Why does Deuteronomy legislate cities of refuge? Asylum in the covenant collection (Exodus 21:12-14) and Deuteronomy (19:1-13)

Journal of Biblical Literature

Volumn 125, Issue 1, 2006, Pages 23-49

  Stackert, Jeffrey ^a  

^a BRANDEIS UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 63649143011     PISSN: 00219231     EISSN: 19343876     Source Type: Journal    
DOI: 10.2307/27638345     Document Type: Review

References (77)

1. Pamela Barmash, Homicide in the Biblical World (Cambridge: Cambridge University Press, 2005), 71-93. In the following discussion, I cite Barmash's analysis regularly for two reasons: first, it is the most recent contribution to the discussion of biblical asylum laws. Second, it was in the context of evaluating her work that my views on Deuteronomic asylum developed. Thus, although I disagree significantly with Barmash's analysis, I am indebted to her presentation of the evidence and to her discussion of the issues. I warmly thank David P. Wright and Marc Z. Brettler for reading and responding to an earlier draft of this paper. Their comments were especially helpful in sharpening my arguments. Nevertheless, I alone am responsible for the conclusions here.
2. Julius Wellhausen, Prolegomena to the History of Ancient Israel (trans. Allan Menzies and J. Sutherland Black; New York: Meridian, 1957), 33, 162.
3. In addition to the commentaries, see the several studies devoted specifically to the pentateuchal/hexateuchal asylum laws, including N. M. Nicolsky, "Das Asylrecht in Israel," ZAW 48 (1930): 146-75;
4. M. David, "Die Bestimmungen über die Asylstädte in Josua XX," OTS 9 (1951): 30-48;
5. Moshe Greenberg, "The Biblical Conception of Asylum," JBL 78 (1959): 125-32;
6. Henry McKeating, "The Development of the Law on Homicide in Ancient Israel," VT 35 (1975): 46-68;
7. A. Graeme Auld, "Cities of Refuge in Israelite Tradition," JSOT 10 (1978): 26-40;
8. Michael Fishbane, "Biblical Colophons, Textual Criticism, and Legal Analogies," CBQ 42 (1980): 438-49;
9. Jacob Milgrom, "Sancta Contagion and Altar/City Asylum," in Congress Volume: Vienna 1980 (ed. J. A. Emerton; VTSup 32; Leiden: Brill, 1981), 278-310;
10. Alexander Rofé, "Joshua 20: Historico-Literary Criticism Illustrated," in Empirical Models for Biblical Criticism (ed. Jeffrey H. Tigay; Philadelphia: University of Pennsylvania Press, 1985), 131-47;
11. idem, "The History of the Cities of Refuge in Biblical Law," in Deuteronomy: Issues and Interpretation (London/New York: T&T Clark, 2002), 121-47;
12. repr. from Studies in Bible, 1986 (ed. Sara Japhet; ScrHier 31; Jerusalem: Magnes, 1986);
13. Cornelius Houtman, "Der Altar als Asylstädte im alten Testament: Rechtsbestimmung (Ex. 21, 12-14) und Praxis (I Reg. 1-2)," RB 103 (1996): 343-66;
14. Timothy M. Willis, The Elders of the City: A Study of the Elders-Laws in Deuteronomy (SBLMS 55; Atlanta: Society of Biblical Literature, 2001), 89-144;
15. Ludwig Schmidt, "Leviten- und Asylstädte in Num. XXXV und Jos. XX; XXI 1-42," VT 52 (2002): 103-21.
16. The parameters of the Covenant Collection are debated, and some scholars view Exod 23:20 as outside the strict boundaries of the Covenant Collection proper. For a discussion of the boundaries of the Covenant Collection and especially the place of Exod 23:20-33, see, e.g., Frank Crüsemann, The Torah: Theology and Social History of Old Testament Law (trans. Allan W. Mahnke; Minneapolis: Fortress, 1996), 112-15, 178-81, 195-200.
