Law, Power, and Justice in Ancient Israel

Douglas A. Knight

• Editorial: Westminster John Knox Press
• Año: 2011
• ISBN:
  9781611641516
• Categoría: Theology & Religion
• Categoría: Biblical Studies

From leading Old Testament scholar Douglas A. Knight comes the latest volume in the Library of Ancient Israel series. Using socio-anthropological theory and archaeological evidence, Knight argues that while the laws in the Hebrew Bible tend to reflect the interests of those in power, the majority of ancient Israelitesâ€"located in villagesâ€"developed their own unwritten customary laws to regulate behavior and resolve legal conflicts in their own communities. This book includes numerous examples from village, city, and cult.

Volumes in the Library of Ancient Israel draw on multiple disciplinesâ€"such as archaeology, anthropology, sociology, linguistics, and literary criticismâ€"to illuminate the everyday realities and social subtleties these ancient cultures experienced. This series employs sophisticated methods resulting in original contributions that depict the reality of the people behind the Hebrew Bible and interprets these insights for a wide variety of readers.

PART 1

THE DIMENSIONS OF LAW

CHAPTER 1

Israelite Law and Biblical Law

The best interpreter of the law is custom.

—Cicero¹

The Hebrew Bible locates the origin of Israel’s law at Sinai and attributes to Moses the role of lawgiver, or rather, of mediator, since the law is held to stem ultimately from Israel’s God. The law thereby acquires impressive authority and legitimacy, and violation of its precepts is intended to elicit direct and dire consequences, if not at human then at divine hands. In terms of Israel’s literary heritage, the legal materials (including the religious laws and cultic ordinances) constitute nearly one-third of the entire Pentateuch—by any reckoning a significant portion for one genre. Early Jewish tradition called the entire Pentateuch “Torah,” counted 613 distinct commandments and prohibitions in the “Written Torah” of the Pentateuch, and supplemented the legal legacy with the “Oral Torah,” a body of legal interpretations and applications that arose in a centuries-long line stretching putatively back to Moses himself and finally becoming recorded in the Mishnah by around 200 CE. Substantial legal collections were also produced by many of Israel’s predecessors, contemporaries, and successors in ancient Southwest Asia.²

Yet merely highlighting the enormity of the legal tradition of ancient Israel,³ early Judaism,⁴ and the neighboring cultures is only a first step in acquiring an appreciation for its importance. Actually, there is a prior question to face. Do the texts that have come down to us present us with actual laws that functioned and held authority among the inhabitants of ancient Israel? Or do these “legal” texts represent something other than or in addition to practiced laws? Just because a text appears to be or presents itself as a law does not oblige us to accept it as such; it may just as well be another genre or entity or combination of elements. Our own understandings of the nature and origin of law may lead to a quite different interpretation of the material than the text presents, especially since the text is not entirely forthcoming about its own intentions and character. At the outset, therefore, it may be helpful to distinguish between two phenomena that are in fact quite different from each other, even though they are often treated as being identical: Israelite law and biblical law.

ISRAELITE LAWS AND BIBLICAL LAWS

By Israelite law we mean the legal systems that functioned during the course of ancient Israel’s history—the customary laws that emerged among the people or the regulations issued by leaders who possessed some form of legislative or judicial power; these laws thus served, or were intended to serve, as actual legal controls and judicial correctives for human behavior. Biblical law, on the other hand, designates the law-like materials recorded in the Hebrew Bible and is not—for several reasons—to be considered simply identical to Israelite law.⁵ As they now stand, the laws in the Hebrew Bible are part of a structured literary corpus with various purposes other than legal control, such as recounting the national history, attesting to divine revelation, regulating power relations, or legitimizing certain cultic activity. Israelite laws, in contrast, were generally not in written form but circulated quite naturally as social norms or directives during their respective periods of validity. Israelite laws are to be understood in terms of the social relations existing during their particular period of currency in Israel’s history; biblical law is not intended to be restricted to single social periods but is presented as though it were applicable for all times and all people during Israelite and Jewish history. For Israelite law there is usually no identifiable legislator, while biblical law is typically promulgated by divine or legendary figures—such as by YHWH through Moses at Mount Sinai or Mount Horeb for the laws contained in the long section from Exod 20:1 through Num 10:10, or by Moses on the Moabite plains east of the Jordan River for the laws recorded in the book of Deuteronomy—thus in events that are historically unrecoverable.

