Literal meaning: semantics and narrative in biblical law and modern jurisprudence

International Journal for the Semiotics of Law

Volumn 13, Issue 4, 2000, Pages 433-457

  Jackson, Bernard S ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

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EID: 41249102021     PISSN: 09528059     EISSN: 15728722     Source Type: Journal    
DOI: 10.1023/A:1011282814139     Document Type: Article

References (62)

1. CL 123. All references in this article are to the second edition: H.L.A. Hart, The Concept of Law (Oxford: The Clarendon Press 1994), the pagination of which differs somewhat from that of the 1st, 1961 edition.
2. CL 131; see further my Semiotics and Legal Theory (London, Routledge & Kegan Paul, 1985, reprinted Liverpool: Deborah Charles Publications, 1997), 163-165.
3. CL 126. Hart here seems to be applying the Wittgensteinian distinction between following a rule and interpreting it. See further my Making Sense in Jurisprudence (Liverpool: Deborah Charles Publications, 1996), 186f.
4. B. Bix, Law, Language and Legal Determinacy (Oxford: Clarendon Press, 1995), 72f.
5. See further my Making Sense in Jurisprudence, supra n. 3, at 192f.
6. A. Marmor, Interpretation and Legal Theory (Oxford: Clarendon Press, 1992), 137.
7. See further my Making Sense in Jurisprudence, supra n. 3, at 193.
8. A fourth example, Exod. 21: 12-14, is discussed in my "The Original 'Oral Law' ", in Jewish Ways of Reading the Bible, ed. G.W. Brooke (Oxford: Oxford University Press, 2000;
9. Journal of Semitic Studies Supplement X), 3-19
10. and Studies in the Semiotics of Biblical Law (Sheffield, Sheffield Academic Press, 2000), chs. 3, 10, where some further discussion of the these texts, and their rabbinic treatment, may be found.
11. Discussed and rejected in my Theft in Early Jewish Law (Oxford: The Clarendon Press, 1972), 204-206.
12. J. Goody, The Domestication of the Savage Mind (Cambridge: Cambridge University Press, 1977), 128;
13. W. Ong, Orality and Literacy (London and New York: Methuen, 1982), 104.
14. Or, for the lawyer, by applying a "synchronie" rule of interpretation: specialia generalibus derogant.
15. J.J. Finkelstein, "The Ox That Gored", Transactions of the American Philosophical Society, Vol. 72 Pt. 2 (Philadelphia, 1981), 36.
16. Example: Value of dead ox when alive: 300; value of carcass: 50; value of goring ox when sold: 200. Each party gets equivalent of 125; owner of dead ox has thus lost 175, owner of gorer has lost 75.
17. Example: Value of dead ox when alive: 200; value of carcass: 50; value of goring ox when sold: 300. Each party gets equivalent of 175; owner of dead ox has thus lost 25, owner of gorer has lost 125.
18. Example: Value of dead ox when alive: 200; value of carcass: 50; value of goring ox when sold: 500. Each party gets equivalent of 275; owner of dead ox has thus gained 75, owner of gorer has lost 225.
19. Example: Value of dead ox when alive: 600; value of carcass: 150; value of goring ox when sold: 100. Each party gets equivalent of 125; owner of dead ox has thus lost 475, owner of gorer has gained 25!
20. I.e. the difference between the animal's value before and after the incident. In the circumstances of Exod. 21:35 this meant that the plaintiff retained the carcass of his dead ox, and deducted the whole of its value from that of the ox when alive, in order to ascertain the loss which should be divided. See, e.g., Maimonides, The Book of Torts, trld. H. Klein (New Haven: Yale University Press, 1954), 4 (Hilkhot nizke mamon 1:3): "Thus, if an ox worth one hundred denar gores an ox worth twenty and kills it and the carcass is worth four, the owner of the ox must pay eight, this being half of the residual damage." In this case, a literal application of Exod. 21:35 would have given each party fifty denar plus half the actual carcass, thus considerably profiting the owner of the dead ox. The Rabbis expressed this as "half damages from its body": Mishnah B.K. 1:4, Mek. ad Ex. 21:29 (Lauterbach iii 82-83).
21. As argued in "The Goring Ox Again", Journal of Juristic Papyrology 18 (1974), 55-93, at 74-77;
22. reprinted in my Essays in Jewish and Comparative Legal History (Leiden: E.J. Brill, 1975), 130-135.
