A Complex Past: Biblical Legal Parameters Part 5--a uniform book or diverse manuscripts?
By: Jonathan Seidel
The final part of the series will examine the theory of stylistic authorship: whether the books are of varied eras one up-ing each other or whether they compliment each other.
Codependent
Prof. Berman applies a complementary thesis to the character of biblical law in contrast to the supersessionist model. The latter is the more accepted position arguing that the individualism of each of the codes highlights diverse redactors at different eras1. To reconcile the differences, these scholars argue the latter wish to supersede their predecessors, but it does seem that scholars differ, which text came first2. Some see the Priestly Code as the latest, and others Deuteronomy. The textual contradictions point to different feelings regarding legal implementation. The former view may be minute, but it is backed by some heavy hitters like Eckart Otto and Bernard Jackson3.
Prof. Berman accurately notes as has Prof. Jackson, that imposing modern legal nature on the ancient system is void. Statutory law, I've already argued elsewhere, began in Ancient Greece years following the biblical period and was not internalised in Jewish literature till late into antiquity, maybe even into the Early Rishonim4. The oral culture was not usurped by the bookish style until much later. Even according to the supersessionists, the lack of statutory law recognition even in late antiquity would negate such canonical factors in the biblical record. Prof. Berman argues common legal theory became prevalent in the mid-nineteenth century, but it did exist not only in the premodern world but in premodern Judaism5. As Prof. Jackson demonstrated, judges did not refer to codified text but instead to localised custom6. Prof. Jackson may be more extreme than Prof. Berman in the rare use of courts, yet both concede to paramount custom. legislation is almost irrelevant, and judicial discretion is recognised7. The system is classically clued and vague8. Prof. Westbrook noted that Roman statutory law considered language the primary function. The law is the text, nothing beyond9, yet Prof. Berman notes the ancient legal collections did constitute a higher knowledge. This also fits into Prof. Jackson’s narrative approach encompassing beyond the text. The custom-centric framework had legal collections that pointed more to custom in a larger judicial framework.
The law collections are anthologies of judgements, of inspiration to explain judicial authority. Prof. Berman’s model, in a way, combines the inspirational view of Prof. Walzer and the actuality of Prof. Otto. Anthologies were not about sources for precedent but resources for it. Judges equally were not bound by earlier decisions; they rather were influenced by them. The legal notes throughout biblical literature reveal a common law trajectory that did not cease even after the restoration of Ezra-Nehemiah, who persisted in this hermeneutic. The restoration was not a transformation but a realignment. The differences throughout the codes are not due to varying authors/editors but evolutionary change. Prof. Berman notes the parallels between the codes as evidence for his complementary approach10.
A diachronic methodology is useful for comprehending the ancient models, but it does not account for the internal synchronic formulation of the Bible. This is where I think Prof. Jackson protests many of the academic styles11. Prof. Greenberg is accurate in his portrayal of ancient legal construction and the rationale for divergences with the biblical model12, but Prof. Jackson retorts failing to note the internal mechanistic narrative of the Bible13. This is crucial. I have concurred with Prof. Greenberg’s outlook following my own investigation before exposure, but Prof. Jackson has a point. Diachronic measures are essential, but we cannot forgo the synchronic necessity. Prof. Hayes, in her essay on "halakha l'moshe misinai" accurately displayed the literary notation of the term and its multiple definitions14. Prof. Alter, among others, has argued for a literary approach to the Bible, examining its internal artistry15.
One such example is the captive wife. The term ‘Yifat toar’/exceptional beauty (Deuteronomy 21:11) is also ascribed to Rachel (Genesis 29:17) and Joseph (Genesis 36:9). This similarity was intentional to point to psychological warfare and further requirements16. Additionally, it is interesting that though the Bible never titles the commandments/deeds, it is the rabbis who name the law “eshet Yifat toar” (Sefer Hamitzvot Positive Command 221). This example does not entail a complimentary law but phrasing. In this vein, a supersessionist would not bother to link the two, but a complimentary redactor would for sure.
The synchronic narrative does not entail a static closed system but an internal developmental one. Taking this argument even further, Jeremiah and Ezekiel invoke phraseology from Deuteronomy and Leviticus respectively17. Prof. Berman illustrates this continuity in prophetic literature with Amalek18. Deuteronomy refers to the incident in Exodus to remember it (Deuteronomy 25:17-18). Samuel I formulates the former verse in almost verbatim effort (Samuel I 15:2). Prof. Garsiel argues that the Samuel author combines both the Exodus and Deuteronomy texts to justify the war19. Exodus is God/Moses who determines the war but in Samuel I, it is the Israelites (Exodus 17:11)20.
