Lecture 10. Biblical Law: The Three Legal Corpora of JE (Exodus), P (Leviticus and Numbers) and D

Lecture 10. Biblical Law: The Three Legal Corpora of JE (Exodus), P (Leviticus and Numbers) and D

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Professor Christine
Hayes: So as we saw last week, before we stopped to talk
about the priestly materials and the Holiness Code–as we saw
last week, the covenant ceremony at Sinai included God’s
announcement of and Israel’s agreement to certain covenantal
stipulations. So Exodus 24:3 and 4,
describe this agreement as follows:
Moses went and repeated to the people all the commands
of the lord and all the rules; and all the people answered
with one voice, saying “All the things that the
lord has commanded we will do!” Moses then wrote down all the
commands of the Lord. So the covenant concluded at
Sinai is the climactic moment in the Pentateuchal narrative.
And it came to be viewed as the
initiation of God’s articulation of the laws and rules and
ordinances and instruction by which the ancient Israelites
were to live. And so later editors
consequently inserted law collections from later times and
circles into the story of Israel’s meeting with God at
Sinai, and subsequent sojourn in the
wilderness. This was done in order to lend
these collections an air of high antiquity and to give them
divine sponsorship. The conclusion of biblical
scholarship is that a number of separate bodies of law have
gravitated to the story of the 40-year period of Israel’s
formation into a people. So that’s the period of the
covenant at Mount Sinai and then the journey towards the Promised
Land. All Israelite law is
represented in the biblical account as having issued from
that time, that 40-year period of intimate
contact between God and Israel. So on your handout,
I’ve given a division, a rough division,
of the different legal collections that we have in the
Pentateuch. The laws that scholars will
often refer to as the JE laws, since they sort of are
introduced by that narrative–some people think
it’s best to just think of these as separate legal
collections–those occur in Exodus.
And so they tend to be dated tenth-ninth century in their
written form. The laws of the priestly
material are mostly going to be found in Leviticus and Numbers,
and those will be formulated somewhere from the eighth to the
sixth century. Same period of time roughly we
have the laws of D, which are found,
obviously, in Deuteronomy. But these sources themselves
are clearly drawing upon much older traditions.
Some of the individual laws are
clearly quite ancient. They have a great deal in
common with Ancient Near Eastern legal traditions,
generally of the second millennium.
The laws of Exodus, for example–some of them bear
such similarity to the Code of Hammurabi that we can really
assume that they are drawing upon a common legal heritage:
Canaanite law or what would have been known as a legal
tradition in Canaan. So whatever their actual
origin, however, the bible represents these
materials as having been given at Sinai or during that 40-year
period after. So given at Sinai,
now this is on your sheet, you have the Decalogue–not
very well translated as the Ten Commandments–we’ll come back to
that. Covenant code,
so that’s a chunk of material, three chapters in Exodus.
Then we have a small passage
referred to as a ritual Decalogue–we’ll come back to
that–you have priestly legislation–a little bit in
Exodus about the cult, obviously, then on into
Leviticus and some Numbers. According to the biblical
narrative then, the following materials were
given in the 40 years after Sinai,
as the Israelites are encamped in the wilderness on their
journey toward the land of Israel.
So those are presented as supplements in Numbers,
but also the Deuteronomic code. Let’s talk a little bit now
about the Decalogue. There was a scholar by the name
of Alt, A-L-T. Albrecht Alt,
a German scholar who examined the legal material of the Bible
in general. And he noticed that there were
really two forms of law. Yeah–these things I forgot to
write down . There’s conditional law and
apodictic law. Conditional law is case law,
casuistic law. And then there’s absolute or
apodictic law. He noticed these two forms.
Casuistic law is the common
form that law takes in the Ancient Near East,
and you’ve seen it in the Code of Hammurabi.
It has a characteristic if/then pattern.
Casuistic law tells you, for example,
if a person does X or if X happens, then Y will be the
consequence. It can be complex.
It can be quite specific.
If X happens,
Y is the consequence, but if X happens under these
different circumstances, then Z is the consequence.
And it can be quite detailed
giving three or four sub-cases with qualifications.
Absolute or apodictic law,
by contrast, is an unconditional statement
of a prohibition or a command. It tends to be general and
somewhat undifferentiated. You shall not murder.
You shall love the lord your
God. And absolute law,
apodictic law, is not unknown as a form in
other Ancient Near Eastern cultures,
but it seems to be most characteristically Israelite.
You find a great deal more of
it in our legal collections in the Bible than anywhere else.
The provisions of the
Decalogue–and again, the translation Ten
Commandments is actually a very poor translation;
in the Hebrew, it simply means ten statements,
ten utterances–the ones that are in some sort of legal form,
are in absolute or apodictic form.
The Decalogue is the only part of God’s revelation that is
disclosed directly to all of Israel without an intermediary.
But its directives are couched
in the masculine singular. So it seems to be addressing
Israelite males as the legal subjects in the community.
And the Decalogue sets out some
of God’s most basic and unconditional covenant demands.
The division into ten is a bit
awkward. It probably should be seen as
an ideal number, an effort to find ten
statements in there. Because, in fact,
there are really about 13 separate statements.
And we see the fact that ten
doesn’t work very well in a very interesting phenomenon,
which is that the so-called commandments are actually
numbered differently by Jews and by Christians and then even
within the Christian community, different Christian
denominations number the commandments one through ten
quite differently from one another.
They disagree about what is number one and what is number
two and so on. The first statements,
either one through four or one through five depending on your
counting, but the first group of
statements concern Israel’s relationship with her suzerain,
with God. She’s to be exclusively
faithful to God. She’s not to bow down to any
manmade image. She may not use God’s name in a
false oath, to attest to or swear by a false oath.
