The Torah and Ancient Near Eastern Culture

  • Rav Chaim Navon
The Israel Koschitzky Virtual Beit Midrash

Theological Issues In Sefer Bereishit

Yeshivat Har Etzion

LECTURE #6: The Torah and Ancient Near Eastern Culture

By Rav Chaim Navon


Traditional biblical commentators as well as academic scholars have noted the problematic nature of the description of the creation of the fifth day:

And God said, Let the waters swarm abundantly with moving creatures that have life, and let birds fly above the earth in the open firmament of heaven. And God created the great Taninim, and every living creature that moves, which the waters brought forth abundantly, after their kind, and every winged bird after its kind; and God saw that it was good. (Bereishit 1:20-21)

The reference made here to the "great Taninim" poses a serious exegetical difficulty. The verse does not specify all the species of animals created on that day; why then were the great Taninim singled out for special mention? And furthermore, the term "beri'a" ("creation"), apart from in verse 1, is used solely in connection with the creation of man and the creation of the great Taninim; what is so special about these animals?

Our commentators related to the uniqueness of the Taninim:

"The Taninim" - the large fishes that are in the sea. And according to the statement of the Agada it means here the Leviathan and its consort, which the Holy One, blessed be He, created male and female. He, however, killed the female and preserved it in salt for the benefit of the righteous in the time to come, for had they been permitted to be fruitful and to multiply the world could not have endured because of them. (Rashi)

Rashi offers two explanations. According to the first explanation, we are dealing here with a whole category of creatures. According to the second explanation, we are dealing here with a specific animal, and there is a special reason that this animal was singled out from among all others.

Ramban focuses on the second question raised above, namely, why is the term "beri'a" used here:

Because of the great size of these Taninim, some consisting of many Persian miles... on account of that, Scripture explicitly ascribes their creation to God for He brought them forth from nought from the beginning, as I have explained the expression beri'a (creation). Similarly, Scripture does so in the case of man on account of his exaltedness, thus informing us that man, with his mind and reason, also came forth from nought. (Ramban)

Seforno suggests a different answer:

The generative potential which was present in the water (as endowed by God), was not sufficient to bring forth the first Taninim without seed, until [God] created at that time sufficient potential [power] to do so. (Seforno)

According to Seforno, it was generally the water or the earth that brought forth the various creatures in compliance with God's command. The Taninim, however, which appear to have been especially huge creatures, required God's personal involvement of God, because the water was not sufficiently powerful to create them.

One of the leading biblical scholars in recent generations, Prof. Umberto Cassuto, adduced support from this verse for his basic approach:

Throughout the whole section only the general categories of plants and animals are mentioned, but not the separate species, save the sea monsters. This exception has not been made, we may be sure, without a specific motive. Here, too, it would seem, the Torah intended to sound a protest, as it were, against concepts that were current among the Gentiles, and to a certain extent even among the Israelites, but which were not in accord with its own spirit. In Egypt, in Mesopotamia, all sorts of legends used to be recounted about the battles of the great gods against the sea dragon and similar monsters. The Ugaritic epics mention among the enemies of Baal, along with the god Mot - his chief foe - and the lord of the sea, a number of different monsters like the Dragon, Leviathan the Fleeing Serpent, the Twisting Serpent, and similar creatures. In Israelitic circles, the tradition concerning the sea monsters and their confederates assumed an aspect in keeping with the spirit of Israel. No longer do divine forces oppose the supreme godhead, but, following the same principle as in the case of the lord of the sea, Scripture depicts them as creatures in revolt against their Maker… It voices its protest in its own quiet manner, relating: "So God created the great sea monsters." It is as though the Torah said, in effect: Far be it from any one to suppose that the sea monsters were mythological beings opposed to God or in revolt against Him; they were as natural as the rest of the creatures, and were formed in their proper time and in their proper place by the word of the Creator, in order that they might fulfill His will like the other created beings. (U. Cassuto, From Adam to Noah, pp. 49-51)

Cassuto explains: the Torah speaks of the Taninim (and it may be added that it uses the term "beri'a") in order to combat an idolatrous idea that was prevalent at the time. It was commonly accepted that the Taninim were divine sea monsters that fought against the Creator. The Torah emphasizes that the Taninim were animals created by God, like all the other creatures in the world. In this spirit, Cassuto also explains the verses describing the gathering of the water into one place on the third day of creation as coming to reject the notion that the sea - or the "angel of the sea" - fought against God as an equal.