Deuteronomy notes this transition that flows beautifully from parental care to individuality (Deuteronomy 25:19). Divine oracles may persist, but God, putting the war on Israel was the first step in personal maturity. Thus the rabbinic enterprise, personally, was more a developmental model that would eventually give man the ability to decide for himself. It is also contrary to Prof. Wells, who claims Deuteronomy is later due to the judicial presentation21. Ironically one of the places the word “darash” means to judge is in the book of judges, which predates (Judges 6:29). He seems to note this but overlooks it immediately22. Moses’ turn to God in the prior sources stems from the immaturity of the nation, and Deuteronomy is the shift in many ways23. Prof. Berman points to several examples24. The entire enterprise is shifted. Textually forty years may not seem like much, but also recognise the people’s journey. They are leaving bondage on the road to freedom. They exhibit childish actions and are treated as such but Deuteronomy is on the brink of entering the land. The idea that this is a different generation than the previous chapters is certainly questioned, but it appears those entering are the same as those sinning in the prior chapters. Still, the people are now entering the land that must be run by people. All the miracles cease, and it's on the people. Politically, the nation will transition to people caring for the system. This is not to say that God will cease from entering the frame. Again, the rabbinic model emerged after the cessation of prophecy despite later figures like Honi and R’ Hanina ben Dosa having prophetic powers (Ta’anit 25b). Given the Talmudic arguments, we will consent with them.
Yet, I would argue that prophecy would not mitigate human appropriation of the law. Whether if is not for its cessation, we would have human intervention is debatable. The rabbis argued the Torah is not in heaven, and they do not listen to divine voices (Bava Metzia 59b). Still, this may be a Rabbinic hermeneutic attempt to justify their actions or a historical claim. This may contradict the evolutionary changes made by Jeremiah, but we can distinguish between divine proclamation and divine wisdom. Though Jeremiah is written in a way that seems to resonate with Moses’ actions in Numbers, we can differentiate between the legal extensions and legal creation. In Numbers, Moses turns to God to answer unknown laws or non-existent ones. Jeremiah’s extending the law is more about furthering the law and not inventing it. This may not satisfy many, but I think it's a way to circumvent saying Jeremiah was reaffirming a Sinaitic law. The evolutionary process procured prophets, not to make laws but to enforce them. They were more centred on ethical issues but ritual infringements are noted.
We discussed earlier the example of carrying a load on Shabbos. It is absent in the Pentateuchal canon. Traditionalists will affirm a Sinaitic origin of this law. We can solve this by using that premise but reframing it. The Sages may indeed be correct about no prophet legislating (Shabbat 104a), but their theological Sinai point is less about its accuracy and more about the scope of prophetic capabilities. The oral law was the common action. In time, the law extended to include carrying a load. Was that the original intent of the Pentateuch? Maybe not, but it is irrelevant. Prof. Jackson’s narrative reading is open to include more resources and extensions. It is the lack of canonicity that enables this legitimate expounding. Jeremiah was affirming the local custom. Prof. Otto’s reapplication of old laws to changing circumstances may fit the Jeremiah mould25. This model of revision is explicit in the textual mention of the Jerusalem walls. Carrying is vague but specific about the prohibited area. Legal revision is then reapplied with Nehemiah and the rabbis to what and where. The narrative is renewed with new extensions. What Deuteronomy does for Exodus, Jeremiah does for the Pentateuch.
Returning to the former point above, The change in terminology may reflect the change in audience and location. While Deuteronomy may be speaking to the same audience, it is planning for both a different audience but explicitly a new location26. Deuteronomy is Moses speaking to the changes that will occur in the transition to settling the land. Jeremiah is also referring to a new audience. These two factors highlight varying circumstances that inquire about legal revision and exegesis. The complementarity perspective supplies a synthesised diachronic and synchronic model27.
Endnotes
1. Joshua A. Berman, “Supersessionist or Complementary? Reassessing the Nature of Legal Revision in the Pentateuchal Law Collections” JBL 135:2 pp. 203-206, n. 3: Baruch J. Schwartz, The Holiness Legislation: Studies in the Priestly Code [in Hebrew] (Jerusalem: Magnes, 1999), Israel Knohl, The Divine Symphony: The Bible’s Many Voices (Philadelphia: Jewish Publication Society, 2003), David P. Wright, Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi (New York: Oxford University Press, 2009) and Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford: Clarendon, 1985), pg. 95.↩
2. Jeffrey Stackert, Rewriting the Torah: Literary Revision in Deuteronomy and the Holiness Legislation, FAT 52 (Tübingen: Mohr Siebeck, 2007), pg. 225.↩
