ISRAELITE LAW: AN OVERVIEW

In all societies, law is an absolutely necessary bracket that, through a common compulsory way of acting, guarantees the ties between individuals, groups, and communities usually drifting apart due to their different material and ideal interests. Law assumes this task of promoting the cohesion of society through two basic functions. First, it minimizes violence by regulating social conflicts; second, it secures norms by means of sanctions and thus stabilizes expectations of behavior into socially acceptable actions.

The Codification of Law in the Ancient Near East and in Israel

Norms of behavior enforced through the penalty of sanctions and the rules for minimizing violent conflicts were primary forms of law originally transmitted orally. In state-run societies, legal functions tended to be taken over by the state or were put under public supervision. In monarchies, if and for what function laws were written down and codified depended upon the scope of the incarnation of legal functions in the king who embodied public power.

In Egypt, the king's competence for legal decisions could not be restricted by written laws or laws arranged in collections of legal rules. This was because the pharaoh, the son of the sun-god, was looked upon as the incarnation of justice and law (maʾat ). Thus there were not any Egyptian law collections from the pre-Persian period but only several legal decrees of the king. In Mesopotamia, the gods empowered the king to enforce the law. The king could delegate his task to subordinate authorities. Contrary to Egyptian law and justice (Akkadian: kittu [m ] u mīšaru [m ]), the law and justice incarnated in the king were of meta-divine origin, because the gods themselves—like the sun-god Shamash, who is the god of justice—have obtained law and justice. Thus they were only viewed as non-derivable powers who even transcended the gods' universe as well as the king's functions, including the instruction of the gods to the king to enforce the law. Due to this difference between Egypt and Mesopotamia concerning the legitimation of the legal functions of the king, it was possible to codify and collect laws in Mesopotamia without restricting his legal functions.

At first, the Mesopotamians began to write down and to arrange law collections—like that of old Babylonian Eshnunna—which are considered to be descriptions of legal practice, in order to teach and exercise legal decision-making. The law codes were arranged for two purposes: on the one hand, for the education of scribes, on the other hand, for the sophisticated propagation of legal reforms—like the Middle-Assyrian laws—or for the documentation of such a reform—like the Hittite laws. On a secondary stage of literary development, such law collections—like that of Hammurabi—may have been framed by a prologue or an epilogue, according to the royal ideology that serves for the public presentation of the king's function to enforce laws. Likewise in this function, the laws remained descriptive and did not bind the judgments of the court to which the gods—particularly Shamash—were entitled through their cultic decision-making. In Persian jurisprudence of the Achaemenids, the decrees of the king functioned as unchangeable laws for the courts. However, in Persia, as in Egypt, law collections were not codified. In Persia, they also restrained the function of the king for dispensation to jurisdiction by enacting laws together with the state god Ahura Mazdā. But in addition to the decrees of their king, the Persians allowed the enforcement of codified local laws in provinces of defeated nations for order's sake.

In the ancient Near East, laws never gained a critical distance from the king and thus from the state as well. Only in Israel and Greece, where the legal sphere kept its distance from the king, laws—in Israel given by God or in Greece by the will of the people—confronted the state in written form through a prescriptive character bestowed on them. The written legal texts took over functions which were usually filled by the king in the ancient Near East. With the words "the law is the king of all" (nómos ho pántōn basileús ), Pindar (born about 520 bce) furnished a conception for a breakthrough which was true of the Hellenic form of justice and also applied to Israel. But in contrast to Greece, Jewish law was not legitimated by the will of the people in the polis, but it expressed God's will, the source of law and justice (mišpatusdaqā ). In Greece, nómos was the commonly valid norm which an individual was not allowed to violate; nevertheless, it could be altered by the polis. The act of writing down the laws allowed them to be revised, making legal reform possible. However, the consistent deduction of the law from God's will in Israel confined Old Testament law in a way that prohibited legislation or judicial revision initiated by the people. Furthermore, this raised problems concerning the adaptation of laws revealed by God as a legal source to new sociohistorical circumstances because God cannot be contradictory to himself. Within the Bible, legal revisions can only be mediated by scribal techniques in order to prove the identity of revised and revising law and of God's will. This form of inner-biblical judicial revision became the origin of the methods of Rabbinic interpretation of the Bible.