She is to honor God’s Sabbath
day, and honor parental authority, which is arguably an
extension of God’s authority. The remaining statements then
concern Israel’s relationship with her fellow vassals,
if you will. And they prohibit murder and
adultery and robbery, false testimony and
covetousness. It’s important to realize that
the Pentateuch contains three versions of the Decalogue.
And there are differences among
them. The Decalogue is going to be
repeated in Deuteronomy, chapter five.
And there are some minor variations.
Specifically you’ll see that the rationale for observing the
Sabbath is different. God’s name in Deuteronomy 5 is
not to be used in a vain oath as opposed to a false oath.
There are differences in the
meaning. And there are some more
differences too in language. So what are we to make of this?
One scholar,
Marc Brettler, whose name I’ve mentioned
before, he says that what we learn from this,
these variations, is something about the way
ancient Israel preserved and transmitted sacred texts.
They didn’t strive for verbatim
preservation when they transmitted biblical texts.
And they didn’t employ cut and
paste methods that might be important to us in the
transmission of something. Texts were modified in the
course of their transmission. Verbatim repetition was not
valued in the way that it might be for us.
So that even a text like the Decalogue, which is represented
as being the unmediated word of God, can appear in more than one
version. There’s a more surprising
variation that occurs, however, in Exodus 34.
After smashing the first set of
tablets that were inscribed with the Decalogue–the tablets in
Exodus 20, those are smashed after the
golden calf incident–Moses is then given a second set of
tablets. And the biblical writer
emphasizes in the story at that point that God writes on the
tablets the words that were on the former tablets that were
broken. The same words.
So we expect now a verbatim repetition of Exodus 20.
And yet we don’t have it.
The Decalogue that follows in
fact has very little overlap with the earlier Decalogue.
There’s really only two
statements that even have the same content.
And even those, which do overlap in content,
vary in wording. This Decalogue,
which is often called the ritual Decalogue,
so it’s listed on there in Exodus 34,
bans intermarriage with Canaanites less they entice the
Israelites into worship of their gods.
It has other terms that give commandments about the
observance of the festivals, various festivals,
the dedication of first fruits to God, the dedication of first
born animals to God and so on; things that were not in the
Exodus 20 Decalogue. So evidently,
there were different traditions regarding the contents of the
Decalogue. And the story of the golden
calf and Moses’ destruction of the first set of tablets is a
brilliant narrative strategy for introducing this second
Decalogue tradition. Also surprising is the fact
that the Decalogue in Exodus 20 doesn’t stand completely
unchallenged in the Bible. Exodus 20, verses 5 through 6,
contain explicitly the principle of inter-generational
punishment. God is said to spread
punishment for sin out over three or four generations.
This is understood as a sign of
his mercy. It’s reducing the punishment on
the actual sinner by spreading it out and limiting the
consequences to only three or four generations,
in contrast to what is said in the next verse,
that kindness he spreads out over thousands of generations.
So it’s seen as merciful mode of operation.
But the notion of intergenerational punishment is
something that some segments of the community or perhaps later
in time was rejected? Some segments of the community
rejected this notion. And so in Deuteronomy 7,
we see that quite pointedly. “God punishes only those who
spurn him, and does so instantly.”
Ezekiel, when we get to Ezekiel, we’ll see that he will
also very adamantly reject the idea of intergenerational
punishment. The children do not suffer for
the sins of the father, only the father.
So what are we to make of this? Again, Marc Brettler concludes
that the Decalogue or Decalogues did not originally possess the
absolute authority that is so often claimed for it even today.
Later religious traditions have
elevated the Decalogue in Exodus 20 to a position of absolute
authority. A position that’s not
completely justified given the Bible’s own fluid treatment of
the wording, the Decalogue’s text,
and its content, and its later objection even to
one of its terms. So the claim that God’s
revelation of the Decalogue was fixed in form–the words that we
see in Exodus 20, for example–and immutable in
substance is not a claim that’s really native to or even
justified by the biblical text. It’s a later ideological
imposition upon the text. And I want to talk a little bit
more about biblical law’s connection with the legal
patrimony of the Ancient Near East.
Because certainly biblical law shares in that patrimony,
even if sometimes it’s clearly reforming it.
So it’s helpful and it’s instructive to compare it with
other ancient law collections. And I hope you’ve had time to
sit and read–there was a study guide posted on the website and
I hope you had time to work through these materials.
They’re fascinating.
And we’ll see that there are
certain key features that distinguish Israelite law from
the other Ancient Near Eastern legal collections.
I’ve also put on the handout
for today just a list of those collections: the Laws of
Ur-nammu, the Laws of Lipit-Ishtar,
the Laws of Eshnunna, the Code of Hammurabi,
which is CH, the Hittite laws,
the youngest laws would be the middle Assyrian laws,
giving you rough dates and so on.
So you have that to refer to for the information about these
particular collections. I should also say that we would
do better to understand these materials as legal collections
and not codes. I know the word code gets
thrown around a lot, Code of Hammurabi and so on.
But they really aren’t codes.
Codes are generally systematic
and exhaustive and they tend to be used by courts.
We have no evidence about how
these texts were used. In fact, we think it’s not
likely that they were really used by courts.
But they were part of a learned tradition and scribes copied
them over and over and so on. They are also certainly not
systematic and exhaustive. So for example,
in the Code of Hammurabi, we don’t even have a case of
intentional homicide. We only have a case of
accidental homicide. So we really don’t even know
what the law would be in a case of intentional homicide.
We can’t really make that
comparison with the biblical law.
