Exodus 21:18–19 and the origins of the casuistic form

Israel Law Review

Volumn 33, Issue 4, 1999, Pages 798-820

  Jackson, Bernard S ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

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EID: 52549130884     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700016204     Document Type: Article

References (177)

1. E.g., L. Schwienhorst-Schönberger, Das Bundesbuch (Ex. 20,22–23,33). Studien zu seiner Entstehung und Theologie (Berlin, de Gruyter, 1990, BZAW, 188) 53
2. see further infra, n. 20.
3. For the view that this paragraph refers (impliedly, only) to temporary incapacities, see A. Alt, “The Origins of Israelite Law”, in Essays on Old Testament History and Religion (Oxford, Blackwell, 1966; reprinted Sheffield, JSOT Press, 1989) 104
4. N.M. Sarna, The JPS Torah Commentary. Exodus (Philadelphia and New York, The Jewish Publication Society, 1991) 123
5. “This text is curiously silent on the law governing the infliction of permanent injury”; A. Schenker, “Die Analyse der Intentionalität im Bundesbuch (Ex. 21–23)”, Zeitschrift für Altorientalische und Biblische Rechtsgeschichte TV (1998) 214 n. 13.
6. For earlier literature see B.S. Jackson, Essays in Jewish and Comparative Legal History (Leiden, E.J. Brill, 1975) 93 n. 109.
7. Cf.C. Houtman, Das Bundesbuch. Ein Kommentar (Leiden, E.J. Brill, 1997) 148, who rightly takes it to be implied that the assailant remains permanently liable for idleness and healing in these circumstances.
8. This is the position taken by Schwienhorst-Schönberger, Ein Kommentar n. 1, at 55f.
9. Houtman, Ein Kommentar n. 3, at 146f. Schwienhorst-Schönberger cites Deut. 24:5 and 1 Kings 15:22 for naki as referring to other liabilities: once the victim goes out on his staff there is no liability either for any subsequent death (if it happens) or any further “civil” liability for idleness or healing. The remedies in the latter part of v. 19 are thus restricted to the time before the victim arises from his sick bed. But this is very unlikely. The victim may well be unable to work, even though he can stagger round on a stick. There is no reason to limit liability in this way. The reasons for the temporal limitation on causation for homicide hardly apply here: if the assailant was responsible for the original “idleness”, there is no reason why he should not continue to be responsible until such time as the victim can actually resume work.
10. Cf. Hittite Laws §10 (in M. Roth, Law Collections from Mesopotamia and Asia Minor (Atlanta, Scholars Press, 1995) 218): “If anyone injures a person and temporarily incapacitates him, he shall provide medical care for him. In his place he shall provide a person to work on his estate until he recovers…”.
11. A question which, as we might expect, exercised the Rabbis: clear of the death penalty, not of the payments for shevet and ripui (to which is added compensation also for any lost limb: the Rabbis combine the remedies here with their understanding of the talionic provisions in Exod. 21:24f.
12. in order to produce a unified system of damages for personal injury: see Mishnah B.K. 8:1
13. Mekhilta ad Exod. 21:18, vekhi yeriyvun.
14. Cf. 2 Sam. 3:28–29: “Afterward, when David heard of it, he said, ”I and my kingdom are for ever guiltless (naki) before the LORD from the blood of Abner the son of Ner”.
15. Mekhilta ad toc; further sources in Houtman, Sam. n. 3, at 146f.
16. E.g., H. Cazelles, Etudes sur le Code de l'Alliance (Paris, Letouzey et Ané, 1946) 53
17. G. Liedke, Gestalt und Bezeichnung alttestamentlicher Rechtssätze: Eine formgeschichtlich terminologische Studie (Neukirchen-Vluyn, Neukirchener Verlag, 1971; WMANT, 39) 48
18. Jackson, Eine formgeschichtlich terminologische Studie n. 2, at 92f.
19. Schwienhorst-Schonberger, Eine formgeschichtlich terminologische Studie n. 1, at 55.
20. As is understood by scholars who interpret venikah as a causation test restricting bloodguilt: see infra n. 44.
21. To do so would entail the view that there was sufficient causation for a “civil” (compensatory) remedy but insufficient causation for a “criminal” remedy. On this reading, moreover, there is no remedy at all for the idleness and illness, if there is no subsequent fatality. See also Houtman, Eine formgeschichtlich terminologische Studie n. 3, at 148.
