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Spring 2007 -  Will Durant and ancient law

Fall 2006 - Genrikh Altshuller and TRIZ

Will Durant and ancient law

While doing research for a term paper comparing ancient Babylonian law with the Mosaic law, a startling statement by Will Durant in Our Oriental Heritage came to light. It is the author's hope that this article (adapted from the term paper) not only will uphold the claim of the divine authorship of the Bible, but will reveal that even the most "neutral" person presupposes certain foundational truths, and builds their view of reality upon them.

A Comparison of the Code of Hammurabi with the Mosaic Law of the Pentateuch

by Darren Camp

 Will Durant, in his summary of each of the individual Ten Commandments, makes the claim that "the Mosaic Code…shows no advance, in criminal legislation, upon the Code of Hammurabi" (Durant 338). The purpose of this article is to show that there are at least four areas where significant advancement in criminal legislation can be readily seen in the Mosaic Law. The four areas that will be examined for evidence of advancement in criminal legislation are:

a)     Near elimination of maiming as a form of punishment.

b)     Elimination of the ordeal as a means of determination of guilt.

c)     Establishment of rights and liberties of slaves.

d)     Equity and motivation of punishment

Maiming as punishment

A minor, yet still significant, advancement in the Mosaic Law over the Code of Hammurabi is seen in the extent to which maiming is used as punishment. The Code of Hammurabi includes five cases of maiming as punishment, including 2 cases of cutting off of both hands, 2 of cutting off of an ear, and one of cutting out the tongue. The Mosaic Law prescribes cutting off of one hand only and in one solitary case only. Maiming of the body is treated throughout the Mosaic Law as abnormal and offensive to God, the laws specifying an eye for an eye and a tooth for a tooth not withstanding, as we will later see.

Trial by Ordeal

A far more significant advancement is in regards to the ancient practice of “trial by ordeal”. This type of trial was used to determine guilt or innocence of one or more parties in a criminal case, or perhaps, as Durant has implied, just to put an end to the matter (Durant 28). We find such a trial in the code of Hammurabi, wherein the suspect was thrown into the river Tigris or Euphrates, and if the river “allowed them to live”, their innocence was considered proven. Obviously, many innocent people drowned, and at times, it is probable, that the guilty went free. The obvious problem with this type of legal action, to the enlightened modern mind, is that this type of trial places even the innocent person in a dangerous and often, as in this case, life-threatening situation because it requires a phenomenal occurrence or supernatural intervention to prevent the innocent party from suffering the sentence of guilt. Another common occurrence in ancient history was that the suspect was made to drink poison, and if they survived the poisoning without harm, their innocence was proven, or vise-versa. This is what Durant mistakenly assumes to be the case in the Mosaic Law (Durant 338) in what is sometimes called the Biblical law of jealousy (Rushdoony 607); however, there is no justification for this assumption. The law is found in Numbers 5:12-31 and is too lengthy to give in full here. It requires a woman who is suspected of adultery by her husband to swallow a drink given her by the priest acting as arbiter, but, as Selbie says “the ingredients employed are innocuous” (quoted in Rushdoony 607). They were simply water and dust. In regards to endangering the innocent, this ritual of Mosaic Law is the inverse of the ancient ordeal, in that it required divine intervention in order for it to have any negative or dangerous effect (Rushdoony 607). Thus we can conclude that the jealousy ritual of the Mosaic Law, because it never endangered the innocent person, does not even remotely resemble the trial by ordeal in its ancient form which not only endangered the innocent but obviously resulted in the death of many innocent people and, at times, the justification of the guilty. Certainly the entire elimination of the trial by ordeal must be considered an advance in criminal legislation. This was, in fact, an astounding legislative achievement for its time.

Basic Rights of Slaves

Although the text of the Code of Hammurabi that is available does not explicitly state that slaves are property, and the Mosaic law does, when we compare the specific laws dealing with slavery, we find some astonishing and profound differences between the status of slaves under these two systems of law. We can see this in what punishment is prescribed or prohibited in dealing with slavery in these three areas: injury of a slave, killing of a slave, and harboring of slaves.