Now, in a very important article that was written nearly
half a century ago now, it’s hard to believe,
by a man named Moshe Greenberg–he’s a biblical
scholar and he argued that a comparison of biblical law with
other Ancient Near Eastern collections reveals the central
postulates or values that undergird biblical law .
I’ll be drawing extensively on
Greenberg’s work in this presentation as well as other
scholars who have picked up some of his ideas and have taken them
in other directions. But it was really Greenberg who
was the one who I think made the first foray into this kind of
comparative approach, and since then others have
taken advantage of that idea. There is, Greenberg says,
an immediate and critically important difference between
Ancient Near Eastern collections and the Israelite laws as
they’re presented by the biblical narrator.
And that’s a difference in
authorship. So if you look,
for example, at the prologue to the laws of
Ur-nammu: An and Enlil gave kingship to Ur-nammu,
but Ur-nammu is said to establish equity and the laws.
If you look at Lipit-Ishtar,
both the prologue and the epilogue: An and Enlil,
the gods, give kingship to Lipit-Ishtar,
but Lipit-Ishtar establishes justice.
He refers to the laws as “my handiwork” in the first person.
Or the prologue to the Code of
Hammurabi. Again, lofty Anum and Enlil
established for him an enduring kingdom.
They name him “to promote the welfare of the people…cause
justice to prevail… When Marduk commissioned me… to
direct the land” and now it continues in first person
speech: “I established law and justice in the language of the
land…At that time, (I decreed):
the laws of justice,” the laws that the efficient King
Hammurabi set up. “I wrote my precious words on
my stela,” which you can go and see at Sterling Memorial Library
“and in the presence of the statue of me,
the king of justice, I set up in order to administer
the law of the land, to prescribe the ordinances of
the land, to give justice to the
oppressed.” And he refers to it as “my
justice,” “my statutes,” no one should rescind them.
“My inscribed stela,”
“my precious words.” Do not alter the law of the
land which “I” enacted; I, I, I throughout.
By contrast in biblical law,
authorship is not ascribed to Moses, ever.
It is attributed always to God. So you see in Exodus 24:3 and
4: Moses went and repeated to the people all the commands of
the lord and all the rules; and all the people answered
with one voice, saying “All the things that the
lord has commanded we will do!” Moses then wrote down all the
commands of the Lord. It’s the repetition that makes
you feel that the biblical writer here is not accidentally
saying these things, trying to drive home a very
strong point. Exodus 31:18:
“When he finished speaking with him on Mount Sinai,
He gave Moses the two tablets of the Pact,
stone tablets inscribed with the finger of God.”
So Greenberg,
and since him, Brettler, and many others,
have argued that the principle of divine authorship has certain
very important implications. First, it has a significant
effect on the scope of the law. Ancient Near Eastern and
biblical law differ concerning the areas of human life and
activity that fall within the concern of the law.
That doesn’t mean they don’t
fall within the concern of humanity, they just fall within
concern of the law. That’s an idea I’ll come back
to in a minute. Israelite law will contain more
than just rules and provisions that fall within the scope of
the coercive power of the state to enforce.
More than what would fall under the jurisdiction of law courts,
for example, or legal decisors.
It is holistic.
The scope of the law is holistic.
It’s going to contain social and ethical and moral and
religious prescriptions, and very often they’re going to
be couched in an authoritative, apodictic style,
particularly the things that aren’t enforceable in a court of
law. They will tend to be the ones
that are backed up by the authority of God directly:
you shall do this, I the Lord am your God.
Notice how many times that
refrain is used. And it’s almost always used
with those unenforceable kinds of things.
Love your neighbor as yourself, you know, I the Lord am your
God. It’s me who’s watching out for
this one, not the court, okay?
The extra-biblical law collections deal almost
exclusively with matters that are enforceable by the state.
That doesn’t necessarily mean
they were. We don’t know how these were
used. But they don’t tend to deal
with matters that we would call, we would call,
matters of conscience or moral rectitude.
So you’d be very hard pressed in the extra-biblical
collections to find a law like Exodus 23:4 and 5:
When you encounter your enemy’s ox or ass wandering,
you must take it back to him. When you see the ass of your
enemy lying under its burden, and you would refrain from
raising it, you must, nevertheless,
raise it with him. Or Leviticus 19:17 and 18:
“You shall not hate your kinsfolk in your heart.”
Can you imagine Congress
passing a law like that? “You shall not hate your
kinsfolk in your heart. Reprove your kinsmen,
but incur no guilt because of him.”
And don’t carry around a grudge. Reprove him,
tell him what’s wrong, clear the air.
Don’t carry around a grudge. “You shall not take vengeance
or bear a grudge against your countrymen.
Love your fellow as yourself: I am the Lord.”
That refrain always comes after those kinds of statements.
So the Bible includes norms for
human behavior set by the divine will, even though enforcement
has to be left to the individual conscience.
And in the Torah, therefore, life is treated
holistically in the realm of law.
One’s actions aren’t compartmentalized,
and that’s why the legal materials to us can sometimes
seem like an indiscriminate mix of laws concerning all areas of
life. And it’s one of the things that
makes people confused. Because a lot of moderns have
gotten the idea that the Bible only deals with what we call
morality. And so they don’t understand
all this other stuff that’s in there, right?
And sometimes if we tell ourselves, well,
this is a legal collection, then we don’t understand why
there’s all this moral-looking stuff in there.
It is a mixture because it’s holistic.
It is the will of God, and God has something to say
about all areas of life. And so in Exodus 23,
you’re going to have a law that tells you not to oppress a
stranger because you were a stranger.