22. De Specialibus Legibus, III. 104–107
23. Translation of F.H. Colson, Philo, with an English Translation (London and Cambridge, Heinemann and Harvard University Press, 1937) VII.541–543 (Loeb Classical Library).
24. Following the LXX interpretation, as noted by Colson, English Translation n. 11, at VII. 543 n.b.
25. Infra, n. 44.
26. The converse of the later rabbinic principle that one who is liable to the death penalty is absolved from any monetary payment for which he would otherwise be liable in respect of the same (death-causing) act. See, as applied to Exod. 21:22–23
27. Mekhilta DeRabbi Shimon B. Yohai, J.N. Epstein and E.Z. Melamed, eds. (Jerusalem, Mekize Nirdamim, 1955), 176
28. Mechilta d'Rabbi Ishmael, H.S. Horowitz and LA. Rabin, eds. (Jerusalem, Bamberger & Wahrman, 1960), 276 (kol hamehayyev mitah patur min hatashlumin)
29. Ket. 35a
30. more generally, Ket. 37a-b
31. S.E. Loewenstamm, “Exodus 21:22–25”, Vetus Testamentum 27 (1977), 359
32. reprinted in his Comparative Studies in Biblical and Ancient Oriental Literatures (Neukirchen-Vluyn, Neukirchener Verlag, 1980) 524
33. H.H. Cohn, “The Penology of the Talmud” (1970) 5 Is. L.R. 53, at 68
34. reprinted in Jewish Law in Ancient and Modern Israel (New York, Ktav Publishing House, 1971) 76f.
35. Indeed, the ki… itn relationship is very often oppositional, with the im clause introducing a variant upon at least one element in the previous protasis of the ki clause. This is put in terms of Fall und Gegenfall by Schwienhorst-Schonberger, Jewish Law in Ancient and Modern Israel n. 1, at 63
36. Y. Osumi, Die Kompositionsgeschichte des Bundesbuches Exodus 20,22b-23,33 (Göttingen, Vandenhoeck & Ruprecht, 1991) 112.
37. The Laws of Eshnunna (Jerusalem, Magnes Press, 1969) 63 (2nd ed., 1988) 101f.
38. Yaron requires that the initial summa be deferred. However, even where it is deferred, the opening clause is still conditional in sense. More important is the fact that this initial conditional proposition (whether the conjunction summa is used or not) is not followed immediately by a consequence, but rather is interrupted by a (further) conditional sub-clause. Yaron accepts that this form (he cites LH 163/164: Eshnunna, 2nd ed., 102 n.47) is “somewhat similar”. See further B.S. Jackson, “Legal Drafting in the Ancient Near East in the Light of Modern Theories of Cognitive Development”, Mélanges á la méméire de Marcel-Henri Prevost (Paris, PUF,,1982) 58f.
39. an ass or a swine or a boat, if (.summa) (it is the property) of a god (or) if (summa) (it is the property) of a palace, he shall pay 30-fold; if (summa) (it is the property) of a villein, he shall replace it 10-fold”. Exod. 21:18f.
40. as we presently find it, begins as if it has such a structure in mind, but provides only one complete norm after the initial “split” protasis. To parallel LH 8, we would require something like: “When men quarrel and one strikes the other with a stone or with his fist and the man does not die but keeps his bed, then if the man rises again and walks abroad with his staff, the striker shall be clear; only he shall pay for the loss of his time, and shall have him thoroughly healed; if the man does not rise again, then…”. The problem faced by the draftsman is that logically he is dealing with two variants: (a) whether or not the victim ever recovers from his sick bed; (b) whether he dies, and if so when. Not all the permutations are addressed; some (such as death while still on his sick bed) may have been regarded as self-evident (whether from custom or some other formulation, such as Exod. 21:12).
41. For the applicability of Exod. 21:12–14 in such circumstances
42. see Sarna, Exod. n. 1, at 123.
