A Complex Past: Biblical Legal Parameters--prophetic innovation Part 1A
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By Jonathan Seidel
The opening part of the essay will look at the first four cases of prophetic era legal innovation.
Intro:
This essay was initially written to explain the extent of halakhic observance in the ancient world and its consequences today. Questioning the oral background and halakhic formulation by the rabbis from academic findings and social background. Yet, my original essay then was bombarded with new indications as researched further. In the end, it tackled the degree of biblical law from the Pentateuch down to the rabbis. I have resorted instead to publish the initial discussion in a different essay as this theme overtook the former and deserves its own topic.
I first wish to look at the prophetic books to note any legal rulings and to see if they complement the Pentautchal account. Is there evidence of obedience or disobedience? Are there laces of diverging trends or evolutionary development? Notable scholars, who I will address later as Wells has addressed, do not believe the Mosaic law was authoritative but accept a legal network. What is the evidence of the contrasting opinion?
Temporary Innovations
Case 1:
Starting with the first example in Ruth, Prof. Beattie notes that the book of Ruth is an earlier document, given its legal ramifications and cultural knowledge. He validates the legal aspects as the storyteller would know to ensure credibility (whether this can be applied to rabbinic allegories is interesting given many modern scholars do not accept the accuracy of the stories)1. Prof. Driver argues the book is of earlier composition because of its literary style (even with the linguistic inconsistencies, though editing is highly possible)2. Prof. Beattie mentions the first problem in Noami owning the field formerly of her husband (Ruth 4:3)3. The Bible has no law permitting such action. Only a husband can inherit his wife’s estate, not vice versa (Numbers 27:8-11). Yet, there is permission in the non-canonical book Judith (Judith 8:7). Ruth is not the first time this action is implemented. Elisha assists the widow to pay off debts (Kings II 4:1-7), and a few chapters later, the husbands’ absence and the repeated mention of her house and land infers her personal inheritance (Kings II 8:1-6). Lastly, in Proverbs, the verse praising God’s support for the widow implies her inheritance (Proverbs 15:25)4.
Clearly, Ruth’s case is not new, but Prof. Beattie’s contextual analysis may supply a deeper picture. I have not found a rabbinic acknowledgement of this practice. It seems quite the opposite; the Sages reversed this ruling. I plan to apply this to the other cases as well: David eating the priestly bread despite rabbinic apologetics and Ezra’s intermarriage restriction. In the name of ‘the restoration’, stricter procedures are actually quite probable5. This case is odd as even in medieval Europe this question arose (medieval Jewish widows6). Ibn Ezra concurs with this approach though he extends to Noami and Ruth joint inheritance. Prof. Borrows furthers this theory that the practice was in effect7.
Case 2:
The second case is the law of redemption. This law states that a relative redeems the money sold (Leviticus 25). The law attempts to reclaim property to its original order by ordering a relative to assist. So whether the property becomes part of the estate is debatable. Prof. Borrows suggests the property is part of the relative’s estate demonstrated in Jeremiah (Jeremiah 32:6-8)8. Jeremiah’s cousin bequeaths to buy the field on his behalf, telling him it will be his. It is about salvaging the property for the clan (property transfer and the Bible), not family necessarily (similarly as witnessed with the tribal leader’s lament to Moses regarding the Zelophehad case. Moses replied that they marry within the tribe for its land sake). Prof. Beattie questions the legitimacy of this case as it differs from Ruth9. The latter is about sale and purchase and not redemption. Boaz’s speech maintains total rights, which the redeemer was unwilling to accept.
Rashi explains Ruth’s interest in the field added to the condition of marriage. Rashi’s maverick opinion stems from his view of Ruth and Orpah’s prior invalid Jewish marriage. Radak interprets the leverage marriage of Ruth as a different custom than the law presented in Deuteronomy (Judah’s marriage to Tamar may also reflect an ancient custom comparable with yibbum in Genesis 38). Radak’s explanation hints at an evolving system that reversed in time as well. The Sages abandoned the practice for its alternative halizah or simply refusal ritual instead (Berachot 13a, SA EE 165). Prof. Burrows links the redemption law with levirate marriage10. Though Prof. Beattie cites Neufeld and Rowley, who confirm the permission to extend levirate marriage, there is no rabbinic permission nor acknowledgement of such an episode and does not conform to the law’s purpose11. For this essay, it is excluded as a possibility. Textually it also does not work (Tamar’s extraordinary risk). The redeemer retracted his interest when he realised the move would be profitless. Boaz’s action in marrying Ruth, acknowledging its profitless effect, goes ahead with it nonetheless, highlighting his piety. Concluding that redemption differed from purchasing, yet the original owner retained some property redeemed. Notably, levirate marriage does remain intact and does not allow for further expansion of the law.