It tells you to not plow your land in the Sabbath year
immediately following that to let the poor and needy eat from
it. It tells you to observe the
Sabbath day rest. You shall not mention any other
gods. It tells you how to observe the
three pilgrimage festivals and rules of ritual offering and
then there are also civil laws. Same thing in Leviticus:
18 through 20. We have incest laws,
we have ritual laws, we have civil laws and we have
moral laws all together. Now, a second
implication–another idea that flows from the fact that this
law is divinely authored–so a second implication of divine
authorship, according to Greenberg,
is this connection between law and morality so that in the
biblical, legal framework, every crime is also a sin.
Every crime is also a sin.
Law is the moral will of God
and nothing is beyond the moral will of God.
So what’s illegal is also immoral, and vice versa;
what’s immoral is also illegal. Law and morality are not
separate, as we moderns tend to think they are and ought to be,
right, in our society. Offenses against morality in
the biblical world are also religious offenses.
They’re also sins because they
are infractions of the divine will.
So the fusion of morality and law, Greenberg argues,
is the reason that biblical law not only expresses,
but legislates a concern for the unfortunate members of
society, for example; orphans, strangers,
widows, as well as respect for the aged.
From the Priestly source, this is Leviticus 19:32,
we read, “You shall rise before the aged and show deference to
the old; you shall fear your God.
I am the Lord.”
Again, that refrain always has to come with this kind of a
statement. The extra-biblical codes
certainly exhibit concern for the rights of the poor.
This is very important,
particularly in their prologues.
We’ve read some of these prologues.
You know, my desire was to help the orphans, the strangers and
so on. But when you look at the
content of the laws, as in our society,
they don’t legislate charity. They don’t legislate compassion.
It’s likely that these were
considered acts of, who knows, personal conscience,
religious conviction, something that was between the
individual and society and their God.
I don’t know, but they were outside the
domain and jurisdiction of the court.
That doesn’t mean that charity and compassion were not present
in other Ancient Near Eastern cultures.
The point is that law is not understood as being the
appropriate vehicle for the expression of those values.
There were other sorts of texts
that might do those sorts of things and urge people to
charity and compassion. But law, the legislation,
is not understood to be the appropriate vehicle for the
expression of those values. So again, I’m not trying to say
that in Ancient Near Eastern society, everybody was mean,
I’m trying to say that law, because of its divine
authorship, suddenly takes on a scope,
a holistic scope and a fusion of law and morality that are
kept separate in other cultures and very much in our own.

So the two, however,
are combined. And law is understood to be the
appropriate vehicle to legislate compassion, for example.
So in Leviticus 19:9,
verse 10, legislating charity, When you reap the harvest
of your land, you shall not reap all the way
to the edges of your field, or gather the gleanings of your
harvest. You shall not pick your
vineyard bare, or gather the fallen fruit of
your vineyard. You shall leave them for the
poor and the stranger: I, the Lord am your God.
Again, from the Holiness Code, Leviticus 19:14,
“You shall not insult the deaf, or place a stumbling block
before the blind. You shall fear your God:
I am the Lord.” Again, always has to back it up
because this is not something the courts can back up,
right? This is a question of your
morality. Or Leviticus 20:18 “Love your
fellow as yourself. I am the Lord.”
Leviticus 19:33-34: “When a stranger resides with
you in your land, you shall not wrong him.
The stranger who resides with
you shall be to you as one of your citizens;
you shall love him as yourself, for you were strangers in the
land of Egypt: I, the Lord,
am your God.” Deuteronomy 22:6:
“If, along the road, you chance upon a bird’s nest,
in any tree or on the ground with fledglings or eggs and the
mother sitting over the fledglings or on the eggs,
do not take the mother together with her young.
Let the mother go, and take only the young,
in order that you may fare well and have a long life,” meaning
God will reward you. So again, this is enforceable
by God. Furthermore,
Greenberg argues that the fact that every crime is also a sin
lays the ground for certain acts to be viewed as absolutely
wrong, and transcending the power of
humans to forgive. Absolutely wrong and they
transcend the power of humans to pardon or forgive.
Take for an example, adultery.
Deuteronomy 22:22:
“If a man is found lying with another man’s wife,
both of them–the man and the woman with whom he lay–shall
die. Thus, you will sweep away evil
from Israel.” And murder is the other one.
Numbers 35:16,
“…the murderer must be put to death…” “You may not accept a
ransom for the life of a murderer” “who is guilty of a
capital crime; he must be put to death.”
In the view of the biblical
text, adultery and murder are absolutely wrong.
They must always be punished
regardless of the attitude of the offended parties.
So a husband can’t say “Oh,
that’s okay, I don’t want to punish my wife;
let them have their fun. It’s no big deal;
I don’t mind.” Alright? And the family of a murder
victim can’t say, “You know, Joe was such a pain
in the neck anyway, you’ve really done us a favor,
you know? Just pay the funeral costs,
we’ll call it quits.” You can’t do that.
These are absolutely wrong.
These deeds,
as infractions of God’s will, and God’s law,
they’re always wrong. They transcend the power of
human parties to pardon or forgive or excuse.
And you compare that with the
extra-biblical collections and you see quite a difference.
In the Code of Hammurabi,
number 129, adultery is considered a private affair.
“If the wife of a seignor”–and
I have to– this terminology is just wonderful.
Seignor. This comes, I think,
from French feudalism. These have to do with class
distinctions. And so the translators of this
particular translation chose these feudal–very meaningful to
you I’m sure–these feudal categories.