17. On this point, Barmash follows Greenberg, "Biblical Conception of Asylum," 125.
18. ašer yānûs šāmmāh, which emerge both in v. 13 and in the P and D sections dealing with the cities of refuge (cf. Num 35:11, 15, 20, 22, 25-26; Deut 19:3-4; Josh 20:3, 6, 9), as well as additional considerations, give good reason for believing that only a city of refuge is meant in this verse" (Temples and Temple Service, 121 n. 15). He also suggests that Exod 21:13-14 represents an ascending order of asylum power: the altar (v. 14) is a more powerful refuge than the city (v. 13), translating in v. 14, "You shall take him from my very altar." Haran's arguments are unconvincing: in the first case, it is hardly clear that the "characteristic, quasi-technical expressions" in Exod 21:13 that accord with other pentateuchal asylum legislation require this verse to refer to city asylum. Moreover, Haran leaves undefined what the "additional considerations" are that suggest city asylum in this verse. In the second case, the syntax of v. 14 and the logic of vv. 12-14 do not necessitate a translation of in v. 14 as "my very altar." Neither is an adverb such as, which would substantiate such a translation, attested. Even if such a translation is accepted, it does not justify understanding vv. 13-14 as legislating city and altar asylum, let alone a hierarchical relationship between these disparate places of refuge.
19. Barmash, Homicide in the Biblical World, 76-80.
20. Ludger Schwienhorst-Schönberger, Das Bundesbuch (Ex 20,22-23,33): Studie zu seiner Entstehung und Theologie (BZAW 188; Berlin/New York: de Gruyter, 1990), 40-41.
21. Moshe Weinfeld similarly argues that Exod 21:13-14 refers to the same cultic location: "mpn in this context, like the Arabic maqâm, refers to a holy place and a temple, and thus the reference is to a temple that affords refuge" (Social Justice in Ancient Israel and in the Ancient Near East [2nd ed.; Jerusalem: Magnes; Minneapolis: Fortress, 2000], 123).
22. David P. Wright, "The Laws of Hammurabi as a Source for the Covenant Collection (Exodus 20:23-23:19)," Maarav 10 (2003): 11-87.
23. Several scholars have argued that the participial laws in Exod 21:12, 15-17 (and for some, 22:17-19) were originally independent of the casuistic laws that characterize Exod 21:2-22:16 (see, e.g. Crüsemann, Torah, 144-51) and that Exod 21:13-14, which introduces the issues of inadvertent killing and asylum, is a later, even post-Deuteronomic/post-Priestly, addition to the Covenant Collection (see, e.g. Moshé Anbar, "L'influence deutéronomique sur le Code de l'Alliance: le cas d'Exode 21:12-17," ZABR 5 [1999]: 165-66).
24. Admitting the relation between Exod 21:13-14 and Exod 20:24-26, one can then argue that the altar law is also a later addition to the Covenant Collection. If this is the case, then the direction of dependence argued in this study - Deuteronomy depends on Exodus - would have to be reversed. However, Wright's study of the Covenant Collection in relation to the Laws of Hammurabi (cited previously in this note) effectively quells this issue: Wright argues that the Covenant Collection employs the Laws of Hammurabi (LH) as a source and controlling template for its composition, following the sequence of laws in LH in its arrangement of both material it culls from LH and material it derives from other sources. Thus, the fact that LH 206-7 concern inadvertent homicide suggests that Exod 21:13-14, while likely modifying a participial law that the Covenant Collection author derives from another, perhaps native source, does not arise from a different compositional event from the one in which LH serves as the template for the author of the Covenant Collection (Wright, "Laws of Hammurabi as a Source," 17-18).