This actually may reflect my theory of metaphysical values and temporary rulings12. Values persisting alter the law as in the former cases but, indeed, may retain a law in light of its merit. The Sages, later on, absolved yibbum though still practised in other communities. Yet, I would argue as some rabbis did that, just as later on, values altered the text, so too here, it did the opposite by maintaining it due to familial ties.
Case 3:
The next two examples are problematic since there is rabbinic justification for these practices. Nonetheless, it does not indicate therefore it was given at Sinai. As noted at times, there is rabbinic apologetics, whether in rabbinic opinion or exegesis. The first example is carrying on the Sabbath (hotza’ah) and David eating the bread with Jesus’ quotation of the event. The Pentateuch does outline a few prohibitions: cooking (Exodus 16:23), ploughing and harvesting (Exodus 34:21), kindling fire (Exodus 35:3) and gathering wood (Exodus 15:32). There are some limitations, but carrying is not one of them. Prof. Schwartz simply notes it was a cessation of labour without discussing its further implications13.
These limitations may reflect the ancient style. Numerous texts reflect its observance similarly to Ruth’s validated legislation but are more prophetic, inhibiting its potential practical obedience (Amos 8:5, Isaiah 58:13-14, Jeremiah 17:19-27, and Nehemiah 10:32, 13:15-22). Business is central in light of abstaining from mundane labour and being with God. This expansion may have grown in response to monarchical success and commercial excellence.
Jeremiah specifies the prohibition of carrying a load. Prof. Jassen attempts to solve this query by analysing the biblical text itself synchronically. According to Prof. Jassen, its prophetic mantra enabled exegetical extensions later14. In Nehemiah, it mentions the issue of carrying in the vein of selling. Prof. Fishbane notes that given selling is only implicit in Nehemiah reflects an innovation from Jeremiah15. Although my argument has been that Ezra reversed the law, this may not be entirely uniform and, again, feasibly a reflection of values. Since this innovation is stricter, it may not have needed a reversal, and my theory may only apply to more lenient and liberal agendas. In any event, Nehemiah clarifies Jeremiah’s load concept as heaps of grain, wine, grapes and figs. Nehemiah utilises exegesis to further the law by filling in the blanks: explaining “carried” means “brought”, what is brought (goods) and where it is (Jerusalem). Nehemiah modifies the prophecy to regard transference as the issue, not mere holding something. Yet, this list is not all-inclusive: it is specific to a certain type and certain area. Seemingly, carrying books through the gates of Jerusalem is not an issue, nor is bringing goods in any other region.
The book of Jubilees, though not accepted in the rabbinic canon, provides insight into Jewish thought in the second temple era. Jubilees mentions laws reflective of rabbinic law: forbidding bringing anything not prepared before the sixth day or carrying something outside the house (Jubilees 2:29-30, 50:8). Jubilees take a different route than Nehemiah. While the latter clarified commercial use, the former work restricts carrying in its own right. It is not about what you carry, it is that you carry. The Dead Sea Scrolls share much with the prior work. Both are highly anti-carrying. The Damascus Document takes the words from Jeremiah and defines load as anything (CD 11:7-9). There is a different text limiting carrying to vessels and food. Prof. Jassen argues this is to clarify the prior prohibition not to distinguish the varied scrolls16. This scroll is unique in noting a tent to limit distance. Not only is nothing allowed to be carried, but distance is limited to private areas (4Q265 6:4-5). This innovation is even stricter than any of the prior sources. The Mishnah commits the same omission that the Qumranic scrolls do by failing to clarify “load”, it becomes all-inclusive (M. Shabbat 1:1, 7:2). The Yerushalmi validates the Mishnah by quoting the verse in Jeremiah (J. Shabbat 1:1 2b). Despite the seeming innovative continuity, the Yerushalmi ignores Nehemiah and legitimises its all-inclusive restriction from Jeremiah. The Bavli tells a story of Moses telling the Israelites not to bring from private to public as a legitimate source for this prohibition (Shabbat 96b).
We should not mistake this verse for implying wilderness acceptance of the law. Given the vagueness in the Pentateuch and Nehemiah’s innovations that would violate the law, concede to the absence of this practice. The evidence points to a post-Pentateuchal law that the Sages legitimised through creative interpretation, utilising the narrative to validate and supply authority to their ruling. The Sages reworked the law transmitted to them by invigorating greater prowess by sourcing it in Pentateuchal verses.