Essentially what’s going on here is the underlying Akkadian
words, I guess, are awilum,
mushkenum, and then a third category,
slave. When the three–when they
appear together, awilum tends to refer to
an upper class person, a mushkenum to a
commoner. Awilum can just mean an
ordinary citizen, but when it’s in juxtaposition
with the other terms, it’s clearly someone of a
higher social class. So we’ll use aristocrat,
which is where we get the French feudal seignor,
and then we’ll use commoner and slave.
So in the Code of Hammurabi, “If the wife of a citizen has
been caught while lying with another man,
they shall bind them and throw them into the water.
But if the husband of the woman
wishes to spare his wife, then the king in turn may spare
his subject.” It’s up to the husband.
He’s the offended party.
It’s a private matter.
He decides.
The middle Assyrian laws on Tablet A numbers 14 to 16.
Again, it’s a crime against the
property of the husband, and so it’s within his power to
either prosecute or not. “If a seignor,” an awilum has
lain with the wife of another, either in a temple brothel or
in the street knowingly,” knowing that she was a wife,
“then they shall treat the adulterer as the seignor orders
his wife to be treated.” Okay?
So whatever he does to her, they do the same thing to the
male. But if he was innocent,
he didn’t know that she was a married woman,
“the seignor shall prosecute his wife, treating her as he
thinks fit.” It’s up to him.
“If… the woman’s husband,” more ifs and thens,
but here’s a case of “if… the woman’s husband puts his wife to
death, he shall also put the seignor
to death, but if he cuts off his wife’s nose,
he shall turn the seignor into a eunuch”–I guess this is
considered equivalent–“and they shall mutilate his whole face.
However, if he let his wife go
free, they shall let the seignor go free.”
Again, it’s a private matter. In the Hittite laws as well,
Tablet 2,197-198, the husband can decide to spare
his wife, If he brings them to the
gate of the palace and declares: “My wife shall not be killed’
and thereby spares his wife’s life,
he shall also spare the life of the adulterer and shall mark his
head. But if he says,
“Let them die both of them!” …[then]
the king may order them killed, [but also], the king may spare
their lives. And we see the same sorts of
distinctions in murder cases. We’ll come back to them later.
A third implication or
consequence of the divine authorship of biblical law,
according to Greenberg, is that the purpose of the law
in Israelite society is going to be different from the purpose of
the law in other societies. So in non-Israelite society the
purpose of the law is to secure certain sociopolitical benefits.
Think about the preamble of the
American Constitution, which states the purpose of the
law. It reads almost exactly like
the prologues to these ancient collections.
You can pick out words that are identical.
The purpose of the law is to “establish justice,
insure domestic tranquility, provide for the common defense,
promote the general welfare, and secure the blessings of
liberty.” So when you see the prologue of
Ur-nammu, the purpose of the law: “establish equity,”
protect the underprivileged, promote the common weal and
welfare, basically. The Laws of Lipit-Ishtar in the
prologue: “establish justice… banish complaints,”
I like that one, “bring wellbeing”–promote the
common weal and welfare. Same again with the Code of
Hammurabi’s prologue: to promote the welfare of the
people, good government, the right way,
prosperity. But for Israel,
the law does include these benefits, but is not limited to
these benefits. The law also aims at
sanctifying. A concept we dealt with at
great length in the last lecture.
Sanctifying, rendering holy or like God
those who abide by its terms. So the laws that are presented
in the Holiness Code are introduced with this
exhortation, which you don’t find in other places.
Leviticus 19:2:
“You shall be holy for I, the Lord your God,
am, holy.” And then the laws begin;
“You shall each revere your mother and father,… keep my
Sabbath,” etcetera, etcetera.
But the introduction, “You shall be holy for I the
Lord your God am holy”–being holy in imitation of God is
emphasized repeatedly as the purpose of the laws in the
Holiness Code especially. The holiness motif is
represented as being present at the very inception of the
covenant. When Israel is assembled at
Mount Sinai, that opening speech that God makes in Exodus 19:5
and 6, “Now then, if you will obey Me
faithfully and keep My covenant, keep my laws,
you shall be My treasured possession among all the
peoples. Indeed, all the earth is Mine,
but you shall be to Me a kingdom of priests and a holy
nation.” These are the rules that
demarcate you as dedicated to me; i.e.
holy. Now, there are lots of general
and specific similarities and parallels between Israelite and
Ancient Near Eastern laws. Lots of goring oxen,
lots of pregnant women who are in the wrong place at the wrong
time and getting struck and accidentally miscarrying.
But we’re going to look at some
of the formal and stylistic differences between Ancient Near
Eastern and biblical law. And we can assume just a
tremendous amount of common ground, okay?
And some of these are pointed out by Greenberg and some by
other scholars. But I’ve listed them there
under “features.” One distinguishing feature of
Israelite law is the addition of a rationale or a motive clause
in many of the laws. Which again is not something
that’s really featured in the genre of law writing in these
other collections. It’s not a part of the genre of
writing those. It doesn’t mean they didn’t
have a rationale, but it wasn’t how it was
presented. So we find this in the Bible
particularly in what we might refer to as the humanitarian
laws. And on the whole,
these rationales will appeal to historical events like the
exodus or creation. Here are a few laws that
express the idea that the experience of slavery and
liberation should be the wellspring for moral action.
It should be the impetus for
moral action. Exodus 22:20:
“You shall not wrong a stranger or oppress him,
for you were strangers in the land of Egypt.”
23:9: “You shall not oppress a stranger, for you know the
feelings of the stranger, having yourselves been
strangers in the land of Egypt.” And Leviticus 19 contains a
similar exhortation not to wrong a stranger who resides with you,
but “love him as yourself for you were strangers in the land
of Egypt.” Likewise, in Deuteronomy 5
–this is the Decalogue in Deuteronomy–which is talking
about Sabbath observance, and ensuring that all in your
abode rest “…you, your son or your daughter,
your male or female slave, your ox or your ass,
or any of your cattle…” “stranger in your settlements,
so that your male and female slave may rest as you do.
