Revolution in biblical law: Some reflections on the role of theory in methodology

Journal of Semitic Studies

Volumn 50, Issue 1, 2005, Pages 83-115

  Jackson, Bernard S ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

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EID: 61449501287     PISSN: 00224480     EISSN: None     Source Type: Journal    
DOI: 10.1093/jss/fgi005     Document Type: Article

References (63)

1. A compressed version of this section was presented to a panel on Van Seters' book at the International Meeting of the SBL in Cambridge, July 2003. I have made occasional reference to his oral response on that occasion
2. In support of a separate origin, Phillips, (p. 187) cites I. Lewy, 'Dating of Covenant Code sections on humaneness and righteousness', VT 7 (1957), 322-6, which is not discussed by Van Seters
3. Just two examples for present purposes: (1) In discussing the formulation of the kidnapping law in Exod. 21:16, and the problem of 'and is found in his hand', he makes no reference to the incidence of the same tests, of sale and hot possession, in separate provisions of the theft laws, and the diachronic argument in relation to both, advanced by D. Daube, Studies in Biblical Law (Cambridge 1947), 89-96
4. see also my Theft in Early Jewish Law (Oxford 1972), 41-8
5. (2) In discussing Exod. 22:15-16 (classified unproblematically as 'family law', e.g. at p. 18: 'the lone marriage law in 22:15-16 [16-17] hardly seems adequate when compared with its Near Eastern counterparts', despite the fact that the principal concern is clearly interference with the father's interest in the mohar, following other paragraphs relating to interference with property) and its relationship to Deut. 22:28-9, Van Seters dismisses cursorily the view of Rofé (shared by many, probably most, others) that Exod. 22:15 is seduction rather than rape (or at the very least both), and argues (p. 124) : 'it is hard to see what the legal distinction between the two [rape and seduction] would be'. But this corresponds to the fact that there is in D no mention of the capacity of the father to refuse the marriage in the case of rape. In the latter case, such a refusal is inconceivable, in the interests of the father himself, since it is difficult to imagine that he would be able to obtain a brideprice for a daughter who has been raped
6. By contrast, both Exod. 22:15 (where the marriage does go ahead) and Exod. 22:16 (where it does not) indicate that the effect of lack of virginity is not incapacity for marriage, and the unavailability of a brideprice, but rather a reduced brideprice: see further S.M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (Leiden 1970), 96-7
7. idem, 'Virgin, Virginity', Encyclopedia Judaica (Jerusalem 1973), XVI: 160f
8. Van Seters, rather, sees Exod. 22:16, in which we find the provision regarding refusal by the father, as an addition made by the author in the light of the Mesopotamian legal tradition, particularly MAL A55, which he quotes on page 123
9. He fails to cite MAL A56, which presents a closer parallel to Exod. 21:15-16
10. J. Van Seters, 'The Law of the Hebrew Slave', ZAW 108 (1996), 534-46
11. See further B.S. Jackson and T.F. Watkins, 'Distraint in the Laws of Eshnunna and Hammurabi', Studi in onore di Cesare Sanfilippo (Rome 1984), V:411-19
12. In the context of its use in Ruth 4:5, Phillips, 207, cites D.H. Weiss, 'The Use of Kanah in connection with marriage', HTR 57 (1964), 244-8
13. See further my 'Literal Meaning: Semantics and Narrative in Biblical Law and Modern Jurisprudence', International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique 13/4 (2000), 433-57
14. 'The Original Oral Law', in G.J. Brooke (ed.), Jewish Ways of Reading the Bible (Oxford 2000), 3-19
15. 'Law, Wisdom and Narrative', in G.J. Brooke and J.-D. Kaestli (eds), Narrativity in Biblical and Related Texts/La Narrativité dans la Bible et les textes apparantés (Louvain 2000), 31-51
16. See, e.g., M. Fishbane, Biblical Interpretation in Ancient Israel (Oxford 1985), 211 n. 99
17. Such a distinction, as I have argued, is the whole point of the structural relationship between the two slavery paragraphs of the Covenant Code: the male slave may be used for breeding purposes without altering his status as essentially a free man, subject only to temporary servitude; a woman on the other hand may be used for breeding only if she is given a permanent status. See my 'Some Literary Features of the Mishpatim', in M. Augustin and K.-D. Schunck (eds), Wünschet Jerusalem Frieden, Collected Communications to the XIIth Congress of the International Organization for the Study of the Old Testament, Jerusalem 1986 (Frankfurt 1988), 235-42, at p. 235f.
18. 'Biblical Laws of Slavery: a Comparative Approach', in L. Archer (ed.), Slavery and other Forms of Unfree Labour (London and New York 1988), 86-101, at pp. 93-4
19. Studies, supra n. 5, at 193-7
