A Complex Past: Biblical Legal Parameters--prophetic innovation Part 1B
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This essay will analyse the last four cases of the prophetic era legal innovation
Case 5:
The next case is intermarriage. Prof. Japhet mentions there are multiple examples of the law or book of Moses (Nehemiah 8:1,8, 13:1, Kings II 14:6, 22:8, Chronicles II 34:14)1. Many assert this is solely to Deuteronomy but perhaps to all of it. Ezra’s era was prompted by a restoration of biblical law. Post-exile reviving the spirit of old was imperative. Yet, this was not done formally but had added innovative aspects illustrated in prior examples. Intermarriage may reflect a similar pattern. The Pentateuch is not explicit about such a prohibition. The patriarchs are animatedly against marrying the Canaanite women, instead prioritising their own families (Genesis 24:3-4, 28:1-2)2. Abraham sends his servant to Haran, and Isaac does the same for Jacob. Even Esau heeds his father’s opposition by marrying the daughter of Ishmael (Genesis 28:9). God warns the Israelites to beware the people of the land and take their wives (Exodus 34:11-16). Before entering the land, God repeats it more apodictically that they will stir you away from God (Deuteronomy 7:4, 20:17-18). This warning is legitimate given the pervasive idolatrous practice. The prohibition repeats throughout the Bible (Joshua 23:12, Judges 3:6, 14:3 and Kings I 11:2). Although the Pentateuch does mention one case when foreign marriage is permitted, in the case of the beautiful captive woman (Deuteronomy 21:11-14). This exception seems to derive from psychological warfare (meaning an extreme situation).
Prof. Japhet rightly notes that there is no mention of anyone outside the seven nations as an issue3. Additional texts prohibit Ammonite, Moabite, Edomite and Egyptian women (Deuteronomy 23:2-9). Yet, these are due to punishments. They are not inherently problematic but are consequences of their actions. One could argue the prohibitions are regulated to the regional nations applying really to anyone or the nations constitute familiar ties except Egypt, who do not fit the mould (though Abraham did marry Hagar). It seems more probable it was their failures and only they were forbidden, but Assyrian, African or Asian women would be permissible.
Moses married Tziporah, a Midianite woman, Joshua according to later tradition, married Rachav from Jericho though accordingly, she converted. The patriarchs follow different norms, Abraham and Hagar, Jacob with the maidservants, Judah with Shua and then Tamar, Joseph and Osnat, Boaz with Ruth, Solomon with many different women like the Queen of Sheba, and Samson and Delilah. The Sages justified many of these by conversion or protecting Israel. I am not concerned with rabbinic solutions but with the text. The patriarchs' marriage to one of the seven nations is before Egyptian enslavement as well as other marriages. Moses married a Midianite woman who is not prohibited explicitly ever. Though rabbinic literature mentions she converted, there is no need to expect it. There is no issue. It is entirely conditional according to the biblical text4.
Not even conversion is sufficient for the latter nations. They failed and are dismissed from ever entering the Israelite nation. A classic case is in Ruth. The Sages (Boaz does so textually) circumvented the issue by applying the law to males, not females (M. Yevamot 8:3). The Sages did this regarding excluding women from time-bound commands. Ironically, everyone points to Boaz and Ruth but not to Mahlon and Kilion’s marriage to Ruth and Orpah. Ruth’s so-called conversion cannot be accepted as a true conversion by rabbinic standards. This evidence may suffice to intermarriage acceptance in the prophetic era. Following an innovative norm not mentioned in the text. The key detail is not the ability to marry others but the innovation of marrying Moabite women. There is no evidence of marrying Moabite men, just the opposite. The Sages justified it later on, but Ezra does not heed this distinction and restores the power of Deuteronomy. Ezra goes even farther than the original text. Ezra and Nehemiah put more restrictions on the current situation (Nehemiah 13:1-3)5. According to Ezra, even Moses’ actions were unjustified (though never explicitly stated). All intermarriage is problematic (Ezra 9-10).