Remember that you were a slave
in the land of Egypt and the Lord your God freed you from
there.” Also , “For the Lord your God
is God supreme and Lord supreme, the great, the mighty and the
awesome God who shows no favor and takes no bride.”
Takes no bride also!
But takes no bribe “…but
upholds the cause of the fatherless and the widow,
and befriends the stranger, providing him with food and
clothing. you too must befriend the
stranger, for you were strangers in the land of Egypt.”
We have two rationales there;
one is the explicit rationale of imitatio dei.
This is what I do and this is
what you should do. And there are more.
Many of them referring to the
exodus in Egypt and others referring to the notion of
imitatio dei. So it’s also illuminating to
compare the Ancient Near Eastern and the biblical legal materials
in terms of the concern for the disadvantaged,
the elimination of social class distinctions,
and a trend toward humanitarianism.
Greenberg notes that the Torah’s concern for the
disadvantaged of society is quite marked in the actual laws
themselves. Many of the extra-biblical
legal collections pay homage to this idea in their prologues.
It doesn’t always seem to be
appearing, however, in the actual terms of these
collections. Now, these collections are
incomplete. We don’t have everything.
And again, it may be another
literary genre that accomplished some of that work in that
culture. The Torah laws– And also,
the laws in those collections very often, despite the
prologues’ rhetoric that they bring justice to the
disadvantaged and so on, many of the laws clearly serve
the interests of an upper class. Okay, that’s the more important
point. They clearly serve the
interests of an upper class. The Torah laws do not contain
all the same distinctions of social class among free persons
as the contemporary laws–the Laws of Eshnunna,
the Laws of Hammurabi. These laws distinguish between
punishments for crimes committed against upper class and lower
class persons, not to mention slaves.
So if we look at the Code of
Hammurabi, there’s a stretch of laws numbering 195 to 208
something. And they’re–very interesting
to read them all in a row. I’ll hit some highlights.
So if an upper class person,
if an aristocrat has destroyed the eye of a member of the
aristocracy, they destroy his eye.
If he breaks his bone, they break his bone.
But as you move down to 198,
if he destroys the eye of a commoner or breaks the bone of a
commoner, he pays one mina of silver.
And if it’s a slave, he pays half the value of the
slave. On to 200 and 201:
If he knocks out an aristocrat’s tooth,
they knock out his tooth. But if it’s a commoner’s tooth,
he pays a third of a mina of silver, and so on.
The Hittite laws too:
there are different amounts fixed by class in the
miscarriage laws, 95 and 99.
The middle Assyrian laws also distinguish between the
awilum, the mushkenum and the
slave. Leviticus 24:17-22–we have,
there, laws of personal liability;
bodily injury, assault and battery or bodily
injury. And we find a clear and
explicit statement to the effect that there shall be one standard
for citizen and stranger alike. This is known as the principle
of talion; lex talionis.
So reading from Leviticus,
“If anyone maims his fellow.” “If anyone maims his fellow,
as he has done so shall it be done to him: fracture for
fracture, eye for eye, tooth for tooth.
The injury he inflicted on another shall be inflicted on
him… You shall have one standard for stranger and
citizen alike: for I the Lord,
am your God.” This was a radical concept in
its day, evidently. The punishment should fit the
crime, no more and no less for all free persons–granted slaves
are not included–regardless of social class.
Equality before the law. And this casts the principle of
talion, I hope, in a new light.
The law of talion,
which is essentially the principle that a person should
be punished according to the injury they inflicted,
it’s been decried as a primitive, archaic reflex of the
vengeance or vendetta principle. The notion of “an eye for an
eye” is usually cited or held up as typical of the harsh and
cruel standards of the vengeful Old Testament God.
But when you look at it in a
comparative light in its legal context, we see that it’s a
polemic against the class distinctions that were being
drawn in antecedent and contemporary legal systems,
such as the Code of Hammurabi. According to the Bible,
the punishment should always fit the crime regardless of the
social status of the perpetrator on the one hand or the victim on
the other. All free citizens who injure
are treated equally before the law.
They’re neither let off lightly nor punished excessively.
If you read the middle Assyrian
laws, don’t want to do that on an empty stomach.
A.20, A.21 and F1–you have
multiple punishments that are carried out.
Someone who causes a miscarriage: they have a
monetary fine, they have to pay two talents
and 30 minas of lead. They’re flogged 50 times and
then they have to do corvée,
forced labor for the state for a month.
Multiple punishments. For sheep stealing,
that’s even worse. You’re flogged 100 times and
they pull out your hair and there’s a monetary fine,
and you do corvée, forced labor,
for a month. So are these ideas–is this
idea that the punishment should be neither too little nor too
much, it should match the crime,
that all free persons are equal before the law,
that one standard should apply regardless of the social status
of the perpetrator or the victim–are these ideas really
primitive legal concepts? In addition to asserting the
basic equality before the law for all free citizens,
the Bible mandates concern for the disenfranchised.
We’ve already seen that a
little bit in the laws of Leviticus 19:9-10,
which says that you have to leave,
you know, don’t go over your fields picking every little last
bit. You know, just go through,
get what you need, but leave a little bit behind
and let the poor and the stranger glean there.
Deuteronomy is a little less
generous. They substitute the phrase “the
widow, the orphan and the stranger” in that law where
Leviticus says the poor. Deuteronomy 24:20-22:
When you beat down the fruit of your olive trees,
[or gather the grapes of your vineyard;
see note 2] do not go over them again.