Harboring of slaves under the Code of Hammurabi was punished with the ultimate severity: "If he hold the slaves in his house, and they are caught there, he shall be put to death." (Hammurabi 19). This is the standard punishment for theft of another person’s property under Hammurabi. However, the Mosaic Law declares the opposite: “If a slave has taken refuge with you, do not hand him over to his master.” (New International Version, Deuteronomy 23:15). Although no punishment was specified for disobeying this law, the significance of it cannot be overlooked. Furthermore, it would appear the Babylonian who found slaves was liable if they got away, and had to swear to the owner (we would assume: that he hadn’t allowed it) in order to be free of blame (Hammurabi 19), but had to be rewarded if he returned them to their owner. However, the Israelite who found another’s slave could not restrain or hinder the free movement of the slave (Deuteronomy 23:1) nor was there any reward required by law for returning them.

The difference in how an injury to a slave is handled is significant also. Harm to a slave under the rule of Hammurabi was handled only as a case of damage to another mans property. Although the law required payment to a doctor for healing a slave (at 2/5ths the rate of a free-born man), there was no legal restitution required to the slave in any case of injury to him, but restitution was required to the owner: "If he put out the eye of a man's slave, or break the bone of a man's slave, he shall pay one-half of its value" (Hammurabi 199). However, if a slave "knocked out the teeth of his equal, his teeth shall be knocked out" (Hammurabi 200).

Because the Mosaic Law never differentiated between people of different status, (it was forbidden to do so), injury to a slave was treated virtually the same as the free man. They could be beaten by their master, but a free man could be beaten as punishment also. However, if a Israelite master maimed his slave, he had to grant him freedom: "If a man hits a manservant or maidservant in the eye and destroys it, he must let the servant go free to compensate for the eye.  And if he knocks out the tooth of a manservant or maidservant, he must let the servant go free to compensate for the tooth." (Exodus 21:26-27) This would probably be applied in a case where a slave was working to pay off debt, because, as we have seen, there were no laws against a slave leaving an unmerciful or cruel master. In fact such fugitives were to be given liberty to live where they wished (Rushdoony 137): "Let him live among you wherever he likes and in whatever town he chooses. Do not oppress him." (Deuteronomy 21:16)

Differences in legislation regarding the killing of slaves appear to be as significant as the differences in the handling of an injury to them: again, in the Code of Hammurabi, the slave is merely property with a fixed value. There we see that the killing of a slave through malpractice or maltreatment during imprisonment required providing a replacement to the owner (Hammurabi 116, 219, 231), but not the death or maiming of the offender, as in the case of a free man (Hammurabi 116, 218, 229). The Mosaic Law required the Israelite master who had killed a slave due to maltreatment to be punished, presumably according to the same laws as the free man, although the passage dealing with the case doesn’t specifically say: "If a man beats his male or female slave with a rod and the slave dies as a direct result, he must be punished, but he is not to be punished if the slave gets up after a day or two, since the slave is his property." (Exodus 21:20). Again, we have seen that even though this passage classifies the slave under the Mosaic Law as property, they obviously had real and permanent rights that were protected just as strongly by the law as those of the free man.

The Mosaic Law repeatedly declares that there is to be one law for all people: "The same laws and regulations will apply both to you and to the alien living among you." (Numbers 15:16) Legislation such as seen above keeps this command from being hollow words. The person who injured a slave had an obligation to that slave to see to that they were healed. Additionally slaves enjoyed and participated in all positive legislation: they rested one day a week, partook in all celebrations and religious ceremonies, and even inherited property.

Equity and Motivation of Punishment

Probably the most striking difference in the area of penal law between Code of Hammurabi and the Mosaic Law (and the last we will observe here) is the position of law towards the innocent relatives of criminals and malpractitioners, and I believe this will lead us to an understanding of the motive of punishment found in them.

Under the Babylonian law, a person who was in no way culpable of the crime committed could be the recipient of the punishment, even of the most severe penalties. For instance, the son or the daughter of a man who had murdered a free-born person would be executed for the crime of their father (depending on the sex of the victim). Another example is that the son of a builder whose poor workmanship had caused the death of the occupant’s son would be put to death for the carelessness of his father.