23. It is interesting to note that Roman law also had an "arbitrary" procedure in its strict liability remedy for damage or injury caused by animals, the actio de pauperie. Here, the owner was liable to pay the full damage, but could, if he preferred, hand over the offending beast in noxal surrender. Clearly, he would always do this where the value of the animal was less than the value of the damage it had caused. And in such a case (and only in such a case - hence the "arbitrariness" of the remedy) there would be no need for a formal assessment of the value of the loss.
24. Even modern legal systems have safety devices to protect themselves against utterly absurd applications of literal meaning: in English law, the "golden rule".
25. D. Daube, The New Testament and Rabbinic Judaism (London: Athlone Press, 1956; repr. New York: Arno Press, 1973), 255-259, argues from the antithetical examples Jesus provides that he is arguing not against mutilation for bodily injury but rather against suing for damages for insult.
26. See further my "An Aye for an I?: the Semiotics of Lex Talionis in the Bible", in Semiotics and the Human Sciences: New Directions - Essays in Honor of Roberta Kevelson, ed. W. Pencak and J. Ralph Lindgren (New York and Bern: Peter Lang, 1997), 127-150;
27. Studies in the Semiotics of Biblical Law, supra n. 6, ch. 10.
28. In fact, even where (as normal), Biblical law does use verbs, as in v.23: "and you shall give" (venatatah), Biblical Hebrew grammar does not have any clear or regular way of distinguishing these modalities. They are part of the "restricted code" to which reference is made in text below at n. 33.
29. On these issues in biblical law, see my Essays, supra n. 16, at 41-50, 59-62.
30. Ant. 4.8.35.280, contrary to the opinion of Daube, supra n. 19, at 256, who sees Josephus as reflecting the (similar) provision of the Twelve Tables: si membrum rupsit, ni cum eo pacit, talio esto.
31. The immediate context of this occurrence of the formula is indeed accidental injury (Exodus 21:22-23). But it is clear that this context is not original: on the interpolation of these verses, see further my Essays, supra n. 16, at 96-107.
32. Finkelstein, supra n. 10, at 34f., wrote that talio should be regarded as a "paradigm".
33. See Jackson, Essays, supra n. 16, at 83f.
34. The words put into the mouth of Adoni-Bezek are similar to the language used to express talio in Deuteronomy 19:19, "Then you shall do to him as he had meant to do to his brother" and also to the formula in Leviticus 24:19, "As he has done it shall be done to him."
35. Deuteronomy 19:6, 12; Numbers 35:25.
36. Example: Value of dead ox when alive: 200; value of carcass: 50; value of goring ox when sold: 250. Each party gets equivalent of 150; owner of dead ox has thus lost 50, owner of gorer has lost 100.
37. Ezra 7:25: "And you, Ezra, according to the wisdom of your God which is in your hand, appoint magistrates and judges who may judge all the people in the province beyond the River, all such as know the laws of your God; and those who do not know them, you shall teach."
38. See further my "Ideas of Law and Legal Administration", in The World of Ancient Israel: Sociological, Anthropological and Political Perspectives, ed. R.L. Clements (Cambridge: Cambridge University Press, 1989), 187f.;
39. "Legalism and Spirituality: Historical, Philosophical and Semiotic Notes on Legislators, Adjudicators, and Subjects" in Religion and Law, Biblical-Judaic and Islamic Perspectives, ed. E.B. Firmage, B.G. Weiss and J.W. Welch (Winona Lake: Lisenbrauns, 1990), 244-249;
40. "Modelling Biblical Law: The Covenant Code", Chicago-Kent Law Review 70:4 (1995), 1818-1823.
41. See esp. 2 Chron. 19: 5-11, Deut. 16: 18-20; Exod. 18: 19-22; Deut. 1: 19-17. It seems, rather, that the legal rules found in the biblical law codes were originally written down for didactic purposes: "Ideas of Law and Legal Administration", supra, at 192-194.
42. 2 Chron. 19: 4-7, though the details are thought by some to reflect a later period than that described.
43. B. Bernstein, Class, Codes and Control (London: Routledge and Kegan Paul, 1971), Vol. I, chs. 5-7, esp. pp. 108f., 123-137.
44. Supra n. 8, at 106.
45. See F.C. Fensham, "Widow, Orphan and the Poor in Ancient Near Eastern Legal and Wisdom Lterature", Journal of Near Eastern Studies 21 (1962), 129-139.
46. See also K.W. Whitelam, The Just King. Monarchical Judicial Authority in Ancient Israel (Sheffield: JSOT Press, 1979), 129-135.
47. Indeed, abuse of mishpat became a focus of opposition to the hereditary principle. See, e.g., the succession of Abimelekh to Jerubba'al (= Gideon), and his slaughter of his step-brothers, which provokes Jotham's anti-monarchical fable of the trees (Judg. 9: 1-14).