Cassuto argues that the Torah does not totally reject this mythological tradition; but rather it modifies it. "New ideas were attached to it in consonance with the conscience and ethos of the Hebrew people" (U. Cassuto, Biblical and Oriental Studies, vol. II, p. 98). According to Cassuto, the Torah continues to use the Tanin and Leviathan as symbols of the forces of evil against which God contends. The Torah eradicates the idolatrous meaning of these myths and turns them into a symbol of the war against the forces of evil and suffering.

What is the source of Cassuto's claim that the Torah continues to use these ancient Canaanite symbols? He adduces many verses and midrashim that relate to these myths:

On that day the Lord with His sore and great and strong sword shall punish Leviathan the flying serpent, and Leviathan that crooked serpent; and He shall slay the Tanin that is in the sea. (Yeshaya 27:1)

Awake, awake, put on strength, O arm of the Lord; awake, as in the ancient days, in the generations of old. Are you not it that has cut Rachav in pieces, and wounded the Tanin? (Yeshaya 51:9-10)

You divided the sea by Your strength; You broke the heads of the sea monsters in the waters. You crushed the heads of Leviathan; you gave him for food to the desert people. (Tehilim 74:13-14)

Many other verses and midrashim describe God's struggle with the angel of the sea, as well as His encounters with the Taninim and the Leviathan. We shall suffice with one such midrash:

At the time when the Holy One, blessed be He, wanted to create the world, He said to the patron-angel of the sea: "Open your mouth and swallow up all the waters of the world." [The angel] said to Him: "Master of the Universe! It is enough if I can manage [to swallow] my own [seawater]." Immediately [God] kicked him and killed him, as it says: "He split the sea with His might and with His understanding He smote Rachav" (Iyov 26:12). (Bava Batra 74b)

Basing himself on various Scriptural proof-texts, Cassuto further argues that the Torah usually brings these descriptions in the context of a moral or national war. These sea monsters symbolize the enemies of good, as well as the enemies of Israel. We shall summarize Cassuto's argument: The Torah does not ignore the Canaanite civilization that preceded it. On the one hand, the Torah fights against the idolatry that so pervades Canaanite culture. On ohand, it exploits the symbols of that culture for its needs. A study of the similarity and the differences between the Torah and Canaanite literature may be highly instructive as to the unique outlook of the Torah.


The similarity between the Torah and Near Eastern literature does not exhaust itself in the ancient myths with which the Torah is forced to contend. It is also found in a far more problematic area: the laws of the Torah. Many nineteenth century scholars began to take note of the similarity between the laws of the Torah and the various legal codes that governed the ancient Near East. The similarity was considered so striking that many adduced it as proof that the Torah is but the work of human hands, written against the backdrop of contemporary compilations of laws. The initial reaction of traditional believing Jews was, therefore, vigorous rejection of this entire avenue of scholarship. But the arguments of these scholars remain in force, and we must confront them.

In the twentieth century, an approach developed within traditional Judaism that was willing to accept the proposed similarity. How is this possible? How can we possibly find a resemblance between the eternal laws of God and the transient laws of man?

Let us examine Rabbi Kook's view on the issue:

And, similarly, when Assyriology entered the world, it raised doubts in people's hearts through the similarities that it found, according to its baseless conjectures, between our holy Torah and what is found in the cuneiform inscriptions, with respect to doctrines, morals, and practices. Do these doubts have even the slightest rational basis? Is it not well known that among the ancients there were those who recognized God, prophets and spiritual giants, such as Metushelach, Chanokh, Shem and Ever, and the like? Is it possible that they had no effect on the members of their generations? Even though their achievements do not compare with those of Avraham Avinu, how could their influence have left no impression whatsoever upon their generations? Surely [their teachings] must have resembled those that are found in the Torah!

As for the similarity regarding practices, surely already in the days of Rambam, and before him in the words of Chazal, it was well-known that prophesy operates upon man's nature. For man's natural inclinations must be raised through Divine guidance, for the mitzvot were only given for the purpose of refining men through them. Therefore, anything that found a place in the nation and the world prior to the giving of the Torah, as long as it had a moral foundation and could be elevated to an eternal moral height, was retained in God's Torah.