Prof. Japhet is correct in her accusation of the strict parameters of the restoration6 that even the Sages at times reduced. Ezra and his generation expelled their wives to start anew, pure in the eyes of God (Ezra 10:3-4). Ezra suggests it is done according to the law, but no such law is mentioned. He simply expands the law. Prof. Kaufmann notes this is the first halakhic midrash7. Whether or not this is accurate is irreverent. Prof. Kaufmann is, indeed, correct that Ezra and Nehemiah continuously refer to earlier passages to authenticate and expand upon8. Prof. Japhet argues these regulations are meant to signify the common legal circumstances9. Its earlier citation validates the expansion with the norm. As seen here, the restoration period followed the pattern of signalling old commands with renewed extensions. Even Ezra and Nehemiah can be read as these people are problematic or we are weak right now. Once we are stabilised intermarriage is ok. There does not seem to be so much room for leeway, but it is a possible answer. The rabbis later on prohibited such action entirely (Kiddushin 68b).
The Talmudic opposition did not cease intermarriage, as R’ Councy noted dissolving such interfaith marriages (SMOG 112). Recently, intermarriage has become accepted in varying sects. The conservative movement has had an extensive debate on the manner (It is worth noting that current sects do not look to the Bible for legal guidance but the Talmud. It is more or less irrelevant what Ezra says)10. Interestingly Israeli Jews heavily oppose marrying Muslim women or vice versa calling it: “national treason”11. People are scared of losing culture, which is generally genuine, but it can be argued that with a strong foundation as it was in the prophetic era, such couplings were allowed under the guise of conversion. Entering a theocracy or a nation requires cultic observance. Ezra and Nehemiah again follow this pattern.
Case 6:
The last two examples have rabbinic justification (Shabbat 56a12, Makkot 23b13), but as noted earlier, it seems more of an excuse than an accurate depiction: Our heroes could not have messed up. Our tradition is linear and unchanging and always kept. Given the textual inconsistencies already presented, it was likely a defence against the Sadducees and/or Christians instead of portraying actual history. It was a rhetorical strategy. I’m not discounting an oral tradition, but I am contesting their account of it. There were cultic norms and were most probably an evolutionary system that had many of these rituals. Archaeological evidence of phylacteries in late antiquity attests to its ancient use14. This finding in no way proves it is of Sinaitic origin. Only that it is older and not invented by rabbis. It was plausibly invented by earlier Israelites as part of an ancient cultic custom. Speculative, but it's possible, and its origin is older than late rabbinic Judaism. There was an oral tradition, just maybe not in its Mishnaic form.
These two examples are David with Bathsheba and Solomon with the baby. There are examples of exonerating David’s sin, but some commentators brazenly proclaim his sin (Rid, Riban, Ibn Capsi, and Abarbanel). Abarbanel is the most explicit and clear about David’s adultery and murder. Abarbanel rejects the Talmudic justification for David’s actions (Shabbat 56a). According to Abarbanel and myself, the text speaks for itself. So how did David get off? He repents and then is punished. David recognises his fault and confesses. Upon taking a closer look, Nathan never accuses David of committing adultery. He instead provides a parable of a rich man stealing from a poor man (Samuel I 12:1-4). Why does he not? Textually, it may be from a lack of evidence15. The Talmudic point about bills of divorce before leaving for war may be a reasonable solution. Nor did he have evidence of Uriah’s intended murder. How then could he marry her? There is a law that a man who cohabits with a young maiden marries her (Exodus 22:16). Earlier, we noted Boaz’s levirate-like actions reflecting a common cultic phenomenon of keeping women married not allowing the vulnerable to suffer. David indeed salvages and protects her after all the wrong he did (Samuel I 12:16-24). His desire to sleep with her for a one-night stand evolves into caring for her in marriage. Eventually, her child becomes the king.