That [which remains on the
tree] shall go to the stranger,
the orphan [see note 3] and the widow… Always
remember you were a slave in the land of Egypt,
therefore do I enjoin you to observe this commandment.
So Leviticus supports outright charity for the poor in the form
of gleanings. Kind of a welfare system.
Deuteronomy has more of a
workfare system in mind; they actually never mention the
poor. It’s only Leviticus that
mentions the poor. For Deuteronomy,
it’s those who really can’t provide for themselves:
the widow, the orphan and the stranger who may not be able to
find employment. The poor should be working.
But you can assist them with
loans, according to Deuteronomy. And these should be generous.
Here’s Deuteronomy’s admonition
to loan money to the poor even if it means potential loss to
yourself because the seventh year is imminent;
the sabbatical year. In the sabbatical year,
all debts were released, cancelled.
Okay? Sort of an economic corrective
to restore people to a more equal economic situation.
So in the sixth year,
some people will feel ‘I don’t really want to lend money out.
It’s going to be cancelled next
year. I won’t get my money back.’
Loans must be made even if the
debt will be cancelled, for the simple reason that the
problem of poverty is a terrible and persistent problem.
Deuteronomy 15:7-11:
If there is among you a poor man, one of your brethren,
you shall not harden your heart or shut your hand against your
poor brethren, but you shall open your hand to
him and lend him sufficient for his need whatever it may be.
Beware lest you harbor the base
thought, ‘the seventh year, the year of debt release is
approaching’ so that you are mean to your poor kinsman and
give him nothing. You shall give to him freely,
and your heart shall not be grudging when you give to him,
for the poor will never cease out of the land.
Alright, the poor will always be with you.
This is where it comes from, but it gets misquoted later.
It’s taken to mean the poor are
always with you, so you don’t have to do
anything. That’s not what it means here
in Deuteronomy. Lend to them because the poor
will never cease out of the land,” therefore I command you,
open wide your hand.” Get busy, give charity.
It’s a problem that never goes
away, so you can never rest. Connected with this is the
biblical trend towards humanitarianism.
And there is, of course, much in biblical
legislation that offends modern sensibilities.
There’s no point in pretending that there isn’t.
For example,
as in the rest of the ancient world, slavery existed in
Israel. It did.
Even so, and this is not to apologize for it,
there is a tendency toward humanitarianism in the laws
concerning slavery. The Bible is equivocating on
this institution. In some societies,
in their legal systems, it’s clear that slaves are the
chattel, the property of the master.
The Bible, again, equivocates on this question.
They affirm some personal
rights for the slave, but not all.
In contrast to, for example,
the middle Assyrian laws, where a master can kill a slave
with impunity, the Bible legislates that the
master who wounds his slave in any way, even losing a
tooth–which is understood to be a minor thing,
because it’s not in any way an essential organ–so even if he
knocks out a tooth, right, he has to set him free.
That’s in Exodus 21:26-27.
Moreover, the slave is entitled
to the Sabbath rest and all of the Sabbath legislation.
And quite importantly,
a fugitive slave cannot be returned to his master.
That’s in Deuteronomy 23:16-17:
You shall not turn over to his master a slave who seeks
refuge with you from his master. He shall live with you in any
place he may choose among the settlements in your midst,
wherever he pleases; you must not ill treat
him. This is the opposite of the
fugitive slave law, actually in this country in the
nineteenth century, but also in Hammurabi’s Code.
Right, Hammurabi’s Code,
15,16 through 19: “If a citizen has harbored in
his house either a fugitive male or female slave belonging to the
state or private citizen and has not brought him forth at the
summons of the police, that householder shall be put
to death.” The term of Israelite,
Israelite slavery, that is to say an Israelite who
has fallen into service to another Israelite through,
generally, indebtedness–that’s a form that slavery took in the
ancient world and in the biblical picture–the term was
limited to six years by Exodus, by the Covenant Code.
In the Priestly code,
it’s prohibited altogether. No Israelite can be enslaved to
another Israelite. So it’s actually done away with
as an institution altogether. In general, the Bible urges
humanitarian treatment of the slave, again,
‘for you were once slaves in Egypt’ is the refrain.
Other evidence of the trend
towards humanitarianism is the lack of legalized violence in
the Bible. Here if you compare the Middle
Assyrian laws, you’ll see something quite
different. There, the middle Assyrian laws
explicitly authorize inhumane treatment of a deserting
wife–you can cut off her ears; legalized violence in the case
of a distrainee, a distrainee is a pledge,
someone who has been placed in your house because of a debt and
is working for you. The citizen may do what he
wishes as he feels the distrainee deserves.
He may pull out his hair.
He may mutilate his ears by
piercing them. The middle Assyrian laws also
legalized violence against a wife.
“When she deserves it” a seignor may pull out the hair of
his wife, mutilate or twist her ears.
There’s no liability attaching to him.
Legal systems often express their values by the punishments
that are posited for various transgressions.
And here, Moshe Greenberg has done something very interesting,
a little controversial, not everyone agrees with this.
But he’s pointed out that the
Bible differs from the other extra-biblical codes in the
value that it places on human life.
And you consider the crimes that are punished by capital
punishment, and the crimes that are punished by monetary
compensation, and he feels this is quite
revealing. So I’ve put this very handy
little chart on the board for you listing codes on one side.
And you’ll see the kinds of
things that are punished by monetary fine or compensation.
In the Hittite laws,
homicide–you pay a certain amount of money to compensate
for the death. Personal injury,
bodily injury, you pay a certain amount of
money. In the middle Assyrian laws
also, homicide–it’s up to the family.