43. The very splitting of the protasis anticipates the introduction of variant cases within what is stated in the initial clause, as in Exodus 22:6–7
44. the one genuine example in the Mishpatim. See also Schwienhorst-Schonberger, Exodus n. 1, at 52
45. who therefore regards the im clause as a temporal sub-clause within a single (complex) protasis (at 53). But the latter construction would be equally unique, as argued in the text above. The uniqueness of the drafting according to the present text makes it all the more strange that this norm should have been chosen to exemplify the supposed derivation of casuistic laws from court records: see infra, text at nn. 57–62.
46. Alt, infra n. 2, at 105 n. 56, appears to have suspected something of this kind.
47. He wrote of the “… lacuna after xxi. 19 (or more correctly after xxi. 18, since xxi. 19 is probably the beginning of the second subdivision of this section)….” Cf. Houtman, infra n. 3, at 147, who supplies what he thinks would have been the implied apodosis to v.18: “then he does not have to be put to death”.
48. Transpositions of the kind here suggested have also been suspected elsewhere. See, e.g., S.R. Driver, Exodus (Cambridge, Cambridge University Press, 1911) 224, on Exod. 22:2b MT, shallem yeshallem, im eyn lo venimkhar bigeneyvato.
49. Jackson, infra n.2, at 150–152.
50. This is the standard interpretation of egrof, adopted already by Philo (quoted above), though perhaps derived by him from the LXX. Driver, infra n. 22, at 217, while favouring “fist”, notes that “spade” or “hoe” would be possible etymologically, but would not fit Isa. 58:4. He doubts also the Targumic “club” or “cudgel”, as lacking philological justification. In the Mekhilta (ad foe), R. Nahman offers a hekesh with even, to argue that the egrof must be capable of producing death (sheyesh bo kedei lehamit).
51. If it does refer to the hand rather than an implement, it indicates a clenched fist rather than an open palm which can deliver a slap rather than a wound: Schenker, infra n. 2, at 212 n.7
52. see also J.M. Sprinkle, The Book of the Covenant —A Literary Approach (Sheffield, JSOT Press, 1994) 90
53. Houtman, The Book of the Covenant —A Literary Approach n. 3, at 143f.
54. E.g., Schenker, The Book of the Covenant —A Literary Approach n. 2, at 211f.
55. Cf. Sprinkle, The Book of the Covenant —A Literary Approach n. 24, at 90
56. Houtman, The Book of the Covenant —A Literary Approach n. 3, at 144. Mekhilta ad loc. also makes this connection, though not for this purpose.
57. The LXX and Syriac specify two participants; Cazelles, The Book of the Covenant —A Literary Approach n. 8, at 53
58. argues that the Hebrew itself presupposes this (ish et re'ehu) but cannot state it precisely, since ish does not exist in the dual form. Houtman, The Book of the Covenant —A Literary Approach n. 3, at 143, is not convinced.
59. Cf Houtman, The Book of the Covenant —A Literary Approach n. 3, at 144.
60. A quarrel is found elsewhere as a paradigm of intentional but unpremeditated (spur-of-the-moment) action. See Dig. 48.8.1.3, Leniendam poenam eius, qui in rixa casu magis quam voluntate homicidium admisit, where rixa (cf. Vulg. Exod. 21:18, 22: si rixati fuerint viri) is viewed as more akin to casus [Dig. 48.19.11.2: delinquuntur autem aut proposito aut impetu aut casu, with examples: Jackson, The Book of the Covenant —A Literary Approach n. 2, at 91f. n. 100] than to voluntas
61. Jackson, The Book of the Covenant —A Literary Approach n. 2, at 87 and n. 83
62. citing also LH 206 and U-N 16. Aliter, Schenker, The Book of the Covenant —A Literary Approach n. 2, at 214–216, who argues that a brawl is the one case where intention in relation to consequences (i.e., how severely the offender intended to injure, rather than his intention to strike the blow at all) cannot be determined externally, but only subjectively. Modern criminal law (in England too) does indeed distinguish intention in relation to the act from intention in relation to the consequences, but there is no warrant for applying such a sophisticated modern distinction to the biblical texts without some (even concrete) indication of it in the text.
63. Schenker takes support from the exculpatory oath in LH 206, but there the oath is best viewed as a denial of premeditation. That the phrase ina idu has no stable, technical meaning may be seen from LH 227, the case of the misinformed barber, where Roth, The Book of the Covenant —A Literary Approach n. 4, renders it “knowingly” (as against “intentionally” in LH 206).
