By Stephen Gabriel Rosenberg
W.F.Albright Institute of Archaeological Research, Jerusalem
The Covenant Code in Exodus 21–23 contains three references to haElohim in relation to property laws. Elohim is the sacred name of God, as used elsewhere, and haElohim could be translated as "the gods," though here it seems to mean something else.
Firstly, the Code tells us that a slave who wants to remain with his master is to be taken to haElohim before piercing his ear with an awl (21:6). In the second case, where a householder gives an article to another for safekeeping, and it is stolen from the latter, the safekeeper has to swear in front of haElohim that he did not appropriate it but that it was stolen from him (22:7). In another case, where two people dispute ownership of an article, they have to come before haElohim, and Elohim will decide the rights and wrongs of the matter (22:8).
The traditional view, as shown by Rashi, the 11th century Jewish commentator, basing himself on earlier Rabbinic opinion, is that in these cases we assume that the slave, the safekeeper and the disputing owners are brought before "the judges", and not before God Himself. The King James's Bible also translates the word as "judges" whereas the New English Bible uses the word "God." Of course that is the literal translation but what would it mean? It might mean to come before one of the Priests in the Tabernacle, or before the High Priest himself, but that would hardly be practical. And the question must then be posed, if it really means judges, why does the Code not use the word Pelilim, seeing that is the word for judges and is clearly used in that sense in the case of injury to a pregnant woman, when her foetus is lost but no further injury ensues (21:22)?
It is well documented that many of the cases in the Covenant Code are similar to ones in the Code of Hammurabi, dating to about 1750 BCE. (ANET 166-177). That also speaks about ownership of slaves, borrowing and lending rights, injuries by goring oxen and cases of stealing and personal injury or worse. However, local slaves only serve for three years, not seven, and if a male slave wrongly denies his master, then his ear is cut off (law 282), while our Hebrew slave who wants to remain with his master, has his ear pierced before haElohim. Slaves and ears seem to go together.
Hammurabi uses a similar terminology in connection with a borrower who disputes the money that he owes (law 106). In that case the lender has to appear "in the presence of god and witnesses" and prove that he lent the money, before he can recover it. It is similar with the owner and safekeeper of disputed articles (law 107).
What does Hammurabi mean by appearing "in the presence of god"? And the broader question is then, why do the Covenant Code and Hammurabi both use a divine name for what appears to mean ordinary everyday judges?
In my view, the answer is to be found in the earlier code of Eshnunna, dating to about 2000 BCE. Eshnunna was a city near to present day Baghdad and the code of laws that we have contains 59 readable ones (ANET 161-163). Some of its laws are close to the Covenant Code. For instance, no.53 states that if one ox gores another to death, the owners shall divide between themselves the value of the live and the dead oxen. This is exactly the same as Exodus 21:35.
In another case (no.37), similar to Exodus 22:7, if a householder has accepted someone else's property for safekeeping into his house and it is then stolen, together with his own property, in order not to be liable for the loss to the original owner, he has to go to swear an oath "in the gate of Tishpak" that he himself did not misappropriate the object.
Tishpak was the name of the chief god of Eshnunna (ANET 163 note 11) and so it is that the householder has to go to the gate of the city, named after its god, where obviously the judges sit in public to dispense the law (cf. Ruth 4:1ff) and swear his oath in front of them, at "the gate of (the god) Tishpak."
I think one can say that in Hammurabi law, in civil cases like the above, to appear "in the presence of god" would mean going in front of the judges at the gate of the city, exactly what Rashi and the Rabbis say that "haElohim" means in the Covenant Code. And the reason why the Bible uses the more explicit Pelilim in the case of injury to the pregnant woman is because it is different from the similar Hammurabi laws (nos. 209 and 211) which lay down a fixed penalty for the injury, and there is no need to seek an adjudication by going before "the presence of god."