They can decide how they want this to be punished,
but they can take money. Code of Hammurabi,
we only have an accidental homicide case,
we don’t have an intentional homicide case,
so we don’t know, but bodily injury when it’s
between equals, then the principle of
talion applies. But when it’s not between
equals, monetary payment and so on.
Death, on the other hand, is the punishment for certain
property crimes instead of personal injury and homicide
crimes. Death for theft in the Hittite
laws and for bestiality. In the middle Assyrian laws,
also theft and in the Code of Hammurabi, theft and cheating.
I’ll go over some of these in a
little more detail. So Greenberg is going to argue
that the Bible reverses the view of the other codes,
he says, because in those, life is cheap and property is
highly valued. So Hammurabi’s Code imposes the
death penalty for the theft of property, for assisting in the
escape of a slave, which is its master’s property,
for cheating a customer over the price of a drink.
Middle Assyrian Laws:
there’s death to a wife if she steals from her husband and
death to any who purchased the stolen goods.
The Bible never imposes the death penalty for violations of
property rights–personal property rights,
private property rights. Only for intentional homicide,
and certain religious and sexual offenses,
which are seen to be direct offenses to God.
Greenberg argues that in so doing, the Bible is expressing
the view that the sanctity of human life is paramount in its
value system. The Bible states explicitly
that homicide is the one crime for which no monetary punishment
can be substituted. You cannot ransom the life of a
murderer. He must pay with his life.
Numbers 35:31-34:
“You may not accept a ransom for the life of a murderer who
is guilty of a capitol crime; he must be put to death.
Nor may you accept ransom in
lieu of flight to a city of refuge.”
Remember if it’s an accidental homicide, there is a leniency in
the law that that person can run to a city of refuge and remain
there until the death of the high priest.
The shedding of his blood purges the land of “blood
guilt,” if you will, because this is a religious
crime. But you can’t pay money instead
of running to the city of refuge.
“You shall not pollute the land in which you live.”
There’s a notion here of blood
guilt, of pollution. …blood pollutes the
land, and the land can have no expiation for blood that is shed
on it, except by the blood of him who shed it.
You shall not defile the land in which you live,
in which I myself abide, for I the Lord abide among the
Israelite people. And outside the Bible,
we really don’t have that absolute ban on monetary
compensation for murder. Greenberg has argued that for
the biblical legislators, human life and property are
simply incommensurable. Crimes in the one realm cannot
be compensated by punishment in the other realm.
A crime in the realm of life/personal injury has to be
compensated in the same realm. In the same way property crimes
are not punished by death. Also in the bible there’s no,
what I call, literal punishment.
You’ll sometimes see people
refer to this as vicarious punishment.
I don’t think it’s vicarious punishment.
I call it literal punishment. Literal punishment:
for example, in the Code of Hammurabi,
where someone’s ox kills a child, then the ox owner’s child
is killed. That’s not vicarious.
You’re not substituting.
It’s literal.
The legal subject is the father; he has lost a child.
So I have to suffer the literal
punishment, as a father, I have to lose my child.
It’s not a substitution; it’s a literal punishment for
what you did to the other. And the Bible explicitly
rejects that idea. In Exodus 21,
it explicitly says that the owner’s child is not to be put
to death, is not killed. Deuteronomy 24:16 states that,
“Parents shall not be put to death for children,
nor children be put to death for their parents:
a person shall be put to death only for his own crime.”
The equal value of human life
and limb is also protected by the principle of talion
that we discussed above. In the Code of Hammurabi,
an aristocrat can simply pay money for injuring an inferior.
That’s not going to be much of
a hardship to a wealthy person, and it certainly reflects the
low value that’s placed on the life and limb of a member of the
lower class. Talion only applies
between social equals in the Code of Hammurabi.
In the Bible,
the extension of talion to all free persons,
regardless of class, expresses the notion that all
persons are of equal value. In the case of rape,
the rapist’s wife is not raped, as happens in the middle
Assyrian laws. Again, a literal punishment.
Other biblical values are
reflected in the emphasis on laws that deal with the plight
of the poor, the slave, the alien,
the rights and dignity of debtors and so on.
I’ve reached just about the end
of my time. Just one last statement,
because I don’t want to leave you with the impression that the
biblical materials speak with one voice–they don’t.
I mean, Greenberg has tried to
pull out some common values. Biblical legal materials
contain provisions that contradict one another.
Later versions of the law,
particularly in D for example, will update and revise earlier
versions of the law. Leviticus takes issue with the
whole institution of Israelite slavery that’s accepted in the
covenant quoted in Deuteronomy and says just no,
that can’t happen. All Israelites are servants of
God; none of you can be servants to
another. So in these laws–there is
contradiction. Nevertheless,
I think what Greenberg is trying to say is that it is
still fair–even though the materials contain
contradictions–it’s still fair to say that they sound certain
common themes. They express certain important
principles and values, which include:
the supreme sanctity of human life: that’s pretty consistently
maintained among the codes; the value of persons over
property: pretty consistently maintained;
the equality of all free persons before the law:
consistently maintained; the importance of assisting the
disadvantaged in society: very consistently maintained;
the integration and the interdependence of all aspects
of human life all coming within the will of God to legislate:
very consistently maintained. When we come back on Monday,
I just want to say a little bit about the narrative context in
which the laws are found before we move on into Deuteronomy.
Monday evening will be the time
at which the midterm exam will be posted on the website,
and that’ll be at 6:00 pm Monday evening.
You’ll have a 24-hour period of time in which to find–I forget
what I said–30 or 40 minutes? It’ll be clear on the
instructions. To just sit and treat it as if
you’re in an in-class exam situation, and write your essay.

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