20. This argument responds also to Phillips (p. 108), who is also puzzled by the release of the 'ivriyah in Deut. 15:12, in the light of the argument he cites from H.W. Wolff, Anthropology of the Old Testament (London 1974), 200-201, that 'the reason why Exod. 21.7 does not permit the female slave to be released, like the male, after six years' service is not that the woman counted more as permanent property, but that the man and wife relationship is thought of primarily as a lasting one even with a slave
21. As regards Deut. 15:17b, relating to the 'amah, however, we may note Phillips's view (p. 102) that D did not disapprove of female slaves being used for concubinage as provided by Exod 21:8-11, but at the same time sought to extend legal responsibility to adult Israelite women
22. At least in the Covenant Code. If I understand correctly his argument at 123-4, he regards Lev. 19:20-2 as an intervention by P in H
23. Some of these interpolations in fact reflect specifically Christian influence in the late empire (including some biblically-inspired expressions, such as the bos cornu petere solitus: See B.S. Jackson, 'Liability for Animals in Roman Law: An Historical Sketch, The Cambridge Law Journal 37 (1978), 122-43, at 140-2
24. In fact, Lev. 24:13-23 is an elaborate chiasmus, as was noted as long ago as 1825, the theme of which (as indicated by the narrative context) is the effect of quarrels, and whose content assembles many of the themes of the mishpatim
25. He refers to his article: 'Creative Imitation in the Hebrew Bible', Studies in Religion 29 (2000), 395-409, which he has kindly made available to me
26. A particular aspect of this, the relationship between the terminology of genevah in Exodus and gezelah in Leviticus, is taken up by J. Milgrom, 'The Missing Thief in Leviticus 5:20ff, Revue Internationale des Droits de l'Antiquité 22 (1975), 71-85
27. and Phillips, ch. 19, 'The Undetectable Offender and the Priestly Legislators', reprinted from JTS 36 (1985), 146-50
28. First Pharoah dreams about the seven thin cows consuming the seven fat ones, then (a separate dream: we are told, And Pharaoh awoke. And he fell asleep and dreamed a second time') he dreams about the seven thin ears of corn swallowing up the seven fat ears (Gen. 41:1-7)
29. For a chronological classification of the surviving texts, see G.R. Driver and J.C. Miles, The Babylonian Laws (Oxford 1952-5), II.1-2
30. On this issue, see also my Essays in Jewish and Comparative Legal History (Leiden 1975), 130-41
31. F. Crüsemann, The Torah. Theology and Social History of Old Testament Law (Edinburgh 1996), 336-7, has argued that it was the new legal framework of the Persian empire which prompted the transformation of the biblical legal collections into 'statutory' texts, binding upon the courts and subject to verbal interpretation, since the Persians had a policy not merely of recognizing the traditional laws of their subjects, but also of treating them as legally binding as the law of the king. The collation of conflicting biblical texts for the purposes of such limited legal autonomy may have seemed less problematic in the light of the view that Persian royal edicts were themselves irrevocable
32. See, more recently, J.W. Watts (ed.), Persia and Torah: The Theory of Imperial Authorization of the Pentateuch (Atlanta 2001)
33. and its review by E. Otto, Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 8 (2002) ,411-13, noting the origins of the theory in the work of P. Frei
34. Cf. Jackson, Studies, supra n. 5, at 249 n. 40
35. (3) I fail to understand why the Covenant Code should be presented as first written by Moses on a sefer and then given again by God on stone tablets, Exod. 24:12 (56f, 64)
36. See particularly my 'Legal Drafting in the Ancient Near East in the Light of Modern Theories of Cognitive Development', Mélanges à la mémoire de Marcel-Henri Prévost (Paris 1982), 49-66
37. 'Practical Wisdom and Literary Artifice in the Covenant Code', in The Jerusalem 1990 Conference Volume, ed. B.S. Jackson and S.M. Passamaneck (Atlanta 1992), 65-92 (Jewish Law Association Studies, VI), esp. at pp. 65-78
38. See further my 'Exodus 21:18-19 and the Origins of the Casuistic Form', Israel Law Review 33/4 (1999), 798-820 (Falk memorial issue)
39. See, e.g., my 'Models in Legal History: The Case of Biblical Law', Journal of Law and Religion XVIII/1 (2002), 1-30, esp. the conclusion
40. on G. Lenski, E. Wolf and R. Stavenhagen, Power and Privilege : A Theory of Social Stratification (Chapel Hill 1984)
41. Law and Marxism. A General Theory, trans. B. Einhorn (London 1983)
42. On this approach, see my Making Sense in Jurisprudence (Liverpool 1996), 83-8
43. See further Jackson, ibid., at 278-94