A History of Biblical Law

The Israelite laws had their origins in three functions: first, to secure expectations of socially acceptable behavior by criminal law, second, to regulate conflicts by compensation law (thereby decreasing violence), and third, to regulate intercourse with the divine sphere by sacral law. The form-historical differentiation of Israelite law, which analyzes the typical forms and structures of biblical texts into a casuistic and an apodictic type covered these different functions. The casuistic laws (mišpatim ), consisting of a protasis (i.e., the definition of the case) and an apodosis (i.e., the legal consequence, as in Ex. 21:18–19) served the regulation of conflicts. They stemmed from the judicial practice at local courts where conflicts between families were settled. The apodictic laws as criminal law (hoq/huqqāh/mis wāh/Torah ) comprised the legal rules of capital law (e.g., Ex. 21:12.15–17), the prohibitives of the Decalogue, the bans on incest (Lv. 18), and the law of curse (Dt. 27). The apodictic laws originated in the family but in the preexilic period were transferred to the local courts which begin to settle cases of family law, as well. In pre-Deuteronomic sacral law, the intercourse with the divine sphere was defined by the order of festivals (Ex. 23:14–19; 34:18–26), by the law on first fruits or firstlings (Ex. 22:28–30), on the fallow year and the rest day (Ex. 23:10–12), as well as by the sacral commands of taboos (Ex. 22:17–19).

At local courts, initiatives were taken to collect legal rules of casuistic law on similar themes. Exodus 22:6–14 contains a small collection of three laws dealing with depositing, herding, and renting of animals. In this manner, cases of human negligence can be delimitated from those of force majeure. Such collections served the purpose of contributing to the continuance of juridical decisions by transmitting them in written form and by inferring abstract laws from the decisions. Moreover, rule authority was enhanced by mutual explanation of the legal rules. That entailed a larger diversification concerning the delimitation of cases. More complex collections were those of the law of property (Ex. 21:33–22:14), law of bodily injuries (Ex. 21:18–32), and family law (Dt. 21:15–21a; 22:13–29; 24:1–5; 25:5–10). These collections had ingeniously been arranged through editorial networking by the scribe-scholars of wisdom literature and served to educate, as did the cuneiform law codes originally in Mesopotamia. Most of the legal rules of the above-mentioned biblical collections, however, had an indigene Israelite origin and were not received from Mesopotamian law. This is also true of the law on the "goring ox" (Ex. 21:35–36) which had an Israelite origin although a parallel law exists in the codex of Eshnunna from the first half of the second millennium; the similarity does not have to be explained through legal reception. The notion of "common law" can only be applied in Mesopotamia and Israel in so far as in both countries compilations of legal rules serve for education and the legal rules are descriptive in character.

In the pre-Deuteronomic period, the direct influence of cuneiform law on Israelite law was confined to editorial compilation techniques of legal rules for the purpose of education. Neither the individual laws applied in daily legal practice nor their compilations in the framework of the scribes' curriculum required an explicit legitimation of law, because the function of the laws in settling conflicts and securing norms was self-evident due to general prevention. But when in the eighth and seventh centuries bce social stratification of Israelite society increased, implying poor and rich classes, the natural obviousness of the establishments of laws became lost. A vertical law concerned with providing protection for the benefit of underprivileged people had to be established in addition to a horizontal law relating to the regulation of conflicts (Ex. 21:2–11; 22:20–26; 23:10–12). In order to enforce the vertical law against the interests of the political and economic elite, it needed a religious legitimation. Judean priests took over the small law collection that was compiled for educational reasons, and treated them like the sacral laws by attributing their legal source to YHWH. The ruptures of social conflicts enforced the religious legitimation of law and can be learned from the covenant code in Exodus 21–23, which got its name from the covenant ceremony in Exodus 24:3–8, where Moses read it out. In that way, Zadokite priests at the temple of Jerusalem transferred their comprehension of law, which had its source in the sacral law, to the law-collections which were formed in the course of legal education. Intellectuals from priestly circles, not looking to promote their own interests, worked for the benefit of underprivileged people in society. Already in the covenant code, they charted the program of a society that was based on the solidarity with poor people and thus expressed God's will.

