A Complex Past: Biblical Legal Parameters Part 2--theoretical or practical
By: Jonathan Seidel
This essay will analyse three various arguments for biblical legal implementation. How much of the Torah was practised by the ancient Israelites? What did the ancient model look like?
Law: Theoretical or Practical?
A:
The oral law may have its origins questioned, but the written law has its challenges. Prof Walzer and Halberstam contest the Bible’s implementation of the law. Earlier cases spelled some evolutionary orality away from the law, but Prof. Westbrook, among others, believes it was legislated1. They were law instead of statutes. R’ Ancselvotis uses Hart’s theory of interpretation to further the implementation of the biblical laws2. He argues that the rabbinic sages perceived the laws as hard cases instead of statutes. Even if this is true, as we have noted, the rabbis did play apologetics reframing narratives to fit their agenda; it does not mean that it is historically accurate. The rabbis' perception does not equal actual events. Prof. Wells points to five central views to the nature of biblical texts: traditionalists holding the laws authoritative from Moses at Sinai. The codes are competing for sets of authoritative law from varying redactors vying for supremacy; later codes superseded their predecessors. The codes were theoretical exercises or motivation. Codes are descriptions of actual legal situations that could occur. Lastly, The codes are non-legal in nature to provide advice, whether religious or anti-imperial3. Prof. Wells notes that the similarities are due to developmental congruence, literal dependence and common tradition4.
The restoration of Ezra-Nehemiah serves to further this argument by championing a renewed system that may have been absent just a hundred years prior. Ezra-Nehemiah made stricter remarks that the rabbis backtracked. At times ignoring the former text. His use of this book is distorted. I think it is pertinent to mention that there was some Shabbos cultic practice. Asserting the late Sages invented the process is unreliable, yet asserting it is exactly as they say supplies the same response. It was in its evolutionary growth. R' Ancselovits is correct that post-restoration earlier laws were perceived as live examples, not theoretical. The later sages utilised the early comments of the restoration to transmit these as live examples and expand upon them. Just as Ezra-Nehemiah expanded without any recourse, so too did it potentially occur throughout the second temple.
It is plausible that many of the Mishnaic laws are older examples of cultic observance that developed over time. Sectarianism followed ideological differences, not legal ones. Most of the laws conceptually and abstractly were identical. It was the details that differed. The content existed even if it wasn’t implemented5. Profs. Fishbane6 and Sarna7 have both presented internal biblical exegesis. The laws formulated from the rabbis and Qumran do not necessitate a divine origin at Sinai but do an ancient existence. I think Prof. Ancselovtis is correct in this vein. These are not new additions necessarily but are they as old as theological mantras insist? That I am uncertain. Our analysis so far has yielded controversial evidence in that department.
B:
Prof. Cohen argues the rabbis were uninterested in where these laws came from but that they had them8. The first verse in Avot mentions a chain but fails to provide details of what was passed down. One can easily interpret it as simply the Bible or rabbinic authority, not anything additional. This chain extends through the entire tractate of rabbinic transmission. The idea that Moses knew everything and nothing are attested to in rabbinic literature (Menachot 29b, J. Peah 2:6, 17a). Though it does seem to implicate the Oral Torah, not the written one. Yet, ironically the absence of legal rulings in the tractate question this motive. Prof. Cohen notes the Mishnah’s lack of citation or notice of the Bible; it is basically an independent work9. Thus it was the Talmud’s job to link the Mishnaic law to the Torah. Some laws refer to scripture, but most do not. It is more theology than history10.
The similarities with ancient cultures testify to its processing ability. There is common ground with the rest of the world. We must caution its prescriptive style that may imply theoretical possibilities than its pragmatic association. Prof. Sanders' concept of common Judaism11 and Philo’s testimony proves the Mishnaic form has validity. There was a plurality of approaches12, and the Sages upheld their opinion at times more lenient than their stricter brethren. The Sages did heavily expand upon the initial cultic nature and construct a lifestyle post-temple. There is much that preceded, but much that extended. The Sages used logic and rhetorical tools absent from the rest of the literature and utilised them to further their new vision of rabbinic Judaism.