64. More generally, Schenker, The Book of the Covenant —A Literary Approach., argues that intention in the context of a brawl has to be determined in accordance with the circumstances, and uses this to distinguish Exod. 21:18 (where a weapon is used against its intended victim) from Exod. 21:22 (where no weapon is mentioned, and the pregnant woman is not the intended victim at all).
65. He presents Exod. 21:18–32 as structured around a descending hierarchy of intentionality (“Intentionalitat”, 216f.), from “… hochsten Grad der Absichtlichkeit, namlich der direkten Vorsatzlichkeit” in Exod. 21:18 to “Fahrlassigkeit” in Exod. 21:28–32 — though this hierarchy is not determinative of legal consequences, the latter taking account also the gravity of the injury. But quite apart from the methodological problems in attributing such a structure of abstractions to our text (Schenker himself recognises the typically concrete formulation of ancient Near Eastern law: 211), the proposed hierarchy ignores Exod, 21:26f. (which disturbs it), and there are inconsistencies in Schenker's terminology regarding intention in Exod. 21:18, variously described as “Absichtlichkeit” (214)
66. “Absichtlichkeit (nicht die Vorsatzlichkeit!)” (142 n. 13)
67. “Vorsatzlichkeit” (216, 217)
68. “Absichtlichkeit im Affekt” (214 n.13, 215, 217).
69. Cf. Houtman, “Absichtlichkeit im Affekt” n. 3, at 144.
70. S.M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (Leiden, E.J. Brill, 1970) 67f, sees this as the point of distinction between this paragraph and the talionic provisions, but this view has attracted little support
71. Bee, e.g., J.M. Sprinkle, “The Interpretation of Exodus 21:22–25 (Lex Talionis) and Abortion” (1993) 55 Westminster Theological Journal 237 n. 13.
72. On the sufficiency of “momentary” intention in modern (by contrast to medieval) English criminal law, see my “On the Atemporality of Legal Time”, in F. Ost and M. van Hoecke, eds., Temps et Droit. Le droit a-t-il pour vocation de durer (Brussels, Bruylant, 1998) 225–246, at 235.
73. Biblical scholars tend to recognise that the blow here is intentional, though not premeditated, though the terminology used does not always reflect that distinction. Thus Schwienhorst-Schbnberger, Temps et Droit. Le droit a-t-il pour vocation de durer n. 1, at 116, speaks here of “vorsatzlicher” Korperverletzung.
74. Cf. Paul, Temps et Droit. Le droit a-t-il pour vocation de durer n. 29, at 67.
75. Houtman, Temps et Droit. Le droit a-t-il pour vocation de durer n. 3, at 144
76. argues (against A. Schenker, Versohnung und Widerstand (Stuttgart, Verlag Katholisches Bibelwerk, 1990) 35f.) that there is not even an intent to injure the other: an enraged person does not know what he is doing.
77. But whether this situation should be classified as intention or not is too abstract a question for the biblical sources: for them, it suffices to distinguish what are sensed as experientially different situations, and apply different legal consequences to them. There is no logical necessity for the application of abstract legal concepts (an argument famously advanced in legal philosophy by Alf Ross, “Tû-Tĉ”, (1957) 70 Harv. L.R. 812–825
78. see further my Making Sense in Jurisprudence (Liverpool, Deborah Charles Publications, 1996) 141–143)
79. where there is neither textual support for them nor parallels indicating the attainment of that level of discursive/cognitive advance needed to sustain them (see Jackson, Making Sense in Jurisprudence n. 18, at 60f.
80. Making Sense in Law. Linguistic, Psychological and Semiotic Perspectives (Liverpool, Deborah Charles Publications, 1995) 268f.), there is little historical warrant for the debate.
81. Deut. 4:42; 19:4, 6,11
82. Josh. 20:5
83. Num. 35:20.
84. We may recall the Roman rule under the lex Aquilia under which an action on the statute was limited to cases of injury and damage caused corpore suo. The Rabbis show sensitivity to the same issue: see Jackson, Num. n. 2, at 262f.