After the laws of the covenant code had been supplied with a theological legitimation, the priests of Judea could use them as a tool for defying cultural and political claims to hegemony in the seventh century bce that were laid by the supreme power of Late Assyria. They inserted a revision of the covenant code (Dt. 12;14–26) into a loyalty oath (Dt. 13; 28) that was adopted in a subversive way from a loyalty oath to the neo-Assyrian king Esarhaddon by referring the royal demand for loyalty to YHWH, thus divesting the Assyrian king of it. The revision of the covenant code in the Deuteronomic law responded to the centralization of the cult combined with the reorganization of the judicial system by King Josiah (622/21 bce) and elaborated on the social program of the covenant code through release of debts (Dt. 15:1–11) and prohibition of usury (Dt. 23:20–21). The cult of the Assyrian imperial god Assur, which had its center at the temple of Assur in the city of Assur, made up the counterpart to the cult of YHWH centralized in Jerusalem (Dt. 12). If evidence is found implying that the Judean legal tradition was superior to the Assyrian one, it must be shown that there are not any inconsistencies, despite the contradictions to the covenant code which are due to the revision. Law legitimated by its divine origin must be free of tensions; God cannot contradict himself. The scribe-authors accomplished this task by turning the text of Deuteronomy, which interprets the covenant code, into the hermeneutical key of the interpreted text in the covenant code. The legislation of asylum illustrates this process in a paradigmatic way. While in Exodus 21:13–14 the respective local sanctuaries were declared to be an asylum, the verses in Deuteronomy 19:2–13 provided cities of asylum all over the country after abolishing local sanctuaries and centralizing the cult. Henceforth Exodus 21:13–14 is considered to be a reference to the asylum function of the central sanctuary in Jerusalem. Therefore the revised laws of the covenant code were not "recycled," as Bernard M. Levinson suggests, but continued to be valid together with the revised law. This explains why the covenant code could be located in the Pentateuch pericope in terms of being a part of the Sinai revelation, whereas the Deuteronomic link with Moab renders this emphasis impossible.

In the late preexilic period, Deuteronomy was held as a direct expression of God's will which was linked to the central sanctuary in Jerusalem and did not yet refer to Moses as an intermediary. But after the loss of the Temple, Deuteronomy had to be adapted to the new situation of the exilic period. This was done by setting Deuteronomic law in a frame (Dt. 5:9–10; 28:1–14, 45–68) that combined the law with Moses and God's mount and incorporated the Decalogue into Deuteronomy 5. Moreover, Deuteronomy was now read as an interpretation, thus imposing the covenant obligations on God's people at God's mount (Dt. 26:16–19). In the covenant code and preexilic Deuteronomy, the king was not mentioned at all, because the legal functions of the king were replaced by the written text of the laws as expression of God's legal will. In the exilic period, when there was no longer an acting king, the Deuteronomists integrated the theme of kingship into the Deuteronomic law (Dt. 17:14–20) but divested it programmatically of all political functions and stylized the king to be the first pious man of Torah among his people. The king was now no longer the source of law as in the ancient Near East but subdued under the divine Torah.