Biblical law is, in a word, literature—a composition seemingly comprising Israelite laws, presented in the text as divine ordinances, woven together into a literary whole (actually, into several literary sections), and embedded in a larger narrative context, the story of the people’s journey from Egypt to Canaan. As with most literature, we can make an effort to associate the corpus of biblical laws with authors, editors, readers, transmitters, preservers, interpreters, or others who may have taken an interest in it. Biblical law existed and exists as a written text. The individual laws assume any of several specific forms and various artistic features (see chap. 4 below) designed to influence or produce an effect on the reader or listener. Regarding their content, they touch on a wide variety of social and religious subjects, and even a casual reading of them will reveal substantial differences with respect to the treatment of many individual issues. As a result, it is difficult to imagine that this literature comprising the biblical laws was composed by a single person throughout, or that it was edited later by only a single individual or group aiming to eliminate any and all variations. To be sure, a common cord holds this legal literature together: the notion of theocratic rule over the unified people. Yet as a text, it exists in its own literary world, consisting of characters (e.g., YHWH, Moses, the people), setting (the mythic wilderness at one level, but all the contexts of life within settled Israel at another), plot (again, at the macrolevel the giving of the law in the wilderness, but at the microlevel all the imaginable conflicts that need adjudication), and stylistic features (the various ways through which behavior is mandated, motivated, and interpreted).

By recognizing biblical law as literature, we should at the same time be cautious not to claim too much about its relation to the functioning of law in Israelite society. This point needs to be stressed at the outset since most students of the Hebrew Bible have, quite naturally, been inclined to operate with certain assumptions and concepts stemming from modern views of law. In fact, several specific terms commonly employed today prove to be inadequate for capturing the nature of biblical law, and they should consequently be avoided:

1. A legal code (Latin: codex), in today’s terminology, designates a body of laws and regulations, enacted by a monarch, an authorized legislature, commission, or other official and arranged systematically according to subject matter to ease consultation and application. Biblical scholars have conventionally used the word “code” to label the subsections of biblical law that seem to form distinct units: the Covenant Code, the Deuteronomic Code, the Holiness Code, and the Priestly Code. Even if we remind ourselves that we do not thereby mean to suggest that any of these codes was ever formally enacted by a legislative body, the impression nonetheless conveyed is that each contains laws possessing some form of official standing and that each unit may have served as an actual reference source for judicial courts of the period.

2. A better alternative, though still with its shortcomings, is to refer to the subsections of biblical law as collections of laws. This term has the decided advantage of avoiding the perception created by the notion of an official, systematic “code” since a “collection” does not need to be comprehensive, orderly, or official; it also acknowledges that Israelite laws were originally dispersed throughout the country and could be assembled into one place, rather than that they came into existence through legislative fiat. However, a “collection” suggests that these individual laws are here recorded in verbatim form, as if someone had traveled to the various settlements and assembled the laws found there.⁶ Even if something of this sort might have been done, we have no direct evidence of it. Moreover, we cannot be sure that in each specific case the written form in the biblical text conforms precisely to the laws functioning among the people: some may have been misunderstood by the “collector,” others may be a conflation of variant legal practices, and still others may be intentionally or unwittingly represented in a light different from that of the original Israelite laws on which they seem to be based. Though we will occasionally refer to these texts as collections of laws to the extent that they are presented as a series of laws and may even be incorporating some actual Israelite laws, we must not lose sight of the text’s primary state as literature, a written composition including much that is not legal in character.

3. It is even less fitting to regard biblical law as a constitution. Note the characteristic elements of a constitution, according to Black’s Law Dictionary:

The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. A charter of government deriving its whole authority from the governed. . . . In a more general sense, any fundamental or important law or edict.⁷

The latter meaning, labeled the “more general sense,” is too vague to be useful for understanding the character of biblical law. The prior question for us is tied to the date and intention of the text. The Pentateuch presents the long section of laws as divinely ordained rules that, in Black’s words, lay out the basic principles of the people’s internal life and even describe some of their leadership institutions (such as the elders, the priests, the prophets, the king), including certain of their powers and prerogatives. According to the text’s story, these laws are conveyed to the people long before they are actually needed, that is, before the people have settled the land, encountered the local populations, and established the monarchy. But if biblical law, by which we mean the literary form of these texts, stems in fact from a much later period, probably even after the demise of the monarchy, then it could at most be regarded as a constitution for the people sometime during the Second Temple period, perhaps in the Persian period but not prior to that point and quite possibly later. The text retrojects this law into the distant past, and its authors presumably hope to gain legitimacy thereby for its authority in the eyes of the Second Temple community. Black’s also notes that a constitution derives “its whole authority from the governed.” This modern democratic ideal can hardly be expected in the political system of a premodern agrarian state, which did not try to achieve popular self-governance and did not even have in its frame of reference the modern image of a constitution. Actually, the term “constitution” has rarely been associated explicitly with all of biblical law. In another sense the Ten Commandments have sometimes been regarded as a type of Bill of Rights, a concise statement of fundamental principles underlying many of the other laws in the Hebrew Bible.⁸ We will need to examine the character and function of the Decalogue at a later point, but it is enough here to indicate that it would have served poorly as a nation’s “constitution” if left with no further elaboration.