85. Alt, Num. n, 2, at 89–91
86. “Once this is done, the necessary details of the penalties to be imposed in this particular case can be summarized in the main clauses. These are also set out with great precision — there is first the negative provision, that the use of capital punishment is expressly excluded, and then the positive provision, that the accused is required to compensate his victim. He must in fact pay a double compensation — first for the time when the injured man could not take part in public life, and secondly for the cost of his restoration to health. This means that each of the nine clauses plays an indispensable part in the structure of the whole law, and that there is not one redundant word in any of them. The apparently pleonastic diction is not so in reality, and the overloaded subordination of conditional clauses to one another is unavoidable. It follows as a necessary result of the complicated nature of the matter that is being dealt with, and especially of the need to make clear distinctions in the application of basic principles. These principles are not stated in the law, but are none the less rigidly applied to the case in question”. Cf. M. PreVost, “A Propos du Talion”, in Melanges dedies a la memoire de Jacques Teneur (Lille, University du droit et de la sante, 1977) 11.624, 629
87. on the drafting of Exod. 21:22–25.
88. See, for the moment, B.S. Jackson, “Practical Wisdom and Literary Artifice in the Covenant Code”, in B.S. Jackson and S.M. Passamaneck, eds., The Jerusalem 1990 Conference Volume (Atlanta, Scholars Press, 1992) 65–92 (Jewish Law Association Studies, VI)
89. “Modelling Biblical Law: The Covenant Code”, (1995) 70:4 Chicago-Kent L.R. 1745–1827, esp. 1760–1771.
90. A concept used in modern legal philosophy in discussing legal reasoning in “hard cases”: see R.M. Dworkin, Taking Rights Seriously (London, Duckworth, 177), 112f.
91. Jackson, Making Sense in Jurisprudence, Taking Rights Seriously n. 31, at 268f.
92. Cf. G.C. Chirichigno, Debt-Slavery in Israel and the Ancient Near East (Sheffield, JSOT Press, 1993) 173: “the assailant is required to take care of the injured person until he is completely healed…”.
93. Arguing in part from HL 10 (see n. 39, infra)
94. Schwienhorst-Schonberger, infra n. 1, at 58, suggests material costs (ointments and oils), payment of a physician and possibly also transport and other liturgically-related costs.
95. Cf. Paul, infra n. 29, at 67.
96. HL 10 appears to require both provision of “medical care” (nursing?) and (when he recovers) payment of the physician. Since in this same provision, the Hittite Laws explicitly contemplate payment in kind rather than money in respect of “idleness” (“In his place he shall provide a person to work on his estate until he recovers”: Roth, infra n. 4)
97. we may well interpret the required “medical care” (as distinct from the payment of the physician) in the same sense. See also LH 206: “he shall satisfy the physician (i.e., pay his fees)” (Roth); cf. Houtman, infra n. 3, at 148.
98. Schwienhorst-Schonberger, infra n. 1, at 57, prefers a derivation fromyashav rather than shabat, partly because it fits better with the opposition to yakum and halakh. The choice hardly affects the substance of the meaning.
99. Indicated by the use of the verb shillem in Exod. 21:36, 37, 22:3, 4, 5, 6, 8, 11, 13
100. see D. Daube, Studies in Biblical Law (Cambridge, Cambridge University Press, 1947, repr. New York, Arno, 1969) 134–138, esp. 135
101. arg. also Exod. 21:23, 34
102. (on which see Daube, Studies, 138–141).
103. Daube, however, rejected this solution (without reference to the Hittite parallel) in Exod. 21:19
104. partly on the grounds that the verb there used is natan rather than shillem: Studies, 137.
105. Cf. F.C. Fensham, “Exodus XXI 18–19 in the light of Hittite Law §10”, Vetus Testamentum 10 (1960), 333–335
106. (arguing against the view of Cazelles, Vetus Testamentum n. 8, at 53f., that shivto means “residence”, i.e., accommodation)