As the king, there may be some leeway to his actions permitting him to marry her after his offence. His power was absolute, and he took her even after knowing for sure she was married (Samuel I 11:3-4). He blatantly committed adultery, but again his actions may be lenient for the king. The Pentateuch gives some leeway to the king, and this may have expanded in the prophetic years. Additionally, criminal law may have been unenforceable, sanctioning his actions16. He may have confessed to some aspect, but without its public recognition, it does not exist17.
David sinned, and he acknowledges it, but in this cultic reality, it may have been his ability to do so as the king or the lack of evidence allowed him to continue. God does intervene but does not duel the biblical punishment. Ancient Near East collections permitted the husband to waive or mitigate the punishment. R' Gordis makes a similar argument18. Uriah’s death ceases this possibility, forcing God’s hand. The Bible does not say this but following the current theme, the cultic norm may have mirrored other nations in the prophetic era. Nathan’s parable may have been to induce David to admit his error as he had no evidence otherwise19. His ruse works, and David atones.
Case 7:
Solomon’s intent to cut the baby in half attests to an interesting and seemingly radical conclusion. Though he tricked the lying mother, it is not viable legally. There is no precedent for such action. Solomon’s wisdom is clarified here, but demonstrating wisdom should not be on the account of a child’s life. Ralbag reducing Solomon’s wisdom to his era would better explain his crazy deduction. Prof. Berman argues the lack of legal references or any biblical source for his actions is telling in the situation20. Most focus on Solomon’s wisdom and his ingenious scheme instead of the legality of his actions. According to Prof. de Vaux, Solomon’s decision is a genuine legal process21. Prof. Macholz argues that Deuteronomy almost abolishes royal judicial authority22. If this is true then an innovation proceeded to grant more flexibility but ultimately rescinded in later eras. The later prophetic attack on social injustice warns against maverick decision making (Amos and Michah, Jeremiah 9:1-5). Prof. Lasine points out that Deuteronomy conflicts with the prophetic text23.
Despite human imperfection, Solomon’s divine knowledge puts him above the crop. His superiority provides him with the ability to judge alone. He becomes the exception to Deuteronomy’s fear. In a way, Solomon is restoring faith in the system, but his exceptional wisdom is unhelpful to the layman. His eventual downfall is also not oozing confidence. Solomon is a unique character with a unique ability that seems less about cultic practices and more about his character. This example does deviate from prior examples, here revolving around a single individual. Yet, the process of prophetic era innovation to then be later suspended for a stricter version is consistent.
Case 8:
This is not an essay to acknowledge the revolutionary character of the Bible, but its context is important in its ever-growing nature. In recognising the idealistic character of the Bible, the Jubilee or Yovel comes to mind. The Jubilee suspends agricultural work and frees slaves. Additionally, the land reverts to its original owner (Leviticus 25). Although this sounds amazing in the modern sense, it does sound impractical. Prof. Blidstein notes that it was only implemented when the tribes were in their designated lands24. Since returning land is more about tribal acquisition, not familiar reversal, it could only be possible when the tribes were in their applied sectors. By the second temple period, the practice ceased.
Prof. Beaton argues that the varied kinship nature of Israelite society enabled the possibility of such a construction. He regards the Jubilee as progressiveness in contrast to the other surrounding nations25. By arguing for a pragmatic implementation, Israel was actually progressive instead of theoretical myths. There is a theological foothold for this and therefore need not be implemented. It is God’s land and is to be redeemed, but the socio-economic ramifications are justly critical to communal growth and unity. The Zelophehad-daughters’ story hints at this. The tribal leaders complain that they will lose the land, prompting Moses to declare they marry intra-tribally. Technically, had they married inter-tribally when Yovel came about the land would have reversed, diminishing its practical application, but because they were daughters or the timing of the case may have questioned the genuine reversal (Numbers 36:3-4).