If judged by Biblical standards and those of Western civilization, we would say this is a gross misappropriation of punishment by the Babylonian law-code. Historians credit the Hammurabi with the “innovation” of the “Lex Talionus” and some view it in his code as requiring punishment equal to the crime and even view it as an advance. Gale’s Historic World Leaders states “Hammurabi's laws and edicts … marked a considerable advance over previous [codes], containing two major changes from earlier codes. The first innovation is the so-called Principle of Talion (Lex Talionis), in which the punishment meted out was equal to the offense committed.” However, such punishments as the execution of innocent people make it difficult to conceive of the principle found here in Hammurabi as anything less than retribution, since deterrence would be the other only logical explanation and that seems unlikely.  The idea arouses Durant’s cynicism and he ascribes the primeval urge to satisfy the thirst for personal revenge to both the Code of Hammurabi and the Mosaic Law: “This principle of revenge persists throughout the history of law: it appears in the Lex Talionus – or Law of Retaliation – embodied in Roman Law; it plays a large role in the Code of Hammurabi, and in the ‘Mosaic’ demand of ‘an eye for an eye and a tooth for a tooth’ and it lurks behind most legal punishments of our day.” In fact, Durant quotes verbatim the words of the God of the Bible as being those of the “primitive individual” seeking personal revenge. (Durant 27). However, it is not difficult to show that such is not the case of the Mosaic Law, and therefore, one must wonder if such a statement by Durant is a lack of knowledge concerning the Bible or just simple bigotry.

Although cynicism is by far one of Durant’s most outstanding characteristics, hopefully most would, as Durant does, find such a base desire for revenge offensive; but at this point the question begging to be asked is this: how did modern man develop this sense of justice? Ironically, what we find, when we actually read the words of the Bible, is that when the transcendent God (as he is presented in the Bible) makes such a declaration as quoted, he is in fact denying man any right to personal vengeance. The Mosaic Law expressly forbids seeking vengeance:  “Do not seek revenge”, and instead prescribes in the same sentence that each person should “love your neighbor as yourself” (Leviticus 19:18). This applied to every man, slave, master, priest, judge, king, all. God alone may claim the right to vengeance because he is transcendent and all-knowing, as well as perfect in all His judgments; all of these characteristics which man does not possess. This is why, to bring the point full circle, God explicitly declares that “Fathers shall not be put to death for their children, nor children put to death for their fathers; each is to die for his own sin.” (Deuteronomy 24:16). Thus we see that the Mosaic Law prevents one of the most extreme forms retaliation which had become codified into law in the Code of Hammurabi: punishing innocent people (i.e. those who had no part in a crime) for the crimes of others. Most importantly we see that, perhaps, even Durant’s indignation against personal revenge has as its basis that foundation of Western Civilization, the Christian Bible.

In regards to what Durant (and others) have categorized as the principle of Lex Talionis in the Mosaic law, we find what should be obvious in light of the commandment just quoted as forbidding personal revenge, that the prescribing of an eye for an eye and a tooth for a tooth, etc. is not an admonition, encouragement or instruction to seek personal vengeance for wrongs done, but instead, it is a commandment to make sure that the punishment is fitting of the crime. This is plainly seen in this passage of the Mosaic Law from Leviticus 24:

17 " 'If anyone takes the life of a human being, he must be put to death. 18 Anyone who takes the life of someone's animal must make restitution—life for life. 19 If anyone injures his neighbor, whatever he has done must be done to him: 20 fracture for fracture, eye for eye, tooth for tooth. As he has injured the other, so he is to be injured. 21 Whoever kills an animal must make restitution, but whoever kills a man must be put to death. 22 You are to have the same law for the alien and the native-born. I am the LORD your God.' "

Here the goal of the law is plainly stated: restitution. Not retaliation. How? Life for life; but this is not in every case a literal exchange of one life for another, or one eye for another (as would be the case for retaliation). For example, we see plainly in this same passage that “life for life” in the case of the killing of someone’s animal means making restitution (v18, 21), which is defined by Webster’s thus: The act of making good, or of giving an equivalent, for any loss, damage, or injury; reimbursement; indemnification.