107. Schwienhorst-Schönberger, Vetus Testamentum n. 1, at 57
108. Houtman, Vetus Testamentum n. 3, at 145,148.
109. Aliter, A. Phillips, Ancient Israel's Criminal Law (Oxford, Blackwell, 1970) 87.
110. Alt, Ancient Israel's Criminal Law n. 2, at 90
111. Schwienhorst-Schönberger, Ancient Israel's Criminal Law n. 1, at 56.
112. Cf. Driver, Ancient Israel's Criminal Law n. 22, at 217: “… if he died after he had taken his first walk, he might himself have met with some further accident, or imprudently ventured out too soon”
113. D. Daube, “Direct and Indirect Causation in Biblical Law”, Vetus Testamentum 11 (1961), 248f.
114. Phillips, Vetus Testamentum n. 42, at 87
115. Liedke, Vetus Testamentum n. 8, at 48 n.2
116. G. Schmitt, “Ex. 21,18f. und das rabbinische Recht”, in W. Dietrich et al., Theokratia. Festschrift K.H. Rengstorf(Leiden, E.J. Brill, 1973) 13f.
117. Schwienhorst-Schbnberger, Theokratia. Festschrift K.H. Rengstorf n. 1, at 54f
118. Chirichigno, Theokratia. Festschrift K.H. Rengstorf n. 37, at 173
119. see also Osumi, Theokratia. Festschrift K.H. Rengstorf n. 16, at 111 n. 115 (end), though the reasoning here is somewhat obscure.
120. Romanists may recall the argument of Daube about the original significance of the 30-day rule in the Lex Aquilia: D. Daube, “On the Third Chapter of the Lex Aquilia” (1936) 52 Law Q.R. 253–268.
121. A similar view is taken of the medieval rule of English law, that in the crime of murder, death had to take place within a year and a day (cf. G. Williams, Textbook of Criminal Law (London, Stevens, 1978) 325f.).
122. Affirmed in modern times in Dyson [1908] 2 K.B. 454
123. this was repealed only in 1996: Law Reform (Year and a Day Rule) Act, 1996. Even now, however, the Attorney-General's consent to the prosecution is required if death occurs more than three years later, or if the defendant has already been convicted of another (i.e. non-fatal) offence in connection with the incident.
124. Cf. Daube, Law Reform (Year and a Day Rule) Act n. 44, at 248: “the person who receives a bump, lives happily for twenty years, then develops migraine — and claims. Of course, the migraine might be due to the bump”.
125. The argument derives from the content of the norms, not the use here of yeriyvun — which refers to the context of the offence, rather than the means to resolve it. We cannot therefore invoke the distinction between riv and mishpat advanced by P. Bovati, Re-Establishing Justice (Sheffield, Sheffield Academic Press, 1994) in order to determine here the procedure used to resolve the dispute.
126. In fact, Bovati, 37 n. 1,42, appears to take yeriyvun here as a “degraded form” of dispute resolution, where the debate designed to resolve (a different) dispute turns into a brawl.
127. Against the view that yeriyvun in Exod. 21:18 implies a legal process
128. see also Cazelles, Exod. n. 8, at 53
129. (arguing from Gen. 26:22, 31:36)
130. Schwienhorst-Schbnberger, Gen. n. 1, at 110.
131. See further Jackson, “Practical Wisdom”, Gen. n. 35, at 65–78.
132. The same argument may he applied to the other two cases which R. Ishmael is said to have interpreted as a mashal. (1) the determination of whether the killing of an intruder is justified or not (im zarha hashemesh alav, Exod. 22:2, MT, being interpreted not as an objective test, whether the killing occurs by day or night, but whether “it is known that he (the intruder) would have left in peace” (Mekhilta; Targum Yonatan and Sanh. 72a are more explicit in interpreting zarha hashemesh as “as clear as the sun”: see further B.S. Jackson, Theft in Early Jewish Law (Oxford, Clarendon Press, 1972), 208–211, on these and parallel sources); (2) the sheet of the suspected bride in Deut. 22:17 (“They should make the matter as clear as a white sheet”).