48. See generally my Law, Fact and Narrative Coherence (Merseyside: Deborah Charles Publications, 1988), esp. chs. 3-5.
49. Why does the noisy automobile strike us immediately as within the core, while the truck on a pedestal appears more problematic? The answer does not reside, Fuller argues, in the open texture of the word "vehicle" but rather in uncertainty as to the purpose of the statute. Since the presence of the noisy automobile would violate either possible purpose of the regulation, it falls within the core. But does the immobile (but nevertheless working) truck used as a war memorial fall within the core or the penumbra? The answer depends upon the range of possible purposes we attribute to the statute. If we attribute only the purposes of avoiding noise and possible injury, the war memorial does not offend either of those purposes (at least, provided it has no dangerous edges); if, on the other hand, the purposes include maintenance of the environmental integrity of the park, then there may be an argument as to whether the war memorial violates that purpose or not. Fuller implies that it would be ridiculous for a court to determine this matter simply by saying "a truck in perfect working order is a vehicle, and is therefore prohibited in the park, whatever the use that may be made of it in the park and the purpose for which it is placed there." That would be an example of pure "formalism" or "mechanical jurisprudence", treating legal interpretation as if it were merely an abstract enquiry into the meaning of words. This, for Fuller, is a reductio ad absurdum. Unfortunately, such an approach to interpretation is not completely unknown in practice.
50. As Hart put it (CL 262, "Postscript", 2nd ed.): "His earliest examples imply that rules may come into conflict with principles and that a principle will sometimes win in competition with a rule and sometimes lose. The cases he cites include Riggs v. Palmer, in which the principle that a man may not be permitted to profit from his own wrongdoing was held notwithstanding the clear language of the statutory rules governing the effect of a will to preclude a murderer inheriting under his victim's will. This is an example of a principle winning in competition with a rule, but the existence of such competition surely shows that rules do not have an all-or-nothing character, since they are liable to be brought into such conflict with principles which may outweigh them. Even if we describe such cases (as Dworkin at times suggests) not as conflicts between rules and principles, but as a conflict between the principle explaining and justifying the rule under consideration and some other principle, the sharp contrast between all-or-nothing rules and non-conclusive principles disappears; for on this view a rule will fail to determine a result in a case to which it is applicable according to its terms if its justifying principle is outweighed by another. The same is true if (as Dworkin also suggests) we think of a principle as providing a reason for a new interpretation of some clearly formulated legal rule."
51. On this, see further my Making Sense in Law (Liverpool: Deborah Charles Publications, 1995), 153, 265, 364.
52. On this, see further my Making Sense in Jurisprudence, supra n. 3, at 159-166.
53. Pure Theory of Law, trld. M. Knight (Berkeley: University of California Press, 1967), 354.
54. Pure Theory, supra n. 43, at 269.
55. H. Kelsen, General Theory of Norms, ed. M. Hartney (Oxford: Clarendon Press, 1991), 239 (eh. 58, §xv).
56. H. Kelsen, Essays in Legal and Moral Philosophy, ed. O. Weinberger (Dordrecht: Reidel, 1973), 242.
57. Kelsen appears not to have addressed the logical problem of the validity of (individual) norms of competence resulting from his rejection of the logic of norms. At Pure Theory, supra n. 43, at 202, he had accepted, in describing the operation of the Grundnorm, that the foundation of validity of a positive law was a "syllogistic procedure".
58. Pure Theory, supra n. 43, at 219.
59. Pure Theory, supra n. 43, at 193f. For Kelsen, of course, it depends also on the entirely metaphysical assumption of the existence of God: ibid., at 221.
60. On this, see further my Making Sense in Jurisprudence, supra n. 3, at 120f.
61. General Theory of Norms, supra n. 45, at 258 (ch. 59, §iE).
62. General Theory of Norms, Ibid., at 115 (eh. 28).