Christ made it clear that the Judaic traditions, as manifested in His day, had perverted this command for equitable punishment for a crime to justify one’s personal desire for petty revenge for personal offences. His response to such twisting of the law was to echo the Mosaic commandment not to seek vengeance, and even go so far as to turn the cheek to such offences (Matthew 5:38-39). However, He was not negating the principle of equitable punishment set forth in the Mosaic Law.

Thus one can see (even from a cursory examination of these two law codes) some of the differences between the criminal legislation set forth in the Code of Hammurabi and Mosaic Law of the Bible. In light of such significant distinctions between these two codices as have been shown here, it is clear that Durant’s claim that the Mosaic Law represent “no advancement in criminal legislation” is nothing less than astonishing, and unfounded. In fact, even a brief comparison such as this reveals that there is much in common, not between Hammurabi and Mosaic Law, but between the Mosaic Law and our modern idea of justice and fair law.

Works Cited

Hammurabi’s Code, Exploring Ancient World Cultures. trans L.W.King. http://eawc.evansville.edu/anthology/hammurabi.htm

"Hammurabi." Historic World Leaders. Gale Research, 1994.
Reproduced in Biography Resource Center. Farmington Hills, Mich.: Thomson Gale. 2006. http://galenet.galegroup.com/servlet/BioRC Document Number: K1616000261

Holy Bible, New International Version. Copyright © 1973, 1978, 1984 International Bible Society. http://www.biblegateway.com/versions/?action=getVersionInfo&vid=31

Durant, Will. Our Oriental Heritage. New York: Simon & Schuster. 1954.

Rushdoony, R.J. Institutes of Biblical Law. Presbyterian and Reformed Publishing. 1990.

Selbie, J.A. “Ordeal (Hebrew)” in ERE, IX, 521. (quoted in Rushdoony, 607)

Webster’s New 20th Century Dictionary, Cleveland & New York: World Publishing Co. 1960.

Genrikh Altshuller and TRIZ

Recently while studying the extensive body of knowledge known as Product Management / Development, we came across another fascinating Russian by the name of Genrikh Altshuller (1926-1998). Altshuller was an inventor who reasoned that there must be a systematic approach to invention, contrary to the popular idea that it was a talent you were born with, or a momentary burst of brilliance. Through his job, he was able to build a database of hundreds of thousands of inventions and from this research developed an algorithmic approach to inventive problem solving. This came to be known by the acronym TRIZ (Theory of the Solution of Inventive-type Problems. pronounced treez).

While this concept in itself is extremely fascinating, Altshuller's suffering under communist rule is equally fascinating, especially his response to his circumstances. He was imprisoned just shortly after he presented his ideas directly to Josef Stalin. Yet he continued to develop his new theories while imprisoned, using them to help both himself and those around him survive, and even grow intellectually.

Today, TRIZ is gaining wider acceptance as an invaluable tool for problem-solving in product design and development that is proving to be much more successful than commonly used techniques such as hit-and-miss and brain-storming. More than 60,000 engineers worldwide have been trained in TRIZ problem-solving techniques3.

Altschuller's introduction to TRIZ, And Suddenly the Inventor Appeared (excerpt, purchase) has been translated into English and is a great resource for young adults also.

Additionally, a development of TRIZ, called Guided Problem Solving (GPS) has been used very successfully in teaching young students creative problem-solving skills.

Additional information:

Genrikh Altshuller info on the Chi-Rho Booksite

Altshuller Institute for TRIZ Studies

TRIZ Journal


  1. Lerner, Leonid - Genrikh Altshuller: Father of TRIZ
  2. Kowalick, James Kowalick, Ph.D., Technical Director, The Leonardo da Vinci Institute - Creativity Breakthroughs With Children Using Higher Level Thinking
  3. Amazon.com Editorial Reviews for And Suddenly the Inventor Appeared

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