25. Likewise, because of the clear correspondence between Exod 21:13-14 and Exod 20:24-26, it is unnecessary to presume that the altar law is a late addition (cf. David P. Wright, "The Compositional Logic of the Goring Ox and Negligence Laws in the Covenant Collection [Ex 21:28-36]," ZABR 10 [2004]: 93-142, esp. 111 n. 42; 49 n. 141;
26. Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation [Oxford/New York: Oxford University Press, 1997], 11-52;
27. idem, "Is the Covenant Code an Exilic Composition? A Response to John Van Seters," in In Search of Pre-exilic Israel: Proceedings of the Oxford Old Testament Seminar [ed. John Day; JSOTSup 406; London: T&T Clark, 2004], 272-325, esp. 297-315]).
28. For discussion of the relation of the altar law to the LH, see Wright, "Laws of Hammurabi," 43-44;
29. idem, "Compositional Logic," 2-3 n. 3.1 thank Professor Wright for generously sharing with me an advance copy of this manuscript.
30. For a grammatical discussion of the phrase and a justification for its rendering as "in every place," see Levinson, Deuteronomy and the Hermeneutics, 32 n. 18.
31. The cultic nature of the in Exod 20:24 is indicated both by the presence of an altar and the sacrifices performed and by the deity's coming there and blessing the people, all activities integrally connected to a sanctuary and not to a city.
32. So also, e.g., Eckart Otto, Das Deuteronomium: Politische Theologie und Rechtsreform in Judah und Assyrien (BZAW 284; Berlin/New York: de Gruyter, 1999), 254.
33. See John Van Seters, A Law Book for the Diaspora: Revision in the Study of the Covenant Code (Oxford/New York: Oxford University Press, 2003), 106-8.
34. Van Seters understands Exod 21:12-14 to rely on the altar law in Exod 20:24-26; however, he views each text as referring to a single sanctuary in its use of the term. Moreover, for Van Seters, the Covenant Collection's conception of cultic centralization is directly borrowed from and thus subsequent to Deuteronomy. For critique of Van Seters, see Levinson, "Is the Covenant Code an Exilic Composition?" passim;
35. Eckart Otto, review of A Law Book for the Diaspora: Revision in the Study of the Covenant Code, RBL 7 (2004) (www.bookreviews.org/pdf/39293801.pdf);
36. and David P. Wright, review of A Law Book for the Diaspora: Revision in the Study of the Covenant Code, JAOS 124 (2004): 129-31.
37. Greenberg, "Biblical Conception of Asylum," 131-32.
38. Centralization is an important factor in Deuteronomy's (re)formulation of several laws, including its legislation on tithes, slaves, festivals, the judiciary, and Levites. Among the many treatments of such issues, see Moshe Weinfeld, Deuteronomy and the Deuteronomic School (Oxford: Clarendon, 1972; repr., Winona Lake, IN: Eisenbrauns, 1992), 191-243;
39. Levinson, Deuteronomy and the Hermeneutics, 23-143.
40. Weinfeld, Social Justice, 97-132, esp. 120-32. As will become apparent in the following discussion, it is important to note that all the extrabiblical examples of asylum that Weinfeld cites transparently associate city asylum with a temple located within the refuge city. Moreover, because cultic asylum extended to different boundaries - from altar to temple to temple city - Weinfeld argues that one need not recognize a development in the Bible from altar asylum to city asylum. Instead, as noted above, Weinfeld argues that the "altar" in Exod 21:14 is housed within the "place" in Exod 21:13 (Social Justice, 123-24). See below for my response to this view.
41. Michael Heltzer, "Asylum on Alashia (Cyprus)," ZABR 7 (2001): 368-73.
42. Note the secular redefinition of the verb ("to sacrifice") in these verses. See Jacob Milgrom, "Profane Slaughter and a Formulaic Key to the Composition of Deuteronomy," HUCA 47 (1976): 1-17;
43. for critique of Milgrom, see Levinson, Deuteronomy and the Hermeneutics, 38, 41-43.
44. Eckart Otto, "Aspects of Legal Reforms and Reformulations," in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development (ed. B. M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994), 160-96, here 195). Otto views 19:1, 2b, 7-9 as Deuteronomistic additions to an original, preexilic asylum text in Deut 19:2a, 3-6, 10-13.