133. I continue to maintain, against M. Greenberg, “Some Postulates of Biblical Criminal Law”, in M. Haran, ed., Yehezkel Kaufman Jubilee Volume (Jerusalem, Magnes Press, 1960) 13–17, and others, the view that kofer was originally a normal institution, quite generally available at the discretion of the kin, but banned at a late stage in the development of biblical literature (represented by Num. 35)
134. Jackson, Yehezkel Kaufman Jubilee Volume n. 2, at 42–46
135. a view shared by Loewenstamm, Comparative Studies, Yehezkel Kaufman Jubilee Volume n. 14, at 146–153
136. H. McKeating, “The Development of the Law of Homicide in Ancient Israel” (1975) 25 Vetus Testamentum 55f.
137. A. Rofé, “The History of the Cities of Refuge in Biblical Law”, in S. Japhet, ed., Studies in Bible (Jerusalem, Magnes Press, 1986; Scripta Hierosolymitana, XXXI) 206, 235
138. R. Westbrook, Studies in Biblical and Cuneiform Law (Paris, Gabalda, 1988) 77–83
139. J.W. Welch, “Reflections on Postulates: Power and Ancient Laws — A Response to Moshe Greenberg”, in E.B. Firmage, B.G. Weiss and J.W. Welch, eds., Religion and Law, Biblical-Judaic and Islamic Perspectives (Winona Lake: Eisenbrauns, 1990) 116.
140. Religion and Law, Biblical-Judaic and Islamic Perspectives n. 24, at 102f.
141. Contrary to the approach of Alt, quoted in n. 34, Religion and Law, Biblical-Judaic and Islamic Perspectives.
142. Deut. 16:18–20
143. see also Jackson, “Modelling Biblical Law”, The World of Ancient Israel: Sociological, Anthropological and Political Perspectives n. 35, at 1749 n. 15, 1818–1823.
144. This might appear to manifest the theory of Sir Henry Maine, on the priority of themistes to customary law. See, however, Jackson, Making Sense in Jurisprudence, The World of Ancient Israel: Sociological, Anthropological and Political Perspectives n. 31, at 64f.
145. The World of Ancient Israel: Sociological, Anthropological and Political Perspectives n. 2, at 92.
146. The World of Ancient Israel: Sociological, Anthropological and Political Perspectives n. 8, at 39ff., esp. 54–56.
147. For such trial records, see now those from Nippur, discussed by C. Locher, Die Ehre einer Frau in Israel (Freiburg, Schweiz, Universitätsverlag, 1986) 93–109.
148. H.J. Boecker, Law and the Administration of Justice in the Old Testament and Ancient East, trld. J. Moiser (London, SPCK, 1980) 153.
149. He quotes Liedke, Law and the Administration of Justice in the Old Testament and Ancient East n. 8, at 55f.: “the development of the casuistic principle began… as the attempt to preserve and hand on, in written or oral form, a judicial sentence”.
150. Note the indeterminacy regarding the form of transmission. J. Goody, The Interface Between the Written and the Oral (Cambridge, Cambridge University Press, 1987) 74, sees the process as associated specifically with literacy: in discussing Bottero's account of the place of Hammurabi's Code in Ancient Near Eastern Listenwissenschaft, he comments: “… the stripping away of the individual and the casual, as well as the process of selection this involves, is part of the process of recording a court case or any other set of events. Moreover the very fact of writing them down means that one can make, record, and hence compare repeated observations in a precise away”.
151. E. Otto, “Town and Rural Countryside in Ancient Israelite Law: Reception and Redaction in Cuneiform and Israelite Law”, (1993) 57 Journal for the Study of the Old Testament 4, 18, 22.
152. F. Crusemann, The Torah. Theology and Social History of Old Testament Law, trans. Allan W. Mahnke (Edinburgh, T&T Clark, 1996) 160.
153. We do, by contrast, have reflections of orally delivered verdicts: tsadik ata (Prov. 24:24; cf. Boecker, Theology and Social History of Old Testament Law n. 58, at 38)
154. even perhaps naki in Exod. 21:18.
155. For the theoretical foundations for this claim, see Jackson, Making Sense in Law, Exod. n. 31, at 144–48, 203–205, 218f., 228–234.
156. On the use of the casuistic form in other legal cultures, see Jackson, “Evolution and Foreign Influence in Ancient Law” (1968) 16 Am. J. Comp. L. 381 and n. 48
157. S. Segert, “Form and Function of Ancient Israelite, Greek and Roman Legal Sentences”, in H.A. Hoffner, ed., Orient and Occident, Essays Presented to C.H. Gordon (Neukirchen-Vluyn, Neukirchener Verlag, 1973) 164f.
158. Examined earlier by R. Westbrook, “Biblical and Cuneiform Law Codes” (1985) 92 Revue Biblique 261–264.
159. See also A. Fitzpatrick-McKinley, The Transformation of Torah from Scribal Advice to Law (Sheffield, Sheffield Academic Press, 1999) 109–112.