Prof. Beaton remarks Profs. Walzer and Levinson’s idea of legal development is due to divinely revealed law. Forcing Israel to utilise exegesis instead13. They believe this was eventually unsuccessful though I am not sure I agree. One of the issues in canonical law is the inability to change the law but Prof. Berman has pointed out in the text itself, from Exodus to Deuteronomy, there are significant changes14. Whether you think there was forty years or four hundred years between them does not negate the update. We have also shown validated legal deviation from the law. The Bible was an idealised collection not necessarily on the local level, as was its Babylonian counterpart. Though idealised, some of the law was in place. The idealised law may reflect many of the everyday practices. Pairing consistencies with later narratives may hint at development. Despite the deviation, there are similarities to the original. Additionally, the law is conservative and does not easily vanish to introduce something new. Generally, it’s compounded by the old, replaced but not erased.
White demonstrated this as the new takes form from the old15. Yet, had statutory law not emerged and Hellenism not widespread, the common features may have remained. Hellenism influenced the canonical status following the restoration stage into the rabbinic period16. The cultic oral law persisted despite the biblical canon. Only later on when the Mishnah was canonised and subsequently the Talmud was rewriting law more troublesome. Yet, understanding legal systems is critical to appropriate the lack of alteration. (Whether the US’ constitutional model or the UK’s common-law model interpretation is utilised without undermining older precedent).
Prof. Beaton points out that a judge rarely says the law was wrong, but rather, contextually, it was correct, and now it is wrong17. This can obviously be refuted especially, in the US if slavery, Jim Crow, prohibition, war on drugs etc. were considered good laws. Yet, legally-technically they were. Morally maybe not, but legally yes. This is one of the aspects of Austin’s positive law that a law may be immoral, but when many of these laws were in place, people did not necessarily believe they were unethical, or there was no uniform consensus18. Pushing our modern senses on the past law is unfair and ridiculous. Law is about order, not ethics, unfortunately. That is why legal narratives are essential to tweaking the law to better it ethically19.
Exegesis occurred in Biblical Israel (Fishbane and Brettler) and later on. The rabbinic use of exegesis expanded the legal parameters, and to this day, interpretation works to advance law as the case for female issues. There are obvious boundaries but we can continue to innovate, even if not entirely. Still, no legal system is so exhaustive and limitless.
Prof. Otto has noted the casuistic laws derive from decisions in Israelite rural communities20. The examples of agricultural necessities are prevalent amongst countryside folk. The common lore of cuneiform tradition swept through the educational system; principles distinguish between cultures and their local court impact. Prof. Otto marks a transition from the countryside to town-centres for legal scribal collection. The older cultic measures of Israel as shepherds and desert wanderers or their short future pre-monarchy may attest to the Exodus lifestyle. Town-centres emerged over time. Many continued the customs of their ancestors in developing the land. The agricultural laws especially follow the construction of the land and pre-monarchical lifestyle. I am unsure of the political order or terrain, but the biblical text does not seem to convey that judges lived a lavish lifestyle in castles.
The text describes Samuel living a modest life as well as other Gideon and Samson. They judge the people but do it in a cleverly humanistic way. With the rise of the kingdom, the paradigm shifted to an urban-like nature. Urbanisation may grow with technology or political change. It is possible these local courts were of the early settlers and later textualised. To paint this theologically correctly, God was imploring the Israelites of their near future life. Something along those lines. Their shepherd agricultural-like style of living prioritised rural atmospheres that developed heavy countryside legal vibes.
C:
Prof. Walzer poses an interesting theory behind the teleology of Biblical law. For him, it's the sources and presentation21. Sole divine authorship is a centre of value, as opposed to the king’s law of the ancient world. King’s such as Hammurabi may have claimed to receive the law from a god, but it was presented as their law. Even if compliant, it was their law to publicise. Justice Holmes' maxim that the law is whatever the judge says, as Prof. Walzer points out, is accurate for everyone except biblical law22.
