation that inspires the work 

 throughout. 



It is for this reason that before embarking on the considera- 



* Dt. viii, 3, 