160. In addition to the narratives discussed in this paragraph, Westbrook includes Num. 15:32–37 (the case of the Sabbath stick-gatherer), while recognising that it provides (expressly) only a decision and not a precedent for the future.
161. See further Jackson, “Modelling Biblical Law”, Num. n. 35, at 1824–1826, on the jurisdictional claims advanced in these sources.
162. Num. 27:7: ken benot tselophehad dobrot, naton titen lahem ahuzat nahalah….
163. Crüsemann, Num. n. 60, at 84, has plausibly suggested that these narratives are designed to provide authority to propound new, divinely-authorised rules, which are not claimed to have been given on Sinai.
164. Cf. B.S. Jackson, “Some Semiotic Questions for Biblical Law”, A.M. Fuss, ed., The Oxford Conference Volume (Atlanta, Scholars Press, 1987; Jewish Law Association Studies III) 6–9.
165. An argument to similar effect has been advanced by R. Knierim, “The Problem of Ancient Israel's Prescriptive Legal Traditions”, in D. Patrick, ed., Thinking Biblical Law (1989) 45 Semeia 16f., against Liedke's account of the casuistic laws. The latter, Knierim argues, fails conceptually to distinguish between a case decision and the use of prescriptive language in formulating a binding (legislative) rule for the future. “In these formulations, Liedke actually misses the point in his own awareness of the differences between a judgment and a law. It is the question as to what constitutes a law as law once it is transformed from the formulation of a decision into a prescriptive statement. Liedke does not explain why such transformations happened, who made them, how the persons who made them functioned, and what the function of these new formulations was meant to be”.
166. On the relationship between the two cases, and the narrative function of their separation in the text, see D.R. Ulrich, “The Framing Function of the Narratives about Zelophehad's Daughters”, (1998) 41 J. Evangelical Theological Society 529–538.
167. Num. 36:5: ken mateh bnei yosef dobrim.
168. Lev. 24:15–21
169. see further B.S. Jackson, “Talion and Purity: Some Glosses on Mary Douglas”, in J.F.A. Sawyer, ed., Reading Leviticus, A Conversation with Mary Douglas (Sheffield, Sheffield Academic Press, 1996), 119–121.
170. lo ta'asu ken…, v.23. See further on this narrative Jackson, “Modelling Biblical Law”, Reading Leviticus, A Conversation with Mary Douglas n.35, at 1774f. n.89.
171. “Addenda to ‘Hebrew Law in Biblical Times’” (1978) VIII Din Israel 36, rejected the view that this can be regarded as an example of royal legislation; David was not yet king, he acted only as military commander.
172. On this, see further B.S. Jackson, Studies in the Semiotics of Biblical Law (Sheffield, Sheffield Academic Press, 2000) §6.2 (forthcoming).
173. Pace, Alt, Studies in the Semiotics of Biblical Law n. 2, at 91, “… as far as I can see there is not a single one of the laws given in casuistic form, either within or without the Book of the Covenant, which could not be used as it stands in the work of the ordinary courts; they were presumably composed, then, to fulfil the needs of these courts”.
174. In fact, Alt's “agenda” was theological rather than legal historical: he portrayed the casuistic law as “rigid” (see end of quotation in n. 34, Studies in the Semiotics of Biblical Law) and the apodictic (Studies in the Semiotics of Biblical Law n. 2, at 132), as displaying an “unrestrained power of aggression which seeks to subject every aspect of life without exception to the unconditional domination of the will of Yahweh”.
175. C. van Houten, The Alien in Israelite Law (Sheffield, Sheffield Academic Press, 1991) 11, comments on the approach to the study of Old Testament law which has “bequeathed to us a tradition which denigrates a law-centered religion”.
176. See further B.S. Jackson, “Significato letterale. Semantica e narrativa nel diritto biblico e nella teoria contemporanea del diritto” (1999) 12 Ragion Pratica 153–177
177. idem, “The Original ‘Oral Law”’, in G.W. Brooke, ed., Jewish Ways of Reading the Bible (Oxford, Oxford University Press, 2000; Journal of Semitic Studies Supplement X, forthcoming).