The narrative is critical to legislation. Remember because you were slaves is a constant ethical reminder and a subsequent legal imperative (Exodus 23:9). Experience promotes legal value. It is not about order but behaviour. In an essay, I distinguished between Prof. Leibowitz and R’ Hartman’s philosophies of halakha. The former sees the system as monarchical out of obedience—following the law because God says so and the latter as a familiar model from an educational outlook—following the law because it’s developmental23. Relating the law to a traumatic memory to legally treat others differently is the ethic playing a pivotal role in lifestyle.
The law regulates the lifestyle, not about prevention but growth. Biblical law pivots from normal legal precedent to building character. It may be special to religious law. Political law is to maintain order but religious law is to develop. Even in the form of a theocracy, there are remnants of educational duty from its infancy. There are attached social and economic justifications to demonstrate behavioural-centricity. Prof. Walzer reverts to older texts that justify later law using the Abraham-Sedom example as a precedent. God upholds justice in his narration with Abraham24. The Bible is thus an extended version piecing its entirety together. Even if they were composed separately, there is a string linking them together. Reflecting on Plato’s Euthyphro, what God does is good because it is good primordially points to the a priori nature of justice. The law may be divinely delivered, but its authority is axiomatic. Common law change for updated female lifestyle wirth a type of ancient “feminism”25.
Prof. Walzer acknowledges a legal culture with judges acting as the medium to enforce the law. The judges have incredible power and influence blasted by the prophets for their corruptive nature. The legal collection attests to a perpetuated tradition of legal discussion and argumentation. Prof. 26Walzer is wary of divine revelation of the five books but gives credence to its theological prowess and validation. There is a harmonious plurality pervading the ancient culture. Each code is equal to the next, giving rise to a developing oral law.
Prof. Halberstam argues that law was underdeveloped in the ancient world and was a political duty in a formulated system27. The Bible is unique in its poetic narration than a legal framework28. They had some sort of legal enterprise but were not systemised29. It was most probably a broad oral tradition central to education. Everyone observed the legal model: monarchs, priests, and lay leaders; adjudication was completed by local officials. Divine justice is critical for order, but there seems to be a stronger case for self-actualisation and growth30. Prof. McKinley argues Torah law is like dharma—moral rules backed solely by moral authority31. A theoretical model to education instead of actualised experience. Prof. Wells mentions its comparison to other Near Eastern legality but is unsatisfied. Prof. Wells concludes that there may be a synthesis of theoretical and practical laws in the text32.
Prof. Barnash advocates that though the text explicitly motions for the death penalty, Ancient Israel provided a compensation option for homicide33. Prof. Greenberg has argued that Israelite value of life would actually promote the death penalty but is uncertain about its probability given the regional consensus34. Additionally, given the common theme, there is a uniform local level model that pervaded the area. The Talmud makes it seem, even, for R’ Eliezer that this was never a practice despite his literal translation (Bava Kamma 84a)35. Josephus does state that both positions were valid and up to the injured individual to decide (Antiquities IV 7:34). Megillat Ta’anit also supplies a literal reading. The Bible is providing a possibility but also an educational lesson of what this means. The Bible is rather pointing towards judges as judges to decide in the case. Maybe in special cases to go the extreme. Regarding these seemingly extreme anomalies in Israel would be potentially viable given the divergent values. Yet adversely, the structure was more a model of education that either was never to be implemented and was an educational mantra or provided both options to be judged judicially36.
Prof. Collins sees the Bible as symbolic37 but this may not be the case. She notes for revision and editing to produce a cohesive narrative with a firm theology. The promising narrative links a memory of Israel experience to legislation. The narrative is emotional and powerful to insist on obedience to experience. The prophets relate justice through a legal medium. Though concentrating on the ethical format, it derives from legal injustice. However, there are cases where the people seemingly obey the law regarding sacrifices, and the prophets' attack that one is unethical despite following the law. Such actions are unethical under the law, it is possible in light of legal imperfection, but this may not be so. Alternatively, the prophet may be arguing you follow the laws between man and God but not between man and man. Again this would not better the situation, but it would confirm it was not a perversion of the law instead selective about it.