45. In the book of Deuteronomy, one can observe this phenomenon both in legal texts, as noted here, and in narrative texts. For examples of the latter, see the chapter entitled "Deuteronomy as Interpretation" in Marc Z. Brettler, The Creation of History in Ancient Israel (London: Routledge, 1995), 62-78.
46. This may be an interpretive variation of the inverted quotation technique commonly called Zeidel's law, after its discoverer. See Moshe Zeidel, "Parallels between Isaiah and Psalms" (in Hebrew), Sinai 38 (1955-56): 149-72, 229-40, 272-80, 335-55;
47. Pancratius C. Beentjes, "Inverted Quotations in the Bible: A Neglected Stylistic Pattern," Bib 63 (1982): 506-23;
48. idem, "Discovering a New Path of Intertextuality: Inverted Quotations and Their Dynamics," in Literary Structure and Rhetorical Strategies in the Hebrew Bible (ed. L. J. de Regt et al.; Winona Lake, IN: Eisenbrauns, 1996), 31-50.
49. See Barmash, Homicide in the Biblical World, 23 n. 6.
50. See Weinfeld's helpful compilation of Deuteronomic phraseology (Deuteronomy and the Deuteronomic School, 320-65).
51. Milgrom similarly argues that Deuteronomic asylum is unrelated to centralization and does not innovate but rather presumes a long-standing tradition of city asylum ("Sancta Contagion and Altar/City Asylum," 302-3; see also Jacob Milgrom, Numbers [JPS Torah Commentary; Philadelphia/New York: Jewish Publication Society, 1990], 506).
52. In some ways, although he views the chronology of the relationship between the pentateuchal asylum laws differently, Greenberg comes closest to this interpretation in his conclusions concerning the relationship of Exod 21:12-14 and Num 35:9-34. He states, "The law of Numbers is to be understood as amplifying the vague 'place' to which Exodus promises that the manslayer will be able to flee" ("The Biblical Conception of Asylum," 132).
53. Carolyn Pressler, "A Response to Bernard Levinson's Deuteronomy and the Hermeneutics of Legal Innovation," ZABR 6 (2000): 314-19 . It is unlikely that the Deuteronomic authors would include legislation such as Deut 19:1-13 in their work if their aim were to supplant completely the local judiciary in the precise cases that the asylum law addresses.
54. As in the asylum text (esp. 19:10, 13), the interest of Deut 21:1-9 is the shedding of innocent blood and its potential effects (Deut 21:7-9, 13). Moreover, the city elders play a fundamental role both in assessing the guilt or innocence of the killer in Deut 19:12 and in determining which town must participate in the elimination rite in Deut 21:1-9 and in facilitating that rite (Deut 21:2-3). Each text commands the measurement of the land between cities (Deut 19:3; 21:2). Additionally, both the asylum text and the rite employ the same verb to describe the killing, (Deut 19:4, 6, 11; Deut 21:1). For further discussion of the judicial function of the elders, see Jacob Milgrom, "The Ideological and Historical Importance of the Office of Judge in Deuteronomy," in Isac Leo Seeligmann Volume: Essays on the Bible and the Ancient World (ed. A. Rofé and Y. Zakovitch; 3 vols.; Jerusalem: E. Rubenstein, 1983), 3:129-39.
55. Deuteronomy 23:17 employs the term in the singular in the context of a slave choosing a place to live and the Israelites' obligation to not return him to his master. In this verse, does not have a cultic connotation. It is interesting to note, however, that the slave's choice of a "place" to dwell among the Israelites is described in terms that parallel the centralization formula almost exactly. See Hamilton, Social Justice, 117-21.