3. Berman Supersessionist, n. 6: Eckart Otto, “Ersetzen oder Ergänzen von Gesetzen der Rechtshermeneutik des Pentateuch: Zu einem Buch von Jeffrey Stackert,” Die Tora: Studien zum Pentateuch; Gesammelte Schriften, BZABR 9 (Wiesbaden: Harrassowitz, 2009), 248–56; Christophe Nihan, From Priestly Torah to Pentateuch: A Study in the Composition of the Book of Leviticus, FAT 2/25 (Tübingen: Mohr Siebeck, 2007), 545–59; Hindy Najman, Seconding Sinai: The Development of Mosaic Discourse in Second Temple Judaism, JSJSup 77 (Leiden: Brill, 2003), 22–26; William Morrow, “Mesopotamian Scribal Techniques and Deuteronomic Composition,” ZABR 6 (2000): 311–13.↩
5. Similarly critiqued by Jonathan Vroom. See: Jonathan Vroom, “Law, Authority, and Interpretation in the Ancient World: The Origin of Legal Obligation in Early Judaism,” PhD Diss. n. 16. Though correct with the nineteenth-century legal philosophy movement, the system operated much earlier. For some background see my: (A)Typical Tools pp. 8-10. See also: Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004), pp. 7-31.↩
6. Bernard S. Jackson, “Modelling Biblical Law: The Covenant Code,” Chicago-Kent Law Review 70 pp. 1763, 1817.↩
7. Exodus 18 does not seem to portray judicial autonomy instead reverting to divine ordeal but I believe this was a temporary step in Israelite transition to entering the land. Jehoshaphat’s appointments make this point explicit but Moses' revisions in Deuteronomy may also reflect this change. This may be insufficient yet precedent does not mitigate change. It links to the past for proper continuity but it's less about the rulings stagnating and more about the values/”rules” flourishing. Judges reflected on earlier decisions to further the present one.↩
8. Berman Supersessionist, pg. 207. See also: Roger B. M. Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed (London: LexisNexis, 2003), pg. 23.↩
9. Raymond Westbrook, “Introduction,” History of Ancient Near Eastern Law, ed. Raymond Westbrook et al., HdO 72 (Leiden: Brill, 2003), pg. 19.↩
10. Berman Supersessionist, pg. 212.↩
11. Jackson Modelling, pp. 1758, 1806. See also: Bernard Jackson, “Human Law and Divine Justice: Toward the Institutionalisation of Halakhah,” JSIJ 9 pg. 235.↩
12. Moshe Greenberg, “Some Postulates of Biblical Criminal Law” Yehezkel Kaufmann Jubilee Volume, ed. M. Haran, (Jerusalem: Magnes Press, The Hebrew University, 1960), pg. 7.↩
13. Bernard S. Jackson, “On the Values of Biblical Law and their Contemporary Application,” Political Theology 14:5 pp. 603-606. Additionally, Prof. Greenberg’s all-inclusive statements are tainted. I have limited my value influence to the narrative conscious relating to responsibility and freedom. Whether this is tenable is debatable. Will all the legal differences between Israel and the near east add up to such merits it is unclear but there seems to be selected cases where this seems obvious. Deeper research must be conducted to sufficiently explore this phenomenon. For now there are a few examples distinguishing the ancient Israelites potentially due to theological discrepancies and/or collective memory.↩
14. Christine Hayes, “Halakhah leMoshe miSinai in Rabbinic Sources: A Methodological Case Study” The Synoptic Problem in Rabbinic Literature, ed. Shaye J. D. Cohen (Providence, RI: Brown Judaic Studies, 2000), pp. 61-118.↩
15. Robert Alter, The Art of Biblical Narrative, Basic Books, 2011.↩
16. Kiddushin (21b) and Rashi’s extrapolation (21:10). Ramban quotes Ibn Ezra arguing “beautiful” is subjective, continuing with “he desires her” out of impermissive lust. These two statements combined bolster the Talmud’s argument that such actions are in the heat of battle and emotional turmoil. Soldiers are not thinking rationally and will do terrible things. Instead of forcing them to go cold turkey, curve their desires by desensitising them to the situation.↩
17. Berman Supersessionist, pg. 212.↩
19. Moshe Garsiel, 1 Samuel [in Hebrew], Olam Ha-Tanakh (Tel Aviv: Davidzon Etti, 1985), pg. 140.↩
20. Though ironically, in the preceding verses, it is Moses, not God, who wages war and in Samuel I, it is God who initiates.↩
21. Bruce Wells, “The Cultic Versus the Forensic: Judahite and Mesopotamian Judicial Procedures in the First Millennium BCE,” Journal of the American Oriental Society 128:2 pg. 226.↩
23. See: Moshe Weinfeld, “The Transition from Tribal Republic to Monarchy in Ancient Israel and Its Impression on Jewish Political History,” Kinship & Consent, Routledge, 2020, pp. 221-223.↩
24. What Is Jewish Law and Legal Tradition? | The Biblical Mind.↩
25. Eckart Otto, “The Pre-exilic Deuteronomy as a Revision for the Covenant Code,” Kontinuum und Proprium; Studien zur Sozial- und Rechtsgeschichte des Alten Orients und des Alten Testaments, OBC 8 (Wiesbaden: Harrassowitz, 1996), pg. 116.↩
26. See: Weinfeld Transition, ibid.↩
27. On a personal note, Profs. Jackson Burnside and Berman have influenced me to review the internal mechanistic material instead of solely relying on external affiliations. In Maimonides’ words, sometimes you have to become a chasid to revert to the middle (Hilchot Deot 1:5). The absence of diachronic validation in orthodox circles forced me to centre on its legitimacy, but after reading these authors, it is clear there is a duality to be respected. In Soloveitchikian terms, Jewish law is dynamic following its internal structure. See: Joseph B. Soloveitchik, And From There You Shall Seek, trans. Naomi Goldblum. KTAV, 1978, pp. 108-109.↩
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