And in the clearest outlook it is the foundation for the good cultural consciousness that is found in the depths of human nature, such that "This is the book of the generations of man" embraces the entire Torah. It is a principle even greater than the principle of "And you shall love your neighbor as yourself," as stated by Rabbi Akiva.

It is fitting that these and similar ideas should enter the hearts of all those who immediately understand things. Then there would be no room whatsoever for fraudulent heresy to spread in the world and grow strong through such events. (Rabbi Avraham Yitzchak Kook, Eder ha-Yakar, p. 42)

Rabbi Kook argues that our religious beliefs have not been undermined by the discoveries of Assyriology. It is possible to reconcile the similarity between the Torah and ancient Near Eastern law with our belief in a divinely revealed Torah. He proposes two explanations for this similarity.

A. Firmly believing in the natural goodness of man's heart, Rabbi Kook arrives at the necessary conclusion that it is certainly possible that the ancient codes embrace righteousness and justice. If we believe in the "good cultural consciousness that is found in the depths of human nature," there is reason to assume that human laws, even those that are not based on the Torah, will contain elements of truth, justice, and righteousness, and therefore resemble the laws of the Torah. Moreover, various spiritual giants lived among those ancient nations, and it is reasonable to think that they left their mark on their respective generations. Rabbi Kook resolves the tension between divine revelation and its historical context by asserting that the historical context also has religious value; and according to a deeper understanding of the view of Rabbi Kook, history also gives expression to a certain type of divine revelation.

B. As for the practical details - that is, particular laws - it is reasonable to assume that the Torah wished to retain the laws of the ancient nations, as long as they did not involve injustice or heresy. When those laws had a moral foundation, the Torah did not want to deviate from them in any significant manner, in order that the Jewish people should more readily accept them. Rabbi Kook bases his position on that of Rambam.

Rambam applies this approach most strikingly in his explanation of the reasons for the sacrifices. According to Rambam, in order to ensure that the Jewish people would accept the Torah and act in accordance with its laws, God refrained from dramatically deviating from the accepted customs of the period. He, therefore, commanded the people of Israel to worship Him through sacrifices:

For a sudden transition from one opposite to another is impossible. And therefore man, according to his nature, is not capable of abandoning suddenly all to which he was accustomed. ... And as at that time the way of life generally accepted and customary in the whole world and the universal service upon which we were brought up consisted in offering various species of living beings in the temples in which images were set up, in worshipping the latter, and in burning incense before them. ... His wisdom, may He be exalted, and His gracious ruse, which is manifest in regard to all His creatures, did not require that He give us a Law prescribing the rejection, abandonment, and abolition of all these kinds of worship. For one could not then conceive the acceptance of [such a Law], considering the nature of man, which always likes that to which it is accustomed. (Guide of the Perplexed, III, 32)

According to Rambam, the Torah adopted the sacrificial service because this type of worship was widely observed among the other nations, and it would have been difficult to wean the Jewish people away from it. Using the same logic, there is room to say that the Torah adopted other laws from the laws of the gentiles, provided that they did not contain a moral or spiritual defect.

Rabbi Kook accounts for the similarity between the laws of the Torah and those found in the ancient Near Eastern codes, by pointing to the truth and justice embodied in those codes, as well as to the social-educational factor that would not allow for any significant deviation from them.

In recent generations, rabbinic authorities as well as academicians have argued that it is worthwhile to compare the Torah's laws with those of the ancient Near East. Such a comparison does not only demonstrate the similarity between the two codes; it emphasizes the differences between them. It is precisely the similarity between the two that often highlights the points at which the Torah deviates from its ancient parallels. Reflecting upon these points can be highly instructive regarding the values underlying the laws of the Torah. This shall be the subject of the present lecture: We shall examine the similarity as well as the differences between the laws of the Torah and the codes of the ancient Near East, focusing on the values which underlie the two.[1]


First of all, what stands out in Parashat Mishpatim is the intermingling of the commandments pertaining to the relationship between man and God and the commandments pertaining to the relationship between man and his fellow. No similar phenomenon exists in the ancient Near Eastern codes: they all view the laws of God and the laws of man as two entirely separate spheres. This has simplications regarding the content of the law as well.