56. Further, Deuteronomy rarely uses in reference to the land of Israel as a whole (e.g., Deut 26:9). Thomas C. Römer suggests that such texts are exilic in origin and therefore link temple and land together, for the restoration of the former requires the restoration of the latter ("Cult Centralization in Deuteronomy 12: Between Deuteronomistic History and Pentateuch," in Das Deuteronomium zwischen Pentateuch und Deuteronomistischem Geschichtswerk [ed. E. Otto and R. Achenbach; FRLANT 206; Göttingen: Vandenhoeck & Ruprecht, 2004], 168-80, here 172-73). Römer's suggestion that in Deut 12:11 may mean "land," however, is dubious and may even cast doubt on his larger historical reconstruction.
57. An analogous example of "reserving" a particular word/verbal root for a specific, technical usage (and refusing to use it otherwise) is the attestation of the verb in P/H. In contrast to other biblical authors, pentateuchal Priestly writers never employ this verb for simple cleaning/ washing. Instead, P/H reserves for specialized use within its ideological framework of cult and morality (see Jacob Milgrom, Leviticus 1-16: A New Translation with Introduction and Commentary [AB 3A; New York Doubleday, 1991], 967).
58. The import and flexibility of the term in asylum legislation are further exemplified by its attestation in Josh 20:4. This verse states, "He shall flee to one of these cities and stand at the opening of the gate and speak his words into the ears of the elders of that city. They shall gather him to themselves into the city and they shall provide a place for him, and he shall dwell with them/under their protection." Meir Malul argues that in this verse is not simply a physical place but rather takes on a specially nuanced sense of social status ("'Āqēb 'Heel' and 'Āqab 'To Supplant' and the Concept of Succession in the Jacob-Esau Narratives," VT 46 [1996]: 190-212, here 210).
59. Weinfeld also argues that Deuteronomy secularizes in the case of asylum; however, he presumes that Num 35:9-34 is historically antecedent to Deut 19:1-13 and serves as a source for the latter. Thus, Deuteronomy's secularization, evidenced by its use of the verb (Deut 19:2, 7) rather than the Priestly (Num 35:11) and (Josh 20:7) (but cf. Rofé's rebuttal of such argument ["History of the Cities of Refuge," 133]), is a move away from the cultic consideration of asylum in the Priestly law and not from altar asylum in the Covenant Collection (Deuteronomy and the Deuteronomic School, 236-37).
60. In addition to viewing the chronology of the sources differently, Weinfeld leaves the question of the origin of the concept of city asylum unexplained. For secularization in Deuteronomy, see also Moshe Weinfeld, "On 'Demythologization and Secularization' in Deuteronomy," IEJ 23 (1973): 230-33;
61. Jacob Milgrom, "The Alleged 'Demythologization and Secularization' in Deuteronomy," IEJ 23 (1973): 156-61.
62. The method of inner-biblical exegesis that I observe here builds on that explained by Fishbane (Biblical Interpretation, 231-77) and by Levinson (Deuteronomy and the Hermeneutics, passim). In the latter case, Levinson concentrates especially on examples in which the Deuteronomic legislator uses the exact words or phrases (in his and Fishbane's terminology, lemmas) of the Covenant Collection in order to subvert their meaning in their original context (cf. Deuteronomy 12's reinterpretation of the altar law in Exod 20:24 [Deuteronomy and the Hermeneutics, 23-52]). In the case of in Exod 21:13, however, the Deuteronomic author does not actually use the exact term from his source text but rather only interprets it, thereby leaving less evidence of his literary dependence. Nevertheless, as is the case in Levinson's examples, Deuteronomy here borrows the authority of the Covenant Collection while altering its message. This seems similar to what Fishbane calls the "'bound' variety" of "implied lemmatic exegesis" (Biblical Interpretation, 267). In a more recent article ("You Must Not Add Anything to What I Command You: Paradoxes of Canon and Authorship in Ancient Israel," Numen 50 [2003]: 1-51), Levinson discusses further the nature of biblical legal innovation and offers particularly pertinent insights for the present study. For example, he states, "The biblical authors developed what may best be described as a 'rhetoric of concealment,' one that served to camouflage the actual literary history of the laws" (p. 24). Likewise, in the context of his discussion of Ezekiel's transformation of intergenerational punishment, Levinson notes, "The new teaching is presented as consistent with the very doctrine that it rejects: as an authoritatively taught 're-citation' of the original theologoumenon" (p. 39). Such is the case in Deuteronomy's transformation of Exod 21:13's.