4. One final distinction deserves to be made: biblical law should not be associated in any direct sense with a transcript of court proceedings, such as would be produced today by a court reporter. If the individual laws presented in the Pentateuch did not issue ultimately from an empowered legislature or monarch, neither did they stem directly from a judge or jury. Even the well-known judicial cases presented in the Hebrew Bible have little or no relation to a stenographic account of the interchanges among plaintiff, defendant, and judicial arbiters. In each instance another primary concern is driving the text, such as the imperative to follow the terms of the holy war and to obey Israel’s faithful leaders (as in the story of Achan in Josh 7), or the glorification of Solomon and his wisdom (1 Kgs 3:16–28), or the compassion due a kin and a devoted foreigner like Ruth (Ruth 4:1–12), or the prophets’ urgency to persuade Israel of its wrongdoings (in the literary form known as the prophetic lawsuit, or rîb). As will be further discussed below in chapter 4, these and other texts are heavily stylized literary and rhetorical renderings, bearing at most only the slightest resemblance to the proceedings of actual legal cases. We possess no reliable court records from ancient Israel, at least nothing comparable to the full, meticulous reports of today. Furthermore, they would not have been needed in ancient Israel—at most only some notation of the finding, verdict, or settlement, especially in state or commercial cases or certain other types of instances such as divorce.⁹ Biblical law lies at a considerable distance from court verbatims.

We have gone to some length thus far to make the rather obvious but all too often overlooked point that “biblical law”—the texts in the Hebrew Bible that purport to present us with the rules and regulations governing Israel—does not necessarily reproduce the laws that actually functioned as the binding rules of action affecting the people’s conduct in any of their multiple social and political life contexts. Interpreters have frequently approached the biblical text as if it offered us an open window on legal affairs during Israelite history, and such an assumption can easily obscure both the special intentions of the text itself (more on this later, esp. in chap. 3) as well as the diverse legal norms and principles actually holding sway among the various groupings of people during their long history. Yet at the same time this distinction between Israelite law and biblical law does not imply that absolutely no ground is shared between the two. Biblical law had, at least in part, its source in Israelite laws, which contributed to the religious, legal, and cultural traditions that eventually became enshrined in the Hebrew Bible. Furthermore, biblical law was itself “Israelite” in the sense that it was produced by certain individuals or groups within Israel during the Second Temple period, if not before. Our primary access to Israelite law must occur to a great extent through a critical reading of biblical law, a methodological problem to which we will return in chapter 3.

Contrasting biblical law and Israelite law as we have done serves a heuristic purpose: to underscore the fact that the legal system now found in the canonized written text should not be facilely equated with the legal systems prevailing throughout Israel’s long life, and conversely, that all of the laws of Israel during its history did not find their way into the biblical canon. An intriguing metaphor is offered by the great sociologist of law Eugen Ehrlich, writing in 1913, at a time when legal theorists tended to equate the whole of law with the “legal propositions” preserved in codes:

To attempt to imprison the law of a time or of a people within the sections of a code is as about as reasonable as to attempt to confine a stream within a pond. The water that is put in the pond is no longer a living stream but a stagnant pool, and but little water can be put in the pond. Moreover, if one co...

Índice

• Cover
• Halftitle Page
• Library of Ancient Israel
• Title Page
• Copyright
• Dedication Page
• Content Page
• Foreword
• Acknowledgments
• Abbreviations
• Ancient Legal texts
• Chronologies
• Introduction
• Part 1 The Dimensions of Law
• 1. Israelite Law and Biblical Law
• 2. The Power of Law
• 3. The Law of Power
• 4. Speaking and Writing Law
• Part 2 Laws In Their Contexts
• 5. Law in the Villages
• 6. Law in the cities and the States
• 7. Law in the Cult
• Epilogue
• Appendix: Criteria for Identifying Laws
• Bibliography
• Index of Ancient Sources
• Index of Authors
• Index of Subjects