The Torah sets a fixed punishment for adultery, both for the man and for the woman:

If a girl that is a virgin be betrothed to a husband, and a man finds her in the city, and lies with her; then you shall bring them both out to the gate of that city, and you shall stone them with stones that they die; the girl, because she cried not being in the city; and the man, because he has humbled his neighbor's wife: so you shall put away evil from among you. But if a man finds a betrothed girl in the field, and the man forces her, and lies with her: then only the man that lay with her shall die: but to the girl you shall do nothing. (Devarim 22:23-26)

Compare this with what is stated in the ancient Near Eastern codes:

If a man seizes a woman in the mountain, it is the man's offense; he shall die. But if he seizes her in the house, it is the woman's offence; the woman shall die. If the man finds them and then slays them, there shall be no punishment for him. (Hittite Laws, 197)

The similarity is striking: just as the Torah contrasts the law applying in the "city" with that applying in the "field," so the Hittite laws distinguish between the law in the "house" and the law in the "mountain." The difference, however, is equally remarkable: According to the Hittite laws, the husband is given a certain amount of discretion, and there is no absolute objective law. The husband's authority is given even greater emphasis in the Middle Assyrian laws and the laws of Hammurabi:

If a man lies with a married woman, in the temple chamber or on the street, knowing that she is a married woman, they shall do to the adulterer as the husband commands be done to his wife. (Middle Assyrian Laws, 14)

If a man's wife be caught lying with another man, both shall be tied and thrown into the water, but the husband may pardon his wife and the king his slaves. (Code of Hammurabi, 129)

According to these ancient codes, the husband may pardon his adulterous wife. We find another difference between the laws of the Torah and those of the ancient Near Eastern peoples with respect to the death penalty. In the Torah it is explicitly stated:

You shall take no ransom for the life of a murderer, who is guilty of death; but he shall surely be put to death. (Bamidbar 35:31)

In contrast, according to the Assyrian laws, the blood avenger may choose to receive monetary compensation in place of the murderer's execution:

If a man or a woman breaks into another man's house and strike a man or a woman, the murderer shall be turned over to the closest relative, and the blood avenger may decide whether the murderer should be put to death, or whether he should be allowed to live, and his property confiscated. (Middle Assyrian Laws, 10)

In light of what is found in the Assyrian code, we better understand why the Torah saw a need to emphasize that a ransom may not be taken for the life of a murderer (we do not find a similar admonition not to take a ransom for the life of a Sabbath desecrator!). These differences between the laws of the Torah and the Assyrian codes stem from the fact that the ancient Near Eastern codes assume that the adulterer and the murderer sin against the husband or the murder victim and his family, respectively. Thus, the injured party can pardon the criminal or convert his punishment into a monetary ransom. According to the Torah's outlook, on the other hand, not only does the criminal cause injury to another man, but he also violates the laws of God. It is, therefore, not in man's power to pardon him. It is also for this reason that when Yosef speaks to Potifar's wife, he argues that if he lies with her, he will have sinned against God (Bereishit 39:9), and not only against her husband. Similarly, God says to Avimelekh: "For I also withheld you from sinning against me: therefore I did not permit you to touch her" (Bereishit 20:6). Moreover, the rationale for executing a murderer is formulated as follows: "Whoever sheds man's blood by man shall his blood be shed, for in the image of God made He man" (Bereishit 9:6). Even the laws pertaining to the relationship between man and his fellow are laws pertaining to God.


We find an interesting law in the Torah: When a slave refuses to be liberated by his master, his ear is pierced:

And if the servant shall plainly say, I love my master, my wife, and my children; I will not go out free: then his master shall bring him to the judges; he shall also bring him to the door, or to the door post; and his master shall pierce his ear through with an awl; and he shall serve him forever. (Shemot 21:5-6)

In contrast, the Code of Hammurabi states the exact opposite:

If a slave says to his master: "You are not my master," if they convict him, his master shall cut off his ear. (Code of Hammurabi, 282)

As in the Torah, so in the Code of Hammurabi, a pierced ear symbolizes slavery. In the Torah, however, the piercing is done at the request of the slave, a request which the Torah frowns upon. In the Code of Hammurabi, on the other hand, it is the master who demands that his slave's ear be pierced in order to crush him and ensure his eternal enslavement.