Prof. Halberstam does not negate the reality of the Israelite legal order. Rather if the Pentateuchal legal system was applied or it was more a theoretical structure to promote values. Using coded texts as metaphors to inspire. Yet, she affirms prophetic references to Pentateuchal texts38. Amos’ criticism for mistreating the poor (Amos 2:7-8) parallels Exodus 22:26. Amos again refers to Exodus 23:6-8 (Amos 5:12), and Isaiah does as well (Isaiah 5:22-23) regarding taking bribes and perverting justice. Micah also references the Pentateuchal text of prohibitions found in Leviticus 26:1, Deuteronomy 18:10 and 16:21-22 (Micah 5:12-14). The prohibitions include sorcery, images and bowing down to them. Its presence in Deuteronomy may reflect Deuteronomy’s earlier redaction. Deuteronomy’s redactors may have incorporated the material later and to answer why sorcery is only mentioned here was an oral cultic issue finally canonised later on. This seems far fetched. It would seem more likely that despite the similarities, Micah is intentionally citing Leviticus or Deuteronomic text to bolster his point. Even if Micah is not pointing to canonical law, he is pointing to their authority in some sense of the word.
Whether the Pentateuchal text is verbatim the de facto law of his period is irrelevant. Given the common law theme, the details may have developed, but Micah’s position is that its legitimacy and authority remain conceptually. He does not quote verbatim, and the concise nature of his critique is either for simplicity or common legal implementation. Nonetheless, this seems to attest to some continuity between the codes with a more ancient origin. Anthony Phillips argues that Hosea and Jeremiah refer to the Decalogue that must have preceded them. Especially to the third, sixth, seventh, eighth and ninth commandments39. Prof. Halberstam believes it is for moral ideals, but Phillips says it’s to invoke the Sinai covenant40. Prof. Carr sees the law as wisdom and education in their promotion of ethics41. Law is a central aspect of Ancient Israelite society but whether it was literally actualised is still up for debate.
Endnotes
1. Raymond Westbrook, Law from the Tigris to the Tiber: the writings of Raymond Westbrook, Penn State Press, 2009, pg. 129.↩
2. Elisha Ancselovits, “Second Temple Phronetic Jewish Law,” Jewish Law Association Studies 16, pg. 159.↩
3. Bruce Wells, “What is biblical law? A look at Pentateuchal rules and near Eastern practice,” The Catholic Biblical Quarterly 70:2, pp. 226-232.↩
6. Fishbane, pg. 46. See Lyle Eslinder’s critique and alternative and Benjamin Sommer’s defence: Lyle Eslinder, “Inner-biblical exegesis and inner-biblical allusion: the question of category”, Vetus Testamentum 42:1 pp. 47-58 and Benjamin D. Sommer, “Exegesis, allusion and intertextuality in the Hebrew Bible: A response to Lyle Eslinger”, Vetus Testamentum 46:4 pp. 479-489. See also: Michael Fishbane, “Revelation and tradition: Aspects of inner-biblical exegesis”, Journal of Biblical Literature, 99:3 pp. 343-361.↩
7. See: Nahum M. Sarna, “Psalm 89: A Study in Inner Biblical Exegesis”, Biblical and Other Studies (ed. A. Altmann; Philip W. Lown Institute of Advanced Judaic Studies, Brandeis University, Studies and Texts 1; Cambridge, MA: Harvard University, 1963), pp. 29-46.↩
8. Shaye J.D. Cohen, “The Judaean Legal Tradition and the Halakhah of the Mishnah,” Cambridge Companion to Rabbinic Literature, eds. Charlotte Elisheva Fonrobert and Martin Jaffee (Cambridge: Cambridge University Press, 2007), pg. 121.↩