44. Even the form of empathy which Bennett seeks is, for these purposes, a form of factual claim. He claims (pp. 20-1) that critical theory 'positions scholars to examine aspects of these legal injunctions from a vantage point that is analogous to perspectives among widows, strangers, and orphans in the Biblical communities ...' The precise force of the analogy is not explained. Bennett, moreover, does not make life methodologically easy for himself. Rejecting Gottwald's definition of 'oppression' in purely economic terms, he opts for a more existential model, based on the work of Ira Goldenberg, Oppression and Social Intervention (Chicago 1978)
45. Marilyn Frye, The Politics of Reality: Essays in Feminist Theory (Trumansburg N.Y 1983)
46. and Iris M. Young, Justice and the Politics of Difference (Princeton 1990) and (no doubt because 'participant observation is not an option for the present investigation': 117) the 'lived experience of the writer' (pp. 108-11)
47. The BC therefore proceeds from the early Israelite monarchy', citing as a 'full discussion', R. Albertz, A History of Israelite Religion in the Old Testament Period (Louisville 1992), 60-1. At p. 135, he follows Patrick and Crüsemann for the view that the Book of the Covenant received its present form by the eleventh century
48. Others, by contrast, have stressed the fact that Deuteronomy, unlike other (priestly) sources, allows the tithe to be consumed by the offeror himself, without providing a 'cut' to the priesthood. See J.G. McConville, Law and Theology in Deuter onomy (Sheffield 1985), 69
49. M. Weinfeld, 'Tithe', Enc. Jud. XV, 1156-62, at p. 1158, observes: 'It seems that the tithe, whose main purpose was the maintenance of the Temple and its personnel (see below), was provided by way of an obligatory tax as well as by voluntary donation. It is only Deuteronomy which stripped the tithe of its original purpose and turned it into an obligatory gift to the destitute and the poor'; 'One must say that the Deuteronomic type of tithe is unique and unprecedented. Whereas the tithe is always a tax or gift for the maintenance of a temple or its personnel, here it is simply a philanthropic gift' (p. 1161)
50. (This article of Weinfeld is wrongly attributed to Mark Wischnitzer in the CD version, following the printed Index Volume's identification of 'M.W'. See, however, M. Weinfeld, Deuteronomy and the Deuteronomic School [Oxford 1972], 214 n. 3.)
51. See, however, B.M. Levinson, 'McConville's Law and Theology in Deuteronomy', JQR 80 (1990), 396-404
52. and his exchange with McConville in relation to the Passover laws: J.G. McConville, 'Deuteronomy's Unification of Passover and Mascombining dot belowscombining dot belowôt: A Response to B.M. Levinson', JBL 119 (2000), 47-58
53. B.M. Levinson, 'The Hermeneutics of Tradition in Deuteronomy: A Reply to J.G. McConville', JBL 119 (2000), 269-86
54. Bennett recognises, (p. 87) that the Levite had property and was not poor, despite Deut. 14:27
55. and my review in this journal: JSS 45 (2000), 368-74
56. As for its actual origins, he refers (p. 171) to Ancient Israel's Criminal Law: A New Approach to the Decalogue (Oxford 1970), 158-61, where he had argued that it 'is best seen as a handbook of justice for the new Davidic State, whose king, as elsewhere in the ancient Near East, was to maintain law and order (Ps. 72; Isa. 11).'
57. He appears to view the altar law of Exod. 20:22-6 not as part of the Book of the Covenant, but rather as 'the basic summary of the Covenant law which follows', designed to link with the narrative of breach of covenant through the golden calf, since it is 'the basic summary of the Covenant law which follows' (p. 36)
58. See further my Studies, supra n. 5, at pp. 159-61
59. As some postmodernists (including many in the CLS movement) might claim. Even within that framework, however, there are more and less extreme positions: the less extreme is that there exist criteria of judgement within any (conventionally defined) discipline, which may at least generate best judgments relative to those conventions. Here, even specific historical claims about the dating and location of our sources, which throughout the three books here reviewed appear to be the most problematic, may have their place. I take the view that we are ultimately able to judge the relative merits of different methodological choices, and their applications, in the light of the most explicit and rigorous assessment of the problem of which we are capable: for further discussion, see my Law, Fact and Narrative Coherence (Merseyside 1988), chs 5-6
60. On this, in the context of the recent comparative work of Neusner and his colleagues, see my 'Comparing Jewish and Islamic Law', JSS 48 (2003), 109-21
61. See further my 'Justice and Righteousness in the Bible: Rule of Law or Royal Paternalism?', Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 4 (1998), 218-62, at 259-62
62. '"Law" and "Justice" in the Bible', JJS 49 (1998), 218-29, esp. 227-9
63. For example, J claims, according to Van Seters, that the Covenant Code was inscribed on stone (Exod. 24:12: see n. 36, supra)