Furthermore, the Torah states:

"You shall not deliver to his master the servant who is escaped from his master to you" (Devarim 23:16)

Chazal circumscribed this law, but its fundamental conceptual significance remains in place. Compare this with what is stated in the Code of Hammurabi:

If any one receives into his house a runaway male or female slave of the court, or of a freedman, and does not bring it out at the public proclamation of the major domus, the master of the house shall be put to death. (Code of Hammurabi, 16)

The Torah does not sanctify slavery, but rather freedom. The value the Torah attaches to freedom is infinitely greatly than that found in the codes of the nations constituting Israel's neighbors.


There is a remarkable similarity between Torah law and the ancient Near Eastern codes with respect to the laws governing an ox that caused injury. Compare, for example, the Torah's laws and the Ashnuna Laws regarding an ox that gored another ox:

And if one man's ox hurts another's, that he die; then they shall sell the live ox, and divide the money of it; and the dead ox also they shall divide. (Shemot 21:35)

If an ox gores another man's ox, and it dies, the two owners of the oxen shall divide the money of the live ox, and they shall also divide the money of the dead ox. (Ashnuna Laws, 53)

The linguistic similarity results from the stylistic decisions of the translator. Clearly, however, we are dealing here with a substantive similarity as well. In light of the amazing parallelism with respect to the law of an ox that gored another ox, the difference between the Torah and the Ashuna laws with respect to an ox that killed a man is all the more striking:

If an ox gores a man or a woman, that they die; then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be acquitted. But if the ox was wont to gore with his horn in time past, and his owner had been warned, yet he had not kept him in, but it killed a man or a woman, the ox shall be stoned, and its owner also shall be put to death. (Shemot 21:28-29)

If the ox was known to be wont to gore, and the authorities brought the matter to the attention of the owner, and they did not cut off its horns, and it gored a man and he died, the owner of the ox shall pay two thirds of a mina. (Ashnuna Laws, 54)

The Ashnuna Laws recognize the distinction between an ox that was not known to be a gorer and an ox that was known to be a gorer. These laws, however, are lenient with regard to an ox that killed a man, even when that ox was known to be a gorer. Similarly, we find in the Code of Hammurabi:

If an ox, while passing on the street, gored a man and killed him, the case is not a matter fit for a legal claim. If an ox be a goring ox, and it was shown that he is a gorer, and he did not cut his horns, or fasten the ox up, and the ox gore a free-born man and killed him, the owner shall pay one-half a mina in money. (Code of Hammurabi, 250-251)

According to the Code of Hammu, if an ox that was not known to be a gorer killed a man, its owner is totally exempt from liability, and if the ox was known to be a gorer, its owner is only liable for monetary payment. According to the Torah, however, the ox is stoned in both cases, and if it was a known gorer, "its owner also shall be put to death." While it is true that, according to Halakha, the owner pays a ransom and is not executed, the Torah clearly comes to emphasize the value of human life, for which there is no compensation or substitution.


If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no further harm ensue: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. But if any harm ensue, then you shall give life for life. (Shemot 21:22-23)

The Code of Hammurabi, on the other hand, states:

If a man strikes the daughter of a man,[2] so that her fruit depart from her, he shall pay ten silver shekels for her fruit. And if the woman dies, the assailant's daughter shall surely die. (Code of Hammurabi, 209-210)

According to the Code of Hammurabi, a daughter can be put to death for her father's offense. Children are viewed as their fathers' property, and not as independent human beings of unlimited value. This idea repeats itself in various places:

If a builder built a house for another person, but the construction was not sound, so that as a result the house that he had built collapsed, causing the death of the owner of the house, the builder shall surely die. And if he caused the death of the son of the owner of the house, they shall put the son of the builder to death. (Code of Hammurabi, 229-230)

All this stands in sharp contrast to the Torah, according to which children are not put to death for their fathers' transgressions. "Fathers shall not be put to death for children, neither shall children be put to death for fathers; every man shall be put to death for his own sin" (Devarim 24:16).