In Ezekiel, there are provisions about the prince or ruler’s taking of people’s land. The infamous story of Naboth where Ahab confiscated his land for treason (Kings I 21). Ezekiel’s mentioning adds to the prior law. Royalty playing around with people’s inheritance undermines the kinship model26. The provision potentially follows the vagueness of the Pentateuchal account. This modification protected workers from Ahab and any other tyrannical royal actions. The rabbinic position marks it as Messianic, supplying a serene futuristic society. An inspiration to work towards a tranquil reality following the recent tragedies and exile. The Jubilee had a possibility of occurring but for how long is unknown. The Sabbatical year persisted, so it’s likely both worked in tandem. Whether mid-biblical period or during the restoration, it ceased as a practical endeavour and morphed into a Messianic vision.
Endnotes
1. Sara Japhet, “Law and ‘The Law’ in Ezra-Nehemiah,” in Proceedings of the Ninth World Congress of Jewish Studies (Jerusalem: Magnes, 1988), pg. 137.↩
2. It is interesting to note that in the last verse preceding Isaac sending Jacob to Laban, Rebbeca laments to Isaac her disgust with the Hittite women and how terrible it would be if he married one of them (Genesis 27:46). She does not mention Esau because of her sole love for Jacob or due to the blessing debacle in the previous verses. Similarly Esau heeds his father’s order to Jacob to marry within the family without any comment about his mother. Again, this may be a textual point. He did not hear his mother remark her aversion to the Hittite women, only hearing his father. Alternatively, the narrative is pointing to a disconnect between parent and child. The bookend interpretations are not obvious but do underlie the link between the two that seems non-existent. There is no verse that mentions Rebecca talking to Esau or vice versa. We can surmise that when Jacob steals the blessing, Isaac talks to Jacob as if he is Esau may point to deeper bond. Additionally, Isaac only commands Jacob to go to Haran, not Esau. This may be due to a firstborn requirement but it also may hint to a growing disconnect Esau had even with his father as well. Still, he recognised his father’s antagonism to the Canaanite women. He did not need a command, he understood. One could argue that he did not even need a command, he was aware and followed through. For all the negativity about Esau, the text reveals quite a great deal of good about him in his continued allegiance despite the obvious tension.↩
4. David Novak argues the varying nature of conversion in the biblical era and the rabbinic era. In the former it was a process, the latter an event. Converts would renounce idolatry and later on circumcise. There was a political and religious component to it. Quoting Prof. Kauffmann that pure religious conversion of the rabbis was a later innovation. The rabbis expected full acceptance and circumcision. In this case, marrying the women who are not required to circumcise and simply need to renounce idolatry is quite simple. See: David Novak, The Image of the Non-Jew in Judaism, ed. Matthew Lagrone (sec. ed. Oxford/Portland, Oregon., The Littman Library of Jewish Civilization, 2011), pp. 24-25.↩
5. Nehemiah is concerned the children will not be tribally observant. His antagonism is not the marriages themselves but the consequences they brought (Nehemiah 13:25).↩
7. Yechezkel Kaufmann, History of the Religion of Israel, Jerusalem, 1972, pg. 4:293 [Hebrew].↩
10. See: Intermarriage and Conservative Judaism. R’ Epstein wrote a responsum for congratulating mixed married families. The committee voted in favour 8 to 4. The query surrounding congratulating members on the marriage to non-Jews or the birth of a non-Jewish grandchild to congregant grandparents. After providing a historical-halakhic analysis of prior decisions to the issue such as preventing membership to a non-Jewish spouse (Committee 1941-44 and B. Cohen’s letter) and forbidding Rabbinic Assembly members from officiating at mixed weddings (CJLS Minutes 10/28/70 pg. 2 and CJLS Minutes 12/21/71 pg. 2). The committee concluded that it would not congratulate or in any way promote such marriages. See: Jerome Epstein, “Congratulations to Mixed Marriage Families” CJLS EH 16.1989. See also: Conservative Judaism's Intermarriage Stance Will Change. See also: How the Halakhic Community Should Respond to the Conservative Movement's Move Toward Accepting Intermarriage? | UTJ Viewpoints.↩