Case 4:
The second example is of David eating the bread. Jesus’ disciples plucked grain, and the Pharisees rebuked them. Jesus responds that David did the same when he ate priestly bread, concluding Sabbath is for man (Mark 2:23-28). Implying it is free for all vocations. If David, whether an older character breaking the linear line of observance or a Pharisee hero, is breaching the law, why can’t I? In Christian lore, this is Jesus moving from the letter to the spirit17. The defence of mortal danger by the Talmud is contextually correct (Menachot 95b-96a). David was on the run from King Saul and sought refuge amongst the priests (Samuel I 21:1-6). Could he have gone elsewhere for food? Yeah, probably, but people do not necessarily think rationally in mortal danger. Jesus’ reply is insufficient given the context. David being endangered and his disciples just hungry is not congruent, but that is not the issue at hand (ibid).
I want to explore whether there is precedent for the claim of overriding priestly bread due to danger in earlier texts. Though additionally, Jesus’ comparison between priestly bread and violating Shabbos is also incongruent. I was unable to find a biblical source to accommodate David’s actions. Shmuel’s rendition of living and not dying by the statues (Yoma 85b) would validate his actions, but this is a later interpretation not explicit in the biblical text. The law prohibits anyone except priests from the bread (Leviticus 24:5-9). If Jesus’ comparison is tenable, which I do not think it necessarily is. Theoretically, if both were in danger then they would be allowed (Ketubot 19a). Practically it is not permissible, but if they were starving like David, potentially, it is okay. The book of Maccabees may supply the first case of pikuach nefesh (Maccabees I 2:29-42). Though not canonised, its info may be reminiscent of a growing trend of saving life over law. The use of exegesis and citation to justify a text or validate its origin does not in any way authenticate its continued existence. It may be a recent phenomenon but authenticated by the original canon. Whether in the Talmud’s case or Jesus’ example taken to the extreme, it would only be permissible by pharisee notation. It may have been a recent innovation granted its absence from tradition.
Life over the law was difficult to find in Greco-Roman legal collections so it may be a Jewish thing, yet the first encounter was in late antiquity. It may be a stretch, but the novel notion of life precedence carried into the rabbinic era and became a monumental law sourced in the Pentateuchal text.
David’s actions may resemble a lawless situation. What to do? Die or sin? Presumably, the latter was chosen, but this one-time situation with dire consequences may not reflect a new customer to be furthered as life precedence later on. God’s silence in a time of constant intervention means he was alright. David’s actions could have been unique only vocalised in Maccabees I but clear in Samuel I. The Sages then demonstrated why constitutionally, what he did was legal retroactively. Instead of David acting aware of the law, he did so in light of developing customs that shaped rabbinic culture.
Endnotes
1. See D.R.G. Beattie, “The Book of Ruth as Evidence for Israelite Legal Practice”, Vetus Testamentum 24 pg. 252-253.↩
2. S.R. Driver, An Introduction to the Literature of the Old Testament, (Edinburgh, (1891) 9th edition (1913) 1950) pg. 454.↩
4. The case in Proverbs may hint to Prof. Jackson’s notion of narrative readings of the text that invoke this image represented in the ancient social background. See: Bernard S. Jackson, Studies in the Semiotics of Biblical Law, JSOTSup 314 (Sheffield: Sheffield Academic, 2000), pp. 70–92.↩
5. Without delving too far off course, the move from mimetic tradition to the book-centred approach of the da’at Torah philosophy in the late nineteenth century may also reflect this pattern.↩
6. See: Cheryl Tallan, “Medieval Jewish Widows: Their Control of Resources” Jewish History 5:1 pg. 67. Prof. Tallan notes Jewish widows did receive secure assets from their Ketubot. They were able to do what they wished with these assets and thus had greater freedom than their Christian counterparts.↩
7. Millar Burrows, “The Marriage of Boaz and Ruth”, JBL LIX pg. 448.↩
12. See my: Angelic Ideals.↩.
13. Baruch J. Schwartz, “The Sabbath in the Torah Sources”, paper presented at the 2007 Society of Biblical Literature Annual Meeting (Biblical Law section) pp. 10-13.↩
14. Alex P. Jassen, “Tracing the Threads of Jewish Law: The Sabbath Carrying Prohibition from Jeremiah to the Rabbis,” ASE 28 pg. 258. See a similar argument made by the same author: The Prohibition to Carry on Shabbat: Historical and Exegetical Development.↩.
15. Michael Fishbane, Biblical Interpretation in Ancient Israel, Oxford, Clarendon, 1985, pg. 131 n. 70.↩
17. Chaim Saiman, “Jesus' Legal Theory: A Rabbinic Reading,” Journal of Law & Religion 23:1 pg. 108.↩
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