63. See Willis, Elders of the City, 89-144.
64. In contrast to Num 35:25, 28, Deut 19:1-13 does not explicitly state how long the unintentional killer must remain in the asylum city. For this reason, scholars have offered several different suggestions for understanding the nature and length of the manslayer's residence in the asylum city. For example, Weinfeld argues that the manslayer would remain in the asylum city until the blood avenger's anger diminished (Deuteronomy and the Deuteronomic School, 237). Rofé suggests, on the evidence of Num 35:32, that the manslayer would pay a ransom to the victim's family, thereby resolving the issue of blood feud for the blood avenger ("History of the Cities of Refuge," 144).
65. Raymond Westbrook holds that compensation may be paid to the victim's family in the case of both intentional and unintentional killing (Studies in Biblical and Cuneiform Law [CahRB 26; Paris: Gabalda, 1988], 79).
66. The implication in the text, however, is that the unintentional killer must remain in the asylum city permanently in order safely to avoid reprisal at the hand of the blood avenger (see Willis's discussion of this issue, in which he argues that requiring the exile of the unintentional killer "equalizes" the loss of the victim's family [Elders of the City, 135]).
67. One major issue in Deut 19:1-13 that is left unexplained by the Deuteronomic reconceptualization of as is the introduction of the blood avenger as agent of revenge. It is possible that the idea of blood revenge, which is common in kinship-based societies (see Barmash, Homicide in Ancient Israel, 20-70;
68. was assumed by the Deuteronomic author in his understanding of Exod 21:12-14 and simply made explicit in Deut 19:1-13 (so Westbrook, Studies in Biblical and Cuneiform Law, 79). Certainly Exod 21:13-14 assumes that the unintentional killer is in potential danger, especially in light of the homicide law in Exod 21:12 and the talion prescriptions in Exod 21:23b-25. However, there is no direct evidence for determining how the blood avenger was introduced into the pentateuchal
69. Among the many scholars who recognize the shift from altar asylum to city asylum as a response to Deuteronomic centralization, see recently Otto, Das Deuteronomium, 253-56;
70. and Rofé, "History of the Cities of Refuge," 127-28, 133, 137.
71. See Barmash, Homicide in the Biblical World, 88 n. 61.
72. Otto differentiates between the sanctuary city and the land cities, arguing that Exod 21:13-14 applies to the central sanctuary while Deut 19:2-13 applies to the rest of the land (Das Deuteronomium, 264-65).
73. See M. David, "The Manumission of Slaves under Zedekiah (A Contribution to the Laws about Hebrew Slaves)," OTS 5 (1948): 63-79;
74. Nahum Sarna, "Zedekiah's Emancipation of Slaves and the Sabbatical Year," in Orient and Occident: Essays Presented to Cyrus H. Gordon on the Occasion of his Sixty-fifth Birthday (ed. H. A. Hoffner; AOAT 22; Kevelaer: Butzon & Bercker; Neukirchen-Vluyn: Neukirchener Verlag, 1973), 143-49.
75. See texts 30-33 in Arthur E. Cowley, Aramaic Papyri of the Fifth Century B.C. (Oxford: Clarendon, 1923).
76. See also the newer edition of these texts (identified as A4.7-A4.10) in Bezalel Porten and Ada Yardeni, Textbook of Aramaic Documents from Ancient Egypt (3 vols.; Jerusalem: Hebrew University Department of the History of the Jewish People, 1986)
77. and their English translation with commentary (texts B19-B22) in Bezalel Porten, The Elephantine Papyri in English: Three Millennia of Cross-Cultural Continuity and Change (Documenta et Monumenta Orientis Antiqui 22; Leiden: Brill, 1996).