11. Why interfaith marriage is on the rise in Israel - and why it's a problem. See: The Missed Opportunity for Intermarriage and Conversion in the Story of Dinah. Prof. Graetz argues the text conveys both an anti and pro intermarriage stance. In arguing for the Shechem-Dinah inclusion, they were willing to convert and that is different than leaving the fold. She implies anti/pro with conversion to point to including others if they wish to enter our framework.↩
12. Understanding the Episode of Dovid and Batsheva - A Journey Through Nach. The conclusion is that David did not sin. Quoting a variety of commentators who argue this opinion such as Malbim, Ibn Ezra, Maharal and others. The author makes this startling point about how the Sages are not covering it up because had he sinned they would have said so but that is not obvious. The biggest issue is how the other commentators attack Abarbanel accepting the Sages’ rendition of “fictitious” events as they are not mentioned in the text as well as ignoring David’s acceptance of his sin. Nathan accuses him of sinning, he repents and God punishes him. Just because the Talmudic text goes out of its way to frame that he did not sin does not fit well with the plain text. In contrast to R’ Nevenzhal’s point, he does try to cover it up initially by sending Uriah home and then indirectly murdering him. Only when Nathan approaches him, does he fess up. The biggest issue with following up this mantra is R’ Shmuel bar Nachmani’s continual exoneration of every hero. He continues with Solomon as well despite even Nehemiah mentioning Solomon sinned (Nehemiah 13:26). I would argue that the Talmud is not teaching that David did not actually sin because the text is explicit but rather to teach even if he did all this, he still messed up big time. Being halakhically correct does not mean morally right. This goes for withholding a get, one could legally do it but it's extraordinarily immoral. Maimonides made the same argument with treatment of slaves. You can own them legally but overworking them is wrong.↩
13. See both: Commentary/Opinion - The Brilliant Wisdom of King Solomon and Wisdom and Human Pretention: The Riddle of Shlomo and its Resolution for differing views.↩
14. Uncovered in Jerusalem, 9 tiny unopened Dead Sea Scrolls. See also: The Origins of Tefillin.↩
15. The King's Great Cover-Up and Great Confession.↩
16. Arnold N. Enker, “Aspects of Interactions between the Torah Law, the King's Law, and the Noahide Law in Jewish Criminal Law,” Cardozo Law Review 12 pg. 1141.↩
17. This is a bigger question if someone is of a certain ontological status by action or by knowledge. It seems in certain areas like the mamzer that it is through knowledge that status takes effect but maybe in others as well (according to Ran and others). It may be a similar example. If no one knows, it’s not that it did not happen, but the ritualistic consequences are not viable.↩
18. Robert Gordis, “On Adultery in Biblical and Babylonian Law - A Note” Judaism 33:2 pg. 211.↩
19. Alex Janzen, “The Condemnation of David's "Taking" in 2 Samuel 12:1—14” JBL 131:2 pg. 211.↩
20. What Is Jewish Law and Legal Tradition? | The Biblical Mind.↩.
21. Roland De Vaux, Ancient Israel: its life and institutions, (New York: McGraw-Hill, 1961).↩
22. G.C. Macholz, “Zur Geschichte der Justizorganisation in Juda” ZAW 84 pg. 339.↩
23. Stuart Lasine, “The Riddle of Solomon's Judgment and the Riddle of Human Nature in the Hebrew Bible” JSOT 14:45 pg. 73.↩
24. Gerald J. Blidstein, “Yovel: Ideology and History in Rabbinic Law,” Millenarismi nella cultura contemporanea ed. Enrico Rambaldi, (Milan: Angeli, 2000), pg. 190.↩
25. James Daniel Beaton, “Finding Justice in Ancient Israelite Law: A Survey of the Legal System of the Israelites during the Post-Exodus, Pre-Exilic Period”, Journal for the Study of the Old Testament 41.2 pg. 152.↩
26. Richard H. Hiers, “Transfer of Property by Inheritance and Bequest in Biblical Law and Tradition, 10 Journal of Law & Religion 10:1 pg. 141.↩
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