The following strange and inexplicable verse is found in the Torah in the context of the laws pertaining to an ox that killed a man:

Whether he has gored a son, or gored a daughter, according to this judgment shall it be done to him. (Shemot 21:31)

What might I have thought? Why should the law be different in a case where the ox killed a son or a daughter? We might perhaps have thought that children's lives are worth less than those of adults, and so the punishment for killing children should be less severe. Cassuto suggests just the opposite: the Torah comes to exclude what was accepted law in the ancient Near East, that if a person is found liable for the death of another man's child, his own child is put to death.


The Torah does not impose the death penalty for stealing. The only mention of death in the context of stealing is in the case of a break-in, and even in that situation killing the thief is only allowed in self-defense, that is, in the course of the robbery itself.

If a thief be found breaking in, and be smitten that he die, no blood shall be shed on his account. If the sun be risen upon him, blood shall be shed on his account. He should make full restitution; if he have nothing, then he shall be sold for his theft. (Shemot 22:1-2)

The law pertaining to a break-in is also mentioned in the Code of Hammurabi:

If any one breaks a hole into a house, and is caught, he shall be put to death before that hole and be buried. (Code of Hammurabi, 21)

There the rule is that anyone caught breaking into another person's house is punished with the death penalty. While the Torah limits the allowance to kill the thief to self-defense during the course of the burglary, the Code of Hammurabi sanctions the death penalty in other cases of theft besides a break-in. Among other cases, the Code of Hammurabi assigns the death penalty in cases where the thief has no money to pay.

If any one steals cattle or sheep, or an ass, or a pig or a goat, if it belongs to a temple or to the royal court, the thief shall pay thirty-fold; if they belonged to a free man of the king he shall pay tenfold; if the thief has nothing with which to pay he shall be put to death. (Code of Hammurabi, 8)

The Torah rules explicitly against this, as we have seen: "If he has nothing, then he shall be sold for his theft" (Shemot 22:2).[3]


The Torah strictly limits the creditor's right to seize a pawn:

No man shall take the nether or the upper millstone for a pledge; for he takes a man's life for a pledge (Devarim 24:6)

If you at all take your neighbor's garment for a pledge, you shall deliver it to him by sundown. For that is his only covering, it is his garment for his skin; in what shall he sleep? And it shall come to pass, when he cries to Me, that I will hear; for I am gracious (Shemot 22:25-26)

The Torah forbids a person to take the nether or the upper millstone as a pledge, for the reason that he would "be taking a man's life for a pledge." In contrast, according to the Code of Hammurabi, the creditor may take the debtor himself as a pledge:

If any one has a claim for corn or money upon another and imprisons him; if the prisoner dies in prison a natural death, the case shall go no further. If the prisoner dies in prison from blows or maltreatment, the master of the prisoner shall convict the merchant before the judge. If he was a freeborn man, the son of the merchant shall be put to death; if it was a slave, he shall pay one-third of a mina of gold, and all that the master of the prisoner gave he shall forfeit. (Code of Hammurabi, 115-116)

How different is the spirit of the Torah from that of the Code of Hammurabi here as well!

It is precisely the comparisons that we have drawn between the Torah and the various legal codes of the ancient Near East that strengthen our recognition of the moral intensity and uniqueness of the Torah.

And what nation is there so great, that has statutes and judgments so righteous as all this Torah, which I set before you this day? (Devarim 4:8)


[1] Our discussion regarding the relationship between the laws of the Torah and the ancient Near Eastern codes is based primarily on the following articles: M. Sabato, "Yesodot Hagutiyim be-Farashat Mishpatim," Alon Shevut Bogrim, XI (1998); M. Zer-Kavod, "Ma Bein Mishpetei ha-Torah Levein Hukkei Hammurabi?" Sefer Zeidel - Kiryat Sefer, 1962; M. Korngreen, "Hashva'at Hukkei ha-Avdut she-be-Torat Moshe im Hukkei ha-Bavlim, ha-Ashurim, ve-ha-Chittim," Sefer Karl - Kiryat Sefer, 1990.

[2] I.e., the daughter of another man from the upper class. The term, "daughter of a man," and the law itself imply that we are dealing here with a young woman, who presumably never had a child.

[3] It should be noted that, according to the Code of Hammurabi, the punishment for theft varies according to the identity of the person from whom the property was stolen: one who steals from the king is liable for a greater penalty than one who steals from a free man.

(Translated by David Strauss)