11. E.P. Sanders, Judaism: Practice and Belief, London: SCM Press, 1992, chapters 11-12. See also: E.P. Sanders, “Common Judaism Explored” Common Judaism: Explorations in Second-Temple Judaism, eds. Adele Reinhartz and Wayne O. McCready, (Fortress Press; 2nd Revised edition, 2011), pp. 11-23.↩
13. 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. 154.↩
15. James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: University of Chicago Press, 1994), pg. 96.↩
16. See my: (A)Typical Tools pp. 8-10.↩
18. See: John Austin (Stanford Encyclopedia of Philosophy). See also: H. L. A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harvard Law Review 593, 601–602. See also: Joseph Raz, The Authority of Law: Essays on Law and Morality. Oxford: Clarendon Press, 1979, pp. 47-50. Raz argued that morality could not be the barometer for a just law.↩
19. Benjamin L. Apt, “Aggadah, Legal Narrative, and the Law” Oregon Law Review 73:4 pp. 952, 957.↩
20. Eckart Otto, “Town and rural countryside in ancient Israelite law: reception and redaction in cuneiform and Israelite law” Journal for the Study of the Old Testament 18:57, pg. 20.↩
21. Michael Walzer, “The Legal Codes of Ancient Israel”, Yale Journal of Law & Humanities 4:2 pg. 340.↩
23. See my: King Dad pp. 12-13. R’ Hartman believes the law is divine to obey accordingly but in regards to development recognises the communities or the “son’s” response in adapting “dad’s” will. Evidently, no author has made such a distinction. This is my own metaphorical delineation between the two that I think best portrays the core mantle of their diverging halakhic philosophies.↩
27. Chaya T. Halberstam, “Law in Biblical Israel” The Cambridge Companion to Judaism and Law pg. 20.↩
29. Jonathan P. Burnside, God, Justice, and Society: Aspects of Law and Legality in the Bible (New York: Oxford University Press, 2010), pg. 112.↩
30. Bernard S. Jackson, Wisdom-Laws (Oxford University Press, 2006).↩
31. Anne Fitzpatrick-McKinley, The Transformation of Torah from Scribal Advice to Law (Sheffield Academic Press, 1999), pg. 141.↩
32. Bruce Wells, “What Is Biblical Law? A Look at Pentateuchal Rules and Near Eastern Practice,” Catholic Biblical Quarterly 70:2 pp. 223–243.↩
33. Pamela Barmash, Homicide in the Biblical World (New York: Cambridge University Press, 2005), pg. 115.
34. Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” Yehezkel Kaufmann Jubilee Volume ed. M. Haran (Jerusalem, Israel: Magnes Press, 1960), pp. 24-26.↩
35. Synchronically, literal exploration of an identical body part is sufficient. R’ Medan produces rabbinic evidence that the rabbis would indeed amputate an arm (Sanhedrin 58b). Maharam of Rothenburg and Rabbenu Yerucham both argue for severing the hand of a wife-beater (responsa IV and Sefer Mesharim, Netiv 23:5). Given this possibility, there seems to be some credence to permitting such action.↩
36. See the ensuing section on narrative legal readings.↩
37. JJ Collins, “The Transformation of the Torah in Second Temple Judaism,” Journal for the Study of Judaism 43:4–5 pg. 462.↩
39. Anthony Phillips, “Prophecy and Law,” Essays on Biblical Law, Journal for the Study of the Old Testament, Supplement Series 344 (London and New York: Sheffield Academic Press, 2002), pg. 225.↩
41. David M. Carr, The Formation of the Hebrew Bible: A New Reconstruction (New York: Oxford University Press, 2011), pg. 419. Elsewhere, Prof. Carr notes that oral teachings were committed to writing at “opportune times” and are a “reference copy for teachings continued to be transmitted orally”. See: David M. Carr, Writing on the Tablet of the Heart: Origins of Scripture and Literature (New York: Oxford University Press, 2005) Chapter 6: “Transmission”.↩
Comments
Post a Comment