After the fall of kingship even the understanding of time, which in the ancient Near East was embodied in the king and therefore was only conceivable as royal time, became separated from the king by transferring the origin of the law to Mount Horeb, also known as Mount Sinai. Now the law was embedded in a time structure of an ideal "history" as a story of Israel's origin which was remote from the king. In this way the Torah created a link between law and historical narrative. At the same time free prophecy was domesticated by restricting it to Mosaic prophecy as the only legitimate one according to prophetic law (Dt. 18:9–22). Previously, prophecy was blamed for the fractionation of the society in Israel and in Judah, thereby entailing its fall, as the contradiction between true and false prophecy could not be solved. At this point the triumphant advance of law over prophecy began, an event which would be finished in the postexilic period (Zec. 13:2–6). In an additional framework of Deuteronomy (Dt. 1–3; 29–30), the revelation at Mt. Horeb appeared to be a prelude for the proclamation of the law by Moses and for the covenant making in the land of Moab. Thus Deuteronomy not only encouraged the second generation (Dt. 1:19–46) to hope for their return from exile by scheduling the promulgation of Deuteronomy on the day before their entrance into the Promised Land beyond the river Jordan (Dt. 29–30), but it also fostered the expectation that the faults would be expiated after the death of the sinful older generation and that a new history would start on taking possession of the land.

Furnishing the idea of the covenant in Moab, the exilic Deuteronomy stood out against the rival conception of the priestly code which also stemmed from the period of exile and which declared that God's indwelling in the tabernacle of the congregation as well as the establishment of the expiatory cult ministered by the Aaronite priests was the goal and summit of creation and universal history (Gn. 1–11). The covenant with Israel was transferred to the time of the Patriarchs and linked to Abraham (Gn. 17). Furthermore, it was held to be a covenant made by mere grace, independent from the law.

In consequence for the priestly code, all of Israel could not fail the covenant once again. Only individuals who refused circumcision should be expelled from the ethnic community. According to the priestly code, the liability to the law was not particularly imposed on Israel but on all mankind as follows from the Noachite commands (Gn. 9:1–7). Mankind also can neither fail the Noachite commands nor the covenant made with them on the basis of those commands as God promises to refrain from another flood and thus from the extinction of mankind.

The postexilic scribes faced the task to jointly mediate the two different exilic drafts of the narrative foundation of Israel's revelation of the law of the Torah, as expressed in Deuteronomy and the priestly code. If YHWH, the God of Israel, was One according to the First Commandment in the Decalogue, hence his history with Israel and his revealed will of the Torah respectively can be only one. In this respect the postexilic literary history of the Torah theologically was a function of the First Commandment in the Decalogue. The postexilic scribes accomplished the task to adapt the priestly code and the law of Deuteronomy which was combined with the Book of Joshua. They succeeded in doing so by means of their scribal erudition. In the fifth century bce they formed a Hexateuch (Gn. 1 through Jos. 24) in which possession of the land of Israel (Jos. 13–21) was the goal of creation and universal history (Gn. 1–11). In that way they rejected the claim of the Persian imperial ideology that the god Ahura-Mazdā had assigned an appropriate place to all nations in the world, the center of which was Persepolis. While the authors of the Hexateuch considered the possession of the land to be the central Heilsgut (fruit of salvation), the Zadokite priests in the Diaspora challenged this view because they identified the Torah as this good of salvation. They held that Israel was present wherever Jews observe the Torah of YHWH. Ezra 7 preserved the remembrance that the Diaspora theology was adopted in Jerusalem, beginning with Ezra. This process was also reflected in the Pentateuch. The Book of Joshua became separated from it and the Sinai pericope was expanded instead by interpolating the Decalogue, the covenant code, and the holiness code (Lv. 17–26). Thus this pericope became the typical location for the revelation of the Torah kat exochen.

Prophetic circles of the postexilic period examined the Torah-theology of the Pentateuch in a critical way. Circles that felt bound to the tradition of the prophet Ezekiel required a "new spirit" as precondition for fulfilling the Torah which was fixed in a written form by Moses (Ez. 11:19; 36:26–27). Other circles that stood by the tradition of the prophet Jeremiah depreciated the written Torah of Moses and expected a Torah which was written by God on the human heart (Jer. 31:31–34). Consequently they declared the scribes' erudition of the Torah to be useless (Jer. 8:8–9). The draft of a constitution of the post-exilic Israel in Ezekiel 40–48 did not combine the Torah with Moses and Sinai but with the Temple in Jerusalem instead. It could not prevail as a part of the Torah and only entered into the canon under the protecting authority of the priest-prophet Ezekiel. The subsequent Temple Scroll that bound the Temple to the Torah looked for a connection with the Sinai tradition of the Pentateuch (Ex. 34), but the Temple Scroll was ruled out and did not get accepted into the canon of the Hebrew Bible.

See Also

Law and Religion.

Bibliography

Alt, Albrecht. Die Ursprünge des israelitischen Rechts. Leipzig, Germany, 1934. Translated by Robert A. Wilson as Essays on Old Testament History and Religion. Garden City, N.Y., 1967, pp. 101–171. Basic study and critical analysis of apodictic and casuistic law in the Old Testament.

Greengus, Samuel, and Rifat Sonsino. "Law." In The Anchor Bible Dictionary, edited by David Noel Freedmann, vol. 4, pp. 242–254. New York, 1992. A short summary of the development of biblical law with a good bibliography.

Houtman, Cornelis. Das Bundesbuch. Ein Kommentar. Leiden, Netherlands, 1997. Basic commentary on the covenant code.

Jackson, Bernard S. Studies in the Semiotics of Biblical Law. Sheffield, U.K., 2000. Theories of cognitive development are used to explain the development of biblical law.

Lafont, Sophie. Femmes, Droit et Justice dans l'Antiquité orientale. Fribourg, Switzerland, and Göttingen, Germany, 1999. Basic study of gender aspects in ancient Near East criminal law.

Levinson, Bernard M., ed. Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation, and Development. Sheffield, U.K., 1994. Critical discussion of R. Westbrook's hypothesis of an ancient Near East "common law."

Levinson, Bernard M. Deuteronomy and the Hermeneutics of Legal Innovation. New York, 1997. Application of proto-rabbinical exegetical methods, described by Michael Fishbane (Biblical Interpretation in Ancient Israel. Oxford, 1985) to the revision of the covenant code in Deuteronomy.

Lévy, Edmond, ed. La codification des lois dans l'Antiquité. Paris, 2000. Important contributions to the motives for codification of law in antiquity.

Matthews, Victor H., Bernard M. Levinson, and Tikva Frymer-Kensky, eds. Gender and Law in the Hebrew Bible and the Ancient Near East. Sheffield, U.K., 1998. Collection of papers related to aspects of gender-studies in ancient Near East and biblical law.

Otto, Eckart. Theologische Ethik des Alten Testaments. Stuttgart, Germany, 1994. Basic ethics of the Hebrew Bible in a wide range of ancient Near East legal history.

Otto, Eckart. Das Deuteronomium. Politische Theologie und Rechtsreform in Juda und Assyrien. Berlin, 1999. Study of the literary and legal history of Deuteronomic law.

Otto, Eckart. Das Deuteronomium im Pentateuch und Hexateuch. Tübingen, Germany, 2000. Study of the Book of Deuteronomy as part of the Pentateuch.

Roth, Martha T. Law Collections from Mesopotamia and Asia Minor. Atlanta, Ga., 1995. Best collection of texts and translations of cuneiform law.

Watts, James W. Reading Law: The Rhetorical Shaping of the Pentateuch. Sheffield, U.K., 1999. Rhetorical criticism that explains the literary formation of the Pentateuch.

Weinfeld, Moshe. Deuteronomy and the Deuteronomic School. Oxford, 1972; reprint, Winona Lake, Ind., 1992. Important study of intellectual impacts on Deuteronomy.

Weinfeld, Moshe. Justice in Ancient Israel and the Ancient Near East. Jerusalem and Minneapolis, 1995. Important study of ancient Near East patterns to realize social justice.

Westbrook, Raymond. "Biblical and Cuneiform Law Codes." Revue Biblique 92 (1985): 247–264. Study that proves the descriptive character of ancient Near East and biblical law.

Westbrook, Raymond. Studies in Biblical und Cuneiform Law. Paris, 1988. Collection of studies that promote the hypothesis of an ancient Near East and biblical "common law."

Westbrook, Raymond, ed. A History of Ancient Near Eastern Law, 2 vols. Leiden, Netherlands, 2003. Basic collection of studies of all fields of ancient Near East legal history, with good bibliographies.

Eckart Otto (2005)